EXHIBIT 10.1
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CLUBCORP, INC.
EXECUTIVE
STOCK OPTION PLAN
(RESTATED EFFECTIVE AS OF JANUARY 1, 2001)
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TABLE OF CONTENTS
<Table>
SECTION 1. DEFINITIONS...................................................................................1
SECTION 2. STOCK AND MAXIMUM NUMBER OF SHARES SUBJECT TO THE PLAN........................................4
2.1 Description of Stock and Maximum Shares Allocated.............................................4
2.2 Restoration of Unpurchased Shares.............................................................4
SECTION 3. ADMINISTRATION OF THE PLAN....................................................................4
3.1 Committees....................................................................................4
3.2 Duration, Removal, Etc........................................................................5
3.3 Meetings and Actions of Committee.............................................................5
3.4 Committee's Powers............................................................................5
SECTION 4. ELIGIBILITY AND PARTICIPATION.................................................................5
4.1 Eligible Individuals..........................................................................5
4.2 No Right to Option............................................................................5
SECTION 5. GRANT OF OPTIONS AND CERTAIN TERMS OF THE AGREEMENTS..........................................6
5.1 Award Criteria................................................................................6
5.2 Grant.........................................................................................6
5.3 Transferability Restrictions..................................................................6
SECTION 6. TERMS AND CONDITIONS OF OPTIONS...............................................................7
6.1 Number of Shares..............................................................................7
6.2 Exercise Price................................................................................8
6.3 Medium and Time of Payment, Method of Exercise, and Withholding Taxes.........................8
6.4 Term of Option................................................................................9
6.5 Time of Exercise and Transferability of Options...............................................9
6.6 Adjustments Upon Changes in Capitalization, Merger, Etc......................................11
6.7 Rights as a Shareholder......................................................................12
6.8 Modification, Extension and Renewal of Options...............................................12
6.9 Furnish Information..........................................................................13
6.10 Obligation to Exercise: Termination of Employment...........................................13
6.11 Agreement Provisions and Effect..............................................................13
6.12 Violation of Employment Agreement............................................................13
6.13 Golden Parachute Limitation..................................................................13
</Table>
CLUBCORP, INC. EXECUTIVE STOCK OPTION PLAN
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<Table>
SECTION 7. REMEDIES AND SPECIFIC PERFORMANCE............................................................14
7.1 Remedies.....................................................................................14
7.2 Specific Performance.........................................................................14
SECTION 8. DURATION OF PLAN.............................................................................14
SECTION 9. AMENDMENT AND TERMINATION OF PLAN............................................................14
SECTION 10. GENERAL......................................................................................14
10.1 Application of Funds.........................................................................14
10.2 Right of the Company and Affiliates to Terminate Employment..................................15
10.3 Liability of the Company.....................................................................15
10.4 Information Confidential.....................................................................15
10.5 Other Benefits...............................................................................15
10.6 Execution of Receipts and Releases...........................................................15
10.7 No Guarantee of Interests....................................................................15
10.8 Payment of Expenses..........................................................................16
10.9 Company Records..............................................................................16
10.10 Information..................................................................................16
10.11 Severability.................................................................................16
10.12 Notices......................................................................................16
10.13 Waiver of Notice.............................................................................16
10.14 Successors...................................................................................16
10.15 Headings.....................................................................................17
10.16 Governing Law................................................................................17
10.17 Word Usage...................................................................................17
SECTION 11. EFFECTIVE DATE...............................................................................17
</Table>
CLUBCORP, INC. EXECUTIVE STOCK OPTION PLAN
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CLUBCORP, INC.
EXECUTIVE STOCK OPTION PLAN
Scope and Purpose of Restated Plan
The Company adopted and established the Plan effective on August 31,
1995. SECTION 9 of the Plan provides that the Board of Directors of the Company
may amend the Plan at any time. The Plan is hereby amended and restated
effective as of January 1, 2001.
The purpose of the Plan (defined below) is to provide an incentive for
key employees of the Company or its Affiliates (defined below) to remain in the
service of the Company or its Affiliates, to extend to them the opportunity to
acquire a proprietary interest in the Company so that they will apply their best
efforts for the benefit of the Company, and to aid the Company in attracting and
retaining key personnel The Plan is not intended to be a plan subject to the
Employee Retirement Income Security Act of 1974, as amended, and shall be
construed accordingly.
SECTION 1. DEFINITIONS.
1.1 "ACT" shall mean the Securities Exchange Act of 1934, as amended,
or any similar or superseding statute or statutes.
1.2 "AFFILIATES" shall mean any entity that is, directly or indirectly,
50% or more owned by the Company.
1.3 "AGREEMENT" shall mean the written agreement between the Company
and a Optionee evidencing the Option granted by the Company.
1.4 "BOARD OF DIRECTORS" shall mean the board of directors of the
Company.
1.5 "CAUSE" shall be as defined in any effective contract of employment
between the Optionee and the Company or Affiliate.
1.6 "CHANGE IN CONTROL" shall mean the occurrence of an event described
in the second paragraph of SECTION 6.6.
1.7 "CHANGE IN CONTROL PERIOD" shall mean the period beginning ninety
(90) days prior to and ending two (2) years following a Change in Control."
CLUBCORP, INC. EXECUTIVE STOCK OPTION PLAN
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1.8 "CODE" shall mean the Internal Revenue Code of 1986, as amended.
1.9 "COMMITTEE" shall mean the committee appointed pursuant to SECTION
3 of the Plan by the Board of Directors to administer this Plan.
1.10 "COMPANY" shall mean ClubCorp, Inc. or its successors.
1.11 "DISABILITY" shall mean a total and permanent disability as
defined in the Company's current long term disability plan, or if the Company
has no long term disability plan in effect at the time of the Optionee's
disability, as determined by the Committee in its sole discretion.
1.12 "DISINTERESTED COMMITTEE" means the committee appointed pursuant
to SECTION 3 of the Plan by the Board of Directors to administer the Plan.
1.13 "ELIGIBLE INDIVIDUALS" shall mean those employees designated by
the Committee as key employees of the Company or of any of its Affiliates, who
have signed an employment agreement with the Company or an Affiliate prior to
the date an Option is granted or within one hundred and twenty days of the date
an Option is granted.
1.14 "FAIR MARKET VALUE" shall mean:
(a) If shares of Stock of the same class are listed or
admitted to unlisted trading privileges on any national or regional
securities exchange or sales prices for such shares in the
over-the-counter market are reported by the National Association of
Securities Dealers, Inc. Automated Quotations, Inc. ("NASDAQ") National
Market System at the date of determining the Fair Market Value, the
mean between the highest and lowest quoted selling prices on the date
in question, or if there were no sales on the date in question, the
weighted average of the means between the highest and lowest sales on
the nearest date before and the nearest date after the date in
question; or
(b) If shares of Stock of the same class shall not be listed
or admitted to unlisted trading privileges as provided in SECTION
1.14(a) and sales prices for such shares shall not be reported by the
NASDAQ National Market System as provided in SECTION 1.14(a), and bid
and asked prices therefor in the over-the-counter market shall be
reported by NASDAQ (or, if not so reported, by the National Quotation
Bureau Incorporated) at the date of determining the Fair Market Value,
the mean of the closing bid and asked prices on the date in question,
or if none, by taking a weighted average of the means between the bid
and asked prices on the nearest trading date before and the nearest
trading date after the date in question, if both such dates are within
a reasonable period; and
CLUBCORP, INC. EXECUTIVE STOCK OPTION PLAN
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(c) If shares of Stock of the same class shall not be listed
or admitted to unlisted trading privileges as provided in SECTION
1.14(a) and sales prices or bid and asked prices for such shares shall
not be reported by NASDAQ (or the National Quotation Bureau
Incorporated) as provided in SECTION 1.14(a) or SECTION 1.14(b) at the
date of determining the Fair Market Value, or in the opinion of the
Board of Directors, there is insufficient trading to establish fair
market value, the value determined in good faith by the Board of
Directors and confirmed by an independent financial advisory firm.
(d) "HARDSHIP" shall mean the Committee's written
determination, delivered to the Eligible Individual of reference,
stating that the Committee has determined that such Eligible Individual
has an immediate and heavy financial need which such Eligible
Individual cannot meet through any other sources of income such as
insurance, reasonable liquidation of assets, borrowing or similar
sources and resulting from: (i) unreimbursed substantial medical
expenses for the Eligible Individual or a family member; (ii) purchase
(excluding mortgage payments) of the Eligible Individual's primary
residence; (iii) payments necessary to prevent eviction of the Eligible
Individual from his primary residence, or foreclosure of his primary
residence; and (iv) such other, similar, circumstances which the
Committee, in its sole discretion, reasonably determine pose a
substantial risk to the basic health, shelter and safety needs of the
Eligible Individual or his family members.
1.15 "NEW OPTION" shall mean an Option granted on or after July 1,
2000.
1.16 "OPTIONEE" shall mean an Eligible Individual to whom an Option has
been granted.
1.17 "OPTIONS" shall mean stock options granted pursuant to the terms
of this Plan. Options are not intended to be incentive stock options within the
meaning of Code Section 422. All references herein to Options shall be
references to both New Options and Prior Options, collectively, except that
where a reference is intended to be exclusively to a New Option, or a Prior
Option, reference will be made to the specific type of Option.
1.18 "PLAN" shall mean the ClubCorp, Inc. Executive Stock Option Plan.
1.19 "PRIOR OPTION" shall mean an Option granted prior to July 1, 2000.
1.20 "SECURITIES ACT" shall mean the Securities Act of 1933, as
amended, or any similar or superseding statute or statutes.
1.21 "STOCK" shall mean the Company's authorized common stock, $ .01
par value, together with any other securities that may be received upon the
exercise of Options granted under the Plan.
CLUBCORP, INC. EXECUTIVE STOCK OPTION PLAN
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1.22 "VESTING ACCELERATION TERMINATION" means, an Optionee's
termination from employment with the Company or an Affiliate that has occurred
within the Change in Control Period and said termination was due to:
(a) the resignation of such Optionee which was caused by and
within thirty (30) days of any of the following: (i) without the
express written consent of such Optionee, the Optionee is assigned to
duties which are materially inconsistent with or result in a material
diminution of the Optionee's position, duties, and status within the
Company or any Affiliate at the time of the Change in Control Event; or
(ii) the base salary of the Optionee is reduced; or
(b) involuntary termination of the Optionee's employment for a
reason other than Cause.
SECTION 2. STOCK AND MAXIMUM NUMBER OF SHARES SUBJECT TO THE PLAN.
2.1 DESCRIPTION OF STOCK AND MAXIMUM SHARES ALLOCATED. The Stock which
may be issued upon the exercise of an Option may either be unissued or
reacquired shares of Stock, as the Board of Directors may, in its sole and
absolute discretion, from time to time determine.
Subject to the adjustments provided in SECTION 6.6, the aggregate
number of shares of Stock to be issued pursuant to the exercise of all Options
granted under the Plan may equal but shall not exceed four million (4,000,000)
shares of Stock.
2.2 RESTORATION OF UNPURCHASED SHARES. If an Option granted under the
Plan expires or terminates for any reason during the term of this Plan and prior
to the exercise of the Option in full, the shares of Stock subject to, but not
issued under, such Option shall again be available for Options granted under the
Plan after such shares become available again.
SECTION 3. ADMINISTRATION OF THE PLAN.
3.1 COMMITTEES. The Committee shall be appointed by the Board of
Directors and shall administer the Plan with respect to all Eligible Individuals
other than members of the Board of Directors. A Disinterested Committee shall be
appointed by the Board of Directors and shall be composed of persons who are not
participants in the Plan. The Disinterested Committee shall administer the Plan
with respect to all members of the Board of Directors who participate in the
Plan, if any. Unless the context otherwise requires, references herein to the
Committee shall also refer to the Disinterested Committee as administrator of
the Plan for members of the Board of Directors who are Eligible Individuals, if
any.
CLUBCORP, INC. EXECUTIVE STOCK OPTION PLAN
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3.2 DURATION, REMOVAL, ETC. The members of the Committee shall serve at
the pleasure of the Board of Directors, which shall have the power, at any time
and from time to time, to remove members from the Committee or to add members to
the Committee. Vacancies on the Committee, however caused, shall be filled by
action of the Board of Directors.
3.3 MEETINGS AND ACTIONS OF COMMITTEE. The Committee shall elect one of
its members as its Chairman and shall hold its meetings at such times and places
as it may determine. All decisions and determinations of the Committee shall be
made by the majority vote or decision of all of its members present at a
meeting; provided, however, that any decision or determination reduced to
writing and signed by all of the members of the Committee shall be as fully
effective as if it had been made at a meeting duly called and held. The
Committee may make any rules and regulations for the conduct of its business
that are not inconsistent with the provisions of this Plan and with the bylaws
of the Company as it may deem advisable.
3.4 COMMITTEE'S POWERS. Subject to the express provisions of this Plan,
the Committee shall have the authority, in its sole and absolute discretion, (a)
to adopt, amend, and rescind administrative and interpretive rules and
regulations relating to the Plan; (b) to determine the terms and provisions of
the respective Agreements (which need not be identical), including provisions
defining or otherwise relating to (i) subject to SECTION 6, the term and the
period or periods during which Options can be exercised, (ii) the extent to
which the transferability of shares of Stock issued upon exercise of Options is
restricted, (iii) the effect of termination of employment upon the
exercisability of the Options, and (iv) the effect of approved leaves of absence
(consistent with any applicable regulations of the Internal Revenue Service);
(c) to construe the terms of any Agreement and the Plan; (d) to make
determinations regarding whether performance or accelerated vesting requirements
have been met; (e) to set the required minimum performance rating for
accelerated vesting; and (f) to make all other determinations and perform all
other acts necessary or advisable for administering the Plan, including the
delegation of such ministerial acts and responsibilities as the Committee deems
appropriate. The Committee may correct any defect or supply any omission or
reconcile any inconsistency in the Plan or in any Agreement in the manner and to
the extent it shall deem expedient to carry it into effect, and it shall be the
sole and final judge of such expediency. The Committee shall have full
discretion to make all determinations on the matters referred to in this SECTION
such determinations shall be final, binding and conclusive.
SECTION 4. ELIGIBILITY AND PARTICIPATION.
4.1 ELIGIBLE INDIVIDUALS. Options may be granted under the Plan only to
persons who are Eligible Individuals at the time of grant of the Options.
4.2 NO RIGHT TO OPTION. The adoption of the Plan shall not be deemed to
give any person a right to be granted an Option.
CLUBCORP, INC. EXECUTIVE STOCK OPTION PLAN
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SECTION 5. GRANT OF OPTIONS AND CERTAIN TERMS OF THE AGREEMENTS.
5.1 AWARD CRITERIA. Subject to the express provisions of this SECTION,
the Committee shall determine which Eligible Individuals shall be granted
Options under the Plan from time to time. In making grants, the Committee shall
take into consideration the level of responsibility within the organization and
the relative contribution the potential Optionee has made or may make to the
success of the Company or its Affiliates and such other considerations as the
Board of Directors may from time to time specify. The Committee shall also
determine the number of shares subject to each of such Options.
5.2 GRANT. The date on which the Committee completes all action
constituting an offer of an Option to an individual, including specification of
the exercise price and the number of shares of Stock to be subject to the
Option, shall be the date on which the Option covered by an Agreement is
granted, even though certain terms of the Agreement may not be at such time
determined and even though the Agreement may not be executed until a later time.
Each Option granted under the Plan shall be evidenced by an Agreement, executed
by the Company and the Eligible Individual to whom the Option is granted,
incorporating such terms as the Committee shall deem necessary or desirable.
More than one Option may be granted to the same Eligible Individual and be
outstanding concurrently. Notwithstanding any provision to the contrary, an
Option shall be void if the individual is not an Eligible Individual.
5.3 TRANSFERABILITY RESTRICTIONS. An Eligible Individual may not sell
or transfer Stock acquired through the exercise of a Prior Option unless:
(a) the sale or transfer is of the minimum number of shares of
Stock necessary to (i) fund the exercise of a Prior Option, (ii) pay
any taxes resulting from the exercise of the Prior Option, or (iii)
alleviate a Hardship;
(b) the Eligible Individual owns shares of Stock sufficient to
meet the minimum ownership level set forth in APPENDIX A;
(c) the six (6) month anniversary of the date on which the
Option was exercised to acquire such shares of Stock has occurred, in
which case he may sell or transfer fifty percent (50%) of such shares
of Stock, less any shares of Stock already sold or transferred under
the provisions of the preceding Sections (a) and (b) of this paragraph;
or
(d) the two (2) year anniversary of the date on which the
Option was exercised to acquire such shares of Stock has occurred.
The minimum ownership level set forth in APPENDIX A may be changed by the
Committee in its sole discretion at any time. The Fair Market Value of all Stock
holdings (whether vested or forfeitable) will be considered toward meeting the
required ownership level. In addition, an Optionee will be
CLUBCORP, INC. EXECUTIVE STOCK OPTION PLAN
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treated as owning (i) the Fair Market Value of Stock equal to his account
balance in the ClubCorp Employee Stock Ownership Plan as of the Plan's most
recent allocation date; (ii) an amount equal to the difference between the
exercise price of any stock appreciation rights ("SARs") Optionee holds over the
Fair Market Value of the Stock subject to the SAR on such date; (iii) an amount
equal to the Fair Market Value of Stock subject to a phantom stock grant; and
(iv) an amount equal to the number of shares of restricted stock held by
Optionee.
An Eligible Individual may not sell or transfer Stock acquired through
the exercise of a New Option unless:
(a) the sale or transfer is of the minimum number of shares of
Stock necessary to alleviate a Hardship;
(b) the six (6) month anniversary of the date on which the
Option was exercised to acquire such shares of Stock has occurred, in
which case he may sell or transfer fifty percent (50%) of such shares
of Stock, less any shares of Stock already sold or transferred under
the provisions of the preceding section (a) of this paragraph; or
(c) the two (2) year anniversary of the date on which the
Option was exercised to acquire such shares of Stock has occurred.
Without limiting the generality of the preceding two paragraphs, in
addition, all shares of Stock issued pursuant to the exercise of Options under
this Plan shall be subject to the terms and conditions of the shareholders
agreement that the Company shall forward to each Optionee upon the Optionee's
exercise of an Option. Notwithstanding anything to the contrary in the Plan or
the Optionee's Agreement, the Optionee shall have no right to have any shares
issued to him or her until the Optionee has signed the shareholders agreement
given to him by the Company. Each Agreement may contain or otherwise provide for
such other restrictions on the transferability of shares of the Stock acquired
pursuant to an Option as the Committee, in its sole and absolute discretion,
shall deem proper or advisable. Such other restrictions on transferability may
include, but need not be limited to, options and rights of first refusal in
favor of the Company and shareholders of the Company.
SECTION 6. TERMS AND CONDITIONS OF OPTIONS.
All Options granted under the Plan shall comply with, be deemed to
include, and shall be subject to the following terms and conditions:
6.1 NUMBER OF SHARES. Each Agreement shall state the number of shares
of Stock to which it relates.
CLUBCORP, INC. EXECUTIVE STOCK OPTION PLAN
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6.2 EXERCISE PRICE. Each Agreement shall state the exercise price per
share of Stock. The exercise price per share of Stock subject to an Option shall
be at least one hundred percent (100%) of the Fair Market Value per share of the
Stock on the date of the grant of the Option, and shall be set by the Committee
at the time the Option is granted.
6.3 MEDIUM AND TIME OF PAYMENT, METHOD OF EXERCISE, AND WITHHOLDING
TAXES. The exercise price of an Option shall be payable upon the exercise of the
Option:
(a) in cash,
(b) by certified or cashier's check payable to the order of
the Company,
(c) with the consent of the Committee, with shares of Stock
owned by Optionee, provided, however, that any shares of Stock acquired
through the exercise of an Option must have been owned by the Optionee
for a period of at least six (6) months, or
(d) with the consent of the Committee, by a combination of
cash and such shares.
Exercise of an Option shall not be effective until the Committee has received
written notice of exercise and full payment of the exercise price. Such notice
must specify the number of whole shares to be purchased and be accompanied by
payment in full of the aggregate exercise price of the number of shares
purchased. The Company shall not in any case be required to sell, issue, or
deliver a fractional share of Stock with respect to any Option.
The Committee shall require an Optionee to pay to the Company at the
time of exercise of an Option (or portion of an Option) the amount that the
Company deems necessary to satisfy its minimum obligation (based on the minimum
applicable withholding rate) to withhold Federal, state or local income or other
taxes incurred by reason of the exercise. The Committee may, in its discretion,
permit an Optionee to satisfy the withholding requirement of the preceding
sentence by payment of cash or property to the Company or withhold full shares
of Stock having a Fair Market Value as close as possible to, but without
exceeding, the amount required to be withheld by the Company to meet such
withholding obligation. If the exercise of an Option does not give rise to an
obligation to withhold Federal income or other taxes on the date of exercise,
the Company may, in its discretion, require an Optionee to place shares of Stock
sufficient to meet such withholding obligations in escrow for the benefit of the
Company until such withholding is required. At such later time, the Company, in
its discretion, may require an Optionee to pay to the Company the amount that
the Company deems necessary to satisfy such withholding obligation. Upon receipt
of such payment by the Company, such shares of Stock shall be released from
escrow to the Optionee. Notwithstanding the foregoing, if upon the occurrence of
an event giving rise to a tax withholding obligation on the part of the Company,
the Stock is registered under Section 12 of the Act and the Optionee is a
director or officer of the Company within the meaning of Section 16 of the Act,
then such tax withholding shall be automatically effected by the Company
withholding full shares of Stock having a Fair Market Value as close as possible
to, but without exceeding, the amount required
CLUBCORP, INC. EXECUTIVE STOCK OPTION PLAN
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to be withheld by the Company (based on the minimum applicable withholding
rate), and the Optionee will pay any remaining balance of such amount in cash.
6.4 TERM OF OPTION. The provisions of this SECTION shall apply to the
extent an Optionee's Agreement does not expressly provide otherwise. If an
Optionee ceases to be an Eligible Individual due to termination of employment
for Cause, the Option shall terminate immediately upon the Optionee's
termination of employment. If an Optionee ceases to be an Eligible Individual by
reason of a voluntary termination of employment, (i) in the case of an Option
granted prior to January 1, 2000, the Option will terminate immediately upon the
Optionee's voluntary termination of employment; and (ii) in the case of an
Option granted on or after January 1, 2000, the Optionee shall have the right
for thirty (30) days following the date of his voluntary termination of
employment to exercise such Option to the extent such Option is exercisable on
the date of his voluntary termination of employment. If an Optionee ceases to be
an Eligible Individual by reason of (a) Disability, (b) normal retirement on or
after age sixty-five (65), or (c) involuntary termination of employment for a
reason other than for Cause, the Optionee shall have the right for one hundred
twenty (120) days after the date of his involuntary termination, normal
retirement or Disability to exercise an Option to the extent such Option is
exercisable on the date of his involuntary termination, Disability, or normal
retirement. If an Optionee ceases to be an Eligible Individual by reason of
death, Optionee's designated beneficiary shall have the right for twelve months
after the date of death to exercise the Option, to the extent such Option is
exercisable on the date of death. At the end of such twelve month or one hundred
twenty (120) day period, as applicable the Option shall terminate and cease to
be exercisable. Each Optionee shall have the right to designate a beneficiary on
the form provided by the Committee. If no beneficiary is designated, Optionee's
estate shall have the rights of a beneficiary. Except as provided above, all
Options shall terminate and cease to be exercisable on termination of Optionee's
employment with the Company or an Affiliate. Notwithstanding any other provision
of this Plan, no Option shall be exercisable after the expiration of fifteen
(15) years from the date it is granted (the "maximum term").
6.5 TIME OF EXERCISE AND TRANSFERABILITY OF OPTIONS. In addition to
such other terms and conditions as may be included in a particular Agreement
granting an Option, an Option shall be exercisable during an Optionee's lifetime
only by the Optionee or by the Optionee's guardian or legal representative. An
Option shall not be transferrable other than by will or the laws of descent and
distribution.
The Committee shall have the authority to prescribe in any Agreement
that the Option evidenced by the Agreement may be exercised in full or in part
as to any number of shares subject to the Option at any time or from time to
time during the term of the Option, or in such installments at such times during
said term as the Committee may prescribe. All Options shall become fully vested
and exercisable on the earliest to occur of the following:
(i) the date on which the Optionee dies,
(ii) the date the Optionee becomes Disabled,
CLUBCORP, INC. EXECUTIVE STOCK OPTION PLAN
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(iii) the date the Optionee both (i) attains age
sixty-five (65) and (ii) completes 10 or more years of
employment with the Company, or one of its Affiliates,
(iv) the end of ten (10) years from the date the
Option is granted,
(v) In the event that an Optionee ceases to be an
Eligible Individual due to a Vesting Acceleration Termination,
such Optionee's Options shall become fully vested and
immediately exercisable as of the day before the later to
occur of (a) the Vesting Acceleration Termination or (b) the
Change in Control Event related to the Vesting Acceleration
Termination.
Except as otherwise provided in any Agreement, the vesting of an Option
shall be accelerated to annual vesting at a rate of ten percent (10%) per year
for each year that the Optionee remains employed in a position that has been
designated as a key executive position by the Committee and the Optionee meets
the performance requirements described below. Vesting is credited January 1st of
each year, beginning the January 1st following the date the Option is granted.
(a) If Optionee ceases to be employed in a position that has
been designated by the Committee as a key executive position, no
further accelerated vesting shall occur, and the Company shall have the
right at any time thereafter, in its sole discretion, to cancel the
Option by paying Optionee a cash amount that is at least equal to the
difference between the Option's exercise price and the then Fair Market
Value of the Stock times the number of shares covered by the
unexercised vested portion of such Optionee's Option.
(b) Optionees will only be credited with a ten percent (10%)
increment of accelerated vesting if they achieve the minimum annual
performance rating set by the Committee ("AMP"), which shall initially
be three (3) or qualification for that year's minimum payout on the
applicable cash bonus plan. In the event an Optionee does not meet his
AMP in a particular year, ten percent (10%) accelerated vesting will
still occur if the average of his AMP for that particular year,
combined with his AMP for the next year, equals or exceeds the required
AMP. If such two year average does not equal or exceed the required
AMP, then an Optionee shall lose the ability to receive ten percent
(10%) incremental vesting for that particular year. The right to
exercise shall be cumulative, so that if the full number of shares of
Stock purchasable in any year are not purchased in such year, they may
be purchased at any time prior to the termination of the Option.
Within a reasonable time (or such time as may be permitted by law)
after the Company receives written notice that the Optionee has elected to
exercise all or a portion of an Option, such notice to be accompanied by payment
in full of the aggregate Option exercise price of the number of shares of Stock
purchased, the Company shall issue and deliver a certificate representing the
shares acquired in consequence of the exercise and any other amounts payable in
consequence of such exercise. The number of the shares of Stock issuable upon
exercise of an Option under this
CLUBCORP, INC. EXECUTIVE STOCK OPTION PLAN
10
Plan shall not be increased due to the passage of time, except as may be
provided in an Agreement; provided, however, the number of such shares of Stock
which are issuable may increase due to the occurrence of certain events which
are fully described in SECTION 6.6.
Nothing in the Plan or in any Option granted under the Plan shall
require the Company to issue any shares upon exercise of any Option if such
issuance would, in the reasonable judgment of the Committee based upon the
advice of counsel for the Company, constitute a violation of the Securities Act,
as amended or any other applicable statute or regulation, as then in effect. At
the time of any exercise of an Option, the Company may, as a condition precedent
to the exercise of such Option, require from the Optionee (or in the event of
his death, his legal representatives, heirs, legatees, or distributees) such
written representations, if any, concerning his intentions with regard to the
retention or disposition of the shares being acquired by exercise of such Option
and such written covenants and agreements, if any, as to the manner of disposal
of such shares as, in the reasonable judgment of the Committee based upon the
advice of counsel to the Company, may be necessary to ensure that any
disposition by such Optionee (or in the event of his death, his legal
representatives, heirs, legatees, or distributees), will not involve a violation
of the Securities Act or any other applicable state or federal statute or
regulation, as then in effect.
6.6 ADJUSTMENTS UPON CHANGES IN CAPITALIZATION, MERGER, ETC.
Notwithstanding any other provision in the Plan to the contrary, in the event of
any change in the number of outstanding shares of Stock that is (a) effected
without receipt of consideration by the Company by reason of a stock dividend,
split or combination or pursuant to an exchange of shares, merger or other
recapitalization in which the Company is the surviving corporation, or (b) by
reason of a spin-off of a part of the Company into a separate entity, or
assumptions and conversions of outstanding grants due to an acquisition by the
Company of a separate entity; the aggregate number and class of the reserved
shares, the number and class of shares subject to each outstanding Option and
the exercise price of each outstanding Option shall be automatically adjusted to
accurately and equitably reflect the effect of such change. In the event of a
dispute concerning such adjustment, the Committee has full discretion to
determine the resolution of the dispute. Such determination shall be final,
binding and conclusive. The number of reserved shares or the number of shares
subject to any outstanding Option shall be automatically reduced to the extent
necessary to eliminate any fractional shares.
The following provisions of this SECTION shall apply unless an
Optionee's Agreement provides otherwise. In the event of:
(a) a dissolution or liquidation of the Company,
(b) a merger or consolidation (other than a merger effecting a
re-incorporation of the Company in another state or any other merger or
a consolidation in which the shareholders of the surviving corporation
and their proportionate interests therein immediately after the merger
or consolidation are substantially identical to the shareholders of the
Company and their proportionate interests therein immediately prior to
the merger or
CLUBCORP, INC. EXECUTIVE STOCK OPTION PLAN
11
consolidation) in which the Company is not the surviving corporation
(or survives only as a subsidiary of another corporation in a
transaction in which the shareholders of the parent of the Company and
their proportionate interests therein immediately after the transaction
are not substantially identical to the shareholders of the Company and
their proportionate interests therein immediately prior to the
transaction; provided, however, that the Board of Directors may at any
time prior to such a merger or consolidation provide by resolution that
the foregoing provisions of this parenthetical shall not apply if a
majority of the board of directors of such parent immediately after the
transaction consists of individuals who constituted a majority of the
Board of Directors immediately prior to the transaction), or
(c) a transaction in which any person (other than a
shareholder of the Company on the date of the Optionee's Agreement)
becomes the owner of fifty percent (50%) or more of the total combined
voting power of all classes of stock of the Company (provided, however,
that the Board of Directors may at any time prior to such transaction
provide by resolution that this Subparagraph shall not apply if such
acquiring person is a corporation and a majority of the board of
directors of the acquiring corporation immediately after the
transaction consists of individuals who constituted a majority of the
Board of Directors immediately prior to the acquisition of such fifty
percent (50%) or more total combined voting power);
the Board of Directors shall, as of the effective time of such transaction,
change the number and kind of shares of stock (including substitution of shares
of another corporation) and exercise price in the manner it deems appropriate.
6.7 RIGHTS AS A SHAREHOLDER. An Optionee shall have no right as a
shareholder with respect to any shares covered by his Option until a certificate
representing such shares is issued to him. No adjustment shall be made for
dividends (ordinary or extraordinary, whether in cash or other property) or
distributions or other rights for which the record date is prior to the date
such certificate is issued, except as provided in SECTION 6.6.
6.8 MODIFICATION, EXTENSION AND RENEWAL OF OPTIONS. Subject to the
terms and conditions of, and within the limitations of, the Plan, the Committee
may modify, extend or renew outstanding Options granted under the Plan or accept
the surrender of Options outstanding under the Plan (to the extent not
previously exercised) and authorize the granting of substitute Options. The
Committee may not, however, without the consent of the Optionee, modify any
outstanding Options so as to specify a higher or lower exercise price or number
of shares. In addition, no modification of an Option granted under the Plan
shall, without the consent of the Optionee, alter or impair any rights or
obligations under any Option previously granted under the Plan to such Optionee
under the Plan.
CLUBCORP, INC. EXECUTIVE STOCK OPTION PLAN
12
6.9 FURNISH INFORMATION. Each Optionee shall furnish to the Company all
information requested by the Company to enable it to comply with any reporting
or other requirement imposed upon the Company by or under any applicable statute
or regulation.
6.10 OBLIGATION TO EXERCISE: TERMINATION OF EMPLOYMENT. The granting of
an Option under the Plan shall impose no obligation upon the Optionee to
exercise it or any part of it. In the event of an Optionee's termination of
employment with the Company or an Affiliate, the unexercised portion of an
Option granted under the Plan shall terminate in accordance with SECTION 6.4.
6.11 AGREEMENT PROVISIONS AND EFFECT. The Agreements authorized under
the Plan shall contain such provisions in addition to those required by the Plan
(including, without limitation, restrictions or the removal of restrictions upon
the exercise of the Option and the retention or transfer of shares thereby
acquired) as the Committee shall deem advisable. Options granted under the Plan
shall not be exercisable until the Agreement and the Optionee's employment
agreement have been fully executed.
6.12 VIOLATION OF EMPLOYMENT AGREEMENT. In the event an Optionee is
determined to have violated the terms of his or her employment agreement by a
court of competent jurisdiction or pursuant to arbitration, Options awarded
under this Plan, including vested Options, will be forfeited as of the date of
the violation. In addition, any Stock acquired through the exercise of an Option
must be returned to the Company and the Company shall refund to Optionee the
exercise price of such forfeited Stock. If Optionee no longer owns the Stock,
Optionee will owe the Company an amount equal to any gain or profit over the
exercise price that the Optionee received on the sale of such Stock and the
Company has the right to offset this amount from any payments it owes Optionee.
6.13 GOLDEN PARACHUTE LIMITATION. In the event that Section 280G
applies to any Option and the aggregate present value of the benefits to an
Optionee under the Plan, and any other plan program, or arrangement maintained
by the Company constitutes an "excess parachute payment" (within the meaning of
Section 280G(b)(1) of the Code) and the excise tax on such payment would cause
the net parachute payments (after taking into account federal, state and local
income and excise taxes) to which the Optionee otherwise would be entitled to be
less than what the Optionee would have netted (after taking into account
federal, state and local income taxes) had the present value of his total
parachute payments equaled $1.00 less than three times his "base amount" (within
the meaning of Code Section 280G(b)(3)(A)) the Optionee's total "parachute
payments" (within the meaning of Section 280G(b)(2)(A)) shall be reduced (by the
minimum possible amount) so that their aggregate present value equals $1.00 less
than three times such base amount. For purposes of this calculation, it shall be
assumed that the Optionee's tax rate will be the maximum marginal federal, state
and local income tax rate on earned income with such maximum federal rate to be
computed with regard to Code Section 1(g), if applicable. In the event that the
Optionee and the Company are unable to agree as to the amount of the reduction
described above, if any, the Company shall select a law firm or accounting firm
from among those regularly consulted by the Company regarding
CLUBCORP, INC. EXECUTIVE STOCK OPTION PLAN
13
federal income tax or employee benefit matters and such law firm or accounting
firm shall determine the amount of such reduction and such determination shall
be final and binding upon the Optionee and the Company.
SECTION 7. REMEDIES AND SPECIFIC PERFORMANCE.
7.1 REMEDIES. The Company shall be entitled to recover from an Optionee
reasonable attorneys' fees incurred in connection with the enforcement of the
terms and provisions of the Plan and any Agreement, whether by an action to
enforce specific performance, or an action for damages for its breach or
otherwise.
7.2 SPECIFIC PERFORMANCE. The Company shall be entitled to enforce the
terms and provisions of SECTION 7.1, including the remedy of specific
performance, in Dallas County, Texas.
SECTION 8. DURATION OF PLAN.
No Options may be granted under the Plan more than ten years after the
date the Plan is adopted.
SECTION 9. AMENDMENT AND TERMINATION OF PLAN.
The Board of Directors may at any time terminate or from time to time
amend or suspend the Plan; provided, however, that in the event that the Stock
is registered under Section 12 of the Act, no such amendment shall, without
approval of the shareholders of the Company, except as provided in SECTION 6,
(a) materially increase the benefits accruing to participants under the Plan;
(b) materially increase the number of securities which may be issued under the
Plan; or (c) materially modify the requirements as to eligibility for
participation in the Plan. No Option may be granted during any suspension of the
Plan or after the Plan has been terminated, and no amendment, suspension or
termination shall, without an Optionee's consent, alter or impair, other than as
provided in the Plan and the Optionee's Agreement, any of the rights or
obligations under any Option previously granted to such Optionee under the Plan.
SECTION 10. GENERAL.
10.1 APPLICATION OF FUNDS. The proceeds received by the Company from
the sale of shares pursuant to Options shall be used for general corporate
purposes.
CLUBCORP, INC. EXECUTIVE STOCK OPTION PLAN
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10.2 RIGHT OF THE COMPANY AND AFFILIATES TO TERMINATE EMPLOYMENT.
Nothing contained in the Plan, or in any Agreement, shall confer upon any
Optionee the right to continue in the employ of the Company or any Affiliate, or
interfere in any way with the rights of the Company or any Affiliate to
terminate his employment any time.
10.3 LIABILITY OF THE COMPANY. Neither the Company, any of its
Affiliates, its directors, officers or employees nor any member of the Committee
shall be liable for any act, omission, or determination taken or made in good
faith with respect to the Plan or any Option granted under it, and members of
the Board of Directors and the Committee shall be entitled to indemnification
and reimbursement by the Company in respect of any claim, loss, damage, or
expense (including attorneys' fees, the costs of settling any suit (provided
such settlement is approved by independent legal counsel selected by the
Company) and amounts paid in satisfaction of a judgment, except a judgment based
on a finding of bad faith) arising from such claim, loss, etc. to the full
extent permitted by law and under any directors' and officers' liability or
similar insurance coverage that may from time to time be in effect.
10.4 INFORMATION CONFIDENTIAL. As partial consideration for the
granting of each Option under the Plan, the Agreement may, in the Committee's
sole and absolute discretion, provide that the Optionee shall agree with the
Company that he will keep confidential all information and knowledge that he has
relating to the manner and amount of his participation in the Plan; provided,
however, that such information may be disclosed as required by law and may be
given in confidence to the Optionee's spouse, tax and financial advisors, or to
a financial institution to the extent that such information is necessary to
secure a loan. In the event any breach of this promise comes to the attention of
the Committee, it shall take into consideration such breach, in determining
whether to recommend the grant of any future Option to such Optionee, as a
factor militating against the advisability of granting any such future Option to
such individual.
10.5 OTHER BENEFITS. Participation in the Plan shall not preclude the
Optionee from eligibility in any other stock option plan of the Company or any
Affiliate or any old age benefit, insurance, pension, profit sharing,
retirement, bonus, or other extra compensation plans which the Company or any
Affiliate has adopted, or may, at any time, adopt for the benefit of its
employees.
10.6 EXECUTION OF RECEIPTS AND RELEASES. Any payment of cash or any
issuance or transfer of shares of Stock to the Optionee, or to his legal
representative, heir, legatee, or distributee, in accordance with the provisions
of the Plan, shall, to the extent thereof, be in full satisfaction of all claims
of such persons under the Plan. The Committee may require any Optionee, legal
representative, heir, legatee, or distributee, as a condition precedent to such
payment, to execute a release and receipt for such payment in such form as it
shall determine.
10.7 NO GUARANTEE OF INTERESTS. Neither the Committee nor the Company
guarantees the Stock from loss or depreciation.
CLUBCORP, INC. EXECUTIVE STOCK OPTION PLAN
15
10.8 PAYMENT OF EXPENSES. All expenses incident to the administration,
termination, or protection of the Plan, including, but not limited to, legal and
accounting fees, shall be paid by the Company or its Affiliates; provided,
however, the Company or an Affiliate may recover any and all damages, fees,
expenses and costs arising out of any actions taken by the Company or an
Affiliate to enforce its rights under the Plan.
10.9 COMPANY RECORDS. Records of the Company or its Affiliates
regarding the Optionee's period of employment, termination of employment and the
reason for such termination, leaves of absence, re-employment, and other matters
shall be conclusive for all purposes under the Plan, unless determined by the
Committee to be incorrect.
10.10 INFORMATION. The Company and its Affiliates shall, upon request
or as may be specifically required under the Plan, furnish or cause to be
furnished all of the information or documentation that is necessary or required
by the Committee to perform its duties and functions under the Plan.
10.11 SEVERABILITY. If any provision of this Plan is held to be illegal
or invalid for any reason, the illegality or invalidity shall not affect the
remaining provisions of the Plan, but such provision shall be fully severable,
and the Plan shall be construed and enforced as if the illegal or invalid
provision had never been included in the Plan.
10.12 NOTICES. Whenever any notice is required or permitted under the
Plan, such notice must be in writing and personally delivered, telecopied (if
confirmed), or sent by mail or by a nationally recognized courier service. Any
notice required or permitted to be delivered under this Agreement shall be
deemed to be delivered on the date on which it is personally delivered, or, if
mailed, whether actually received or not, on the third business day after it is
deposited in the United States mail, certified or registered, postage prepaid,
addressed to the person who is to receive it at the address which such person
has previously specified by written notice delivered in accordance with this
SECTION or, if by courier, twenty-four (24) hours after it is sent, addressed as
described in this SECTION. The Company or an Optionee may change, at any time
and from time to time, by written notice to the other, the address which it or
he had previously specified for receiving notices. Until changed in accordance
with the Plan, the Company and each Optionee shall specify as its and his
address for receiving notices the address set forth in the Agreement pertaining
to the shares to which such notice relates.
10.13 WAIVER OF NOTICE. Any person entitled to notice under the Plan
may waive such notice.
10.14 SUCCESSORS. The Plan shall be binding upon the Optionee, his
legal representatives, heirs, legatees and distributees, upon the Company, its
successors, and assigns, and upon the Committee, and its successors.
CLUBCORP, INC. EXECUTIVE STOCK OPTION PLAN
16
10.15 HEADINGS. The titles and headings of Sections are included for
convenience of reference only and are not to be considered in construction of
the Plan's provisions.
10.16 GOVERNING LAW. All questions arising with respect to the
provisions of the Plan shall be determined by application of the laws of the
State of Texas except to the extent Texas law is preempted by federal law.
Questions arising with respect to the provisions of an Agreement that are
matters of contract law shall be governed by the laws of the state specified in
the Agreement, except to the extent preempted by federal law and except to the
extent that Texas corporate law conflicts with the contract law of such state,
in which event Texas corporate law shall govern. The obligation of the Company
to sell and deliver Stock under the Plan is subject to applicable laws and to
the approval of any governmental authority required in connection with the
authorization, issuance, sale, or delivery of such Stock.
10.17 WORD USAGE. Words used in the masculine shall apply to the
feminine where applicable, and wherever the context of this Plan dictates, the
plural shall be read as the singular and the singular as the plural.
SECTION 11. EFFECTIVE DATE.
The Plan, as restated, shall be effective as of January 1, 2001.
CLUBCORP, INC. EXECUTIVE STOCK OPTION PLAN
17
APPENDIX A
SALARY LEVEL SALARY MULTIPLE
------------ ---------------
LEVELS 14 & 15 10X
LEVELS 12 & 13 7X
LEVEL 11 5X
LEVEL 10 3X
LEVEL 9 1.5X
CLUBCORP, INC. EXECUTIVE STOCK OPTION PLAN
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