EXHIBIT 10.2
CONSUMER PORTFOLIO SERVICES, INC.
1997 Long-Term Incentive Stock Plan
1. PURPOSES OF THE PLAN
The purposes of the 1997 Long-Term Incentive Stock Plan (the "Plan") of
Consumer Portfolio Services, Inc., a California corporation (the "Company") are
to: promote the interests of the Company and its stockholders by strengthening
the Company's ability to attract and retain highly competent officers and other
key employees; permit the awarding of opportunities for Plan participants to be
rewarded using stock-based incentives; and to provide a means to encourage stock
ownership and proprietary interest in the Company by the recipients of awards
made under the Plan.
2. DEFINITIONS
a) "1934 Act" means the Securities and Exchange Act of 1934, as amended,
including the rules and regulations promulgated thereunder.
b) "Award" means an Option (including an ISO), an SAR, a stock Award, a
stock payment, any other award made pursuant to the terms of the Plan, or any
combination of them, as described in and granted under the Plan.
c) "Board" means the board of directors of the Company.
d) "Change of Control" is defined in Section 11.
e) "Code" means the Internal Revenue Code of 1986, as amended, including
any rules and regulations promulgated thereunder.
f) "Committee" means the Compensation Committee of the Board or such
other committee as may be appointed by the Board to administer the Plan.
g) "Company" means Consumer Portfolio Services, Inc., a California
corporation.
h) "Eligible Person" means any natural person who at the time of an Award
(i) is an employee of the Company or any Subsidiary, or (ii) is an employee of a
business acquired by or an entity merged into the Company or any Subsidiary;
provided, however, that with respect to an Award of ISOs, an "Eligible Person"
means only a natural person who is at the time of grant an employee of the
Company or of a corporation to which the Company is a parent corporation as
defined in Section 424 of the Code, or successor provision.
i) "Fair Market Value" means the average of the high and low selling
prices of a Share as reported in The Wall Street Journal (or other readily
available public source designated by the Committee) for the last trading day
for which such prices are available prior to the applicable transaction date
under the Plan. If the Committee determines that there is no readily available
source of information regarding transactions in Shares, then Fair Market Value
shall mean the fair market value of a Share as determined by the Committee.
j) "ISO" means an incentive stock option as defined in Section 422 of the
Code.
k) "Option" means an Award under the Plan of an option to purchase
Shares, and includes ISO Awards and options that do not meet the requirements of
Section 422 of the Code.
l ) "Participant" means an Eligible Person who has been granted an Award
under the Plan.
m) "Plan Year" means a twelve-month period beginning with January 1 of
each year, commencing with January 1, 1997.
n) "Prior Plan" means the Consumer Portfolio Services, Inc. 1991 Stock
Option Plan.
o) "SAR" means a stock appreciation right.
p) "Shares" means the common stock of the Company, no par value.
q) "Subsidiary" mean any entity that is directly or indirectly controlled
by the Company, or any entity, including an acquired entity, in which the
Company has a significant equity interest, as determined by the Committee.
3. EFFECTIVE DATE OF PLAN AND DURATION OF PLAN
The Plan shall become effective upon its adoption by the Board. Any Awards
hereunder may be made immediately upon such effectiveness; provided, however,
(i) that the Plan and any such Awards shall be void ab initio if the
shareholders of the Company do not approve the Plan within one year after its
adoption by the Board, and (ii) no ISO or
SAR may be exercised prior to shareholder approval. Unless previously terminated
by the Board of Directors, the Plan shall expire at the close of business on
April 30, 2007.
4. PLAN ADMINISTRATION
a) Committee -- The Committee shall administer the Plan. The Committee
shall comprise two or more members of the Board, each of whom shall be both (i)
a non-employee director within the meaning of Rule 16b-3 under the 1934 Act and
(ii) an outside director within the meaning of Section 162(m) of the Code;
provided, however, that the Board may by resolution specifically declaring that
compliance with said restrictions of Rule 16b-3 or Section 162(m), or both, is
no longer necessary or advisable, name to the Committee individuals who do not
meet such definitions. Each member of the Committee shall serve for such term as
the Board may determine, subject to removal by the Board at any time.
b) Committee Authority -- The Committee shall have full and exclusive
authority to interpret the Plan and to adopt such rules, regulations and
guidelines for carrying out the Plan as it may deem necessary or proper, all of
which authority shall be executed in the best interests of the Company and in
keeping with the provisions and objectives of the Plan. Without limiting the
preceding grant of authority, the Committee shall have the authority (i) to
select Award recipients, (ii) to establish all Award terms and conditions, (iii)
to adopt procedures and regulations governing Awards, (iv) to approve forms of
Award agreements for use under this Plan, (v) to amend the terms of any
outstanding Award, including a reduction in the exercise price of any Option or
SAR to reflect a decrease in Fair Market Value, subject to consent of the
Participant to the extent required by the applicable Award agreement, (vi) to
construe and interpret the Plan and any Award agreements, and (vii) to make all
other determinations necessary or advisable for the administration of this Plan,
including the authority in the event of a spin-off or other corporate
transaction to replace an Award under the Plan with an award from another issuer
or plan or an award relating to property other than Shares. All decisions made
by the Committee shall be conclusive, final and binding on all persons affected
by such decisions.
c) No member of the Committee shall be liable for any action or
determination with respect to the Plan, and the members shall be entitled to
indemnification and reimbursement in the manner provided in the Company's
Articles of Incorporation and its bylaws, as amended. In the performance of its
functions under the Plan, the Committee shall be entitled to rely upon
information and advice furnished by the Company's officers, accountants, counsel
and any other party the Committee deems necessary, and no member of the
Committee shall be liable for any action taken or not taken in reliance upon any
such advice.
5. PARTICIPATION
The Committee may from time to time grant Awards under the Plan to any
Eligible Person. The Committee may impose such terms and conditions on any such
Award as the Committee may find advisable.
6. AVAILABLE SHARES OF COMMON STOCK
a) Subject to any adjustment pursuant to Section 6(c), grants of Awards
are subject to the following limitations:
(i) the aggregate number of Shares as to which Awards may be
granted shall not exceed 1,500,000.
(ii) In addition, awards may be granted with respect to the
following: any Shares available for grants under the Prior Plan that have not
been committed for issuance under grants made under the Prior Plan; any Shares
that are represented by grants or portions of grants made under the Plan or the
Prior Plan that are forfeited, expire or are canceled without the issuance of
Shares; and any Shares that may be tendered, either actually or by attestation,
by a person as full or partial payment made to the Company in connection with
the exercise of any stock option under the Plan or the Prior Plan.
(iii) The aggregate number of Shares that may be represented by
Awards granted to any one individual under Sections 7(b), 7(c), 7(d) and 7(e) of
the Plan shall not exceed 750,000 over the life of the Plan.
(iv) The aggregate number of Shares that may be used in settlement
of Awards pursuant to Section 7(d) of the Plan shall not exceed 30% of total
number of Shares available under this Section 6(a).
b) Exclusions and Source of Shares -- Any Shares issued, and any Awards
that are granted through the assumption of, or in substitution for, outstanding
awards previously granted by an acquired entity shall not be counted against the
Shares available for Awards under the Plan. No fractional Shares shall be
issued under the Plan. Cash may be paid in lieu of any fractional Shares in
settlements of awards under the Plan.
c) Adjustments -- In the event of any stock dividend, stock split,
combination or exchange of equity securities, merger, consolidation,
recapitalization, spin-off or other distribution (other than normal cash
dividends) of Company's assets to stockholders, or any other change affecting
Shares or Share price the Committee in its discretion may
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make such proportionate adjustments as it may deem appropriate to reflect such
change with respect to: (i) the limitations on the numbers of Shares that may be
issued and represented by Awards as set forth in Section 6(a); (ii) each
outstanding Award; and (iii) the exercise price per Share for any outstanding
Options, SARs or similar Awards.
7. AWARDS
a) General -- The Committee shall determine the type or types of
Award(s), if any, to be made to each Eligible Person. Awards may be granted
singly, in combination or in tandem. Awards also may be made in combination or
in tandem with, in replacement of, as alternatives to grants or rights under the
Plan or any other employee compensation plan of the Company, including the plan
of any acquired entity. The types of Awards that may be granted under the Plan
are:
b) Stock Options -- An Option shall represent a right to purchase a
specified number of Shares during a specified period as determined by the
Committee. The purchase price per Share shall be as specified in the Committee
resolution granting same, or, in the absence of any specification, shall be the
Fair Market Value of one Share. The Committee shall designate each Option as an
ISO or as an Option other than an ISO. The Shares covered by an Option may be
purchased, in accordance with the applicable Award agreement , by cash payment
or any other method permitted by the Committee, which other methods may include
(i) tender (either actually or by attestation) of Shares valued at the Fair
Market Value at the date of exercise; (ii) authorizing a third party to sell the
Shares (or a sufficient portion thereof) acquired upon exercise of a stock
option, and assigning for delivery to the Company a sufficient amount of the
sale proceeds to pay for all the Shares acquired through such exercise and any
tax withholding obligations resulting from such exercise; (iii) delivery of the
Participant's promissory note with such recourse, interest, term, security and
other provisions as the Committee deems appropriate, or (iv) any combination of
the above. Unless some other method of payment is explicitly authorized, either
by resolution of the Committee or the terms of the written Option agreement,
payment for Shares shall be by delivery of cash to the Company prior to the
issuance of such Shares. The Committee may grant Options that provide for the
grant of a subsequent restoration Option if the exercise price has been paid for
by tendering Shares to the Company. Any restoration Option may cover up to the
number of Shares tendered in exercising the predecessor Option, with the Option
purchase price set at the then-current Fair Market Value, and the term of such
restoration Option may not extend beyond the remaining term of the original
option.
c) SARs -- An SAR shall represent a right to receive a payment, in cash,
Shares or a combination, equal to the excess of the Fair Market Value of a
specified number of Shares on the date the SAR is exercised over the Fair Market
Value on the date the SAR was granted as set forth in the applicable Award
agreement; except that if an SAR is granted retroactively in tandem with or in a
substitution for a stock option, the designated Fair Market Value in the
applicable Award agreement may be the Fair Market Value on the date such stock
option was granted.
d) Stock Awards -- A stock Award shall represent an Award made in Shares
or denominated in units equivalent in value to Shares. All or part of any stock
Award may be subject to conditions and restrictions established by the
Committee, and set forth in the Award agreement, which may include, but are not
limited to, continuous service with the Company, the achievement of performance
goals, or both. The vesting period of any stock Award will be not less than six
months. The performance criteria that the Committee may use in granting stock
Awards contingent on performance goals for officers to whom Section (S)162(m) of
the Code is applicable shall consist of Fair Market Value of Shares, earnings,
return on equity, and revenues. The Committee may select one criterion or
multiple criteria for measuring performance, and the measurement may be based on
absolute Company or business unit performance or based on performance as
compared with other companies.
e) Stock Payment -- A Stock Payment shall represent an issuance of Shares
as payment for compensation which otherwise would have been delivered in cash
(including without limitation any compensation that is intended to qualify as
performance-based compensation for purposes of Section 162(m) of the Code). No
minimum vesting period need apply to Shares issued as a Stock Payment. Any
Shares used for such payment will be valued at their Fair Market Value at the
time of payment and shall be subject to such restrictions (including without
limitation restrictions on transfer), if any, and other terms and conditions as
may be determined by the Committee at the time of payment.
8. DIVIDENDS AND DIVIDEND EQUIVALENTS
The Committee may provide that any Awards may earn dividends or dividend
equivalents, which shall not be deemed earned in the absence of explicit
provision therefor. Such dividends or dividend equivalents may be paid
currently or may be credited to a Participant's account. Any crediting of
dividends or dividend equivalents may be subject to such restrictions and
conditions as the Committee may establish, including reinvestment in additional
Shares or share equivalents.
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9. PAYMENTS AND PAYMENT DEFERRALS
Payment of Awards may be in the form of cash, Shares, other Awards or
combinations thereof as the Committee shall determine, and with such
restrictions as it may impose. The Committee also may require or permit
Participants to elect to defer the issuance of Shares from Stock Options or
Stock Awards or the settlement of Awards in cash under such rules and procedures
as it may establish under the Plan. It also may provide that deferred
settlements include the payment or crediting of interest on the deferred
amounts, or the payment or crediting of dividend equivalents where the deferred
amounts are denominated in Share equivalents. In addition, the Committee may
stipulate in an Award agreement, either at time of grant or by subsequent
amendment, that a payment or portion of a payment of an Award be delayed in the
event that Section 162(m) of the Code (or any successor or similar provision of
the Code affecting tax deductibility) would operate to disallow a tax deduction
by the Company for all or a portion of such payment. The period of any such
delay in payment shall be until the payment, or portion thereof, is tax
deductible, or such earlier date as the Committee may determine.
Shares shall not be issued pursuant to an Award unless the issuance and
delivery of such Shares pursuant thereto would comply with all applicable laws,
and shall be further subject to the approval of counsel for the Company with
respect to such compliance. The Company shall have no obligation to cause
compliance with any applicable law. In particular, but without limitation, the
Company shall have no obligation to register under the Securities Act of 1933
the Shares issuable pursuant to any Award.
As a condition to the issuance of Shares to a Participant, the Company may
require the Participant to represent and warrant at the time of any such
issuance that the Shares are being purchased only for investment and without any
present intention to sell or distribute such Shares if, in the opinion of
counsel for the Company, such a representation is required by any applicable
law.
10. TRANSFERABILITY
Awards under the Plan shall not be transferable or assignable other than by
will or the laws of descent and distribution, except that the Committee may
provide for the transferability of particular Awards, other than ISOs:
a) by gift or other transfer to (i) any trust or estate in which the
original Award recipient or such person's spouse or other immediate relative has
a beneficial interest; or (ii) a spouse or other immediate relative, provided,
however, that the Participant continues to have substantial beneficial interest
in the Shares covered by the Award after such transfer; or
b) pursuant to a qualified domestic relations order.
In the event that a Participant terminates employment with the Company or
any Subsidiary to assume a position with a governmental, charitable, educational
or similar non-profit institution, the Committee may subsequently authorize a
third party, including but not limited to a "blind" trust, to act on behalf of
and for the benefit of such Participant regarding any outstanding Award held by
the Participant subsequent to such termination of employment. If so permitted
by the Committee, a Participant may designate a beneficiary or beneficiaries to
exercise the rights of the Participant and receive any distribution under the
Plan upon the death of the Participant.
11. CHANGE OF CONTROL
a) In order to maintain the Participants' rights in the event of a Change
of Control, the Committee in its sole discretion may, either at the time an
Award is made hereunder or at any time prior to, or coincident with or after the
time of a Change of Control:
i) provide for the acceleration of any time periods relating to the
exercise or realization of such Awards so that such Awards may be exercised or
realized in full on or before a date fixed by the Committee;
ii) provide for the purchase of such Awards, upon the Participant's
request, for an amount of cash equal to the amount which could have been
obtained upon the exercise or realization of such rights had such Awards been
currently exercisable or payable;
iii) make such adjustment to the Awards then outstanding as the
Committee deems appropriate to reflect such transaction or change; or
iv) cause the Awards then outstanding to be assumed, or new rights
substituted therefore, by the surviving corporation in such change.
b) The Committee may, in its discretion, include such further provisions
and limitations in any agreement documenting such Awards as it may deem
equitable and in the best interests of the Company.
c) A "Change of Control" shall be deemed to occur if and when:
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i) any person, including a "person" as such term is used in
Section 14(d)(2) of the 1934 Act (a "Person"), is or becomes a beneficial owner
(as such term is defined in Rule 13d-3 under the 1934 Act), directly or
indirectly, of securities of the Company representing 25% or more of the
combined voting power of the Company's then outstanding securities, but
excluding any such person who holds such voting power as of the date of adoption
of the Plan;
ii) any plan or proposal for the liquidation or dissolution of the
Company is adopted by its shareholders;
iii) individuals who, as of the date hereof, constitute the Board
(the "Incumbent Board") cease for any reason to constitute at least a majority
of the Board; provided, however, that any individual becoming a director
subsequent to the date hereof whose election, or nomination for election by the
Company's shareholders, was approved by a vote of at least a majority of the
directors then constituting the Incumbent Board shall be considered as though
such individual were a member of the Incumbent Board, but excluding, for this
purpose, any such individual whose initial assumption of office occurs as a
result of either an actual or threatened election contest (as such terms are
used in Rule 14a-11 of Regulation 14A promulgated under the 1934 Act) or other
actual or threatened solicitation of proxies or consents by or on behalf of a
Person other than the Board;
iv) all or substantially all or the assets of the Company are sold,
liquidated or distributed; or
v) there occurs a reorganization, merger, consolidation or other
corporate transaction involving the Company (a "Transaction"), in each case,
with respect to which the shareholders of the Company immediately prior to such
Transaction do not, immediately after the Transaction, own more than 50 percent
of the combined voting power of the Company or other corporation resulting from
such Transaction.
d) Any good faith determination by the Incumbent Board of whether a
Change of Control within the meaning of this definition has occurred shall be
conclusive.
12. AWARD AGREEMENTS
Awards under the Plan shall be evidenced by agreements that set forth the
terms, conditions and limitations for each Award, which may include the term of
the Award (except that in no event shall the term of any ISO exceed a period of
ten years from the date of its grant), the provisions applicable in the event
the Participant's employment terminates, and the Company's authority
unilaterally or bilaterally to amend, modify, suspend, cancel or rescind any
Award. The Committee need not require the execution of any such Agreement by
the Participant, in which case acceptance of the Award by the Participant shall
constitute agreement by the Participant to the terms of the Award.
13. PLAN AMENDMENT
The Board may at any time amend, suspend or terminate the Plan as it deems
necessary or appropriate to better achieve the purposes of the Plan, except that
the Board may not, without the approval of the Company's stockholders,
materially increase the number of shares available for issuance in accordance
with Section 6 of the Plan.
14. TAX WITHHOLDING
The Company shall have the right to deduct from any settlement of an Award
made under the Plan, including the delivery or vesting of Shares, a sufficient
amount to cover withholding of any federal, state or local taxes required by law
or such greater amount of withholding as the Committee shall determine from time
to time, or to take such other action as may be necessary to satisfy any such
withholding obligations. If the Committee permits or requires Shares to be used
to satisfy required tax withholding, such Shares shall be valued at the Fair
Market Value as of the tax recognition date for such Award. No Shares or other
property shall be delivered under the Plan to any Participant or other person
until such Participant or other person has made arrangements acceptable to the
Committee for the satisfaction of any foreign, federal, state, or local income
and employment tax withholding obligations, including, without limitation,
obligations incident to the receipt of shares or the disqualifying disposition
of shares received on exercise of an ISO. Upon exercise of an Option, the
Company shall withhold or collect from the Participant an amount sufficient to
satisfy such tax obligations.
15. OTHER BENEFIT AND COMPENSATION PROGRAMS
Unless otherwise specifically determined by the Committee, settlements of
Awards received by participants under the Plan shall not be deemed a part of a
participant's regular, recurring compensation for purposes of calculating
payments or benefits from any Company benefit plan or severance program.
Further, the Company may adopt other compensation programs, plans or
arrangements as it deems appropriate or necessary.
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16. UNFUNDED PLAN
Unless otherwise determined by the Board, the Plan shall be unfunded and
shall not create (or be construed to create) a trust or a separate fund or
funds. The Plan shall not establish any fiduciary relationship between the
Company and any participant or other person. To the extent any person holds any
rights by virtue of an Award granted under the Plan, such rights shall
constitute general unsecured liabilities of the Company and shall not confer
upon any Participant any right, title or interest in any assets of the Company.
17. USE OF PROCEEDS
The cash proceeds received by the Company from the issuance of Shares
pursuant to the exercise of stock options or the settlement of other Awards
under the Plan may be used for general corporate purposes.
18. REGULATORY APPROVALS
The implementation of the Plan, the grant of any Award under the Plan, and
the issuance of Shares upon the exercise or settlement of any Award shall be
subject to the Company's receiving all approvals and permits required by
regulatory authorities having jurisdiction over the Plan, Awards or the Shares
issued pursuant to Awards.
19. FUTURE RIGHTS
No person shall have any claim or rights to be granted an Award under the
Plan, and no Participant shall have any rights under the Plan to be retained in
the employment of the Company. Likewise, participation in the Plan will not in
any way affect the Company's right to terminate the employment of the
Participant at any time with or without cause. Any discretionary authority held
by the Committee or the Board shall not give rise to any duty on the part of
such body to exercise such discretion for the benefit of any Participant; and
all such discretion may be exercised for the exclusive benefit of the Company.
20. GOVERNING LAW
The validity, construction and effect of the Plan and any actions taken or
relating to the Plan shall be determined in accordance with the internal laws of
the State of California and applicable federal law.
21. SUCCESSORS AND ASSIGNS
The Plan shall be binding on all successors and assigns of a Participant,
including, without limitation, the estate of such Participant and the executor,
administrator or trustee of such estate, or any receiver or trustee in
bankruptcy or representative of the Participant's creditors. However, no Award
or other interest in the Plan may be assigned, pledged or otherwise alienated,
except to the extent permitted in accordance with Section 10 of the Plan and the
applicable Award agreement.
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