<PAGE>
As filed with the Securities and Exchange Commission on May 22, 1998.
Registration No. 333-18033
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_______________
POST-EFFECTIVE
AMENDMENT NO. 2
TO
FORM S-8
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
_______________
COMPUSA INC.
(Exact name of registrant as specified in its charter)
Delaware 75-2261497
(State or other jurisdiction of (I.R.S. employer identification number)
incorporation or organization)
14951 North Dallas Parkway
Dallas, Texas 75240
(Address of principal executive offices)
_______________
LONG-TERM INCENTIVE PLAN
(Full title of the Plan)
_______________
JAMES F. HALPIN
President
14951 North Dallas Parkway
Dallas, Texas 75240
(Name and address of agent for service)
(972) 982-4000
(Telephone number, including area code, of agent for service)
_______________
COPY TO:
FRED W. FULTON
Thompson & Knight, P.C.
1700 Pacific Avenue
Suite 3300
Dallas, Texas 75201
(214) 969-2590
APPROXIMATE DATE OF PROPOSED COMMENCEMENT OF SALES PURSUANT TO THE PLAN:
From time to time after this Registration Statement becomes effective.
Pursuant to General Instruction E of Form S-8, this Registration Statement
incorporates by reference the contents of the Registrant's Registration
Statements Nos. 33-72718, 33-45339 and 33-99282 on Form S-8, as amended.
================================================================================
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which have been filed with the Securities and
Exchange Commission (the "Commission") by the Company, are incorporated herein
by reference and made a part hereof: (i) Annual Report on Form 10-K for the year
ended June 28, 1997; (ii) Quarterly Reports on Form 10-Q for the quarters ended
September 27, 1997, December 27, 1997 and March 28, 1998; and (iii) the
description of the Company's common stock contained in the Company's
Registration Statement on Form 8-A (No. 1-11566) filed November 25, 1992, as
amended by the Company's Registration Statements on Form 8-A/A filed November
14, 1995, December 6, 1996 and April 8, 1998, respectively, and any amendments
or reports filed for the purpose of updating such description.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), subsequent to the date of this Registration Statement and prior to the
filing of a post-effective amendment that indicates that all securities offered
have been sold or that deregisters all securities then remaining unsold, shall
be deemed to be incorporated herein by reference and to be a part hereof from
the date of filing of 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 that 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.
The Company is a Delaware corporation and the Delaware General Corporation
Law (the "Delaware Law") empowers a corporation organized thereunder to
indemnify its directors and officers or former directors and officers and to
purchase insurance with respect to liability arising out of their capacity or
status as directors and officers.
Reference is made to Article VII of the Company's Restated and Amended
Bylaws, which provides for indemnification of directors and officers except as
to certain circumstances and except as provided by applicable law.
Additionally, Article VI ("Article VI") of the Company's Restated and
Amended Certificate of Incorporation limits the personal liability of directors
of the Company to the Company or its stockholders for monetary damages for
breach of fiduciary duty as a director, notwithstanding any provision of law
imposing such liability; provided that to the extent required from time to time
by applicable law, Article VI shall not eliminate or limit the liability of a
director, to the extent such liability is provided by applicable law, (i) for
any breach of the director's duty of loyalty to the Company or its stockholders,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 174 of Title 8 of
the Delaware Law, or (iv) for any transaction from which the director derived an
improper personal benefit.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933, as amended (the "Securities Act"), may be permitted to directors,
officers or persons controlling the Company pursuant to the foregoing
provisions, the Company has been informed that in the opinion of the Commission,
such indemnification is against public policy as expressed in the Securities Act
and is therefore unenforceable.
II-1
<PAGE>
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following is a list of all exhibits filed as a part of this
Registration Statement on Form S-8, including those incorporated herein by
reference.
Exhibit
Number Description of Exhibit
- -------- ----------------------
3.1 Restated and Amended Certificate of Incorporation of the
Registrant./(1)/
3.2 Restated and Amended Bylaws of the Registrant./(2)/
4.1 Specimen Common Stock Certificate (as amended)./(3)/
4.2 Specimen 9 1/2% Senior Subordinated Note Due 2000./(4)/
4.3 Indenture dated June 17, 1993 among CompUSA Inc., as Issuer, Compudyne
Products, Inc., Compudyne Direct, Inc., CompFinance Inc., CompService
Inc., as Guarantors, and U.S. Trust Company of Texas, N.A., as
Trustee, relating to 9 1/2% Senior Subordinated Notes Due 2000./(5)/
4.4 First Supplemental Indenture dated as of December 1, 1995 among the
Company, CompTeam Inc., CompFinance Inc., CompService Inc., and U.S.
Trust Company of Texas, N.A., as Trustee./(6)/
4.5 Second Supplemental Indenture dated as of February 7, 1996 among the
Company, CompTeam Inc., CompFinance Inc., CompService Inc., CompUSA
Holdings II Inc., and U.S. Trust Company of Texas, N.A., as
Trustee./(7)/
4.6 Third Supplemental Indenture dated as of May 14, 1996 among the
Company, CompFinance Inc., CompService Inc., CompTeam Inc., CompUSA
Holdings II Inc., Snowstorm Merger Corp. and U.S. Trust Company of
Texas, N.A., as Trustee./(7)/
4.7 Fourth Supplemental Indenture dated as of May 30, 1996 among the
Company, CompFinance Inc., CompService Inc., CompTeam Inc., CompUSA
Holdings II Inc., PCS Compleat, Inc. and U.S. Trust Company of Texas,
N.A., as Trustee./(7)/
4.8 Fifth Supplemental Indenture dated as of June 14, 1996 among the
Company, CompFinance Inc., CompService Inc., CompTeam Inc., CompUSA
Holdings II Inc., PCS Compleat, Inc., CompUSA Holdings I Inc., CompUSA
Management Company, CompUSA Stores L.P., CompUSA Holdings Company and
U.S. Trust Company of Texas, N.A., as Trustee./(9)/
4.9 Subsidiary Guarantees executed by CompTeam Inc., CompUSA Holdings II
Inc., PCS Compleat, Inc., CompUSA Holdings I Inc., CompUSA Management
Company, CompUSA Stores L.P. and CompUSA Holdings Company./(7)/
4.10 Rights Agreement dated April 29, 1994, between the Company and Bank
One, Texas, N.A., as Rights Agent./(2)/
4.11 Letter of the Company dated November 1, 1995, appointing First
Interstate Bank of Texas, N.A., as substitute Rights Agent under the
Rights Agreement./(3)/
4.12 Letter of the Company dated August 16, 1996, appointing American Stock
Transfer & Trust Company as substitute Rights Agent under the Rights
Agreement./(7)/
II-2
<PAGE>
5 Opinion of Jackson & Walker, L.L.P./(9)/
15 None.
23.1 Consent of Ernst & Young LLP./(9)/
23.2 Consent of Jackson & Walker, L.L.P./(8)/
24 Powers of Attorney./(9)(10)/
99 CompUSA Inc. Long-Term Incentive Plan, restated and amended as of
November 19, 1996./(10)/
- -----------
(1) Previously filed as an exhibit to the Company's Registration Statement No.
1-11566 on Form 8-A/A filed April 8, 1998, as amended.
(2) Previously filed as an exhibit to the Company's Quarterly Report on Form
10-Q for the fiscal quarter ended March 26, 1994 and incorporated herein by
reference.
(3) Previously filed as an exhibit to the Company's Quarterly Report on Form
10-Q for the fiscal quarter ended December 23, 1995 and incorporated herein
by reference.
(4) Previously filed as an exhibit to the Company's Annual Report on Form 10-K
for the fiscal year ended June 26, 1993 and incorporated herein by
reference.
(5) Previously filed as an exhibit to Registration Statement No. 33-62884 on
Form S-3 and incorporated herein by reference.
(6) Previously filed as an exhibit to the Company's Quarterly Report on Form
10-Q for the fiscal quarter ended March 23, 1996 and incorporated herein by
reference.
(7) Previously filed as an exhibit to the Company's Annual Report on Form 10-K
for the fiscal year ended June 29, 1996 and incorporated herein by
reference.
(8) Included in the opinion of Jackson & Walker, L.L.P.
(9) Previously filed.
(10) Filed herewith.
II-3
<PAGE>
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;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or the
most recent post-effective amendment thereof), which, individually or
in the aggregate, represent a fundamental change in the information
set forth in the registration statement. 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 end of
the estimated maximum offering range may be reflected in the form of
the prospectus filed with the Commission pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no more
than a 20% 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;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
Section 13 or Section 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
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (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 the registration statement 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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the
II-4
<PAGE>
registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
II-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Post-Effective
Amendment No. 2 to Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Dallas, State of Texas on
the 18th day of May, 1998.
CompUSA Inc.
By /s/ James E. Skinner
-----------------------------------------------
James E. Skinner, Executive Vice President
Each person whose signature appears below authorizes James F. Halpin and
James E. Skinner, and each of them, each of whom may act without the joinder of
the other, to execute in the name of each such person who is then an officer or
director of the Registrant, and to file any amendments to this Registration
Statement necessary or advisable to enable the Registrant to comply with the
Securities Act, and any rules, regulations and requirements of the Commission,
in respect thereof, in connection with the registration of the offering and sale
of the of the securities which are the subject of this Registration Statement,
which amendments may make such changes in such Registration Statement as such
attorney may deem appropriate.
Pursuant to the requirements of the Securities Act, this Post-Effective
Amendment No. 2 to Registration Statement has been signed by the following
persons in the capacities and on the dates indicated.
Signatures Title Date
---------- ----- ----
President, Chief
/s/ James F. Halpin Executive Officer May 18, 1998
- ------------------------- and Director
James F. Halpin (Principal Executive Officer)
Executive Vice President
/s/ James E. Skinner and Chief Financial Officer May 18, 1998
- ------------------------- (Principal Financial and
James E. Skinner Accounting Officer)
* Chairman of the May 18, 1998
- ------------------------- Board of Directors
Giles H. Bateman
* Director May 18, 1998
-------------------------
Kevin J. Roche
* Director May 18, 1998
-------------------------
Warren D. Feldberg
II-6
<PAGE>
* Director May 18, 1998
-------------------------
Leonard L. Berry, Ph.D.
* Director May 18, 1998
-------------------------
Lawrence Mittman
Director May ____, 1998
- -------------------------
Denise Ilitch Lites
Director May ____, 1998
- -------------------------
Morton E. Handel
Director May ____, 1998
- -------------------------
Barry L. Williams
*By /s/ James E. Skinner
----------------------
James E. Skinner
Attorney-in-fact
II-7
<PAGE>
EXHIBIT 99
AS RESTATED AND AMENDED
NOVEMBER 19, 1996
COMPUSA INC.
LONG-TERM INCENTIVE PLAN
ARTICLE I
DEFINITIONS
As used in this Plan, the following terms will have the following meanings:
1.1. Annual Stockholders Meeting has the meaning ascribed to it in Section
4.2.
1.2. Automatic Grant Date has the meanings ascribed to it in Sections
4.2(a) and 4.2(b), as applicable.
1.3. Award means a grant of Options under Article IV of the Plan, a
Restricted Stock Award under Article V of the Plan, a Stock Appreciation Rights
Award under Article VI of the Plan, a Performance Share Award under Article VII
of the Plan or a Stock Unit Award under Article VIII of the Plan.
1.4. Award Agreement means an Option Agreement, Restricted Stock
Agreement, Stock Appreciation Rights Agreement, Performance Share Agreement or
Stock Unit Agreement.
1.5. Board means the Company's Board of Directors.
1.6. Cause means an act or acts engaged in by a Participant involving (i)
a felony, (ii) fraud, (iii) embezzlement, (iv) gross or willful neglect of duty
or misconduct, (v) the commission of any act that causes or reasonably may be
expected to cause substantial injury to the Company.
1.7. Code means the federal Internal Revenue Code of 1986, as amended.
1.8. Committee means a committee comprised of two or more Directors of the
Company, appointed by the Board, the members of which satisfy the requirements
for eligibility set forth in Section 3.1 and which is responsible for the
administration of the Plan; provided that the full Board may at any time, in its
sole discretion, exercise any or all functions and authority of the Committee.
1.9. Commission means the United States Securities and Exchange
Commission.
1.10. Company means CompUSA Inc., a Delaware corporation.
1.11. Director means a member of the Board of Directors of the Company
or of a subsidiary thereof.
<PAGE>
1.12. Disability of a Participant will be deemed to occur whenever a
Participant is rendered unable to engage in any substantial gainful activity by
reason of any medically determinable physical or mental impairment that can be
expected to result in death or that has lasted or can be expected to last for a
continuing period of not less than 12 months. In the case of any dispute as to
whether or not a Participant is disabled within the meaning of this Section, the
determination of disability will be made by a licensed physician selected by the
Board and acceptable to the Participant, which physician's decision will be
final and binding.
1.13. Employee means any employee of the Company or of any of its
subsidiaries, as defined under Section 3401(c) of the Code and the regulations
promulgated thereunder.
1.14. Employment Agreement means an agreement, if any, between the Company
or any subsidiary thereof and a Participant, setting forth the terms and
conditions of the Participant's employment by the Company or such subsidiary.
1.15. Exchange Act means the Securities Exchange Act of 1934, as amended.
1.16. Grant Date means, with respect to an Option, the date on which an
Option is granted, as specified in Section 4.2 or, as applicable, in Section
4.3.
1.17. Incentive Option means an Option that by its terms is intended to
be treated as an "incentive stock option" within the meaning of Section 422 of
the Code.
1.18. Market Value means, on any date, the closing price per share of
the Stock on the New York Stock Exchange on such date.
1.19. Minimum Performance Goal means the minimum objective(s) established
by the Committee that must be satisfied before any portion of a Performance
Share Award is earned. The Minimum Performance Goal may, in the sole discretion
of the Committee, be the same as or less than the Performance Goal.
1.20. Nonemployee Director means a member of the Board who is not an
Employee.
1.21. Nonstatutory Option means any Option that is not an Incentive Option.
1.22. Option means an option to purchase Stock granted under the Plan.
1.23. Option Agreement means a written agreement between the Company and a
Participant setting forth the terms and conditions of an Option.
1.24. Option Price means the price to be paid by a Participant for a share
of Stock upon exercise of an Option.
-2-
<PAGE>
1.25. Participant means a person to whom an Award has been granted.
1.26. Performance Cycle or Cycle means a period of years selected by the
Committee during which the performance of the Company and/or the Participant is
measured for the purpose of determining the extent to which Performance Shares
that have been contingently awarded with respect to such Cycle are earned.
1.27. Performance Goal means the objective(s) established by the Committee
at the time each Performance Share Award is granted with respect to the related
Performance Cycle for the purpose of determining the extent to which Performance
Shares that have been contingently awarded for such Cycle are earned.
1.28. Performance Share or Performance Share Award means an Award granted
pursuant to Article VII expressed as a share of Stock.
1.29. Performance Share Agreement means a written agreement between the
Company and a Participant setting forth the terms and conditions of a
Performance Share Award.
1.30. Plan means this Long-Term Incentive Plan of the Company, as amended
from time to time.
1.31. Restricted Stock or Restricted Stock Award means an award of Stock
granted under Article V.
1.32. Restricted Stock Agreement means a written agreement between the
Company and a Participant with respect to a Restricted Stock Award.
1.33. Retirement means resignation by the Participant on or after the date
on which the Participant has served the Company or one or more subsidiaries
thereof for at least five years in the aggregate.
1.34. Rule 16b-3 means Rule 16b-3 or its successors promulgated under the
Exchange Act.
1.35. Securities Act means the Securities Act of 1933, as amended.
1.36. Section 162(m) means Section 162(m) of the Code and the regulations
promulgated thereunder.
1.37. Stock means Common Stock, par value $.01 per share, of the Company
or, in the event the outstanding shares of such stock are hereafter changed into
or exchanged for shares of a different security of the Company or some other
corporation, such other security.
-3-
<PAGE>
1.38. Stock Appreciation Right or Stock Appreciation Rights Award means an
Award granted under Article VI.
1.39. Stock Appreciation Rights Agreement means an agreement between the
Company and a Participant setting forth the terms and conditions of a Stock
Appreciation Rights Award.
1.40. Stock Unit or Stock Unit Award means an award of Stock or units
granted under Article VIII.
1.41. Stock Unit Agreement means a written agreement between the Company
and a Participant setting forth the terms and conditions of a Stock Unit Award.
1.42. Ten Percent Owner means a person who owns, or is deemed within the
meaning of Section 422(b)(6) of the Code to own, stock possessing more than 10%
of the total combined voting power of all classes of stock of the Company (or
its parent or subsidiary corporations, within the meaning of Sections 424(e) and
424(f) of the Code). Whether a person is a Ten Percent Owner will be determined
with respect to each Option based on the facts existing immediately prior to the
Grant Date of such Option.
1.43. Vesting Year for any portion of any Incentive Option means the
calendar year in which that portion of the Option first becomes exercisable.
ARTICLE II
GENERAL
2.1. PURPOSE. This Plan is intended to encourage ownership of Stock by
Participants and to provide additional incentives for them to promote the
success of the Company's business. The Company intends that Incentive Options
granted under Article IV will qualify as "incentive stock options" within the
meaning of Section 422 of the Code.
2.2. TERM OF THE PLAN. Awards may be granted not later than May 8, 2005.
2.3. STOCK SUBJECT TO THE PLAN. Subject to the provisions of Section 9.2
and subject to any additional restrictions elsewhere in the Plan, the maximum
aggregate number of shares of Stock that may be issued from time to time
pursuant to the Plan may not exceed 16,788,736 shares. The maximum aggregate
number of shares of Stock with respect to which Awards may be granted to any
Participant during the term of the Plan may not exceed 50% of the total number
of shares of Stock that may be issued from time to time under the Plan. Shares
to be issued pursuant to Awards may be either authorized but unissued shares or
shares held by the Company in its treasury. If shares of Stock are reacquired
by the Company pursuant to the provisions of the Plan or if Options expire or
terminate for any reason without having been exercised in full, the reacquired
shares and/or the shares not purchased will again be available for issuance
under the Plan to the extent permitted by law.
-4-
<PAGE>
2.4. ELIGIBILITY. Any full-time or part-time Employee, Director,
consultant or advisor of one or more of the Company or any subsidiary thereof
will be eligible to be a Participant; provided that Incentive Options may be
granted only to Employees.
2.5. ACCELERATION IN CERTAIN EVENTS. The Committee may accelerate the
exercisability of any Option or Stock Appreciation Right or waive any
restrictions and/or Performance Goals with respect to shares of Restricted
Stock, Performance Shares or Stock Units in whole or in part at any time. In
addition, notwithstanding the provisions of any Award Agreement, the following
provisions will apply:
(a) Mergers and Reorganizations. In the event the Company or its
stockholders enter into an agreement to dispose of all or substantially all
of the assets of the Company by means of a sale, merger or other
reorganization, liquidation or otherwise in a transaction in which the
Company is not the surviving corporation, any Option or Stock Appreciation
Right will become immediately exercisable with respect to the full number
of shares subject to that Option or Stock Appreciation Right and all
restrictions and/or Performance Goals will be deemed lapsed, waived and/or
satisfied (as applicable) with respect to any Restricted Stock Award,
Performance Share Award or Stock Unit Award; provided that no Option or
Stock Appreciation Right will be immediately exercisable and no
restrictions or Performance Goals will be deemed lapsed, waived and/or
satisfied with respect to a Restricted Stock Award, Performance Share Award
or Stock Unit Award under this Section 2.5 on account of any agreement of
merger or other reorganization when the stockholders of the Company
immediately before the consummation of the transaction will own at least
50% of the total combined voting power of all classes of stock entitled to
vote of the surviving entity immediately after the consummation of the
transaction.
(b) Change in Control. All Options and Stock Appreciation Rights
will become immediately exercisable and all restrictions and/or Performance
Goals related to any Restricted Stock Award, Performance Share Award or
Stock Unit Award will be deemed lapsed, waived and/or satisfied (as
applicable) in the event any Person (other than a Person meeting the
requirements of clauses (i) and (ii) of Rule 13d-1(b)(1) or its successors
promulgated under the Exchange Act) meets the requirements for becoming an
Acquiring Person, whether or not a Distribution Date occurs or the Rights
are redeemed by the Company, as those terms are defined in the Rights
Agreement dated as of April 29, 1994 between the Company and Bank One,
Texas, N.A., as Rights Agent (American Stock Transfer & Trust Company
became successor Rights Agent August 19, 1996).
2.6. RESTRICTIONS ON ISSUANCE OF SHARES. Notwithstanding any other
provision of the Plan, if at any time in the reasonable opinion of the Company
the issuance of shares of Stock pursuant to an Award may constitute a violation
of law, then the Company may delay such issuance and the delivery of a
certificate for such shares of Stock until (i) approval has been obtained from
such governmental agencies, other than the Commission, as may be required under
any applicable law, rule or regulation and (ii) in the case where such issuance
would constitute a
-5-
<PAGE>
violation of a law administered by or a regulation of the Commission, one of the
following conditions has been satisfied:
(a) the issuance of shares of Stock is effectively registered under
the Securities Act; or
(b) a no-action letter in form and substance reasonably satisfactory
to the Company with respect to the issuance of such shares has been
obtained by the Company from the staff of the Commission.
The Company will make all reasonable efforts to bring about the occurrence of
such events.
2.7. PURCHASE FOR INVESTMENT; SUBSEQUENT REGISTRATION.
(a) Unless the issuance of shares of Stock to be issued pursuant to
an Award has been effectively registered under the Securities Act, the
Company will be under no obligation to issue any shares of Stock pursuant
to an Award unless the Participant gives a written representation to the
Company that is satisfactory in form and substance to its counsel and upon
which the Company may reasonably rely, that he is acquiring the shares of
Stock issued pursuant to such Award as an investment and not with a view
to, or for sale in connection with, the distribution of any such shares of
Stock.
(b) If required in the opinion of counsel, each certificate
representing shares of Stock issued pursuant to an Award will bear a
reference to the investment representation made in accordance with this
Section 2.7 and to the fact that no registration statement has been filed
with the Commission in respect of the issuance of such shares of Stock.
(c) If the Company deems it necessary or desirable to register under
the Securities Act or other applicable statutes the issuance of any shares
of Stock with respect to which an Award has been granted, or to qualify the
issuance of any such shares for exemption from the Securities Act or other
applicable statutes, then the Company will take such action at its own
expense. The Company may require from each Participant such information in
writing for use in any registration statement, prospectus, preliminary
prospectus or offering circular as is reasonably necessary for such purpose
and may require reasonable indemnity to the Company and its Directors and
officers from such holder against all losses, claims, damages and
liabilities arising from such use of the information so furnished and
caused by any untrue statement of any material fact therein or caused by
the omission to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of the
circumstances under which they were made.
-6-
<PAGE>
2.8. WITHHOLDING; NOTICE OF DISPOSITION OF STOCK PRIOR TO EXPIRATION OF
SPECIFIED HOLDING PERIOD.
(a) Whenever shares of Stock are to be issued pursuant to an Award,
the Company will have the right to require the Participant to remit to the
Company an amount sufficient to satisfy federal, state, local or other
withholding tax requirements (whether so required to secure for the Company
an otherwise available tax deduction or otherwise) prior to the delivery of
any certificate or certificates for such shares of Stock.
(b) When a Participant is required to pay to the Company an amount
required to be withheld under applicable income tax laws in connection with
an Award, such payment may be made, in whole or in part, (i) in cash, (ii)
by check, (iii) if permitted by the Committee, by delivery to the Company
of shares of Stock already owned by the Participant having a Market Value
on the date on which the amount of tax to be withheld is determined (the
"Tax Date") equal to the amount required to be withheld, (iv) with respect
to Options, through the withholding by the Company ("Company Withholding")
of a portion of the shares of Stock acquired upon the exercise of the
Options, or (v) in any other form of valid consideration, as permitted by
the Committee in its sole discretion.
(c) The Company may require as a condition to the issuance of shares
of Stock upon exercise of an Incentive Option that the party exercising
such Option give a written representation to the Company, which is
satisfactory in form and substance to its counsel and upon which the
Company may reasonably rely, that he will report to the Company any
disposition of such shares prior to the expiration of the holding periods
specified by Section 422(a)(1) of the Code. If and to the extent that the
realization of income in such a disposition imposes upon the Company
federal, state, local or other withholding tax requirements, or any such
withholding is required to secure for the Company an otherwise available
tax deduction, the Company will have the right to require that the
recipient remit to the Company an amount sufficient to satisfy those
requirements; and the Company may require as a condition to the issuance of
shares of Stock upon exercise of an Incentive Option that the party
exercising such option agree, in writing in a form satisfactory to the
Company, to make such a remittance.
2.9. RESERVATION OF STOCK. The Company must at all times during the term
of the Plan reserve or otherwise keep available such number of shares of Stock
as will be sufficient to satisfy the requirements of the Plan and will pay all
fees and expenses necessarily incurred by the Company in connection therewith.
2.10. NO SPECIAL EMPLOYMENT OR OTHER RIGHTS. Nothing contained in the Plan
or in any Award will confer upon any Participant any right with respect to the
continuation of his employment or service with the Company (or any subsidiary),
or interfere in any way with the right of the Company (or any subsidiary),
subject to the terms of any separate employment or consulting agreement or
provision of law or certificate of incorporation or bylaws to the contrary,
-7-
<PAGE>
at any time to terminate such employment or consulting agreement or to increase
or decrease the compensation of the Participant from the rate in existence at
the time of the grant of an Award.
ARTICLE III
ADMINISTRATION
3.1. ADMINISTRATION. Subject to the provisions of the Plan, the Plan will
be administered by the Committee. Each member of the Committee must qualify as
a "Non-Employee Director" within the meaning of Rule 16b-3. In addition, with
respect to any Award that the Company intends to qualify for the exception for
qualified performance-based compensation set forth in Section 162(m), such Award
must be granted solely by "outside directors" within the meaning of such
section. The Committee will have sole discretion and authority to determine
from time to time the Participants to whom Awards will be granted and the number
of shares of Stock subject to each Award, to interpret the Plan, to prescribe,
amend and rescind rules and regulations relating to it, to determine and
interpret the terms and provisions of each Award Agreement or waive any
conditions, restrictions and/ or Performance Goals applicable to any Option or
Stock Appreciation Right (or the exercise thereof) or to any shares of
Restricted Stock, Performance Shares or Stock Units, and to make all other
determinations necessary or advisable for the administration of the Plan. In
making such determinations, the Committee may take into account the nature of
the services rendered by the respective Participants, their present and
potential contributions to the success of the Company and its subsidiaries, and
such other factors as the Committee in its sole discretion deems relevant. The
Committee's determinations on the matters referred to in this Section 3.1 will
be conclusive.
ARTICLE IV
OPTIONS
4.1 GRANT OF OPTIONS. The Committee may, in its sole discretion, grant
Options in accordance with the terms and conditions set forth in the Plan. Each
Option Agreement may contain such additional terms and conditions, not
inconsistent with the terms of the Plan, as are determined by the Committee in
its sole discretion.
4.2. AUTOMATIC GRANTS OF OPTIONS TO NONEMPLOYEE DIRECTORS.
(a) Directors Elected or Re-Elected at Annual Stockholders Meeting.
Each Nonemployee Director who is elected or re-elected to the Board at an
annual stockholders meeting or special meeting in lieu of an annual meeting
(an "Annual Stockholders Meeting"), or continues to serve as a Nonemployee
Director after such Annual Stockholders Meeting, is hereby granted, on the
date of such meeting (as used in or with reference to this Section 4.2(a),
an "Automatic Grant Date"), a Nonstatutory Option to purchase that whole
number of shares (without any fraction) of Stock calculated by dividing
$50,000 by the Market Value on the Automatic Grant Date. Each Option
granted to a Participant under this Section 4.2(a) will (i) have an Option
Price equal to 100% of
-8-
<PAGE>
the Market Value of the Stock on the Automatic Grant Date, (ii) terminate
on the tenth anniversary of the Automatic Grant Date and (iii) become
exercisable in three equal installments as follows: 33 1/3% on the first
anniversary of the Automatic Grant Date, an additional 33 1/3% on the
second anniversary of the Automatic Grant Date, and an additional 33 1/3%
on the third anniversary of the Automatic Grant Date.
(b) Directors Elected at Other Times. Each Nonemployee Director who
is elected to the Board on a date other than the day of an Annual
Stockholders Meeting (as used in or with reference to this Section 4.2(b),
an "Automatic Grant Date") is hereby granted, on the Automatic Grant Date,
an Option to purchase the number of shares of Stock set forth below, which
Option will become exercisable if the Participant remains a Nonemployee
Director as set forth below:
(1) If such individual is elected after the day of an Annual
Stockholders Meeting but on or before December 31, he is hereby granted an
Option to purchase that whole number of shares (without any fraction) of
Stock calculated by dividing $37,500 by the Market Value on the Automatic
Grant Date, which Option will become exercisable in three equal
installments as follows: 33 1/3% on the first anniversary of the Automatic
Grant Date, an additional 33 1/3% on the second anniversary of the
Automatic Grant Date, and an additional 33 1/3% on the third anniversary of
the Automatic Grant Date.
(2) If such individual is elected on or after January 1 but on or
before March 31, he is hereby granted an Option to purchase that whole
number of shares (without any fraction) of Stock calculated by dividing
$25,000 by the Market Value on the Automatic Grant Date, which Option will
become exercisable in three equal installments as follows: 33 1/3% on the
first anniversary of the Automatic Grant Date, an additional 33 1/3% on the
second anniversary of the Automatic Grant Date, and an additional 33 1/3%
on the third anniversary of the Automatic Grant Date.
(3) If such individual is elected on or after April 1 but on or
before June 30, he is hereby granted an Option to purchase that whole
number of shares (without any fraction) of Stock calculated by dividing
$12,500 by the Market Value on the Automatic Grant Date, which Option will
become exercisable in three equal installments as follows: 33 1/3% on the
first anniversary of the Automatic Grant Date, an additional 33 1/3% on the
second anniversary of the Automatic Grant Date, and an additional 33 1/3%
on the third anniversary of the Automatic Grant Date.
Each Option granted to a Nonemployee Director under Section 4.2(b) will have an
Option Price equal to 100% of the Market Value on the Automatic Grant Date and
will terminate on the tenth anniversary of the Automatic Grant Date.
-9-
<PAGE>
4.3. TIME OF GRANTING OPTIONS. Except as provided in Sections 4.2(a) and
4.2(b), the granting of an Option will take place at the time specified in the
Option Agreement.
4.4. OPTION PRICE. The Option Price under each Incentive Option may not be
less than 100% of the Market Value on the Grant Date, or less than 110% of the
Market Value on the Grant Date if the Participant is a Ten Percent Owner. The
Option Price under each Nonstatutory Option will not be so limited solely by
reason of this Section 4.4.
4.5. OPTION PERIOD. No Incentive Option may be exercised later than the
tenth anniversary of the Grant Date, or, if the Participant is a Ten Percent
Owner, not later than the fifth anniversary of the Grant Date. The option
period under each Nonstatutory Option will not be so limited solely by reason of
this Section 4.5. Options may become exercisable in such installments,
cumulative or noncumulative, as the Committee may determine.
4.6. LIMIT ON INCENTIVE OPTION CHARACTERIZATION. To the extent any Option
fails to qualify as an Incentive Option, such Option will be considered a
Nonstatutory Option.
4.7. EXERCISE OF OPTIONS.
(a) Method of Exercise. Each Option will be exercisable in
accordance with the terms of the Option Agreement pursuant to which the
Option was granted. No Option may be exercised for a fraction of a share of
Stock.
(b) Payment of Purchase Price. The purchase price of any shares of
Stock purchased must be paid at the time of exercise of the Option either
(i) in cash, (ii) by certified or cashier's check, (iii) by shares of
Stock, if permitted by the Committee, (iv) if then permitted under the laws
of the State of Delaware and approved by the Committee, by a promissory
note for the total purchase price of the shares of Stock being purchased,
which note will contain such terms and provisions as the Committee may
approve, including without limitation the right to repay the note partially
or wholly with Stock, (v) by delivery of a copy of irrevocable instructions
from the Participant to a broker or dealer, reasonably acceptable to the
Company, to sell certain of the shares of Stock purchased upon exercise of
the Option or to pledge them as collateral for a loan and promptly deliver
to the Company the amount of sale or loan proceeds necessary to pay such
purchase price or (vi) in any other form of valid consideration, as
permitted by the Committee in its sole discretion. If any portion of the
purchase price or a note given at the time of exercise is paid in shares of
Stock, those shares will be valued at the then Market Value.
4.8. TERMINATION OF EMPLOYMENT OR ASSOCIATION WITH THE COMPANY.
(a) Termination of Employment with the Company. If a Participant
ceases to be employed by the Company or any subsidiary thereof because the
Participant is terminated for Cause, any Options held by that Participant
will automatically expire. If
-10-
<PAGE>
a Participant's employment is terminated for any reason other than for
Cause or due to death, such Participant's Option will be exercisable (to
the extent exercisable on the date of termination of the Participant's
employment or, if the Committee, in its sole discretion, has accelerated
the vesting of such Option, to the extent exercisable following such
acceleration) at any time within 30 days after he ceases to be an Employee
(or within (i) three months after termination if on account of Retirement
or (ii) 12 months after termination if on account of Disability), unless by
its terms it expires earlier or unless, with respect to any Nonstatutory
Option, the Committee agrees, in its sole discretion, to extend the term of
such Option; provided that the term of any such Option will not be extended
beyond its original term. If a Participant dies while employed by the
Company or any subsidiary thereof, or within three months after ceasing to
be an Employee, such Participant's Option will be exercisable (to the
extent exercisable on the date of death, or, if the Committee, in its sole
discretion, has accelerated the vesting of such Option, to the extent
exercisable following such acceleration) at any time within 12 months after
the date of death, unless by its terms it expires earlier or unless, with
respect to any Nonstatutory Option, the Committee agrees, in its sole
discretion, to extend the term of such Option; provided that the term of
any such Option will not be extended beyond its original term. Military or
sick leave will not be deemed a termination of employment, provided that it
does not exceed the longer of three months or the period during which the
absent Participant's reemployment rights, if any, are guaranteed by statute
or by contract. The foregoing is qualified by the following: (i) if any
facts that would constitute Cause for termination of employment of a
Participant are brought to the attention of the Committee after the
Participant's employment with the Company or any subsidiary thereof has
ended, any Options then held by the Participant may be immediately
terminated by the Committee and (ii) if a Participant is an Employee
employed pursuant to a written Employment Agreement, the Participant's
employment with the Company will be deemed terminated for "cause" for
purposes of the Plan only if the Participant's employment is considered
under the circumstances to have been terminated for cause for purposes of
such agreement.
(b) Termination of Association with the Company. If (i) a Nonemployee
Director is removed for Cause or (ii) a consultant or advisor or other
Participant who is not an Employee has his relationship with the Company
terminated for Cause, any Options held by any such Participant will
automatically expire. In all other cases, any Options held by such a
Participant, to the extent exercisable on the date of termination of the
Participant's association with the Company, will remain exercisable and
will expire in accordance with the terms of the applicable Option
Agreement; provided that (i) if any facts that would constitute cause for
removal or termination of a Participant who is a Nonemployee Director,
consultant or advisor or other person who is not an Employee are brought to
the attention of the Committee after such Participant's association with
the Company has ended, any Options held by such Participant may be
immediately terminated by the Committee, and (ii) if such Participant has
been retained pursuant to a written agreement, the Participant's
relationship with the Company will be deemed terminated for "cause" for
purposes of the Plan only if the Participant's association with the Company
is
-11-
<PAGE>
considered under the circumstances to have been terminated for cause for
purposes of such written agreement.
4.9. TRANSFERABILITY OF OPTIONS.
(a) Incentive Options. Incentive Options may not be transferred or
assigned other than by will or the laws of descent and distribution and may
be exercised during the lifetime of the Participant only by the Participant
or by the Participant's legally authorized representative, and each Option
Agreement in respect of an Incentive Option will so provide. The
designation by a Participant of a beneficiary will not constitute a
transfer of the Option.
(b) Nonstatutory Options. With respect to Nonstatutory Options, the
Committee may, in its sole discretion, provide in any Option Agreement (or
in an amendment to any existing Option Agreement) such provisions regarding
transferability of the Nonstatutory Options as the Committee, in its sole
discretion, deems appropriate.
4.10. LIMITATION OF RIGHTS IN STOCK. A Participant will not be deemed for
any purpose to be a stockholder of the Company with respect to any of the shares
of Stock covered by an Option, except to the extent the Option has been
exercised with respect thereto and, in addition, a certificate has been issued
therefor and delivered to the Participant or his agent. Any Stock issued
pursuant to the Option will be subject to all restrictions upon the transfer
thereof that may be now or hereafter imposed by the Certificate of Incorporation
of the Company (as amended or restated from time to time), the Bylaws of the
Company (as amended or restated from time to time) and any applicable Employment
Agreement.
ARTICLE V
RESTRICTED STOCK
5.1 GRANT OF RESTRICTED STOCK AWARDS. The Committee may, in its sole
discretion, grant Restricted Stock Awards in accordance with the terms and
conditions set forth in the Plan. Each Restricted Stock Agreement may contain
such additional terms and conditions, not inconsistent with the terms of the
Plan, as are determined by the Committee in its sole discretion.
5.2. TERMS AND CONDITIONS. Each Restricted Stock Award confers upon the
recipient thereof the right to receive a specified number of shares of Stock in
accordance with the terms and conditions of each Participant's Restricted Stock
Agreement. The general terms and conditions of a Restricted Stock Award will be
as follows:
(a) Any shares of Stock awarded hereunder to a Participant will be
restricted for a period of time to be determined by the Committee for each
Participant at the time of the Award, which period shall be not more than
ten years. The restrictions will prohibit the sale, assignment, transfer,
pledge or other
-12-
<PAGE>
encumbrance of such shares, and will provide for possible reversion thereof
to the Company in accordance with subparagraph (b) during the period of
restriction.
(b) All Restricted Stock awarded under this Plan to a Participant
will be forfeited and returned to the Company in the event the
Participant's employment or service with the Company or a subsidiary
thereof is terminated prior to the expiration of the period of restriction,
unless the Participant's termination of employment or service is due to his
death, Disability or Retirement or unless the Committee, in its sole
discretion, waives the restrictions established in accordance with
subparagraph (a) with respect to any or all of the shares of Restricted
Stock.
(c) In the event of a Participant's death or Disability, the
restrictions established in accordance with subparagraph (a) will lapse
with respect to all Restricted Stock awarded to the Participant prior to
any such event, and the shares of Stock involved will cease to be
Restricted Stock and will no longer be subject to forfeiture to the Company
pursuant to subparagraph (b).
(d) In the event of a Participant's Retirement, the restrictions
established in accordance with subparagraph (a) will continue to apply
unless the Committee in its sole discretion shortens the restriction
period.
(e) Stock certificates issued with respect to Restricted Stock Awards
will be registered in the name of the Participant, but will be delivered by
him to the Company together with a stock power endorsed in blank. Each
such certificate will bear the following legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
FORFEITURE, RESTRICTIONS ON TRANSFER AND CERTAIN OTHER TERMS AND
CONDITIONS SET FORTH IN THE COMPUSA INC. LONG-TERM INCENTIVE PLAN AND
THE AGREEMENT BETWEEN THE REGISTERED OWNER OF THE SHARES REPRESENTED
BY THIS CERTIFICATE AND COMPUSA INC. ENTERED INTO PURSUANT TO SUCH
PLAN."
From the time of grant of the Restricted Stock Award, the Participant
will be entitled to exercise all rights (including dividend and voting
rights) with respect to the shares represented by such certificate, subject
to forfeiture of such voting rights and the Stock as provided in
subparagraph (b).
(f) Upon the lapse of a restriction period as determined pursuant to
subparagraph (a), the Company will return the stock certificates
representing the shares with respect to which the restriction has lapsed to
the Participant or his legal
-13-
<PAGE>
representative, and pursuant to the instruction of the Participant or his
legal representative will issue a certificate for such shares that does not
bear the legend set forth in subparagraph (e).
(g) Any other securities or assets (other than ordinary cash
dividends) that are received by a Participant with respect to Restricted
Stock awarded to him, which is still subject to restrictions established in
accordance with subparagraph (a), will be subject to the same restrictions
and will be delivered by the Participant to the Company as provided in
subparagraph (e).
5.3. NOTICE TO COMPANY OF SECTION 83(B) ELECTION. Any Participant who
exercises an election under Section 83(b) of the Code to have his receipt of
Shares of Restricted Stock taxed currently, without regard to restrictions, must
give notice to the Company of such election immediately upon making such
election. Such an election must be made within 30 days after the effective date
of issuance and cannot be revoked except with the consent of the Internal
Revenue Service.
ARTICLE VI
STOCK APPRECIATION RIGHTS
6.1. GRANT OF STOCK APPRECIATION RIGHTS. The Committee may, in its sole
discretion, grant Stock Appreciation Rights in accordance with the terms and
conditions set forth in the Plan. Each Stock Appreciation Rights Agreement may
contain such additional terms and conditions, not inconsistent with the terms of
the Plan, as are determined by the Committee in its sole discretion.
6.2. TERMS AND CONDITIONS. A Stock Appreciation Right will entitle a
Participant to receive an amount equal to (or if the Committee shall so
determine at the time of grant, less than) the excess of the Market Value on the
date of exercise over the Market Value on the date of grant of such right (or
such other price as is set by the Committee), multiplied by the number of shares
of Stock with respect to which the Stock Appreciation Right shall have been
exercised.
6.3. FORM OF GRANT. A Stock Appreciation Right may be granted in
combination with, in addition to, or completely independent of, an Option or any
other Award.
6.4. FORM OF PAYMENT. Settlement of a Stock Appreciation Right may be
made (i) in cash, (ii) by certified or cashier's check, (iii) if permitted by
the Committee, in shares of Stock or (iv) in any other form of valid
consideration, as determined by the Committee in its sole discretion. However,
any Stock Appreciation Right exercised upon or subsequent to the occurrence of
an event described in Sections 2.5(a) or 2.5(b) must be paid in cash.
6.5. EXERCISE OF STOCK APPRECIATION RIGHTS; EFFECTS ON OPTIONS AND VICE-
VERSA. Each Stock Appreciation Right will be exercisable in accordance with the
terms of the Stock Appreciation Rights Agreement pursuant to which the Stock
Appreciation Right is granted.
-14-
<PAGE>
Whenever a Stock Appreciation Right is granted in relation to an Option and the
exercise of one affects the right to exercise the other, the number of shares of
Stock available under the Option to which the Stock Appreciation Right relates
will decrease by a number equal to the number of shares of Stock for which the
Stock Appreciation Right is exercised. Upon the exercise of an Option, any
related Stock Appreciation Right will terminate as to any number of shares of
Stock subject to such Stock Appreciation Right that exceeds the total number of
shares of Stock for which the Option remains unexercised.
6.6. TRANSFERABILITY OF STOCK APPRECIATION RIGHTS. Subject to Section 6.8,
the Committee may, in its sole discretion, provide in any Stock Appreciation
Rights Agreement (or in an amendment to any existing Stock Appreciation Rights
Agreement) such provisions regarding transferability of the Stock Appreciation
Rights as the Committee, in its sole discretion, deems appropriate .
6.7. TERMINATION OF EMPLOYMENT OR SERVICE. Whenever a Stock Appreciation
Right is granted in relation to an Option and the exercise of one affects the
right to exercise the other, in the event of the termination of the
Participant's employment or service with the Company, the Stock Appreciation
Right may be exercised only during the period, if any, within which the Option
to which it relates may be exercised. If a Stock Appreciation Right is granted
independently of an Option under the Plan, the following provisions will apply:
(a) Termination of Employment with the Company. If a Participant
ceases to be employed by the Company or any subsidiary thereof because the
Participant is terminated for Cause, any Stock Appreciation Rights held by
that Participant will automatically expire. If a Participant's employment
is terminated for any reason other than Cause or due to death, such
Participant's Stock Appreciation Right will be exercisable (to the extent
exercisable on the date of termination of the Participant's employment or,
if the Committee, in its sole discretion, has accelerated the vesting of
such Stock Appreciation Right, to the extent exercisable following such
acceleration) at any time within 30 days after he ceases to be an Employee
(or within (i) three months after termination if on account of Retirement
or (ii) 12 months after termination if on account of Disability), unless by
its terms it expires earlier or unless the Committee agrees, in its sole
discretion, to extend the term of such Stock Appreciation Right; provided
that the term of any such Stock Appreciation Right will not be extended
beyond its original term. If a Participant dies while employed by the
Company or any subsidiary thereof, or within three months after ceasing to
be an Employee, such Participant's Stock Appreciation Right will be
exercisable (to the extent exercisable on the date of death, or, if the
Committee, in its sole discretion, has accelerated the vesting of such
Stock Appreciation Right, to the extent exercisable following such
acceleration) at any time within 12 months after the date of death, unless
by its terms it expires earlier or unless the Committee agrees, in its sole
discretion, to extend the term of such Stock Appreciation Right; provided
that the term of any such Stock Appreciation Right will not be extended
beyond its original term. Military or sick leave will not be deemed a
termination of employment, provided that it does not
-15-
<PAGE>
exceed the longer of three months or the period during which the absent
Participant's reemployment rights, if any, are guaranteed by statute or by
contract. The foregoing is qualified by the following: (i) if any facts
that would constitute Cause for termination of employment of a Participant
are brought to the attention of the Committee after the Participant's
employment with the Company or any subsidiary thereof has ended, any Stock
Appreciation Rights then held by the Participant may be immediately
terminated by the Committee and (ii) if a Participant is an Employee
employed pursuant to a written Employment Agreement, the Participant's
employment with the Company will be deemed terminated for "cause" for
purposes of the Plan only if the Participant's employment is considered
under the circumstances to have been terminated for cause for purposes of
such agreement.
(b) Termination of Association with the Company. If a consultant or
advisor or other Participant who is not an Employee has his relationship
with the Company terminated for Cause, any Stock Appreciation Rights held
by any such Participant will automatically expire. In all other cases, any
Stock Appreciation Rights held by such a Participant, to the extent
exercisable on the date of termination of the Participant's association
with the Company, will remain exercisable and will expire in accordance
with the terms of the applicable Stock Appreciation Rights Agreement;
provided that (i) if any facts that would constitute cause for removal or
termination of a Participant who is a consultant or advisor or other person
who is not an Employee are brought to the attention of the Committee after
such Participant's association with the Company has ended, any Stock
Appreciation Rights held by such Participant may be immediately terminated
by the Committee and (ii) if such Participant has been retained pursuant to
a written agreement, the Participant's relationship with the Company will
be deemed terminated for "cause" for purposes of the Plan only if the
Participant's association with the Company is considered under the
circumstances to have been terminated for cause for purposes of such
written agreement.
6.8. TANDEM INCENTIVE OPTION - STOCK APPRECIATION RIGHT. Whenever an
Incentive Option and a Stock Appreciation Right are granted together and the
exercise of one affects the right to exercise the other, the following
requirements shall apply:
(a) The Stock Appreciation Right will expire no later than the
expiration of the underlying Incentive Option.
(b) The Stock Appreciation Right may be for no more than the
difference between the Option Price of the underlying Incentive Option and
the Market Value of the Stock subject to the underlying Incentive Option at
the time the Stock Appreciation Right is exercised.
(c) The Stock Appreciation Right is transferable only when the
underlying Incentive Option is transferable, and under the same conditions.
-16-
<PAGE>
(d) The Stock Appreciation Right may be exercised only when the
underlying Incentive Option is eligible to be exercised.
(e) The Stock Appreciation Right may be exercised only when the
Market Value of the Stock subject to the underlying Incentive Option
exceeds the Option Price of the underlying Incentive Option.
6.9. WRITTEN NOTICE REQUIRED. Any Stock Appreciation Right will be deemed
to be exercised when written notice of exercise has been received by the Company
at its principal office from the person entitled to exercise the Stock
Appreciation Right.
ARTICLE VII
PERFORMANCE SHARES
7.1. GRANT OF PERFORMANCE SHARES. The Committee may, in its sole
discretion, grant Performance Shares in accordance with the terms and conditions
set forth in the Plan. Each Performance Share Agreement may contain such
additional terms and conditions, not inconsistent with the terms of the Plan, as
are determined by the Committee in its sole discretion.
7.2. TERMS AND CONDITIONS. Performance Shares may be earned based on the
attainment of Performance Goals established by the Committee for a particular
Performance Cycle. The Committee may establish Performance Goals on the basis of
such criteria and to accomplish such objectives as the Committee may from time
to time select.
7.3. AMOUNT OF PAYMENT. After the end of each Performance Cycle, the
Committee will determine the number of Performance Shares earned by each
Participant with respect to the Performance Cycle in accordance with the
following:
(a) If the Performance Goal is attained or exceeded, a Participant
will be deemed to have earned the full number of Performance Shares granted
to the Participant.
(b) If the Minimum Performance Goal is not attained, a Participant
will be deemed to have earned no Performance Shares.
(c) If the Performance Goal is not attained, but the Minimum
Performance Goal is attained or exceeded, the number of Performance Shares
deemed to have been earned by a Participant will be a portion of the
Performance Shares, as determined based on a formula established by the
Committee at the time of grant.
(d) If a Participant's employment or service with the Company or any
subsidiary thereof has terminated because of death, Disability or
Retirement prior to the end of a Performance Cycle, the number of
Performance Shares such Participant will be deemed to have earned shall be
the number of Performance Shares determined as though
-17-
<PAGE>
such Participant's employment or service had not terminated, multiplied by
a fraction, the numerator of which is the number of months such Participant
was employed or served the Company or a subsidiary thereof during the
Performance Cycle (including the month during which employment or service
terminated) and the denominator of which is the total number of months in
the Performance Cycle.
(e) If the Participant's employment or service has terminated for any
reason other than death, Disability or Retirement, such Participant will be
deemed to have earned no Performance Shares except as and to the extent the
Committee may determine; provided that the number of Performance Shares
that may be so determined by the Committee to have been earned may not
exceed the number that would have been earned had the provisions of Section
7.3(a) been applicable.
(f) At any time prior to the end of a Performance Cycle, the
Committee may adjust downward (but not upward) the Performance Goal and/or
the Minimum Performance Goal as a result of major events unforeseen at the
time the Performance Shares were awarded, such as changes in the economy,
the industry, laws affecting the operation of the Company or any subsidiary
thereof, changes in applicable tax laws or accounting principles or any
other event the Committee determines would have a significant impact upon
the probability of attaining the previously established Performance Goal
and/or Minimum Performance Goal.
7.4. FORM OF PAYMENT. Payment in respect of earned Performance Shares
will be made to the Participant or, if the Participant has died, to the
Participant's designated beneficiary, as soon as practicable after the
expiration of the Performance Cycle and the Committee's determination under
Section 7.3. Payment in respect of earned Performance Shares may be made in
cash, in shares of Stock or a combination thereof, as determined by the
Committee in its sole discretion at the time of payment.
7.5. ADDITIONAL AWARDS. In the sole discretion of the Committee, a
Performance Share Award may provide the Participant with (i) dividends or
dividend equivalents (payable on a current or deferred basis) and (ii) cash
payments in lieu of or in addition to such Award.
ARTICLE VIII
STOCK UNIT AWARDS
8.1. GRANT OF STOCK UNIT AWARDS. The Committee may, in its sole
discretion, grant Stock Unit Awards in accordance with the terms and conditions
set forth in the Plan. Each Stock Unit Agreement may contain such additional
terms and conditions, not inconsistent with the terms of the Plan, as are
determined by the Committee in its sole discretion.
8.2 TERMS AND CONDITIONS. Stock Unit Awards may be in the form of Stock
or units, the value of which is based, in whole or in part, on the Market Value
of Stock. Stock Unit
-18-
<PAGE>
Awards will be subject to such terms, restrictions, conditions, vesting
requirements and payment requirements as the Committee may determine in its sole
discretion at the time of grant, including without limitation the following:
(a) Any shares of Stock that are part of a Stock Unit Award may be
subject to restrictions on sale, assignment, transfer, pledge or other
encumbrance.
(b) Stock Unit Awards may provide for the payment of cash
consideration by the Participant or provide that the Award, and any Stock
to be issued in connection therewith, if applicable, shall be delivered
without the payment of cash consideration.
(c) Stock Unit Awards may relate in whole or in part to certain
performance criteria established by the Committee.
(d) Stock Unit Awards may provide for deferred payment schedules
and/or vesting over a specified period of employment or service with the
Company or any subsidiary thereof.
8.3. ADDITIONAL AWARDS. In the sole discretion of the Committee, a Stock
Unit Award may provide the Participant with (i) dividends or dividend
equivalents (payable on a current or deferred basis) and (ii) cash payments in
lieu of or in addition to such Award.
ARTICLE IX
TERMINATION, AMENDMENT AND ADJUSTMENT
9.1. TERMINATION AND AMENDMENT OF THE PLAN. The Board (or, if the Board
has specifically delegated this authority to the Committee, the Committee) may
at any time terminate the Plan or make such modifications of the Plan as it
deems advisable; provided that no amendment may be made without approval of the
stockholders of the Company if such approval is required under the Code or any
requirement under applicable state law. No termination or amendment of the Plan
may, without the consent of the Participant to whom any Award has theretofore
been granted, adversely affect the rights of such Participant under such Award.
9.2. ADJUSTMENT. In the event of any stock dividend payable in Stock or
any split-up or contraction of the number of shares of Stock after the date an
Award is granted and prior to the exercise in full of an Option or Stock
Appreciation Right or the lapse, waiver and/or satisfaction of any restrictions
or Performance Goals related to a Restricted Stock Award, Performance Share
Award or Stock Unit Award, the number of shares subject to such Award and, if
applicable, the Option Price, will be proportionately adjusted. In the event of
any reclassification or change of outstanding shares of Stock or in case of any
consolidation or merger of the Company with or into another company or in case
of any sale or conveyance to another company or entity of the property of the
Company as a whole or substantially as a whole, shares of stock or other
securities equivalent in kind and value to those shares a Participant would have
received if he had held the
-19-
<PAGE>
full number of shares of Stock subject to the Award immediately prior to such
reclassification, change, consolidation, merger, sale or conveyance (together
with all other shares, stock and securities thereafter issued in respect
thereof) will thereupon be subject to the Award. Upon dissolution or liquidation
of the Company, all Awards will terminate, but the Participant will have the
right, immediately prior to such dissolution or liquidation, to exercise any
Option or Stock Appreciation Right to the extent exercisable on the date of such
dissolution or liquidation. No fraction of a share of Stock will be purchasable
or deliverable upon exercise, but in the event any adjustment hereunder of the
number of shares covered by the Award will cause such number to include a
fraction of a share, such number of shares will be adjusted to the nearest
smaller whole number of shares. In the event of changes in the outstanding Stock
by reason of any stock dividend, split-up, contraction, reclassification, or
change of outstanding shares of Stock of the nature contemplated by this Section
9.2, the number of shares of Stock available for the purpose of the Plan as
stated in Section 2.3 will be correspondingly adjusted.
ARTICLE X
MISCELLANEOUS
10.1. NOTICES AND OTHER COMMUNICATIONS. All notices and other
communications required or permitted under the Plan will be effective if in
writing and if delivered or sent by certified or registered mail, return receipt
requested (a) if to the Participant, at his residence address last filed with
the Company and (b) if to the Company, at 14951 North Dallas Parkway, Dallas,
Texas 75240 Attention: President, with a copy to the Chairman of the Board of
Directors of the Company, presently at 14951 North Dallas Parkway, Dallas, Texas
75240, or to such other persons or addresses as the Participant or the Company
may specify by a written notice to the other from time to time.
10.2. PLAN BINDING ON SUCCESSORS. The Plan will be binding upon the
successors and assigns of the Company.
10.3. NUMBER AND GENDER. Whenever used herein, nouns in the singular will
include the plural where appropriate, and the masculine pronoun will include the
female gender.
-20-
