THIRD AMENDMENT AND RESTATEMENT
OF
THE PARISIAN, INC.
STOCK OPTION PLAN FOR OFFICERS
TABLE OF CONTENTS
Article Page
1 - INTRODUCTION, PURPOSE AND INTENT . . . . . . . . . . . . . . . . 1
2 - DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . 2
3 - PARTICIPATION. . . . . . . . . . . . . . . . . . . . . . . . . . 5
4 - CONVERSION AND GRANT OF OPTIONS. . . . . . . . . . . . . . . . . 5
5 - FORFEITURE OF OPTIONS. . . . . . . . . . . . . . . . . . . . . . 8
6 - EXERCISE OF OPTIONS. . . . . . . . . . . . . . . . . . . . . . . 9
7 - TRANSFERS OF SHARES. . . . . . . . . . . . . . . . . . . . . . . 12
8 - AMENDMENT AND TERMINATION. . . . . . . . . . . . . . . . . . . . 13
9 - BENEFICIARIES. . . . . . . . . . . . . . . . . . . . . . . . . . 13
10 - ASSIGNABILITY . . . . . . . . . . . . . . . . . . . . . . . . . 14
11 - ADMINISTRATION. . . . . . . . . . . . . . . . . . . . . . . . . 14
12 - MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . 15
THIRD AMENDMENT AND RESTATEMENT
OF
THE PARISIAN, INC.
STOCK OPTION PLAN FOR OFFICERS
On April 26, 1988, Parisian, Inc., an Alabama corporation (the
"Corporation") adopted the Parisian, Inc. Stock Option Plan for
Officers (the "Plan"). On May 12, 1989 and May 21, 1990, the
Corporation, having obtained the written consent of all of the
Participant Representatives, amended and restated the Plan. On November
17, 1992 and April 8, 1996, the Corporation, having obtained the consent
of all of the Participant Representatives, amended the Plan.
Pursuant to an Agreement and Plan of Merger, dated July 8, 1996, among
Proffitt's, the Corporation and a wholly-owned subsidiary of Proffitt's,
Inc., a Tennessee corporation ("Proffitt's") (the "Merger Agreement"),
said subsidiary shall merge with and into the Corporation on the date
which includes the "Effective Time" (as that term is defined in the
Merger Agreement). As a result of said merger, the Corporation shall
become a wholly-owned subsidiary of Proffitt's.
Pursuant to Section 4.4 of the Plan as in effect immediately prior to
this Third Amendment and Restatement (the "Pre-Merger Plan"), said
merger requires an equitable adjustment of the number and option prices
of the options granted by the Corporation pursuant to this Plan (the
"Parisian Options") so as to preserve their aggregate value. Pursuant
to Section 1.5 (d) of the Merger Agreement, Proffitt's is required to
assume the Pre-Merger Plan and the Corporation's obligations thereunder.
Proffitt's and the Corporation have determined that the Pre-Merger Plan
should be amended and restated to reflect the equitable adjustment of
number and option prices of the Parisian Options and that the same does
not deprive any Participant, Beneficiary or Plan Shareholder of any
right or benefit which has accrued under the Pre-Merger Plan as of the
Effective Date. Accordingly, in order to comply with Section 4.4 of the
Pre-Merger Plan and Section 1.5(d) of the Merger Agreement and having
obtained the written consent of all of the Participant Representatives,
Proffitt's and the Corporation, pursuant to the provisions of Article 8
of the Pre-Merger Plan, hereby amend and restate the Pre-Merger Plan
effective as of the Effective Date.
ARTICLE 1 - INTRODUCTION, PURPOSE AND INTENT
Proffitt's owns all of the issued and outstanding shares of the capital
stock of the Corporation. The Corporation owns and operates a chain of
specialty apparel department stores. In order to conduct and advance
its business effectively, the Corporation must attract and retain
qualified executives and provide them with meaningful financial
incentives. Accordingly, Proffitt's and the Corporation have
established this Plan to provide the Officers with long-range financial
incentives and shall maintain and administer this Plan for the exclusive
benefit of the Participants and their Beneficiaries.
ARTICLE 2 - DEFINITIONS
Unless otherwise provided herein, the following terms shall have the
following meanings:
2.1 ADMINISTRATOR: The party determined pursuant to Article 11.
2.2 BENEFICIARY. With respect to a Participant, the party who,
pursuant to Article 9, owns any options owned by such Participant at the
time of his death.
2.3 BOARD: With respect to Proffitt's or the Corporation, as
applicable, its Board of Directors.
2.4 COMMISSION: The Securities and Exchange Commission.
2.5 CORPORATION: Parisian, Inc., an Alabama corporation.
2.6 DISABILITY: A Participant's physical or mental inability to
perform the normal duties of his employment by the Corporation which
continues for more than 180 consecutive days and which is not
attributable to chronic or excessive use of intoxicants, drugs or
narcotics, intentional self-inflicted injury or self-induced sickness or
any felonious act or enterprise on the part of the Participant. If
there is any disagreement between the Corporation and a Participant as
to the Participant's Disability or as to the date any such Disability
began, the same shall be determined by a physician to be selected by the
Administrator who shall make such determination after an examination of
the Participant by such physician. The Participant shall be available
for such an examination at any reasonable time. The determination of
such physician shall be conclusive evidence of the Disability or
non-Disability of the Participant and of the date any such Disability
began. If the Participant fails or refuses to cooperate in such
examination, the determination of the Participant's Disability or
non-Disability and the date any such Disability began shall be made by
the Administrator in its sole discretion.
2.7 EFFECTIVE DATE: The date which includes the "Effective Time" (as
that term is defined in the Merger Agreement).
2.8 OFFICER: Any person who is an employee of the Corporation and
either the President or an Executive Vice President, Senior Vice
President or Vice President of the Corporation or Proffitt's.
2.9 OPTION: The right to purchase one Share from Proffitt's for the
Option Price and upon the terms and conditions set forth in this Plan.
2.10 OPTIONHOLDER: The owner of an Option.
2.11 OPTION PRICE: With respect to an Option, the price determined
pursuant to Article 4 for which one Share may be purchased from
Proffitt's upon the exercise of such Option.
2.12 OPTION TRANSFEREE. With respect to a Participant, his spouse and
lineal descendants who have attained age 21 and a Qualified Trust, the
sole beneficiaries of which may not include anyone other than such
Participant, his spouse and lineal descendants.
2.13 PARISIAN OPTION: An option granted by the Corporation pursuant to
this Plan prior to this Third Amendment and Restatement which entitles
the holder thereof to purchase from the Corporation one share of the One
Cent ($0.01) par value common stock of the Corporation for the option
price and upon the terms and conditions of the Pre-Merger Plan.
2.14 PARTICIPANT: At any relevant time, an Officer or former Officer who
is a Participant pursuant to Article 3.
2.15 PARTICIPANT REPRESENTATIVES: The Corporation's Chief Executive
Officer, D. Warren Bailey and Steven B. Corenblum; provided, however,
that if either of said named individuals ceases to be a Participant,
Proffitt's shall give written notice of that fact to the other
Participants who shall elect another Participant to succeed said named
individual as a Participant Representative. Each Participant shall have
one vote in the election of such successor regardless of the number of
Options and Shares owned by such Participant. Any action required or
permitted to be taken by the Participant Representatives hereunder or
any consent, approval or notice required or permitted to be given by the
Participant Representatives hereunder shall be taken or given by a
majority of the Participant Representatives.
2.16 PLAN SHAREHOLDER: An owner of Shares.
2.17 PRE-MERGER PLAN: This Plan as in effect immediately prior to this
Third Amendment and Restatement.
2.18 PROFFITT'S: Proffitt's, Inc., a Tennessee corporation.
2.19 QUALIFIED EMPLOYEE: A person who, on April 8, 1996, was an Officer
of the Corporation.
2.20 QUALIFIED TRUST: A trust established pursuant to a written document
which has been approved in writing by the Corporation in its sole
discretion and which, by its terms:
(a) authorizes the trustee of such trust to:
(i) acquire, own and dispose of shares of stock and other
securities and options to purchase shares of stock and other
securities;
(ii) exercise any such options;
(iii) grant proxies to vote any securities owned by such trust;
and
(iv) enter into agreements with respect to such securities, the
term of which may extend beyond the term of such trust; and
(b) provides that Options and Shares held by the trustee of such trust
shall only be distributed to a beneficiary of such trust if such
beneficiary (i) is an Option Transferee of the grantor of such trust and
(ii) prior to such distribution, has agreed in writing, in form and
substance satisfactory to the Corporation, in its sole discretion, that
such beneficiary and the options and Shares distributed to him shall be
bound by the provisions of this Plan including, without limitation,
those of Articles 4 and 7 hereof;
(c) cannot be amended without the prior written approval of the
Corporation, which approval may be withheld by the Corporation in its
sole discretion;
(d) provides that any such amendment which is not so approved by the
Corporation shall be invalid; and
(e) contains such other terms and provisions as the Corporation, in its
sole discretion, shall determine to be appropriate.
2.21 RULE 144: Rule 144 under the Securities Act or any similar
provision then in force promulgated under the Securities Act.
2.22 SECURITIES ACT: The Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
2.23 SHARES: The shares of the Ten Cent ($0.10) par value common stock
of Proffitt's purchased from Proffitt's pursuant to the terms and
conditions set forth in this Plan and any shares of Stock received upon
the conversion of such shares but excluding any shares of Stock acquired
other than pursuant to this Plan.
2.24 STOCK: All classes of the preferred and common capital stock of
Proffitt's.
2.25 TRANSFEROR: With respect to an Option Transferee, the Participant
to whom the Options owned by such Option Transferee were originally
granted.
ARTICLE 3 - PARTICIPATION
3.1 PARTICIPATION. Any person who, on the Effective Date, was an
Officer or a former Officer of the Corporation and held any Parisian
Options shall be a Participant as of the Effective Date. An Officer who
is not a Participant on the Effective Date shall become a Participant if
and when Options are granted to him pursuant to Article 4.
3.2 TERMINATION OF PARTICIPATION. A Participant shall cease to be a
Participant on the date on which he exercises all Options then owned by
him.
ARTICLE 4 - CONVERSION AND GRANT OF OPTIONS
4.1 CONVERSION OF PARISIAN OPTIONS. Pursuant to Section 4.4 of the
Pre-Merger Plan, the Parisian Options are hereby converted into Options
in accordance with the provisions of this Section. As a result of said
conversion, the Parisian Options are hereby cancelled and the owner of
such Parisian Options shall have no further right to purchase from the
Corporation any of the shares of its capital stock but such owners shall
receive the number of Options determined pursuant to the provisions of
this Section.
(a) Number of Options. The Parisian Options held by each owner of
Parisian Options are hereby converted into a number of Options equal to
80% of the number of such Parisian Options; provided, however, that if
an owner of Parisian Options would receive a fractional Option, then, as
determined by the Participant Representatives in their sole discretion,
such owner shall receive the next lowest or next highest whole number of
Options; provided, further, however, that the total number of Options
received by all such owners shall equal 80% of the number of Parisian
Options held by them.
(b) Option Price. If the option price of the Parisian Option from
which an Option is hereby converted was $18.00, the Option Price of such
Option shall be $22.50. If the option price of the Option from which an
Option is converted was $20.40, the Option Price of such Option shall be
$25.50.
(c) Agreements. Upon its receipt of a certificate evidencing Parisian
Options, Proffitt's shall execute and deliver to the holder of such
Parisian Options an agreement evidencing his ownership of the Options
into which said Parisian Options have been converted and reflecting the
Option Prices of such Options.
4.2 FULL VESTING OF OPTIONS. All of the Options are and, unless and
until forfeited in accordance with the provisions of Article 5, shall
remain fully vested.
4.3 GRANT OF FORFEITED OPTIONS. In the event any Options are forfeited
pursuant to Article 5, then, on the third business day following its
receipt of written notice from a majority of the Participant
Representatives, Proffitt's shall grant to each Officer named in such
notice the number of such Options specified therein. The Option Price
of each Option granted pursuant to any such notice shall be:
(a) with respect to an Option granted to a Qualified Employee, $22.50;
and
(b) with respect to an Option granted to an Officer who is not a
Qualified Employee, $25.50.
4.4 GRANT OF OPTIONS TO PARTICIPANT REPRESENTATIVE. Notwithstanding
the foregoing provisions of this Section, the Corporation shall not
grant any of the Options referred to in a written notice described in
Section 4.3 to any Officer named in such notice unless:
(a) none of such Officers is a Participant Representative;
(b) the Corporation's Board approves Proffitt's grant of such Options
to such Officers prior to the date such Options are to be granted
pursuant to such notice; or
(c) pursuant to such notice, each Participant is to be granted his
pro-rata portion of such Options.
For purposes of this Section 4.4, a Participant's pro-rata portion of
such Options shall be a fraction, the numerator of which shall be the
number of Options and Shares owned by such Participant and his Permitted
Transferees, Transferees, Pledgees and Remote Transferees (as such terms
are defined in the Pre-Merger Plan) on the date of such notice and the
denominator of which shall be the number of Options and Shares owned by
all Participants on such date.
4.5 ADJUSTMENTS. If, at any time prior to the termination of this
Plan, there is an increase or decrease or other change in the shares of
Stock by reason of stock dividends (or payment of a dividend consisting
of money or other property to the extent the recipient thereof
immediately reinvests such dividend in Proffitt's and receives from
Proffitt's in exchange therefor additional shares of Stock), split-ups,
recapitalizations, combinations, conversions, exchanges of shares or the
like, then, as of the date of such increase, decrease or other change,
there shall be an equitable adjustment of the number and Option Prices
of the Options then owned by the Participants and Beneficiaries so as to
preserve the aggregate value of such Options determined as of such date.
4.6 EVIDENCE OF OPTIONS. All Options shall be evidenced by an
agreement reflecting the name of the owner of such Options and the
number and Option Price of such Options and bearing a conspicuous notice
of (a) the restrictions imposed by this Plan on the exercise and
transferability of such Options and the transferability of the Shares
purchased pursuant to such exercise and (b) such other matters relating
to the Options, the Shares and this Plan as the Administrator shall deem
appropriate.
4.7 RESTRICTIONS ON TRANSFER OF OPTIONS. Except as permitted by this
Section 4.7, no Optionholder may sell, transfer, assign, convey or
otherwise dispose of or alienate any of his options or any right or
interest therein (whether voluntarily, by operation of law, by gift or
otherwise) or enter into any contract or agreement or grant any option
with respect to the sale, transfer, assignment, conveyance or other
disposition of his Options or any right or interest therein. Any
purported transfer of Options in violation of this Section shall be void
and ineffective and shall not operate to transfer any interest in or
title to such options to the purported transferee and Proffitt's shall
not record any such purported transfer in its transfer records.
(a) Permitted Transfers Of Options By Participants. Upon ten (10) days
prior written notice to Proffitt's (or such lesser number of days as
Proffitt's may agree to in writing) , a Participant may sell, transfer
or assign all or any number of his Options to a transferee who (or
which) is an Option Transferee only if, prior to such transfer, such
transferee has agreed in writing, in form and substance satisfactory to
Proffitt's, in its sole discretion, that such transferee and the Options
transferred to him shall be bound by the provisions of this Plan
including, without limitation, those of this Article 4. Such notice
shall specify the name and address of the proposed transferee, the
relationship between the Participant and the proposed transferee which
establishes the proposed transferee as an Option Transferee of the
Participant and the number and Option Prices of the Options to be
transferred to such proposed transferee. Notwithstanding the foregoing
provisions of this Section, if Options are transferred to an Option
Transferee which is a Qualified Trust and the written document pursuant
to which such Qualified Trust was established is later amended without
the prior written approval of Proffitt's then, on the effective date of
such amendment, ownership of all Options then owned by such Qualified
Trust shall revert to its Transferor.
(b) Permitted Transfers Of Options By Other Optionholders. Upon ten
(10) days prior written notice to Proffitt's (or such lesser number of
days as Proffitt's may agree to in writing), an Optionholder other than
a Participant may sell, transfer or assign all or any number of his
Options to his Transferor if, prior to such transfer, such Transferor
has agreed in writing, in form and substance satisfactory to Proffitt's,
that such Transferor and the Options transferred to him shall be bound
by the provisions of this Plan including, without limitation, those of
this Article 4. Such notice shall specify the number and Option Prices
of the options to be transferred to such Transferor.
4.8 EFFECT OF TRANSFER OF OPTIONS. The provisions of this Section 4.8
shall apply in the event a Participant transfers Options to an Option
Transferee pursuant to Section 4.7.
(a) Forfeitures of Options. All of an Option Transferee's Options shall
be forfeited on the date any Options owned by his Transferor are or
would be forfeited pursuant to Article 5. On the date an Option
Transferee's Options are forfeited pursuant to this Section 4.8(a), the
rights of such Option Transferee shall be terminated and, thereafter,
such Options shall be granted to the Participants pursuant to the
provisions of Section 4.3.
(b) Exercise of Options. An Option Transferee shall be entitled to
exercise his Options at such times, in such manner, upon such terms and
subject to such conditions, limitations and restrictions as his
Transferor is or would be entitled to exercise any Options owned by such
Transferor.
(c) Beneficiaries. Upon an Option Transferee's receipt of any Options
pursuant to Section 4.7, the provisions of Article 9 (governing the
determination of a Participant's Beneficiary) shall apply to such Option
Transferee as if such Option Transferee was a Participant.
(d) Deemed Ownership of Options. Each Participant shall be deemed to
own all of the Options actually owned by his Option Transferees for the
purpose of determining:
(1) the number of Options to be granted to a Participant pursuant to
Section 4.4; and
(2) whether Proffitt's has obtained the consent of the Participants
required by Section 8.1.
ARTICLE 5 - FORFEITURE OF OPTIONS
5.1 EFFECT OF FORFEITURES. On the date any Options are forfeited
pursuant to the following provisions of this Article, the rights of the
Participant or Beneficiary then owning such Options shall be terminated
and, thereafter, such Options shall be granted to the Participants
pursuant to the provisions of Section 4.3.
5.2 FORFEITURES UPON TERMINATION FOR CERTAIN CAUSES. If a Participant's
employment with the Corporation is terminated by the Corporation on
account of the Participant's:
(a) proven dishonesty, theft, fraud or embezzlement;
(b) breach of any fiduciary duty or duty of loyalty to the Corporation;
(c) involvement or participation (whether direct or indirect) in any
business competitive with that of the Corporation or Proffitt's without
the Administrator's prior written consent;
(d) usurpation of any business opportunity of the Corporation or
Proffitt's without the Administrator's prior written consent;
(e) conviction of a felony or a crime involving moral turpitude; or
(f) divulgence to a party unrelated to the Corporation or Proffitt's of
any material non-public confidential information concerning the
Corporation or Proffitt's or their businesses or activities,
then, on the effective date of such termination, all Options then owned
by him or his Beneficiary shall be forfeited.
5.3 FORFEITURES FOR CERTAIN CAUSES AFTER TERMINATION. If, during the
120 day period following the effective date of the termination of a
Participant's employment with the Corporation, the Administrator shall
determine that, prior to the effective date of such termination, such
Participant engaged in any conduct described in Section 5.2, then, as of
the date of such determination, all Options then owned by him or his
Beneficiary shall be forfeited.
5.4 FORFEITURES AFTER FIFTEEN YEARS. If not previously forfeited
pursuant to the foregoing provisions of this Section, each Option shall
be forfeited on the fifteenth anniversary of the date on which the
Parisian Option from which such Option was converted pursuant to Section
4.1 became a "Vested Option" (as that term is defined in the Pre-Merger
Plan).
ARTICLE 6 - EXERCISE OF OPTIONS
6.1 RIGHT TO EXERCISE. Subject to Section 6.5, each Participant shall
be entitled to exercise any or all of his Options at any time.
6.2 METHOD OF EXERCISE. A Participant may elect to exercise his
Options only by written notice (the "Exercise Notice") to Proffitt's.
In order to be effective, such Exercise Notice must:
(a) specify the number and Option Prices of the Options to be
exercised;
(b) be received by Proffitt's prior to the date such Options are
forfeited;
(c) be accompanied by the certificate evidencing such Participant's
ownership of such Options;
(d) specify the date on which such Options are to be exercised which
shall not be earlier than the third business day following Proffitt's
receipt of such Exercise Notice; and
(e) specify whether such Participant shall exercise such Options (1) by
paying their aggregate Option Price pursuant to Section 6.3 or (2)
pursuant to the cashless exercise program referred to in Section 6.4.
6.3 PAYMENT FOR SHARES. If a Participant's Exercise Notice specifies
that such Participant shall exercise the Options which are the subject
of such Exercise Notice pursuant to this Section 6.3, then, on the date
determined pursuant to Section 6.2(d):
(a) the Participant shall deliver to Proffitt's:
(1) a certified or cashier's check, made payable to the order of
Proffitt's, in an amount equal to the aggregate Option Price of the
Options which are the subject of such Exercise Notice; and
(2) if the same shall be requested by Proffitt's in order for
Proffitt's issuance of Shares pursuant to the exercise of such
Options to satisfy one or more exemptions from the registration
requirements of the Securities Act, a certificate pursuant to which
such Participant shall (A) represent that he is exercising such
Options and acquiring the Shares issued upon such exercise for
investment purposes only for his own account and not with a view to
the distribution thereof and (B) acknowledge that such Shares have
not been registered under the Securities Act and may not be resold
or otherwise transferred in the absence of an effective
registration statement under the Securities Act or an opinion of
counsel satisfactory to the Corporation that such registration is
not required; and
(b) Proffitt's shall deliver to such Participant:
(1) a stock certificate evidencing his ownership of a number of
Shares equal to the number of such Options exercised pursuant to
such Exercise Notice and bearing a conspicuous notice of the
restrictions on the transferability of such Shares which may be
required by the applicable provisions of the Securities Act and
those which are imposed by Article 7; and
(2) to the extent necessary, a certificate evidencing his
ownership of any Options not exercised pursuant to such Exercise
Notice.
6.4 CASHLESS EXERCISE. If a Participant's Exercise Notice specifies
that such Participant shall exercise the Options which are the subject
of such Exercise Notice pursuant to this Section 6.4, then such
Participant shall exercise such Options in accordance with the
applicable provisions of the cashless exercise program then maintained
by Proffitt's in connection with any stock option plan then available to
employees of Proffitt's.
6.5 RESTRICTION ON EXERCISE OF OPTIONS. Notwithstanding anything to
the contrary contained herein, a Participant may not exercise any of his
Options unless entitled to do so pursuant to this Section.
(a) Registration. A Participant shall be entitled to exercise his
Options if, on the date of his Exercise Notice, the Shares to be issued
upon such exercise are the subject of an effective registration
statement under the Securities Act.
(b) Exemption. If, on the date of a Participant's Exercise Notice, the
Shares to be issued upon such exercise are not the subject of an
effective registration statement under the Securities Act, he shall be
entitled to exercise his Options only if an exemption from such
registration is available. For purposes of this Article, the
availability of such an exemption shall be determined in the manner set
forth in this Section 6.5(b).
(i) Upon request by such Participant, Proffitt's shall seek an
opinion of counsel of recognized standing in securities law as to
whether such an exemption is available. If, in the opinion of such
counsel, such an exemption is available, the Participant shall be
entitled to exercise such Options on such date, not later than the
tenth day following the date of such opinion, as Proffitt's and
such Participant shall agree.
(ii) If, in the opinion of such counsel, such an exemption is not
available, the Participant may seek an opinion of another counsel
of recognized standing in securities law (which counsel shall be
reasonably satisfactory to Proffitt's) as to whether such an
exemption is available. If, in the opinion of such other counsel
(the "Participant's Counsel"), such an exemption is not available,
the Participant shall not be entitled to exercise such Options
until the date the Shares to be issued upon such exercise are the
subject of an effective registration statement under the Securities
Act.
(iii) If, in the opinion of the Participant's Counsel, such an
exemption is available, then, promptly upon its receipt of such
opinion, Proffitt's shall:
(A) request the Participant Representatives to determine
whether or not Proffitt's should seek a no-action letter from
the Commission as to whether such an exemption is available;
and
(B) reimburse the Participant for the cost of obtaining such
opinion.
(iv) If a majority of the Participant Representatives determine
that Proffitt's should not seek such no-action letter, the
Participant shall be entitled to exercise such Options on such
date, not later than the tenth day following the date of such
determination, as Proffitt's and such Participant shall agree.
(v) If a majority of the Participant Representatives determine
that Proffitt's should seek such no-action letter, Proffitt's shall
use its reasonable good faith efforts to seek such no-action
letter.
(vi) If such no-action letter indicates that such an exemption is
not available, the Participant shall not be entitled to exercise
such Options until the date the Shares to be issued upon such
exercise are the subject of an effective registration statement
under the Securities Act.
(vii) If such no-action letter indicates that such an exemption
is available, the Participant shall exercise such Options on such
date, not later than the tenth day following the date of such
no-action letter, as Proffitt's and such Participant shall agree.
(c) Insider Trading. A Participant shall not be entitled to exercise
his Options in any manner or at any time which is prohibited by
Proffitt's insider trading policies then in effect.
ARTICLE 7 - TRANSFERS OF SHARES
7.1 REGISTRATION. As soon as reasonably practical following the
Effective Date but in no event later than the tenth (10th) day following
the Effective Date, Proffitt's shall take such action and file such
documents with the Commission as may be necessary to cause the Shares to
be the subject of an effective registration statement under the
Securities Act.
7.2 GENERAL RESTRICTIONS. No Plan Shareholder may sell, transfer,
assign, convey or otherwise dispose of or alienate any of his Shares or
any right, or interest therein (whether voluntarily, by operation of
law, by gift or otherwise) or enter into any contract or agreement or
grant any option with respect to the sale, transfer, assignment,
conveyance or other disposition of his Shares or any right or interest
therein, unless such sale, transfer, assignment, conveyance or other
disposition is:
(a) required or permitted by this Plan;
(b) made in accordance with Proffitt's insider trading policies then in
effect;
(c) made pursuant to (i) an effective registration statement under the
Securities Act or (ii) an exemption from registration under the
Securities Act; and
(d) made in compliance with applicable federal and state securities
laws;
provided, however, that if the Plan Shareholder is an "affiliate"
(within the meaning of the Securities Act) of Proffitt's or his Shares
were issued by Proffitt's pursuant to Section 6.5(b), he may not sell,
transfer, assign, convey or otherwise dispose of his Shares pursuant to
Section 7.1(b)(ii) prior to the tenth (10th) day following Proffitt's
receipt of an opinion of counsel (which opinion and counsel shall be
reasonably satisfactory to the corporation) or a no-action letter from
the Commission to the effect that such exemption is available.
Any purported transfer of Shares in violation of this Section shall be
void and ineffective and shall not operate to transfer any interest in
or title to such Shares to the purported transferee and Proffitt's shall
not record any such purported transfer in its transfer records.
7.3 PUBLIC SALES. A Plan Shareholder may sell all or any number of his
Shares on any date if:
(a) such sale is made pursuant to Rule 144 (provided that such transfer
complies with paragraph (f) of such Rule) or otherwise on a national
securities exchange or in the over-the-counter market; and
(b) on such date, such sale is permitted under Section 7.2.
ARTICLE 8 - AMENDMENT AND TERMINATION
8.1 REQUIRED CONSENT. This Plan cannot be amended or terminated
without the consent of a majority of the Participant Representatives who
are then Participants; provided, however, that if less than two
Participant Representatives are then Participants, Proffitt's may not
amend or terminate this Plan without the consent of the Participants who
own at least 66.67% of the number of Options and Shares then owned by
the Participants.
8.2 EFFECTIVE DATE. No amendment or termination of the Plan shall be
effective as of any date prior to the date on which Proffitt's obtains
the consent required by this Article.
8.3 RESTRICTIONS ON AMENDMENTS. Notwithstanding anything to the
contrary contained herein, no amendment to this Plan shall deprive any
Participant, Beneficiary or Plan Shareholder of any right or benefit
which had accrued prior to the effective date of such amendment.
Without limiting the generality of the foregoing, no such amendment
shall cause any Option to be forfeited, adversely affect the right of a
Participant or Beneficiary to exercise any Option or adversely affect
any Plan Shareholder's right to sell any Shares in accordance with the
provisions of Article 7.
8.4 EFFECT OF TERMINATION. In the event Proffitt's terminates this
Plan in accordance with the provisions of this Article:
(a) none of the Options forfeited pursuant to Article 5 after such
effective date shall be granted to any Participant pursuant to this
Plan; and
(b) the rights of the Participants, Beneficiaries and Plan Shareholders
hereunder (including, without limitation, their rights to exercise
Options pursuant to Article 6 and to sell Shares pursuant to Article 7)
shall survive such termination.
ARTICLE 9 - BENEFICIARIES
Upon becoming eligible to participate in this Plan, each Participant,
pursuant to a written instrument delivered to the Administrator, shall
designate a Beneficiary who shall own any Options owned by such
Participant at the time of his death and who shall be entitled to
exercise any of such Options. Such designation may be changed by the
Participant from time to time by written notice to the Administrator.
In the event a Participant does not designate a Beneficiary or a
Beneficiary designated by a Participant predeceases such Participant and
no new Beneficiary has been designated, then such Participant's
Beneficiary shall be his surviving spouse, if any, or if none, his
estate.
Upon a Beneficiary's receipt of any Options pursuant to this Article,
the provisions of this Article shall apply to such Beneficiary and such
Options as if such Beneficiary was a Participant.
ARTICLE 10 - ASSIGNABILITY
No Participant or Beneficiary shall alienate, sell, transfer, assign,
pledge or otherwise encumber any interest in this Plan or any Option
granted to him pursuant to this Plan without the prior written consent
of the Administrator. Any attempt by a Participant or Beneficiary to
alienate, sell, transfer, assign, pledge or encumber any such interest
or Option in contravention of this Article shall be ineffective.
ARTICLE 11 - ADMINISTRATION
11.1 ADMINISTRATOR. The Administrator shall be the Corporation's Board
or, as designated by it in writing, the Executive Committee or any other
committee of said Board.
11.2 ADMINISTRATION. The Administrator shall administer the Plan and
shall have all powers necessary or appropriate to enable it to carry out
its duties including, without limitation, the power to interpret the
Plan, to decide all issues arising under the Plan, to make, establish
and change rules and procedures with respect to the operation of the
Plan, and all other powers conferred upon it herein. The Administrator
shall have the authority to decide all questions relating to
eligibility, participation, vesting and forfeitures. The Administrator
may rely and act on any information provided by Proffitt's and the
Corporation without further inquiry or liability.
11.3 EXCULPATION AND INDEMNIFICATION. No Participant Representative,
officer of Proffitt's or Corporation or member of either Board shall be
responsible or liable for any mistake or error of judgment in connection
with their responsibilities, obligations or duties with respect to this
Plan. Proffitt's shall indemnify each Participant Representative,
officer of Proffitt's or the Corporation and member of either Board to
the full extent of any liabilities, expenses, penalties, damages or
other pecuniary loss, including attorney's fees, which he may suffer as
a result of his responsibilities, obligations or duties in connection
with this Plan. Such indemnification shall be paid by Proffitt's to the
extent that liability insurance is not available to cover the payment of
such items. Proffitt's may purchase and maintain such insurance on
behalf of such individuals.
11.4 REPORTS TO PARTICIPANTS. The Administrator shall, from time to
time in its sole discretion, but at least annually, notify each
Participant of the number and Option Prices of the Options then owned by
him and such other information as the Administrator, in its sole
discretion, deems to be reasonable under the circumstances. No
Participant other than a Participant Representative shall be entitled to
receive or review any information or data with regard to the number or
Option Prices of Options owned by any other Participant. Such
information shall only be disclosed to Participants to the extent the
Administrator deems it to be appropriate and in the best interest of
Proffitt's and the Corporation.
ARTICLE 12 - MISCELLANEOUS
12.1 NO RIGHT TO EMPLOYMENT. Nothing contained herein shall give any
Officer the right to be employed by Proffitt's or the Corporation, nor
shall this Plan interfere with the right of Proffitt's or the
Corporation to discharge any Officer at any time, to change the duties
of any Officer at any time or to change the title or position of any
Participant at any time.
12.2 GRANT OF OPTIONS TO OTHERS. If the Administrator shall determine
that Options are to be granted hereunder to any person who is incapable
or unable to care for his affairs due to minority or any other
incapacity, whether or not such incapacity has been judicially
determined, then, in the discretion of the Administrator, all or any
number of such Options may be granted to and, pursuant to the provisions
of this Plan, exercised by his spouse, a relative of such person, an
institution maintaining or having custody of such person or any person
deemed by the Administrator to be a proper party for such purpose.
Alternatively, the Administrator may, in its discretion, delay the grant
of such Options until a legal representative is appointed for such
person. Any grant of options made pursuant to this Section shall
constitute a complete discharge of the liabilities of the Administrator,
Proffitt's and the Corporation to such person hereunder.
12.3 SUBORDINATION OF RIGHTS. If, and only to the extent that, a
majority of the Participant Representatives and a majority of the
members of the Corporation's Board deem such subordination to be in
Proffitt's or the Corporation's best interests, the rights of each
Participant, Beneficiary and Plan Shareholder hereunder shall be
subordinate to the provisions of any loan agreement, note, bond,
indenture, debenture, capitalized lease or other evidence of Proffitt's
or the Corporation's indebtedness.
12.4 GOVERNING LAW. This Plan shall be construed according to the laws
of the State of Alabama.
12.5 NUMBER AND GENDER. Whenever the context so requires, the singular
number shall include the plural and the plural shall include the
singular and the gender of any pronoun shall include the other genders.
12.6 NOTICE. Any notice required or permitted to be given hereunder
shall be in writing and signed by the party making the same and shall
specify the Section hereof pursuant to which it is given. Any such
notice shall be deemed given (i) on the date delivered, if delivered in
person and (ii) on the fifth business day after mailing, if mailed. Any
such notice shall be mailed registered or certified first class mail,
return receipt requested (with postage and other fees prepaid) as
follows:
If to Proffitt's, to: Proffitt's, Inc.
115 North Calderwood
Alcoa, Tennessee 37701
Attention: Senior Vice President of
Investor Relations
If to the Corporation, to: Parisian, Inc.
750 Lakeshore Parkway
Birmingham, Alabama 35211
Attention: President
If to the Administrator, to: Parisian, Inc.
750 Lakeshore Parkway
Birmingham, Alabama 35211
ttention: Administrator, Parisian,
Inc. Stock Option Plan for Officers
and, if to a Participant, Beneficiary or Plan Shareholder, to such
Participant's, Beneficiary's or Plan Shareholder's last known residence
or office address appearing in the Corporation's employment or other
records. If any such notice is given to Proffitt's, the Corporation or
the Administrator, a copy thereof shall be given to:
(a) Donald E. Hess (or such other person who is then the President of
the Corporation) at the address of the Corporation set forth above; and
(b) D. Warren Bailey and Steven B. Corenblum at the address of the
Corporation set forth above (or if either of them ceases to be an
Officer, at his last known residence address); provided, however, that
if either of said individuals ceases to be a Participant, such notice
shall not be given to him but shall instead be given to the Participant
who succeeds him as a Participant Representative at the address of the
Corporation set forth above.
12.7 SEVERABILITY. The invalidity of this Plan with respect to one or
more persons shall not affect the rights and obligations of any other
person hereunder in any manner whatsoever. The invalidity of one or
more provisions of this Plan shall not affect the validity of any other
provision of this Plan in any manner whatsoever.
12.8 RIGHTS OF TRANSFEREES. Notwithstanding anything to the contrary
contained in this Plan:
(a) the rights of an Option Transferee with respect to all Options
owned by such Option Transferee shall be the same as those of the
Participant who first owned such Option determined as if such
Participant then owned such Option; and
(b) the rights of a Plan Shareholder who is not a Participant with
respect to a Share owned by such Plan Shareholder shall be the same as
those of the Participant who first owned such Share determined as if
such Participant then owned such Option.
IN WITNESS WHEREOF, Proffitt's and the Corporation have executed this
Third Amendment and Restatement on ______________, 1996.
PROFFITT'S, INC. PARISIAN, INC.
By:__________________________ By:_______________________
_____________,____________ Donald E. Hess, President
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