Exhibit 10.1


 


DFG Holdings, Inc.


 


1999 STOCK INCENTIVE PLAN


 


1.                                       Purpose. DFG Holdings, Inc., a
Delaware corporation (the “Company”), hereby adopts the DFG Holdings, Inc. 1999
Stock Incentive Plan (the “Plan”). The Plan is intended to recognize the
contributions made to the Company by employees (including employees who are
members of the Board of Directors) of the Company or any Affiliate, to provide
such persons with additional incentive to devote themselves to the future
success of the Company or any Affiliate, and to improve the ability of the
Company or any Affiliate to attract, retain, and motivate individuals upon whom
the Company’s sustained growth and financial success depend, by providing such
persons with an opportunity to acquire or increase their proprietary interest
in the Company through receipt of rights to acquire the Company’s Common Stock,
par value of $.001 per share (the “Common Stock”), and through the transfer or
issuance of Common Stock. In addition, the Plan is intended as an additional
incentive to directors of the Company who are not employees of the Company or
any Affiliate to serve on the Board of Directors and to devote themselves to
the future success of the Company by providing them with an opportunity to
acquire or increase their proprietary interest in the Company through the
receipt of rights to acquire Common Stock. Furthermore, the Plan may be used to
encourage consultants and advisors of the Company to further the success of the
Company.


 


2.                                       Definitions. Unless the context clearly
indicates otherwise, the following terms shall have the following meanings:


 


(a)                                  “Affiliate” means a
corporation which is a parent corporation or a subsidiary corporation with
respect to the Company within the meaning of Section 424(e) or (f) of the Code.


 


(b)                                 “Award” shall mean a transfer
of Common Stock made pursuant to the terms of the Plan.


 


(c)                                  “Award Agreement” shall mean
the agreement between the Company and a Grantee with respect to an Award made
pursuant to the Plan.


 


(d)                                 “Board of Directors” means
the Board of Directors of the Company.


 


(e)                                  “Change of Control” shall
have the meaning as set forth in Section 9 of the Plan.


 


(f)                                    “Code” means the Internal
Revenue Code of 1986, as amended.


 


(g)                                 “Committee” shall have the
meaning set forth in Section 3 of the Plan.


 


(h)                                 “Common Stock” shall have the
meaning set forth in Section 1 of the Plan.


 


(i)                                     “Company” means DFG Holdings,
Inc., a Delaware corporation.


 


(j)                                     “Disability” shall have the
meaning set forth in Section 22(e)(3) of the Code.


 


(k)                                  “Employee” means an employee
of the Company or any Affiliate.


 


(1)                                  “Exchange Act” means the
Securities Exchange Act of 1934, as amended.


 


(m)                               “Fair Market Value” shall
have the meaning set forth in Subsection 8(b) of the 


 





















 


Plan.


 


(n)                                 “Grantee” shall mean a person
to whom an Award has been granted pursuant to the Plan.


 


(o)                                 “ISO” means an Option granted
under the Plan which is intended to qualify as an “incentive stock option”
within the meaning of Section 422(b) of the Code.


 


(p)                                 “Non-qualified Stock Option” means
an Option granted under the Plan which is not intended to qualify, or otherwise
does not qualify, as an “incentive stock option” within the meaning of Section 422(b)
of the Code.


 


(q)                                 “Option” means either an ISO
or a Non-qualified Stock Option granted under the Plan.


 


(r)                                    “Optionee” means a person to
whom an Option has been granted under the Plan, which Option has not been
exercised and has not expired or terminated.


 


(s)                                  “Option Document” means the
document described in Section 8 of the Plan, as applicable, which sets
forth the terms and conditions of each grant of Options.


 


(t)                                    “Option Price” me-is the
price at which Shares may be purchased upon exercise of an Option, as
calculated pursuant to Subsection 8(b) of the Plan.


 


(u)                                 “SAR” shall have the meaning
set forth in Section 11 of the Plan.


 


(v)                                 “Securities Act” means the
Securities Act of 1933, as amended.


 


(w)                               “Shares” means the shares of
Common Stock of the Company which are the subject of Options or granted as
Awards under the Plan.


 


3.                                       Administration of the Plan. The Board of Directors or a
committee designated by it shall operate and administer the Plan. Any committee
designated by the Board of Directors, and the Board of Directors itself in its
administrative capacity with respect to the Plan, is referred to herein as the “Committee.”
The provisions set forth herein, as it pertains to members of the Committee,
may be administered by the Board of Directors. From and after such time as the
Company is subject to the reporting requirements of Section 13 or 15(d) of
the Exchange Act, the Plan shall be administered only by the Committee, which
shall then consist solely of persons who are “non-employee directors” within
the meaning of Rule 16b-3 promulgated under the Exchange Act and “outside
directors” within the meaning of Section 162(m) of the Code. Except as
otherwise provided in the Company’s By-laws, any action of the Committee with
respect to administration of the Plan shall be taken by a majority vote at a
meeting at which a quorum is duly constituted or unanimous written consent of
the Committee’s members.


 


(a)                                  Subject to the provisions of
the Plan, the Committee shall have full, unconditional, sole and final
discretion and authority (i) to construe and interpret the Plan and the Option
Documents, (ii) to define the terms used herein, (iii) to prescribe, amend and
rescind rules and regulations relating to the Plan, (iv) to make awards to
purchase Common Stock hereunder, (v) to determine the individuals to whom and
the time or times at which awards of Options shall be made, the number of
shares of Common Stock to be subject to such awards, the vesting of such
Options, the time or times when vested Options become exercisable and the other
terms of such Options, (vi) to determine the circumstances under which vesting
or exercisability of any Option may be accelerated, (vii) to determine the
exercise price (which shall not be less than the Fair Market Value per share of
Common Stock on the date of the award as determined by the Committee), and the
duration of each Option (which shall not be more than ten years), (viii) to
approve and determine the duration of leaves of absence which may be granted to
Optionees without constituting a termination of their employment or continuous
service for the purposes of the Plan or the relevant Option, (ix) to amend the
terms of any outstanding Option, with consent of the holder (or as otherwise
provided in this Plan or Option Documents), and (x) to make all other
determinations necessary or advisable for the administration of the Plan. All
determinations and


 





















 


interpretations made by the Committee shall be binding and
conclusive on all Optionees and their legal representatives and beneficiaries.


 


(b)                                 Meetings. The Committee shall hold
meetings at such times and places as it may determine, shall keep minutes of
its meetings, and shall adopt amend and revoke such rules or procedures as it
may deem proper; provided, however, that it may take action only upon the
agreement of a majority of the whole Committee. Any action which the Committee
shall take through a written instrument signed by a majority of its members
shall be as effective as though it had been taken at a meeting duly called and
held.


 


(c)                                  Exculpation. No member of the Board of
Directors shall be personally liable for monetary damages for any action taken
or any failure to take any action in connection with the administration of the
Plan or the granting of Options under the Plan, provided that this Subsection 3(c)
shall not apply to (i) any breach of such member’s duty of loyalty to the
Company, an Affiliate, or the Company’s stockholders, (ii) acts or omissions
not in good faith or involving intentional misconduct or a knowing violation of
law, (iii) acts or omissions that would result in liability under applicable
law, and (iv) any transaction from which the member derived an improper
personal benefit.


 


(d)                                 Indemnification. Each member of the Committee
shall be entitled, without further act on his or her part, to indemnity from
the Company and limitation of liability to the fullest extent provided by
applicable law and by the Company’s Certificate of Incorporation and/or By-laws
in connection with or arising out of any action, suit or proceeding with
respect to the administration of the Plan or the granting of Options thereunder
in which he or she may be involved by reason of his or her being or having been
a member of the Committee, whether or not he or she continues to be such member
of the Committee at the time of the action, suit or proceeding.


 


(e)                                  Interpretation. Subject to the provisions of
the Plan, the Committee shall have the power and authority to interpret the
Plan (including the Option Documents) and to adopt rules and regulations for
its administration that are not inconsistent with the express terms of the
Plan. Any such actions by the Committee shall be final, binding and conclusive
on all parties in interest.


 


4.                                       Grants under the Plan. Grants under the Plan may be
in the form of a Nonqualified Stock Option, an ISO or a combination thereof, at
the discretion of the Committee. An Optionee may receive one or more awards
hereunder, at any time and from time to time, as determined by the Committee.
All awards of Options shall be pursuant to, and shall be subject to the terms
and restrictions provided in, an Option Document in a form determined by the
Committee. Options shall not be transferable by an Optionee either voluntarily
or by operation of law, other than by will or by the laws of descent and
distribution, and shall be exercisable during the Optionee’s lifetime only by
the Optionee. Subject to the terms of the Plan, the Committee shall determine
the exact terms and restrictions included in each Option Document with respect
to each award to an Optionee.


 


5.                                       Eligibility. All Employees, members of
the Board of Directors and consultants and advisors to the Company or any
Affiliate shall be eligible to receive Options and Awards hereunder.
Consultants and advisors shall be eligible only if they render bona fide
services to the Company or any Affiliate unrelated to the offer or sale of
securities; provided, however, that the limitation contained in this sentence
shall not apply to the extent that the inapplicability of such limitation will
not disqualify the Common Stock from being eligible for registration on Form
S-8 (or any successor form) under the Securities Act. The Committee, in its
sole discretion, shall determine whether an individual qualifies as an
employee.


 


6.                                       Shares Subject to Plan. The aggregate maximum number
of Shares for which Awards or Options may be granted pursuant to the Plan is
1,413.3186. The number of Shares which may be issued under the Plan shall be
further subject to adjustment in accordance with Section 10. The Shares
shall be issued from authorized and unissued Common Stock or Common Stock held
in or hereafter acquired for the treasury of the Company. If an Option
terminates or expires without having been fully exercised for any reason or if
Shares subject to an Award have been conveyed back to the Company pursuant to
the terms of an Award Agreement, the Shares for which the Option was not exercised
or the Shares that were


 





















 


conveyed back to the Company may again be the subject of one
or more Options or Awards granted pursuant to the Plan.


 


7.                                       Term of the Plan. The Plan is effective as of February 15,
1999, the date on which it was adopted by the Board of Directors, subject to
the approval of the Plan within one year after such date by the stockholders in
the manner required by state law, and shall expire on the tenth (10th)
anniversary of such date, unless earlier terminated. If the Plan is not so
approved by the stockholders, all ISO’s granted under the Plan shall be null
and void.


No ISO may be granted under the Plan after February 15,
2009.


 


8.                                       Option Documents and Terms. Each Option granted under
the Plan shall be a Non-qualified Stock Option unless the Option shall be
specifically designated at the time of grant to be an ISO for Federal income
tax purposes. If any Option designated an ISO is determined for any reason not
to qualify as an incentive stock option within the meaning of Section 422
of the Code, such Option shall be treated as a Non-qualified Stock Option for
all purposes under the provisions of the Plan. Options granted pursuant to the
Plan shall be evidenced by the Option Documents in such form as the Committee
shall from time to time approve, which Option Documents shall comply with and
be subject to the following terms and conditions and such other terms and
conditions as the Committee shall from time to time require which are not
inconsistent with the terms of the Plan.


 


(a)                                  Number of Option Shares. Each Option Document shall
state the number of Shares to which it pertains. An Optionee may receive more
than one Option, which may include Options which are intended to be ISO’s and
Options which are not intended to be ISO’s, but only on the terms and subject
to the conditions and restrictions of the Plan.


 


(b)                                 Option Price. Each Option Document shall
state the Option Price which, for a Non-qualified Stock Option, may be equal
to, or greater than the Fair Market Value of the Shares on the date the Option
is granted and, for an ISO, shall be at least 100% of the Fair Market Value of
the Shares on the date the Option is granted as determined by the Committee in
accordance with this Subsection 8(b); provided, however, that if an ISO is
granted to an Optionee who then owns, directly or by attribution under Section 424(d)
of the Code, shares possessing more than ten percent of the total combined
voting power of all classes of stock of the Company or an Affiliate, then the
Option Price shall be at least 110% of the Fair Market Value of the Shares on
the date the Option is granted. If the Common Stock is traded in a public
market, then the Fair Market Value per share shall be, if the Common Stock is
listed on a national securities exchange or included in the NASDAQ System, the
last reported sale price thereof on the relevant date, or, if the Common Stock
is not so listed or included, the mean between the last reported “bid” and “asked”
prices thereof on the relevant date, as reported on NASDAQ or, if not so
reported, as reported by the National Daily Quotation Bureau, Inc. or as
reported in a customary financial reporting service, as applicable and as the
Committee determines. If the Common Stock is not traded in a public market,
Fair Market Value shall be determined in good faith by the Committee.


 


(c)                                  Exercise. No Option shall be deemed to
have been exercised prior to the receipt by the Company of written notice of
such exercise and (unless arrangements satisfactory to the Company have been
made for payment through a broker in accordance with procedures permitted by
Regulation P of the Federal Reserve Board) of payment in full of the Option
Price for the Shares to be purchased. Each such notice shall specify the number
of Shares to be purchased and shall (unless the Shares are covered by a then
current registration statement or a Notification under Regulation A under the
Act), contain the Optionee’s acknowledgment in form and substance satisfactory
to the Company that (a) such Shares are being purchased for investment and not
for distribution or resale (other than a distribution or resale which, in the
opinion of counsel satisfactory to the Company, may be made without violating the
registration provisions of the Securities Act), (b) the Optionee has been
advised and understands that (i) the Shares have not been registered under the
Securities Act and are “restricted securities” within the meaning of Rule 144
under the Securities Act and are subject to restrictions on transfer and (ii)
the Company is under no obligation to register the Shares under the Securities
Act or to take any action which would make available to the Optionee any
exemption from such registration, (c) such Shares may not be transferred
without compliance with all applicable federal and state securities laws, and
(d) an appropriate legend referring to the foregoing restrictions on transfer
and any other restrictions imposed under the Option


 





















 


Documents may be endorsed on the certificates. Notwithstanding
the foregoing, if the Company determines that issuance of Shares should be
delayed pending (A) registration under federal or state securities laws, (B)
the receipt of an opinion of counsel satisfactory to the Company that an
appropriate exemption from such registration is available, (C) the listing or
inclusion of the Shares on any securities exchange or an automated quotation
system or (D) the consent or approval of any governmental regulatory body whose
consent or approval is necessary in connection with the issuance of such
Shares, the Company may defer exercise of any Option granted hereunder until
any of the events described in this sentence has occurred.


 


(d)                                 Medium of Payment. Subject to the terms of the
applicable Option Document, an Optionee shall pay for Shares (i) in cash, (ii)
by certified or cashier’s check payable to the order of the Company, or (iii)
by such other mode of payment as the Committee may approve, including payment
through a broker in accordance with procedures permitted by Regulation P of the
Federal Reserve Board. If the Option Document so provides, the Optionee may
also exercise the Option in any manner contemplated by Section 11.
Furthermore, the Committee may provide in an Option Document that payment may
be made in whole or in part in shares of the Company’s Common Stock held by the
Optionee. If payment is made in whole or in part in shares of the Company’s
Common Stock, then the Optionee shall deliver to the Company certificates
registered in the name of such Optionee representing the shares owned by such
Optionee, free of all liens, claims and encumbrances of every kind and having
an aggregate Fair Market Value on the date of delivery that is at least as
great as the Option Price of the Shares (or relevant portion thereof) with
respect to which such Option is to be exercised by the payment in shares of
Common Stock, endorsed in blank or accompanied by stock powers duly endorsed in
blank by the Optionee. In the event that certificates for shares of the Company’s
Common Stock delivered to the Company represent a number of shares in excess of
the number of shares required to make payment for the Option Price of the
Shares (or relevant portion thereof) with respect to which such Option is to be
exercised by payment in shares of Common Stock, the stock certificate or
certificates issued to the Optionee shall represent (i) the Shares in respect
of which payment is made, and (ii) such excess number of shares.
Notwithstanding the foregoing, the Committee may impose from time to time such
limitations and prohibitions on the use of shares of the Common Stock to
exercise an Option as it deems appropriate.


 


(e)                                  Termination of Options.


 


(i)                                     No Option shall be
exercisable after the first to occur of the following:


 


(A)      Expiration of the Option term
specified in the Option Document, which, in the case of an ISO, shall not occur
after (1) ten years from the date of grant, or (2) five years from the date of
grant if the Optionee on the date of grant owns, directly or by attribution
under Section 424(d) of the Code, shares possessing more than ten percent
(10%) of the total combined voting power of all classes of stock of the Company
or of an Affiliate;


 


(B)        Except to the extent
otherwise provided in an Optionee’s Option Document, a fording by the
Committee, after full consideration of the facts presented on behalf of both
the Company and the Optionee, that the Optionee has been engaged in disloyalty
to the Company or an Affiliate, including, without limitation, fraud,
embezzlement, theft, commission of a felony or proven dishonesty in the course
of the Optionee’s employment or service, or has disclosed trade secrets or
confidential information of the Company or an Affiliate. In such event, in
addition to immediate termination of the Option, the Optionee shall
automatically forfeit all Shares for which the Company has not yet delivered
the share certificates upon refund by the Company of the Option Price.
Notwithstanding anything herein to the contrary, the Company may withhold
delivery of share certificates pending the resolution of any inquiry that could
lead to a finding resulting in a forfeiture;


 


(C)        The date, if any, set by the
Board of Directors as an accelerated expiration date in the event of the
liquidation or dissolution of the Company;


 


(D)       The occurrence of such other
event or events as may be set forth in the Option Document as causing an
accelerated expiration of the Option; or


 





















 


(E)         Except as otherwise set forth
in the Option Document and subject to the foregoing provisions of this Subsection 8(e),
three months after the Optionee’s employment or service with the Company or its
Affiliates terminates for any reason other than Disability or death or one year
after such termination due to Optionee’s Disability or death. With respect to
this Subsection 8(e)(i)(E), the only Options that may be exercised during
the three-month or one-year period, as the case may be, are Options which were
exercisable on the last date of such employment or service and not Options
which, if the Optionee were still employed or rendering service during such
three-month or one-year period, would become exercisable, unless the Option
Document specifically provides to the contrary. The terms of an executive
severance agreement or other agreement between the Company and an Optionee,
approved by the Committee, whether entered into prior or subsequent to the
grant of an Option, which provide for Option exercise dates earlier or later
than those set forth in Subsection 8(e)(i) shall be deemed to be Option
terms approved by the Committee and consented to by the Optionee. Any Shares
received by an Optionee following the exercise of any Option during such
three-month or one-year period as set forth herein, shall be subject to the
provisions of Section 2.9 of the Company’s Amended and Restated
Stockholders Agreement, dated as of December 18, 1998, provided, however,
the Repurchase Option Buyers (as defined therein) shall have thirty (30) days
following the exercise of such Option, rather than from the date of the Option
Event (as defined therein) to exercise the Repurchase Option (as defined
therein).


 


(ii)                                  Notwithstanding the
foregoing, the Committee may extend the period during which all or any portion
of an Option may be exercised to a date no later than the Option term specified
in the Option Document pursuant to Subsection 8(e)(i)(A), provided that
any change pursuant to this Subsection 8(e)(ii) which would cause an ISO
to become a Non-qualified Stock Option may be made only with the consent of the
Optionee.


 


(iii)                               Notwithstanding anything to
the contrary contained in the Plan or an Option Document an ISO shall be
treated as a Non-qualified Stock Option to the extent such ISO is exercised at
any time after the expiration of the time period permitted under the Code for
the exercise of an ISO.


 


(f)                                    Transfers. No Option granted under the
Plan may be transferred, except by will or by the laws of descent and
distribution except as otherwise set forth in the Option Document or to the
extent that the Committee otherwise determines.


 


(g)                                 Limitation on ISO Grants. To the extent that the
aggregate Fair Market Value of the shares of Common Stock (determined at the
time the ISO is granted) with respect to which ISO’s under all incentive stock
option plans of the Company or its Affiliates are exercisable for the first
time by the Optionee during any calendar year exceeds $100,000, such ISO’s
shall, to the extent of such excess, be treated as Non-qualified Stock Options.


 


(h)                                 Other Provisions. Subject to the provisions of
the Plan, the Option Documents shall contain such other provisions including,
without limitation, provisions authorizing the Committee to accelerate the
exercisability of all or any portion of an Option granted pursuant to the Plan,
rights of redemption by the Company, additional restrictions or conditions
prior to or upon the exercise of the Option or additional limitations upon the
term of the Option, as the Committee shall deem advisable.


 


(i)                                     Amendment. Subject to the provisions of
the Plan, the Committee shall have the right to amend any Option Document or
Award Agreement issued to an Optionee or Award holder, subject to the Optionee’s
or Award holder’s consent if such amendment is not favorable to the Optionee or
Award holder, or if such amendment has the effect of changing an ISO to a
Non-Qualified Stock Option, except that the consent of the Optionee or Award
holder shall not be required for any amendment made pursuant to Subsection 8(e)(i)(C)
or Section 9 of the Plan, or the Board or the Committee may unilaterally
amend this Plan or any Option Document or Award Agreement, without the consent
of the Optionee or Award holder, if such amendment is necessary or desirable to
comply with the Securities Act, state blue sky laws, or applicable requirements
or any principal securities exchange or market on which shares of the same
class of securities are listed or traded, as applicable.


 





















 


9.                                       Change of Control. In the event of a Change of
Control, the Committee may take whatever actions it deems necessary or
desirable with respect to any of the Options outstanding which need not be
treated identically, including, without limitation, accelerating (a) the
expiration or termination date in the respective Option Documents to a date no
earlier than thirty (30) days after notice of such acceleration is given to the
Optionees, or (b) the exercisability of the Option.


 


A “Change of Control” shall be deemed to have occurred upon
the earliest to occur of the following events:


 


(a)                                  a person or entity other than
Green Equity Investors II, L.P., or any affiliate, related party or entity
controlled by Leonard Green & Partners, L.P., or sponsored fund thereof
(collectively, “GEI II”) owns equity securities having at least 51% of the
voting power of the Company (or any successor or surviving entity);


 


(b)                                 either the Company or Dollar
Financial Group, Inc. becomes a subsidiary of an entity unaffiliated with GEI
II or shall be merged or consolidated into another entity and the voting power
of the surviving entity is owned at least 51% by a person or entity other than
GEI II; or


 


(c)                                  all or substantially all of
the assets of either the Company or Dollar Financial Group, Inc. shall have
been sold to a party or parties the equity of which is owned at least 51% by a
person or entity other than GEI II.


 


10.                                 Adjustments on Changes in
Capitalization.


 


(a)                                  In the event that the
outstanding Shares are changed by reason of a reorganization, merger,
consolidation, recapitalization, reclassification, stock split-up, combination
or exchange of shares and the like (not including the issuance of Common Stock
on the conversion of other securities of the Company which are outstanding on
the date of grant and which are convertible into Common Stock) or dividends
payable in Shares, an equitable adjustment shall be made by the Committee in
the aggregate number of shares available under the Plan and in the number of
Shares and price per Share subject to outstanding Options. Unless the Committee
makes other provisions for the equitable settlement of outstanding Options, if
the Company shall be reorganized, consolidated, or merged with another
corporation or other legal entity, or if all or substantially all of the assets
of the Company shall be sold or exchanged, an Optionee shall at the time of
issuance of the stock under such corporate event be entitled to receive upon
the exercise of his or her Option the same number and kind of shares of stock
or the same amount of property, cash or securities as he or she would have been
ended to receive upon the occurrence of any such corporate event as if he or
she had been, immediately prior to such event, the holder of the number of
Shares covered by his or her Option.


 


(b)                                 Any adjustment under this Section 10
in the number of Shares subject to Options shall apply proportionately to only
the unexercised portion of any Option granted hereunder. If fractions of a
Share would result from any such adjustment, the adjustment shall be revised to
the next lower whole number of Shares.


 


(c)                                  The Committee shall have
authority to determine the adjustments to be made under this Section, and any
such determination by the Committee shall be final, binding and conclusive.


 


11.                                 Stock Appreciation Rights
(SARs).


 


(a)                                  In General. Subject to the terms and
conditions, of the Plan, the Committee may, in its sole and absolute
discretion, grant to an Optionee the right to surrender an Option to the
Company, in whole or in part, and to receive in exchange therefor payment by
the Company of an amount equal to the excess of the Fair Market Value of the
shares of Common Stock subject to such Option, or portion thereof, so
surrendered (determined in the manner described in section 8(b) as of the
date the SARs are exercised) over the exercise price to acquire such shares
(which right shall be referred to as an “SAR”). Except as may otherwise be
provided in an Option Document, such payment may be made, as determined by the
Committee in accordance with subsection 11 (c) below and set forth in the
Option Document,


 





















 


either in shares of Common Stock or in cash or in any
combination thereof.


 


(b)                                 Grant. Each SAR shall relate to a
specific Option granted under the Plan and shall be granted to the Optionee
concurrently with the grant of such Option by inclusion of appropriate
provisions in the Option Document pertaining thereto. The number of SARs
granted to an Optionee shall not exceed the number of shares of Common Stock
which such Optionee is entitled to purchase pursuant to the related Option. The
number of SARs held by an Optionee, shall be reduced by (i) the number of SARs
exercised under the provisions of the Option Document pertaining to the related
Option, and (ii) the number of shares of Common Stock purchased pursuant to the
exercise of the related Option.


 


(c)                                  Payment. The Committee shall have
sole discretion to determine whether payment in respect of SARs granted to any
Optionee shall be made in shares of Common Stock, or in cash, or in a
combination thereof. If payment is made in Common Stock, the number of shares
of Common Stock which shall be issued pursuant to the exercise of SARs shall be
determined by dividing (i) the total number of SARs being exercised, multiplied
by the amount by which the Fair Market Value (as determined under section 8(b))
of a share of Common Stock on the exercise date exceeds the exercise price for
shares covered by the related Option, by (ii) the Fair Market Value of a share
of Common Stock on the exercise date of the SARs. No fractional share of Common
Stock shall be issued on exercise of an SAR; cash may be paid by the Company to
the individual exercising a SAR in lieu of any such fractional share. If
payment on exercise of a SAR is to be made in cash, the individual exercising
the SAR shall receive in respect of each share to which such exercise relates
an amount of money equal to the difference between the Fair Market Value of a
share of Common Stock on the exercise date and the exercise price for shares
covered by the related Option.


 


(d)                                 Limitations. SARs shall be exercisable at
such times and under such terms and conditions as the Committee, in its sole
and absolute discretion, shall determine; provided, however, that an SAR may be
exercised only at such times and by such individual as the related Option under
the Plan and the Option Agreement may be exercised.


 


12.                                 Terms and Conditions of
Awards.
Awards granted pursuant to the Plan shall be evidenced by written Award
Agreements in such form as the Committee shall from time to time approve, which
Award Agreements shall comply with and be subject to the following terms and
conditions and such other terms and conditions which the Committee may from
time to time require which are not inconsistent with the terms of the Plan.


 


(a)                                  Number of Shares. Each Award Agreement shall
state the number of shares of Common Stock to which it pertains.


 


(b)                                 Purchase Price. Each Award Agreement shall
specify the purchase price, if any, which applies to the Award. If the Board
specifies a purchase price, the Grantee shall be required to make payment on or
before the date specified in the Award Agreement. A Grantee shall pay for
Shares (i) in cash, (ii) by certified check payable to the order of the
Company, or (iii) by such other mode of payment as the Committee may approve.


 


(c)                                  Grant. In the case of an Award
which provides for a grant of Shares without any payment by the Grantee, the
grant shall take place on the date specified in the Award Agreement. In the
case of an Award which provides for a payment, the grant shall take place on
the date the initial payment is delivered to the Company, unless the Committee
or the Award Agreement otherwise specifies. Stock certificates evidencing
Shares granted pursuant to an Award shall be issued in the sole name of the
Grantee. Notwithstanding the foregoing, as a precondition to a grant, the
Company may require an acknowledgment by the Grantee as required with respect
to Options under Section 8(c).


 


(d)                                 Conditions. The Committee may specify in
an Award Agreement any conditions under which the Grantee of that Award shall
be required to convey to the Company the Shares covered by the Award. Upon the
occurrence of any such specified condition, the Grantee shall forthwith
surrender and deliver to the Company the certificates evidencing such Shares as
well as completely executed instruments of conveyance. The Committee, in its
discretion, may provide that certificates for Shares 


 





















 


transferred pursuant to an Award be held in escrow by the
Company or an officer of the Company until such time as each and every
condition has lapsed and that the Grantee be required, as a condition of the
Award, to deliver to such escrow agent or Company officer stock powers covering
the Award Shares duly endorsed by the Grantee. Unless otherwise provided in the
Award Agreement, distributions made on Shares held in escrow will be deposited
in escrow, to be distributed to the party becoming entitled to the Shares on
which the distribution was made. Stock certificates evidencing Shares subject
to conditions shall bear a legend to the effect that the Common Stock evidenced
thereby is subject to repurchase or conveyance to the Company in accordance
with an Award made under the Plan and that the Shares may not be sold or
otherwise transferred.


 


(e)                                  Lapse of Conditions. Upon termination or lapse of
each and every forfeiture condition, if any, the Company shall cause
certificates without the legend referring to the Company’s repurchase right
(but with any other legends that may be appropriate) evidencing the Shares
covered by the Award to be issued to the Grantee upon the Grantee’s surrender
of the legended certificates held by him or her to the Company.


 


(f)                                    Rights as Stockholder. Upon payment of the purchase
price, if any, for Shares covered by an Award and compliance with the
acknowledgment requirement of subsection 12(c), the Grantee shall have all
of the rights of a stockholder with respect to the Shares covered thereby,
including the right to vote the Shares and receive all dividends and other
distributions paid or made with respect thereto, except to the extent otherwise
provided by the Committee or in the Award Agreement.


 


13.                                 Amendment of the Plan. The Board of Directors of
the Company may amend the Plan from time to time in such manner as it may deem
advisable. Nevertheless, the Board of Directors of the Company may not change
the class of individuals eligible to receive an ISO or increase the maximum
number of Shares as to which Options may be granted without obtaining approval,
within twelve months before or after such action, by the stockholders in the
manner required by state law.


 


14.                                 No Commitment to Retain. The grant of an Option or
Award pursuant to the Plan shall not be construed to imply or to constitute
evidence of any agreement, express or implied, on the part of the Company or
any Affiliate to retain the Optionee or Grantee as an employee, consultant or
advisor of the Company or any Affiliate, as a member of the Board of Directors
or in any other capacity. No person shall have any right or claim whatever,
directly, indirectly or by implication, to receive an award, nor any expectancy
thereof, unless and until an award in fact shall have been made to such person
by the Committee as provided herein. The award to any person hereunder at any
time shall not create any right or implication that any other or further award
may or shall be made at another time. Each award hereunder shall be separate
and distinct from every other award and shall not be construed as a part of any
continuing series of awards or compensation.


 


15.                                 Withholding of Taxes. In connection with any event
relating to an Option or Award, the Company shall have the right to (a) require
the recipient to remit or otherwise make available to the Company an amount
sufficient to satisfy any federal, state and/or local withholding tax
requirements prior to the delivery or transfer of any certificate or
certificates for such Shares or (b) take whatever other action it deems
necessary to protect its interests with respect to tax liabilities. The Company’s
obligations under the Plan shall be conditioned on the Optionee’s or Grantees
compliance, to the Company’s satisfaction, with any withholding requirement.