STOCK OPTION PLAN
FEBRUARY 13, 2001
The purpose of the Westcorp 2001 Stock Option Plan (the "Plan") is to
provide incentives to, and to encourage the ownership of Westcorp, a California
corporation, common stock (hereinafter "Common Stock"), by certain employees and
directors of the Company and its subsidiaries (collectively, unless the context
indicates otherwise, the "Company"). The Plan provides for stock options which
qualify as Incentive Stock Options ("ISOs") under Section 422 of the Internal
Revenue Code of 1986, as amended (the "Code") and Non-Statutory Stock Options
("NSOs") which are not intended to be ISOs. The Plan is not a qualified deferred
compensation plan under Section 401(a) of the Code and is not subject to the
provisions of the Employee Retirement Income Security Act of 1974 ("ERISA").
2.1 The Plan shall be administered by the Board of Directors of the
Company (the "Board") or, if so designated by the Board, by the Compensation
Committee of the Board, consisting of not less than two members of the Board.
The administrator of the Plan is hereinafter referred to as the "Committee". In
addition, the composition of the Committee shall be made in an attempt to
(a) Such requirements as the Securities and Exchange Commission
may establish for administrators acting under plans intended
to qualify for exemption under Rule 16b-3 (or its successor)
under the Securities Exchange Act, and
(b) Such requirements as the Internal Revenue Service may
establish for outside directors acting under plans intended to
qualify for exemption under Internal Revenue Code
2.2 Subject to the limitations of the Plan, the Committee shall have the
sole and complete authority (a) to select those directors or employees (who may
also be officers or directors of the Company or any subsidiary of the Company)
who shall be eligible to have awards made to them under the Plan
("Participants"), (b) to determine the type and amount of awards to be granted
each Participant in conformity with the Plan, (c) to impose such limitations,
restrictions, and conditions upon awards as it shall deem appropriate, (d) to
interpret the Plan, adopt agreements, and to adopt, amend, and rescind
administrative guidelines and other rules and regulations relating to the Plan,
and (e) to make all other determinations and to take all other actions necessary
or advisable for the proper administration of the Plan. Determinations of fair
market value under the Plan shall be made in accordance with the methods and
procedures established by the Committee. The Committee's determinations on
matters within its authority shall be conclusive and binding on the Company and
all other parties. No member of the Board or the Committee shall be liable for
any action or determination made in good faith with respect to the Plan or any
award made under it. The Committee may select one of its members as its
Chairman, and shall
hold meetings at such times and places as it may determine. Acts by a majority
of the Committee, or acts reduced to or approved in writing by a majority of the
members of the Committee without a meeting, shall be the valid acts of the
2.3 The "fair market value" on a specified date shall mean the closing
price for a Share on the stock exchange, if any, on which Shares are primarily
traded, but if no Shares were traded on such date, then on the last previous
date on which a Share was so traded, or, if Shares are not primarily traded on a
stock exchange, the average of the bid and asked closing prices at which one
Share is traded on the over-the-counter market, as reported on the National
Association of Securities Dealers Automated Quotation System, or, if none of the
above is applicable, the value of a Share as established by the Board of
Directors for such date using any reasonable method of valuation.
3. TYPE OF AWARD.
Awards under the Plan shall be based on Common Stock of the Company
("Common Stock") and shall be issued as stock options, qualifying as either NSOs
or ISOs. No awards shall be granted under the Plan after ten years from the date
the Plan is approved by the shareholders of the Company (or, if earlier, the
date the Plan is adopted by the Board), which expiration date shall be February
4. SHARES SUBJECT TO PLAN AND ELIGIBLE EMPLOYEES.
4.1 Subject to adjustment as provided in Section 7 below, the aggregate
number of shares of Common Stock which may be issued upon exercise of either
NSOs or ISOs hereunder shall not exceed 3 million shares of Common Stock of the
Company. In the future, if another company is acquired by the Company or any of
its subsidiaries, any Common Stock covered by or issued as a result of the
assumption or substitution of outstanding grants of the acquired company shall
not be deemed issued under the Plan and shall not be subtracted from the Common
Stock available for grant under the Plan. The Common Stock deliverable under the
Plan shall consist in whole or in part of authorized and unissued shares of the
Company. Notwithstanding the foregoing, if any award is forfeited, or an award
is terminated or expires without issuance of Common Stock or other
consideration, the Common Stock subject to such award shall again be available
for grant pursuant to the Plan.
4.2 The class eligible to have awards made to them under the Plan shall
all be employees or directors of the Company and/or its subsidiaries and shall
be selected by the Committee. In general, Participants shall be selected by the
Committee from the directors, executive officers and other key employees of the
Company and its subsidiaries who occupy responsible managerial or professional
positions and/or who have the capacity to or who have already shown their
ability to make a substantial contribution to the success of the Company.
4.3 The form of Option shall be determined from time to time by the
Committee. The terms and provisions of the Option shall be set forth in writing
in a Stock Option Certificate Agreement (the "Agreement"), signed by the Option
holder and on behalf of the Company by the Chairman of the Board or an
authorized officer. The Agreement shall state whether or not the Option is an
Incentive Stock Option. The Committee may establish such other condition(s) as
it may determine provided that, with respect to a
grant of Incentive Stock Options, such condition(s) are not inconsistent with
Section 422 of the Internal Revenue Code.
5. STOCK OPTIONS.
All stock options granted under the Plan shall be subject to the following
terms and conditions:
5.1 The Committee may, from time to time, subject to the provisions of the
Plan and such other terms and conditions as the Committee may prescribe, grant
to any Participant options to purchase Common Stock, which options may, but need
not, be ISOs. As more fully set forth in Section 14, the grant of an option
shall be evidenced by a signed written agreement ("Stock Option Agreement")
containing such terms and conditions, not inconsistent with this Plan, as the
Committee may from time to time prescribe. Options granted under the Plan as
ISOs shall be designated as ISOs in the Stock Option Agreement covering such
5.2 Each Stock Option Certificate Agreement shall specify the exercise
price of each Option. The price per share of the shares subject to each option
shall be set by the Committee; provided, however, that with respect to ISOs,
such price shall not be less than one hundred percent (100%) of the fair market
value of a Common Share as of the date the option is granted; and provided
further, that such price shall be no less than one hundred ten percent (110%) of
the fair market value of a Common Share as of the date the option is granted if
such option is granted to a person who owns ten percent (10%) or more of the
issued and outstanding Common Stock of the Company as of such date. The exercise
price under an NSO shall in no event be less than 85% of the fair market value
of a Common Share as of the date the option is granted. In the case of an NSO, a
Stock Option Agreement may specify an exercise price that varies in accordance
with a predetermined formula while the NSO is outstanding.
5.3 The term of an option shall be set by the Committee in its discretion;
provided, however, that the term shall not be more than seven years from the
date an ISO is granted, or, in the case of an option granted to a person who
owns ten percent (10%) or more of the issued and outstanding Common Stock of the
Company as of the date the option is granted, the term shall not be more than
five years from the date an ISO is granted.
5.4 At any time after grant of an option the Committee may, in its sole
discretion, subject to whatever terms and conditions it selects, and to the
extent applicable, accelerate the period during which an option vests.
5.5 No portion of an option which is unexercisable at the time a
Participant terminates employment with the Company or a subsidiary of the
Company shall thereafter become exercisable. However, for purposes of
understanding the previous sentence, an option shall not be considered
unexercisable if at that time a Participant terminates the only impediment to
his or her exercise of the option is the fact that the Participant is subject to
a closed window period which restricts the exercise of the option as a matter of
law. Further, the existence of a closed window period will not extend the time
within which options hereunder may be exercised.
5.6 For those Participants who are employees of the Company or any of its
affiliated companies or subsidiaries, an option shall be exercisable by a
Participant only while he or she is an employee and up to three months following
the cessation or termination of employment with the Company and any and all
subsidiaries or no later than three months after the Participant ceases to be a
Director. The preceding notwithstanding, the Committee may determine that an
option may be exercised subsequent to a Participant's termination of employment
or directorship, subject to the following limitations:
(a) An option, to the extent not previously exercised, shall
terminate no later than seven (7) years from the Grant Date (the "Option
If Employee ceases to be employed by the Company because of Employee's
retirement, disability or death, the option may, to the extent it was
outstanding and exercisable on the date of such retirement, disability or
death, be exercised only during the following periods: (i) if the
termination was due to Employee's disability (within the meaning of
Section 22(e)(3) of the Code), the one-year period following the date of
such termination; (ii) if the termination was due to Employee's death, the
six-month period following the date of issuance of letters testamentary or
letters of administration to the executor or administrator of Employee's
estate, but not later than one year after Employee's death; and (iii) if
the termination was due to Employee's retirement after attaining age 65,
or to Employee's disability other than as described in (i) above, the
three-month period following the date of such termination. In no event,
however, shall any such period set forth in the previous sentence extend
beyond the Option Term.
(b) In the event of Employee's death, an option may be exercised by
Employee's legal representative(s), but only to the extent that the option
would otherwise have been exercisable by Employee.
(c) A transfer of Employee's employment between the Company and any
subsidiary of the Company, or between any subsidiaries of the Company,
shall not be deemed to be a termination of Employee's employment.
(d) Notwithstanding any other provisions set forth herein or in any
Stock Option Agreement, if an Employee shall (i) commit any act of
malfeasance or wrongdoing affecting the Company or any subsidiary or
affiliate of the Company, (ii) breach any covenant not to compete, or
employment contract, with the Company or any subsidiary or affiliate of
the Company, or (iii) engage in conduct that would warrant Employee's
discharge for cause (excluding general dissatisfaction with the
performance of Employee's duties, but including any act of disloyalty or
any conduct clearly tending to bring discredit upon the Company or any
subsidiary or affiliate of the Company), any unexercised portion of the
option shall immediately terminate and be void.
5.7 An exercisable option may be exercised in whole or in part. However,
an option shall not be exercisable with respect to fractional shares and the
Committee may require that, by the terms of the option, a partial exercise only
be with respect to a minimum number of shares.
5.8 All or a portion of an exercisable option shall be deemed exercised
(a) Delivery of all of the following to the Secretary of the Company
or his or her office:
(i) A written notice complying with the applicable rules
established by the Committee or the Company stating that the option,
or a portion thereof, is exercised. The notice shall be signed by
the Participant or other person then entitled to exercise the option
or such portion;
(ii) Such representations and documents as the Committee, in
its absolute discretion, deems necessary or advisable to effect
compliance with all applicable federal or state securities laws or
regulations. The Committee may, in its absolute discretion, also
take whatever additional actions it deems appropriate to effect such
compliance, including, without limitation, placing legends on share
certificates and issuing stop-transfer notices to agents and
(iii) In the event that the option shall be exercised pursuant
to Section 5.6(b) by any person or persons other than the
Participant, appropriate proof of the right of such person or
persons to exercise the option; and
(b) Full cash payment to the Secretary of the Company for the shares
with respect to which the option, or portion thereof, is exercised.
However, at the discretion of the Committee, the terms of the option may
allow, or provide the Committee with the continuous discretion to allow:
(i) a delay in payment up to thirty days from the date the option, or
portion thereof, is exercised, (ii) payment, in whole or in part, through
the delivery of Common Stock owned by the Participant for at least six
months, (iii) delivery (in a form prescribed or approved by the Committee
or the Company) of an irrevocable direction to a securities broker to sell
all or part of the Common Stock being purchased under the Plan and to
deliver all or part of the sales proceeds to the Company to cover the
exercise price and any applicable withholding taxes; or (iv) payment, in
whole or in part, through the delivery of property of any kind which
constitutes good and valuable consideration.
(c) If Participant fails to pay for any or all of the option shares
specified in the notice of exercise or fails to accept delivery thereof,
Participant's right to purchase such option shares may be terminated by
the Company, without notice. The date specified in Participant's notice of
exercise as the date of exercise shall be deemed the date of exercise of
the option, provided that payment in full for the option shares to be
purchased upon such exercise shall have been received by such date.
5.9 As soon as practicable after receipt by the Company, pursuant to
Section 5.8(b), of full cash payment for the shares with respect to which an
option, or portion thereof, is exercised by a Participant, with respect to each
such exercise, the Company shall transfer to the Participant the number of
shares equal to the quotient of:
(a) The amount of the payment made by the Participant to the Company
pursuant to Section 5.8(b), and
(b) The price per share of the shares subject to the option as
determined pursuant to Section 5.2.
5.10 The Company shall not be required to issue or to deliver any
certificate or certificates for shares of stock purchased upon the exercise of
any option or portion thereof prior to fulfillment of all of the following
(a) The completion of any registration or other qualification of
such shares under any state or federal law, or under the rulings or
regulations of the Securities and Exchange Commission or any other
governmental regulatory body which the Committee shall, in its absolute
discretion, deem necessary or advisable;
(b) Obtaining any approval or other clearance from any state or
federal governmental agency that the Committee shall, in its absolute
discretion, determine to be necessary or advisable;
(c) The lapse of such reasonable period of time following the
exercise of the option as the Committee may establish from time to time
for reasons of administrative convenience; and
(d) The receipt by the Company of full payment for such shares,
including payment of any applicable withholding tax.
(e) The execution and delivery by Participant of a counterpart Stock
Option Agreement between the Company and Participant.
5.11 To the extent that the aggregate fair market value of stock with
respect to which any ISOs are exercisable for the first time by a Participant
during any calendar year (under the Plan and all other incentive stock option
plans of the Company or any Company subsidiary) exceeds $100,000, such options
shall be treated as NSOs to the extent required by Section 422 of the Code. For
purposes of this Section 5.11, the fair market value of stock shall be
determined as of the time the option, with respect to such stock, is granted.
5.12 Within the limitations of the Plan, the Committee may modify, extend
or assume outstanding options or may accept the cancellation of outstanding
options (whether granted by the Company or by another issuer) in return for the
grant of new options for the same or a different number of shares and at the
same or a different exercise price. The foregoing notwithstanding, no
modification of an Option shall, without the consent of the Participant, alter
or impair his or her rights or obligations under such Option.
6. NONASSIGNABILITY OF AWARDS.
No award granted under the Plan shall be assigned, transferred, pledged,
or otherwise encumbered by a Participant, otherwise than by will or by the laws
of descent and distribution and, in the case of NSOs only, by instrument to an
inter vivos or testamentary trust in which the option is to be passed to
beneficiaries upon the death of the Participant, or by gift to a member of
Participant's immediate family (as such term is defined in Rule 16a-1(e) of the
Exchange Act) or pursuant to a qualified domestic relations order. Each award
shall be exercisable during the Participant's lifetime only by the Participant.
Any attempt to assign, transfer, pledge or otherwise encumber any such award or
of any right or privilege conferred thereby, contrary to this Section 6, or the
sale or levy or similar process upon the rights and privileges conferred
thereby, shall be null and void.
7. PROTECTION AGAINST DILUTION.
7.1 Reorganizations. In the event of any change affecting the Common Stock
by reason of any sale, merger, consolidation, spin-off, or other reorganization
of the Company or any subsidiary or affiliated company, the Committee may, but
shall not be obligated to, make such substitution or adjustment in the aggregate
number or class of shares which may be distributed under the Plan and in the
number, class, and option price or other price of shares subject to the
outstanding awards granted under the Plan or in any vesting schedule as the
Committee in its sole discretion deems to be appropriate in order to maintain
the purpose of the original grant. Any determination of the Committee as to any
question that may arise with respect to any adjustment or lack of adjustment of
shares or vesting shall be final.
The Committee shall be authorized to make adjustments in the terms
and conditions of other awards in recognition of unusual or non-recurring events
affecting the Company or its financial statements or changes in applicable laws,
regulations, or accounting principles. The Committee may correct any defect,
supply any omission or reconcile any inconsistency in the Plan or any award in
the manner and to the extent it shall deem desirable to carry it into effect.
7.2 Adjustments. If prior to the complete exercise of any Option there
shall be a subdivision of the outstanding Company stock, a declaration of a
dividend payable in Common Stock, a combination or consolidation of the
outstanding Common Stock (by reclassification or otherwise) into a lesser number
of shares of Common Stock, a recapitalization, or a similar occurrence or change
in the capitalization of the Company which occurrence or change is neither a
rights offering nor related to a merger, sale or other reorganization set forth
in Section 7.1, the Option, to the extent that it has not been exercised, shall
entitle the Participant upon the future exercise of the Option to such number
and kind of securities or other property subject to the terms of the Option to
which the Participant would have been entitled had the Participant actually
owned the Common Stock subject to the unexercised portion of the Option at the
time of the occurrence of such stock dividend, combination, consolidation,
conversion, exchange, reclassification or substitution; and the aggregate
purchase price upon the future exercise of the Option shall be the same as if
the originally optioned Common Stock was being purchased thereunder. Any
fractional shares shall be payable in cash.
7.3 Certain Corporate Events.
(a) Corporate Reorganizations. Upon the dissolution or liquidation
of the Company, or upon a reorganization, merger or consolidation of the
Company as a result of which the outstanding securities of the class then
subject to Options hereunder are changed into or exchanged for cash or
property or securities not of the Company's issue, or any combination
thereof, or upon a sale of substantially all the property of the Company
to, or the acquisition of stock representing both (i) more than fifty
percent (50%) of the voting power of the stock of the Company then
outstanding by, another corporation or person and (ii) a change in the
"Effective Control" (as defined below) of the Company (any of which being
a "Corporate Event"), the Plan shall terminate, and all Options
theretofore granted hereunder shall terminate, unless provision is made in
writing in connection with such transaction for the continuance of the
Plan and/or for the assumption of Options covering the stock of a
successor corporation, or a parent or a subsidiary thereof (such successor
corporation or parent or subsidiary, as the case may be, being the
"successor corporation"), with appropriate adjustments as to the number
and kind of shares and prices, in which event the Plan and Options
theretofore granted shall continue in the manner and under the terms so
provided. If the Plan and unexercised Options shall terminate pursuant to
the foregoing sentence, all persons entitled to exercise any unexercised
portions of Options then outstanding shall have the right, at such time
prior to the consummation of the transaction causing such termination as
the Company shall designate, to exercise the unexercised portions of their
Options, including the portions thereof which would, but for this Section
entitled "Corporate Reorganizations," not yet be exercisable. For purposes
of this paragraph, the term "Effective Control" shall mean a change in
share ownership such that the person or persons in Control (as defined in
Rule 405 under the Securities Act of 1933, as amended (the "Securities
Act")) of the Company before the Corporate Event are not in Control of the
Company after the Corporate Event.
(b) Termination of Employment Following Corporate Event. If a
Participant's employment is terminated (other than for reasons set forth
in Section 5.6(d) herein) by the Company or a successor employer
corporation (or a parent or a subsidiary of either of them) within two (2)
years following the effective date of a Corporate Event (as defined in
subparagraph (a) above) in which Options are assumed, such Participant's
Options (or replacement options) will immediately become exercisable,
including the portions thereof which would, but for this Section entitled
"Termination of Employment Following Corporate Event," not yet be
exercisable. Any such Option will remain exercisable until the expiration
of the Option or earlier termination of the Option in accordance with its
(c) Termination of Plan or Options Following Corporate Event. If
either the Plan is continued by a successor corporation (as defined in
subparagraph (a) above) to the Company or Options are assumed by such
successor corporation, or both, as provided in subparagraph (a) above, and
thereafter within two (2) years following the effective date of a
Corporate Event (as described under subparagraph (a) above), the Plan and
unexercised Options (or replacement options) are proposed to be terminated
for any reason (including but not limited to a successor corporation's
Corporate Event), then all persons entitled to exercise any unexercised
Options then outstanding shall have the right, until seven (7) days prior
to the termination of the Plan and unexercised Options (or replacement
options), or such later time as the successor corporation shall designate,
to exercise the unexercised portions of their Options (or replacement
options), including the portions thereof which would, but for this Section
entitled "Termination of Plan or Options Following Corporate Event," not
yet be exercisable.
Notwithstanding the foregoing, a transaction shall not constitute a
Change in Control if its sole purpose is to change the state of the Company's
incorporation or to create a holding company that will be owned in substantially
the same proportions by the persons who held the Company's securities
immediately before such transaction.
At the Committee's discretion, the recipient of any award under the Plan
may pay to the Company, in cash, Common Stock (provided it has been held by the
Participant for at least six months) or other property, or a combination
thereof, the amount of any taxes required to be withheld with respect to such
award or, in the case of an award in the form of Common Stock, the Company shall
have the right to retain from such award a sufficient number of shares of Common
Stock to satisfy the applicable withholding tax obligation.
For purposes of the Plan, a "subsidiary" of the Company means any
corporation (other than the Company) in an unbroken chain of corporations
beginning with the Company if each of the corporations other than the last
corporation in the chain owns stock possessing 50% or more of the total combined
voting power of all classes of stock in one of the other corporations in the
10. FINANCIAL ASSISTANCE.
The Company is vested with authority under this Plan to assist any
employee to whom an option is granted hereunder (including any director or
officer of the Company or any of its subsidiaries) in the payment of the
purchase price payable on exercise of that option, by lending the amount of such
purchase price to such employee on such terms and at such rates of interest and
upon such security (or unsecured) as shall have been authorized by or under
authority of the Board.
11. LIMITATIONS OF RIGHTS OF PARTICIPANTS.
11.1 A person to whom an option is granted under this Plan shall not have
any interest in the optioned shares or in any dividends paid thereon, and shall
not have any of the rights or privileges of a stockholder with respect to such
shares until the certificates therefor have been issued and delivered to him or
11.2 No shares of stock issuable under the Plan shall be issued and no
certificate therefor delivered unless and until, in the opinion of legal counsel
for the Company, such securities may be issued and delivered without causing the
Company to be in violation of or to incur any liability under any federal, state
or other securities law, or any other requirement of law or of any regulatory
body having jurisdiction over the Company.
11.3 The receipt of an option does not give the Participant any right to
continued employment by the Company or a subsidiary for any period, nor shall
the granting of the option or the issuance of shares on exercise thereof give
the Company or any subsidiary any right to the continued services of the
Participant for any period.
11.4 Nothing contained in this Plan shall constitute the granting of an
option hereunder, which shall occur only pursuant to express authorization by
the Committee and under the terms of a Stock Option Agreement.
12. AMENDMENT AND TERMINATION.
The Board may alter, amend, suspend or terminate this Plan, provided that
no such action shall, without the consent of a Participant, alter or impair any
rights or obligations under any stock option granted to such Participant. An
amendment of the Plan shall be subject to the approval of the Company's
shareholders only to the extent required by applicable laws, regulations or
13. STOCK OPTION AGREEMENTS.
Each option awarded to a Participant shall be evidenced by a written Stock
Option Agreement in a form approved by the Committee, which shall be executed by
the Participant and an authorized officer of the Company and which shall contain
such terms and conditions as the Committee shall determine, consistent with this
Plan. Stock option agreements evidencing ISOs shall contain such terms and
conditions as may be necessary to meet the applicable provisions of Section 422
of the Code.
14. GOVERNING LAW.
The place of administration of the Plan and all Stock Option Agreements
shall be in the State of California. The corporate law of the Company's state of
incorporation shall govern issues related to the validity and issuance of
shares. Otherwise, this Plan and each Stock Option Agreement shall be construed
and administered in accordance with the laws of the State of California, without
giving effect to principles relating to conflict of laws.
15. USE OF PROCEEDS.
Any cash proceeds received by the Company from the sale of shares pursuant
to grants made under this Plan shall be used for general corporate purposes.
16. REGULATORY APPROVALS.
The implementation of the Plan, the granting of any option hereunder, and
the issuance of stock upon the exercise or surrender of any such option shall be
subject to the Company's procurement of all approvals and permits required by
regulatory authorities having jurisdiction over the Plan, the options granted
under it, and the stock issued pursuant to it.
17. RESTRICTIONS ON RESALE.
Certain officers and directors of the Company may be deemed to be
"affiliates" of the Company, as that term is defined under the Securities Act.
Common Stock acquired under the Plan by an affiliate may only be re-offered or
resold pursuant to an effective registration statement or pursuant to Rule 144
under the Securities Act or another exemption from the registration requirements
of the Securities Act.
18. EFFECTIVE DATE.
This Plan shall become effective upon adoption by the Company's Board of
Directors, subject to the subsequent approval of the Plan by the stockholders of
the Company within 12 months from the date of said adoption. Stock options may
be granted prior to such stockholder approval, provided that such options shall
not be exercisable prior to the time when this Plan is approved by the
stockholders, and provided further that if such approval has not been obtained
at the end of said 12-month period, all options previously granted under this
Plan shall thereupon be cancelled and become null and void.
19. FINANCIAL STATEMENTS.
Participant shall receive financial statements of the Company at least
(2001 stock option)