EXHIBIT B
THE WET SEAL, INC.
1996 LONG-TERM INCENTIVE PLAN
1. PURPOSE. The purpose of The Wet Seal, Inc. 1996 Long-Term Incentive
Plan (the "Plan") is to strengthen The Wet Seal, Inc., a Delaware corporation
("Corporation"), by providing to employees, officers, directors, consultants and
independent contractors of the Corporation or any of its subsidiaries (including
dealers, distributors, and other business entities or persons providing services
on behalf of the Corporation or any of its subsidiaries) added incentive for
high levels of performance and unusual efforts to increase the earnings and
long-term growth of the Corporation. The Plan seeks to accomplish this purpose
by enabling specified persons to purchase or acquire shares of the Class A
Common Stock of the Corporation, stock appreciation rights or other equity based
rights thereby increasing their proprietary interest in the Corporation's
success and encouraging them to remain in the employ or service of the
Corporation. The Plan allows the issuance of stock options, stock appreciation
rights, restricted or nonrestricted awards of shares, performance grants,
certain limited rights issued in tandem with options, or any combination of the
foregoing.
2. CERTAIN DEFINITIONS. As used in this Plan, the following words and
phrases shall have the respective meanings set forth below, unless the context
clearly indicates a contrary meaning:
2.1 "BOARD OF DIRECTORS": The Board of Directors of the
Corporation.
2.2 "CAUSE": Cause shall include termination for malfeasance or
gross misfeasance in the performance of duties or conviction of illegal
activity in connection therewith or any conduct detrimental to the
interests of the Corporation. The determination of the Option Committee
with respect to whether a termination for cause has occurred shall be
final and conclusive.
2.3 "CHANGE IN CONTROL": An event consisting of any person or group
both (a) becoming the beneficial owner directly or indirectly of 20% or
more of the outstanding Shares after the effective date of the Plan and
(b) of whose beneficial share ownership exceeds the numbers of shares
owned beneficially by all directors and officers of the Corporation
(excluding shares owned beneficially by any director or officer who is
the person or a member of the group). The existence of a "group" and the
"beneficial ownership" of Shares shall be determined in accordance with
Section 13(d) of the Securities Exchange Act of 1934 ("Exchange Act") and
the rules and regulations of the Securities and Exchange Commission
promulgated thereunder.
2.4 "CODE": The Internal Revenue Code of 1986, as amended.
2.5 "DISABILITY": The inability to engage in any substantial
gainful activity by reasons of any medically determined physical or
mental impairment which can be expected to result in death or which has
lasted or can be expected to last for a continuous period of not less
than twelve months, subject to such other limitations and conditions
imposed by Code Section 22(e)(3).
2.6 "FAIR MARKET VALUE PER SHARE": The fair market value per share
of the Shares as determined by the Option Committee in good faith. The
Option Committee is authorized to make its determination as to the fair
market value per share of the Shares on the following basis: (i) if the
Shares are traded only otherwise than on a securities exchange and are
not quoted on the National Association of Securities Dealers, Inc.'s
Automated Quotation System ("NASDAQ"), but are quoted on the Over The
Counter Electronic Bulletin Board operated by NASDAQ, the greater of (a)
the average of the mean between the average daily bid and average daily
asked prices of the Shares during the thirty (30) day period preceding
the date of grant of an Option, as quoted on the Over The Counter
Electronic Bulletin Board operated by NASDAQ, or (b) the mean between the
average daily bid and average daily asked prices of the Shares on the
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date of grant, as published on such bulletin board; (ii) if the Shares
are traded only otherwise than on a securities exchange and are quoted on
NASDAQ, the greater of (a) the average of the closing transaction price
of the Shares during the thirty (30) day period preceding the date of
grant of an Option, as reported by the Wall Street Journal and (b) the
closing transaction price of the Shares on the date of grant of an
Option, as reported by the Wall Street Journal; (iii) if the Shares are
admitted to trading on a securities exchange, the greater of (a) the
average of the daily closing prices of the Shares during the ten (10)
trading days preceding the date of grant of an Option, as quoted in the
Wall Street Journal, or (b) the daily closing price of the Shares on the
date of grant of an Option, as quoted in the Wall Street Journal; or (iv)
if the Shares are traded only otherwise than as described in (i), (ii) or
(iii) above, or if the Shares are not publicly traded, the value
determined by the Option Committee in good faith based upon the fair
market value as determined by completely independent and well qualified
experts.
2.7 "INCENTIVE STOCK OPTION": An Option intended to qualify for
treatment as an incentive stock option under Code Sections 421 and 422,
and designated as an Incentive Stock Option.
2.8 "LIMITED RIGHT": A limited right granted pursuant to Section 8
of the Plan.
2.9 "NONQUALIFIED OPTION": An Option not qualifying as an
Incentive Stock Option.
2.10 "OPTION": A stock option granted under the Plan.
2.11 "OPTION AGREEMENT": The document setting forth the terms and
conditions of each Option.
2.12 "OPTION COMMITTEE": The committee selected and designated by
the Board of Directors as the "Option Committee" consisting of not less
than three (3) members of the Board of Directors all of whom are "outside
directors" within the meaning of Code Section 162(m) and the applicable
regulations and "non-employee directors" within the meaning of Rule
16b-3(b)(3) promulgated under the Exchange Act.
2.13 "OPTIONEE": The holder of an Option.
2.14 "PERFORMANCE GRANT": A performance grant granted pursuant to
Section 9 of the Plan.
2.15 "RETIREMENT": Retirement as defined by the Option Committee.
2.16 "SAR": A stock appreciation right granted pursuant to Section
7 of the Plan.
2.17 "SHARES": The shares of Class A Common Stock of the
Corporation.
2.18 "SUBSIDIARY": Any corporation within the meaning of Code
Section 424(f), or similar successor section.
3. ADMINISTRATION OF PLAN.
3.1 IN GENERAL. This Plan shall be administered by the Option
Committee. Any action of the Option Committee with respect to
administration of the Plan shall be taken pursuant to (i) a majority vote
at a meeting of the Option Committee (to be documented by minutes), or
(ii) the unanimous written consent of its members.
3.2 AUTHORITY. With the exception of any grants to members of the
Option Committee, which shall be made and administered exclusively by the
Board of Directors pursuant to the express terms of this Plan, subject to
the express provisions of this Plan, the Option Committee shall have the
authority to: (i) construe and interpret the Plan, decide all questions
and settle all controversies and disputes which may arise in connection
with the Plan and to define the terms used therein; (ii) prescribe, amend
and rescind rules and regulations relating to administration of
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the Plan; (iii) determine the purchase price of the Shares covered by
each Option, SAR, Limited Right, Performance Grant or other grant
hereunder and the method of payment of such price, individuals to whom,
and the time or times at which, an Option, SAR, Limited Right,
Performance Grant or other grant hereunder shall be granted and
exercisable and the number of Shares covered by each Option, SAR, Limited
Right, Performance Grant or other grant hereunder; (iv) determine the
terms and provisions of the respective Option Agreements (which need not
be identical) or any other written agreement evidencing any rights under
the Plan; (v) determine the duration and purposes of leaves of absence
which may be granted to participants without constituting a termination
of their employment for purposes of the Plan; and (vi) make all other
determinations necessary or advisable to the administration of the Plan.
Determinations of the Option Committee on matters referred to in this
Section 3.2 shall be conclusive and binding on all parties howsoever
concerned. With respect to Incentive Stock Options, the Option Committee
shall administer the Plan in compliance with the provisions of Code
Section 422 as the same may hereafter be amended from time to time. No
member of the Option Committee shall be liable for any action or
determination made in good faith with respect to the Plan, any Option,
SAR, Limited Right, Performance Grant, or any other right granted
hereunder.
4. ELIGIBILITY AND PARTICIPATION.
4.1 IN GENERAL. Only officers, employees and directors who are also
employees of the Corporation or any Subsidiary shall be eligible to
receive grants of Incentive Stock Options. Officers, employees and
directors of the Corporation or any Subsidiary, as well as consultants,
independent contractors or other service providers of the Corporation or
any Subsidiary shall be eligible to receive grants of Nonqualified
Options, SARs, Limited Rights, Performance Grants, or any other rights.
Within the foregoing limits, the Option Committee, from time to time,
shall determine and designate persons to whom Options, SARs, Limited
Rights, Performance Grants or any other rights may be granted. All such
designations shall be made in the absolute discretion of the Option
Committee and shall not require the approval of the shareholders, except
as expressly set forth herein. In determining (i) the number of Shares to
be covered by each of the Options, SARs, Limited Rights, Performance
Grant or any other grants, (ii) the purchase price for such Shares and
the method of payment of the purchase price (subject to the other
sections hereof), (iii) the individuals of the eligible class to whom
Options, SARs, Limited Rights, Performance Grants or any other rights
shall be granted, (iv) the terms and provisions of the respective Option
Agreements or other written agreements, and (v) the times at which such
Options, SARs, Limited Rights, Performance Grants or any other rights
shall be granted, the Option Committee shall take into account such
factors as it shall deem relevant in connection with accomplishing the
purpose of the Plan as set forth in Section 1. An individual who has been
granted an Option, SAR, Limited Right, Performance Grant or any other
rights may be granted additional Options, SARs, Limited Rights,
Performance Grants or any other rights if the Option Committee shall so
determine.
4.2 CERTAIN LIMITATIONS. The Option Committee may, in its sole
discretion, grant an Optionee Options such that the sum of (i) the
aggregate fair market value (determined at the time the Incentive Stock
Options are granted) of the Shares subject to all Options granted under
the Plan which are exercisable for the first time by such Optionee during
the same calendar year, plus (ii) the aggregate fair market value
(determined at the time the Options are granted) of all Shares subject to
all other incentive stock options granted to such Optionee after December
31, 1986 by the Corporation, its parent and Subsidiaries which are
exercisable for the first time during such calendar year, exceeds One
Hundred Thousand Dollars ($100,000). To the extent that the sum of (i)
and (ii) of this Section 4.2 does not exceed $100,000, the Optionee shall
be entitled to be granted Incentive Stock Options, and the Option
Committee shall specify whether, and to the extent, the Optionee is
granted Incentive Stock Options or Nonqualified Options. No
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Incentive Stock Options shall be granted to the extent that the sum of
(i) and (ii) of this Section 4.2 exceeds $100,000, and all Options
granted in excess shall be Nonqualified Options. The Option Committee
should be aware that Incentive Stock Options granted in excess of such
$100,000 limit will not qualify as Incentive Stock Options under the
Code, but instead will be Nonqualified Stock Options. Therefore, in
denominating Options as Incentive Stock Options the Option Committee
should carefully consider all options granted after December 31, 1986,
which were intended to be Incentive Stock Options under the Code in an
attempt to ensure that Incentive Stock Options are actually Incentive
Stock Options under the Code. The Option Agreements for Incentive Stock
Options shall contain a provision which informs the Optionee of the
$100,000 limit and that the Options may in fact not be Incentive Stock
Options under the Code to the extent that the $100,000 limit has been
exceeded.
5. AVAILABLE SHARES AND ADJUSTMENTS UPON CHANGES IN CAPITALIZATION.
5.1 SHARES. Subject to adjustment as provided in Section 5.2 below,
the total number of Shares to be subject to Options, SARs, Limited
Rights, Performance Grants or other rights granted pursuant to this Plan
shall not exceed seven hundred thousand (700,000) Shares. No employee
shall be entitled to receive rights to more than seven hundred thousand
(700,000) Shares under this Plan. Shares subject to the Plan may be
either authorized but unissued shares or shares that were once issued and
subsequently reacquired by the Corporation; the Option Committee shall be
empowered to take any appropriate action required to make Shares
available for Options granted under this Plan. If any Options, SARs,
Limited Rights, Performance Grants or other rights are surrendered before
exercise or lapse without exercise in full or for any other reason cease
to be exercisable, the Shares reserved therefore shall continue to be
available under the Plan.
5.2 ADJUSTMENTS. As used herein, the term "Adjustment Event" means
an event pursuant to which the outstanding Shares of the Corporation are
increased, decreased or changed into, or exchanged for a different number
or kind of shares or securities, without receipt of consideration by the
Corporation, through reorganization, merger, recapitalization,
reclassification, stock split, reverse stock split, stock dividend, stock
consolidation or otherwise. Upon the occurrence of an Adjustment Event,
(i) appropriate and proportionate adjustments shall be made to the number
and kind of shares and exercise price for the shares subject to the
Options, SARs, Limited Rights, Performance Grants or other rights which
may thereafter be granted under the Plan, (ii) appropriate and
proportionate adjustments shall be made to the number and kind of and
exercise price for the Shares subject to the then outstanding Options,
SARs, Limited Rights, Performance Grants or other rights granted under
this Plan, and (iii) appropriate amendments to the Option Agreements, or
other agreements shall be executed by the Corporation and the Optionees
or parties if the Option Committee determines that such an amendment is
necessary or desirable to reflect such adjustments. If determined by the
Option Committee to be appropriate, in the event of an Adjustment Event
which involves the substitution of securities of a corporation other than
the Corporation, the Option Committee shall make arrangements for the
assumptions by such other corporation of any Options, SARs, Limited
Rights, Performance Grants, stock grants or other rights then or
thereafter outstanding under the Plan. Notwithstanding the foregoing,
such adjustment in outstanding Options, SARs, Limited Rights, Performance
Grants, stock grants or other rights shall be made without change in the
total exercise price applicable to the unexercised portion of the
Options, SARs, Limited Rights, Performance Grants, stock grants or other
rights, but with an appropriate adjustment to the number of shares, kind
of shares and exercise price for each share subject to the Options, SARs,
Limited Rights, Performance Grants, stock grants or other rights. The
determination by the Option Committee as to what adjustments, amendments
or arrangements shall be made pursuant to this Section 5.2, and the
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extent thereof, shall be final and conclusive. No fractional Shares shall
be issued under the Plan on account of any such adjustment or
arrangement.
6. TERMS AND CONDITIONS OF OPTIONS.
6.1 INTENDED TREATMENT AS INCENTIVE STOCK OPTIONS. Incentive Stock
Options granted pursuant to this Plan are intended to be "incentive stock
options" to which Code Sections 421 and 422 apply, and the Plan shall be
construed and administered to implement that intent. If all or any part
of an Incentive Stock Option shall not be an "incentive stock option"
subject to Sections 421 or 422 of the Code, such Option shall
nevertheless be valid and carried into effect. All Options granted under
this Plan shall be subject to the terms and conditions set forth in this
Section 6.1 (except as provided in Section 5.2) and to such other terms
and conditions as the Option Committee shall determine to be appropriate
to accomplish the purpose of the Plan as set forth in Section 1.
6.2 AMOUNT AND PAYMENT OF EXERCISE PRICE.
6.2.1 EXERCISE PRICE. The exercise price per Share for each
Share which the Optionee is entitled to purchase under a Nonqualified
Option shall be determined by the Option Committee but shall not be
less than one hundred percent (100%) of the Fair Market Value Per
Share on the date of the grant of the Nonqualified Option. The
exercise price per Share for each Share which the Optionee is
entitled to purchase under an Incentive Stock Option shall be
determined by the Option Committee but shall not be less than one
hundred percent (100%) of the Fair Market Value Per Share on the date
of the grant of the Incentive Stock Option; provided, however, that
the exercise price shall not be less than one hundred ten percent
(110%) of the Fair Market Value Per Share on the date of the grant of
the Incentive Stock Option in the case of an individual then owning
(within the meaning of Code Section 424(d)) more than ten percent
(10%) of the total combined voting power of all classes of stock of
the Corporation or of its parent or Subsidiaries.
6.2.2 PAYMENT OF EXERCISE PRICE. The consideration to be paid
for the Shares to be issued upon exercise of an Option, including the
method of payment, shall be determined by the Option Committee and
may consist of promissory notes, other Shares or such other
consideration and method of payment for the Shares as may be
permitted under applicable federal and state laws.
6.3 EXERCISE OF OPTIONS.
6.3.1 Each Option granted under the Plan shall be exercisable at
such times and under such conditions as may be determined by the
Option Committee at the time of the grant of the Option and as shall
be permissible under the terms of the Plan; provided, however, in no
event shall an Option be exercisable after the expiration of ten (10)
years from the date it is granted, and in the case of an Optionee
owning (within the meaning of Code Section 424(d)), at the time an
Incentive Stock Option is granted, more than ten percent (10%) of the
total combined voting power of all classes of stock of the
Corporation or of its parent or Subsidiaries, such Incentive Stock
Option shall not be exercisable later than five (5) years after the
date of grant.
6.3.2 An Optionee may purchase less than the total number of
Shares for which the Option is exercisable, provided that a partial
exercise of an Option may not be for less than one hundred (100)
Shares and shall not include any fractional shares.
6.4 EFFECT OF TERMINATION OF EMPLOYMENT OR OTHER RELATIONSHIP. The
effect of termination of an Optionee's employment or other relationship
with the Corporation on such Optionee's rights to acquire Shares shall be
as follows:
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6.4.1 TERMINATION FOR OTHER THAN DISABILITY, CAUSE, RETIREMENT,
OR DEATH. If an Optionee ceases to be employed by, or ceases to have
a relationship with, the Corporation for any reason other than for
Disability, Cause, Retirement, or death, such Optionee's Options
shall expire not later than three (3) months thereafter. During such
three (3) month period and prior to the expiration of the Option by
its terms, the Optionee may exercise any Option granted to him, but
only to the extent such Options were exercisable on the date of
termination of his employment or relationship and except as so
exercised, such Options shall expire at the end of such three (3)
month period unless such Options by their terms expire before such
date. The decision as to whether a termination for a reason other
than Disability, Cause, Retirement or death has occurred shall be
made by the Option Committee, whose decision shall be final and
conclusive, except that employment shall not be considered terminated
in the case of sick leave or other bona fide leave of absence
approved by the Corporation.
6.4.2 TERMINATION FOR DISABILITY OR DEATH. If an Optionee
ceases to be employed by, or ceases to have a relationship with, the
Corporation by reason of Disability or death, such Optionee's Options
shall become fully vested and exercisable and shall expire not later
than one (1) year thereafter. During such one (1) year period and
prior to the expiration of the Option by its terms, the Optionee, or
his executor or administrator or the person or persons to whom the
Option is transferred by will or the applicable laws of descent and
distribution, may exercise any Option granted to him or her, and
except as so exercised, such Options shall expire at the end of such
one (1) year period unless such Options by their terms expire before
such date. The decision as to whether a termination by reason of
Disability has occurred shall be made by the Option Committee, whose
decision shall be final and conclusive.
6.4.3 RETIREMENT OF AN OPTIONEE. If the Optionee ceases to be
employed by, or ceases to have a relationship with, the Corporation
by reason of Retirement, such Optionee's Options shall become fully
vested and exercisable and shall expire not later than two (2) years
thereafter. During such two (2) year period and prior to the
expiration of the Options by their terms, such Options may be
exercised by Optionee. The decision as to
whether a termination by reason of Retirement has occurred shall be
made by the Option Committee, whose decision shall be final and
conclusive.
6.4.4 TERMINATION FOR CAUSE. If an Optionee's employment by, or
relationship with, the Corporation is terminated for Cause, such
Optionee's Option shall expire immediately; provided, however, the
Option Committee may, in its sole discretion, within thirty (30) days
of such termination, waive the expiration of the Option by giving
written notice of such waiver to the Optionee at such Optionee's last
known address. In the event of such waiver, the Optionee may exercise
the Option only to such extent, for such time, and upon such terms
and conditions as if such Optionee had ceased to be employed by, or
ceased to have a relationship with, the Corporation upon the date of
such termination for a reason other than Disability, Cause,
Retirement or death.
6.5 WITHHOLDING OF TAXES. As a condition to the exercise, in whole
or in part, of any Options the Option Committee may in its sole
discretion require the Optionee to pay, in addition to the purchase price
of the Shares covered by the Option an amount equal to any federal, state
or local taxes that may be required to be withheld in connection with the
exercise of such Option. Alternatively, the Corporation may issue or
transfer the Shares pursuant to exercise of the Option net of the number
of Shares sufficient to satisfy the withholding tax requirements. For
withholding tax purposes, the Shares shall be valued on the date the
withholding obligation is incurred.
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6.6 NO RIGHTS TO CONTINUED EMPLOYMENT OR RELATIONSHIP. Nothing
contained in the Plan or in any Option Agreement shall obligate the
Corporation to employ or have another relationship with any Optionee for
any period or interfere in any way with the right of the Corporation to
reduce such Optionee's compensation or to terminate the employment of or
relationship with any Optionee at any time.
6.7 TIME OF GRANTING OPTIONS. The time an Option is granted,
sometimes referred to herein as the date of grant, shall be the day the
Corporation executes the Option Agreement; provided, however, that if
appropriate resolutions of the Option Committee indicate that an Option
is to be granted as of and on some prior or future date, the time such
Option is granted shall be such prior or future date.
6.8 PRIVILEGES OF STOCK OWNERSHIP. No Optionee shall be entitled to
the privileges of stock ownership as to any Shares not actually issued
and delivered to such Optionee. No Shares shall be purchased upon the
exercise of any Option unless and until, in the opinion of the
Corporation's counsel, any then applicable requirements of any laws or
governmental or regulatory agencies having jurisdiction and of any
exchanges upon which the stock of the Corporation may be listed shall
have been fully complied with.
6.9 SECURITIES LAWS COMPLIANCE. The Corporation will diligently
endeavor to comply with all applicable securities laws before any Options
are granted under the Plan and before any Shares are issued pursuant to
Options. Without limiting the generality of the foregoing, the
Corporation may require from the Optionee such investment representation
or such agreement, if any, as counsel for the Corporation may consider
necessary or advisable in order to comply with the Securities Act of 1933
as then in effect, and may require that the Optionee agree that any sale
of the Shares will be made only in such manner as is permitted by the
Option Committee. The Option Committee in its discretion may cause the
Options and Shares underlying the Options to be registered under the
Securities Act of 1933, as amended, by the filing of a Form S-8
Registration Statement covering the Options and Shares underlying such
Options. Optionee shall take any action reasonably requested by the
Corporation in connection with registration or qualification of the
Shares under federal or state securities laws.
6.10 OPTION AGREEMENT. Each Incentive Stock Option and Nonqualified
Option granted under this Plan shall be evidenced by the appropriate
written Stock Option Agreement ("Option Agreement") executed by the
Corporation and the Optionee containing each of the provisions and
agreements specifically required to be contained therein pursuant to this
Section 6, and such other terms and conditions as are deemed desirable by
the Option Committee and are not inconsistent with the purpose of the
Plan as set forth in Section 1.
7. TERMS AND CONDITIONS OF STOCK APPRECIATION RIGHTS ("SARS").
7.1 Subject to the other applicable provisions of the Plan, the Option
Committee shall have the authority to grant SARs to any Optionee, either at
the time of grant of an Option or thereafter by amendment to an Option. The
exercise of an Option shall result in an immediate cancellation of its
corresponding SAR, and the exercise of an SAR shall cause an immediate
cancellation of its corresponding Option. SARs shall be subject to such
other terms and conditions as the Option Committee may specify. An SAR shall
expire at the same time as the related Option expires and shall be
transferable only when, and under the same conditions as, the related Option
is transferable.
An SAR shall be exercisable only when, to the extent and on the
condition that the related Option is exercisable. No SAR may be exercised
unless the Fair Market Value Per Share of Common Stock of the Corporation on
the date of exercise exceeds the exercise price of the related Option.
Upon the exercise of an SAR, the Optionee shall be entitled to receive
an amount equal to the difference between the Fair Market Value Per Share on
the date of exercise and the exercise price of
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the Option to which the SAR corresponds. The Option Committee shall decide
whether such payment shall be in cash, in shares or in a combination
thereof.
All SARs will be exercised automatically to the extent the related
Option is then exercisable at the end of the last business day prior to the
expiration date of the related Option at the end of its stated term or
following the death, Disability or Retirement of the participant or the
termination of the participant's employment by the Company for any reason
other than Cause, so long as the Fair Market Value Per Share of the
Company's Common Stock on that date exceeds the exercise price of the
related Option.
8. TERMS AND CONDITIONS OF LIMITED RIGHTS
Subject to the other applicable provisions of the Plan, the Option
Committee shall have authority to grant Limited Rights with respect to all
or some of the Shares covered by an Option at the time the Option is granted
or by amendment to an Option previously granted.
A Limited Right shall be exercisable only during the sixty (60) day
period which begins on the date of a Change in Control or, if stated in the
Limited Right grant, upon the occurrence of an event described in Section
5.2.
Any Limited Right not exercised as provided herein shall terminate
unless otherwise determined by the Option Committee. The termination of a
Limited Right shall not affect the related Option.
Upon exercise of a Limited Right, the holder shall be entitled to
receive from the Corporation, for each Limited Right being exercised, in
cash, an amount equal to the difference between the Fair Market Value Per
Share on the exercise and grant dates.
If a holder of Limited Rights ceases to be employed by the Corporation
for any reason, his or her unexercised Limited Rights shall expire at the
time the related Option expires or is exercised. Upon exercise of a Limited
Right the related Option shall cease to be exercisable. Upon exercise or
termination of an Option, any related Limited Rights shall terminate. A
Limited Right granted in relation to an Incentive Stock Option shall comply
with the requirements of Section 422 of the Code and the applicable
regulations.
9. TERMS AND CONDITIONS OF PERFORMANCE GRANTS
Subject to the other applicable provisions of the Plan, Performance
Grants may be awarded to participants at any time and from time to time as
determined by the Option Committee. The Option Committee shall have complete
discretion in determining the size and composition of Performance Grants
issued to a participant and the appropriate period over which performance is
to be measured ("performance cycle"). Performance Grants may include (i)
specific dollar-value target grants, (ii) performance units, the value of
each such unit being determined by the Option Committee at the time of
issuance, and/or (iii) performance shares, the value of each such share
being equal to the Fair Market Value Per Share.
The value of each Performance Grant may be fixed or it may be permitted
to fluctuate based on a performance factor (e.g., net earnings) selected by
the Option Committee. The Option Committee shall establish performance
goals, that, depending on the extent to which they are met, will determine
the ultimate value of the Performance Grant or the portion of such
Performance Grant earned by participants, or both.
The Option Committee shall establish performance goals and objectives
for each performance cycle on the basis of such criteria and objectives as
the Option Committee may select from time to time. During any performance
cycle, the Option Committee shall have the authority to adjust the
performance goals and objectives for such cycle for such reasons as it deems
equitable.
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The Option Committee shall determine the portion of each Performance
Grant that is earned by a participant on the basis of the Corporation's
performance over the performance cycle in relation to the performance goals
for such cycle. The earned portion of a Performance Grant may be paid out in
restricted or nonrestricted shares, cash or a combination of both as the
Option Committee may determine.
A participant must be an employee of the Corporation at the end of the
performance cycle in order to be entitled to payment of a Performance Grant
issued in respect of such cycle; provided, however, that as otherwise
determined by the Option Committee, if a participant ceases to be an
employee of the Corporation upon the occurrence of his or her death,
Retirement, or Disability prior to the end of the performance cycle, the
participant shall earn a proportionate portion of the Performance Grant
based upon the elapsed portion of the performance cycle and the
Corporation's performance over that portion of such cycle.
The Option Committee shall have the discretion to determine the minimum
portion (if any) of the Performance Grant that a participant may earn in the
event of a Change in Control prior to the end of the performance cycle. The
Option Committee shall give due consideration to the participant's
established target award, the elapsed portion of the performance cycle, the
Corporation's performance over that portion of the cycle, and such other
factors deemed relevant by the Option Committee.
In the event of a Change in Control a participant shall earn no less
than the portion of the Performance Grant that the participant would have
earned if the performance cycle(s) had terminated as of the date of the
Change in Control.
10. TERMS AND CONDITIONS OF RESTRICTED AND NONRESTRICTED SHARE AWARDS.
Subject to the other applicable provisions of the Plan, the Option
Committee may at any time and from time to time award Shares to such
participants and in such amounts as it determines. Each award of Shares
shall specify the applicable restrictions, if any, on such Shares, the
duration of such restrictions, and the time or times at which such
restrictions shall lapse with respect to all or a specified number of Shares
that are part of the award. Notwithstanding the foregoing, the Option
Committee may reduce or shorten the duration of any restriction applicable
to any Shares awarded to any participant under the Plan.
Restricted Shares may be issued at the time of award subject to
forfeiture if the restrictions do not lapse or upon lapse of the
restrictions. If Shares are issued at the time of the award, the participant
will be required to deposit the certificates with the Corporation during the
period of any restriction thereon and to execute a blank stock power
therefor. Except as otherwise provided by the Option Committee, during such
period of restriction the participant shall have all of the rights of a
holder of Shares (including but not limited to dividends), and to vote. If
Shares are issued upon lapse of restrictions, the Option Committee may
provide that the participant will be entitled to receive any amounts per
share pursuant to any dividend or distribution paid by the Corporation on
its Shares to stockholders of record after the award and prior to the
issuance of the Shares.
Except as otherwise provided by the Option Committee, on termination of
a grantee's employment due to death, Disability, Retirement or a Change in
Control during any period of restriction, all restrictions on Shares awarded
to such grantee shall lapse. On termination of a grantee's employment for
any other reason, all restricted Shares subject to awards made to such
grantee shall be forfeited to the Company.
11. PLAN AMENDMENT AND TERMINATION.
11.1 AUTHORITY OF OPTION COMMITTEE. The Option Committee may at any
time discontinue granting Options, Shares, SARs, Limited Rights,
Performance Grants, or other rights under the Plan or otherwise suspend,
amend or terminate the Plan and may, with the consent of an
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Optionee or grantee, make such modification of the terms and conditions
of such Option or grant as it shall deem advisable. An amendment or
modification made pursuant to the provisions of this Section 11.1 shall
be deemed adopted as of the date of the action of the Option Committee
effecting such amendment or modification and shall be effective
immediately, unless otherwise provided therein, subject to approval
thereof (i) within twelve (12) months before or after the effective date
by shareholders of the Corporation holding not less than a majority vote
of the voting power of the Corporation voting in person or by proxy at a
duly held shareholders meeting when required to maintain or satisfy the
requirements of Code Section 422 with respect to Incentive Stock Options,
or Code Section 162(m) with respect to performance-based compensation,
(ii) by any appropriate governmental agency, or (iii) when required by a
securities exchange or automated quotation system. No Option may be
granted during any suspension or after termination of the Plan.
11.2 TEN (10) YEAR MAXIMUM TERM. Unless previously terminated by
the Option Committee, this Plan shall terminate on August 22, 2006, and
no Options, SARs, Limited Rights, Performance Grants, or other rights
shall be granted under the Plan thereafter.
11.3 EFFECT ON OUTSTANDING RIGHTS. Amendment, suspension or
termination of the Plan shall not, without the consent of the Optionee,
alter or impair any rights or obligations under any Option or other
rights theretofore granted.
12. EFFECTIVE DATE OF PLAN. This Plan shall be effective as of August 22,
1996, the date the Plan was adopted by the Board of Directors. The Option
Committee shall be authorized and empowered to make grants pursuant to this Plan
prior to such approval of this Plan by the Corporation's shareholders; provided,
however, that such grants shall be made subject to, and conditioned upon, such
shareholder approval and if the Plan is not approved by the holders of a
majority of the Shares present in person or by proxy and entitled to vote at the
Corporation's 1996 Annual Meeting of Shareholders, the Plan and all grants made
hereunder shall be void.
13. MISCELLANEOUS PROVISIONS.
13. NONTRANSFERABILITY OF RIGHTS. All Options, SARs, Limited
Rights, Performance Grants, and other rights granted under the Plan shall
be nontransferable, either voluntarily or by operation of law, otherwise
than by will or the laws of descent and distribution, and shall be
exercisable during the grantee's lifetime only by such grantee.
13.2 LIMITATION ON BENEFITS. No Option, SAR or Limited Right may be
exercised, no share award will vest and no Performance Grant will be paid
to the extent such exercise, vesting or payment will create an "excess
parachute payment" as defined in Section 280G of the Code.
13.3 EXCULPATION AND INDEMNIFICATION. The Corporation shall
indemnify and hold harmless the Option Committee from and against any and
all liabilities, costs and expenses incurred by such persons as a result
of any act, or omission to act, in connection with the performance of
such persons' duties, responsibilities and obligations under the Plan,
other than such liabilities, costs and expenses as may result from the
gross negligence, bad faith, willful conduct and/or criminal acts of such
persons.
13.4 GOVERNING LAW. The Plan shall be governed and construed in
accordance with the laws of the State of California and the Code.
13.5 COMPLIANCE WITH APPLICABLE LAWS. The inability of the
Corporation to obtain from any regulatory body having jurisdiction the
authority deemed by the Corporation's counsel to be necessary to the
lawful issuance and sale of any Shares upon the exercise of an Option
shall relieve the Corporation of any liability in respect of the
non-issuance or sale of such Shares as to which such requisite authority
shall not have been obtained.
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13.6 NON-UNIFORM DETERMINATIONS. The Option Committee's
determinations under the Plan (including without limitation
determinations of the persons to receive awards, the form, amount and
timing of such awards, the terms and provisions of such awards and the
agreements evidencing same) need not be uniform and may be made by it
selectively among persons who receive, or are eligible to receive, awards
under the Plan, whether or not such persons are similarly situated.
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