Exhibit 10.1
PLAY BY PLAY TOYS & NOVELTIES, INC.
1994 INCENTIVE PLAN
1. PURPOSE. The purposes of the Play By Play Toys & Novelties, Inc. 1994
Incentive Plan (the "Plan") are to provide additional incentives to those
officers and key employees of Play By Play Toys & Novelties, Inc. and its
Subsidiaries (as hereinafter defined) whose substantial contributions are
essential to the continued growth and success of the Company's business, to
strengthen their commitment to the Company and its Subsidiaries, to motivate
those officers and employees to perform their assigned responsibilities
faithfully and diligently, and to attract and retain competent and dedicated
individuals whose efforts will result in the long-term growth and profitability
of the Company. To accomplish these purposes, the Plan provides that the Company
may grant Incentive Stock Options, Nonqualified Stock Options, and Restricted
Stock (as each term is hereinafter defined).
2. DEFINITIONS. For purposes of the Plan:
(A) "ADJUSTED FAIR MARKET VALUE" means, in the event of a Change in
Control, the greater of (i) the highest price per Share paid to holders of
the Shares in any transaction (or series of transactions) constituting or
resulting in a Change in Control or (ii) the highest Fair Market Value of
a Share during the ninety (90) day period ending on the date of a Change
in Control.
(B) "AGREEMENT" means the written agreement between the Company and
an Optionee or Grantee evidencing the grant of an Option or Award and
setting forth the terms and conditions thereof.
(C) "AWARD" means a grant of Restricted Stock.
(D) "BOARD" means the Board of Directors of the Company.
(E) "CHANGE IN CAPITALIZATION" means any increase or reduction in
the number of Shares, or any change (including, but not limited to, a
change in value) or exchange of Shares for a different number or kind of
shares or other securities of the Company, by reason of a
reclassification, recapitalization, merger, consolidation, reorganization,
spin-off, split-up, issuance of warrants or rights or debentures, stock
dividend, stock split or reverse stock split, cash dividend, property
dividend, combination or exchange of shares, repurchase of shares, public
offering, private placement, change in corporate structure or otherwise,
which in the judgment of the Committee is material or significant.
(F) "CHANGE IN CONTROL" means any of the following events:
(i) The acquisition (other than from the Company) by any
"Person" (as the term is used for purposes of Sections 13(d) or
14(d) of the Exchange Act) of beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the Exchange Act) of twenty
percent (20%) or more of the combined voting power of the Company's
then outstanding voting securities; or
(ii) The individuals who, as of October 21, 1994, are members
of the Board (the "Incumbent Board"), cease for any reason to
constitute at least two-thirds of the Board; provided, however, that
if the election, or nomination for election by the Company's
stockholders, of any new director was approved by a vote of at least
two-thirds of the Incumbent Board, such new director shall, for
purposes of this Agreement, be considered as a member of the
Incumbent Board; or
(iii) Approval by stockholders of the Company of (a) a merger
or consolidation involving the Company if the stockholders of the
Company, immediately before such merger or consolidation do not, as
a result of such merger or consolidation, own, directly or
indirectly, more than seventy percent (70%) of the combined voting
power of the then outstanding voting securities of the corporation
resulting from such merger or consolidation in substantially the
same proportion as their ownership of the combined voting power of
the voting securities of the Company outstanding immediately before
such merger or consolidation or (b) a complete liquidation or
dissolution of the Company or an agreement for the sale or other
disposition of all or substantially all of the assets of the
Company.
Notwithstanding the foregoing, a Change in Control shall not be deemed to
occur pursuant to Section 2(f)(i), solely because twenty percent (20%) or
more of the combined voting power of the Company's then outstanding
securities is acquired by (i) a trustee or other fiduciary holding
securities under one or more employee benefit plans maintained by the
Company or any Subsidiary or (ii) any corporation which, immediately prior
to such acquisition, is owned directly or indirectly by the stockholders
of the Company in the same proportion as their ownership of stock in the
Company immediately prior to such acquisition.
(G) "CODE" means the Internal Revenue Code of 1986, as amended.
(H) "COMMITTEE" means a committee consisting of at least three (3)
Disinterested Persons appointed by the Board to administer the Plan and to
perform the functions set forth herein.
(I) "COMPANY" means Play By Play Toys & Novelties, Inc., a Texas
corporation.
(J) "DISINTERESTED PERSON" means a disinterested administrator with
respect to the Company or any Subsidiary as described in Rule 16b-3(b)(2)
under the Exchange Act.
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(K) "DIVISION" means any of the operating units or Divisions of the
Company designated as a Division by the Committee.
(L) "ELIGIBLE EMPLOYEE" means any officer or other designated
employees of the Company or a Subsidiary designated by the Committee as
eligible to receive Options or Awards subject to the conditions set forth
herein.
(M) "EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
(N) "FAIR MARKET VALUE" means the fair market value of the Shares as
determined in good faith by the Committee; provided, however, that (i) if
the Shares are admitted to trading on a national securities exchange, Fair
Market Value on any date shall be the last sale price reported for the
Shares on such exchange on such date or, if no sale was reported on such
date, on the last date preceding such date on which a sale was reported,
(ii) if the Shares are admitted to quotation on the National Association
of Securities Dealers Automated Quotation System ("NASDAQ") and have been
designated as a National Market System ("NMS") security, Fair Market Value
on any date shall be the last sale price reported for the Shares on such
system on such date or on the last day preceding such date on which a sale
was reported, or (iii) if the Shares are admitted to quotation on NASDAQ
and have not been designated a NMS security or are listed on another
comparable quotation system, Fair Market Value on any date shall be the
average of the highest bid and lowest asked prices of the Shares on such
system on such date.
(O) "GRANTEE" means a person to whom an Award has been granted under
the Plan.
(P) "INCENTIVE STOCK OPTION" means an Option within the meaning of
Section 422 of the Code.
(Q) "NONQUALIFIED STOCK OPTION" means an Option which is not an
Incentive Stock Option.
(R) "OPTION" means an Incentive Stock Option, a Nonqualified Stock
Option, or either or both of them.
(S) "OPTIONEE" means a person to whom an Option has been granted
under the Plan.
(T) "RESTRICTED STOCK" means Shares issued or transferred to an
Eligible Employee which are subject to restrictions. Restricted Stock may
be subject to restrictions which lapse over time without regard to the
performance of the Company, a Subsidiary or a Division, pursuant to
Section 7 hereof.
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(U) "SHARES" means the common stock, no par value, of the Company
(including any new, additional or different stock or securities resulting
from a Change in Capitalization).
(V) "SUBSIDIARY" means any corporation in an unbroken chain of
corporations, beginning with the Company, if each of the corporations,
other than the last corporation in the unbroken chain, owns stock
possessing fifty percent (50%) or more of the total combined voting power
of all classes of stock in one of the other corporations in such chain.
(W) "TEN-PERCENT STOCKHOLDER" means an Eligible Employee, who, at
the time an Incentive Stock Option is to be granted to him or her, owns
(within the meaning of Section 422(b)(6) of the Code) stock possessing
more than ten percent (10%) of the total combined voting power of all
classes of stock of the Company, or of a parent or a Subsidiary within the
meaning of Section 422(b)(6) of the Code.
3. ADMINISTRATION.
(a) The Plan shall be administered by the Committee which shall hold
meetings at such times as may be necessary for the proper administration
of the Plan. A quorum shall consist of not less than three members of the
Committee and a majority of a quorum may authorize any action. Each member
of the Committee shall be a Disinterested Person. No member of the
Committee shall be personally liable for any action, determination or
interpretation made in good faith with respect to the Plan, Agreements,
Options or Awards, and all members of the Committee shall be fully
indemnified by the Company with respect to any such action, determination
or interpretation.
(b) Subject to the express terms and conditions set forth herein,
the Committee or the Board shall have the power from time to time:
(i) to determine those Eligible Employees to whom Options
shall be granted under the Plan and the number of Incentive Stock
Options and/or Nonqualified Stock Options to be granted to each
Eligible Employee and to prescribe the terms and conditions (which
need not be identical) of each Option, including the purchase price
per Share subject to each Option, and make any amendment or
modification to any Agreement consistent with the terms of the Plan;
(ii) to select those Eligible Employees to whom Awards shall
be granted under the Plan and to determine the number of Shares of
Restricted Stock to be granted pursuant to each Award, the terms and
conditions of each Award, including the restrictions relating to
such Shares, and make any amendment or modification to any Agreement
consistent with the terms of the Plan;
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(c) Subject to the express terms and conditions set forth herein,
the Committee shall have the power from time to time:
(i) to construe and interpret the Plan and the Options and
Awards granted thereunder and to establish, amend and revoke rules
and regulations for the administration of the Plan, including, but
not limited to, correcting any defect or supplying any omission, or
reconciling any inconsistency in the Plan or in any Agreement, in
the manner and to the extent it shall deem necessary or advisable to
make the Plan fully effective, and all decisions and determinations
by the Committee in the exercise of this power shall be final,
binding and conclusive upon the Company, a Subsidiary, and the
Optionees and Grantees, as the case may be;
(ii) to determine the duration and purposes for leave of
absence which may be granted to an Optionee or Grantee on an
individual basis without constituting a termination of employment or
service for purposes of the Plan;
(iii) to exercise its discretion with respect to the powers
and rights granted to it as set forth in the Plan; and
(iv) generally, to exercise such powers and to perform such
acts as are deemed necessary or advisable to promote the best
interests of the Company with respect to the Plan;
provided, however, that the Committee may delegate to senior members
of the management of the Company the right to exercise those powers
described in Sections (b)(i) and (ii) with respect to Eligible
Employees who are not employed in the Company's corporate
headquarters (and staff vice presidents and assistant officers).
4. STOCK SUBJECT TO PLAN.
(a) The maximum number of Shares that may be issued or transferred
pursuant to Options and Awards under the Plan is three hundred thousand
(300,000) Shares (or the number and kind of shares of stock or other
securities to which such Shares are adjusted upon a Change in
Capitalization pursuant to Section 8) and the Company shall reserve for
the purposes of the Plan, out of its authorized but unissued Shares or out
of Shares held in the Company's treasury, or partly out of each, such
number of Shares as shall be determined by the Board.
(b) Not more than 66 2/3% of the Shares referred to in Section 4(a)
may be issued or transferred in connection with Awards of Restricted Stock
made pursuant to Section 7.
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(c) Whenever any outstanding Option or Award or portion thereof
expires, is cancelled or is otherwise terminated for any reason (other
than by exercise of the Option), the Shares allocable to the cancelled or
otherwise terminated portion of such Option or Award may again be the
subject of Options and Awards hereunder.
(d) Whenever any Shares subject to an Award or Option are forfeited
for any reason pursuant to the terms of the Plan, such Shares may again be
the subject of Options and Awards hereunder.
5. ELIGIBILITY. Subject to the provisions of the Plan, the Committee shall
have full and final authority to select those Eligible Employees who will
receive Options and/or Awards; provided, however, that no Eligible Employee
shall receive any Incentive Stock Options unless he or she is an employee of the
Company, a parent or a Subsidiary (within the meaning of Section 422 of the
Code) at the time the Incentive Stock Option is granted.
6. OPTIONS. The Committee may grant Options in accordance with the Plan
and the terms and conditions of the Option shall be set forth in an Agreement.
Each Option and Agreement shall be subject to the following conditions:
(A) PURCHASE PRICE. The purchase price or the manner in which the
purchase price is to be determined for Shares under each Option shall be
set forth in the Agreement, provided that the purchase price per Share
under each Incentive Stock Option shall not be less than one hundred
percent (100%) of the Fair Market Value of a Share at the time the
Incentive Stock Option is granted (one hundred ten percent (110%) in the
case of an Incentive Stock Option granted to a Ten-Percent Stockholder).
(B) DURATION. Options granted hereunder shall be for such term as
the Committee shall determine, provided that no Incentive Stock Option
shall be exercisable after the expiration of ten (10) years from the date
it is granted (five (5) years in the case of an Incentive Stock Option
granted to a Ten-Percent Stockholder). The Committee may, subsequent to
the granting of any Option, extend the term thereof but in no event shall
the term as so extended exceed the maximum term provided for in the
preceding sentence.
(C) NON-TRANSFERABILITY. No Option hereunder shall be transferable
by the Optionee to whom granted otherwise than by will or the laws of
descent and distribution or pursuant to a qualified domestic relations
order as defined by the Code or Title I of the Employee Retirement Income
Security Act, and an Option may be exercised during the lifetime of such
Optionee only by the Optionee or his guardian or legal representative. The
terms of such Option shall be final, binding and conclusive upon the
beneficiaries, executors, administrators, heirs and successors of the
Optionee.
(D) VESTING. Subject to Section 6(i) hereof, each Option shall be
exercisable in such installments (which need not be equal) and at such
times as may be designated by the Committee and set forth in the
Agreement. To the extent not exercised,
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installments shall accumulate and be exercisable, in whole or in part, at
any time after becoming exercisable, but not later than the date the
Option expires. The Committee may accelerate the exercisability of any
Option or portion thereof at any time.
(E) METHOD OF EXERCISE. The exercise of any Option shall be made
only by a written notice delivered in person or by mail to the Secretary
of the Company at the Company's principal executive office, specifying the
number of Shares to be purchased and accompanied by payment therefor and
otherwise in accordance with the Agreement pursuant to which the Option
was granted. The purchase price for any Shares purchased pursuant to the
exercise of an Option shall be paid in full upon such exercise, as
determined by the Committee in its discretion, in cash, by check, or by
transferring Shares to the Company upon such terms and conditions as
determined by the Committee. The written notice pursuant to this Section
6(e) may also provide instructions from the Optionee to the Company that
upon receipt of the purchase price in cash from the Optionee's broker or
dealer, designated as such on the written notice, in payment for any
Shares purchased pursuant to the exercise of an Option, the Company shall
issue such Shares directly to the designated broker or dealer. Any Shares
transferred to the Company as payment of the purchase price under an
Option shall be valued at their Fair Market Value on the day preceding the
date of exercise of such Option. If requested by the Committee, the
Optionee shall deliver the Agreement evidencing the Option to the
Secretary of the Company who shall endorse thereon a notation of such
exercise and return such Agreement to the Optionee. No fractional Shares
shall be issued upon exercise of an Option and the number of Shares that
may be purchased upon exercise shall be rounded to the nearest number of
whole Shares.
(F) RIGHTS OF OPTIONEES. No Optionee shall be deemed for any purpose
to be the owner of any Shares subject to any Option unless and until (i)
the Option shall have been exercised pursuant to the terms thereof, (ii)
the Company shall have issued and delivered the shares to the Optionee and
(iii) the Optionee's name shall have been entered as a stockholder of
record on the books of the Company. Thereupon, the Optionee shall have
full voting, dividend and other ownership rights with respect to such
Shares.
(G) TERMINATION OF EMPLOYMENT. The Agreement shall set forth the
terms and conditions of the Option upon the termination of the Optionee's
employment with the Company, Subsidiary or a Division (including a
Grantee's ceasing to be employed by a Subsidiary or Division as a result
of the sale of such Subsidiary or Division or an interest in such
Subsidiary or Division) as the Committee may, in its discretion, determine
at the time the Option is granted or thereafter; provided, however, that
no Option shall be exercisable beyond its maximum term as described in
Section 6(b) hereof.
(H) MODIFICATION OR SUBSTITUTION. Subject to the terms of the Plan,
the Committee may, in its discretion, modify outstanding Options or accept
the surrender of outstanding Options (to the extent not exercised) and
grant new Options in substitution for them. Notwithstanding the foregoing,
no modification of an Option shall adversely
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alter or impair any rights or obligations under any Agreement without the
Optionee's consent.
(I) EFFECT OF CHANGE IN CONTROL. Notwithstanding anything contained
in the Plan or any Agreement to the contrary, in the event of a Change in
Control, (i) all Options outstanding on the date of such Change in Control
shall become immediately and fully exercisable and (ii) an Optionee will
be permitted to surrender for cancellation within sixty (60) days after
such Change in Control, any Option or portion of an Option to the extent
not yet exercised and the Optionee will be entitled to receive a cash
payment in an amount equal to the excess, if any, of (x)(A) in the case of
Nonqualified Stock Options, the greater of (1) the Fair Market Value, on
the date preceding the date of surrender, of the Shares subject to the
Option or portion thereof surrendered or (2) the Adjusted Fair Market
Value of the Shares subject to the Option or portion thereof surrendered
or (B) in the case of an Incentive Stock Option, the Fair Market Value, at
the time of surrendered, of the Shares subject to the Option or portion
thereof surrendered, over (y) the aggregate purchase price for such Shares
under the Option; provided, however, that in the case of an Option granted
within six (6) months prior to the Change in Control to any Optionee who
may be subject to liability under Section 16(b) of the Exchange Act, such
Optionee shall be entitled to surrender for cancellation his or her Option
during the sixty (60) day period commencing upon the expiration of six (6)
months from the date of grant of any such Option.
7. RESTRICTED STOCK. The Committee may grant Awards of Restricted Stock
which shall be evidenced by an Agreement between the Company and the Grantee.
Awards of Restricted Stock may be granted at no cost or at a specified price to
the Grantee. Each Agreement shall contain such restrictions, price, terms and
conditions as the Committee may, in its discretion, determine and (without
limiting the generality of the foregoing) such Agreements may require that an
appropriate legend be placed on Share certificates. Awards of Restricted Stock
shall be subject to the following terms and provisions:
(A) RIGHTS OF GRANTEE. Shares of Restricted Stock granted pursuant
to an Award hereunder shall be issued in the name of the Grantee as soon
as reasonably practicable after the Award is granted provided that the
Grantee has executed an Agreement evidencing the Award, the appropriate
blank stock powers and, in the discretion of the Committee, an escrow
agreement and any other documents which the Committee may require as a
condition to the issuance of such Shares. If a Grantee shall fail to
execute the Agreement evidencing a Restricted Stock Award, the appropriate
blank stock powers and, in the discretion of the Committee, an escrow
agreement and any other documents which the Committee may require within
the time period prescribed by the Committee at the time the Award is
granted, the Award shall be null and void. At the discretion of the
Committee, Shares issued in connection with a Restricted Stock Award shall
be deposited together with the applicable stock powers with an escrow
agent designated by the Committee. Unless the Committee determines
otherwise, and as set forth in the Agreement, upon delivery of the Shares
to the escrow agent, the Grantee shall
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have all of the rights of a stockholder with respect to such Shares,
including the right to vote the Shares.
(B) PURCHASE PRICE. The Committee, in its sole discretion, shall
determine the purchase price, if any, at which Shares of Restricted Stock
shall be sold to a Grantee hereunder, provided that such purchase price
shall in any event be payable in cash by Grantee at the time the Shares of
Restricted Stock are sold.
(C) NON-TRANSFERABILITY. Until any restrictions imposed upon the
Shares of Restricted Stock awarded to a Grantee shall have lapsed in the
manner set forth in Section 7(d), such Shares shall not be sold,
transferred or otherwise disposed of and shall not be pledged or otherwise
hypothecated, nor shall they be delivered to the Grantee.
(D) LAPSE OF RESTRICTIONS.
(I) GENERALLY. Restrictions upon Shares of Restricted Stock
awarded hereunder shall lapse at such time or times and on such
terms and conditions as the Committee may determine.
(II) EFFECT OF CHANGE IN CONTROL. Notwithstanding anything
contained in the Plan to the contrary, in the event of a Change in
Control, all restrictions upon any Shares of Restricted Stock shall
lapse immediately and all such Shares shall become fully vested in
the Grantee.
(E) TERMINATION OF EMPLOYMENT. Each Agreement shall set forth the
terms and conditions of the Award of Shares of Restricted Stock upon the
termination of the Grantee's employment with the Company, a Subsidiary or
a Division (including a Grantee's ceasing to be employed by a Subsidiary
or a Division as a result of the sale of such Subsidiary or Division or an
interest in such Subsidiary or Division) as the Committee may, in its
discretion, determine at the time the Award is granted or thereafter.
(F) MODIFICATION OR SUBSTITUTION. Subject to the terms of the Plan,
the Committee may modify outstanding Awards of Restricted Stock or accept
the surrender of outstanding Awards of Restricted Stock (to the extent not
exercised) and grant new Awards in substitution for them. Notwithstanding
the foregoing, no modification of an Award shall adversely alter or impair
any rights or obligations under any Agreement without the Grantee's
consent.
(G) TREATMENT OF DIVIDENDS. At the time the Award of Shares of
Restricted Stock is granted, the Committee may, in its discretion,
determine that the payment to the Grantee of dividends, or a specified
portion thereof, declared or paid on such Shares by the Company shall be
(i) deferred until the lapsing of the restrictions imposed upon such
Shares and (ii) held by the Company for the account of the Grantee until
such time. In the event of such deferral, there shall be credited at the
end of each year (or portion thereof) interest on the amount of the
account at the beginning of the year at a rate per
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annum as the Committee, in its discretion, may determine. Payment of
deferred dividends, together with interest accrued thereon, shall be made
upon the lapsing of restrictions imposed on such Shares, and any dividends
deferred (together with any interest accrued thereon) in respect of any
Shares of Restricted Stock shall be forfeited upon the forfeiture of such
Shares of Restricted Stock pursuant to Section 7(e) or otherwise.
(H) DELIVERY OF SHARES. Upon the lapse of the restrictions on Shares
of Restricted Stock, the Committee shall promptly cause a stock
certificate to be delivered to the Grantee with respect to such Shares,
free of all restrictions hereunder.
8. ADJUSTMENT UPON CHANGES IN CAPITALIZATION.
(a) In the event of a Change in Capitalization, the Committee shall
conclusively determine the appropriate adjustments, if any, to the maximum
number and class of Shares or other stock or securities with respect to
which Options or Awards may be granted under the Plan, the number and
class of Shares or other stock or securities which are subject to
outstanding Options or Awards granted under the Plan, and the purchase
price therefor, if applicable.
(b) Any such adjustment in the Shares or other stock or securities
subject to outstanding Incentive Stock Options (including any adjustments
in the purchase price) shall be made in such manner as not to constitute a
modification as defined by Section 424(h)(3) of the Code and only to the
extent otherwise permitted by Sections 422 and 424 of the Code.
(c) If, by reason of a Change in Capitalization, a Grantee of an
Award shall be entitled to, or an Optionee shall be entitled to exercise
an Option with respect to, new, additional or different shares of stock or
securities (other than rights or warrants to purchase securities), such
new additional or different shares shall thereupon be subject to all of
the conditions, restrictions and performance criteria which were
applicable to the Shares subject to the Option prior to such Change in
Capitalization.
9. EFFECT OF CERTAIN TRANSACTIONS. Subject to Sections 6(i) and 7(d)(ii),
in the event of (i) the liquidation or dissolution of the Company or (ii) a
merger or consolidation of the Company (a "Transaction"), all Options and Awards
issued hereunder shall continue in effect in accordance with their respective
terms and each Optionee and Grantee shall be entitled to receive in respect of
each Share subject to any outstanding Options or Awards, as the case may be,
upon exercise of any Option or Award or upon payment or transfer in respect of
any Award, the same number and kind of stock, securities, cash, property, or
other consideration that each holder of a Share was otherwise entitled to
receive in the Transaction in respect of a Share.
10. RELEASE OF FINANCIAL INFORMATION. A copy of the Company's annual
report to stockholders shall be delivered to each Optionee and Grantee at the
time such report is distributed to the Company's stockholders.
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11. TERMINATION AND AMENDMENT OF THE PLAN.
(a) The Plan shall terminate on the day preceding the tenth (10th)
anniversary of its effective date and no Option or Award may be granted
thereafter. The Board may sooner terminate or amend the Plan (other than
to reduce the rights of Optionees and Grantees, as the case may be, under
Sections 6(i) and 7(d)(ii)), at any time and from time to time; provided,
however, that to the extent necessary under Section 16(b) of the Exchange
Act and the rules and regulations promulgated thereunder, no amendment
shall be effective unless approved by the stockholders of the Company in
accordance with applicable law and regulations at an annual or special
meeting held within twelve (12) months before or after the date of
adoption of such amendment.
(b) Except as provided in Sections 8 and 9 hereof, rights and
obligations under any Option or Award granted before any amendment of the
Plan shall not be adversely altered or impaired by such amendment, except
with the consent of the Optionee or Grantee, as the case may be.
12. NON-EXCLUSIVITY OF THE PLAN. The adoption of the Plan by the Board
shall not be construed as amending, modifying or rescinding any previously
approved incentive arrangement or as creating any limitations on the power of
the Board to adopt such other incentive arrangements as it may deem desirable.
13. LIMITATION OF LIABILITY. As illustrative of the limitations of
liability of the Company, but not intended to be exhaustive thereof, nothing in
the Plan shall be construed to:
(a) give any person any right to be granted an Option or Award other
than at the sole discretion of the Committee;
(b) give any person any rights whatsoever with respect to Shares
except as specifically provided in the Plan;
(c) limit in any way the right of the Company to terminate the
employment of any person at any time; or
(d) be evidence of any agreement or understanding, expressed or
implied, that the Company will employ any person in any particular
position at any particular rate of compensation or for any particular
period of time.
14. REGULATIONS AND OTHER APPROVALS; GOVERNING LAW.
(a) This Plan and the rights of all persons claiming hereunder shall
be construed and determined in accordance with the laws of the State of
Texas without giving effect to the conflicts of laws principles thereof,
except to the extent that such law is preempted by federal law.
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(b) The obligation of the Company to sell or deliver Shares with
respect to Options and Awards granted under the Plan shall be subject to
all applicable laws, rules and regulations, including all applicable
federal and state securities laws, and the obtaining of all such approvals
by governmental agencies as may be deemed necessary or appropriate by the
Committee.
(c) The Plan is intended to comply with Rule 16b-3 promulgated under
the Exchange Act and the Committee shall interpret and administer the
provisions of the Plan or any Agreement in a manner consistent therewith.
Any provisions inconsistent with such Rule shall be inoperative and shall
not affect the validity of the Plan.
(d) The Board may make such changes as may be necessary or
appropriate to comply with the rules and regulations of any government
authority, or to obtain for Eligible Employees granted Incentive Stock
Options the tax benefits under the applicable provisions of the Code and
regulations promulgated thereunder.
(e) Each Option and Award is subject to the requirement that, if at
any time the Committee determines, in its discretion, that the listing,
registration or qualification of Shares issuable pursuant to the Plan is
required by any securities exchange or under any state or federal law, or
the consent or approval of any governmental regulatory body is necessary
or desirable as a condition of, or in connection with, the grant of an
Option or the issuance of Shares, no Options shall be granted or payment
made or Shares issued, in whole or in part, unless listing, registration,
qualification, consent or approval has been effected or obtained free of
any conditions as acceptable to the Committee.
(f) Notwithstanding anything contained in the Plan to the contrary,
in the event that the disposition of Shares acquired pursuant to the Plan
is not covered by a then current registration statement under the
Securities Act of 1933, as amended, and is not otherwise exempt from such
registration, such Shares shall be restricted against transfer to the
extent required by the Securities Act of 1933, as amended, and Rule 144 or
other regulations thereunder. The Committee may require any individual
receiving Shares pursuant to the Plan, as a condition precedent to receipt
of such Shares (including upon exercise of an Option), to represent and
warrant to the Company in writing that the Shares acquired by such
individual are acquired without a view to any distribution thereof and
will not be sold or transferred other than pursuant to an effective
registration thereof under said Act or pursuant to an exemption applicable
under the Securities Act of 1933, as amended, or the rules and regulations
promulgated thereunder. The certificates evidencing any of such Shares
shall be appropriately legended to reflect their status as restricted
securities as aforesaid.
15. MISCELLANEOUS.
(A) MULTIPLE AGREEMENTS. The terms of each Option or Award may
differ from other Options or Awards granted under the Plan at the same
time, or at some other time. The Committee may also grant more than one
Option or Award to a given Eligible
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Employee during the term of the Plan, either in addition to, or in
substitution for, one or more Options or Awards previously granted to that
Eligible Employee. The grant of multiple Options and/or Awards may be
evidenced by a single Agreement or multiple Agreements, as determined by
the Committee.
(B) WITHHOLDING OF TAXES.
(1) The Company shall have the right to deduct from any
distribution of cash to any Optionee or Grantee, an amount equal to
the federal, state and local income taxes and other amounts as may
be required by law to be withheld (the "Withholding Taxes") with
respect to any Option or Award. If an Optionee or Grantee is
entitled to receive Shares upon exercise of an Option or pursuant to
an Award, the Optionee or Grantee shall pay the Withholding Taxes to
the Company prior to the issuance, or release from escrow, of such
Shares. In satisfaction of the Withholding Taxes to the Company, the
Optionee or Grantee may make a written election (the "Tax
Election"), which may be accepted or rejected in the discretion of
the Committee, to have withheld a portion of the Shares issuable to
him or her upon exercise of the Option or pursuant to an Award
having an aggregate Fair Market Value equal to the Withholding
Taxes, provided that (i) in respect of an Optionee or Grantee who
may be subject to liability under Section 16(b) of the Exchange Act
(unless his or her employment was terminated due to disability or
death), the Tax Election is made either at least six (6) months
prior to the date that the amount of the Withholding Taxes are
determined (the "Tax Date") or during the ten (10) day period
beginning on the third (3rd) business day and ending on the twelfth
(12th) business day following the release for publication of the
Company's quarterly or annual statements of earnings, (ii) the Tax
Election is made prior to the Tax Date, and (iii) the Tax Election
is irrevocable; provided, however, in the event that the Tax Date
occurs subsequent to the exercise of the Option or issuance of
Shares, the Optionee or Grantee shall tender back to the Company on
the Tax Date that number of Shares having a Fair Market Value on the
date preceding the Tax Date at least equal to the Withholding Taxes.
(2) If an Optionee makes a disposition, within the meaning of
Section 424(c) of the Code and regulations promulgated thereunder,
of any Share or Shares issued to Optionee pursuant to Optionee's
exercise of an Option within the two (2) year period commencing on
the day after the date of the grant or within the one (1) year
period commencing on the day after the date of transfer of such
Share or Shares to the Optionee pursuant to such exercise, the
Optionee shall, within ten (10) days of such disposition, notify the
Company thereof, by delivery of written notice to the Company at its
principal executive office, and immediately deliver to the Company
the amount of Withholding Taxes.
(C) DESIGNATION OF BENEFICIARY. Each Optionee and Grantee may
designate a person or persons to receive, in the event of his or her
death, any Option or Award or any amount payable pursuant thereto, to
which he or she would then be entitled. Such
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designation will be made upon forms supplied by and delivered to the
Company and may be revoked in writing. If an Optionee fails effectively to
designate a beneficiary, then his or her estate will be deemed to be the
beneficiary.
16. EFFECTIVE DATE. The effective date of the Plan shall be the date of
its adoption by the Board, subject only to the approval by the affirmation votes
of the holders of a majority of the securities of the Company present, or
represented, and entitled to vote a at a meeting of stockholders duly held in
accordance with the applicable laws of the State of Texas within twelve (12)
months of such adoption.
PLAY BY PLAY TOYS & NOVELTIES, INC.
ATTEST: By /s/ MARK A. GAWLIK
Mark A. Gawlik, President
By /s/ JOE M. GUERRA
Joe M. Guerra, Secretary
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