COMPUTER PRODUCTS, INC.
1990 PERFORMANCE EQUITY PLAN
AS AMENDED
SECTION 1. PURPOSE; DEFINITIONS.
1.1. Purpose. The purpose of the Computer Products, Inc. (the "Company")
1990 Performance Equity Plan (the "Plan") is to enable the Company to offer to
its key employees and to key employees of its subsidiaries, long term
performance-based stock and/or other equity interests in the Company, thereby
enhancing its ability to attract, retain and reward such key employees, and to
increase the mutuality of interests between those employees and the stockholders
of the Company. The various types of long-term incentive awards which may be
provided under the Plan will enable the Company to respond to changes in
compensation practices, tax laws, accounting regulations and the size and
diversity of its businesses.
1.2. Definitions. For purposes of the Plan, the following terms shall be
defined as set forth herein:
(a) "Agreement" means the agreement between the Company and the Holder
setting forth the terms and conditions of an award under the Plan.
(b) "Board" means the Board of Directors of the Company.
(c) "Change of Control" means a change of control of the Company pursuant
to Section 10 hereof.
(d) "Code" means the Internal Revenue Code of 1986, as amended from time
to time, and any successor statute or statutes thereto.
(e) "Committee" means the Stock Option Committee of the Board or any other
committee of the Board which the Board may designate.
(f) "Common Stock" means the Common Stock of the Company, par value $.01
per share.
(g) "Company" means Computer Products, Inc., a corporation organized under
the laws of the State of Florida, and any successor thereto.
(h) "Deferred Stock" means Stock to be received, under an award made
pursuant to Section 8 hereof, at the end of a specified deferral period.
(i) "Disability" means disability as determined under procedures
established by the Committee for purposes of the Plan.
(j) "Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, or any successor statute or statutes thereto.
(k) "Exchange Act Holder" means such officer or director or 10% beneficial
owner of Common Stock subject to Section 16(b) of the Exchange Act.
(l) "Fair Market Value", unless otherwise required by any applicable
provision of the Code or any regulations issued thereunder, means, as of any
given date: (i) if the Common Stock (as hereinafter defined) is listed on a
national securities exchange or quoted on the NASDAQ National Market System, the
closing price of the Common Stock on the last preceding day on which the Common
Stock was traded, as reported on the composite tape or by NASDAQ/NMS System
Statistics, as the case may be; (ii) if the Common Stock is not listed on a
national securities exchange or quoted on the NASDAQ National Market System, but
is traded in the over-the-counter market, the average of the bid and asked
prices for the Common Stock on the last preceding day for which such quotations
are reported by NASDAQ; and (iii) if the fair market value of the Common Stock
cannot be determined pursuant to clause (i) or (ii) hereof, such price as the
Committee shall determine.
(m) "Formula Price Per Share" means the highest gross price (before
brokerage commissions, soliciting dealers' fees and similar charges) paid for
any share of Common Stock at any time during the ninety-day period immediately
prior to the Change of Control (whether by way of exchange, conversion,
distribution, liquidation or otherwise) paid or to be paid for any share of
Common Stock in connection with a Change of Control. If the consideration paid
or to be paid in any transaction that results in a Change of Control consists,
in whole or in part, of consideration other than cash, the Board shall take such
action, as in its judgment it deems appropriate, to establish the cash value of
such consideration, but such valuation shall not be less than the value, if any,
attributed to such consideration by any other party to such transaction that
results in a Change of Control.
(n) "Holder" means an eligible employee or prospective employee of the
Company or a Subsidiary who has received an award under the Plan.
(o) "Incentive Stock Option" means any Stock Option intended to be and
designated as an "incentive stock option" within the meaning of Section 422 of
the Code.
(p) "Non-Qualified Stock Option" means any Stock Option that is not an
Incentive Stock Option.
(q) "Other Stock-Based Award" means an award under Section 9 hereof that
is valued in whole or in part by reference to, or is otherwise based upon,
Common Stock.
(r) "Plan" means this Computer Products, Inc. 1990 Performance Equity
Plan, as hereinafter amended from time to time.
(s) "Restricted Stock" means Common Stock, received under an award made
pursuant to Section 7 hereof, that is subject to restrictions under said Section
7.
(t) "SAR Value" means the excess of the Fair Market Value of one share of
Common Stock over the exercise price per share specified in a related Stock
Option in the case of a Stock Appreciation Right granted in tandem with a Stock
Option and the Stock Appreciation Right price per share in the case of a Stock
Appreciation Right awarded on a free standing basis multiplied by the number of
shares in respect of which the Stock Appreciation Right shall be exercised, on
the date of exercise.
(u) "Stock Appreciation Right" means the right, pursuant to an award
granted under Section 6 hereof, to recover an amount equal to the SAR Value.
(v) "Stock Option" or "Option" means any Non-Qualified Stock Option or
Incentive Stock Option to purchase shares of Stock which is awarded pursuant to
the Plan.
(w) "Subsidiary" means any present or future subsidiary corporation of the
Company, as such term is defined in Section 425(f) of the Code.
SECTION 2. ADMINISTRATION.
2.1. Committee Membership. The Plan shall be administered by the
Committee, the membership of which shall be at all times constituted so as to
not adversely affect the compliance of the Plan with the requirements of Rule
16b-3 under the Exchange Act or with the requirements of any other applicable
law, rule or regulation.
2.2. Powers of Committee. The Committee shall have full authority to
award, pursuant to the terms of the Plan, to eligible employees and prospective
employees described under Section 4 hereof: (i) Stock Options, (ii) Stock
Appreciation Rights, (iii) Restricted Stock, (iv) Deferred Stock, and/or (v)
Other Stock-Based Awards. For purposes of illustration and not of limitation,
the Committee shall have the authority (subject to the express provisions of
this Plan):
(a) to select the eligible employees and prospective employees to whom
Stock Options, Stock Appreciation Rights, Restricted Stock, Deferred Stock
and/or Other Stock-Based Awards may from time to time be awarded hereunder;
(b) to determine the Incentive Stock Options, Non-Qualified Stock Options,
Stock Appreciation Rights, Restricted Stock, Deferred Stock and/or Other
Stock-Based Awards, or any combination thereof, if any, to be awarded hereunder
to one or more eligible employees;
(c) to determine the number of shares to be covered by each award granted
hereunder;
(d) to determine the terms and conditions, not inconsistent with the terms
of the Plan, of any award hereunder (including, but not limited to, share price,
any restrictions or limitations, and any vesting, exchange, surrender,
cancellation, acceleration, termination, exercise or forfeiture provisions, as
the Committee shall determine);
(e) to determine any specified performance goals or such other factors or
criteria which need to be attained for the vesting of an award granted
hereunder;
(f) to determine the terms and conditions under which awards hereunder are
to operate on a tandem basis and/or in conjunction with or apart from other
equity awarded under this Plan and cash awards made by the Company or any
Subsidiary outside of this Plan;
(g) to determine the extent and circumstances under which Common Stock and
other amounts payable with respect to an award hereunder shall be deferred,
which may be either automatic or at the election of the Holder; and
(h) to substitute (A) new Stock Options for previously granted Stock
Options, which previously granted Stock Options have higher option exercise
prices and/or contain other less favorable terms, and (B) new awards of any
other type for previously granted awards of the same or other type, which
previously granted awards are upon less favorable terms.
2.3. Interpretation of Plan. Subject to Section 11 hereof, the Committee
shall have the authority to adopt, alter and repeal such administrative rules,
guidelines and practices governing the Plan as it shall, from time to time, deem
advisable, to interpret the terms and provisions of the Plan and any award
issued under the Plan (and to determine the form and substance of all Agreements
relating thereto), and to otherwise supervise the administration of the Plan.
Anything in the Plan to the contrary notwithstanding, no term of the Plan
relating to Incentive Stock Options or any Agreement providing for Incentive
Stock Options shall be interpreted, amended or altered, nor shall any discretion
or authority granted under the Plan be so exercised, so as to disqualify the
Plan under Section 422 of the Code, or, without the consent of the Holder(s)
affected, to disqualify any Incentive Stock Option under such Section 422.
Subject to Section 11 hereof, all decisions made by the Committee pursuant to
the provisions of the Plan shall be made in the Committee's sole discretion and
shall be final and binding upon all persons, including the Company, its
Subsidiaries and the Holders.
SECTION 3. COMMON STOCK SUBJECT TO PLAN.
3.1. Number of Shares. The total number of shares of Common Stock
reserved and available for distribution under the Plan shall be 4,450,000
shares. If any shares of Common Stock that are subject to a Stock Option or
Stock Appreciation Right cease to be subject to such Option or Stock
Appreciation Right, or if any shares that are subject to a Restricted Stock or
Deferred Stock award or Other Stock-Based Award granted hereunder are forfeited
or any such award otherwise terminates without a payment being made to the
Holder in the form of Common Stock, such shares shall again be available for
distribution in connection with future grants and awards under the Plan. The
number of shares of Common Stock deemed to be issued under the Plan upon the
exercise of an Option or Other Stock-Based Award in the nature of a stock
purchase right shall be reduced by the number of shares of Common Stock
surrendered by the Holder in payment of the exercise or purchase price of the
award and withholding taxes thereon.
3.2. Character of Shares. Shares of Common Stock under the Plan may
consist, in whole or in part, of authorized and unissued shares or treasury
shares.
3.3. Adjustment Upon Changes in Capitalization, Etc. In the event of any
merger, reorganization, consolidation, recapitalization, dividend (other than a
dividend or its equivalent which is credited to a Holder or a regular cash
dividend), stock split, reverse stock split, or other change in corporate
structure affecting the Common Stock, such substitution or adjustment shall be
made in the aggregate number of shares reserved for issuance under the Plan, in
the number and exercise price of shares subject to outstanding Options, in the
number of shares and Stock Appreciation Right price relating to Stock
Appreciation Rights, and in the number of shares subject to, and related terms
of, other outstanding awards (including but not limited to awards of Restricted
Stock, Deferred Stock and Other Stock-Based Awards) as may be determined to be
appropriate by the Committee in order to prevent dilution or enlargement of each
Holder's rights, provided that the number of shares subject to any award shall
always be a whole number.
SECTION 4. ELIGIBILITY.
4.1. General. Awards under the Plan may be made to (i) officers and other
key employees of the Company or any Subsidiary (including officers and key
employees serving as directors of the Company) who are at the time of the grant
of an award under this Plan regularly employed by the Company or any Subsidiary;
and (ii) prospective employees of the Company or its Subsidiaries. The exercise
of any Stock Option and the vesting of any award hereunder granted to a
prospective employee shall be conditioned upon such person becoming an employee
of the Company or a Subsidiary. The term "prospective employee" shall mean any
person who holds an outstanding offer of regular employment on specific terms
from the Company or a Subsidiary.
4.2. Ineligibility for Awards. No person designated by the Board to serve
on the Committee, effective at such future time so that he qualifies as a
disinterested person, shall be eligible to receive any awards under the Plan
during the period from the date such designation is made to the date such
designation becomes effective. Notwithstanding Section 4.1 hereof, no member of
the Committee, while serving as such, shall be eligible to receive an award
under the Plan.
SECTION 5. STOCK OPTIONS.
5.1. Grant and Exercise. Stock Options granted under the Plan may be of
two types: (i) Incentive Stock Options and (ii) Non-Qualified Stock Options.
Any Stock Option granted under the Plan shall contain such terms, not
inconsistent with this Plan, as the Committee may from time to time approve.
The Committee shall have the authority to grant to any Holder hereof Incentive
Stock Options, Non-Qualified Stock Options, or both types of Stock Options (in
each case with or without Stock Appreciation Rights) and may be granted alone,
in tandem with or in addition to other awards under the Plan. To the extent
that any Stock Option (or portion thereof) does not qualify as an Incentive
Stock Option, it shall constitute a separate Non-Qualified Stock Option. Unless
granted in substitution for another outstanding award, Options shall be granted
for no consideration other than services.
5.2. Terms and Conditions. Stock Options granted under the Plan shall be
subject to the following terms and conditions:
(a) Exercise Price. The exercise price per share of Common Stock
purchasable under a Stock Option shall be determined by the Committee at the
time of grant but shall be not less than 100% of the Fair Market Value of the
Common Stock at the time of grant (110%, in the case of an Incentive Stock
Option granted to a Holder ("10% Stockholder") who, at the time of grant, owns
stock possessing more than 10% of the total combined voting power of all classes
of stock of the Company or its parent (if any) or subsidiary corporations, as
those terms are defined in Sections 425(e) and (f) of the Code).
(b) Option Term. The term of each Stock Option shall be fixed by the
Committee, but no Stock Option shall be exercisable more than ten years (five
years, in the case of an Incentive Stock Option granted to a 10% Stockholder)
after the date on which the Option is granted.
(c) Exercisability. Stock Options shall be exercisable at such time or
times and subject to such terms and conditions as shall be determined by the
Committee. If the Committee provides, in its discretion, that any Stock Option
is exercisable only in installments, the Committee may waive such installment
exercise provisions at any time at or after the time of grant in whole or in
part, based upon such factors as the Committee shall determine.
(d) Method of Exercise. Subject to whatever installment, exercise and
waiting period provisions are applicable in a particular case, Stock Options may
be exercised in whole or in part at any time during the term of the Option, by
giving written notice of exercise to the Company specifying the number of shares
of Common Stock to be purchased. Such notice shall be accompanied by payment in
full of the purchase price, which shall be in cash or, unless otherwise provided
in the Agreement, in whole shares of Common Stock which are already owned by the
Holder of the Stock Option or, unless otherwise provided in the Stock Option
Agreement, partly in cash and partly in such Common Stock. Cash payments shall
be made by wire transfer, certified or bank check or personal check, in each
case payable to the order of the Company; provided, however, that the Company
shall not be required to deliver certificates for shares of Common Stock with
respect to which a Stock Option is exercised until the Company has confirmed the
receipt of good and available funds in payment of the purchase price thereof.
Payments in the form of Common Stock (which shall be valued at the Fair Market
Value of a share of Common Stock on the date of exercise) shall be made by
delivery of stock certificates in negotiable form which are effective to
transfer good and valid title thereto to the Company, free of any liens or
encumbrances. Subject to the terms of the Agreement, the Committee may, in its
sole discretion, at the request of the Holder, deliver upon the exercise of a
Non-Qualified Stock Option a combination of shares of Deferred Stock and Common
Stock; provided that, notwithstanding the provisions of Section 8 of the Plan,
such Deferred Stock shall be fully vested and not subject to forfeiture. Except
as otherwise expressly provided in this Plan or in the Agreement, no Stock
Option may be exercised at any time unless the Holder thereof is then an
employee of the Company or of a Subsidiary. The Holder of a Stock Option shall
have none of the rights of a stockholder with respect to the shares subject to
the Stock Option until such shares shall be transferred to the Holder upon the
exercise of the Stock Option.
(e) Buyout and Settlement Provisions. The Committee may at any time offer
to buy out for cash or otherwise settle a Stock Option previously granted, based
upon such terms and conditions as the Committee shall establish and communicate
to the Holder at the time that such offer is made, including a settlement by
exchange of a different award under the Plan for the surrender of the Option.
SECTION 6. STOCK APPRECIATION RIGHTS.
6.1. Grant and Exercise. Stock Appreciation Rights may be granted in
tandem with ("Tandem Stock Appreciation Right") or in conjunction with all or
part of any Stock Option granted under the Plan or may be granted on a
free-standing basis. In the case of a Non-Qualified Stock Option, a Tandem
Stock Appreciation Right may be granted either at or after the time of the grant
of such Non-Qualified Stock Option. In the case of an Incentive Stock Option, a
Tandem Stock Appreciation Right may be granted only at the time of the grant of
such Incentive Stock Option. Unless granted in substitution for another
outstanding award, Stock Appreciation Rights shall be granted for no
consideration other than services.
A Tandem Stock Appreciation Right shall terminate and shall no longer be
exercisable upon the termination or exercise of the related Stock Option, except
that, unless otherwise determined by the Committee, a Tandem Stock Appreciation
Right granted with respect to less than the full number of shares covered by a
related Stock Option shall not be reduced until after the number of shares
remaining under the related Stock Option equals the number of shares covered by
the Tandem Stock Appreciation Right.
A Tandem Stock Appreciation Right may be exercised by a Holder, in accordance
with Section 6.2 hereof, by surrendering the applicable portion of the related
Stock Option. Upon such exercise and surrender, the Holder shall be entitled to
receive such amount in the form of payment determined in the manner prescribed
in Section 6.2 hereof. Stock Options which have been so surrendered, in whole
or in part, shall no longer be exercisable to the extent Tandem Stock
Appreciation Rights have been exercised.
6.2. Terms and Conditions. Stock Appreciation Rights shall be subject to
the following terms and conditions:
(a) Exercisability. Tandem Stock Appreciation Rights shall be exercisable
only at such time or times and to the extent that the Stock Options to which
they relate shall be exercisable in accordance with the provisions of Section 5
hereof and this Section 6, and may be subject to such additional limitations on
exercisability as shall be determined by the Committee and set forth in the
Agreement. Other Stock Appreciation Rights shall be exercisable at such time or
times and subject to such terms and conditions as shall be determined by the
Committee and set forth in the Agreement. Notwithstanding anything to the
contrary contained herein (including the provisions of Section 10.1 hereof), any
Stock Appreciation Right granted to an Exchange Act Holder to be settled wholly
or partially in cash (i) shall not be exercisable during the first six months of
the term of such Stock Appreciation Right, except that this special limitation
shall not apply in the event of death or Disability of such Holder prior to the
expiration of the six-month period, and (ii) shall only be exercisable during
the period beginning on the third business day following the date of release for
publication of the Company of quarterly or annual summary statements of sales
and earnings and ending on the twelfth business day following such date.
(b) Receipt of SAR Value. Upon the exercise of a Stock Appreciation
Right, a Holder shall be entitled to receive up to, but not more than, an amount
in cash and/or shares of Common Stock equal to the SAR Value with the Committee
having the right to determine the form of payment.
(c) Shares Affected Under Plan. Upon the exercise of a Tandem Stock
Appreciation Right, the Stock Option or part thereof to which such Tandem Stock
Appreciation Right is related shall be deemed to have been exercised for the
purpose of the limitation set forth in Section 3 hereof on the number of shares
of Common Stock to be issued under the Plan, but only to the extent of the
number of shares, if any, issued under the Tandem Stock Appreciation Right at
the time of exercise based upon the SAR Value.
(d) Limited Stock Appreciation Rights. The Committee may grant "Limited
Stock Appreciation Rights" i.e., Stock Appreciation Rights that become
exercisable upon the occurrence of one or more of the events which trigger a
Change of Control as defined in Section 10 hereof, and shall be settled in an
amount equal to the Formula Price Per Share, subject to such other terms and
conditions as the Committee may specify; provided, however, if any Limited Stock
Appreciation Right is granted to an Exchange Act Holder such Limited Stock
Appreciation Right (i) shall only be exercisable within sixty (60) days after
the event triggering the Change of Control; and (ii) may not be exercised during
the first six months after the date of grant of such Limited Stock Appreciation
Right (except in the event of death or Disability of such Holder prior to the
expiration of the six-month period; and (iii) shall only be exercisable in the
event that the date of the Change of Control was outside the control of such
Holder; and (iv) shall only be settled in cash in an amount equal to the Formula
Price Per Share.
SECTION 7. RESTRICTED STOCK.
7.1. Grant. Shares of Restricted Stock may be awarded either alone or in
addition to other awards granted under the Plan. The Committee shall determine
the eligible persons to whom, and the time or times at which, grants of
Restricted Stock will be awarded, the number of shares to be awarded, the time
or times within which such awards may be subject to forfeiture (the "Restriction
Period"), the vesting schedule and rights to acceleration thereof, and all other
terms and conditions of the awards. Unless granted in substitution for another
outstanding award, Restricted Stock shall be granted for no consideration other
than services.
7.2. Terms and Conditions. Each Restricted Stock award shall be subject
to the following terms and conditions:
(a) Certificates. Restricted Stock, when issued, will be represented by a
stock certificate or certificates registered in the name of the Holder to whom
such Restricted Stock shall have been awarded. During the Restriction Period,
certificates representing the Restricted Stock and any securities constituting
Retained Distributions (as hereinafter defined) shall bear a restrictive legend
to the effect that ownership of the Restricted Stock (and such Retained
Distributions), and the enjoyment of all rights appurtenant thereto, are subject
to the restrictions, terms and conditions provided in the Plan and the
Agreement. Such certificates shall be deposited by the Holder with the Company,
together with stock powers or other instruments of assignment, each endorsed in
blank, which will permit transfer to the Company of all or any portion of the
Restricted Stock and any securities constituting Retained Distributions that
shall be forfeited or that shall not become vested in accordance with the Plan
and the Agreement.
(b) Rights of Holder. Restricted Stock shall constitute issued and
outstanding shares of Common Stock for all corporate purposes. The Holder will
have the right to vote such Restricted Stock, to receive and retain all regular
cash dividends and other cash equivalent distributions as the Board may in its
sole discretion designate, pay or distribute on such Restricted Stock and to
exercise all other rights, powers and privileges of a Holder of Common Stock
with respect to such Restricted Stock, with the exceptions that (A) the Holder
will not be entitled to delivery of the stock certificate or certificates
representing such Restricted Stock until the Restriction Period shall have
expired and unless all other vesting requirements with respect thereto shall
have been fulfilled; (B) the Company will retain custody of the stock
certificate or certificates representing the Restricted Stock during the
Restriction Period; (C) other than regular cash dividends and other cash
equivalent distributions as the Board may in its sole discretion designate, pay
or distribute, the Company will retain custody of all distributions ("Retained
Distributions") made or declared with respect to the Restricted Stock (and such
Retained Distributions will be subject to the same restrictions, terms and
conditions as are applicable to the Restricted Stock) until such time, if ever,
as the Restricted Stock with respect to which such Retained Distributions shall
have been made, paid or declared shall have become vested and with respect to
which the Restriction Period shall have expired; and (D) a breach by the Holder
of any of the restrictions, terms or conditions contained in this Plan or the
Agreement or otherwise established by the Committee with respect to any
Restricted Stock or Retained Distributions will cause a forfeiture of such
Restricted Stock and any Retained Distributions with respect thereto.
(c) Vesting; Forfeiture. Upon the expiration of the Restriction Period
with respect to each award of Restricted Stock and the satisfaction of any other
applicable restrictions, terms and conditions (A) such Restricted Stock shall
become vested in accordance with the terms of the Agreement, and (B) any
Retained Distributions with respect to such Restricted Stock shall become vested
to the extent that the Restricted Stock related thereto shall have become
vested. Any such Restricted Stock and Retained Distributions that do not vest
shall be forfeited to the Company and the Holder shall not thereafter have any
rights with respect to such Restricted Stock and Retained Distributions that
shall have been so forfeited.
SECTION 8. DEFERRED STOCK.
8.1. Grant. Shares of Deferred Stock may be awarded either alone or in
addition to other awards granted under the Plan. The Committee shall determine
the eligible persons to whom, and the time or times at which, grants of Deferred
Stock shall be awarded, the number of shares of Deferred Stock to be awarded,
the duration of the period (the "Deferral Period") during which, and the
conditions under which, receipt of the shares will be deferred, and all the
other terms and conditions of the awards. Unless granted in substitution for an
outstanding award or upon exercise of an Option, Deferred Stock shall be issued
for no consideration other than services.
8.2. Terms and Conditions. Each Deferred Stock award shall be subject to
the following terms and conditions:
(a) Certificates. At the expiration of the Deferral Period (or the
additional Deferral Period referred to in Section 8.2(d) hereof ("Additional
Deferral Period", where applicable), share certificates shall be delivered to
the Holder, or his legal representative, representing the number of the shares
equal to the number covered by the Deferred Stock award.
(b) Dividends. As determined by the Committee, amounts equal to any
dividends declared during the Deferral Period (or the Additional Deferral
Period, where applicable) with respect to the number of shares covered by a
Deferred Stock award may be paid to the Holder currently or deferred and deemed
to be reinvested in additional Deferred Stock.
(c) Vesting; Forfeiture. Upon the expiration of the Deferral Period (or
the Additional Deferral Period, where applicable) with respect to each award of
Deferred Stock and the satisfaction of any other applicable limitations, terms
or conditions, such Deferred Stock shall become vested in accordance with the
terms of the Agreement. Any Deferred Stock that does not vest shall be
forfeited to the Company and the Holder shall not thereafter have any rights
with respect to such Deferred Stock that has been so forfeited.
(d) Additional Deferral Period. A Holder may request to, and the
Committee may in its sole discretion at any time, defer the receipt of an award
(or an installment of an award) for an additional specified period or until a
specified event (the "Additional Deferral Period"). Subject to any exceptions
adopted by the Committee, such request must generally be made at least one year
prior to expiration of the Deferral Period for such Deferred Stock award (or
such installment).
SECTION 9. OTHER STOCK-BASED AWARDS.
9.1. Grant and Exercise. Other Stock-Based Awards may be awarded, subject
to limitations under applicable law, that are denominated or payable in, valued
in whole or in part by reference to, or otherwise based on, or related to,
shares of Common Stock, as deemed by the Committee to be consistent with the
purposes of the Plan, including, without limitation, purchase rights, shares of
Common Stock awarded which are not subject to any restrictions or conditions,
convertible or exchangeable debentures, or other rights convertible into shares
of Common Stock and awards valued by reference to the value of securities of or
the performance of specified Subsidiaries. Other Stock-Based Awards may be
awarded either alone or in addition to or in tandem with any other awards under
this Plan or any other plan of the Company.
The Committee shall determine the eligible persons to whom and the time or times
at which grants of such awards shall be made, the number of shares of Common
Stock to be awarded pursuant to such awards, and all other terms and conditions
of the awards. Notwithstanding the foregoing, except to the extent that an
Other Stock-Based Award is granted in substitution for another outstanding award
or is delivered upon exercise of an Option, the amount of consideration to be
required to be received by the Company shall be either no consideration (other
than services) or, in the case of an Other Stock-Based Award in the nature of a
purchase right, an amount equal to or greater than 50% of the Fair Market Value
of the shares to which the award relates on the date of grant of such award.
9.2. Terms and Conditions. Each Other Stock-Based Award shall be subject
to the following terms and conditions:
(a) Dividends. The Holder of an Other Stock-Based Award shall be entitled
to receive, currently or on a deferred basis, dividends or dividend equivalents
with respect to the number of shares covered by the award, as determined by the
Committee. The Committee may provide that such amounts (if any) shall be deemed
to have been reinvested in additional Common Stock.
(b) Vesting; Forfeiture. Any Other Stock-Based Award and any Common Stock
covered by an Other Stock-Based Award shall vest or be forfeited to the extent
so provided in the Agreement.
SECTION 10. ACCELERATION.
10.1. Acceleration Upon Change of Control. Unless the award Agreement
provides otherwise or unless the Holder waives the application of this Section
10.1 prior to a Change of Control (as hereinafter defined), in the event of a
Change of Control:
(a) Each outstanding Stock Option, Stock Appreciation Right and Limited
Stock Appreciation Right granted under the Plan shall immediately become
exercisable in full notwithstanding the vesting or exercise provisions contained
in the Agreement; and
(b) All restrictions and deferral limitations related to awards of
Restricted Stock, Deferred Stock and Other Stock-Based Awards, shall be deemed
to have expired and all such awards and any related Retained Distributions shall
become vested.
10.2. Change of Control Defined. A "Change of Control" shall be deemed to
have occurred upon any of the following events:
(a) The consummation of any of the following transactions: (i) any merger,
reverse stock split, recapitalization or other business combination of the
Company, with or into another corporation, or an acquisition of securities or
assets by the Company, pursuant to which the Company is not the continuing or
surviving corporation or pursuant to which shares of Common Stock would be
converted into cash, securities or other property, other than a transaction in
which the majority of the holders of Common Stock immediately prior to such
transaction will own at least 50% of the total voting power of the
then-outstanding securities of the surviving corporation immediately after such
transaction, or (ii) any sale, lease, exchange, or other transfer (in one
transaction or a series of related transactions) of all, or substantially all,
of the assets of the Company, or (iii) the liquidation or dissolution of the
Company; or
(b) A transaction in which any person (as such term is defined in Sections
13(d)(3) and 14(d)(2) of the Exchange Act), corporation or other entity (other
than the Company, or any profit-sharing, employee ownership or other employee
benefit plan sponsored by the Company or any Subsidiary, or any trustee of or
fiduciary with respect to any such plan when acting in such capacity, or any
group comprised solely of such entities): (i) shall purchase any Common Stock
(or securities convertible into Common Stock) for cash, securities or any other
consideration pursuant to a tender offer or exchange offer, without the prior
consent of the Board, or (ii) shall become the "beneficial owner" (as such term
is defined in Rule 13d-3 under the Exchange Act), directly or indirectly (in one
transaction or a series of transactions), of securities of the Company
representing 50% or more of the total voting power of the then-outstanding
securities of the Company ordinarily (and apart from the rights accruing under
special circumstances) having the right to vote in the election of directors
(calculated as provided in Rule 13d-3(d) in the case of rights to acquire the
Company's securities); or
(c) If, during any period of two consecutive years, individuals who at the
beginning of such period constituted the entire Board and any new director whose
election by the Board, or nomination for election by the Company's stockholders
was approved by a vote of at least two thirds of the directors then still in
office who either were directors at the beginning of the period or whose
election or nomination for election by the stockholders was previously so
approved, cease for any reason to constitute a majority thereof.
10.3. General Waiver by Committee. The Committee may, after grant of an
award, accelerate the vesting of all or any part of any Stock Option, Deferred
Stock, Restricted Stock or any Other Stock-Based Award and/or waive any
limitations or restrictions, if any, for all or any part of an award.
10.4. Acceleration Upon Termination of Employment. In the case of a
Holder whose employment with the Company or a Subsidiary is involuntarily
terminated for any reason (other than for cause), the Committee may accelerate
the vesting of all or any part of any award and/or waive in whole or in part any
or all of the remaining deferral limitations or restrictions imposed hereunder
or pursuant to the Agreement.
SECTION 11. AMENDMENTS AND TERMINATION.
11.1. Amendments to Plan. The Board may at any time, and from time to
time, amend any of the provisions of the Plan, and may at any time suspend or
terminate the Plan; provided, however, that no such amendment shall be effective
unless and until it has been duly approved by the stockholders of the
outstanding shares of Common Stock if (a) it increases the aggregate number of
shares of Common Stock which are available pursuant to the Plan, (except as
provided in Section 3 hereof) or (b) the failure to obtain such approval would
adversely affect the compliance of the Plan with the requirements of Rule 16b-3
under the Exchange Act, or with the requirements of any other applicable law,
rule or regulation.
11.2. Amendments to Individual Awards. The Committee may amend the terms
of any award granted under the Plan; provided, however, that subject to Section
3 hereof, no such amendment may be made by the Committee which in any material
respect impairs the rights of the Holder without the Holder's consent.
SECTION 12. TERM OF PLAN.
12.1. Effective Date. The Plan shall be effective as of August 29, 1990
("Effective Date"), subject to the approval of the Plan by the stockholders of
the Company within one year after the Effective Date. Any awards granted under
the Plan prior to such approval shall be effective when made (unless otherwise
specified by the Committee at the time of grant), but shall be conditioned upon,
and subject to, such approval of the Plan by the Company's stockholders (and no
awards shall vest or otherwise become free of restrictions prior to such
approval).
12.2. Termination Date. No award shall be granted pursuant to the Plan on
or after the tenth anniversary of the Effective Date, but awards granted prior
to such tenth anniversary may extend beyond that date. The Plan shall terminate
at such time as no further awards may be granted and all awards granted under
the Plan are no longer outstanding.
SECTION 13. GENERAL PROVISIONS.
13.1. Investment Representations. The Committee may require each person
acquiring shares of Common Stock pursuant to an award under the Plan to
represent to and agree with the Company in writing that the Holder is acquiring
the shares for investment without a view to distribution thereof.
13.2. Additional Incentive Arrangements. Nothing contained in the Plan
shall prevent the Board from adopting such other or additional incentive
arrangements as it may deem desirable, including, but not limited to, the
granting of stock options and the awarding of stock and cash otherwise than
under the Plan; and such arrangements may be either generally applicable or
applicable only in specific cases.
13.3. No Right of Employment. Nothing contained in the Plan or in any
award hereunder shall be deemed to confer upon any employee of the Company or
any Subsidiary any right to continued employment with the Company or any
Subsidiary, nor shall it interfere in any way with the right of the Company or
any Subsidiary to terminate the employment of any of its employees at any time.
13.4. Withholding Taxes. Not later than the date as of which an amount
first becomes includible in the gross income of the Holder for Federal income
tax purposes with respect to any award under the Plan, the Holder shall pay to
the Company, or make arrangements satisfactory to the Committee regarding the
payment of, any Federal, state and local taxes of any kind required by law to be
withheld or paid with respect to such amount. If permitted by the Committee,
tax withholding or payment obligations may be settled with Common Stock,
including Common Stock that is part of the award that gives rise to the
withholding requirement. The obligations of the Company under the Plan shall be
conditional upon such payment or arrangements and the Company or the Holder's
employer (if not the Company) shall, to the extent permitted by law, have the
right to deduct any such taxes from any payment of any kind otherwise due to the
Holder from the Company or any Subsidiary.
13.5. Governing Law. The Plan and all awards made and actions taken
thereunder shall be governed by and construed in accordance with the laws of the
State of Florida (without regard to choice of law provisions).
13.6. Other Benefit Plans. Any award granted under the Plan shall not be
deemed compensation for purposes of computing benefits under any retirement
plan of the Company or any Subsidiary and shall not affect any benefits under
any other benefit plan now or subsequently in effect under which the
availability or amount of benefits is related to the level of compensation
(unless required by specific reference in any such other plan to awards under
this Plan).
13.7. Employee Status. A leave of absence, unless otherwise determined by
the Committee prior to the commencement thereof, shall not be considered a
termination of employment. Any awards granted under the Plan shall not be
affected by any change of employment, so long as the Holder continues to be an
employee of the Company or any Subsidiary.
13.8. Non-Transferability. Other than the transfer of a Stock Option,
Stock Appreciation Right or other award by will or by the laws of descent and
distribution, no award under the Plan may be alienated, sold, assigned,
hypothecated, pledged, exchanged, transferred, encumbered or charged, and any
attempt to alienate, sell, assign, hypothecate, pledge, exchange, transfer,
encumber or charge the same shall be void. No right or benefit hereunder shall
in any manner be liable for or subject to the debts, contracts, liabilities or
torts of the person entitled to such benefit. Any Stock Option, Stock
Appreciation Right or other award granted under this Plan is only exercisable
during the lifetime of the Holder by the Holder or by his guardian or legal
representative.
13.9. Applicable Laws. The obligations of the Company with respect to all
awards under the Plan shall be subject to (i) all applicable laws, rules and
regulations and such approvals by any governmental agencies as may be required,
including, without limitation, the effectiveness of a registration statement
under the Securities Act of 1933, as amended, and (ii) the rules and regulations
of any securities exchange on which the Common Stock may be listed or the NASDAQ
National Market System if the Common Stock is designated for quotation thereon.
13.10. Conflicts. If any of the terms or provisions of the Plan conflict
with the requirements of Rule 16b-3 under the Exchange Act, or with the
requirements of any other applicable law, rule or regulation, and/or with
respect to Incentive Stock Options, Section 422 of the Code, then such terms or
provisions shall be deemed inoperative to the extent they so conflict with the
requirements of said Rule 16b-3, and/or with respect to Incentive Stock Options,
Section 422 of the Code. With respect to Incentive Stock Options, if this Plan
does not contain any provision required to be included herein under Section 422
of the Code, such provision shall be deemed to be incorporated herein with the
same force and effect as if such provision had been set out at length herein.
13.11. Written Agreements. Each award granted under the Plan shall be
confirmed by, and shall be subject to the terms of the Agreement executed by the
Company and the Holder. The Committee may terminate any award made under the
Plan if the Agreement relating thereto is not executed and returned to the
Company within 60 days after the Agreement has been delivered to the Holder for
his or her execution.
13.12. Consideration For Common Stock. The Committee may not grant any
awards under the Plan pursuant to which the Company will be required to issue
any shares of Common Stock unless the Company will receive consideration for the
shares of Common Stock sufficient under the laws of the State of Florida so that
such shares of Common Stock will be fully paid and non-assessable when issued.
13.13. Common Stock Certificates. Notwithstanding anything to the
contrary contained herein, whenever certificates representing shares of Common
Stock subject to an award are required to be delivered pursuant to the terms of
the Plan, the Company may in lieu of such delivery requirement comply with the
provisions of Section 607.0626 of the Florida Business Corporation Act.
All certificates for shares of Common Stock delivered under the Plan shall be
subject to such stop-transfer orders and other restrictions as the Committee may
deem advisable under the rules, regulations, and other requirements of the
Securities and Exchange Commission, any stock exchange upon which the Common
Stock is then listed, any applicable Federal or state securities law, and any
applicable corporate law, and the Committee may cause a legend or legends to be
put on any such certificates to make appropriate reference to such restrictions.
13.14. Unfunded Status of Plan. The Plan is intended to constitute an
"unfunded" plan for incentive and deferred compensation. With respect to any
payments not yet made to a Holder by the Company, nothing contained herein shall
give any such Holder any rights that are greater than those of a general
creditor of the Company.