Exhibit 4.9
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CALLAWAY GOLF COMPANY
1995 EMPLOYEE STOCK INCENTIVE PLAN
(As Amended and Restated April 22, 1998)
1. Purposes of the Plan
The purpose of this 1995 Employee Stock Incentive Plan (the "Plan") of
Callaway Golf Company, a California corporation (the "Company"), is to provide
for grants of stock options and other stock-based incentive awards to broad
classes of employees of the Company and its Subsidiaries, thereby helping to
retain and motivate such employees, and to encourage the judgment, initiative
and efforts of such employees by further aligning their interests with those of
the shareholders of the Company.
2. Plan Awards
To carry out the purposes of the Plan, the Company will from time to
time enter into various arrangements with persons eligible to participate
therein and confer various benefits upon them. The following such arrangements
or benefits are authorized under the Plan if their terms and conditions are not
inconsistent with the provisions of the Plan: Stock Options, Restricted Stock,
Sales of Securities, Stock Bonuses, Performance Shares, Performance Units, Stock
Appreciation Rights, Phantom Stock, Dividend Equivalents and Other Stock-Based
Benefits. Such arrangements and benefits pursuant to the Plan are sometimes
herein referred to as "Awards." The authorized categories of benefits for which
Awards may be granted are defined as follows:
Stock Options: A Stock Option is a right granted under the Plan to
purchase a specified number of shares of Common Stock at such exercise price, at
such times, and on such other terms and conditions as are specified in the
Award. A Stock Option may but need not (a) provide for the payment of some or
all of the option exercise price in cash or by promissory note or by delivery of
previously owned shares (including the technique known as "pyramiding") or other
property or by withholding some of the shares that are being purchased; (b)
include arrangements to facilitate the grantee's ability to borrow funds for
payment of the exercise price; or (c) be an Incentive Stock Option.
Restricted Stock: Restricted Stock is Common Stock sold under the
Plan (other than through the exercise of a Stock Option) at a substantial
discount from its Fair Market Value or at its par value, but subject during
specified periods of time to such restrictions on its transferability and
repurchase rights as are expressed in the Award and as may constitute a
substantial condition of forfeiture while in effect.
Sales of Securities: A Sale of Securities is a sale under the Plan of
unrestricted shares of Common Stock or of debt or other securities that are
convertible into shares of Common Stock upon such terms and conditions as may be
established in the terms of the Award.
Stock Bonuses: A Stock Bonus is the issuance or delivery of
unrestricted or restricted shares of Common Stock under the Plan as a bonus for
services rendered or for any other valid consideration under applicable law.
Performance Shares: A Performance Share is an Award that represents a
fixed number of shares of Common Stock that vest at a specified time or over a
period of time in accordance with performance criteria established in connection
with the granting of the Award. Such criteria may measure the performance of the
grantee, of the business unit in which the grantee is employed, or of the
Company,
or a combination of any of the foregoing. The vested portion of the Award is
payable to the grantee either in the shares it represents or in cash in an
amount equal to the Fair Market Value of those shares on the date of vesting, or
a combination thereof, as specified in the Award.
Performance Units: A Performance Unit is an Award that represents a
fixed amount of cash that vests at a specified time or over a period of time in
accordance with performance criteria established in connection with the granting
of the Award. Such criteria may measure the performance of the grantee, of the
business unit in which the grantee is employed, or of the Company, or a
combination of any of the foregoing. The vested portion of the Award is payable
to the grantee either in cash or in shares valued at their Fair Market Value on
the date of vesting, or a combination thereof, as specified in the Award.
Stock Appreciation Rights: A Stock Appreciation Right is a right
granted under the Plan to receive a payment that is measured with reference to
the amount by which the Fair Market Value of a specified number of shares of
Common Stock appreciates from a specified date, such as the date of grant of the
Award, to the date of exercise. Payment of a Stock Appreciation Right may be
made in cash or in shares valued at their Fair Market Value on the date of
exercise, or a combination thereof, as specified in the Award. A Stock
Appreciation Right may but need not be granted in tandem with a Stock Option and
require the surrender of that Stock Option or a portion thereof in connection
with the exercise of the Stock Appreciation Right.
Phantom Stock: Phantom Stock is a cash bonus granted under the Plan
measured by the Fair Market Value of a specified number of shares of Common
Stock on a specified date, or measured by the excess of such Fair Market Value
over a specified minimum, which may but need not include a Dividend Equivalent.
Dividend Equivalents: A Dividend Equivalent is a right granted under
the Plan to receive an amount in cash equivalent to the dividends that are paid,
if any, on a specified number of shares of Common Stock during a certain period
of time.
Other Stock-Based Benefits: An Other Stock-Based Benefit is any
arrangement granted under the Plan not otherwise described above that (a) by its
terms might involve the issuance or sale of Common Stock or (b) involves a
benefit that is measured, in whole or in part, by the value, appreciation,
dividend yield or other features attributable to a specified number of shares of
Common Stock.
An Award may consist of one such arrangement or benefit or two or more
of them in tandem or in the alternative. Subject to the provisions of the Plan,
any Award granted pursuant to the Plan may contain such additional terms and
provisions as those administering the Plan for the Company may consider
appropriate. Among other things, any such Award may but need not also provide
for (i) the satisfaction of any applicable tax withholding obligation by the
retention of shares to which the grantee would otherwise be entitled or by the
grantee's delivery of previously owned shares or other property and (ii)
acceleration of vesting, lapse of restrictions, cash settlement or other
adjustment to the terms of the Award in the event of a merger, sale of assets or
change of control of the Company.
3. Stock Subject to the Plan
The kind and maximum number of shares of stock that may be sold or
issued under the Plan, whether upon exercise of Stock Options or in settlement
of other Awards, shall be 4,600,000 shares of Common Stock (this number reflects
all stock splits through April 22, 1998, and is subject to further adjustments
set forth hereinbelow). If the outstanding shares of stock of the class then
subject to the Plan are increased or decreased, or are changed into or are
exchanged for a different number or kind of shares or securities or other forms
of consideration, as a result of one or more recapitalizations, restructurings,
reclassifications, stock splits, reverse stock splits, stock dividends or the
like, appropriate adjustments shall
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be made in the number and/or kind of shares or securities or other forms of
consideration which may thereafter be sold or issued under the Plan and for
which Awards (including Incentive Stock Options) may thereafter be granted and
for which outstanding Awards previously granted under the Plan may thereafter be
exercised or settled.
If, on or before termination of the Plan, any shares of Common Stock
subject to an Award shall not be issued or transferred and shall cease to be
issuable or transferable for any reason, or if such shares shall have been
reacquired by the Company pursuant to restrictions imposed on such shares under
the Plan or the terms of an Award, the shares not so issued or transferred and
the shares so reacquired shall no longer be charged against the limitation
provided for in this Section 3 and may be again made the subject of Awards under
the Plan. The shares of stock sold or issued under the Plan may be obtained from
the Company's authorized but unissued shares, from reacquired or treasury
shares, or from outstanding shares acquired in the market or from private
sources.
4. Administration of the Plan
(a) The Plan shall be administered by the Board of Directors of the
Company (the "Board") or, in the discretion of the Board, a committee appointed
thereby (the "Committee"). Subject to the provisions of the Plan, the Board, or
the Committee, shall have full and final authority in its discretion to select
the eligible persons to whom Awards shall be granted hereunder, to grant such
Awards, to determine the terms and provisions of such Awards and the number of
shares to be sold or issued pursuant thereto. The Board (and the Committee)
shall also be empowered with full and final authority to adopt, amend, and
rescind such rules and regulations as, in its opinion, may be advisable in the
administration of the Plan. The Board or the Committee, as the case may be, may
delegate to Company officers or others its authority with respect to any Awards
that may be granted to eligible persons under the Plan, subject to applicable
legal requirements. The interpretation and construction by the Board or the
Committee of any term or provision of the Plan or of any Award granted
thereunder shall be final and binding upon all participants in the Plan.
(b) Pursuant to the authority described above, the Board or the
Committee may adopt such amendments to, and rules and regulations governing, the
Plan as may be considered advisable for purposes of compliance with applicable
federal or state securities laws. The Board of Directors has established the
following rules applicable to all Awards made pursuant to the Plan: No Award
granted hereunder (other than an Award expressly granting unrestricted shares)
may be transferred by the grantee except (i) by will or the laws of descent and
distribution, (ii) upon dissolution of marriage pursuant to a qualified domestic
relations order or division of community or marital property or (iii) with the
express written approval of the Board or Committee in its sole discretion. No
such permitted transfer shall, by itself, affect any vesting restrictions that
then apply to the Award.
(c) The Company may assist any person to whom an Award is granted
hereunder in the payment of the purchase price or other amounts payable in
connection with the receipt or exercise of that Award, by lending such amounts
to such person on such terms and at such rates of interest and upon such
security (if any) as shall be approved by the Board or the Committee.
5. Persons Eligible to Participate
Any person who is an employee, consultant or advisor of the Company or
any of its Subsidiaries and who is not an Officer of the Company may be eligible
to be considered for the grant of Awards under the Plan, as determined by the
Board or the Committee in its discretion.
6. Plan Effectiveness and Duration
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The Plan shall become effective as of the date designated by the
Board. Unless previously terminated by the Board, the Plan shall expire ten
years after its effective date, but such expiration shall not affect any Award
previously made or granted that is then outstanding.
7. Amendment and Termination
The Board may amend, alter or discontinue the Plan or an agreement evidencing an
Award granted under the Plan, but no amendment or alteration shall be made that
would affect any Award previously made or granted that is then outstanding,
without the grantee's consent; provided, however, that no such consent shall be
required if the Board determines in its sole discretion that such amendment or
alteration is not reasonably likely to significantly diminish the benefits
provided under such Award or that any such diminishment has been adequately
compensated. Notwithstanding the foregoing, if an amendment to the Plan would
affect the ability of any Stock Options granted under the Plan to comply with
Section 422 or other applicable provisions of the Internal Revenue Code (the
"Code"), and if the Committee determines that it is necessary or desirable for
any Stock Options theretofore or thereafter granted that are intended to comply
with any such provision to so comply, or otherwise is required under any
applicable law, rule or regulation, the amendment shall be approved by the
Company's shareholders to the extent required for such Stock Options to continue
to comply with Section 422 of the Code, or other applicable provisions of or
rules under the Code.
8. Certain Definitions
The authorized categories of benefits for which Awards may be granted
under the Plan are defined in Section 2 above. In addition, the following terms
used in the Plan shall have the following meanings:
Common Stock: Common Stock is the Company's common stock, as
constituted on the effective date of the Plan, and as thereafter adjusted as a
result of any one or more events requiring adjustment of outstanding Awards
under Section 3 above.
Fair Market Value: The Fair Market Value of shares of stock shall be
calculated (a) during such time as the Company is not a publicly-traded company,
by the Board based on its good faith determination, and (b) at such times as the
Company is publicly-traded, on the basis of the closing price of stock of that
class on the day in question (or, if such day is not a trading day in the U.S.
securities markets, on the nearest preceding trading day), as reported with
respect to the principal market (or the composite of the markets, if more than
one) in which such shares are then traded; or, if no such closing prices are
reported, on the basis of the mean between the high bid and low asked prices
that day on the principal market or national quotation system on which such
shares are then quoted; or, if not so quoted, as furnished by a professional
securities dealer making a market in such shares selected by the Board or the
Committee; or if no such dealer is available, then the Fair Market Value shall
be determined in good faith by the Board.
Incentive Stock Option: An Incentive Stock Option is a Stock Option
that qualifies as an "incentive stock option" as defined under Section 422 (or
any applicable successor provisions) of the Code and that includes an express
provision that it is intended to be an Incentive Stock Option.
Subsidiary: A Subsidiary of the Company is any corporation,
partnership or other entity in which the Company directly or indirectly owns 50%
or more of the total combined power to cast votes in the election of directors,
trustees, managing partners or similar officials.
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