FCG ENTERPRISES, INC.
NON-EMPLOYEE DIRECTOR RESTRICTED STOCK PLAN
(ADOPTED: AUGUST 22, 1997)
SECTION 1. PURPOSE
The purpose of the Non-Employee Director Restricted Stock Plan is to
provide incentives and rewards for Non-Employee Directors by making them
participants in The Company's success. Additionally, by virtue of the
mandatory nature of the Plan, each Participant will have a direct stake in
the Company's performance.
SECTION 2. DEFINITIONS
2.1 "Agreement" shall mean the Non-Employee Director Restricted Stock
Agreement attached hereto as Exhibit "A."
2.2 "BOARD" shall mean the Board of Directors of the Company.
2.3 "COMMON STOCK" or "STOCK" shall mean the Company's Common Stock
as described in the Company's Articles of Incorporation.
2.4 "COMPANY" shall mean FCG Enterprises, Inc., a California
corporation, or any successor thereof.
2.5 "DIRECTOR" shall mean a member of the Board.
2.6 "NON-EMPLOYEE DIRECTOR" shall mean a member of the Board (or a
member of the Board of Directors of the Company's wholly owned subsidiaries
selected by the Board) who is not an employee of the Company;
2.7 "PARTICIPANT" shall mean those Non-Employee Directors who
participate in this Plan.
2.8 "PLAN" shall refer to the FCG Enterprises, Inc. Non-Employee
Director Restricted Stock Plan, as may be amended from time to time.
2.9 "VOTING STOCK" shall mean all shares of common stock of the
Company which have voting rights, regardless of the class thereof.
SECTION 3. ADMINISTRATION AND AUTHORIZATION
3.1 PLAN ADMINISTRATION. The Plan shall be administered by the
Board.
3.2 PARTICIPATION. All Non-Employee Directors shall participate in
the Plan, as provided in the Agreement.
1
3.3 AUTHORIZATION. Any determination, decision, or action of the
Board in connection with the construction, interpretation, administration, or
application of the Plan shall be final, conclusive, and binding upon all
Participants and any person claiming under or through a Participant, unless
otherwise determined by the Board. No member of the Board shall be liable
for any determination, decision, or action made in good faith with respect to
the Plan or shares of Stock granted under the Plan. The Company shall
indemnify and hold harmless the members of the Board from and against any and
all liabilities, costs, and expenses incurred by such persons as a result of
any act, or omission, in connection with the performance of such persons'
duties, responsibilities, and obligations under the Plan, other than such
liabilities, costs, and expenses as may result from the bad faith, willful
misconduct, or criminal acts of such persons.
SECTION 4. STOCK SUBJECT TO PLAN
The stock to be issued under the Plan shall be the Company's Common
Stock.
SECTION 5. ELIGIBILITY
All Non-Employee Directors of the Company shall participate in the Plan.
SECTION 6. STOCK PURCHASE TERMS AND RESTRICTIONS
The terms and conditions under which shares of Common Stock will be
purchased and sold are as set forth in the form(s) of Agreement attached
hereto as Exhibit "A" and incorporated herein by reference. For a
Participant to participate in the Plan, both the Participant and the Company
must execute the Agreement.
SECTION 7. ADJUSTMENTS IN STOCK
7.1 If any change is made in the Stock subject to the Plan, or
subject to any Agreement (through merger, consolidation, reorganization,
recapitalization, reincorporation, stock dividend, dividend in property other
than cash, stock split, liquidating dividend, combination of shares, exchange
of shares, change in corporate structure or other transaction not involving
the receipt of consideration by the Company), the Plan will be appropriately
adjusted in the type(s) and maximum number of securities subject to the Plan,
and the outstanding Agreements will be appropriately adjusted in the type(s)
and number of securities and, if applicable, the price per share of Stock.
Such adjustments shall be made by the Board the determination of which shall
be final, binding and conclusive. (A "transaction not involving the receipt
of consideration by the Company" shall not include the conversion of any
convertible securities of the Company or a reincorporation of the Company.)
7.2 In the event of a Change in Control (as defined herein) either:
(i) any surviving corporation or acquiring corporation shall assume or
continue the Plan and all rights and obligations under outstanding Agreements
under the Plan, or
(ii) in the event any surviving corporation or acquiring corporation
refuses to assume or continue the Plan and such rights and obligations, the
Stock subject to each outstanding
2
Agreement shall be fully vested immediately prior to such Change in Control
and the Plan and all related Agreements terminated after such event.
7.3 For purposes of the Plan, a "Change in Control" shall mean: (1)
a dissolution, liquidation or sale of all or substantially all of the assets
of the Company; (2) a merger or consolidation in which the Company is not the
surviving corporation; (3) a reverse merger in which the Company is the
surviving corporation but the shares of the Stock outstanding immediately
preceding the merger are converted by virtue of the merger into other
property, whether in the form of securities, cash or otherwise; or (4) the
acquisition by any person, entity or group within the meaning of Section
13(d) or 14(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), or any comparable successor provisions (excluding any
employee benefit plan, or related trust, sponsored or maintained by the
Company or any affiliate of the Company) of the beneficial ownership (within
the meaning of Rule 13d-3 promulgated under the Exchange Act, or comparable
successor rule) of securities of the Company representing at least fifty
percent (50%) of the combined voting power entitled to vote in the election
of directors.
SECTION 8. MISCELLANEOUS PROVISIONS
8.1 NON-TRANSFERABILITY OF SHARES OF STOCK. Except as otherwise set
forth in the Agreement, no shares of Stock issued pursuant to the Plan may be
sold, transferred, pledged or hypothecated (collectively "Transfer") without
the prior written consent of the Company. Any Transfer in violation of the
foregoing shall be void ab initio.
8.2 RESTRICTIONS ON ISSUANCE OF SHARES OF STOCK. No shares of Stock
shall be issued or delivered unless and until there shall have been
compliance with all applicable requirements (including exemptions) of the
Securities Act of 1933, as amended, all applicable state securities laws, and
any other requirement of law or of any regulatory body having jurisdiction
over such issuance and delivery. The inability of the Company to obtain any
required permits, authorizations, or approvals necessary for the lawful
issuance and sale of any shares of Stock hereunder on terms deemed reasonable
by the Board shall relieve the Company, the Board, and the Committee of any
liability in respect of the non-issuance or sale of such shares of Stock as
to which such requisite permits, authorizations, or approvals shall not have
been obtained.
As a condition to the granting of shares of Stock under the Plan, the
Board may require the person receiving the shares of Stock to make such
representations and/or warranties to the Company as may be required under any
applicable law or regulation, including but not limited to a representation
that the shares of Stock are being acquired only for investment and without
any present intention to sell or distribute such shares of Stock.
8.3 TAX WITHHOLDING. The Board shall make such provisions and take
such steps as it deems necessary or appropriate for the withholding of any
federal, state, local, and other tax required by law to be withheld with
respect to the issuance of shares of Stock under the Plan, including, but
without limitation, the deduction of the amount of any such withholding tax
from any compensation or other amounts payable to the Participant by the
Company, or requiring a Participant (or the Participant's beneficiary or
legal representative) as a condition of issuing the shares of Stock, to pay
to the Company any amount required to be withheld, or to execute such
3
other documents as the Board deems necessary or desirable in connection with
the satisfaction of any applicable withholding obligation.
8.4 LEGENDS ON STOCK CERTIFICATES. Each share certificate
representing shares of Stock acquired under this Plan shall be endorsed with
all legends, if any, required by applicable federal and state securities laws
to be placed on the certificate. The determination of which legends, if any,
shall be placed upon the share certificates shall be made by the Board in its
sole discretion and such decision shall be final and binding.
8.5 TERMINATION, SUSPENSION, AND AMENDMENT. The Board may amend,
alter, and/or terminate the Plan at any time, prospectively or retroactively,
and may amend the form of Agreement; provided, however, that unless required
by applicable law, rule, or regulation, no amendment of the Plan or of the
Agreement shall affect in a material and adverse manner any awards of shares
of Stock granted prior to the date of any such amendment without the consent
of the affected Participant(s).
8.6 GOVERNING LAW. The Plan shall be governed by, construed and
enforced in accordance with the internal laws of the State of California,
provided that the Agreements may be governed by other applicable law
specified in the Agreements.
8.7 BINDING UPON SUCCESSORS. The terms and provisions of the Plan
shall be binding upon the heirs, executors, administrators, personal
representatives, and permitted successors and assigns of a Participant.
8.8 NUMBER AND GENDER. As used in this Plan, words in the singular
shall include the plural and words in a particular gender shall include
either or both genders when the context in which such words are used
indicates that such is the intent.
4
