Exhibit 4.1
CACHE, INC.
2008 STOCK OPTION AND
PERFORMANCE INCENTIVE PLAN
ARTICLE 1
ESTABLISHMENT AND PURPOSE
1.1
Establishment and Effective Date .
Cache, Inc., a Florida corporation (the
“Corporation”), hereby establishes a stock incentive
plan to be known as the “Cache, Inc. 2008 Stock Option
and Performance and Incentive Plan” (the
“Plan”). The plan shall become effective as of
July 1, 2008, subject to the approval of the
Corporation’s stockholders at the 2009 Annual Meeting of
Stockholders. In the event that such stockholder approval is
not obtained, any awards made hereunder shall be cancelled and all
rights of employees and directors with respect to such awards shall
thereupon cease. Upon approval by the Board of Directors of
the Corporation (the “Board”) and the Board’s
Compensation and Plan Administration Committee (the
“Committee”), awards may be made as provided
herein.
1.2
Purpose .
The purpose of the Plan is to encourage and enable key employees
and directors (subject to such requirements as may be prescribed by
the Committee) of the Corporation and its subsidiaries to acquire a
proprietary interest in the Corporation through the ownership of
the Corporation’s common stock, par value $.01 per share
(“Common Stock”), and other rights with respect to the
Common Stock. Such ownership will provide such employees and
directors with a more direct stake in the future welfare of the
Corporation and encourage them to remain with the Corporation and
its subsidiaries. It is also expected that the Plan will
encourage qualified persons to seek and accept employment with the
Corporation and its subsidiaries and to become and remain directors
of the Corporation.
ARTICLE 2
AWARDS
2.1
Form of Awards . Awards under the Plan may be
granted in any one or all of the following forms: (i) incentive
stock options (“Incentive Stock Options”) meeting the
requirements of Section 422 of the Internal Revenue Code of
1986, as amended (the “Code”); (ii) non-qualified
stock options (“Non-qualified Stock Options”) (unless
otherwise indicated, references in the Plan to
“Options” shall include both Incentive Stock Options
and Non-qualified Stock Options); (iii) stock appreciation
rights (“Stock Appreciation Rights”), as described in
Article 6 hereof, which may be awarded either in tandem with
Options (“Tandem Stock Appreciation Rights”) or on a
stand-alone basis (“Nontandem Stock Appreciation
Rights”); (iv) shares of Common Stock which are
restricted as provided in Article 9 hereof (“Restricted
Shares”); (v) units representing shares of Common Stock,
as described in Article 10 hereof (“Performance
Shares”); (vi) units which do not represent shares of
Common Stock but which may be paid in the form of Common Stock, as
described in Article 11 hereof (“Performance
Units”); and (vii) shares of Common Stock that are not
subject to any conditions to vesting (“Unrestricted
Shares”).
2.2
Maximum Shares Available . The maximum
aggregate number of shares of Common Stock available to be awarded
under the Plan is 800,000 (subject to adjustment pursuant to
Article 14 hereof), which represents the sum of 279,368 shares
of Common Stock plus 520,632 shares of Common Stock otherwise
available to be awarded under the Corporation’s 2003 Stock
Option and Performance Incentive Plan as of the effective date of
the Plan. Shares of Common Stock issued pursuant to the Plan
may be either authorized but unissued shares or issued shares
reacquired by the Corporation. In the event that prior to the
end
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of
the period during which Options may be granted under the Plan, any
Options or any Nontandem Stock Appreciation Rights under the Plan
expires unexercised or is terminated, surrendered or cancelled
(other than in connection with the exercise of Stock Appreciation
Rights) without being exercised in whole or in part for any reason,
or any Restricted Shares, Performance Shares or Performance Units
are forfeited, or if such awards are settled in cash in lieu of
shares of Common Stock, then such shares or units shall be
available for subsequent awards under the Plan, upon such terms as
the Committee may determine.
ARTICLE 3
ADMINISTRATION
3.1
Committee .
Awards shall be determined, and the Plan shall be
administered by the Committee as appointed from time to time by the
Board, which Committee shall consist solely of at least two
individuals who are each “non-employee directors”
within the meaning of Rule 16b-3 of the Securities Exchange
Act of 1934, as amended (the “Act”), and “outside
directors” within the meaning of Section 162(m) of
the Code (or regulations promulgated thereunder).
3.2
Powers of the Committee . Subject to the
express provisions of the Plan, the Committee shall have the power
and authority (i) to grant Options and to determine the
purchase price of the Common Stock covered by each Option, the term
of each Option, the number of shares of Common Stock to
be covered by each Option and any performance objectives or vesting
standards applicable to each Option; (ii) to designate Options
as Incentive Stock Options or Non-qualified Stock Options and to
determine which Options, if any, shall be accompanied by Tandem
Stock Appreciation Rights, (iii) to grant Tandem Stock
Appreciation Rights and Nontandem Stock Appreciation Rights and to
determine the terms and conditions of
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such rights; (iv) to grant Restricted
Shares and to determine the terms of the restricted period and
other conditions and restrictions applicable to such shares;
(v) to grant Performance Shares and Performance Units and to
determine the performance objectives, performance periods and other
conditions applicable to such shares or units; (vi) to grant
Unrestricted Shares; and (vii) to determine the employees and
directors to whom, and the time or times at which, Options, Stock
Appreciation Rights, Restricted Shares, Performance Shares,
Performance Units and Unrestricted Shares shall be
granted.
3.3
Delegation .
The Committee may delegate to one or more of its
members or to any other person or persons such ministerial duties
as it may deem advisable; provided, however, that the Committee may
not delegate any of its responsibilities hereunder if such
delegation would cause the Plan to fail to comply with the
“disinterested administration” rules under
Section 16 of the Act or any awards to fail to satisfy the
performance-based exception under Section 162(m) of the
Code. The Committee may also employ attorneys, consultants,
accountants, or other professional advisors and shall be entitled
to rely upon the advice, opinions or valuations of any such
advisors.
3.4
Interpretations .
The Committee shall have the sole discretionary
authority to interpret the terms of the Plan, to adopt and revise
rules, regulations and policies to administer the Plan and to make
any other factual determinations which it believes to be necessary
and advisable for the administration of the Plan. All actions
taken and interpretations and determinations made by the Committee
in good faith shall be final and binding upon the Corporation, all
employees and directors who have received awards under the Plan and
all other interested persons.
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3.5
Liability; Indemnification . No member
of the Committee, nor any person to whom ministerial duties have
been delegated, shall be personally liable for any action,
interpretation or determination made with respect to the Plan or
awards made thereunder, and each member of the Committee shall be
fully indemnified and protected by the Corporation with respect to
any liability he or she may incur with respect to any such action,
interpretation, or determination, to the extent permitted by
applicable law and to the extent provided in the
Corporation’s Articles of Incorporation and Bylaws, as
amended from time to time, or under any agreement between any such
member and the Corporation.
ARTICLE 4
ELIGIBILITY
Awards may be made to all employees and
directors of the Corporation or any of its subsidiaries (subject to
such requirements as may be prescribed by the Committee). In
determining the key employees and directors to whom awards shall be
granted and the number to be covered by each award, the Committee
shall take into account the nature of the services rendered by such
employees and directors, their present and potential contributions
to the success of the Corporation and its Subsidiaries and such
other factors as the Committee in its sole discretion shall deem
relevant.
As
used herein, the term “Subsidiary” shall mean any
present or future corporation, partnership or joint venture in
which the Corporation owns, directly or indirectly, 40% or more of
the economic interests. Notwithstanding the foregoing, only
employees of the Corporation and any present or future corporation
which is or may be a “subsidiary corporation” of the
Corporation (as such term is defined in Section 424
(f) of the Code) shall be eligible to receive Incentive Stock
Options.
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ARTICLE 5
STOCK OPTIONS
5.1
Grant of Options .
Options may be granted under the plan for the purchase
of shares of Common Stock. Options shall be granted in such
form and upon such terms and conditions, including the satisfaction
of corporate or individual performance objectives and other vesting
standards, as the Committee shall from time to time
determine.
5.2
Designation as Non-qualified Stock Option or Incentive Stock
Option . In
connection with any grants of Options, the Committee shall
designate in the written agreement required pursuant to
Article 16 hereof whether the Options granted shall be
Incentive Stock Options or Non-qualified Stock Options, or in the
case both are granted, the number of shares of each.
5.3
Option price .
The purchase price per share under each Option shall
be specified by the Committee, but in no event shall it be less
than the greater of 100% of the Market Price on the date the Option
is granted or the par value of the Common Stock ($.01). In
the case of an Incentive Stock Option granted to an employee owning
(actually or constructively under Section 424(d) of the
Code), more than 10% of the total combined voting power of all
classes of stock of the Corporation or of a subsidiary (a
“10% Stockholder”), the option price shall not be less
than 110% of the Market Price of the Common Stock on the date of
grant.
The
Market Price of the Common Stock on any day shall be determined as
follows: (i) if the Common Stock is listed on a national
securities exchange, the Market Price on any day shall be the
closing price reported on the consolidated trading listing for such
day; or (ii) if the Common Stock is not listed on a national
stock exchange, the Market Price on any day shall be the average of
the high bid and low asked prices reported by the National
Quotation
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Bureau, Inc. for such day. In no
event shall the Market Price of a share of Common Stock subject to
an Incentive Stock Option be less than the fair market value as
determined for purposes of Section 422(b)(4) of the
Code.
The
Option price so determined shall also be applicable in connection
with the exercise of Tandem Stock Appreciation Rights granted with
respect to such Option.
5.4
Limitation on Amount of Incentive Stock Options . In the
case of Incentive Stock Options, the aggregate Market Price
(determined at the time the Incentive Stock Option is granted) of
the Common Stock with respect to which Incentive Stock Options are
exercisable for the first time by any optionee during any calendar
year (under all plans of the Corporation and any Subsidiary) shall
not exceed $100,000.
5.5
Limitation on Time of Grant . No grant of
an Incentive Stock Option shall be made under the Plan more than
ten (10) years after the date the Plan is approved by
stockholders of the Corporation.
5.6
Exercise and Payment . Options may be
exercised in whole or in part. Common Stock purchased upon
the exercise of Options shall be paid for at the time of
purchase. Such payments shall be made in cash or, in the
discretion of the Committee, (i) through the delivery of
shares of Common Stock already owned by the optionee,
(ii) having the Corporation withhold from shares of Common
Stock otherwise deliverable to the optionee, (iii) installment
payments under the optionee’s promissory note, (iv) a
combination of any of the foregoing, in accordance with procedures
to be established by the Committee. Any shares so delivered
shall be valued at their Market Price on the date of
exercise. Upon receipt of notice of exercise and payment in
accordance with procedures to be established by the Committee, the
Corporation or its agent shall deliver to the person exercising the
Option (or his or her designee) a certificate for
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such shares. The Committee in its sole
discretion may, on an individual basis or pursuant to a general
program established by the Committee in connection with the Plan,
lend money to an optionee to exercise all or a portion of an Option
granted hereunder. If the exercise price is paid in whole or
part with an optionee’s promissory note, such note shall
(i) provide for full recourse to the maker, (ii) be
collateralized by the pledge of the shares of Common Stock that the
Optionee purchases upon exercise of such Option, (iii) bear
interest at a rate no less than the then applicable federal rate
(within the meaning of Section 1274 of the Code) for debt
instruments with a term equal to the term of the note, and
(iv) contain such other terms as the Committee in its sole
discretion shall require.
5.7
Term . The term
of each Option granted hereunder shall be determined by the
Committee; provided, however, that, notwithstanding any other
provision of the Plan, in no event shall an Incentive Stock Option
be exercisable after ten (10) years from the date it is
granted, or in the case of an Incentive Stock Option granted to a
10% Stockholder, five (5) years from the date it is
granted.
5.8
Rights as a Stockholder . A recipient of
Options shall have no rights as a stockholder with respect to any
shares issuable or transferable upon exercise thereof until the
date a stock certificate is issued to such recipient representing
such shares. Except as otherwise expressly provided in the
Plan, no adjustment shall be made for cash dividends or other
rights for which the record date is prior to the date such stock
certificate is issued.
5.9
General Restrictions . Each Option
granted under the Plan shall be subject to the requirement that, if
at any time the Board shall determine in its discretion that the
listing, registration or qualification of the shares issuable or
transferable upon the exercise thereof upon any securities
exchange or under any state of federal law, or the consent or
approval of any
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governmental regulatory body, is necessary or
desirable as a condition of, or in connection with, the granting of
such Option or the issue, transfer, or purchase of shares
thereunder, such Option may not be exercised in whole or in part
unless such listing, registration, qualification, consent, or
approval shall have been effected or obtained free of any
conditions not acceptable to the Board.
The
Board or the Committee may, in connection with the granting of any
Option, require the individual to whom the Option is to be granted
to enter into an agreement with the Corporation stating that as a
condition precedent to each exercise of the Option, in whole or in
part, such individual shall if then required by the Corporation
represent to the Corporation in writing that such exercise is for
investment only and not with a view to distribution, and also
setting forth such other terms and conditions as the Board or the
Committee may prescribe.
5.10
Cancellation of Stock Appreciation Rights . Upon
exercise of all or a portion of an Option, the related Tandem Stock
Appreciation Rights, if any, shall be cancelled with respect to an
equal number of shares of Common Stock.
ARTICLE 6
STOCK APPRECIATION RIGHTS
6.1
Grants of Stock Appreciation Rights . Tandem
Stock Appreciation Rights may be awarded by the Committee in
connection with any Option granted under the Plan, either at the
time the Option is granted or thereafter at any time prior to the
exercise, termination or expiration of the Option. Nontandem
Stock Appreciation Rights may also be granted by the Committee at
any time. At the time of the grant of Nontandem Stock
Appreciation Rights, the Committee shall specify the number of
shares of Common Stock covered by such right and the base price of
shares of Common Stock to be used in connection with the
calculation described in
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Section 6.4 below. The base price of
any Nontandem Stock Appreciation Rights shall not be less than 100%
of the Market Price of a share of Common Stock on the date of
grant. Stock Appreciation Rights shall be subject to such
terms and conditions not inconsistent with the other provisions of
the Plan as the Committee shall determine.
6.2
Limitations on Exercise . Tandem Stock
Appreciation Rights shall be exercisable only to the extent that
the related Option is exercisable and shall be exercisable only for
such period as the Committee may determine (which period may expire
prior to the expiration date of the related Option). Upon the
exercise of all or a portion of Tandem Stock Appreciation Rights,
the related Option shall be cancelled with respect to an equal
number of shares of Common Stock. Shares of Common Stock
subject to Options, or portions thereof, surrendered upon the
exercise of Tandem Stock Appreciation Rights shall not be available
for subsequent awards under the Plan. Nontandem Stock
Appreciation Rights shall be exercisable during such period as the
Committee shall determine.
6.3
Surrender or Exchange of Tandem Stock Appreciation Rights .
Tandem Stock Appreciation Rights shall entitle the
recipient to surrender to the Corporation unexercised the related
Option, or any portion thereof, and to receive from the Corporation
in exchange therefor that number of shares of Common Stock having
an aggregate Market Price equal to (A) the excess of
(i) the Market Price of one (1) share of Common Stock as
of the date the Tandem Stock Appreciation Rights are exercised over
(ii) the option price per share specified in such Option,
multiplied by (B) the number of shares of Common Stock subject
to the Option, or portion thereof, which is surrendered. Cash
shall be delivered in lieu of any fractional shares.
6.4
Exercise of Nontandem Stock Appreciation Rights . The
exercise of Nontandem Stock Appreciation Rights shall entitle the
recipient to receive from the Corporation
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that number of shares of Common Stock having an
aggregate Market Price equal to (A) the excess of
(i) the Market Price of one (1) share of Common Stock as
of the date on which the Nontandem Stock Appreciation Rights are
exercised over (ii) the base price of the shares covered by
the Nontandem Stock Appreciation Rights, multiplied by (B) the
number of shares of Common Stock covered by the Nontandem Stock
Appreciation Rights, or the portion thereof being exercised.
Cash shall be delivered in Lieu of any fractional
shares.
6.5
Settlement of Stock Appreciation Rights . As
soon as is reasonably practicable after the exercise of any Stock
Appreciation Rights, the Corporation shall (i) issue, in the
name of the recipient, stock certificates representing the total
number of full shares of Common Stock to which the recipient is
entitled pursuant to Section 6.3 or 6.4 hereof and cash in an
amount equal to the Market Price, as of the date of exercise, of
any resulting fractional shares, and (ii) if the Committee
causes the Corporation to elect to settle all or part of its
obligations arising out of the exercise of the Stock Appreciation
Rights in cash pursuant to Section 6.6 hereof, deliver to the
recipient an amount in cash equal to the Market Price, as of the
date of exercise, of the shares of Common Stock it would otherwise
be obligated to deliver.
6.6
Cash Settlement .
The Committee, in its discretion, may cause the
Corporation to settle all or any part of its obligation arising out
of the exercise of Stock Appreciation Rights by the payment of cash
in lieu of all or part of the shares of Common Stock it would
otherwise be obligated to deliver in an amount equal to the Market
Price of such shares on the date of exercise.
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ARTICLE 7
NONTRANSFERABILITY OF OPTIONS AND STOCK
APPRECIATION RIGHTS
No
Option or Stock Appreciation Rights may be transferred, assigned,
pledged or hypothecated (whether by operation of law or otherwise),
except as provided by will or the applicable laws of descent and
distribution, and no Option or Stock Appreciation Rights shall be
subject to execution, attachment, or similar process. Any
attempted assignment, transfer, pledge, hypothecation or other
disposition of an Option or Stock Appreciation Rights not
specifically permitted herein shall be null and void and without
effect. An Option or Stock Appreciation Rights may be
exercised by the recipient only during his or her lifetime, or
following his or her death pursuant to Section 8.3
hereof.
Notwithstanding anything to the contrary in the
preceding paragraph, the Committee may, in its sole discretion,
cause the written agreement relating to any Non-qualified Stock
Options or Stock Appreciation Rights granted hereunder to provide
that the recipient of such Non-qualified Stock Options or Stock
Appreciation Rights may transfer any of such Non-qualified Stock
Options or Stock Appreciation Rights other than by will or the laws
of descent and distribution in any manner authorized under
applicable law; provided , however , that in no event
may the Committee permit any transfers which would cause this Plan
to fail to satisfy the applicable requirements of Rule 16b-3
under the Act, or would cause any recipient of awards hereunder to
fail to be entitled to the benefits Rule 16b-3 or other
exemptive rules under Section 16 of the Act or be subject
to liability thereunder.
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ARTICLE 8
EFFECT OF TERMINATION OF EMPLOYMENT OR BOARD
SERVICE, DISABILITY,
DEATH OR CHANGE IN CONTROL
8.1
General Rule .
In the event the employment or service on the Board of
a recipient terminates for any reason (other than death or
Disability), the Options or Stock Appreciation Rights granted to
such recipient and which are exercisable as of the date of
termination of employment may be so exercised wit
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