As filed with the Securities and Exchange Commission
on June 21, 1994.
Registration No. 33-___________
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- -------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
OSHMAN'S SPORTING GOODS, INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 2302 Maxwell Lane 74-1031691
(State or other Houston, Texas 77023 (I.R.S. Employer
jurisdiction of (Address of principal Identification No.)
incorporation or executive offices)
organization) (Zip Code)
---------------------------
OSHMAN'S SPORTING GOODS, INC.
1994 OMNIBUS PLAN
(Full title of the plan)
-----------------------------
R. L. BOCKART
2302 Maxwell Lane
Houston, Texas 77023
(Name and address of agent for service)
(713) 928-3171
(Telephone number, including area code, of agent for
service)
------------------------------
Copy to:
Diana M. Hudson
Mayor, Day, Caldwell & Keeton, L.L.P.
1900 NCNB Center
700 Louisiana
Houston, Texas 77002
(713) 225-7100
-------------------------------
CALCULATION OF REGISTRATION FEE
Title of Amount to be Proposed maximum
securities to be registered registered offering price per
share(1)
- ------------------------------------------------------------------
Common Stock, par value $1.00 500,000 $7.0625
per share
Proposed maximum Amount of registration
aggregate offering price (1) fee
- ------------------------------------------------------------------
$3,531,250 $1,218
(1) Estimated solely for the purpose of calculating the
registration fee pursuant to Rule 457(c) based on the average
of the high and low per share sales prices of the Company's
Common Stock on June 14, 1994 as reported on the NASDAQ
National Market System.
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<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. PLAN INFORMATION*
Item 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL
INFORMATION*
* Information required by Part I to be contained in the
Section 10(a) prospectus is omitted from the Registration Statement
in accordance with Rule 428 under the Securities Act of 1933 (the
"Securities Act") and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Securities and Exchange
Commission are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the
year ended January 29, 1994 (File No. 0-5648);
(b) All other reports filed pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934 (the
"Exchange Act") since the end of the fiscal year covered
by the document referred to in (a) above; and
(c) The description of the Company's Common Stock
contained in the registration statement pursuant to which
the Company's shares of Common Stock were registered under
Section 12(g) of the Exchange Act, and any amendments or
reports filed for the purpose of updating such
description.
All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment which indicates that all
securities offered hereby have been sold or which deregisters all
securities remaining unsold, shall be deemed to be incorporated by
reference herein and to be a part hereof from the date of the
filing of such documents.
Item 4. DESCRIPTION OF SECURITIES
Not applicable.
<PAGE> - 1 -
Item 5. INTEREST OF NAMED EXPERTS AND COUNSEL
The legality of the Common Stock offered hereby is being
passed upon for the Company by Mayor, Day, Caldwell & Keeton,
L.L.P., 700 Louisiana, Suite 1900, Houston, Texas 77002.
The Consolidated Financial Statements in the Company's Annual
Report on Form 10-K for the fiscal year ended January 29, 1994,
incorporated by reference in this Registration Statement, have been
so incorporated in reliance on the report of Grant Thornton,
independent accountants, given on the authority of such firm as
experts in accounting and auditing.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Bylaws of the Company provide that the Company shall
indemnify its directors, in their capacities as such, to the full
extent permitted by law and may so indemnify its officers, agents
and employees.
Section 145 of Chapter 1 of Title 8 of the Delaware Code
provides as follows:
Section 145. Indemnification of officers, directors,
--------------------------------------
employees and agents; insurance.
-------------------------------
(a) A corporation shall have the power to indemnify any person
who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other
than an action by or in the right of the corporation) by reason of
the fact that he is or was a director, officer, employee or agent
of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him
in connection with such action, suit or proceeding if he acted in
good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect
to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. The termination of any action,
suit or proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good
faith and in a manner which he reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect
to any criminal action or proceeding, had reasonable cause to
believe that his conduct was unlawful.
(b) A corporation shall have the power to indemnify any
person who was or is a party or is threatened to be made a party to
any threatened, pending or completed action or suit by or in the
right of the corporation to procure a judgment in its favor by
reason of the fact that he is or was a director, officer, employee
or agent of the corporation, or is or was serving at the request of
the corporation as a director, officer, employee, or agent of
another corporation, partnership, joint venture, trust or other
enterprise against expenses (including attorneys' fees) actually
and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith in a
manner he reasonably believed to be in or not opposed to the best
interests of the corporation and except that no indemnification
shall be made in respect of any claim, issue or matter as to which
such person shall have been adjudged to be liable to the
- 2 -
corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such
person if fairly and reasonably entitled to indemnity for such
expenses which the Court of Chancery or such other court shall deem
proper.
(c) To the extent that a director, officer, employee or agent
of a corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in
subsections (a) and (b), or in defense of any claim, issue or
matter therein, he shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by him in
connection therewith.
(d) Any indemnification under subsections (a) and (b) of this
section (unless ordered by a court) shall be made by the
corporation only as authorized in the specific case upon a
determination that indemnification of the director, officer,
employee or agent is proper in the circumstances because he has met
the applicable standard of conduct set forth in subsections (a) and
(b) of this section. Such determination shall be made (1) by the
board of directors by a majority vote of a quorum consisting of
directors who were not parties to such action, suit or proceeding,
or (2) if such a quorum is not obtainable, or, even if obtainable
a quorum of disinterested directors so directs, by independent
legal counsel in a written opinion, or (3) by the stockholders.
(e) Expenses (including attorneys' fees) incurred by an
officer or director in defending any civil, criminal,
administrative, or investigative action, suit or proceeding may be
paid by the corporation in advance of the final disposition of such
action, suit or proceeding upon receipt of an undertaking by or on
behalf of such director or officer to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified
by the corporation as authorized in this Section. Such expenses
(including attorneys' fees) incurred by other employees and agents
may be so paid upon such terms and conditions, if any, as the board
of directors deems appropriate.
(f) The indemnification and advancement of expenses provided
by, or granted pursuant to, the other subsections of this Section
shall not be deemed exclusive of any other rights to which those
seeking indemnification or advancement of expenses may be entitled
under any by-law, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in his official capacity
and as to action in another capacity while holding such office.
(g) A corporation shall have power to purchase and maintain
insurance on behalf of any person who is or was a director,
officer, employee or agent of the corporation, or is or was serving
at the request of the corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust
or other enterprise against any liability asserted against him and
incurred by him in any such capacity, or arising out of his status
as such, whether or not the corporation would have the power to
indemnify him against such liability under the provisions of this
Section.
(h) For purposes of this Section, references to "the
corporation" shall include, in addition to the resulting
corporation, any constituent corporation (including any constituent
of a
- 3 -
constituent) absorbed in a consolidation or merger which, if
its separate existence had continued, would have had power and
authority to indemnify its directors, officers, and employees or
agents, so that any person who is or was a director, officer,
employee or agent of such constituent corporation, or is or was
serving at the request of such constituent corporation as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, shall stand
in the same position under the provisions of this Section with
respect to the resulting or surviving corporation as he would have
with respect to such constituent corporation if its separate
existence had continued.
(i) For purposes of this Section, references to "other
enterprises" shall include employee benefit plans; references
to "fines" shall include any excise taxes assessed on a person
with respect to an employee benefit plan; and references to
"serving at the request of the corporation" shall include any
service as a director, officer, employee or agent of the
corporation which imposes duties on, or involves services by,
such director, officer, employee, or agent with respect to an
employee benefit plan, its participants or beneficiaries; and
a person who acted in good faith and in a manner he reasonably
believed to be in the interest of the participants and
beneficiaries of any employee benefit plan shall be deemed to
have acted in a manner "not opposed to the best interests of
the corporation" as referred to in this Section.
(j) The indemnification and advancement of expenses
provided by or granted pursuant to this Section shall, unless
otherwise provided when authorized or ratified, continue as to
a person who has ceased to be a director, officer, employee or
agent and shall inure to the benefit of the heirs, executors
and administrators of such a person.
The Company has in effect policies of insurance indemnifying
its directors and officers against certain of the liabilities which
they may incur in acting in their capacities as such, all within
specified limits.
Insofar as the indemnification for liabilities arising under
the Securities Act may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in
the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that
a claim for indemnification against such liabilities (other than
the payment by the Registrant of expenses incurred or paid by a
director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted
by such director, officer or controlling person in connection with
the securities being registered, the Registrant will, unless in the
opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
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Item 8. EXHIBITS
Reference is made to the Exhibit Index which immediately
precedes the exhibits filed with this Registration Statement.
Item 9. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this
Registration Statement:
(i) To include any prospectus required by section
10(a)(3) of the Securities Act of 1933, unless the
information required to be included in a post-effective
amendment is contained in a periodic report filed by the
Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 which is incorporated by
reference in this Registration Statement;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the
Registration Statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in the Registration Statement,
unless the information required to be included in a post-
effective amendment is contained in a periodic report
filed by the Registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934
which is incorporated by reference in this Registration
Statement;
(iii) To include any material information with
respect to the plan of distribution not previously
disclosed in the Registration Statement or any material
change to such information in the Registration Statement.
(2) That for the purpose of determining any liability
under the Securities Act, each such post-effective amendment
shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of the
offering.
The undersigned Registrant hereby undertakes that, for the
purpose of determining any liability under the Securities Act, each
filing of the Registrant's annual report pursuant to section 13(a)
or section 15(d) of the Exchange Act that is incorporated by
reference in the Registration Statement shall be deemed to be a new
registration statement relating to the securities offered herein,
and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
See Item 6, "Indemnification of Directors and Officers,"
for the undertaking pursuant to Item 512(h) of Regulation S-K.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the Registrant certifies that it has reasonable grounds to believe,
that it meets all of the requirements for filing on Form S-8 and
has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City
of Houston, State of Texas, on the 17th day of June, 1994.
OSHMAN'S SPORTING GOODS, INC.
By/s/ ALVIN N. LUBETKIN
--------------------------
Alvin N. Lubetkin
Vice Chairman of the Board,
President and Chief Executive
Officer
POWER OF ATTORNEY
The undersigned directors and officers of Oshman's Sporting
Goods, Inc. do hereby constitute and appoint Alvin N. Lubetkin and
William N. Anderson or either of them, our true and lawful
attorneys-in-fact and agents to do any and all acts and things in
our name and behalf in our capacities as directors and officers,
and to execute any and all instruments for us and in our names in
the capacities indicated below which such person or persons may
deem necessary or advisable to enable Oshman's Sporting Goods, Inc.
to comply with the Securities Act of 1933, as amended, and any
rules, regulations and requirements of the Securities and Exchange
Commission, in connection with this Registration Statement,
including specifically, but not limited to, power and authority to
sign for us, or any of us, in the capacities indicated below any
and all amendments (including post-effective amendments) hereto and
we do hereby ratify and confirm all that such person or persons
shall do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- -----
<S> <C> <C>
/s/ MARILYN OSHMAN Chairman of the Board June 17, 1994
- ------------------- of Directors
Marilyn Oshman
/s/ ALVIN N. LUBETKIN Vice Chairman of the June 17, 1994
- --------------------- Board, President, Chief
Alvin N. Lubetkin Executive Officer
(Principal Executive
Officer) and Director
/s/ EDWARD R. CARLIN Executive Vice President June 17, 1994
- --------------------- and Chief Financial Officer
Edward R. Carlin (Principal Financial and
Accounting Officer)
/s/ MARVIN ARONOWITZ Director June 17, 1994
- ----------------------
Marvin Aronowitz
/s/ FRED M. GERSON Director June 17, 1994
- ----------------------
Fred M. Gerson
/s/ STEWART ORTON Director June 17, 1994
- ----------------------
Stewart Orton
/s/ DOLPH B. H. SIMON
- ----------------------
Dolph B. H. Simon Director June 17, 1994
</TABLE>
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<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------------------------
OSHMAN'S SPORTING GOODS, INC.
2302 Maxwell Lane
Houston, Texas 77023
E X H I B I T S
<PAGE>
OSHMAN'S SPORTING GOODS, INC.
INDEX TO EXHIBITS
-----------------
Exhibit No. Description
4.1 Certificate of Incorporation of Oshman's Sporting
Goods, Inc., as amended to date. (Filed as
Exhibit 4.1 to the Company's Form 10-K for the
fiscal year ended January 31, 1987 and
incorporated herein by reference.)
4.2 Bylaws of Oshman's Sporting Goods, Inc., as
amended to date. (Filed as Exhibit 4.2 to the
Company's Form 10-K for the fiscal year ended
January 31, 1987 and incorporated herein by
reference.)
4.3 Oshman's Sporting Goods, Inc. 1994 Omnibus Plan.
5 Opinion of Mayor, Day, Caldwell & Keeton,
L.L.P.
23.1 Consent of Grant Thornton.
23.2 Consent of Mayor, Day, Caldwell & Keeton, L.L.P.
(included in Exhibit 5).
24 Powers of Attorney (included on page 6 of this
Registration Statement).
OSHMAN'S SPORTING GOODS, INC.
1994 OMNIBUS PLAN
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
PAGE
<C> <S> <C>
SECTION 1. GENERAL PROVISIONS RELATING TO PLAN GOVERNANCE,
COVERAGE AND BENEFITS. . . . . . . . . . . . . . . . 1
1.1 Purpose. . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Definitions. . . . . . . . . . . . . . . . . . . . . 1
1.3 Administration . . . . . . . . . . . . . . . . . . . 4
1.4 Shares of Common Stock Subject to the Plan . . . . . 5
1.5 Participation. . . . . . . . . . . . . . . . . . . . 6
1.6 Incentive Awards . . . . . . . . . . . . . . . . . . 6
SECTION 2. STOCK OPTIONS AND STOCK APPRECIATION RIGHTS. . . . 7
2.1 Grant of Options . . . . . . . . . . . . . . . . . . 7
2.2 Option Terms . . . . . . . . . . . . . . . . . . . . 7
2.3 Option Exercises . . . . . . . . . . . . . . . . . . 8
2.4 Stock Appreciation Rights in Tandem with Options . . 8
2.5 Stock Appreciation Rights Independent of Options . . 9
2.6 Reload Options . . . . . . . . . . . . . . . . . . . 9
2.7 Supplemental Payment on Exercise of Nonqualified
Stock Options or Stock Appreciation Rights.. . . . . 10
SECTION 3. RESTRICTED STOCK . . . . . . . . . . . . . . . . . 10
3.1 Award of Restricted Stock. . . . . . . . . . . . . . 10
3.2 Restrictions . . . . . . . . . . . . . . . . . . . . 10
3.3 Restriction Period . . . . . . . . . . . . . . . . . 11
3.4 Delivery of Shares of Common Stock . . . . . . . . . 11
3.5 Supplemental Payment on Vesting of Restricted
Stock. . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 4. PERFORMANCE UNITS AND PERFORMANCE SHARES . . . . . 12
4.1 Performance Based Awards . . . . . . . . . . . . . . 12
4.2 Supplemental Payment on Vesting of Performance
Units or Performance Shares. . . . . . . . . . . . . 13
SECTION 5. PROVISIONS RELATING TO PLAN PARTICIPATION. . . . . 13
5.1 Plan Conditions. . . . . . . . . . . . . . . . . . . 13
5.2 Transferability. . . . . . . . . . . . . . . . . . . 14
5.3 Rights as a Stockholder. . . . . . . . . . . . . . . 14
5.4 Listing and Registration of Shares of Common
Stock. . . . . . . . . . . . . . . . . . . . . . . . 15
5.5 Change in Stock and Adjustments. . . . . . . . . . . 15
5.6 Termination of Employment, Death, Disability and
Retirement . . . . . . . . . . . . . . . . . . . . . 16
5.7 Changes in Control . . . . . . . . . . . . . . . . . 17
- i -
5.8 Amendments to Incentive Awards . . . . . . . . . . . 18
5.9 Exchange of Incentive Awards . . . . . . . . . . . . 18
5.10 Financing. . . . . . . . . . . . . . . . . . . . . . 19
SECTION 6. MISCELLANEOUS. . . . . . . . . . . . . . . . . . . 19
6.1 Effective Date and Grant Period. . . . . . . . . . . 19
6.2 Funding. . . . . . . . . . . . . . . . . . . . . . . 19
6.3 Withholding Taxes. . . . . . . . . . . . . . . . . . 19
6.4 Conflicts with Plan. . . . . . . . . . . . . . . . . 20
6.5 No Guarantee of Tax Consequences . . . . . . . . . . 20
6.6 Severability . . . . . . . . . . . . . . . . . . . . 20
6.7 Gender, Tense and Headings . . . . . . . . . . . . . 20
6.8 Amendment and Termination. . . . . . . . . . . . . . 21
6.9 Governing Law. . . . . . . . . . . . . . . . . . . . 21
6.10 Section 16 Compliance. . . . . . . . . . . . . . . . 21
</TABLE>
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<PAGE>
OSHMAN'S SPORTING GOODS, INC.
1994 OMNIBUS PLAN
SECTION 1. GENERAL PROVISIONS
RELATING TO PLAN GOVERNANCE, COVERAGE AND BENEFITS
1.1 PURPOSE
The purpose of the Oshman's Sporting Goods, Inc. 1994 Omnibus
Plan (the "Plan") is to foster and promote the long-term financial
success of Oshman's Sporting Goods, Inc. (the "Company") and
materially increase stockholder value by: (a) encouraging the
long-term commitment of selected key employees (defined in Section
1.2(j) below), (b) motivating superior performance of key employees
by means of long-term performance related incentives,
(c) encouraging and providing key employees with a formal program
for obtaining an ownership interest in the Company, (d) attracting
and retaining outstanding key employees by providing incentive
compensation opportunities competitive with other major companies
and (e) enabling participation by key employees in the long-term
growth and financial success of the Company. The Plan provides for
payment of various forms of incentive compensation and accordingly
is not intended to be a plan that is subject to Parts 1 through 4
of Subtitle B of Title I of the Employee Retirement Income Security
Act of 1974, as amended, and shall be administered accordingly.
1.2 DEFINITIONS
The following terms shall have the meanings set forth below:
(a) Appreciation. The difference between the option
exercise price per share of the Option to which a Tandem SAR
relates and the Fair Market Value of a share of Common Stock
on the date of exercise of the Tandem SAR.
(b) Board. The Board of Directors of the Company.
(c) Change in Control. Any of the events described in
and subject to Section 5.7.
(d) Code. The Internal Revenue Code of 1986, as
amended.
(e) Committee. The committee, which shall be comprised
of three or more members of the Board who are disinterested
persons as defined under rules and regulations promulgated
under Section 16(b) of the Exchange Act and who are outside
directors as defined in Section 162(m) of the Code and the
regulations promulgated thereunder, appointed by the Board to
administer the Plan, which Board shall have the power to fill
vacancies on the Committee arising by resignation, death,
removal or otherwise.
(f) Common Stock. The common stock of Oshman's Sporting
Goods, Inc., $1.00 par value, per share.
<PAGE>
(g) Company. Oshman's Sporting Goods, Inc.
(h) Covered Employee. Any Employee of the Company, any
Parent or Subsidiary if, as of the close of the taxable year,
such Employee is the chief executive officer of such entity or
an individual acting in such capacity, or the total
compensation of such Employee for the taxable year is required
to be reported to stockholders under the Exchange Act by
reason of such Employee being among the four (4) highest
compensated officers for the taxable year (other than the
chief executive officer).
(i) Disability. Any complete and permanent disability
as defined in Section 22(e)(3) of the Code.
(j) Employee. Any common-law employee of the Company or
any Parent or Subsidiary, who, in the opinion of the
Committee, is one of a select group of executive officers,
other officers or other key management personnel of the
Company or any Parent or Subsidiary who is in a position to
contribute materially to the continued growth and development
and to the continued financial success of the Company or any
Parent or Subsidiary, including executive officers and
officers who are members of the Board.
(k) Exchange Act. The Securities Exchange Act of 1934,
as amended.
(l) Fair Market Value. The closing sales price of
Common Stock as reported on the NASDAQ National Market System
or if the Common Stock is listed on a national securities
exchange, the closing sales price as reported by such exchange
on any relevant date for valuation, or, if there is no such
sale on such date, the applicable prices as so reported on the
nearest preceding date upon which such sale took place. In
the event the shares of Common Stock are no longer listed on
a national securities exchange, the Fair Market Value of such
shares shall be determined by the Committee in its sole
discretion.
(m) Grantee. Any Employee who in the opinion of the
Committee performs significant services for the benefit of the
Company and who is granted an Incentive Award under the Plan.
(n) Incentive Award. Any incentive award, individually
or collectively, as the case may be, including any
Nonqualified Stock Option, Incentive Stock Option, Stock
Appreciation Right, Restricted Stock Award, Performance Unit,
Performance Share or other stock-based award, as well as any
Supplemental Payment, granted under the Plan.
(o) Incentive Plan Agreement. The written agreement
entered into between the Company and the Grantee pursuant to
which an Incentive Award shall be made under the Plan.
- 2 -
(p) Incentive Stock Option. A stock option granted by
the Committee to a Grantee under the Plan which is designated
by the Committee as an Incentive Stock Option and intended to
qualify as an Incentive Stock Option under Section 422 of the
Code.
(q) Independent SAR. A Stock Appreciation Right
described in Section 2.5.
(r) Nonqualified Stock Option. A stock option granted
by the Committee to a Grantee under the Plan, which is not
designated by the Committee as an Incentive Stock Option.
(s) Option. An Incentive Stock Option or Nonqualified
Stock Option (including reload Options described in Section
2.6) granted by the Committee to a Grantee under the Plan.
(t) Parent Corporation. Any corporation (whether now or
hereafter existing) which constitutes a "parent" of the
Company, as defined in Section 424(e) of the Code.
(u) Performance Period. A period of time determined by
the Committee over which performance is measured for the
purpose of determining a Grantee's right to and the payment
value of any Performance Units, Performance Shares or other
stock-based awards.
(v) Performance Share or Performance Unit. An Incentive
Award representing a contingent right to receive cash or
shares of Common Stock (which may be Restricted Stock) at the
end of a Performance Period and which, in the case of
Performance Shares, is denominated in Common Stock, and, in
the case of Performance Units, is denominated in cash values.
(w) Plan. The Oshman's Sporting Goods, Inc. 1994
Omnibus Plan.
(x) Restricted Stock. Shares of Common Stock issued or
transferred to a Grantee subject to the Restrictions set forth
in Section 3.2 hereof.
(y) Restricted Stock Award. An authorization by the
Committee to issue or transfer Restricted Stock to a Grantee.
(z) Restriction Period. The period of time determined
by the Committee during which Restricted Stock is subject to
the restrictions under the Plan.
(aa) Retirement. The termination of employment from the
Company or any Parent or Subsidiary constituting retirement as
determined by the Committee.
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(bb) Spread. The difference between the exercise price
per share specified in any Independent SAR grant and the Fair
Market Value of a share of Common Stock on the date of
exercise of the Independent SAR.
(cc) Stock Appreciation Right. A Tandem SAR described in
Section 2.4 or an Independent SAR described in Section 2.5.
(dd) Subsidiary. Any corporation (whether now or
hereafter existing) which constitutes a "subsidiary" of the
Company, as defined in Section 424(f) of the Code.
(ee) Supplemental Payment. Any amounts described in
Sections 1.6, 2.7, 3.5 and/or 4.2 dedicated to payment of any
federal income taxes that are payable on an Incentive Award as
determined by the Committee.
(ff) Tandem SAR. A Stock Appreciation Right described in
Section 2.4.
(gg) Termination for Cause. An employee shall be deemed
Terminated for Cause if he or she is terminated as a result of
a breach of his or her written employment agreement, in the
event of a written employment agreement, or if the Committee
determines that such Employee is being terminated as a result
of misconduct, dishonesty, disloyalty, disobedience or action
that might reasonably injure the Company or its Subsidiaries
or their business interests or reputation.
1.3 ADMINISTRATION
(a) Committee Powers. The Plan shall be administered by the
Committee which shall have full power and authority to:
(i) designate Grantees; (ii) determine the Incentive Awards to be
granted to Grantees; (iii) subject to Section 1.4 of the Plan,
determine the Common Stock (or securities convertible into Common
Stock) to be covered by Incentive Awards and in connection
therewith, to reserve shares of Common Stock as needed in order to
cover grants of Incentive Awards; (iv) determine the terms and
conditions of any Incentive Award; (v) determine whether, to what
extent, and under what circumstances Incentive Awards may be
settled or exercised in cash, Common Stock, other securities, or
other property, or canceled, substituted, forfeited or suspended,
and the method or methods by which Incentive Awards may be settled,
exercised, canceled, substituted, forfeited or suspended; (vi)
interpret and administer the Plan and any instrument or agreement
relating to, or Incentive Award made under, the Plan; (vii)
establish, amend, suspend or waive such rules and guidelines;
(viii) appoint such agents as it shall deem appropriate for the
administration of the Plan; provided, however that the Committee
shall not delegate any of the power or authority set forth in (i)
through (vii) above; and (ix) make any other determination and take
any other action that it deems necessary or desirable for such
administration. All designations, determinations, interpretations
and other decisions with respect to the Plan or any Incentive Award
shall be within the sole discretion of the Committee and shall be
final, conclusive and binding upon all persons, including the
Company or any
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Parent or Subsidiary, any Grantee, any holder or beneficiary of any
Incentive Award, any stockholder and any Employee.
(b) No Liability. No member of the Committee shall be liable
for any action or determination made in good faith by the Committee
with respect to this Plan or any Incentive Award under this Plan,
and to the fullest extent permitted by the Company's Bylaws, the
Company shall indemnify each member of the Committee.
(c) Meetings. The Committee shall designate a chairman from
among its members, who shall preside at all of its meetings, and
shall designate a secretary, without regard to whether that person
is a member of the Committee, who shall keep the minutes of the
proceedings and all records, documents, and data pertaining to its
administration of the Plan. Meetings shall be held at such times
and places as shall be determined by the Committee. The Committee
may take any action otherwise proper under the Plan by the
affirmative vote, taken with or without a meeting, of a majority of
its members.
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1.4 SHARES OF COMMON STOCK SUBJECT TO THE PLAN
(a) Common Stock Authorized. Subject to adjustment under
Section 5.5, the aggregate number of shares of Common Stock
available for granting Incentive Awards under the Plan shall be
equal to 500,000 shares of Common Stock. If any Incentive Award
shall expire or terminate for any reason, without being exercised
or paid, shares of Common Stock subject to such Incentive Award
shall again be available for grant in connection with grants of
subsequent Incentive Awards.
(b) Common Stock Available. The Common Stock available for
issuance or transfer under the Plan shall be made available from
shares now or hereafter held in the treasury of the Company or from
authorized but unissued shares or from shares to be purchased or
acquired by the Company. No fractional shares shall be issued
under the Plan; payment for fractional shares shall be made in
cash.
(c) Incentive Award Adjustments. Subject to the limitations
set forth in Sections 5.8 and 6.8, the Committee may make any
adjustment in the exercise price or the number of shares subject
to, or the terms of, any Incentive Award other than an Incentive
Stock Option. Such adjustment shall be made by amending,
substituting or canceling and regranting such Incentive Award with
the inclusion of terms and conditions that may differ from the
terms and conditions of the original Incentive Award. If such
action is effected by amendment, the effective date of such
amendment shall be the date of the original grant. In addition,
any such action shall be effective only to the extent that such
action would not cause (i) the holder of the Incentive Award to
lose the protection of Section 16(b) of the Exchange Act and the
rules and regulations promulgated thereunder, or (ii) an Incentive
Award that is designed to qualify payments thereunder as
performance based compensation as defined in Section 162(m) of the
Code to fail to qualify as such performance based compensation.
(d) Special Limitation. In no event shall the number of
shares of Common Stock subject to Options granted with an exercise
price at least equal to the Fair Market Value of the underlying
shares of Common Stock on the date of grant, plus the number of
shares underlying Stock Appreciation Rights awarded to any one
Grantee who is a Covered Employee during the period from April 22,
1994 through January 31, 2004, exceed two hundred thousand
(200,000) shares of the Common Stock authorized under Section
1.4(a). In all events, determinations under the preceding sentence
shall be made in a manner that is consistent with Section 162(m) of
the Code and regulations promulgated thereunder. Except as
otherwise provided in the two immediately preceding sentences, the
provisions of this Section 1.4(d) shall not limit the number of
shares of Common Stock that otherwise may be awarded to any one
Grantee who is a Covered Employee under any form of Incentive Award
authorized under the Plan.
1.5 PARTICIPATION
(a) Eligibility. The Committee shall from time to time
designate those Employees, if any, to be granted Incentive Awards
under the Plan, the type of awards granted, the number of shares,
options, rights or units, as the case may be, which shall be
granted to each such Employee, and any other terms or conditions
relating to the awards as it may deem appropriate, consistent with
the provisions of the Plan. An Employee who has been granted an
Incentive Award may, if otherwise eligible, be granted additional
Incentive Awards at any time.
(b) Incentive Stock Option Eligibility. No Employee will be
eligible for the grant of any Incentive Stock Option who owns or
would own immediately before the grant of such Incentive Stock
Option, directly or indirectly, stock possessing more than ten
percent of the total combined voting power of all classes of stock
of the Company, a Subsidiary or a Parent Corporation. This
restriction does not apply if, at the time such Incentive Stock
Option is granted, the Incentive Stock Option exercise price is at
least 110% of the Fair Market Value on the date of grant and the
Incentive Stock Option by its terms is not exercisable after the
expiration of five years from the date of grant. For the purpose
of the immediately preceding sentence, the attribution rules of
Section 424(d) of the Code shall apply for the purpose of
determining an Employee's percentage ownership.
(c) No Non-Employee Board Participation. In no event may any
member of the Board who is not an Employee be granted an Incentive
Award under the Plan.
1.6 INCENTIVE AWARDS
(a) General Rules. The forms of Incentive Awards under this
Plan are Stock Options, Stock Appreciation Rights and Supplement
Payments as described in Section 2, Restricted Stock and Supplement
Payments as described in Section 3, Performance Units or
Performance Shares and Supplement Payments as described in Section
4, and other stock-based grants as described in this Section 1.6.
Such other stock-based grants will either be issued (a) for no
consideration other than services actually rendered (in the case of
authorized and unissued shares) or to be rendered, (b) for
consideration equal to the amount (such as the par value of such
shares)
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required by applicable law to be received by the Company in order
to assure compliance with applicable state law or (c) for
consideration (other than services rendered or to be rendered)
equal to the Fair Market Value of the Common Stock covered by such
grant on the date of grant. The Committee may specify such
criteria or periods or goals for payment to the Grantee as it shall
determine, and the extent to which such criteria or periods or
goals have been met shall be conclusively determined by the
Committee. Other stock-based grants may be paid in shares of
Common Stock or other consideration related to such shares or in a
single payment or in installments as specified by the grant and may
be payable on such dates as determined by the Committee and
specified by the grant. The other terms and conditions of other
stock-based grants shall be determined by the Committee, including
provision for a Supplemental Payment.
(b) Special Rule. Except as may otherwise be provided under
an Incentive Plan Agreement authorized by the Committee under
Section 5.6, no Incentive Award granted pursuant to this Plan shall
vest in less than six (6) months after the date the Incentive Award
is granted.
SECTION 2. STOCK OPTIONS AND STOCK APPRECIATION RIGHTS
2.1 GRANT OF OPTIONS
Subject to Section 1.4(d), the Committee is authorized to
grant Options to Grantees in accordance with the terms and
conditions required pursuant to this Plan and with such additional
terms and conditions, not inconsistent with the provisions of the
Plan, as the Committee shall determine.
2.2 OPTION TERMS
(a) Exercise Price. The exercise price per share of Common
Stock under each Option shall be determined by the Committee;
provided, however, that in the case of Incentive Stock Options such
purchase price shall not be less than one hundred percent (100%) of
the Fair Market Value per share of such stock on the date the
Incentive Stock Option is granted, as determined by the Committee.
(b) Term. The Committee shall fix the term of each Option
which shall be not more than ten years from the date of grant. In
the event no term is fixed, such term shall be ten years from the
date of grant.
(c) Exercise. The Committee shall determine the time or
times at which an Option may be exercised in whole or in part.
(d) Incentive Stock Options. Anything in the Plan
notwithstanding, the aggregate Fair Market Value (determined as of
the time the Incentive Stock Option is granted) of the shares of
Common Stock with respect to which Incentive Stock Options are
exercisable for the first time by any Grantee during any single
calendar year (under the Plan and any other Incentive Stock
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Option plans of the Company and its Subsidiaries or any Parent
Corporation) shall not exceed the sum of $100,000 (or such other
limit as may be required by the Code).
2.3 OPTION EXERCISES
(a) Method of Exercise. To purchase shares under any Option
granted under the Plan, Grantees must give notice in writing to the
Company of their intention to purchase and specify the number of
shares as to which they intend to exercise their Option. Upon the
date or dates specified for the completion of the purchase of the
shares, the purchase price will be payable in full. The purchase
price may be paid in cash or an equivalent acceptable to the
Committee. At the discretion of the Committee and provided such
payment can be effected without causing the Grantee to incur
liability under Section 16(b) of the Exchange Act, the exercise
price may be paid by the assignment and delivery to the Company of
shares of Common Stock owned by the Grantee or a combination of
cash and such shares equal in value to the exercise price. Any
shares so assigned and delivered to the Company in payment or
partial payment of the purchase price shall be valued at their Fair
Market Value on the exercise date. In addition, at the request of
the Grantee and to the extent permitted by applicable law, the
Company in its discretion may selectively approve "cashless
exercise" arrangements with a brokerage firm under which such
brokerage firm, on behalf of the Grantee, shall pay to the Company
the exercise price of the Options being exercised, and the Company,
pursuant to an irrevocable notice from the Grantee, shall promptly
deliver the shares being purchased to such firm.
(b) Notification with Respect to Incentive Stock Options.
Notwithstanding any other provision of the Plan, Grantees who
dispose of shares of Common Stock acquired on the exercise of an
Incentive Stock Option by sale or exchange either (i) within two
years after the date of the grant of the Incentive Stock Option
under which the stock was acquired or (ii) within one year after
the transfer of such shares to them pursuant to exercise shall
notify the Company of such disposition and of the amount realized
and of their adjusted basis in such shares.
(c) Proceeds. The proceeds received by the Company from the
sale of shares of Common Stock pursuant to Options exercised under
the Plan will be used for general corporate purposes.
2.4 STOCK APPRECIATION RIGHTS IN TANDEM WITH OPTIONS
(a) General Provisions. Subject to Section 1.4(d), the
Committee may, at the time of grant of an Option, grant Stock
Appreciation Rights ("Tandem SARs") with respect to all or any
portion of the shares of Common Stock covered by such Option. The
exercise price per share of Common Stock of a Tandem SAR shall be
fixed in the Incentive Plan Agreement and shall not be less than
one hundred percent (100%) of the Fair Market Value of a share of
Common Stock on the date of the grant of the Option to which it
relates. A Tandem SAR may be exercised at any time the Option to
which it relates is then exercisable, but only to the extent the
Option to which it relates is exercisable, and shall be subject to
the conditions applicable to
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such Option. When a Tandem SAR is exercised, the Option to which
it relates shall terminate to the extent of the number of shares
with respect to which the Tandem SAR is exercised. Similarly, when
an Option is exercised, the Tandem SARs relating to the shares
covered by such Option exercise shall terminate. Any Tandem SAR
which is outstanding on the last day of the term of the related
Option shall be automatically exercised on such date for cash
without any action by the Grantee.
(b) Exercise. Upon exercise of a Tandem SAR, the holder
shall receive, for each share with respect to which the Tandem SAR
is exercised, an amount equal to the Appreciation. The
Appreciation shall be payable in cash, Common Stock, or a
combination of both, at the option of the Committee, and shall be
paid within 30 calendar days of the exercise of the Tandem SAR.
2.5 STOCK APPRECIATION RIGHTS INDEPENDENT OF OPTIONS
(a) Grant. Subject to Section 1.4(d) and the following
provisions, all Stock Appreciation Rights granted independent of
Options ("Independent SARs") under the Plan to Grantees shall be in
such form and shall have such terms and conditions as the
Committee, in its discretion, may from time to time determine
consistent with the Plan.
(b) Exercise Price. The exercise price per share of Common
Stock shall be not less than one hundred percent (100%) of the Fair
Market Value of a share of Common Stock on the date of the grant.
(c) Term. The term of an Independent SAR shall be determined
by the Committee, and, notwithstanding any other provision of this
Plan, no Independent SAR shall be exercised after the expiration of
its term.
(d) Exercise. Independent SARs shall be exercisable at such
time or times and subject to such terms and conditions as the
Committee shall specify in the Independent SAR grant. Unless the
Independent SAR grant specifies otherwise, the Committee shall have
discretion at any time to accelerate such time or times and
otherwise waive or amend any conditions in respect of all or any
portion of the Independent SARs held by any Grantee. Upon exercise
of an Independent SAR, the holder shall receive, for each share
specified in the Independent SAR grant, an amount equal to the
Spread. The Spread shall be payable in cash, Common Stock, or a
combination of both, at the option of the Committee, and shall be
paid within 30 calendar days of the exercise of the Independent
SAR.
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2.6 RELOAD OPTIONS
Subject to Section 1.4(d), at the discretion of the Committee,
the Grantee may be granted by agreement that contains such terms
and conditions to be determined by the Committee, Options that
permit the Grantee to purchase an additional number of shares equal
to the number of shares already owned and surrendered by the
Grantee to pay all or a portion of the exercise price of Options.
2.7 SUPPLEMENTAL PAYMENT ON EXERCISE OF NONQUALIFIED STOCK OPTIONS
OR STOCK APPRECIATION RIGHTS.
The Committee, either at the time of grant or at the time of
exercise of any Nonqualified Stock Option or Stock Appreciation
Right, may provide for a supplemental payment (the "Supplemental
Payment") by the Company to the Grantee with respect to the
exercise of any Nonqualified Stock Option or Stock Appreciation
Right. The Supplemental Payment shall be in the amount specified
by the Committee, which shall not exceed the amount necessary to
pay the federal income tax payable with respect to both the
exercise of the Nonqualified Stock Option and/or Stock Appreciation
Right and the receipt of the Supplemental Payment, assuming the
holder is taxed at the maximum effective federal income tax rate
applicable thereto. The Committee shall have the discretion to
grant Supplemental Payments that are payable solely in cash or
Supplemental Payments that are payable in cash, Common Stock, or a
combination of both, as determined by the Committee at the time of
payment. The Supplemental Payment shall be paid within 30 calendar
days of the date of exercise of a Nonqualified Stock Option or
Stock Appreciation Right (or, if later, within 30 calendar days of
the date on which income is recognized for federal income tax
purposes with respect to such exercise).
SECTION 3. RESTRICTED STOCK
3.1 AWARD OF RESTRICTED STOCK
(a) Grant. Shares of Restricted Stock may be awarded under
this Plan by the Committee on such terms and conditions and with
such restrictions as the Committee may from time to time approve,
all of which may differ with respect to each Grantee. Such
Restricted Stock shall be awarded for no cash or such cash as the
Committee shall determine.
(b) Delivery of Restricted Stock. Grantees receiving
Restricted Stock Awards shall not be issued stock certificates in
respect of such shares of Common Stock until such time as the
Restriction Period with respect to each Restricted Stock Award has
expired.
3.2 RESTRICTIONS
(a) Restrictive Conditions. Restricted Stock awarded to a
Grantee shall be subject to the
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following restrictions until the expiration of the Restriction
Period: (i) the shares of Common Stock of the Company included in
the Restricted Stock Award shall be subject to the restrictions on
transferability set forth in Section 5.2; (ii) unless otherwise
approved by the Committee, the shares of Common Stock included in
the Restricted Stock Award that are subject to restrictions which
are not satisfied at such time as the Grantee ceases to be employed
by the Company shall be forfeited and all rights of the Grantee to
such shares shall terminate without further obligation on the part
of the Company when an Employee leaves the employ of the Company;
and (iii) any other restrictions that the Committee may determine
in advance are necessary or appropriate.
(b) Forfeiture of Restricted Stock. If for any reason, the
restrictions imposed by the Committee upon Restricted Stock are not
satisfied at the end of the Restriction Period, any Restricted
Stock remaining subject to such restrictions shall thereupon be
forfeited by the Grantee and reacquired by the Company.
(c) Removal of Restrictions. The Committee shall have the
authority to remove any or all of the restrictions on the
Restricted Stock, including the restrictions under the Restriction
Period, whenever it may determine that, by reason of changes in
applicable laws or other changes in circumstances arising after the
date of the Restricted Stock Award, such action is appropriate.
3.3 RESTRICTION PERIOD
The Restriction Period of Restricted Stock shall commence on
the date of grant and shall be established by the Committee in the
Incentive Plan Agreement setting forth the terms of the award of
Restricted Stock.
3.4 DELIVERY OF SHARES OF COMMON STOCK
Subject to Section 6.4, at the expiration of the Restriction
Period, a stock certificate evidencing the Restricted Stock with
respect to which the Restriction Period has expired (to the nearest
full share) shall be delivered without charge to the Grantee, or
his personal representative, free of all restrictions under the
Plan.
3.5 SUPPLEMENTAL PAYMENT ON VESTING OF RESTRICTED STOCK
The Committee, either at the time of grant or at the time of
vesting of Restricted Stock, may provide for a Supplemental Payment
by the Company to the holder in an amount specified by the
Committee which shall not exceed the amount necessary to pay the
federal income tax payable with respect to both the vesting of the
Restricted Stock and receipt of the Supplemental Payment, assuming
the Grantee is taxed at the maximum effective federal income tax
rate applicable thereto. The Supplemental Payment shall be paid
within 30 calendar days of each date that Restricted Stock vests.
The Committee shall have the discretion to grant Supplemental
Payments that are payable solely in cash or Supplemental Payments
that are payable in cash, Common Stock, or a combination of both,
as determined by the Committee at the time of payment.
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SECTION 4. PERFORMANCE UNITS AND PERFORMANCE SHARES
4.1 PERFORMANCE BASED AWARDS
(a) Grant. The Committee is authorized to grant Performance
Units and Performance Shares to Grantees. The Committee may make
grants of Performance Units or Performance Shares in such a manner
that more than one Performance Period is in progress concurrently.
For each Performance Period, the Committee shall establish the
number of Performance Units or Performance Shares and the
contingent value of any Performance Units or Performance Shares,
which may vary depending on the degree to which performance
objectives established by the Committee are met.
(b) Performance Criteria. At the beginning of each
Performance Period, the Committee shall (i) establish for such
Performance Period specific financial or non-financial performance
objectives as the Committee believes are relevant to the Company's
overall business objectives; (ii) determine the value of a
Performance Unit or the number of shares under a Performance Share
grant relative to performance objectives; and (iii) notify each
Participant in writing of the established performance objectives
and minimum, target, and maximum Performance Unit or Share value
for such Performance Period.
(c) Modification. If the Committee determines in its sole
discretion that the established performance measures or objectives
are no longer suitable to Company objectives because of a change in
the Company's business, operations, corporate structure, capital
structure, or other conditions the Committee deems to be
appropriate, the Committee may modify the performance measures and
objectives as considered appropriate.
(d) Payment. The basis for payment of Performance Units or
Performance Shares for a given Performance Period shall be the
achievement of those financial and non-financial performance
objectives determined by the Committee at the beginning of the
Performance Period. If minimum performance is not achieved for a
Performance Period, no payment shall be made and all contingent
rights shall cease. If minimum performance is achieved or
exceeded, the value of a Performance Unit or Performance Share
shall be based on the degree to which actual performance exceeded
the preestablished minimum performance standards, as determined by
the Committee. The amount of payment shall be determined by
multiplying the number of Performance Units or Performance Shares
granted at the beginning of the Performance Period times the final
Performance Unit or Performance Share value. Payments shall be
made, in the discretion of the Committee, solely in cash or Common
Stock, or a combination of cash and Common Stock, following the
close of the applicable Performance Period, in such manner as may
be permissible without causing the Grantee to incur liability under
Section 16(b) of the Exchange Act.
(e) Special Rule for Covered Employees. Without limiting the
generality of the foregoing, it is intended that the Committee
shall establish performance goals applicable to Performance Units
or Performance Shares awarded to Grantees who, in the judgment of
the
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Committee, may be Covered Employees in such a manner as shall
permit payments with respect thereto to qualify as "performance-
based compensation" as described in Section 162(m)(4)(C) of the
Code. It is specifically provided that the material terms of such
performance goals for Grantees who, in the judgment of the
Committee, may be Covered Employees, shall, until changed by the
Committee with the approval of the stockholders, be as follows:
(i) the business criteria on which the performance goals shall be
based shall be the attainment of such target levels of earnings per
share from continuing operations, total stockholder return, Common
Stock price per share, sales or market share as may be specified by
the Committee; and (ii) the maximum amount of compensation that may
be paid under Performance Units and Performance Shares to any one
Grantee with respect to any one year shall be $1,000,000.
4.2 SUPPLEMENTAL PAYMENT ON VESTING OF PERFORMANCE UNITS OR
PERFORMANCE SHARES
The Committee, either at the time of grant or at the time of
vesting of Performance Units or Performance Shares (other than
Restricted Stock), may provide for a Supplemental Payment by the
Company to the holder in an amount specified by the Committee which
shall not exceed the amount necessary to pay the federal income tax
payable with respect to both the vesting of such Performance Units
or Performance Shares and receipt of the Supplemental Payment,
assuming the Grantee is taxed at the maximum effective federal
income tax rate applicable thereto. The Supplemental Payment shall
be paid within 30 days of each date that such Performance Units or
Performance Shares vest. The Committee shall have the discretion
to grant Supplemental Payments that are payable in cash, Common
Stock, or a combination of both, as determined by the Committee at
the time of payment.
SECTION 5. PROVISIONS RELATING TO PLAN PARTICIPATION
5.1 PLAN CONDITIONS
(a) Incentive Plan Agreement. Each Grantee to whom an
Incentive Award is granted under the Plan shall be required to
enter into an Incentive Plan Agreement with the Company in a form
provided by the Committee, which shall contain certain specific
terms, as determined by the Committee, with respect to the
Incentive Award and shall include provisions that the Grantee (i)
shall not disclose any trade or secret data or any other
confidential information of the Company acquired during employment
by the Company or a Subsidiary, or after the termination of
employment or Retirement, (ii) shall abide by all the terms and
conditions of the Plan and such other terms and conditions as may
be imposed by the Committee, and (iii) shall not interfere with the
employment of any other Company employee. An Incentive Award may
include a noncompetition agreement with respect to the Grantee
and/or such other terms and conditions, not inconsistent with the
Plan, as shall be determined from time to time by the Committee.
(b) No Right to Employment. Nothing in the Plan or any
instrument executed pursuant to the Plan shall create any
employment rights (including without limitation, rights to
continued employment) in any Grantee or affect the right of the
Company to terminate the
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employment of any Grantee at any time for any reason whether before
the exercise date of any Option or during the Restriction Period of
any Restricted Stock or during the Performance Period of any
Performance Unit or Performance Share.
(c) Securities Requirements. No shares of Common Stock will
be issued or transferred pursuant to an Incentive Award unless and
until all then-applicable requirements imposed by federal and state
securities and other laws, rules and regulations and by any
regulatory agencies having jurisdiction and by any stock market or
exchange upon which the Common Stock may be listed, have been fully
met. As a condition precedent to the issuance of shares pursuant
to the grant or exercise of an Incentive Award, the Company may
require the Grantee to take any reasonable action to meet such
requirements. The Company shall not be obligated to take any
affirmative action in order to cause the issuance or transfer of
shares pursuant to an Incentive Award to comply with any law or
regulation described in the second preceding sentence.
5.2 TRANSFERABILITY
(a) Non-Transferable Awards. No Incentive Award and no right
under the Plan, contingent or otherwise, other than Restricted
Stock as to which restrictions have lapsed, will be (i) assignable,
saleable, or otherwise transferable by a Grantee except by will or
by the laws of descent and distribution or pursuant to a qualified
domestic relations order, or (ii) subject to any encumbrance,
pledge or charge of any nature. No transfer by will or by the laws
of descent and distribution shall be effective to bind the Company
unless the Committee shall have been furnished with a copy of the
deceased Grantee's will or such other evidence as the Committee may
deem necessary to establish the validity of the transfer. Any
attempted transfer in violation of this Section 5.2 shall be void
and ineffective for all purposes.
(b) Ability to Exercise Rights. Only the Grantee or his
guardian (if the Grantee becomes Disabled), or in the event of his
death, his legal representative or beneficiary, may exercise
Options, receive cash payments and deliveries of shares, or
otherwise exercise rights under the Plan. The executor or
administrator of the Grantee's estate, or the person or persons to
whom the Grantee's rights under any Incentive Award will pass by
will or the laws of descent and distribution, shall be deemed to be
the Grantee's beneficiary or beneficiaries of the rights of the
Grantee hereunder and shall be entitled to exercise such rights as
are provided hereunder.
5.3 RIGHTS AS A STOCKHOLDER
(a) No Stockholder Rights. Except as otherwise provided in
Section 5.3(b), a Grantee of an Incentive Award or a transferee of
such Grantee shall have no rights as a stockholder with respect to
any shares of Common Stock until the issuance of a stock
certificate for such shares. Except as otherwise provided in
Section 5.3(b) and Section 5.5, no adjustment shall be made for
dividends (ordinary or extraordinary, whether in cash, securities,
or other property) or distributions or other rights for which the
record date is prior to the date such stock certificate is issued.
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(b) Holder of Restricted Stock. Unless otherwise approved by
the Committee prior to the grant of a Restricted Stock Award, a
Grantee of Restricted Stock or a permitted transferee of such
Grantee shall not have any rights of a stockholder until such time
as a stock certificate has been issued with respect to all, or a
portion of, such Restricted Stock Award.
5.4 LISTING AND REGISTRATION OF SHARES OF COMMON STOCK
The Company, in its discretion, may postpone the issuance
and/or delivery of shares of Common Stock upon any exercise of an
Incentive Award until completion of such stock exchange listing,
registration, or other qualification of such shares under any state
and/or federal law, rule or regulation as the Company may consider
appropriate, and may require any Grantee to make such
representations and furnish such information as it may consider
appropriate in connection with the issuance or delivery of the
shares in compliance with applicable laws, rules and regulations.
5.5 CHANGE IN STOCK AND ADJUSTMENTS
(a) Changes in Capitalization. Except as provided in Section
5.7, in the event the outstanding shares of the Common Stock, as
constituted from time to time, shall be changed as a result of a
change in capitalization of the Company or a combination, merger,
or reorganization of the Company into or with any other corporation
or any other transaction with similar effects, there then shall be
substituted (at no additional cost to any Grantee) for each share
of Common Stock theretofore subject, or which may become subject,
to issuance or transfer under the Plan, the number and kind of
shares of Common Stock or other securities or other property into
which each outstanding share of Common Stock shall be changed or
for which each such share shall be exchanged and the Committee may
make other equitable adjustments which it deems to be warranted at
no additional cost to any Grantee but subject to any required
stockholder approval.
(b) Changes in Law or Circumstances. In the event of any
change in applicable laws or any change in circumstances which
results in or would result in any dilution of the rights granted
under the Plan, or which otherwise warrants equitable adjustment
because it interferes with the intended operation of the Plan,
then, if the Committee shall, in its sole discretion, determine
that such change equitably requires an adjustment in the number or
kind of shares of stock or other securities or property theretofore
subject, or which may become subject, to issuance or transfer under
the Plan or in the terms and conditions of outstanding Incentive
Awards, such adjustment shall be made in accordance with such
determination. Such adjustments may include changes with respect
to (i) the aggregate number of shares that may be issued under the
Plan, (ii) the number of shares subject to Incentive Awards and
(iii) the price per share for outstanding Incentive Awards. Any
adjustment of an Incentive Stock Option under this paragraph shall
be made only to the extent not constituting a "modification" within
the meaning of Section 424(h)(3) of the Code. The Committee shall
give notice to each Grantee, and upon notice such adjustment shall
be effective and binding for all purposes of the Plan.
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5.6 TERMINATION OF EMPLOYMENT, DEATH, DISABILITY AND RETIREMENT
(a) Termination of Employment. Subject to Section 3.2, if an
Employee's employment is terminated for any reason whatsoever other
than death, Disability or Retirement, any Incentive Award granted
pursuant to the Plan outstanding at the time and all rights
thereunder shall wholly and completely terminate, and unless
otherwise established by the Committee, no further vesting shall
occur and the Employee shall be entitled to exercise his or her
rights with respect to the portion of the Incentive Award vested as
of the date of termination for a period of thirty-one (31) calendar
days after such termination date; provided, however, that if an
Employee is Terminated for Cause, such Employee's right to exercise
the vested portion of his or her Incentive Award shall terminate as
of the date of termination of employment.
(b) Retirement. Subject to Section 3.2, unless otherwise
approved by the Committee, upon the Retirement of an Employee:
(i) any nonvested portion of any outstanding Incentive
Award shall immediately terminate and no further vesting shall
occur; and
(ii) any vested Incentive Award shall expire on the
earlier of (A) the expiration date set forth in the Incentive
Plan Agreement with respect to such Incentive Awards; or (B)
the expiration of (1) six (6) months after the date of
Retirement in the case of any Incentive Award other than an
Incentive Stock Option or (2) three (3) months after the date
of Retirement in the case of an Incentive Stock Option.
(c) Disability or Death. Subject to Section 3.2, unless
otherwise approved by the Committee, upon termination of employment
from the Company or any Parent or Subsidiary as a result of
Disability or death:
(i) any nonvested portion of any outstanding Incentive
Award shall immediately terminate and no further vesting shall
occur; and
(ii) any vested Incentive Award shall expire upon the
earlier of (A) the expiration date set forth in the Incentive
Plan Agreement with respect to such Incentive Awards or (B)
the first anniversary of such termination of employment as a
result of Disability or death.
(d) Continuation. Subject to the express provisions of the
Plan and the terms of any applicable Incentive Plan Agreement, the
Committee, in its discretion, may provide for the continuation of
any Incentive Award for such period and upon such terms and
conditions as are determined by the Committee in the event that a
Grantee ceases to be an employee.
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5.7 CHANGES IN CONTROL
(a) Changes in Control. In the event of a Change in Control:
(i) all Options and Stock Appreciation Rights then
outstanding shall become vested and immediately and fully
exercisable, notwithstanding any provision therein for the
exercise in installments;
(ii) all restrictions and conditions of all
Restricted Stock then outstanding shall be deemed satisfied,
and the Restriction Period with respect thereto shall be
deemed to have expired, as of the date of the Change in
Control; and
(iii) all Performance Shares, Performance Units and
any other stock-based awards shall become vested, deemed
earned in full and promptly paid to the Grantees without
regard to payment schedules and notwithstanding that the
applicable performance cycle or retention cycle shall not have
been completed.
For purposes of this Section 5.7, a "Change in Control" shall
mean a change in control of a nature that would be required to be
reported in response to item 6(e) of Schedule 14A of Regulation 14A
promulgated under the Exchange Act as such Schedule, Regulation and
Act were in effect on the date of adoption of this Plan by the
Board, provided that such a change in control shall be deemed to
have occurred at such time as:
(i) any "person" (as that term is used in Section
13(d) and 14(d)(2) of the Exchange Act) is or becomes,
directly or indirectly, the "beneficial owner" (as defined in
Rule 13d-3 under the Exchange Act) of securities representing
30% or more of the combined voting power for election of
directors of the then outstanding voting securities of the
Company or any successor of the Company;
(ii) during any period of two (2) consecutive years
or less, individuals who at the beginning of such period
constituted the Board of the Company cease, for any reason, to
constitute at least a majority of the Board, unless the
election or nomination for election of each new director was
approved by a vote of at least two-thirds of the directors
then still in office who were directors at the beginning of
the period;
(iii) the stockholders of the Company approve any
merger or consolidation to which the Company is a party as a
result of which the persons who were stockholders of the
Company immediately prior to the effective date of the merger
or consolidation (and excluding, however, any shares held by
any party to such merger or consolidation and their
affiliates) shall have beneficial ownership of less than 50%
of the combined voting power for election of directors of the
surviving corporation following the effective date of such
merger or consolidation; or
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(iv) the stockholders of the Company approve any
merger or consolidation as a result of which the Common Stock
shall be changed, converted or exchanged (other than a merger
with a wholly-owned subsidiary of the Company) or any
liquidation of the Company or any sale or other disposition of
50% or more of the assets or earning power of the Company;
provided, however, that no Change in Control shall be deemed to
have occurred if, prior to such time as a Change in Control would
otherwise be deemed to have occurred, the Board determines
otherwise.
(b) Right of Cash-Out. If approved by the Board prior to or
within thirty (30) days after such time as a Change in Control
shall be deemed to have occurred, the Board shall have the right
for a forty-five (45) day period immediately following the date
that the Change in Control is deemed to have occurred to require
all, but not less than all, Grantees to transfer and deliver to the
Company all Incentive Awards previously granted to Grantees in
exchange for an amount equal to the "cash value" (defined below) of
the Incentive Awards. Such right shall be exercised by written
notice to all Grantees. For purposes of this Section 5.7(b), the
cash value of an Incentive Award shall equal the sum of (i) all
cash to which the Grantee would be entitled upon settlement or
exercise of such Incentive Award and (ii) the excess of the "market
value" (defined below) per share over the option price, if any,
multiplied by the number of shares subject to such Incentive Award.
For purposes of the preceding sentence, "market value" per share
shall mean the higher of (i) the average of the Fair Market Value
per share on each of the five trading days immediately following
the date a Change in Control is deemed to have occurred or (ii) the
highest price, if any, offered in connection with the Change in
Control. The amount payable to each Grantee by the Company
pursuant to this Section 5.7(b) shall be in cash or by certified
check and shall be reduced by any taxes required to be withheld.
5.8 AMENDMENTS TO INCENTIVE AWARDS
Subject to the following sentence, the Committee may waive any
conditions or rights with respect to, or amend, alter, suspend,
discontinue, or terminate, any unexercised Incentive Award
theretofore granted, prospectively or retroactively, with the
consent of any relevant Grantee. Provided, however, the Committee
shall have no authority or power to take any action described in
the immediately preceding sentence to the extent that such action
could result in failure of payments under an Incentive Award to
qualify as performance based compensation as defined in Section
162(m) of the Code where such payments otherwise would have
qualified as such performance based compensation with respect to a
Covered Employee.
5.9 EXCHANGE OF INCENTIVE AWARDS
The Committee may, in its discretion, permit Grantees under
the Plan to surrender outstanding Incentive Awards in order to
exercise or realize the rights under other Incentive Awards, or in
exchange for the grant of new Incentive Awards or require holders
of Incentive
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Awards to surrender outstanding Incentive Awards as a condition
precedent to the grant of new Incentive Awards.
5.10 FINANCING
The Company may extend and maintain, or arrange for the
extension and maintenance of, financing to any Grantee (including
a Grantee who is a director of the Company) to purchase shares
pursuant to exercise of an Incentive Award on such terms as may be
approved by the Committee in its sole discretion. In considering
the terms for extension or maintenance of credit by the Company,
the Committee shall, among other factors, consider the cost to the
Company of any financing extended by the Company.
SECTION 6. MISCELLANEOUS
6.1 EFFECTIVE DATE AND GRANT PERIOD
This Plan has been adopted by the Board on April 22, 1994,
subject to stockholder approval. The Plan shall become effective
and shall be deemed to have been adopted on June 17, 1994 if at the
Company's 1994 Annual Meeting of Stockholders it shall have been
approved by holders of at least the majority of the outstanding
Common Stock present, in person or by proxy, and authorized to
vote. If the requisite stockholder approval is not obtained, then
the Plan shall become null and void and be of no force or effect.
Unless sooner terminated by the Board, the Plan shall terminate on
January 31, 2004. After the termination of the Plan, no Incentive
Awards may be granted under the Plan other than reload options
described in Section 2.6 granted in accordance with Incentive Plan
Agreements existing as of the Plan termination date, but previously
granted awards shall remain outstanding in accordance with their
applicable terms and conditions.
6.2 FUNDING
Except as provided under Section 3, no provision of the Plan
shall require or permit the Company, for the purpose of satisfying
any obligations under the Plan, to purchase assets or place any
assets in a trust or other entity to which contributions are made
or otherwise to segregate any assets, nor shall the Company
maintain separate bank accounts, books, records or other evidence
of the existence of a segregated or separately maintained or
administered fund for such purposes. Grantees shall have no rights
under the Plan other than as unsecured general creditors of the
Company except that insofar as they may have become entitled to
payment of additional compensation by performance of services, they
shall have the same rights as other employees under general law.
6.3 WITHHOLDING TAXES
(a) Mandatory Withholding. The Company shall have the right
to (i) make deductions from any settlement of an Incentive Award
made under the Plan, including the
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delivery of shares, or require shares or cash or both be withheld
from any Incentive Award, in each case in an amount sufficient to
satisfy withholding of any federal, state or local taxes required
by law, or (ii) take such other action as may be necessary or
appropriate to satisfy any such withholding obligations. The
Committee may determine the manner in which such tax withholding
may be satisfied, and may permit shares of Common Stock (rounded up
to the next whole number) to be used to satisfy required tax
withholding based on the Fair Market Value of any such shares of
Common Stock, as of the delivery of shares or payment of cash in
satisfaction of the applicable Incentive Award.
(b) Incentive Stock Options. With respect to shares received
by a Grantee pursuant to the exercise of an Incentive Stock Option,
if such Grantee disposes of any such shares within two years from
the date of grant of such option or within one year after the
transfer of such shares to the Grantee, the Company shall have the
right to withhold from any salary, wages or other compensation
payable by the Company to the Grantee an amount sufficient to
satisfy federal, state and local withholding tax requirements
attributable to such disposition.
6.4 CONFLICTS WITH PLAN
In the event of any inconsistency or conflict between the
terms of the Plan and an Incentive Plan Agreement, the terms of the
Plan shall govern.
6.5 NO GUARANTEE OF TAX CONSEQUENCES
Neither the Company nor the Committee makes any commitment or
guarantee that any federal, state or local tax treatment will apply
or be available to any person participating or eligible to
participate hereunder.
6.6 SEVERABILITY
In the event that any provision of this Plan shall be held
illegal, invalid or unenforceable for any reason, such provision
shall be fully severable, but shall not affect the remaining
provisions of the Plan, and the Plan shall be construed and
enforced as if the illegal, invalid, or unenforceable provision had
never been included herein.
6.7 GENDER, TENSE AND HEADINGS
Whenever the context requires such, words of the masculine
gender used herein shall include the feminine and neuter, and words
used in the singular shall include the plural. Section headings as
used herein are inserted solely for convenience and reference and
constitute no part of the Plan.
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6.8 AMENDMENT AND TERMINATION
The Plan may be amended or terminated at any time by the Board
by the affirmative vote of a majority of the directors in office.
The Plan, however, shall not be amended, without prior approval of
the stockholders, (a) to materially increase the number of shares
which may be issued or transferred to Grantees or transferees under
the Plan, (b) to materially modify the eligibility requirements of
the Plan, (c) to materially increase the benefits accruing to
participants under the Plan or (d) to cause the Plan to not comply
with the rules and regulations promulgated under Section 16(b) of
the Exchange Act. Notwithstanding anything to the contrary
contained herein or in any Incentive Plan Agreement entered into
pursuant hereto relating to an Incentive Stock Option, this Plan
and any such Incentive Plan Agreement shall be subject to amendment
by action of the Committee to the extent necessary to comply with
any applicable requirements of the Code relating to favorable tax
treatment of Incentive Stock Options.
6.9 GOVERNING LAW
The Plan shall be construed in accordance with the laws of the
State of Texas, except as superseded by federal law, and in
accordance with applicable provisions of the Code and regulations
or other authority issued thereunder by the appropriate
governmental authority.
6.10 SECTION 16 COMPLIANCE
The Plan, and transactions hereunder by persons subject to
Section 16 of the Exchange Act, are intended to comply with all
applicable conditions of Rule 16b-3 or any successor provision
under the Exchange Act. To the extent any provision of the Plan or
any action by the Committee or the Board fails, or is deemed to
fail, to so comply, such provision or action shall be null and void
to the extent permitted by law and deemed advisable by the
Committee.
IN WITNESS WHEREOF, this Plan has been executed this ___ day
of ____________, 1994.
OSHMAN'S SPORTING GOODS, INC.
By:
Printed Name:
Title:
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MAYOR, DAY, CALDWELL & KEETON, L.L.P.
700 LOUISIANA, SUITE 1900
HOUSTON, TEXAS 77002-2778
(713)225-7000
TELECOPIER (713)225-7047
June 20, 1994
Oshman's Sporting Goods, Inc.
2302 Maxwell Lane
Houston, Texas 77023
Dear Sirs:
We have acted as counsel for Oshman's Sporting Goods, Inc., a
Delaware corporation (the "Company"), in connection with the
proposed offering of up to 500,000 shares of Common Stock, $1.00
par value (the "Common Stock"), of the Company pursuant to the
Company's 1994 Omnibus Plan (the "Plan").
In connection therewith, we have examined among other things,
the Certificate of Incorporation and the Bylaws of the Company, and
the relevant corporate proceedings with respect to the registration
statement on Form S-8 to be filed by the Company with the
Securities and Exchange Commission for the registration of the
Common Stock under the Securities Act of 1933, as amended (the
"Registration Statement").
Based on the foregoing, and having regard for such legal
considerations as we have deemed relevant, we are of the opinion
that the shares of Common Stock to be issued by the Company, when
issued in accordance with the Plan, subject to the Registration
Statement becoming effective under the Securities Act of 1933, as
amended, and to compliance with applicable Blue Sky laws, will be
legally issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an Exhibit
to the Registration Statement and to the reference to our firm
under "Legal Opinion" in the Prospectus forming a part of the
Registration Statement.
Very truly yours,
MAYOR, DAY, CALDWELL & KEETON, L.L.P.
E X H I B I T 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We have issued our report dated March 18, 1994, accompanying the
consolidated financial statements and schedules of Oshman's
Sporting Goods, Inc. and subsidiaries included in the Annual Report
on Form 10-K for the year ended January 29, 1994, which are
incorporated by reference in the Registration Statement and Prospectus.
We consent to the incorporation by reference in the Registration
Statement and Prospectus of the aforementioned report and to the use
of our name as it appears under the caption "Experts".
GRANT THORNTON
Houston, Texas
June 20, 1994
