<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 24, 1997
Registration No. 333-________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
----------
OPPENHEIMER CAPITAL, L.P. (1)
(Exact name of registrant as specified in its charter)
Delaware 13-3412614
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
800 Newport Center Drive, Suite 100
Newport Beach, California 92660
(714) 717-7022
(Address, including zip code, and
telephone number, including area code,
of registrant's principal executive offices)
----------
1997 UNIT INCENTIVE PLAN OF
PIMCO ADVISORS HOLDINGS L.P.
AND PIMCO ADVISORS L.P. (1)
(Full title of Plan)
----------
<TABLE>
<S> <C>
Kenneth M. Poovey Copy to:
Executive Vice President and General Counsel David C. Flattum
Oppenheimer Capital, L.P. Latham & Watkins
800 Newport Center Drive, Suite 100 650 Town Center Drive, Suite 2000
Newport Beach, California 92660 Costa Mesa, California 92626
(714) 717-7022 (714) 540-1235
</TABLE>
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=================================================================================================
Proposed
Proposed Maximum
Title of Each Class Amount Maximum Aggregate Amount of
of Securities to to be Offering Price Offering Registration
be Registered Registered Per Unit (2) Price (2) Fee
- -------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Units of Limited Partner
Interest 10,000,000 $31.22 $312,200,000 $92,099
==================================================================================================
</TABLE>
(1) The Registrant will change its name from Oppenheimer Capital, L.P. to
PIMCO Advisors Holdings L.P. effective January 1, 1998.
(2) Estimated solely for the purposes of calculating the registration fee
pursuant to Rule 457(h) under the Securities Act of 1933, as amended.
================================================================================
<PAGE> 2
PART I
The information called for in Part I of Form S-8 is not being prepared
with or included in this Form S-8 (by incorporation by reference or otherwise)
in accordance with the rules and regulations of the Securities and Exchange
Commission (the "Commission").
PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Commission by Oppenheimer
Capital, L.P., a Delaware limited partnership renamed to PIMCO Advisors Holdings
L.P. effective January 1, 1998 (the "Partnership"), are incorporated as of their
respective dates in this Registration Statement by reference:
1. Prospectus, as filed with the Commission with the Registration
Statement on Form S-1 on December 16, 1997, Registration No.
333-39585 (includes a description of the units of limited
partner interest in PA Holdings);
2. Quarterly Report on Form 10-Q for the quarter ended July 31,
1997;
3. Quarterly Report on Form 10-Q for the quarter ended October 31,
1997;
4. Current Report on Form 8-K as filed with the Commission on
November 6, 1997 and the amendment thereto on Form 8-K/A filed
with the Commission on November 20, 1997; and
5. Current Report on Form 8-K as filed with the Commission on
December 12, 1997
All documents filed by the Partnership or the 1997 Unit Incentive Plan
of PIMCO Advisors Holdings L.P. and PIMCO Advisors L.P. (the "1997 Plan")
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold are incorporated
by reference in this Registration Statement and are a part hereof from the date
of filing such documents. Any statement contained in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
As permitted by the Delaware General Corporation Law and the Delaware
Limited Partnership Law (collectively, the "DGCL"), the Amended and Restated
Agreement of Limited Partnership of Oppenheimer Capital, L.P. (the "Partnership
Agreement") requires the Partnership to indemnify the general partner, its
affiliates and all of its officers, directors, partners, employees and agents
(collectively, the "Indemnitees") against any and all
2
<PAGE> 3
proceedings in which the Indemnitees may be involved, or threatened to be
involved, as a party or otherwise by reason of their management of the affairs
of the Partnership or which relates to or arises out of the Partnership or
related entities. The Partnership Agreement provides that such Indemnitees are
not entitled to indemnification with respect to any claim, issue or matter in
which they have been adjudged liable for actual fraud, willful misconduct or
gross negligence, unless and only to the extent that the court in which such
action was brought, or another court of competent jurisdiction, determines upon
application that, despite the adjudication of liability, but in view of all the
circumstances of the case, the Indemnitee is fairly and reasonably entitled to
indemnification for such liabilities and expenses as the court may deem proper.
The Partnership Agreement also provides that the general partner will
not be liable to the Partnership or the holders of units of limited partnership
interest in the Partnership for errors in judgment or for breach of fiduciary
duty (including breach of any duty of care or any duty of loyalty) unless the
general partner's action or failure to act involved an act or omission that
constitutes actual fraud, gross negligence or willful or wanton misconduct.
The inclusion of the above provisions in the Partnership Agreement may
have the effect of reducing the likelihood of unitholder derivative suits
against directors and may discourage or deter unitholders or management from
bringing a lawsuit against Indemnitees for breach of their duty of care, even
though such an action, if successful, might otherwise have benefited the
Partnership and its unitholders.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
See Index to Exhibits on page 6.
ITEM 9. UNDERTAKINGS.
(a) 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, as
amended (the "Act");
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this
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. Notwithstanding
the foregoing, any increase or decrease in
volume of securities offered (if the total
dollar value of securities offered would not
exceed that which was registered) and any
deviation from the low or high and of the
estimated maximum offering range may be
reflected in the form of prospectus filed with
the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price
represent no more than 20 percent change in the
maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in
the effective 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;
3
<PAGE> 4
Provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply, and the information required to
be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with
or furnished to the Commission by the Registrant
pursuant to Section 13 or 15(d) of the Exchange Act that
are incorporated by reference in the Registration
Statement.
(2) That, for the purpose of determining any
liability under the 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.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Act,
each filing of the registrant's annual report pursuant
to section 13(a) or section 15(d) of the Exchange Act
(and, where applicable, each filing of an employee
benefit plan's annual report pursuant to section 15(d)
of the Exchange Act) that is incorporated by reference
in this 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.
(c) Insofar as indemnification for liabilities arising under
the 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 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 Act
and will be governed by the final adjudication of such
issue.
4
<PAGE> 5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Partnership 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 Newport Beach, State of California, on this 19th
day of December 1997.
OPPENHEIMER CAPITAL, L.P.
/s/ WILLIAM D. CVENGROS
----------------------------
William D. Cvengros
Chief Executive Officer
Each person whose signature appears below hereby constitutes and
appoints William D. Cvengros and Robert M. Fitzgerald as his or her true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this Registration Statement on Form S-8 and to file the same with all
exhibits thereto and any other documents in connection therewith, with the
Securities and Exchange Commission under the Securities Act of 1933, as amended.
Pursuant to the requirements of the Securities Act of 1933, this Form
S-8 has been signed by the following persons in the capacities and on the dates
indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ WILLIAM D. CVENGROS Board Member,
- -------------------------------------- Chief Executive Officer December 19, 1997
William D. Cvengros (Principal Executive Officer)
/s/ ROBERT M. FITZGERALD Board Member,
- -------------------------------------- Senior Vice President, December 19, 1997
Robert M. Fitzgerald Chief Financial Officer
(Principal Financial and Accounting
Officer)
/s/ KENNETH M. POOVEY Board Member,
- -------------------------------------- Executive Vice President December 19, 1997
Kenneth M. Poovey
</TABLE>
5
<PAGE> 6
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT PAGE
- ------- ----
<S> <C>
5.1 Opinion of Richards, Layton & Finger
10.1 1997 Unit Incentive Plan of PIMCO Advisors Holdings L.P. and PIMCO
Advisors L.P.
23.1 Consent of Richards, Layton & Finger (included in Exhibit 5.1)
23.2 Consent of Price Waterhouse LLP
23.3 Consent of Price Waterhouse LLP
23.4 Consent of Deloitte & Touche LLP
24.1 Power of Attorney (included on signature page)
</TABLE>
<PAGE> 1
EXHIBIT 5.1
[Letterhead of Richards, Layton & Finger]
December 22, 1997
Oppenheimer Capital, L.P.
800 Newport Center Drive, Suite 100
Newport Beach, California 92660
Re: Oppenheimer Capital, L.P. -- 1997 Unit Incentive Plan
-----------------------------------------------------
Ladies and Gentlemen:
We have acted as special Delaware counsel for Oppenheimer Capital,
L.P., a Delaware limited partnership ("Opcap LP"), in connection with the
matters set forth herein. At your request, this opinion is being furnished to
you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of executed or
conformed counterparts, or copies, of the following:
(a) The organizational documents of Opcap LP, listed on Schedule A
attached hereto;
(b) The registration statement (the "Registration Statement") on
Form S-8, including a prospectus (the "Prospectus"), as filed by Opcap LP with
the Securities and Exchange Commission on December 22, 1997;
(c) The 1997 Unit Incentive Plan of the Partnership and Pimco
Advisors L.P., a Delaware limited partnership to become effective December 22,
1997 (the "Unit Incentive Plan"); and
<PAGE> 2
Oppenheimer Capital, L.P.
December 22, 1997
Page 2
(d) A Certificate of Good Standing for Opcap LP, dated December
22, 1997, obtained from the office of the Secretary of State of the State of
Delaware.
Initially capitalized terms used herein and not otherwise defined are
used as defined in the Opcap LP Agreement (as defined in Schedule A hereto).
For purposes of this opinion, we have not reviewed any documents other
than the documents listed in paragraphs (a) through (d) above. In particular,
we have not reviewed any document (other than the documents listed in
paragraphs (a) through (d) above) that is referred to in or incorporated by
reference into the documents reviewed by us. We have assumed that there exists
no provision in any document that we have not reviewed that is inconsistent
with the opinions stated herein. We have conducted no independent factual
investigation of our own but rather have relied solely upon the foregoing
documents, the statements and information set forth therein and the additional
matters recited or assumed herein, all of which we have assumed to be true,
accurate and complete in all material respects.
With respect to all documents examined by us, we have assumed that (i)
all signatures on documents examined by us are genuine, (ii) all documents
submitted to us as originals are authentic, and (iii) all documents submitted
to us as copies conform with the original copies of those documents.
For purposes of this opinion, we have assumed (i) that at the time of
the issuance of the Units (as defined in the Opcap LP Agreement) in accordance
with the Registration Statement and the Unit Incentive Plan (the "Opcap LP
Units"), the Opcap LP Agreement constitutes the entire agreement among the
parties thereto with respect to the subject matter thereof including with
respect to the admission of partners to, and the creation, operation,
management and termination of Opcap LP, and that the Opcap LP Agreement and the
Opcap LP Certificate are in full force and effect and have not been amended,
(ii) except to the extent provided in paragraph 1 below, the due organization,
incorporation or formation, as the case may be, and valid existence in good
standing of each party to the documents examined by us under the laws of the
jurisdiction governing its organization, incorporation or formation and the
legal capacity of natural persons who are signatories to the documents examined
by us, (iii) that each of the parties to the documents examined by us has the
power and authority to execute and deliver, and to perform its obligations
under, such documents, (iv) the due authorization, execution and delivery by
all parties thereto of all documents examined by us, (v) the payment for the
Opcap LP Units in accordance with the Registration Statement and the Unit
Incentive Plan, (vi) that the Opcap LP Units are issued and sold to the board
members, eligible employees and consultants (the "Additional Limited
Partners"), in accordance with the Registration Statement, the Unit Incentive
Plan and the Opcap LP Agreement, and (vii) that prior to the issuance of Opcap
LP Units, (a) Opcap LP shall have received an opinion of a nationally
recognized investment banking firm (but not an investment banking firm which is
an Affiliate of
<PAGE> 3
Oppenheimer Capital, L.P.
December 22, 1997
Page 3
the General Partner) that such issuance of Units in accordance with the
Registration Statement and the Unit Incentive Plan is fair to the Limited
Partners who are not Affiliates of the General Partner from a financial point
of view, and (b) the General Partner makes an Assignment Determination and a
Tax Determination pursuant to Section 9.01(d) of the Opcap LP Agreement. We
have not participated in the preparation of the Registration Statement and
assume no responsibility for its contents.
This opinion is limited to the laws of the State of Delaware (excluding
the securities laws of the State of Delaware), and we have not considered and
express no opinion on the laws of any other jurisdiction, including federal
laws and rules and regulations relating thereto. Our opinions are rendered only
with respect to Delaware laws and rules, regulations and orders thereunder
which are currently in effect.
Based upon the foregoing, and upon our examination of such questions of
law and statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
1. Opcap LP is validly existing in good standing as a limited
partnership under the laws of the State of Delaware.
2. Assuming that the Additional Limited Partners, as limited
partners of Opcap LP, do not participate in the control of the business of
Opcap LP, upon issuance of the Units in accordance with the Registration
Statement and the Unit Incentive Plan, the Units will be validly issued and
will represent valid and, subject to the qualifications set forth herein, will
be fully paid and nonassessable limited partner interests in Opcap LP, as to
which the Additional Limited Partners, as limited partners of Opcap LP, will
have no liability in excess of their obligations to make payments expressly
provided for in the Opcap LP Agreement and their share of Opcap LP's assets and
undistributed profits (subject to the obligation of a limited partner of Opcap
LP to repay any funds wrongfully distributed to it).
3. There are no provisions in the Opcap LP Agreement the inclusion
of which, subject to the terms and conditions therein, or, assuming that the
Additional Limited Partners, as limited partners of Opcap LP, take no action
other than actions permitted by the Opcap LP Agreement, the exercise of which,
in accordance with its terms and conditions therein, would cause the Additional
Limited Partners, as limited partners of Opcap LP, to be deemed to be
participating in the control of the business of Opcap LP.
We consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement. We hereby
consent to the use of our name under the heading "Legal Matters" in the
Prospectus. In giving the foregoing consent, we
<PAGE> 4
Oppenheimer Capital, L.P.
December 22, 1997
Page 4
do not thereby admit that we come within the category of persons whose consent
is required under Section 7 of the Securities Act of 1933 as amended, or the
rules and regulations of the Securities and Exchange Commission. Except as
stated above, without our prior written consent, this opinion may not be
furnished or quoted to, or relied upon by, any other Person for any purpose.
Very truly yours,
/s/ RICHARDS, LAYTON & FINGER
----------------------------------------
Richards, Layton & Finger
<PAGE> 5
SCHEDULE A
----------
1. The Certificate of Limited Partnership of Opcap LP, dated as of
May 15, 1987, as filed in the office of the Secretary of State of the State of
Delaware (the "Secretary of State") on May 15, 1987.
2. The Agreement of Limited Partnership of Opcap LP, dated as of
May 15, 1987.
3. The Amended and Restated Certificate of Limited Partnership of
Opcap LP, dated as of June 30, 1987, as filed in the office of the Secretary of
State on June 30, 1987.
4. The Amended and Restated Agreement of Limited Partnership of
Opcap LP, dated as of June 29, 1987.
5. The Amended and Restated Agreement of Limited Partnership of
Opcap LP, dated as of July 9, 1987.
6. The Amended and Restated Agreement of Limited Partnership of
Opcap LP, dated as of March 14, 1991 (the "Amended and Restated Opcap LP
Agreement").
7. The Assignment of General Partner Interest and Amendment to the
Amended and Restated Opcap LP Agreement, dated as of November 4, 1997
("Amendment No. 1"), relating to the transfer of general partner interest by
Oppenheimer Financial Corp. to PIMCO Advisors L.P.
8. The Amended and Restated Certificate of Limited Partnership of
Opcap LP, dated as of November 4, 1997, as filed in the office of the Secretary
of State on November 4, 1997.
9. The Amendment of the Amended and Restated Opcap LP Agreement,
dated as of November 4, 1997 ("Amendment No. 2"), relating to the reduction of
the general partner interest from 1% to .01%.
10. The Assignment of General Partner Interest and Amendment to the
Amended and Restated Opcap LP Agreement, dated as of November 4, 1997
("Amendment No. 3"), relating to the transfer of the .01% general partner
interest in Opcap LP to PIMCO Partners, G.P., a California general partnership
(the Amended and Restated Opcap LP Agreement as amended by Amendment No. 1,
Amendment No. 2 and Amendment No. 3 is hereinafter referred to as the "Opcap LP
Agreement").
11. The Amended and Restated Certificate of Limited Partnership of
Opcap LP, dated as of November 4, 1997 (the "Opcap LP Certificate"), as filed
in the office of the Secretary of State on November 4, 1997, naming PIMCO
Partners, G.P. as the general partner of Opcap LP.
<PAGE> 1
EXHIBIT 10.1
1997 UNIT INCENTIVE PLAN
OF PIMCO ADVISORS HOLDINGS L.P. AND PIMCO ADVISORS L.P.
PIMCO Advisors Holdings L.P., a Delaware limited partnership
("Holdings"), and PIMCO Advisors L.P., a Delaware limited partnership ("PIMCO
Advisors", and together with Holdings, a "Partnership" or collectively the
"Partnerships") have adopted the 1997 Unit Incentive Plan (this "Plan"),
effective January 1, 1998, for the benefit of the members of their Management
Boards, their key employees and their consultants.
Holdings' units of limited partner interest ("Holdings LP Units") are
publicly owned. Holdings' only significant assets are units of general partner
interest in PIMCO Advisors. PIMCO Advisors is an operating partnership which,
directly and through its subsidiaries, engages in the investment management
business. Members of the Management Boards and executive officers of the
Partnerships, and managing directors of subsidiaries of PIMCO Advisors which are
engaged in the investment advisory business (collectively, "Qualified Persons"),
own Class A units of limited partner interest in PIMCO Advisors ("PIMCO Advisors
LP Units"), or are qualified to be admitted as limited partners of PIMCO
Advisors.
Holdings wishes to further its financial success, both through its own
efforts and by furthering the financial success of PIMCO Advisors, and
accordingly it wishes (i) to obtain and retain the services of members of its
Management Board, key employees and consultants who will contribute to its
growth, development and financial success, and (ii) to support PIMCO Advisors in
it efforts to obtain and retain the services of members of the PIMCO Advisors
Management Board, key employees and consultants who will contribute to the
growth, development and financial success of PIMCO Advisors, by offering such
members, key employees and consultants the opportunity to own, or have the right
to share in the appreciation of, Holdings LP Units, and, if they are Qualified
Persons, PIMCO Advisors LP Units.
PIMCO Advisors wishes to further its financial success, and accordingly
it wishes to obtain and retain the services of members of its Management Board,
key employees and consultants who will contribute to its growth, development and
financial success, by offering such members, key employees and consultants the
opportunity to own, or have the right to share in the appreciation of, Holdings
LP Units, and, if they are Qualified Persons, PIMCO Advisors LP Units.
Holdings and PIMCO Advisors wish to make tandem grants of awards under
this Plan, so that any participant in this Plan who is a Qualified Person at the
time of issuance of Units pursuant to an award made to such participant under
this Plan may elect to receive either Holdings LP Units or PIMCO Advisors LP
Units, or any combination thereof.
1
<PAGE> 2
ARTICLE I
DEFINITIONS
Section 1.1 Wherever the following terms are used in this Plan they
shall have the meaning specified below:
Additional Deferred Units shall mean Additional Deferred Units awarded
under Article VII of this Plan.
Awards shall mean Options, awards of Restricted Units, awards of
Deferred Units, Unit Payments or Unit Appreciation Rights.
Award Limit shall mean 200,000 Units.
Board shall mean the Holdings Board or the PIMCO Advisors Board.
Board Member shall mean a member of a Board.
Code shall mean the Internal Revenue Code of 1986, as amended.
Committee is defined in Section 9.1.
Committee Action shall mean an action taken (i) by a majority of the
members of the Committee at a meeting duly called and held, which majority shall
comprise (A) all of the Holdings Board Members or, if the Holdings Board has
appointed Independent Board Members to the Committee, a majority of such
Independent Board Members, and (B) a majority of the members of the Unit
Incentive Committee, or (ii) by unanimous written consent of the members of the
Committee.
Corporate Subsidiary shall mean any corporation in an unbroken chain of
corporations if 50 percent or more of the total combined voting power of all
classes of stock of the first corporation is owned by a Partnership, and each of
the corporations other than the last corporation in the unbroken chain then owns
stock possessing 50 percent or more of the total combined voting power of all
classes of stock in one of the other corporations in such chain.
Deferred Units shall mean Units awarded under Article VII of this Plan.
Employee shall mean any officer or other employee (as defined in
accordance with Section 3401(c) of the Code) of a Partnership, or of any
corporation that is then a Corporate Subsidiary, or of any partnership, limited
liability company or corporation that is then a Partnership Subsidiary, whether
such employee is so employed at the time this Plan is adopted or becomes so
employed subsequent to the adoption of this Plan.
2
<PAGE> 3
Exchange Act shall mean the Securities Exchange Act of 1934, as
amended.
Fair Market Value of a Unit as of a given date shall mean (i) the
closing price of each such Unit on the principal exchange on which Units are
then trading, if any (or as reported on any composite index which includes such
principal exchange), on the trading day previous to such date, or if such Units
were not traded on the trading day previous to such date, then on the next
preceding date on which a trade occurred, or (ii) if such Units are not traded
on an exchange but are quoted on the Nasdaq Stock Market or a successor
quotation system, the mean between the closing representative bid and asked
prices for the Units on the trading day previous to such date as reported by the
Nasdaq Stock Market or such successor quotation system, or (iii) if such Units
are not publicly-traded on an exchange and are not quoted on the Nasdaq Stock
Market or a successor quotation system, the Fair Market Value of each such Unit
as established by the Committee (or the relevant Board, in the case of
Restricted Units granted to Independent Board Members) acting in good faith.
Grantee shall mean an Employee or consultant granted a Unit Payment,
Unit Appreciation Right or an award of Deferred Units under this Plan.
Holdings Board shall mean the Management Board of Holdings or any
successor board established by the general partner(s) of Holdings.
Holdings LP Units is defined in the recitals to this Plan..
Incentive Unit Option shall mean an Option which conforms to the
provisions of Section 422 of the Code concerning "incentive stock options" and
which is designated as an Incentive Unit Option by the Committee.
Independent Board Member shall mean a member of a Board who is not an
Employee.
Issuer with respect to an Option, a Restricted Unit, a Deferred Unit, a
Unit Payment or a Unit Appreciation Right, shall mean the issuer of the Unit
underlying the Option or Unit Appreciation Right, the issuer of the Restricted
Unit or Deferred Unit, or the issuer of the Unit issued as a Unit Payment or
underlying an Option granted as a Unit Payment.
Management shall mean the chief executive officer of PIMCO Advisors or
his delegate.
Non-Qualified Unit Option shall mean an Option which is not designated
as an Incentive Unit Option by the Committee.
Oppenheimer Capital shall mean Oppenheimer Capital, a Delaware general
partnership.
Option shall mean a Unit option granted under Article III of this Plan.
An Option granted under this Plan shall, as determined by the Committee, be
either a Non-Qualified Unit Option or
3
<PAGE> 4
an Incentive Unit Option; provided, however, that Options granted to consultants
shall be NonQualified Unit Options.
Optionee shall mean an Employee or consultant granted an Option under
this Plan.
Participant shall mean an Employee, Independent Board Member or
consultant who has been granted an Award under this Plan.
Partnership shall mean PIMCO Advisors Holdings L.P., a Delaware limited
partnership, or PIMCO Advisors L.P., a Delaware limited partnership.
Partnership Subsidiary shall mean any partnership or limited liability
company 50% or more of the profits or capital interest of which is owned,
directly or indirectly, by a Partnership. "Partnership Subsidiary" shall also
mean any corporation that would be a Corporate Subsidiary with respect to a
partnership or limited liability company that is a Partnership Subsidiary if
such partnership or limited liability company were treated as a Partnership. For
purposes of this definition, PIMCO Advisors is a Partnership Subsidiary of
Holdings.
Payment shall mean the amount paid and/or applied by an Optionee
pursuant to Section 5.2(d) of this Plan.
PIMCO Advisors Board shall mean the Management Board of PIMCO Advisors
or any successor board established by the general partner(s) of PIMCO Advisors.
PIMCO Advisors LP Units is defined in the recitals to this Plan.
Plan shall mean the 1997 Unit Incentive Plan of PIMCO Advisors Holdings
L.P. and PIMCO Advisors L.P.
QDRO shall mean a qualified domestic relations order as defined by the
Code or Title I of the Employee Retirement Income Security Act of 1974, as
amended, or the rules thereunder.
Qualified Person is defined in the recitals to this Agreement.
Restricted Units shall mean Units awarded under Article VI of this
Plan.
Restricted Unitholder shall mean an Independent Board Member, Employee
or consultant granted an award of Restricted Units under Article VI of this
Plan.
Rule 16b-3 shall mean Rule 16b-3 under the Exchange Act, as such Rule
may be amended from time to time.
Securities Act shall mean the Securities Act of 1933, as amended.
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Termination of Consultancy shall mean the time when the engagement of
an Optionee, Grantee or Restricted Unitholder as a consultant to a Partnership,
a Corporate Subsidiary or a Partnership Subsidiary is terminated for any reason,
with or without cause, including, but not by way of limitation, a termination by
resignation, discharge, death or retirement; but excluding terminations where
there is a simultaneous commencement of employment with a Partnership, a
Corporate Subsidiary or a Partnership Subsidiary. The Committee, in its absolute
discretion, shall determine the effect of all matters and questions relating to
Termination of Consultancy, including, but not by way of limitation, the
question of whether a Termination of Consultancy resulted from a discharge for
good cause, and all questions of whether particular leaves of absence constitute
Terminations of Consultancy. Notwithstanding any other provision of this Plan, a
Partnership or any Corporate Subsidiary or Partnership Subsidiary has an
absolute and unrestricted right to terminate a consultant's service at any time
for any reason whatsoever, with or without cause, except to the extent expressly
provided otherwise in writing.
Termination of Membership shall mean the time when a Restricted
Unitholder who is an Independent Board Member ceases to be a Board Member for
any reason, including, but not by way of limitation, a termination by
resignation, failure to be elected, removal, death or retirement; but excluding
(i) terminations where there is simultaneously established an employment
relationship between the former Board Member and a Partnership or any Corporate
Subsidiary or Partnership Subsidiary and (ii) at the discretion of the
Committee, terminations which are followed by the simultaneous establishment of
a consulting relationship by a Partnership or a Corporate Subsidiary or
Partnership Subsidiary with the former Board Member. The relevant Board, in its
sole and absolute discretion, shall determine the effect of all matters and
questions relating to Termination of Membership with respect to Independent
Board Members.
Termination of Employment shall mean the time when the
employee-employer relationship between the Optionee, Grantee or Restricted
Unitholder and a Partnership or any Corporate Subsidiary or Partnership
Subsidiary is terminated for any reason, with or without cause, including, but
not by way of limitation, a termination by resignation, discharge, death,
disability or retirement; but excluding (i) at the discretion of the Committee,
terminations where there is a simultaneous reemployment or continuing employment
of an Optionee, Grantee or Restricted Unitholder by a Partnership or any
Corporate Subsidiary or Partnership Subsidiary, (ii) at the discretion of the
Committee, terminations which result in a temporary severance of the
employee-employer relationship and (iii) at the discretion of the Committee,
terminations which are followed by the simultaneous establishment of a
consulting relationship by a Partnership or a Corporate Subsidiary or
Partnership Subsidiary with the former employee. The Committee, in its absolute
discretion, shall determine the effect of all matters and questions relating to
Termination of Employment, including, but not by way of limitation, the question
of whether a Termination of Employment resulted from a discharge for good cause,
and all questions of whether particular leaves of absence constitute
Terminations of Employment; provided, however, that, with respect to Incentive
Unit Options, a leave of absence, change in status from an employee to an
independent contractor or other change in the employee-employer relationship
shall constitute a Termination of Employment if, and to the extent that, such
leave of absence, change in status or
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other change interrupts employment for the purposes of Section 422(a)(2) of the
Code and the then applicable regulations and revenue rulings under said Section.
Notwithstanding any other provision of this Plan, either Partnership or any
Corporate Subsidiary or Partnership Subsidiary has an absolute and unrestricted
right to terminate an Employee's employment at any time for any reason
whatsoever, with or without cause, except to the extent expressly provided
otherwise in writing.
Units shall mean units of limited partner interest in a Partnership,
but excluding any warrants, options or other rights to purchase units.
Unit Appreciation Right shall mean a unit appreciation right granted
under Article VIII of this Plan.
Unitholders shall mean holders of Units.
Unit Payment shall mean (i) a payment in the form of Units, or (ii) an
option or other right to purchase Units, as part of a deferred compensation
arrangement, made in lieu of all or any portion of the compensation, including,
but not by way of limitation, salary, bonuses and commissions, that would
otherwise become payable to a key Employee or consultant in cash, awarded under
Article VII of this Plan.
ARTICLE II
UNITS SUBJECT TO PLAN; TANDEM AWARDS
Section 2.1 Units Subject to Plan.
(a) The securities subject to this Plan shall be Units. The
aggregate number of Units which may subject to Awards shall not exceed Thirty
Million (30,000,000). The Units issuable upon exercise of such Awards may be
either previously authorized but unissued Units or treasury Units.
(b) Upon the effectiveness of this Plan, each option outstanding
under the 1993 Unit Option Plan of PIMCO Advisors L.P. ("1993 Option") shall, to
the extent the holder shall have consented thereto, be replaced by an Option
granted under this Plan. Each such Option shall cover the same number of Units
and have the same Option price, term and vesting schedule as the 1993 Option
which it replaces.
(c) Upon the effectiveness of this Plan, each option outstanding
under the 1996 Unit Incentive Plan of PIMCO Advisors L.P. ("1996 Option") shall
be replaced by an Option granted under this Plan. Each such Option shall cover
the same number of Units and have the same Option price, term and vesting
schedule as the 1996 Option which it replaces.
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(d) Upon the effectiveness of this Plan, each option outstanding
under the Oppenheimer Capital Amended and Restated Restricted Option Plan
("Opcap Option") shall be replaced by an Option granted under this Plan. Each
such Option shall cover the same number of Units and have the same Option price,
term and vesting schedule as the Opcap Option which it replaces.
(e) Upon the effectiveness of this Plan, each right to receive
Holdings LP Units outstanding under the Oppenheimer Capital Amended and Restated
Restricted Unit Plan ("Opcap Right") shall be replaced by an award of Deferred
Units under this Plan. Each such award shall cover the same number of Units and
have the same term and vesting schedule as the Opcap Right which it replaces.
(f) Upon the effectiveness of this Plan and its approval by the
Unitholders of the Partnerships, each unit appreciation right granted by
Oppenheimer Capital on November 4, 1997 in connection with the acquisition by
PIMCO Advisors of a general partner interest in Oppenheimer Capital ("Opcap
UAR") shall be replaced by an award of Deferred Units under this Plan. Each such
award shall cover the same number of Units and have the same term and vesting
schedule as the Opcap UAR which it replaces.
(g) The maximum number of Units which may be subject to Awards under
the Plan to any individual in any calendar year shall not exceed the Award
Limit. To the extent required by Section 162(m) of the Code, Units subject to
Options which are canceled continue to be counted against the Award Limit and
if, after grant of an Option, the price of Units subject to such Option is
reduced, the transaction is treated as a cancellation of the Option and a grant
of a new Option and both the Option deemed to be canceled and the Option deemed
to be granted are counted against the Award Limit. Furthermore, to the extent
required by Section 162(m) of the Code, if, after grant of a Unit Appreciation
Right, the base amount on which unit appreciation is calculated is reduced to
reflect a reduction in the Fair Market Value of Units, the transaction is
treated as a cancellation of the Unit Appreciation Right and a grant of a new
Unit Appreciation Right and both the Unit Appreciation Right deemed to be
canceled and the Unit Appreciation Right deemed to be granted are counted
against the Award Limit.
Section 2.2 Add-Back of Options and Other Rights.
If any Option or other right to acquire Units under any other Award
under this Plan, expires or is canceled without having been fully exercised, or
is exercised in whole or in part for cash as permitted by this Plan, the number
of Units subject to such Option or other right but as to which such Option or
other right was not exercised prior to its expiration, cancellation or exercise
may again be optioned, granted or awarded hereunder, subject to the limitations
of Section 2.1. Units which are delivered by the Optionee or Grantee or withheld
by a Partnership upon the exercise of any Option or other award under this Plan
in payment of the exercise price thereof may again be optioned, granted or
awarded hereunder, subject to the limitations of Section 2.1. If any Restricted
Units are forfeited by the Grantee or repurchased by a Partnership pursuant to
Section 6.8 hereof, such Units may again be optioned, granted or awarded
hereunder, subject to the limitations of Section 2.1.
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Section 2.3 Tandem Awards.
Each Option or other right to acquire Units under any Award under this
Plan shall provide that (i) unless the Participant is a Qualified Person at the
time of issuance of Units pursuant to such Option or other right, such
Participant shall receive Holdings LP Units upon such issuance and (ii) that if
such Participant is a Qualified Person at the time of issuance of Units pursuant
to such Option or other right, such Participant shall have the option at his
election, made at the time of such issuance, to receive either PIMCO Advisors LP
Units or Holdings LP Units, or any combination thereof, upon such issuance.
ARTICLE III
GRANTING OF OPTIONS
Section 3.1 Eligibility.
Any Employee or consultant selected by the Committee pursuant to
Section 3.4(a)(i) shall be eligible to be granted an Option; provided, however,
that notwithstanding anything in Section 3.4(a)(i) to the contrary, no Option
may be granted by the Committee except and unless the recipient thereof shall
have been recommended by Management.
Section 3.2 Disqualification for Unit Ownership.
No person may be granted an Incentive Unit Option under this Plan if
such person, at the time the Incentive Unit Option is granted, owns securities
possessing more than ten percent (10%) of the total combined voting power of all
classes of securities of a Partnership or securities of any then existing
Corporate Subsidiary or Partnership Subsidiary unless such Incentive Unit Option
conforms to the applicable provisions of Section 422 of the Code.
Section 3.3 Qualification of Incentive Unit Options.
No Incentive Unit Option shall be granted unless such Option, when
granted, qualifies as an "incentive stock option" under Section 422 of the Code.
No Incentive Unit Option shall be granted to any person who is not an Employee.
Section 3.4 Granting of Options.
(a) The Committee shall from time to time, in its absolute discretion,
and subject to applicable limitations of this Plan:
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(i) Determine which Employees are key Employees and select from
among the key Employees or consultants (including Employees or consultants who
have previously received Options or other awards under this Plan) such of them
as in its opinion should be granted Options;
(ii) Subject to the Award Limit, determine the number of Units to
be subject to such Options granted to the selected key Employees or consultants;
(iii) Determine whether such Options are to be Incentive Unit
Options or Non-Qualified Unit Options and whether such Options are to qualify as
performance-based compensation as described in Section 162(m)(4)(C) of the Code;
and
(iv) Determine the terms and conditions of such Options, consistent
with this Plan; provided, however, that the terms and conditions of Options
intended to qualify as performance-based compensation as described in Section
162(m)(4)(C) of the Code shall include, but not be limited to, such terms and
conditions as may be necessary to meet the applicable provisions of Section
162(m) of the Code.
(b) Upon the selection of a key Employee or consultant to be granted an
Option, the Committee shall instruct the Secretary of the Issuer (or Issuers) to
issue the Option and may impose such conditions on the grant of the Option as it
deems appropriate. Without limiting the generality of the preceding sentence,
the Committee may, in its discretion and on such terms as it deems appropriate,
require as a condition on the grant of an Option to an Employee or consultant
that the Employee or consultant surrender for cancellation some or all of the
unexercised Options, awards of Restricted Units or Deferred Units, Unit
Appreciation Rights, Unit Payments or other rights which have been previously
granted to him under this Plan or otherwise. An Option, the grant of which is
conditioned upon such surrender, may have an option price lower (or higher) than
the exercise price of such surrendered Option or other award, may cover the same
(or a lesser or greater) number of Units as such surrendered Option or other
award, may contain such other terms as the Committee deems appropriate, and
shall be exercisable in accordance with its terms, without regard to the number
of Units, the price, the exercise period or any other term or condition of such
surrendered Option or other award.
(c) Any Incentive Unit Option granted under this Plan may be modified
by the Committee to disqualify such Option from treatment as an "incentive stock
option" under Section 422 of the Code.
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ARTICLE IV
TERMS OF OPTIONS
Section 4.1 Option Agreement.
Each Option shall be evidenced by a written Unit Option Agreement,
which shall be executed by the Optionee and an authorized officer of the Issuer
(or Issuers) and which shall contain such terms and conditions as the Committee
shall determine, consistent with this Plan. Unit Option Agreements evidencing
Options intended to qualify as performance-based compensation as described in
Section 162(m)(4)(C) of the Code shall contain such terms and conditions as may
be necessary to meet the applicable provisions of Section 162(m) of the Code.
Unit Option Agreements evidencing Incentive Unit Options shall contain such
terms and conditions as may be necessary to meet the applicable provisions of
Section 422 of the Code.
Section 4.2 Option Price.
The price per Unit of Units subject to each Option shall be set by the
Committee; provided, however, that (i) in the case of Incentive Unit Options and
Options intended to qualify as performance-based compensation as described in
Section 162(m)(4)(C) of the Code, such price shall not be less than 100% of the
Fair Market Value of the underlying Unit on the date the Option is granted; (ii)
in the case of Incentive Unit Options granted to an individual then owning
(within the meaning of Section 424(d) of the Code) more than 10% of the total
combined voting power of all classes of securities of a Partnership or of any
Corporate Subsidiary or Partnership Subsidiary, such price shall not be less
than 110% of the Fair Market Value of the underlying Unit on the date the Option
is granted.
Section 4.3 Option Term.
The term of an Option shall be set by the Committee in its discretion;
provided, however, that, in the case of Incentive Unit Options, the term shall
not be more than ten (10) years from the date the Incentive Unit Option is
granted, or five (5) years from such date if the Incentive Unit Option is
granted to an individual then owning (within the meaning of Section 424(d) of
the Code) more than 10% of the total combined voting power of all classes of
securities of a Partnership or of any Corporate Subsidiary or Partnership
Subsidiary. Except as limited by requirements of Section 422 of the Code and
regulations and rulings thereunder applicable to Incentive Unit Options, the
Committee may extend the term of any outstanding Option in connection with any
Termination of Employment or Termination of Consultancy of the Optionee, or
amend any other term or condition of such Option relating to such a termination.
Section 4.4 Option Vesting
(a) The period during which the right to exercise an Option in whole
or in part vests in the Optionee shall be set by the Committee and the Committee
may determine that an Option may not be exercised in whole or in part for a
specified period after it is granted; provided, however, that, unless the
Committee otherwise provides in the terms of the Option, no Option shall be
exercisable by any Optionee who is then subject to Section 16 of the Exchange
Act within the period ending six months and one day after the date the Option is
granted; and provided further that unless otherwise determined by the Committee
at the time of grant of an Option, Options shall become fully vested on the date
which is thirty (30) days prior to the
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effective date of any transaction described in Section 4.4(b)(iii)(A) or (B)
unless in connection with any such transaction, arrangements have been made for
the continuation of such Options or the substantial economic equivalent thereof.
At any time after grant of an Option, the Committee may, in its sole and
absolute discretion and subject to whatever terms and conditions it selects,
accelerate the period during which an Option vests.
(b) Except as otherwise determined by the Committee in connection
with an award, Options granted under the Plan shall be exercisable only (i)
following January 1, 1998 in accordance with the terms hereof, (ii) during the
30-day period prior to and including the effective date of the dissolution or
liquidation of the Issuer (with respect to the Options covering Units of such
Issuer), or (iii) unless arrangements have been made for the continuation of
such Options or the economic equivalent thereof, during the 30-day period prior
to and including the effective date of (A) the sale of all or substantially all
the assets of the Issuer or (B) the merger or consolidation of the Issuer with
another entity in which Issuer (or any successor entity in which the Unitholders
of the Issuer hold at least fifty percent (50%) of the total common equity
outstanding immediately following the transaction) is not the surviving entity,
in each case in a transaction effectively constituting a sale of the Issuer or
its business to a third party or parties (in each case, with respect to the
Options covering Units of such Issuer). The Partnership shall give written
notice to any Optionee that Options held hereunder have become exercisable under
the circumstances described in clause (ii) or (iii) of this paragraph at least
thirty (30) days prior to the effective date of the relevant transaction. Except
as otherwise determined by the Committee in connection with the grant of
Options, in any of the circumstances set forth in clauses (i), (ii) or (iii)
hereof, Options held by the relevant Optionee shall be exercisable only to the
extent vested as of the date of exercise, and Options (including vested Options
and any unvested Options) held upon the first to occur of (x) the expiration of
any period set forth in clause (ii) or (iii) of this paragraph, or (y) the date
which is the end of the Issuer's tenth full fiscal year after the date of grant
of the relevant Options, shall expire and terminate.
(c) No portion of an Option which is unexercisable at Termination of
Employment or Termination of Consultancy, as applicable, shall thereafter become
exercisable, except as may be otherwise provided by the Committee either in the
Unit Option Agreement or by action of the Committee following the grant of the
Option.
(d) To the extent that the aggregate Fair Market Value of Units with
respect to which "incentive stock options" (within the meaning of Section 422 of
the Code, but without regard to Section 422(d) of the Code) are exercisable for
the first time by an Optionee during any calendar year (under the Plan and all
other incentive unit option plans of the Partnerships and any Corporate
Subsidiary or Partnership Subsidiary) exceeds $100,000, such Options shall be
treated as Non-Qualified Unit Options to the extent required by Section 422 of
the Code. The rule set forth in the preceding sentence shall be applied by
taking Options into account in the order in which they were granted. For
purposes of this Section 4.4(d), the Fair Market Value of Units shall be
determined as of the time the Option with respect to such Units is granted.
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Section 4.5 Consideration.
In consideration of the granting of an Option, the Optionee shall
agree, in the written Unit Option Agreement, to remain in the employ of, or to
consult for, the Issuer (or Issuers) or any Corporate Subsidiary or Partnership
Subsidiary for a period of at least one year (or such shorter period as may be
fixed in the Unit Option Agreement or by action of the Committee following the
grant of the Option) after the Option is granted. Nothing in this Plan or in any
Unit Option Agreement hereunder shall confer upon any Optionee any right to
continue in the employ of, or as a consultant for, the Issuer (or Issuers) or
any Corporate Subsidiary or Partnership Subsidiary, or shall interfere with or
restrict in any way the rights of the Issuer (or Issuers) or any Corporate
Subsidiary or Partnership Subsidiary, which are hereby expressly reserved, to
discharge any Optionee at any time for any reason whatsoever, with or without
good cause.
ARTICLE V
EXERCISE OF OPTIONS
Section 5.1 Partial Exercise.
An exercisable Option may be exercised in whole or in part. However, an
Option shall not be exercisable with respect to fractional Units and the
Committee may require that, by the terms of the Option, a partial exercise be
made with respect to a minimum number of Units.
Section 5.2 Manner of Exercise.
All or a portion of an exercisable Option shall be deemed exercised
upon delivery of all of the following to the Secretary of the Issuer or his
office:
(i) A written notice complying with the applicable rules established
by the Committee stating that the Option, or a portion thereof, is exercised.
The notice shall be signed by the Optionee or other person then entitled to
exercise the Option or such portion;
(ii) Such representations and documents as the Committee, in its
absolute discretion, deems necessary or advisable to effect compliance with all
applicable provisions of the Securities Act and any other federal or state
securities laws or regulations. The Committee may, in its absolute discretion,
also take whatever additional actions it deems appropriate to effect such
compliance including, without limitation, placing legends on Unit certificates
and issuing stop-transfer notices to agents and registrars;
(iii) In the event that the Option shall be exercised pursuant to
Section 10.1 by any person or persons other than the Optionee, appropriate proof
of the right of such person or persons to exercise the Option; and
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(iv) Full cash payment to the Secretary of the Issuer for the Units
with respect to which the Option, or portion thereof, is exercised. However, the
Committee may in its discretion (i) allow a delay in payment up to thirty (30)
days from the date the Option, or portion thereof, is exercised; (ii) allow
payment, in whole or in part, through the delivery of Units owned by the
Optionee, duly endorsed for transfer to the Issuer with a Fair Market Value on
the date of delivery equal to the aggregate exercise price of the Option or
exercised portion thereof; (iii) subject to the timing requirements of Section
5.3, allow payment, in whole or in part, through the surrender of Units then
issuable upon exercise of the Option having a Fair Market Value on the date of
Option exercise equal to the aggregate exercise price of the Option or exercised
portion thereof; (iv) allow payment, in whole or in part, through the delivery
of property of any kind which constitutes good and valuable consideration; (v)
allow payment, in whole or in part, through the delivery of a full recourse
promissory note bearing interest (at no less than such rate as shall then
preclude the imputation of interest under the Code) and payable upon such terms
as may be prescribed by the Committee, or (vi) allow payment through any
combination of the consideration provided in the foregoing subparagraphs (ii),
(iii), (iv) and (v). In the case of a promissory note, the Committee may also
prescribe the form of such note and the security to be given for such note. The
Option may not be exercised, however, by delivery of a promissory note or by a
loan from the Issuer when or where such loan or other extension of credit is
prohibited by law.
Section 5.3 Certain Timing Requirements.
At the discretion of the Committee, Units issuable to the Optionee upon
exercise of the Option may be used to satisfy the Option exercise price or the
tax withholding consequences of such exercise, in the case of persons subject to
Section 16 of the Exchange Act, only (i) during the period beginning on the
third business day following the date of release of the quarterly or annual
summary statement of sales and earnings of the Issuer and ending on the twelfth
business day following such date or (ii) pursuant to an irrevocable written
election by the Optionee to use Units issuable to the Optionee upon exercise of
the Option to pay all or part of the Option price or the withholding taxes made
at least six months prior to the payment of such Option price or withholding
taxes.
Section 5.4 Conditions to Issuance of Unit Certificates.
The Issuer shall not be required to issue or deliver any certificate or
certificates for Units purchased upon the exercise of any Option or portion
thereof prior to fulfillment of all of the following conditions:
(i) The completion of any registration or other qualification of
such Units under any state or federal law, or under the rulings or regulations
of the Securities and Exchange Commission or any other governmental regulatory
body which the Committee shall, in its absolute discretion, deem necessary or
advisable,
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(ii) The obtaining of any approval or other clearance from any
state or federal governmental agency which the Committee shall, in its absolute
discretion, determine to be necessary or advisable;
(iii) The lapse of such reasonable period of time following the
exercise of the Option as the Committee may establish from time to time for
reasons of administrative convenience; and
(iv) The receipt by the Issuer of full payment for such Units,
including payment of any applicable withholding tax.
Section 5.5 Rights as Unitholders.
The holders of Options shall not be, nor have any of the rights or
privileges of, Unitholders in respect of any Units purchasable upon the exercise
of any part of an Option unless and until certificates representing such Units
have been issued by the Issuer to such holders.
Section 5.6 Ownership and Transfer Restrictions.
The Committee, in its absolute discretion, may impose such restrictions
on the ownership and transferability of Units purchasable upon the exercise of
an Option as it deems appropriate. Any such restriction shall be set forth in
the respective Unit Option Agreement and may be referred to on the certificates
evidencing such units. The Committee may require the Employee to give the Issuer
prompt notice of any disposition of Units acquired by exercise of an Incentive
Unit Option within (i) two years from the date of granting such Option to such
Employee or (ii) one year after the transfer of such units to such Employee. The
Committee may direct that the certificates evidencing Units acquired by exercise
of an Option refer to such requirement to give prompt notice of disposition.
ARTICLE VI
AWARD OF RESTRICTED UNITS
Section 6.1 Eligibility.
Any Employee or consultant selected by the Committee pursuant to
Section 6.2(a)(i) shall be eligible to be granted Restricted Units. Each
Independent Board Member shall be eligible to be granted Restricted Units at the
times and in the manner set forth in Section 6.3.
Section 6.2 Award of Restricted Units to Eligible Employees and
Consultants.
(a) The Committee shall from time to time, in its absolute
discretion:
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(i) Select from among the key Employees or consultants
(including Employees or consultants who have previously received other awards
under this Plan) such of them as in its opinion should be awarded Restricted
Units; and
(ii) Determine the purchase price, if any, and other terms and
conditions applicable to such Restricted Units, consistent with this Plan.
(b) The Committee shall establish the purchase price, if any, and
form of payment for Restricted Units. In all cases, legal consideration shall be
required for each issuance of Restricted Units.
(c) Upon the selection of a key Employee or consultant to be
awarded Restricted Units, the Committee shall instruct the Secretary of the
Issuer to issue such Restricted Units and may impose such conditions on the
issuance of such Restricted Units as it deems appropriate.
(d) Notwithstanding anything herein to the contrary, no Restricted
Unit may be granted by the Committee under this Section 6.2 except and unless
the recipient thereof shall have been recommended by Management.
Section 6.3 Award of Restricted Units to Independent Board Members.
During the term of the Plan, each person who is an Independent Board
Member shall be eligible to make an election to receive all or any portion (but
with a minimum of 20%, if any such election is made) of his annual retainer fee
in the form of Restricted Units. Such an election must be in writing, must be
delivered to the Secretary of the Issuer and shall apply to retainer fees
payable from and after the date that the election is made. Unless otherwise
permitted by the Board, such elections shall be made no more than once with
respect to compensation payable in any calendar year. The number of Restricted
Units to be issued pursuant to such an election shall be determined by dividing
the portion of the Independent Board Member's retainer fee that is to be paid in
Restricted Units by ninety-one percent of the Fair Market Value of a Unit on the
date that the Restricted Units are issued. Restricted Units shall be issued on
the date that the retainer fee would otherwise be paid. All restrictions on such
units shall lapse at the expiration of the Independent Board Member's term;
provided however, that in no event may Restricted Units be sold, assigned or
otherwise transferred until at least six months have elapsed from (but
excluding) the date on which the Restricted Units were issued. Unless otherwise
permitted by the relevant Board, an election with respect to compensation
payable in a given calendar year shall be irrevocable.
Section 6.4 Restricted Unit Agreement.
Restricted Units shall be issued only pursuant to a written Restricted
Unit Agreement, which shall be executed by the selected key Employee or
consultant and an authorized officer of the Issuer and which shall contain such
terms and conditions as the
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Committee (or the relevant Board, in the case of Restricted Units granted to
Independent Board Members) shall determine, consistent with this Plan.
Section 6.5 Consideration.
As consideration for the issuance of Restricted Units, in addition to
payment of any purchase price, the Restricted Unitholder shall agree, in the
written Restricted Unit Agreement, to remain in the employ of or to consult for
the Issuer or any Corporate Subsidiary or Partnership Subsidiary for a period of
at least one year after the Restricted Units are issued (or such shorter period
as may be fixed in the Restricted Unit Agreement or by action of the Committee
following grant of Restricted Units), or, in the case of an Independent Board
Member, to serve as an Independent Board Member until the expiration of his
term. Nothing in this Plan or in any Restricted Unit Agreement hereunder shall
confer on any Restricted Unitholder any right to continue in the employ of, or
as a consultant for, the Issuer or any Corporate Subsidiary or Partnership
Subsidiary, or to serve as an Independent Board Member, or shall interfere with
or restrict in any way the rights of the Issuer or any Corporate Subsidiary or
Partnership Subsidiary, which are hereby expressly reserved, to discharge or
remove any Restricted Unitholder at any time for any reason whatsoever, with or
without good cause.
Section 6.6 Rights as Unitholders.
Upon delivery of the Restricted Units to the escrow holder pursuant to
Section 6.9, the Restricted Unitholder shall have, unless otherwise provided by
the Committee (or the relevant Board, in the case of Restricted Units granted to
an Independent Board Member), all the rights of a holder of Units with respect
to such Units, subject to the restrictions in his Restricted Unit Agreement,
including the right to receive distributions paid or made with respect to the
Units; provided, however, that in the discretion of the Committee (or the
relevant Board, in the case of Restricted Units granted to Independent Board
Members), any extraordinary distributions with respect to Units shall be subject
to the restrictions set forth in Section 6.7.
Section 6.7 Restriction.
All Restricted Units issued under this Plan (including any Units
received by holders thereof with respect to Restricted Units as a result of unit
distributions, unit splits or any other form of recapitalization) shall,
pursuant to the terms of each individual Restricted Unit Agreement, be subject
to such restrictions as the Committee (or the relevant Board, in the case of
Restricted Units granted to Independent Board Members) shall provide, which
restrictions may include, without limitation, restrictions concerning voting
rights and transferability and restrictions based on duration of employment with
a Partnership, Partnership performance and individual performance; provided,
however, that no Restricted Units granted to a person subject to Section 16 of
the Exchange Act shall be sold, assigned or otherwise transferred until at least
six months have elapsed from (but excluding) the date on which the Restricted
Units were issued, and provided, further, that by action taken after Restricted
Units are issued, the Committee (or the relevant Board, in the case of
Restricted Units granted to Independent Board Members) may,
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on such terms and conditions as it may determine to be appropriate, remove any
or all of the restrictions imposed by the terms of the Restricted Unit
Agreement. Restricted Units may not be sold or encumbered until all restrictions
are terminated or expire. Unless provided otherwise by the Committee (or the
relevant Board, in the case of Restricted Units granted to Independent Board
Members), if no consideration was paid by the Restricted Unitholder upon
issuance, a Restricted Unitholder's rights in unvested Restricted Units shall
lapse upon Termination of Employment or, if applicable, upon Termination of
Consultancy or Termination of Membership with the Partnerships.
Section 6.8 Repurchase of Restricted Units.
The Committee (or the relevant Board, in the case of Restricted Units
granted to Independent Board Members) shall provide in the terms of each
individual Restricted Unit Agreement that the Issuer shall have the right to
repurchase from the Restricted Unitholder the Restricted Units then subject to
restrictions under the Restricted Unit Agreement immediately upon a Termination
of Employment or, if applicable, upon a Termination of Consultancy or
Termination of Membership, at a cash price per Restricted Unit equal to the
price per Unit paid by the Restricted Unitholder for such Restricted Units;
provided, however, that provision may be made that no such right of repurchase
shall exist in the event of a Termination of Employment, Termination of
Consultancy or Termination of Membership without cause, or following a change in
control of the Issuer or because of the Restricted Unitholder's retirement,
death, disability or otherwise.
Section 6.9 Escrow.
The Secretary of the Issuer, or such other escrow holder as the
Committee (or the relevant Board, in the case of Restricted Units granted to
Independent Board Members) may appoint, shall retain physical custody of each
certificate representing Restricted Units until all of the restrictions imposed
under the Restricted Unit Agreement with respect to the Units evidenced by such
certificate expire or shall have been removed.
Section 6.10 Legend.
In order to enforce the restrictions imposed upon Restricted Units
hereunder, the Committee (or the relevant Board, in the case of Restricted Units
granted to Independent Board Members) shall cause a legend or legends to be
placed on certificates representing all Restricted Units that are still subject
to restrictions under Restricted Unit Agreements, which legend or legends shall
make appropriate reference to the conditions imposed thereby.
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ARTICLE VII
UNIT PAYMENTS, DEFERRED UNITS AND ADDITIONAL DEFERRED UNITS
Section 7.1 Unit Payments.
Any key Employee or consultant selected by the Committee may receive
Unit Payments in the manner determined from time to time by the Committee. The
number of Units shall be determined by the Committee and may be based upon the
Fair Market Value, book value, net profits or other measure of the value of
Units or other specific performance criteria determined appropriate by the
Committee, determined on the date such Unit Payment is made or on any date
thereafter. Notwithstanding anything herein to the contrary, no Unit Payment may
be granted by the Committee except and unless the recipient thereof shall have
been recommended by Management
Section 7.2 Deferred Units/Additional Deferred Units
(a) Any key Employee or consultant selected by the Committee may be
granted an award of Deferred Units in the manner determined from time to time by
the Committee. The number of Deferred Units shall be determined by the Committee
and may be linked to the market value, book value, net profits or other measure
of the value of Units or other specific performance criteria determined to be
appropriate by the Committee, in each case on a specified date or dates or over
any period or periods determined by the Committee. Units underlying a Deferred
Unit award will not be issued until the Deferred Unit award has vested, pursuant
to a vesting schedule or performance criteria set by the Committee; provided
however, that no Deferred Units granted to a person subject to Section 16 of the
Exchange Act shall vest until at least six months have elapsed from (but
excluding) the date on which the Deferred Units were issued. Unless otherwise
provided by the Committee, a Grantee of Deferred Units shall have no rights as a
Unitholder with respect to such Deferred Units until such time as the award has
vested and the Units underlying the award have been issued. Notwithstanding
anything herein to the contrary, no Deferred Units may be granted by the
Committee except and unless the recipient thereof shall have been recommended by
Management.
(b) On the date that a holder of Units would receive a dividend or
other distribution in respect of such Units, the Committee shall grant to each
Key employee or consultant who has been granted Deferred Units of the same
Issuer and class additional Deferred Units ("Additional Deferred Units") of such
Issuer and class in an amount equal to the amount of such dividend or other
distribution, divided by the Fair Market Value of such Units on the date such
dividend or other distribution was paid, and multiplied by the number of
Deferred Units of such Issuer and class held by such Key employee or consultant
on the record date for such dividend or distribution. For purposes of
determining the number of Additional Deferred Units to be granted pursuant to
the preceding sentence, any fractional Unit greater than 50% shall be rounded up
to one Unit and any fractional Unit less than 50% shall be disregarded. Any
Additional Deferred Units granted pursuant to this Section 7.2(b) shall be
subject to the provisions of this Plan; provided, however, that any Additional
Deferred Units granted hereunder shall be subject to the vesting schedule
applicable to the unvested portion of the Deferred Units to which it relates.
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Section 7.3 Deferred Unit Agreement, Unit Payment Agreement.
Each award of Deferred Units, Additional Deferred Units and/or Unit
Payments shall be evidenced by a written agreement, which shall be executed by
the Grantee and an authorized officer of the Issuer and which shall contain such
terms and conditions as the Committee shall determine, consistent with this
Plan.
Section 7.4 Term.
The term of an award of Deferred Units, Additional Deferred Units
and/or Unit Payments shall be set by the Committee in its discretion.
Section 7.5 Exercise or Payment Upon Termination of Employment.
An award of Deferred Units, Additional Deferred Units and/or Unit
Payments is exercisable or payable only while the Grantee is an Employee or
consultant; provided, however, that the Committee may determine that the award
of Deferred Units, Additional Deferred Units and/or Unit Payments may be
exercised or paid subsequent to Termination of Employment or Termination of
Consultancy without cause, or following a change in control of a Partnership, or
because of the Grantee's retirement, death, disability or otherwise.
Section 7.6 Consideration.
In consideration of the granting of an award of Deferred Units,
Additional Deferred Units and/or Unit Payments, the Grantee shall agree, in a
written agreement, to remain in the employ of, or to consult for, the Issuer or
any Corporate Subsidiary or Partnership Subsidiary for a period of at least one
year after such award of Deferred Units, Additional Deferred Units and/or Unit
Payments is granted (or such shorter period as may be fixed in such agreement or
by action of the Committee following such grant). Nothing in this Plan or in any
agreement hereunder shall confer on any Grantee any right to continue in the
employ of, or as a consultant for, the Issuer or any Corporate Subsidiary or
Partnership Subsidiary, or shall interfere with or restrict in any way the
rights of the Issuer or any Corporate Subsidiary or Partnership Subsidiary,
which are hereby expressly reserved, to discharge any Grantee at any time for
any reason whatsoever, with or without good cause.
ARTICLE VIII
UNIT APPRECIATION RIGHTS
Section 8.1 Grant of Unit Appreciation Rights.
A Unit Appreciation Right may be granted to any key Employee or
consultant selected by the Committee. A Unit Appreciation Right may be granted
(i) in connection and simultaneously with the grant of an Option, (ii) with
respect to a previously granted Option or (iii) independent of an Option. A Unit
Appreciation Right shall be subject to such terms and
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conditions not inconsistent with this Plan as the Committee shall impose and
shall be evidenced by a written Unit Appreciation Right Agreement, which shall
be executed by the Grantee and an authorized officer of the Issuer. The
Committee, in its discretion, may determine whether a Unit Appreciation Right is
to qualify as performance-based compensation as described in Section
162(m)(4)(C) of the Code and Unit Appreciation Right Agreements evidencing Unit
Appreciation Rights intended to so qualify shall contain such terms and
conditions as may be necessary to meet the applicable provisions of section
162(m) of the Code. Without limiting the generality of the foregoing, the
Committee may, in its discretion and on such terms as it deems appropriate,
require as a condition of the grant of a Unit Appreciation Right to an Employee
or consultant that the Employee or consultant surrender for cancellation some or
all of any unexercised Options or awards of Restricted Units, Deferred Units,
Unit Appreciation Rights, Unit Payments or other rights which have been
previously granted to the Employee or consultant under this Plan or otherwise. A
Unit Appreciation Right, the grant of which is conditioned upon such surrender,
may have an exercise price lower (or higher) than the exercise price of the
surrendered Option or other award, may cover the same (or a lesser or greater)
number of Units as such surrendered Option or other award, may contain such
other terms as the Committee deems appropriate, and shall be exercisable in
accordance with its terms, without regard to the number of Units, the price, the
exercise period or any other term or condition of such surrendered Option or
other award. Notwithstanding anything herein to the contrary, no Unit
Appreciation Rights may be granted by the Committee except and unless the
recipient thereof shall have been recommended by Management.
Section 8.2 Coupled Unit Appreciation Rights.
(a) A Coupled Unit Appreciation Right ("CUAR") shall be related to
a particular Option and shall be exercisable only when and to the extent the
related Option is exercisable.
(b) A CUAR may be granted to the Grantee for no more than the
number of Units subject to the simultaneously or previously granted Option to
which it is coupled.
(c) A CUAR shall entitle the Grantee (or other person entitled to
exercise the Option pursuant to this Plan) to surrender to Issuer unexercised a
portion of the Option to which the CUAR relates (to the extent then exercisable
pursuant to its terms) and to receive from the Issuer in exchange therefor an
amount determined by multiplying the difference obtained by subtracting the
Option exercise price from the Fair Market Value of a Unit on the date of
exercise of the CUAR by the number of Units with respect to which the CUAR shall
have been exercised, subject to any limitations the Committee may impose.
Section 8.3 Independent Unit Appreciation Rights.
(a) An Independent Unit Appreciation Right ("IUAR") shall be
unrelated to any Option and shall have a term set by the Committee. An IUAR
shall be exercisable in such installments as the Committee may determine;
provided, however, that unless the Committee
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otherwise provides in the terms of the IUAR, no IUAR granted to a person subject
to Section 16 of the Exchange Act shall be exercisable until at least six months
have elapsed from (but excluding) the date on which the IUAR was granted. An
IUAR shall cover such number of Units as the Committee may determine. The
exercise price per Unit of Units subject to each IUAR shall be set by the
Committee. An IUAR is exercisable only while the Grantee is an Employee or
consultant; provided, however, that the Committee may determine that the IUAR
may be exercised subsequent to Termination of Employment or Termination of
Consultancy without cause, or following a change in control of a Partnership, or
because of the Grantee's retirement, death, disability or otherwise.
(b) An IUAR shall entitle the Grantee (or other person entitled to
exercise the IUAR pursuant to this Plan) to exercise all or a specified portion
of the IUAR (to the extent then exercisable pursuant to its terms) and to
receive from Holdings an amount determined by multiplying the difference
obtained by subtracting the exercise price per Unit of the IUAR from the Fair
Market Value of a Unit on the date of exercise of the IUAR by the number of
Units with respect to which the IUAR shall have been exercised, subject to any
limitations the Committee may impose.
Section 8.4 Payment and Limitations on Exercise.
(a) Payment of the amount determined under Section 8.2(c) and
8.3(b) above shall be in cash or in Units (based on the Fair Market Value of
such Units as of the date the Unit Appreciation Right is exercised) or a
combination thereof, as determined by the Committee. To the extent such payment
is effected in Units, it shall be made subject to satisfaction of all provisions
of Section 5.4 pertaining to Options.
(b) Grantees of Unit Appreciation Rights who are subject to Section
16 of the Exchange Act may, in the discretion of the Committee, be required to
comply with any timing or other restrictions under Rule 16b-3 applicable to the
settlement or exercise of a Unit Appreciation Right.
Section 8.5 Consideration.
In consideration of the granting of a Unit Appreciation Right, the
Grantee shall agree, in the written Unit Appreciation Right Agreement, to remain
in the employ of, or to consult for, the Issuer or any Corporate Subsidiary or
Partnership Subsidiary for a period of at least one year after the Unit
Appreciation Right is granted (or such shorter period as may be fixed in the
Unit Appreciation Right Agreement or by action of the Committee following grant
of the Unit Appreciation Right). Nothing in this Plan or in any Unit
Appreciation Right Agreement hereunder shall confer on any Grantee any right to
continue in the employ of, or as a consultant for, the Issuer or any Corporate
Subsidiary or Partnership Subsidiary, or shall interfere with or restrict in any
way the rights of the Issuer or any Corporate Subsidiary or Partnership
Subsidiary, which are hereby expressly reserved, to discharge any Grantee at any
time for any reason whatsoever, with or without good cause.
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ARTICLE IX
ADMINISTRATION
Section 9.1 The Committee.
(a) The committee administering this Plan (the "Committee") shall be
comprised of (i) the Unit Incentive Committee of the PIMCO Advisors Board and
(ii) all of the members of the Holdings Board, or if there are two or more
Independent Board Members of such board who are "disinterested persons" as
defined by Rule 16b-3 and who, if such Independent Board Members were directors
of a corporation, would otherwise meet the requirements for "outside directors"
for purposes of Section 162(m) of the Code, two or more such Independent Board
Members appointed to such committee by and holding office at the pleasure of the
Holdings Board.
(b) The Unit Incentive Committee shall consist of two or more
Independent Board Members of the PIMCO Advisors Board appointed by and holding
office at the pleasure of such board, each of whom is a "disinterested person"
as defined by Rule 16b-3 and, if such Independent Board Member were a director
of a corporation, would otherwise meet the requirements for an "outside
director" for purposes of Section 162(m) of the Code.
Section 9.2 Duties and Powers of Committee.
It shall be the duty of the Committee to conduct the general
administration of this Plan in accordance with its provisions. The Committee
shall have the power to interpret this Plan and the agreements pursuant to which
Awards are made, and to adopt such rules for the administration, interpretation,
and application of this Plan as are consistent therewith and to interpret, amend
or revoke any such rules. Notwithstanding the foregoing, the relevant Board
shall conduct the general administration of the Plan with respect to Restricted
Units granted to its Independent Board Members. Any such grant or award under
this Plan need not be the same with respect to each Optionee, Grantee or
Restricted Unitholder. Any such interpretations and rules with respect to
Incentive Unit Options shall be consistent with the provisions of Section 422 of
the Code
Section 9.3 Compensation; Professional Assistance; Good Faith Actions.
All actions taken and all interpretations and determinations made by
the Committee or the Boards in good faith shall be final and binding upon all
Optionees, Grantees, Restricted Unitholders, Holdings, PIMCO Advisors and all
other interested persons. No members of the Committee or Board Members shall be
personally liable for any action, determination or interpretation made in good
faith with respect to this Plan or any Awards,\, and all members of the
Committee and Board Members shall be fully protected by the Partnerships in
respect of any such action, determination or interpretation.
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ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.1 Not Transferable.
(a) Awards under this Plan may not be sold, pledged, assigned or
transferred in any manner other than by will or the laws of descent and
distribution or pursuant to a QDRO, unless and until such Awards have been
exercised, or the Units underlying such Awards have been issued, and all
restrictions applicable to such Units have lapsed. No Award or interest or right
therein shall be liable for the debts, contracts or engagements of the Optionee,
Grantee or Restricted Unitholder or his successors in interest or shall be
subject to disposition by transfer, alienation, anticipation, pledge,
encumbrance, assignment or any other means whether such disposition be voluntary
or involuntary or by operation of law by judgment, levy, attachment, garnishment
or any other legal or equitable proceedings (including bankruptcy), and any
attempted disposition thereof shall be null and void and of no effect, except to
the extent that such disposition is permitted by the preceding sentence.
(b) During the lifetime of the Optionee or Grantee, only he may
exercise an Award (or any portion thereof) granted to him under the Plan, unless
it has been disposed of pursuant to a QDRO. After the death of the Optionee or
Grantee, any exercisable portion of an Award may, prior to the time when such
portion becomes unexercisable under the Plan or the applicable Unit Option
Agreement or other agreement, be exercised by his personal representative or by
any person empowered to do so under the deceased Optionee's or Grantee's will or
under the then applicable laws of descent and distribution.
Section 10.2 Amendment, Suspension or Termination of this Plan.
This Plan may be wholly or partially amended or otherwise modified,
suspended or terminated at any time or from time to time by the Committee or the
Boards. However, without approval of the Unitholders of the Partnerships given
within twelve months before or after the action by the Committee, no action of
the Committee or the Boards may, except as provided in Section 10.3, increase
the limits imposed in Section 2.1 on the maximum number of Units which may be
issued under this Plan or modify the Award Limit, and no action of the Committee
or the Boards may be taken that would otherwise require Unitholder approval as a
matter of applicable law, regulation or rule. No amendment, suspension or
termination of this Plan shall, without the consent of the holder of an Award,
alter or impair any rights or obligations under such Award, unless the Award
itself otherwise expressly so provides. No Awards may be made during any period
of suspension or after termination of this Plan, and in no event may any
Incentive Unit Option be granted under this Plan after the first to occur of the
following events:
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(i) The expiration of ten years from the date the Plan is adopted
by the Partnerships; or
(ii) The expiration of ten years from the date the Plan is approved
by the Unitholders of the Partnerships under Section 10.5.
Section 10.3 Changes in Units or Assets of an Issuer; Acquisition or
Liquidation of an Issuer and Other Corporate Events.
(a) Subject to Section 10.3(e) but notwithstanding any other term of
this Plan, in the event that the Committee determines that any Unit distribution
(whether in the form of cash, units, other securities or other property),
recapitalization, reclassification, Unit split, reverse Unit split,
reorganization, merger, consolidation, split-up, spin-off, combination,
repurchase, liquidation, dissolution, or sale, transfer, exchange or other
disposition of all or substantially all of the assets of an Issuer, or exchange
of Units or other securities of an Issuer, any issuance of warrants or other
rights to purchase Units or other securities of an Issuer, or any other similar
transaction or event, in the Committee's sole discretion (or in the case of
Restricted Units granted to Independent Board Members, the relevant Board's sole
discretion), affects the Units such that an adjustment is determined by the
Committee to be appropriate in order to prevent dilution or enlargement of the
benefits or potential benefits intended to be made available under the Plan or
with respect to an Award, then the Committee (or the relevant Board, in the case
of Restricted Units granted to Independent Board Members) shall, in such manner
as it may deem equitable, adjust any or all of:
(i) the number and kind of Units (or other securities or property)
with respect to which Options, Unit Appreciation Rights or Unit Payments may be
granted under the Plan, or which may be granted as Restricted Units or Deferred
Units (including, but not limited to, adjustments of the limitations in Section
2.1 or the maximum number and kind of Units which may be issued and adjustments
of the Award Limit),
(ii) the number and kind of Units (or other securities or property)
subject to outstanding Options, Unit Appreciation Rights or Unit Payments, and
in the number and kind of outstanding Restricted Units or Deferred Units, and
(iii) the grant or exercise price with respect to any Option, Unit
Appreciation Right or Unit Payment.
(b) Subject to Section 10.3(e), in the event of any transaction or
other event described in Section 10.3(a) which results in Units being exchanged
for or converted into cash, securities (including securities of another
partnership or a corporation) or other property, the Committee will have the
right to terminate this Plan as of the date of the event or transaction, in
which case all Awards under this Plan shall become the right to receive such
cash, securities or other property, net of any applicable exercise price.
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(c) Subject to Section 10.3(e), in the event of any transaction or
other event described in Section 10.3(a) or any unusual or nonrecurring
transactions or events affecting an Issuer, any affiliate of such Issuer, or the
financial statements of such Issuer or any affiliate, or of changes in
applicable laws, regulations or accounting principles, the Committee (or the
relevant Board, in the case of Restricted Units granted to Independent Board
Members) in its discretion is hereby authorized to take any one or more of the
following actions whenever the Committee (or the relevant Board, in the case of
Restricted Units granted to Independent Board Members) determines that such
action is appropriate in order to prevent dilution or enlargement of the
benefits or potential benefits intended to be made available under the Plan or
with respect to any Award under this Plan, to facilitate such transactions or
events or to give effect to such changes in laws, regulations or principles:
(i) In its sole and absolute discretion, and on such terms and
conditions as it deems appropriate, the Committee (or the relevant Board, in the
case of Restricted Units granted to Independent Board Members) may provide,
either automatically or upon the Participant's request, for (x) the purchase of
any such Award for an amount of cash equal to the amount that could have been
attained upon the exercise or vesting of such Award, (y) realization of the
Participant's rights had such Award been currently exercisable or payable or (z)
the replacement of such Award with other rights or property selected by the
Committee (or the relevant Board, in the case of Restricted Units granted to
Independent Board Members);
(ii) In its sole and absolute discretion, the Committee (or the
relevant Board, in the case of Restricted Units granted to Independent Board
Members) may provide, either by the terms of such Award or by action taken prior
to the occurrence of such transaction or event that it cannot be exercised after
such event;
(iii) In its sole and absolute discretion, and on such terms and
conditions as it deems appropriate, the Committee (or the relevant Board, in the
case of Restricted Units granted to Independent Board Members) may provide,
either by the terms of such Award or by action taken prior to the occurrence of
such transaction or event, that for a specified period of time prior to such
transaction or event, such Award shall be exercisable as to all Units covered
thereby, notwithstanding anything to the contrary in (i) Section 4.4 or (ii) the
provisions of such Award;.
(iv) In its sole and absolute discretion, and on such terms and
conditions as it deems appropriate, the Committee (or the relevant Board, in the
case of Restricted Units granted to Independent Board Members) may provide,
either by the terms of such Award or by action taken prior to the occurrence of
such transaction or event, that upon such event, such Award shall be assumed by
the successor partnership or corporation, or a parent or subsidiary thereof, or
shall be substituted for by options, rights or awards covering securities of the
successor, or a parent or subsidiary thereof, with appropriate adjustments as to
the number and kind of securities and prices; and
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(v) In its sole and absolute discretion, and on such terms and
conditions as it deems appropriate, the Committee (or the relevant Board, in the
case of Restricted Units granted to Independent Board Members) may make
adjustments in the number and kind of Units (or other securities or property)
subject to outstanding Awards and/or in the terms and conditions of (including
the grant or exercise price), and the criteria included in, outstanding Awards
and Awards which may be granted in the future.
(d) In its sole and absolute discretion, and on such terms and
conditions as it deems appropriate, the Committee (or the relevant Board in the
case of Restricted Units granted to Independent Board Members) may provide
either by the terms of a Restricted Unit award or Deferred Unit award or by
action taken prior to the occurrence of such transaction or event that, for a
specified period of time prior to such event, the restrictions imposed under a
Restricted Unit Agreement or a Deferred Unit Agreement upon some or all
Restricted Units or Deferred Units may be terminated, and, in the case of
Restricted Units, that some or all of such Restricted Units may cease to be
subject to repurchase under Section 6.8 after such event.
(e) None of the foregoing discretionary terms of this Section 10.3(c)
shall be permitted with respect to Restricted Units granted under Section 6.3 to
Independent Board Members to the extent that such discretion would be
inconsistent with the requirements of Rule 16b-3.
(f) Subject to Section 10.3(e) and 10.9, the Committee (or the relevant
Board in the case of Restricted Units granted to Independent Board Members) may,
in its discretion, include such further provisions and limitations in any Award
agreement or certificate, as it may deem equitable and in the best interests of
the Partnerships.
(g) With respect to Incentive Unit Options and Options and Unit
Appreciation Rights intended to qualify as performance-based compensation under
Section 162(m), no adjustment or action described in this Section 10.3 or in any
other provision of the Plan shall be authorized to the extent that such
adjustment or action would cause the Plan to violate Section 422(b)(1) of the
Code or would cause such Option or Unit Appreciation Right to fail to so qualify
under Section 162(m), as the case may be, or any successor provisions thereto.
Furthermore, no such adjustment or action shall be authorized to the extent such
adjustment or action would violate Section 16 or the exemptive conditions of
Rule 16b-3. The number of Units subject to any Award shall always be rounded to
the next whole number.
Section 10.4 Approval of Plan by Unitholders.
This Plan will be submitted for the approval of the Unitholders of the
Partnerships within twelve months after the date of the initial adoption of the
Plan by the Boards. Awards may be made under this Plan prior to such Unitholder
approval, provided that any such Awards, except those made pursuant to Section
2.1(b), (c), (d) or (e), shall not become exercisable or vest prior to approval
of this Plan by the Unitholders of the Partnerships.
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Section 10.5 Tax Withholding.
The Issuer shall be entitled to require payment in cash or deduction
from other compensation payable to each Optionee, Grantee or Restricted
Unitholder of any sums required by federal, state or local tax law to be
withheld with respect to the issuance, vesting or exercise of any Award. Subject
to the timing requirements of Section 5.3, the Committee (or the relevant Board,
in the case of Restricted Units granted to Independent Board Members) may in its
discretion and in satisfaction of the foregoing requirement allow the holder of
any such Award to elect to have the Issuer withhold Units otherwise issuable
under such Award (or allow the return of Units) having a Fair Market Value equal
to the sums required to be withheld.
Section 10.6 Loans.
The Committee may, in its discretion, extend one or more loans to key
Employees in connection with the receipt or exercise of, or issuance of Units
under, an Award under this Plan. The terms and conditions of any such loan shall
be set by the Committee.
Section 10.7 Forfeiture Provisions.
Pursuant to its general authority to determine the terms and conditions
applicable to awards under the Plan, the Committee (or the relevant Board, in
the case of Restricted Units granted to Independent Board Members) shall have
the right (to the extent consistent with the requirements of Rule 16b-3) to
provide, in the terms of an Award made under the Plan, or to require the
recipient to agree by separate written instrument, that (i) any proceeds, gains
or other economic benefit actually or constructively received by the recipient
upon any receipt or exercise of such Award, or upon the receipt or resale of any
Units underlying such Award, must be paid to the Issuer, and (ii) such Award
shall terminate and any unexercised portion of such Award (whether or not
vested) shall be forfeited, if (a) a Termination of Employment, Termination of
Consultancy or Termination of Membership occurs prior to a specified date, or
within a specified time period following receipt or exercise of the Award, or
(b) the recipient at any time, or during a specified time period, engages in any
activity in competition with the Issuer or any Corporation Subsidiary or
Partnership Subsidiary, or which is inimical, contrary or harmful to the
interests of the Issuer or any Corporation Subsidiary or Partnership Subsidiary,
as further defined by the Committee (or the relevant Board, as applicable).
Section 10.8 Limitations Applicable to Section 16 Persons and
Performance-Based Compensation.
Notwithstanding any other provision of this Plan, this Plan and any
Award made, to any individual who is then subject to Section 16 of the Exchange
Act, shall be subject to any additional limitations set forth in any applicable
exemptive rule under Section 16 of the Exchange Act (including any amendment to
Rule 16b-3 of the Exchange Act) that are requirements for the application of
such exemptive rule. To the extent permitted by applicable law, the Plan and any
Awards made hereunder shall be deemed amended to the extent necessary
27
<PAGE> 28
to conform to such applicable exemptive rule. Furthermore, notwithstanding any
other provision of this Plan, any Option or Unit Appreciation Right intended to
qualify as performance-based compensation as described in Section 162(m)(4)(C)
of the Code shall be subject to any additional limitations set forth in Section
162(m) of the Code (including any amendment to Section 162(m) of the Code) or
any regulations or rulings issued thereunder that are requirements for
qualification as performance-based compensation as described in Section
162(m)(4)(C) of the Code, and this Plan shall be deemed amended to the extent
necessary to conform to such requirements.
Section 10.9 Effect of Plan Upon Options and Compensation Plans.
Nothing in this Plan shall be construed to limit the right of either
Partnership (i) to establish any other forms of incentives or compensation for
Employees, Independent Board Members or consultants of such Partnership or any
Corporate Subsidiary or Partnership Subsidiary or (ii) to grant or assume
options or other rights otherwise than under this Plan in connection with any
lawful partnership action including, but not by way of limitation, the grant or
assumption of options in connection with the acquisition by purchase, lease,
merger, consolidation or otherwise, of the business, stock, units or assets of
any corporation, partnership, firm or association.
Section 10.10 Compliance with Laws.
This Plan, the granting and vesting of Awards under this Plan and the
issuance and delivery of Units and the payment of money under this Plan or under
Awards made hereunder are subject to compliance with all applicable federal and
state laws, rules and regulations (including, but not limited to, state and
federal securities laws and federal margin requirements) and to such approvals
by any listing, regulatory or governmental authority as may, in the opinion of
counsel for the Partnerships, be necessary or advisable in connection therewith.
Any securities delivered under this Plan shall be subject to such restrictions,
and the person acquiring such securities shall, if requested by the Issuer,
provide such assurances and representations to the Issuer as the Issuer may deem
necessary or desirable to assure compliance with all applicable legal
requirements. To the extent permitted by applicable law, the Awards made
hereunder shall be deemed amended to the extent necessary to conform to such
laws, rules and regulations.
Section 10.11 Titles.
Titles are provided herein for convenience only and are not to serve as
a basis for interpretation or construction of this Plan.
Section 10.12 Governing Law.
This Plan and any agreements hereunder shall be administered,
interpreted and enforced under the internal laws of the State of Delaware
without regard to principles of conflicts of laws.
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EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
----------------------------------
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated February 14, 1997 relating to the
consolidated financial statements of PIMCO Advisors L.P. and subsidiaries,
which appears on page F-2 of the Prospectus constituting part of the
Registration Statement (No. 333-39585) on Form S-1 of Oppenheimer Capital LP.
/s/ PRICE WATERHOUSE LLP
- ----------------------------
PRICE WATERHOUSE LLP
Los Angeles, California
December 19, 1997
<PAGE> 1
EXHIBIT 23.3
CONSENT OF PRICE WATERHOUSE LLP
-------------------------------
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated July 22, 1997, except as to Note 2(a)
which is as of December 1, 1997 and of our report dated July 22, 1997, relating
to the financial statements of Oppenheimer Capital, L.P. and the consolidated
financial statements of Oppenheimer Capital, respectively, as of April 30, 1997
and 1996 and for each of the three years in the period ended April 30, 1997,
which appear on pages F-20 and F-29, respectively, of the Prospectus
constituting part of the Registration Statement (No. 333-39585) on Form S-1 of
Oppenheimer Capital L.P.
/s/ PRICE WATERHOUSE LLP
- -----------------------------
PRICE WATERHOUSE LLP
New York, New York
December 19, 1997
<PAGE> 1
EXHIBIT 23.4
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Oppenheimer Capital, L.P. on Form S-8 related to the 1997 Unit Incentive Plan
of PIMCO Advisors Holdings L.P. and PIMCO Advisors L.P. of our report dated
February 2, 1996, relating to the consolidated financial statements of PIMCO
Advisors L.P. and subsidiaries as of December 31, 1995 and for each of the two
years in the period then ended appearing in the Prospectus constituting part of
Registration Statement No. 333-39585 on Form S-1 of Oppenheimer Capital L.P.
DELOITTE & TOUCHE LLP
Costa Mesa, California
December 19, 1997
