Exhibit - 10.79
GOODY'S FAMILY CLOTHING, INC.
AMENDED AND RESTATED
1991 STOCK INCENTIVE PLAN
.........THIS INDENTURE is made as of the 12th day of September, 1991, and
amended and restated as of January ____, 1992, May 13, 1998 and June 21, 2000,
by Goody's Family Clothing, Inc., a corporation organized and doing business
under the laws of the State of Tennessee (the "Company").
1........Purpose.
----------------
The Company is adopting the Goody's Family Clothing, Inc. 1991
Stock Incentive Plan (the "Plan") to secure and retain the
services of directors and key employees of the Company and any
subsidiaries by giving them an opportunity to invest in the future
success of the Company. The Board of Directors of the Company (the
"Board of Directors") believes the Plan will promote personal
interest in the welfare of the Company by, and provide incentive
to, the individuals who are primarily responsible both for the
regular operations of and for shaping and carrying out the long
term plans of the Company, thus facilitating the continued growth
and financial success of the Company.
2. Administration.
-----------------------
The Board of Directors shall appoint at least two of its members
to a committee (the "Committee") that will administer the Plan on
behalf of the Company. Except as may otherwise be provided in Rule
16b-3 of the Securities Exchange Act of 1934, no person shall be
appointed as a member of the Committee who is, or within one year
prior to his becoming a member of the Committee was, granted or
awarded equity securities pursuant to the Plan or any other plan
of the Company or an affiliate, except that participation in a
formula plan or participation which does not disqualify a director
from being disinterested as provided in Rule 16b-3 of the
Securities Exchange Act of 1934 shall not disqualify a person from
becoming a member of the Committee. Notwithstanding the foregoing,
prior to the initial public offering of common stock of the
Company, the Plan shall be administered by the Board of Directors.
Each member of the Committee shall serve at the pleasure of the Board
of Directors, which may fill any vacancy, however caused, in the Committee. The
Committee shall select one of its members as a chairman and shall hold meetings
at the times and in the places as it may deem advisable. All actions the
Committee takes shall be made by majority decision. Any action evidenced by a
written instrument signed by all of the members of the Committee shall be as
fully effective as if the Committee had taken the action by majority vote at a
meeting duly called and held.
Subject to the express provisions of the Plan, the Committee shall have
complete authority, in its discretion, to determine:
(a)......the directors and key employees of the Company and any
subsidiaries to whom, the times when, and the prices at which it shall grant
options;
(b)......the type of options to be granted, i.e., either incentive
stock options (the "Incentive Stock Options") as defined in Section 422 of the
Internal Revenue Code of 1986, as amended (the "Code") or non-qualified stock
options (the "Non-Qualified Stock Options") (collectively, the "Options");
(c) the total number of Options to grant to an optionee;
(d) the time and duration of the period of exercise of each Option;
(e) the number of shares of common stock of the Company subject to each
Option; and
(f) the terms and conditions for payment.
The Committee shall also have complete and conclusive authority to (1)
interpret the Plan, (2) prescribe, amend, and rescind rules and regulations
relating to it, (3) determine the terms and provisions of the stock option
agreements the Company makes with optionees (the "Agreement"), the terms of
which need not be identical, and (4) make all other determinations necessary or
advisable for the administration of the Plan. The Committee's determinations on
these matters shall be conclusive.
In addition to any other rights of indemnification that they may have
as directors of the Company or as members of the Committee, the directors of the
Company and members of the Committee shall be indemnified by the Company against
the reasonable expenses, including attorneys' fees, actually and necessarily
incurred in connection with the defense of any action, suit or proceeding, or in
connection with any appeal therein, to which they or any of them may be a party
by reason of action taken or failure to act under or in connection with the Plan
or any Option granted thereunder, and against all amounts paid by them in
settlement thereof (provided the settlement is approved by independent legal
counsel selected by the Company) or paid by them in satisfaction of a judgment
in any action, suit or proceeding, except in relation to matters as to which it
shall be adjudged in the action, suit or proceeding that the Committee member is
liable for gross negligence or misconduct in the performance of his duties;
provided that within 60 days after institution of any action, suit or
proceeding, a Committee member shall in writing offer the Company the
opportunity, at its own expense, to handle and defend the same.
3. Eligibility.
--------------------
The Committee shall grant Options only to directors and key
employees of the Company or its subsidiaries; provided, however,
that an Incentive Stock Option may only be granted if such
individual is an employee of the Company or a subsidiary within
the meaning of Code Section 424(f) (a "Subsidiary"). Subject to
the limits set forth in this Plan, the Committee at any time may
grant additional Options to directors or key employees to whom the
Committee had previously granted Options, so that an optionee may
hold more than one Option at the same time.
4. Stock Subject to Plan.
------------------------------
The Company has authorized and reserved for issuance upon the
exercise of Options pursuant to the Plan an aggregate of one
million six hundred fifty thousand (1,650,000) shares of no par
value common stock of the Company (the "Shares"). If any Option is
cancelled, expires or terminates without the respective optionee
exercising it in full, the Committee may grant Options with
respect to those unpurchased Shares to that same optionee or to
another eligible individual or individuals.
The Committee shall adjust the total number of Shares and any
outstanding Options, both as to the number of Shares and the option price, for
any increase or decrease in the number of outstanding Shares resulting from a
stock split or a payment of a stock dividend on the Shares, a subdivision or
combination of the Shares, a reclassification of the Shares in accordance with
the provisions of the next paragraph, a merger or consolidation of the Shares or
any other like changes in the Shares or in their value. The Committee shall not
issue fractional shares as a result of any of these changes and shall eliminate
from the outstanding Options any fractional shares that result from such a
change. The Committee shall not adjust outstanding Options for cash dividends or
the issuance of rights to subscribe for additional stock or securities of the
Company.
Except as provided in the following paragraph, after any merger of one
or more corporations into the Company, any merger of the Company into another
corporation, any consolidation of the Company and one or more other
corporations, or any other corporate reorganization to which the Company is a
party that involves any exchange, conversion, adjustment or other modification
of the outstanding Options, each option holder shall receive at no additional
cost upon the exercise of his Option, subject to any required action by
stockholders and in lieu of the number of Shares as to which he would otherwise
exercise the Option, the number and class of shares of stock or other securities
or any other property to which the terms of the agreement of merger,
consolidation, or other reorganization would entitle the option holder to
receive, if, at the time of the merger, consolidation, or other reorganization,
the option holder had been a holder of record of the number of Shares as to
which he could exercise the Option. Comparable rights shall accrue to each
option holder in the event of successive mergers, consolidations or other
reorganizations.
In the event of a sale of all or substantially all the common stock or
property of the Company or the merger or consolidation of the Company into
another corporation where the purchaser of such common stock or property or the
corporation into which the Company is merged or consolidated does not agree to
the assumption of the Options, (a) an optionee who is considered by the
Committee to be subject to Section 16 of the Securities Exchange Act of 1934 may
elect in lieu of exercising the Option, but subject to disapproval by the
Committee in its sole discretion, to receive cash in an amount equal to (1) the
difference between (i) the then per share fair market value of the Shares as of
the effective date of the event, as determined by the Committee, and (ii) the
per share exercise price as determined by the optionee's Agreement, multiplied
by (2) the number of Shares for which the Option has not previously been
exercised, whether or not then currently exercisable; and (b) notwithstanding
whether an optionee may make an election described in (a) above, the Committee
may elect to terminate any or all Options granted pursuant to the terms hereof
in consideration of the payment to each affected optionee of an amount in cash
determined in the same manner as the cash payment described in (a) of this
paragraph.
The foregoing adjustments and the manner of application of the
foregoing provisions shall be determined by the Committee in its sole
discretion. Any adjustment may provide for the elimination of any fractional
Share which might otherwise become subject to an Option.
The grant of an Option by the Committee shall not affect in any way the
right or power of the Company to make adjustments, reclassifications,
reorganizations, or changes in its capital or business structure, or to merge,
consolidate, dissolve, liquidate, sell or transfer all or any part of its
business or assets.
5. Terms and Conditions of All Options.
--------------------------------------------
Each Option granted pursuant to the Plan shall be authorized by
the Committee and shall be evidenced by an Agreement in the form
and containing the terms and conditions as the Committee from time
to time may determine, provided that each Agreement shall:
(a) state the number of Shares to which it pertains;
(b) state the exercise price;
(c) state the terms and conditions for payment, except as otherwise
provided in Section 10 of the Plan;
(d) state the term of the Option, and the period or periods during the term
of the Option in which the optionee may exercise the option or portions thereof;
(e) provide that the Option is not transferable by the optionee other than
by will or the laws of lineal descent and, in the case of an Option other than
an Incentive Stock Option, other than (i) to the spouse or any lineal ancestor
or descendant of the optionee, (ii) to any trust, the sole beneficiaries of
which are any one or all of such optionee , such optionee's spouse or any lineal
ancestors or descendants of such optionee, and (iii) to any other person or
entity as the Committee may approve. A holder of an Option or Formula Option
other than the optionee may not transfer such Option other than by will or the
laws of lineal descent;
(f) provide that, with respect to any Options granted to
an employee, the Option shall terminate as of 30 days
after the date the optionee ceases to be an employee
of the Company or a Subsidiary, other than by reason
of death or disability (as defined in Code Section 22
(e) (3)) and shall provide that, with respect to any
Option granted to a nonemployee director, the Option
shall terminate as of 30 days after the date the
optionee ceases to be a director of the Company or a
Subsidiary, other than by reason of death or
disability (as defined in Code Section 22 (e) (3));
and
(g) provide that, if an optionee dies or becomes disabled
(as defined in Code Section 22 (e) (3)) while he is a
director or employee of the Company or Subsidiary, as
applicable, the Option may be exercised by the option
holder or (to the extent the optionee would have been
entitled to do so) by a legatee or legatees of the
optionee under his last will, or by his personal
representative or representatives or by any other
permitted transferee of the Option, at any time
within one (1) year after the optionee's death or
disability.
The Committee may include in any Option it grants a condition that
the optionee shall agree to remain an employee of an/or to render
services to the Company or any of its subsidiaries for a specified
period of time following the date it grants the Option. This
condition shall not impose on the Company or any subsidiary any
obligation to employ the optionee or retain the optionee as a
director for any period of time.
6. Additional Terms and Conditions of Incentive Stock Options.
-------------------------------------------------------------------
In addition to the terms and conditions set forth in Section 5 of
this Plan, each Agreement evidencing the grant of an Incentive
Stock Option shall:
(a) provide for an exercise price that shall not be less than 100%
of the fair market value, as determined in good faith by the
Committee, of the Shares on the date of granting the Option,
provided that:
(1) if the Shares are actively traded on any national
securities exchange or reported by the National
Association of Securities Dealers Automated Quotation
System ("NASDAQ") on a basis which reports closing
sales prices, fair market value shall be the closing
sales price per share of the Shares for the business
day immediately preceding the date the Option is
granted;
(2) if the Shares are otherwise traded over the counter,
fair market value shall be the arithmetic mean of the
bid and asked prices for the Shares, as reported by
NASDAQ, for the business day immediately preceding
the date of the grant of the Option;
(3) if the Shares are not traded, fair market value shall be determined by
the Committee which shall, in making such determination, consider, where
applicable, among other factors: the existence and extent of a private market
for the Shares and a public market for the Company's securities of the same
class, if any; the price at which the Shares were acquired, if applicable, by
the Company; the estimated period of time, if any, during which the Shares will
be freely marketable; the estimated amount of floating supply of Shares
available; changes in the financial condition and prospects of the Company; the
existence of merger proposals or tender offers affecting the Company; and any
other factors affecting fair market value; provided, however, that fair market
value shall be determined without regard to any restriction other than a
restriction which, by its terms, will never lapse;
(4) if the optionee owns (subject to applicable ownership attribution rules
of Code Section 424 (d) and the regulations promulgated thereunder by the
Department of Treasury) stock possessing more than 10% of the total combined
voting power of all Shares or of shares of any parent within the meaning of Code
Section 424 (e) (a "Parent") or Subsidiary of the Company at the time the Option
is granted, the option price shall not be less than 110% of the fair market
value of the pertinent number of Shares of the Commpany on the date of the grant
of the Option; and
(5) subject to the foregoing, the Committee, in determining the fair market
value, shall have full authority and discretion and be fully protected in doing
so;
(b) provide that the Option is not exercisable after the
expiration of ten (10) years or less from the date the Option
is granted, except that, if the optionee owns (subject to
applicable ownership attribution rules of Code Section 424 (d)
and the regulations promulgated thereunder by the Department
of the Treasury) more than 10% of the total combined voting
power of all Shares or of shares of any Parent or Subsidiary
at the time the Option is granted, the Option is not
exercisable after the expiration of five (5) years or less
from the date the Option is granted.
7. Compliance with Code for Incentive Stock Options.
---------------------------------------------------------
All Incentive Stock Options are intended to comply with Code Section
422, and all provisions of the Plan and all Incentive Stock Options granted
hereunder shall be construed in such manner as to effectuate that intent.
8. Limitation on Incentive Stock Option Amounts.
-----------------------------------------------------
An Incentive Stock Option may not be granted to the extent the
aggregate fair market value, determined at the time the Committee grants the
Option, of stock with respect to which stock options intended to meet the
requirements of Code Section 422 are exercisable for the first time by an
optionee during any calendar year under all plans of the Company and any Parent
or Subsidiary exceeds $100,000.
9. Term of Plan.
---------------------
The effective date of the Plan shall be the earlier of the date on
which the shareholders of the Company or the Board of Directors
approve the Plan (the "Effective Date"). The Plan shall terminate
10 years after that date. The Committee may grant Options pursuant
to the Plan at any time on or between the Effective Date and that
termination date, subject to Section 17 of the Plan.
10. Exercise of Option by Option Holder.
--------------------------------------------
The option holder may purchase Shares pursuant to an Option only
upon receipt by the Company of a notice in writing from the option
holder of his intent to purchase a specific number of Shares and
which notice contains such representations regarding compliance
with the federal and state securities laws as the Committee may
reasonably request. The purchase price shall be paid in full upon
the exercise of an Option and no Shares shall be issued or
delivered until full payment therefor has been made. Payment of
the purchase price for all Shares purchased pursuant to the
exercise of an Option shall be made in cash or, alternatively, if
the applicable Agreement so allows, as follows:
(a) by delivery to the Company of a number of shares of common
stock of the Company which have been owned by the option
holder for at least six months prior to the date of the
Option's exercise, having a fair market value on the date of
exercise, as determined by the Committee in its sole
discretion, either equal to the purchase price or in
combination with cash to equal the purchase price; or
(b) by receipt of the purchase price in cash from a broker, dealer
or other "creditor" as defined by Regulation T issued by the
Board of Governors of the Federal Reserve System following
delivery by the option holder to the Committee of instructions
in a form acceptable to the Committee regarding delivery to
such broker, dealer or other creditor of that number of shares
of common stock with respect to which the Option is exercised.
Until stock certificates reflecting the Shares accruing to the optionee upon the
exercise of the Option are issued to the optionee, the option holder shall have
no rights as a shareholder with respect to the Shares the Option covers. The
Company shall make no adjustment to the Shares for any dividends or
distributions or other rights for which the record date is prior to the issuance
of that stock certificate, except as the Plan otherwise provides.
11. Withholding Taxes.
--------------------------
Whenever the Company proposes or is required to issue Shares to an
option holder who is or was an employee of the Company or a
subsidiary, or his legatee or legal representative under the Plan,
pursuant to the exercise of a Non-Qualified Stock Option granted
under the Plan, the Company shall have the right to require the
option holder to remit to the Company an amount sufficient to
satisfy any federal, state and local withholding tax requirement
prior to the delivery of any certificate or certificates for such
Shares. An option holder may pay the withholding tax (a) by making
payment in cash or, if the applicable Agreement so provides, (b)
by electing to tender to the Company the smallest number of whole
shares of common stock of the Company that have been owned by the
option holder for at least six months prior to the Tax Date
(defined below) and that, when multiplied by the fair market value
of the shares of common stock of the Company determined as of the
Tax Date, is sufficient to satisfy federal, state and local, if
any, withholding taxes arising from exercise of the Option, or (c)
by electing to have the number of Shares the option holder is to
receive upon exercise reduced by the number of Shares determined
in (b) above (an optionee's election to tender or offset as
described in (b) or (c) above is referred to as a "Withholding
Election"). An option holder may make a Withholding Election only
if the following conditions are met:
(i) the Withholding Election must be made no later than
the date on which the amount of tax required to be
withheld is determined (the "Tax Date") by executing
and delivering to the Company a properly completed
notice of withholding election in the form prescribed
by the Committee;
(ii) any Withholding Election is irrevocably given in a
manner that satisfies the requirements of the
exemption provided under Rule 16b-3 promulgated under
the Securities Exchange Act of 1934; and
(iii) if the option holder is considered by the Committee
to be subject to Section 16 of the Securities
Exchange Act of 1934, the Withholding Election is
delivered to the Company sufficiently in advance of
the Tax Date as the Committee determines is necessary
or appropriate to satisfy the conditions of the
exemption provided under Rule 16b-3 promulgated under
the Securities Exchange Act of 1934.
Notwithstanding anything to the contrary herein, the Committee may in its sole
discretion disapprove and give no effect to any Withholding Election and no
Option to which any Withholding Election relates may be exercised prior to one
year after the Company has been subject to the reporting requirements of Section
13 of the Securities Exchange Act of 1934 and has filed all reports and
statements required to be filed pursuant to that Section during that year.
12. Assignability.
----------------------
Except as Section 5 of this Plan permits or the terms of the Agreement,
no Option or any of the rights and privileges thereof accruing to an optionee
shall be transferred, assigned, pledged or hypothecated in any way whether by
operation of law or otherwise, and no Option, right or privilege shall be
subject to execution, attachment or similar process.
13. The Right of the Company to Terminate Employment.
---------------------------------------------------------
No provision in the Plan or any Option shall confer upon any optionee any right
to continue in the employment of the Company or any subsidiary of the Company or
to continue performing services for or to interfere in any way with the right of
the Company or any subsidiary of the Company to terminate his employment or of
the right of shareholders of the Company to remove such optionee as a director
at any time for any reason.
14. Amendment and Termination.
----------------------------------
The Board of Directors at any time may amend or terminate the Plan without
shareholder approval; provided, however, that the Board of Directors may
condition any amendment on the approval of the shareholders of the Company if
such approval is necessary or advisable with respect to tax, securities (which
require such approval for a material increase of the number of Shares subject to
Options, and for material modifications to the eligibility requirements of the
Plan, among others) or other applicable laws to which the Company, the Plan,
optionees or eligible employees are subject. No amendment or termination of the
Plan shall affect the rights of an optionee with regard to his Options without
his consent.
15. General Restriction.
----------------------------
Notwithstanding anything contained herein or in any of the
Agreements to the contrary, no purported exercise of any Option
granted pursuant to the Plan shall be effective without the
written approval of the Company, which may be withheld to the
extent that the exercise, either individually or in the aggregate
together with the exercise of other previously exercised stock
options an/or offers and sales pursuant to any prior or
contemplated offering of securities, would, in the sole and
absolute judgment of the United States Securities and Exchange
Commission or with the securities commission of any state. The
Company shall avail itself of any exemptions from registration
contained in applicable federal and state securities laws which
are reasonably available to the Company on terms which, in its
sole and absolute discretion, it deems reasonable and not unduly
burdensome or costly. Each option holder shall, prior to the
exercise of an Option, deliver to the Company such information,
representations and warranties as the Company may reasonably
request in order for the Company to be able to satisfy itself that
the Shares to be acquired pursuant to the exercise of an Option is
being acquired in accordance with the terms of an applicable
exemption from the securities registration requirements of
applicable federal and state securities laws.
16. Choice of Law.
----------------------
The laws of the State of Tennessee shall govern the Plan.
17. Approval of Shareholders.
---------------------------------
The Company shall submit the Plan to its shareholders for approval
within 12 months of the adoption of the Plan by the Board of
Directors; provided further that unless shareholder approval is
obtained within said twelve-month period and unless the
registration statement relating to the Company's initial public
offering is effective prior to September 12, 1992, both the Plan
and all outstanding Options shall be rendered immediately void and
of no effect.
18. Change of Control.
--------------------------
Notwithstanding anything contained to the contrary herein but subject,
however, to the provisions set forth in the fourth paragraph of Section 4, upon
the occurrence of a Change of Control of the Company (as hereinafter defined)
all Options granted under the Plan that are outstanding and not yet vested will
become immediately 100% vested effective on a Change of Control Date (as
hereinafter defined) and shall be thereafter exercisable in accordance with the
terms of the Plan (including, without limitation, as provided in Sections 5 and
6) and any applicable award agreement; provided, however, that the foregoing
shall not apply to the extent that such acceleration of vesting shall make a
"pooling of interests" accounting unavailable in the case of a Change of Control
transaction which is intended to be effected as a "pooling of interests"
transaction.
A "Change of Control of the Company" shall mean and shall be
deemed to have occurred if any person or group (within the meaning
of Rule 13d-3 of the rules and regulations promulgated under the
Securities Exchange Act of 1934, as amended), other than Robert M.
Goodfriend, members of his immediate family, his affiliates,
trusts or private foundations established by or on his behalf, and
the heirs, executors or administrators of Robert M. Goodfriend,
shall acquire in one or a series of transactions, whether through
sale of stock or merger, more than 50% of the outstanding voting
securities of the Company or any successor entity of the Company
or the shareholders of the Company shall approve a sale of all or
substantially all of the Company's assets or a complete
liquidation or dissolution of the Company. A "Change of Control
Date" shall mean the closing date on which a Change of Control of
the Company shall have occurred, or in the case of a sale of all
or substantially all of the Company's assets or complete
liquidation or dissolution of the Company, the date on which
shareholder approval is obtained.
IN WITNESS WHEREOF, the Company has caused this Plan to be
executed in this form on June 21, 2000.
Attest: ......... GOODY'S FAMILY CLOTHING, INC.
By: /s/ Regis J. Hebbeler By: /s/ Robert M. Goodfriend
--------------------------------- ---------------------------------
......... Robert M. Goodfriend
Title: Asst. Secretary Title: Chairman of the Board
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[CORPORATE SEAL]
H:Stock\1991 Plan\1991 Plan.doc
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