EXHIBIT 10(l)
FPL GROUP, INC.
LONG TERM INCENTIVE PLAN
1994
SECTION 1. Purpose. The purpose of this Long Term Incentive
Plan (the "Plan") of FPL Group, Inc. (together with any successor
thereto, the "Corporation") is (a) to promote the identity of interests
between shareholders and employees of the Corporation by encouraging and
creating significant ownership of common stock of the Corporation by
officers and other salaried employees of the Corporation and its
subsidiaries; (b) to enable the Corporation to attract and retain
qualified officers and employees who contribute to the Corporation's
success by their ability, ingenuity and industry; and (c) to provide
meaningful long-term incentive opportunities for officers and other
employees who are responsible for the success of the Corporation and who
are in a position to make significant contributions toward its
objectives.
SECTION 2. Definitions. In addition to the terms defined
elsewhere in the Plan, the following shall be defined terms under the
Plan:
2.01. "Award" means any Performance Award, Option, Stock
Appreciation Right, Restricted Stock, Deferred Stock, Dividend
Equivalent, or Other Stock-Based Award, or any other right or interest
relating to Shares or cash, granted to a Participant under the Plan.
2.02. "Award Agreement" means any written agreement, contract,
or other instrument or document evidencing an Award.
2.03. "Board" means the Board of Directors of the Corporation.
2.04. "Change of Control" and related terms are defined in
Section 9.
2.05. "Code" means the Internal Revenue Code of 1986, as amended
from time to time. References to any provision of the Code shall be
deemed to include successor provisions thereto and regulations
thereunder.
2.06. "Committee" means the Compensation Committee of the Board,
or such other Board committee as may be designated by the Board to
administer the Plan, or any subcommittee of either; provided, however,
that the Committee, and any subcommittee thereof, shall consist of three
or more directors, each of whom is a "disinterested person" within the
meaning of Rule 16b-3 under the Exchange Act.
2.07. "Corporation" is defined in Section 1.
2.08. "Covered Employee" has the same meaning as set forth in
section 162(m) of the Code, and successor provisions.
2.09. "Deferred Stock" means a right, granted to a Participant
under Section 6.05, to receive Shares at the end of a specified deferral
period.
2.10. "Dividend Equivalent" means a right, granted to a
Participant under Section 6.03, to receive cash, Shares, other Awards,
or other property equal in value to dividends paid with respect to a
specified number of Shares.
2.11. "Exchange Act" means the Securities Exchange Act of 1934,
as amended from time to time. References to any provision of the
Exchange Act shall be deemed to include successor provisions thereto and
regulations thereunder.
2.12. "Fair Market Value" means, with respect to Shares, Awards,
or other property, the fair market value of such Shares, Awards, or other
property determined by such methods or procedures as shall be established
from time to time by the Committee. Unless otherwise determined by the
Committee, the Fair Market Value of Shares as of any date shall be the
closing sales price on that date of a Share as reported in the New York
Stock Exchange Composite Transaction Report; provided, that if there were
no sales on the valuation date but there were sales on dates within a
reasonable period both before and after the valuation date, the Fair
Market Value is the weighted average of the closing prices on the nearest
date before and the nearest date after the valuation date. The average
is to be weighed inversely by the respective numbers of trading days
between the selling dates and the valuation date.
2.13. "Incentive Stock Option" means an Option that is intended
to meet the requirements of Section 422 of the Code.
2.14. "Non-Qualified Stock Option" means an Option that is not
intended to be an Incentive Stock Option.
2.15. "Option" means a right, granted to a Participant under
Section 6.06, to purchase Shares, other Awards, or other property at a
specified price during specified time periods. An Option may be either
an Incentive Stock Option or a Non-Qualified Stock Option.
2.16. "Other Stock-Based Award" means a right, granted to a
Participant under Section 6.08, that relates to or is valued by reference
to Shares.
2.17. "Participant" means a person who, as an officer or
salaried employee of the Corporation or any Subsidiary, has been granted
an Award under the Plan.
2.18. "Performance Award" means a right, granted to a
Participant under Section 6.02, to receive cash, Shares, other Awards,
or other property the payment of which is contingent upon achievement
of performance goals specified by the Committee.
2.19. "Performance-Based Restricted Stock" means Restricted
Stock that is subject to a risk of forfeiture if specified performance
criteria are not met within the restriction period.
2.20. "Plan" is defined in Section 1.
2.21. "Restricted Stock" means Shares, granted to a Participant
under Section 6.04, that are subject to certain restrictions and to a
risk of forfeiture.
2.22. "Rule 16b-3" means Rule 16b-3, as from time to time
amended and applicable to Participants, promulgated by the Securities and
Exchange Commission under Section 16 of the Exchange Act.
2.23. "Shares" means the Common Stock, $.01 par value, of the
Corporation and such other securities of the Corporation as may be
substituted for Shares or such other securities pursuant to Section 10.
2.24. "Stock Appreciation Right" means a right, granted to a
Participant under Section 6.07, to be paid an amount measured by the
appreciation in the Fair Market Value of Shares from the date of grant
to the date of exercise of the right, with payment to be made in cash,
Shares, other Awards, or other property as specified in the Award or
determined by the Committee.
2.25. "Subsidiary" means any corporation (other than the
Corporation) with respect to which the Corporation owns, directly or
indirectly, 50% or more of the total combined voting power of all classes
of stock. In addition, any other related entity may be designated by the
Board as a Subsidiary, provided such entity could be considered as a
subsidiary according to generally accepted accounting principles.
2.26. "Year" means a calendar year.
SECTION 3. Administration.
3.01. Authority of the Committee. The Plan shall be
administered by the Committee. The Committee shall have full and final
authority to take the following actions, in each case subject to and
consistent with the provisions of the Plan:
(i) to select and designate Participants;
(ii) to designate Subsidiaries;
(iii) to determine the type or types of Awards to be granted to
each Participant;
(iv) to determine the number of Awards to be granted, the
number of Shares to which an Award will relate, the terms and
conditions of any Award granted under the Plan (including, but
not limited to, any exercise price, grant price, or purchase
price, any restriction or condition, any schedule for lapse of
restrictions or conditions relating to transferability or
forfeiture, exercisability, or settlement of an Award, and
waivers or accelerations thereof, and waiver of performance
conditions relating to an Award, based in each case on such
considerations as the Committee shall determine), and all other
matters to be determined in connection with an Award;
(v) to determine whether, to what extent, and under what
circumstances an Award may be settled, or the exercise price of
an Award may be paid, in cash, Shares, other Awards, or other
property, or an Award may be cancelled, forfeited, or
surrendered;
(vi) to determine whether, to what extent, and under what
circumstances cash, Shares, other Awards, or other property
payable with respect to an Award will be deferred either
automatically, at the election of the Committee, or at the
election of the Participant;
(vii) to prescribe the form of each Award Agreement, which need
not be identical for each Participant;
(viii) to adopt, amend, suspend, waive, and rescind such rules
and regulations and appoint such agents as the Committee may
deem necessary or advisable to administer the Plan;
(ix) to correct any defect or supply any omission or reconcile
any inconsistency in the Plan and to construe and interpret the
Plan and any Award, rules and regulations, Award Agreement, or
other instrument hereunder; and
(x) to make all other decisions and determinations as may be
required under the terms of the Plan or as the Committee may
deem necessary or advisable for the administration of the Plan.
3.02. Manner of Exercise of Committee Authority. Unless
authority is specifically reserved to the Board under the terms of the
Plan, or applicable law, the Committee shall have sole discretion in
exercising such authority under the Plan. Any action of the Committee
with respect to the Plan shall be final, conclusive, and binding on all
persons, including the Corporation, Subsidiaries, Participants, any
person claiming any rights under the Plan from or through any
Participant, and shareholders. The express grant of any specific power
to the Committee, and the taking of any action by the Committee, shall
not be construed as limiting any power or authority of the Committee.
A memorandum signed by all members of the Committee shall constitute the
act of the Committee without the necessity, in such event, to hold a
meeting. The Committee may delegate to officers or managers of the
Corporation or any Subsidiary the authority, subject to such terms as the
Committee shall determine, to perform administrative functions under the
Plan.
3.03. Limitation of Liability. Each member of the Committee
shall be entitled to, in good faith, rely or act upon any report or other
information furnished to him by any officer or other employee of the
Corporation or any Subsidiary, the Corporation's independent certified
public accountants, or any executive compensation consultant or other
professional retained by the Corporation to assist in the administration
of the Plan. No member of the Committee, nor any officer or employee of
the Corporation acting on behalf of the Committee, shall be personally
liable for any action, determination, or interpretation taken or made in
good faith with respect to the Plan, and all members of the Committee and
any officer or employee of the Corporation acting on their behalf shall,
to the extent permitted by law, be fully indemnified and protected by the
Corporation with respect to any such action, determination, or
interpretation.
SECTION 4. Shares Subject to the Plan. Subject to adjustment as
provided in Section 10, the total number of Shares reserved and available
for Awards under the Plan shall be 9,000,000. For purposes of this
Section 4, the number of and time at which Shares shall
be deemed to be subject to Awards and therefore counted against the
number of Shares reserved and available under the Plan shall be earliest
date at which the Committee can reasonably estimate the number of Shares
to be distributed in settlement of an Award or with respect to which
payments will be made; provided, however, that, subject to the
requirements of Rule 16b-3, the Committee may adopt procedures for the
counting of Shares relating to any Award for which the number of Shares
to be distributed or with respect to which payment will be made cannot
be fixed at the date of grant to ensure appropriate counting, avoid
double counting (in the case of tandem or substitute awards), and provide
for adjustments in any case in which the number of Shares actually
distributed or with respect to which payments are actually made differs
from the number of Shares previously counted in connection with such
Award.
If any Shares to which an Award relates are forfeited or the
award is settled or terminates without a distribution of Shares (whether
or not cash, other Awards, or other property is distributed with respect
to such Award), any Shares counted against the number of Shares reserved
and available under the Plan with respect to such Award shall, to the
extent of any such forfeiture, settlement or termination, again be
available for Awards under the Plan; provided, however, that such Shares
shall be available for issuance only to the extent permitted under Rule
16b-3.
SECTION 5. Eligibility. Awards may be granted only to
individuals who are officers or other salaried employees (including
employees who also are directors) of the Corporation or a Subsidiary;
provided, however, that no Award shall be granted to any member of the
Committee.
SECTION 6. Specific Terms of Awards.
6.01. General. Awards may be granted on the terms and
conditions set forth in this Section 6. In addition, the Committee may
impose on any Award or the exercise thereof, at the date of grant or
thereafter (subject to Section 11.02), such additional terms and
conditions, not inconsistent with the provisions of the Plan, as the
Committee shall determine, including without limitation the acceleration
of vesting of any Awards or terms requiring forfeiture of Awards in the
event of termination of employment by the Participant. Except as
provided in Sections 7.03 or 7.04, only services may be required as
consideration for the grant of any Award.
6.02. Performance Awards. Subject to the provisions of Sections
7.01 and 7.02, the Committee is authorized to grant Performance Awards
to Participants on the following terms and conditions:
(i) Award and Conditions. A Performance Award shall confer
upon the Participant rights, valued as determined by the
Committee, and payable to, or exercisable by, the Participant to
whom the Performance Award is granted, in whole or in part, as
determined by the Committee, conditioned upon the achievement of
performance criteria determined by the Committee.
(ii) Other Terms. A Performance Award shall be denominated in
Shares and may be payable in cash, Shares, other Awards, or
other property, and have such other terms
as shall be determined by the Committee.
6.03. Dividend Equivalents. The Committee is authorized to
grant Dividend Equivalents to Participants. The Committee may provide
that Dividend Equivalents shall be paid or distributed when accrued or
shall be deemed to have been reinvested in additional Shares or Awards,
or otherwise reinvested.
6.04. Restricted Stock. The Committee is authorized to grant
Restricted Stock to Participants on the following terms and conditions:
(i) Issuance and Restrictions. Restricted Stock shall be
subject to such restrictions on transferability and other
restrictions as the Committee may impose (including, without
limitation, limitations on the right to vote Restricted Stock or
the right to receive dividends thereon), which restrictions may
lapse separately or in combination at such times, under such
circumstances, in such installments, or otherwise as the
Committee shall determine.
(ii) Forfeiture. Performance-Based Restricted Stock shall be
forfeited unless preestablished performance criteria specified
by the Committee are met during the applicable restriction
period. Except as otherwise determined by the Committee, upon
termination of employment (as determined under criteria
established by the Committee) during the applicable restriction
period, Restricted Stock that is at that time subject to
restrictions shall be forfeited and reacquired by the
Corporation; provided, however, that the Committee may provide,
by rule or regulation or in any Award Agreement, or may
determine in any individual case, that restrictions or
forfeiture conditions relating to Restricted Stock will be
waived in whole or in part in the event of terminations
resulting from specified causes.
(iii) Certificates of Shares. Restricted Stock granted under
the Plan may be evidenced in such manner as the Committee shall
determine. If certificates representing Restricted Stock are
registered in the name of the Participant, such certificates
shall bear an appropriate legend referring to the terms,
conditions, and restrictions applicable to such Restricted
Stock, the Corporation shall retain physical possession of the
certificates, and the Participant shall deliver a stock power to
the Corporation, endorsed in blank, relating to the Restricted
Stock.
(iv) Dividends. Unless otherwise determined by the Committee,
cash dividends paid on Performance-Based Restricted Stock shall
be automatically reinvested in additional shares of Performance-
Based Restricted Stock and cash dividends paid on other
Restricted Stock shall be paid to the Participant. Dividends
reinvested in Performance-Based Restricted Stock and Shares
distributed in connection with a stock split or stock dividend,
and other property distributed as a dividend, shall be subject
to restrictions and a risk of forfeiture to the same extent as
the Restricted Stock with respect to which such stock or other
property has been distributed.
6.05. Deferred Stock. The Committee is authorized to grant
Deferred Stock to Participants, on the following terms and conditions:
(i) Award and Restrictions. Delivery of Shares will occur upon
expiration of the
deferral period specified for Deferred Stock by the Committee (or, if
permitted by the Committee, as elected by the Participant). In addition,
Deferred Stock shall be subject to such restrictions as the Committee may
impose, which restrictions may lapse at the expiration of the deferral
period or at earlier specified times, separately or in combination, in
installments, or otherwise, as the Committee shall determine.
(ii) Forfeiture. Except as otherwise determined by the
Committee, upon termination of employment (as determined under
criteria established by the Committee) during the applicable
deferral period or portion thereof (as provided in the Award
Agreement evidencing the Deferred Stock), all Deferred Stock
that is at that time subject to deferral (other than a deferral
at the election of the Participant) shall be forfeited;
provided, however, that the Committee may provide, by rule or
regulation or in any Award Agreement, or may determine in any
individual case, that restrictions or forfeiture conditions
relating to Deferred Stock will be waived in whole or in part
in the event of terminations resulting from specified causes,
and the Committee may in other cases waive in whole or in part
the forfeiture of Deferred Stock.
6.06. Options. The Committee is authorized to grant Options to
Participants on the following terms and conditions:
(i) Exercise Price. The exercise price per Share purchasable
under an Option shall be determined by the Committee; provided,
however, that, except as provided in Section 7.03, such exercise
price shall be not less than the Fair Market Value of a Share on
the date of grant of such Option.
(ii) Time and Method of Exercise. The Committee shall
determine the time or times at which an Option may be exercised
in whole or in part, the methods by which such exercise price
may be paid or deemed to be paid, the form of such payment,
including, without limitation, cash, Shares, other Awards or
awards issued under other Corporation plans, or other property
(including notes or other contractual obligations of
Participants to make payment on a deferred basis, such as
through "cashless exercise" arrangements), and the methods by
which Shares will be delivered or deemed to be delivered to
Participants. Options shall expire not later than ten years
after the date of grant.
(iii) Incentive Stock Options. The terms of any Incentive
Stock Option granted under the Plan shall comply in all respects
with the provisions of Section 422 of the Code, including but
not limited to the requirement that no Incentive Stock Option
shall be granted more than ten years after the effective date of
the Plan. Anything in the Plan to the contrary notwithstanding,
no term of the Plan relating to Incentive Stock Options shall be
interpreted, amended, or altered, nor shall any discretion or
authority granted under the Plan be exercised, so as to
disqualify either the Plan or any Incentive Stock Option under
Section 422 of the Code. In the event a Participant voluntarily
disqualifies an Option as an Incentive Stock Option, the
Committee may, but shall not be obligated to, make such
additional Awards or pay bonuses as the Committee shall deem
appropriate to reflect the tax savings to the Corporation which
result from such disqualification.
6.07. Stock Appreciation Rights. The Committee is authorized
to grant Stock
Appreciation Rights to Participants on the following terms an conditions:
(i) Right to Payment. A Stock Appreciation Right shall confer
on the Participant to whom it is granted a right to receive,
upon exercise thereof, the excess of (A) the Fair Market Value
of one Share on the date of exercise (or, if the Committee shall
so determine in the case of any such right, other than one
related to an Incentive Stock Option, the Fair Market Value of
one Share at any time during a specified period before or after
the date of exercise or the Change of Control Price as defined
in Section 9.03) over (B) the grant price of the Stock
Appreciation Right as determined by the Committee as of the date
of grant of the Stock Appreciation Right, which, except as
provided in Section 7.03, shall be not less than the Fair Market
Value of one Share on the date of grant.
(ii) Other Terms. The Committee shall determine the time or
times at which a Stock Appreciation Right may be exercised in
whole or in part, the method of exercise, method of settlement,
form of consideration payable in settlement, method by which
Shares will be delivered or deemed to be delivered to
Participants, and any other terms and conditions of any Stock
Appreciation Right. Limited Stock Appreciation Rights that may
be exercised only upon the occurrence of a Change of Control (as
such term is defined in Section 9.02 or as otherwise defined by
the Committee) may be granted under this Section 6.07. Stock
Appreciation Rights shall expire not later than ten years after
the date of grant.
6.08. Other Stock-Based Awards. The Committee is authorized to
grant to Participants such other Awards that are denominated or payable
in, valued in whole or in part by reference to, or otherwise based on or
related to, Shares, as deemed by the Committee to be consistent with the
purposes of the Plan, including without limitation, Shares awarded purely
as a "bonus" and not subject to any restrictions or conditions,
convertible or exchangeable debt securities, other rights convertible or
exchangeable into Shares, purchase rights, and Awards valued by reference
to book value of Shares or the value of securities of or the performance
of specified Subsidiaries. The Committee shall determine the terms and
conditions of such Awards, which may include performance criteria.
Shares delivered pursuant to an Award in the nature of a purchase right
granted under this Section 6.08 shall be purchased for such
consideration, paid for at such times, by such methods, and in such
forms, including, without limitation, cash, Shares, other Awards, or
other property, as the Committee shall determine.
SECTION 7. Certain Provisions Applicable to Awards.
7.01. Performance-Based Awards. Performance Awards,
Performance-Based Restricted Stock, and Other Stock-Based Awards subject
to performance criteria are intended to be "qualified performance-based
compensation" within the meaning of section 162(m) of the Code and shall
be paid solely on account of the attainment of one or more
preestablished, objective performance goals within the meaning of section
162(m) and the regulations thereunder. Until otherwise determined by the
Committee, the performance goal shall be the attainment of preestablished
amounts of annual net income of the Corporation.
The payout of any such Award to a Covered Employee may be
reduced, but not increased, based on the degree of attainment of other
performance criteria or otherwise at the
discretion of the Committee.
7.02. Maximum Yearly Awards. A maximum of 250,000 Shares (or
the equivalent Fair Market Value thereof with respect to Awards valued
in whole or in part by reference to, or otherwise based on or related to,
Shares) may be made subject to Performance Awards, Performance-Based
Restricted Stock, and Other Stock-Based Awards subject to performance
criteria in any Year. The maximum payout of such Awards in any Year may
not exceed 160% of the amount thereof, or 400,000 Shares in the aggregate
and 100,000 Shares in the case of any Participant. A maximum of
1,500,000 Shares may be made subject to Options and Stock Appreciation
Rights in any Year. No Participant may receive Awards covering or
representing more than 25% of the maximum number of Shares set forth in
this Section 7.02 which may be made subject to such types of Awards in
any Year. The Share amounts in this Section 7.02 are subject to
adjustment under Section 10 and are subject to the Plan maximum under
Section 4.
7.03. Stand-Alone, Additional, Tandem, and Substitute Awards.
Awards granted under the Plan may, in the discretion of the Committee,
be granted either alone or in addition to, in tandem with, or in
substitution for any other Award granted under the Plan or any award
granted under any other plan of the Corporation, any Subsidiary, or any
business entity to be acquired by the Corporation or a Subsidiary, or any
other right of a Participant to receive payment from the Corporation or
any Subsidiary. If an Award is granted in substitution for another Award
or award, the Committee shall require the surrender of such other Award
or award in consideration for the grant of the new Award. Awards granted
in addition to or in tandem with other Awards or awards may be granted
either as of the same time as or a different time from the grant of such
other Awards or awards. The per Share exercise price of any Option,
grant price of any Stock Appreciation Right, or purchase price of any
other Award conferring a right to purchase Shares:
(i) Granted in substitution for an outstanding Award or award
shall be not less than the lesser of the Fair Market Value of a
Share at the date such substitute award is granted or such Fair
Market Value at that date reduced to reflect the Fair Market
Value at that date of the Award or award required to be
surrendered by the Participant as a condition to receipt of the
substitute Award; or
(ii) Retroactively granted in tandem with an outstanding Award
or award shall be not less than the lesser of the Fair Market
Value of a Share at the date of grant of the later Award or at
the date of grant of the earlier Award or award.
7.04. Exchange Provisions. The Committee may at any time offer
to exchange or buy out any previously granted Award for a payment in
cash, Shares, other Awards (subject to Section 7.03), or other property
based on such terms and conditions as the Committee shall determine and
communicate to the Participant at the time that such offer is made.
7.05. Term of Awards. The term of each Award shall be for such
period as may be determined by the Committee; provided, however, that in
no event shall the term of any Option or a Stock Appreciation Right
granted in tandem therewith exceed a period of ten years from the date
of its grant (or such shorter period as may be applicable under Section
422 of the Code).
7.06. Form of Payment Under Awards. Subject to the terms of the
Plan and any applicable Award Agreement, payments to be made by the
Corporation or a Subsidiary upon the grant or exercise of an Award may
be made in such forms as the Committee shall determine, including without
limitation, cash, Shares, other Awards, or other property, and may be
made in a single payment or transfer, in installments, or on a deferred
basis. Such payments may include, without limitation, provisions for the
payment or crediting of reasonable interest on installment or deferred
payments or the grant or crediting of Dividend Equivalents in respect of
installment or deferred payments denominated in Shares.
7.07. Loan Provisions. With the consent of the Committee, and
subject to compliance with applicable laws and regulations, the
Corporation may make, guarantee, or arrange for, a loan or loans to a
Participant with respect to the exercise of any Option or other payment
in connection with any Award, including the payment by a Participant of
any or all federal, state, or local income or other taxes due in
connection with any Award. Subject to such limitations, the Committee
shall have full authority to decide whether to make a loan or loans
hereunder and to determine the amount, terms, and provisions of any such
loan or loans, including the interest rate to be charged in respect of
any such loan or loans, whether the loan or loans are to be with or
without recourse against the borrower, the terms on which the loan is to
be repaid and conditions, if any, under which the loan or loans may be
forgiven. Nothing in this Section shall be construed as implying that
the Committee shall or will offer such loans.
SECTION 8. General Restrictions Applicable to Awards.
8.01. Restrictions Under Rule 16b-3.
8.01.1. Six-Month Holding Period. Unless a Participant
could otherwise transfer an equity security, derivative
security, or Shares issued upon exercise of a derivative
security granted under the Plan without incurring liability
under Section 16(b) of the Exchange Act, (i) an equity security
issued under the Plan, other than an equity security issued upon
exercise or conversion of a derivative security granted under
the Plan, shall be held for at least six months from the date of
acquisition; (ii) with respect to a derivative security issued
under the Plan, at least six months shall elapse from the date
of acquisition of the derivative security to the date of
disposition of the derivative security (other than upon exercise
or conversion) or its underlying equity security; and (iii) any
Award in the nature of a Stock Appreciation Right must be held
for six months from the date of grant to the date of cash
settlement.
8.01.2. Nontransferability. Awards which constitute
derivative securities (including any option, stock appreciation
right, or similar right) shall not be transferable by a
Participant except by will or the laws of descent and
distribution (except pursuant to a beneficiary designation
authorized under Section 8.02) or, if then permitted under Rule
16b-3, pursuant to a qualified domestic relations order as
defined under the Code or Title I of the Employee Retirement
Income Security Act of 1974, as amended, or the rules
thereunder, and, in the case of an Incentive Stock Option or, if
then required by Rule 16b-3, any other derivative security
granted under the Plan, shall be exercisable during the lifetime
of a Participant only by such Participant or his guardian or
legal representative.
8.01.3. Compliance with Rule 16b-3. It is the intent
of the Corporation that this Plan comply in all respects with
Rule 16b-3 in connection with any Award granted to a person who
is subject to Section 16 of the Exchange Act. Accordingly, if
any provision of this Plan or any Award Agreement does not
comply with the requirements of Rule 16b-3 as then applicable to
any such person, such provision shall be construed or deemed
amended to the extent necessary to conform to such requirements
with respect to such person.
8.02. Limits on Transfer of Awards; Beneficiaries. No right or
interest of a Participant in any Award shall be pledged, encumbered, or
hypothecated to or in favor of any party (other than the Corporation or
a Subsidiary), or shall be subject to any lien, obligation, or liability
of such Participant to any party (other than the Corporation or a
Subsidiary). Unless otherwise determined by the Committee (subject to
the requirements of Section 8.01.2), no Award subject to any restriction
shall be assignable or transferable by a Participant otherwise than by
will or the laws of descent and distribution (except to the Corporation
under the terms of the Plan); provided, however, that a Participant may,
in the manner established by the Committee, designate a beneficiary or
beneficiaries to exercise the rights of the Participant, and to receive
any distribution, with respect to any Award, upon the death of the
Participant. A beneficiary, guardian, legal representative, or other
person claiming any rights under the Plan from or through any Participant
shall be subject to all terms and conditions of the Plan and any Award
Agreement applicable to such Participant or agreement applicable to such,
except to the extent the Plan and such Award Agreement or agreement
otherwise provide with respect to such persons, and to any additional
restrictions deemed necessary or appropriate by the Committee.
8.03. Registration and Listing Compliance. The Corporation
shall not be obligated to deliver any Award or distribute any Shares with
respect to any Award in a transaction subject to regulatory approval,
registration, or any other applicable requirement of federal or state
law, or subject to a listing requirement under any listing or similar
agreement between the Corporation and any national securities exchange,
until such laws, regulations, and contractual obligations of the
Corporation have been complied with in full, although the Corporation
shall be obligated to use its best efforts to obtain any such approval
and comply with such requirements as promptly as practicable.
8.04. Share Certificates. All certificates for Shares delivered
under the Plan pursuant to any Award or the exercise thereof shall be
subject to such stop-transfer order and other restrictions as the
Committee may deem advisable under applicable federal or state laws,
rules and regulations thereunder, and the rules of any national
securities exchange on which Shares are listed. The Committee may cause
a legend or legends to be placed on any such certificates to make
appropriate reference to such restrictions or any other restrictions that
may be applicable to Shares, including under the terms of the Plan or any
Award Agreement. In addition, during any period in which Awards or
Shares are subject to restrictions under the terms of the Plan or any
Award Agreement, or during any period during which delivery or receipt
of an Award or Shares has been deferred by the Committee or a
Participant, the Committee may require the Participant to enter into an
agreement providing that certificates representing Shares issuable or
issued pursuant to an Award shall remain in the physical custody of the
Corporation or such other person as the Committee may designate.
SECTION 9. Change of Control Provisions. Notwithstanding any
other provision of the Plan, the following acceleration and valuation
provisions shall apply in the event of a "Change of Control" as defined
in this Section 9:
9.01. Acceleration and Cash-Out Rights. In the event of a
"Change of Control," as defined in Section 9.02, automatically in the
case of Participants subject to Section 16 of the Exchange Act, and
unless otherwise determined by the Board in writing at or after grant but
prior to the occurrence of the Change of Control in the case of
Participants not subject to Section 16 of the Exchange Act:
(i) The performance criteria of all Performance Awards,
Performance-Based Restricted Stock, and Other Stock-Based Awards
shall be deemed fully achieved and all such Awards shall be
fully earned and vested, subject only to the restrictions on
dispositions of equity securities set forth in Section 8.01.1
and legal restrictions on the issuance of Shares set forth in
Section 8.04;
(ii) Any Option, Stock Appreciation Right, and other
Award in the nature of a right that may be exercised which was
not previously exercisable and vested shall become fully
exercisable and vested, subject only to the restrictions on
dispositions of equity securities set forth in Section 8.01.1
and legal restrictions on the issuance of Shares set forth in
Section 8.04;
(iii) The restrictions, deferral limitations, and
forfeiture conditions applicable to any other Award granted
under the Plan shall lapse and such Awards shall be deemed fully
vested, subject only to the restrictions on dispositions of
equity securities set forth in Section 8.01.1 and legal
restrictions on the issuance of Shares set forth in Section
8.04; and
(iv) All outstanding Awards shall be cancelled and a
Participant holding any such Award shall be paid in cash
therefor on the basis of the "Change of Control Price" (as
defined in Section 9.03) as of the date that the Change of
Control occurs, or such other date as the Committee may
determine prior to the Change of Control; provided, however,
that this Section 9.01 (iv) shall not apply in the case of any
Award if the cancellation of and payment for such Award would
cause the Participant to incur actual short-swing profits
liability under Section 16(b) of the Exchange Act.
9.02. Change of Control. For purposes of Section 9.01, a
"Change of Control" shall mean:
(a) The acquisition by any individual, entity or group (within
the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) of
beneficial ownership (within the meaning of Rule 13d-3 promulgated under
the Exchange Act) of 20% or more of either (i) the then outstanding
shares of common stock of the Corporation (the "Outstanding Corporation
Common Stock") or (ii) the combined voting power of the then outstanding
voting securities of the Corporation entitled to vote generally in the
election of directors (the "Outstanding Corporation Voting Securities");
provided, however, that the following acquisitions shall not constitute
a Change of Control: (i) any acquisition by the Corporation or any of its
subsidiaries, (ii) any acquisition by any employee benefit plan (or
related trust) sponsored or maintained by the Corporation or any of its
subsidiaries or (iii) any acquisition by any corporation with respect to
which,
following such acquisition, more than 75% of, respectively, the then
outstanding shares of common stock of such corporation and the combined
voting power of the then outstanding voting securities of such
corporation entitled to vote generally in the election of directors is
then beneficially owned, directly or indirectly, by all or substantially
all of the individuals and entities who were the beneficial owners,
respectively, of the Outstanding Corporation Common Stock and Outstanding
Corporation Voting Securities immediately prior to such acquisition in
substantially the same proportions as their ownership, immediately prior
to such acquisition, of the Outstanding Corporation Common Stock and
Outstanding Corporation Voting Securities, as the case may be; or
(b) Individuals who, as of the effective date of the Plan,
constitute the Board (the "Incumbent Board") cease for any reason to
constitute at least a majority of the Board; provided, however, that any
individual becoming a director subsequent to the date hereof whose
election, or nomination for election by the Corporation's shareholders,
was approved by a vote of at least a majority of the directors then
comprising the Incumbent Board shall be considered as though such
individual were a member of the Incumbent Board, but excluding, for this
purpose, any such individual whose initial assumption of office occurs
as a result of either an actual or threatened solicitation to which Rule
14a-11 of Regulation 14A promulgated under the Exchange Act applies or
other actual or threatened solicitation of proxies or consents; or
(c) Approval by the shareholders of the Corporation of a
reorganization, merger or consolidation, in each case, with respect to
which all or substantially all of the individuals and entities who were
the beneficial owners, respectively, of the Outstanding Corporation
Common Stock and Outstanding Corporation Voting Securities immediately
prior to such reorganization, merger or consolidation do not, following
such reorganization, merger or consolidation, beneficially own, directly
or indirectly, more than 75% of, respectively, the then outstanding
shares of common stock and the combined voting power of the then
outstanding voting securities entitled to vote generally in the election
of directors, as the case may be, of the corporation resulting from such
reorganization, merger or consolidation in substantially the same
proportions as their ownership, immediately prior to such reorganization,
merger or consolidation of the Outstanding Corporation Common Stock and
Outstanding Corporation Voting Securities, as the case may be; or
(d) Approval by the shareholders of the Corporation of (i) a
complete liquidation or dissolution of the Corporation or (ii) the sale
or other disposition of all or substantially all of the assets of the
Corporation, other than to a corporation, with respect to which following
such sale or other disposition, more than 75% of, respectively, the then
outstanding shares of common stock of such corporation and the combined
voting power of the then outstanding voting securities of such
corporation entitled to vote generally in the election of directors is
then beneficially owned, directly or indirectly, by all or substantially
all of the individuals and entities who were the beneficial owners,
respectively, of the Outstanding Corporation Common Stock and Outstanding
Corporation Voting Securities immediately prior to such sale or other
disposition in substantially the same proportion as their ownership,
immediately prior to such sale or other disposition, of the Outstanding
Corporation Common Stock and Outstanding Corporation Voting Securities,
as the case may be. The term "the sale or other disposition of all or
substantially all of the assets of the Corporation" shall mean a sale or
other disposition transaction or series of related transactions
involving assets of the Corporation or of any direct
or indirect subsidiary of the Corporation (including the stock of any
direct or indirect subsidiary of the Corporation) in which the value of
the assets or stock being sold or otherwise disposed of (as measured by
the purchase price being paid therefor or by such other method as the
Board determines is appropriate in a case where there is no readily
ascertainable purchase price) constitutes more than two-thirds of the
fair market value of the Corporation (as hereinafter defined). The "fair
market value of the Corporation" shall be the aggregate market value of
the then Outstanding Corporation Common Stock (on a fully diluted basis)
plus the aggregate market value of the Corporation's other outstanding
equity securities. The aggregate market value of the shares of
Outstanding Corporation Common Stock shall be determined by multiplying
the number of shares of Outstanding Corporation Common Stock (on a fully
diluted basis) outstanding on the date of the execution and delivery of
a definitive agreement with respect to the transaction or series of
related transactions (the "Transaction Date") by the average closing
price of the shares of Outstanding Corporation Common Stock for the ten
trading days immediately preceding the Transaction Date. The aggregate
market value of any other equity securities of the Corporation shall be
determined in a manner similar to that prescribed in the immediately
preceding sentence for determining the aggregate market value of the
shares of Outstanding Corporation Common Stock or by such other method
as the Board shall determine is appropriate.
9.03. Change of Control Price. For purposes of this Section 9,
"Change of Control Price" means the highest price per share paid in any
transaction reported on the securities exchange or trading system on
which the Shares are then primarily listed or traded, or paid or offered
in any transaction related to a Change of Control of the Corporation at
any time during the preceding 60-day period as determined by the
Committee, except that in the case of Incentive Stock Options and Stock
Appreciation Rights relating thereto, such price shall be based only on
transactions reported for the date on which the Committee decides to cash
out such Awards.
SECTION 10. Adjustment Provisions. In the event that the
Committee shall determine that any dividend or other distribution
(whether in the form of cash, Shares, or other property),
recapitalization, stock split, reverse stock split, reorganization,
merger, consolidation, spin-off, combination, repurchase, or share
exchange, or other similar corporate transaction or event, affects the
Shares such that an adjustment is determined by the Committee to be
appropriate in order to prevent dilution or enlargement of the rights of
Participants under the Plan, then the Committee shall, in such manner as
it may deem equitable, adjust any or all of (i) the number and kind of
Shares which may thereafter be issued in connection with Awards (ii) the
number and kind of Shares issued or issuable in respect of outstanding
Awards, and (iii) the exercise price, grant price, or purchase price
relating to any Award or, if deemed appropriate, make provision for a
cash payment with respect to any outstanding Award; provided, however,
in each case, that, with respect to Incentive Stock Options, no such
adjustment shall be authorized to the extent that such authority would
cause the Plan to violate Section 422(b)(1) of the Code. In addition,
the Committee is authorized to make adjustments in the terms and
conditions of, and the criteria included in, Awards in recognition of
unusual or nonrecurring events (including, without limitation, events
described in the preceding sentence) affecting the Corporation or any
Subsidiary or the financial statements of the Corporation or any
Subsidiary, or in response to changes in applicable laws, regulations,
or accounting principles.
SECTION 11. Changes to the Plan and Awards.
11.01. Changes to the Plan. The Board may amend, alter,
suspend, discontinue or terminate the Plan without the consent of
shareholders or Participants, except that any such amendment, alteration,
suspension, discontinuation, or termination shall be subject to the
approval of the Corporation's shareholders within one year after such
Board action if such shareholder approval is required by any federal or
state law or regulation or the rules of any stock exchange on which the
Shares may be listed, or if the Board in its discretion determines that
obtaining such shareholder approval is for any reason advisable;
provided, however, that, without the consent of an affected Participant,
no amendment, alteration, suspension, discontinuation, or termination of
the Plan may impair the rights of such Participant under any Award
theretofore granted to him.
11.02. Changes to Awards. The Committee may waive any
conditions or rights under, or amend, alter, suspend, discontinue, or
terminate, any Award theretofore granted and any Award Agreement relating
thereto; provided, however, that, without the consent of an affected
Participant, no such amendment, alteration, suspension, discontinuation,
or termination of any Award may impair the rights of such Participant
under such Award.
SECTION 12. General Provisions.
12.01. No Rights to Awards. No Participant or employee shall
have any claim to be granted any Award under the Plan, and there is no
obligation for uniformity of treatment of Participants and employees.
12.02. No Shareholder Rights. No Award shall confer on any
Participant any of the rights of a shareholder of the Corporation unless
and until Shares are duly issued or transferred to the Participant in
accordance with the terms of the Award.
12.03. Tax Withholding. The Corporation or any Subsidiary is
authorized to withhold from any Award granted, any payment relating to
an Award under the Plan, including from a distribution of Shares, or any
payroll or other payment to a Participant, amounts of withholding and
other taxes due with respect thereto, its exercise, or any payment
thereunder, and to take such other action as the Committee may deem
necessary or advisable to enable the Corporation and Participants to
satisfy obligations for the payment of withholding taxes and other tax
liabilities relating to any Award. This authority shall include
authority to withhold or receive Shares or other property and to make
cash payments in respect thereof in satisfaction of Participant's tax
obligations.
12.04. No Right to Employment. Nothing contained in the Plan
or any Award Agreement shall confer, and no grant of an Award shall be
construed as conferring, upon any employee any right to continue in the
employ of the Corporation or any Subsidiary or to interfere in any way
with the right of the Corporation or any Subsidiary to terminate his
employment at any time or increase or decrease his compensation from the
rate in existence at the time of granting of an Award.
12.05. Unfunded Status of Awards. The Plan is intended to
constitute an "unfunded" plan for incentive and deferred compensation.
With respect to any payments not yet made to a Participant pursuant to
an Award, nothing contained in the Plan or any Award shall give any such
Participant any rights that are greater than those of a general creditor
of the Corporation; provided, however, that the Committee may authorize
the creation of trusts or make other arrangements to meet the
Corporation's obligations under the Plan to deliver cash, Shares, other
Awards, or other property pursuant to any award, which trusts or other
arrangements shall be consistent with the "unfunded" status of the Plan
unless the Committee otherwise determines with the consent of each
affected Participant.
12.06. Other Compensatory Arrangements. The Corporation or any
Subsidiary shall be permitted to adopt other or additional compensation
arrangements (which may include arrangements which relate to Awards),
and such arrangements may be either generally applicable or applicable
only in specific cases.
12.07. Fractional Shares. No fractional Shares shall be issued
or delivered pursuant to the Plan or any Award. The Committee shall
determine whether cash, other Awards, or other property shall be issued
or paid in lieu of fractional Shares or whether such fractional Shares
or any rights thereto shall be forfeited or otherwise eliminated.
12.08. Governing Law. The validity, construction, and effect
of the Plan, any rules and regulations relating to the Plan, and any
Award Agreement shall be determined in accordance with the laws of the
State of Florida, without giving effect to principles of conflicts of
laws, and applicable federal law.
SECTION 13. Effective Date. The Plan shall become effective on
February 14, 1994; provided, however, that within one year after such
date, the Plan shall have been approved by the affirmative vote of the
holders of a majority of the Shares present or represented and entitled
to vote (and the affirmative vote of a majority of the Shares voting) at
a meeting of the Corporation's shareholders, or any adjournment thereof.