EXHIBIT 10.28
UNIROYAL TECHNOLOGY CORPORATION
1992 NON-QUALIFIED STOCK OPTION PLAN
AS AMENDED TO NOVEMBER 30, 2000
1. Purpose of the Plan.
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This Uniroyal Technology Corporation 1992 Non-Qualified Stock Option
Plan (the "Plan") is intended as an incentive to retain as independent directors
on the Board of Directors (the "Board") of Uniroyal Technology Corporation (the
"Company") persons of training, experience and ability, to encourage the sense
of proprietorship of such persons and to stimulate the active interests of such
persons in the development and financial success of the Company. It is further
intended that options issued pursuant to this Plan (the "Options") shall not be
incentive stock options within the meaning of Section 422 of the Internal
Revenue Code of 1986, as amended (the "Code").
2. Shares and Options.
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Subject to adjustments provided in Paragraph 8 hereof, a total number
of up to the number of shares (the "Shares") of Common Stock, $.01 par value
("Stock"), of the Company calculated by multiplying the number of Directors (as
hereinafter defined) participating in the Plan by the number calculated pursuant
to the formula set forth in Paragraph 3(b) hereof shall be subject to the Plan;
during the term of the Plan such number shall be recalculated at the beginning
of each fiscal year of the Company and at the time of any changes in the number
of Directors participating in the Plan to include the number of shares added to
the Plan in such fiscal year. The Shares subject to the Plan shall consist of
authorized and unissued shares or previously issued shares reacquired and held
by the Company, or any corporation or entity of which the Company directly or
indirectly controls 50% or more of the total combined voting power of all
classes of its stock having voting power (any such corporation or entity being
hereinafter referred to as a "Subsidiary"), and such number of Shares pursuant
to the preceding sentence shall be and hereby is reserved for sale for such
purpose. Any of such Shares that may remain unsold and that are not subject to
outstanding Options at the termination of the Plan shall cease to be reserved
for the purpose of the Plan, but until termination of the Plan the Company shall
at all times reserve a sufficient number of Shares to meet the requirements of
the Plan. Should any Option expire or be canceled prior to its exercise in full,
the Shares theretofore subject to such Option may not again be subjected to an
Option under the Plan.
3. Formula for Automatic Grant of Options.
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(a) Options shall be granted to those persons who, as of the
dates set forth in Section 3(b) below, are (i) directors of the Company, (ii)
are not officers of the Company or a Subsidiary, and (iii) elect to receive
Options in lieu of retainer as provided below (any person satisfying all three
requirements referred to herein as a "Director"). Each Director to whom an
Option is granted under this Plan, or any successor to the rights of such
Director under this Plan by reason of the death of the Director, hereafter shall
be referred to as an "Optionee." Each Option shall be evidenced by an option
agreement, in a form specified by the Board, containing terms and conditions
that are not inconsistent with this Plan or applicable laws ("Option
Agreement"). The Options granted to Directors under this Plan shall be in lieu
of the regular Director's annual retainer with respect to any Director's
position with the Company. The date of grant of an Option shall be stated in the
Option Agreement evidencing such Option (such date of grant being referred to
herein as the "Grant Date"). Neither the Plan nor any Option granted under the
Plan shall confer upon any person any right to continue to serve as a Director.
(b) Within 30 days after the later to occur of adoption of the
Plan or an individual's initially satisfying conditions (i) and (ii) of
paragraph (a) of this Section 3 above, such individual shall have the
opportunity to make an irrevocable election in writing, signed by such
individual and filed with the Company, to receive Options in lieu of all or any
portion of the Board and committee retainers that will become payable to such
individual in respect of his or her service after such election is received by
the Company; provided, however, that any individual who satisfies conditions (i)
and (ii) of paragraph (a) of this Section 3 above may, after expiration of the
aforementioned 30-day period in which he or she did not elect to defer his or
her retainer, irrevocably elect, in a signed writing filed with the Company, to
receive Options in lieu of all or any portion of the Board and committee
retainers that would otherwise become payable to such individual in respect of
his or her service beginning in the calendar year immediately following the
calendar year in which such election is received by the Company. Such election
shall continue in effect and apply to Board and committee retainers otherwise
payable to such Director in respect of his or her service in any period
following the calendar year of such election until such election is revoked, in
writing, signed by the applicable Director and filed with the Company, such
revocation to become effective with respect to Board and committee retainers
payable to such Director in respect of his or her service beginning in the
calendar year immediately following the calendar year in which such revocation
is received by the Company. If so elected, the number of Shares subject to the
Option shall be determined in accordance with the following formula:
dollar amount of cash retainer to be deferred
______________________________________ = Number of Shares
50% of the Fair Market Value per Share
For purposes of the foregoing formula, the Fair Market Value per Share shall be
determined as of the Grant Date (as hereinafter defined) of an Option.
No Director may receive Options to purchase more than 10,000 Shares on any Grant
Date. To the extent the Director would receive Options in lieu of retainer in
excess of the number of Options which may be granted pursuant to this Section
3(b), the Director shall receive such related retainer fees in cash under the
normal payment schedule.
(c) Notwithstanding any provision herein to the contrary, no
Director shall be granted any Option in any annual period which, if considered
together with all other outstanding and unexercised options granted by the
Company hereunder or pursuant to any other Company plan during such annual
period ("Outstanding Options"), would entitle such Director to purchase more
than the lesser of (i) the number of shares purchasable with the maximum
retainer earned or to be earned by such Director in the calendar year in which a
Grant Date occurs and (ii) 60,000 shares of Stock ("Option Maximum"). If any
grant of Options pursuant to Section 3(b) above would exceed the Option Maximum
for a Director, the number of Shares in respect of which Options shall be
granted hereunder shall be reduced (or eliminated) so that the number of Shares
covered by Outstanding Options granted to such Director shall not exceed the
Option Maximum. To the extent so reduced, the Director will receive retainer
fees in cash under the normal payment schedule. In the event that any such
Director subsequently exercises any of his or her Outstanding Options to
purchase shares of Stock, Options covering the Shares purchased thereby shall no
longer be considered to be Outstanding Options for purposes of the Option
Maximum.
4. Option Price.
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(a) Each Option shall have an exercise price for the related
Shares that is equal to fifty percent (50%) of the Fair Market Value of such
Shares (determined as set forth in Section 4(b) below) on the date the Option is
granted.
(b) The fair market value of a Share on a particular date
("Fair Market Value") shall be (i) the highest closing price of the Stock on any
established national exchange or exchanges or the Nasdaq National Market (or its
successor quotation system), whichever is applicable, on such date or, if no
sale of Stock is made on such date, the next preceding date on which there was a
sale of such Stock, or (ii) if the Stock is not listed on an established stock
exchange or the Nasdaq National Market, the closing price of the Stock in the
New York over-the-counter market as reported by National Association of
Securities Dealers, Inc. for such date or, if no sale of Stock is reported for
such date, the next preceding date on which there was a reported sale of Stock.
5. Option Period.
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The Options granted under this Plan shall be for a term of ten (10)
years from the date of granting of each Option (the "Option Period").
6. Exercise of Options: Certain Conditions to Grant.
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(a) An Option may be exercised in whole or in part at any time
beginning nine (9) months after the Grant Date.
(b) Subject to applicable exercise restrictions set forth
herein, Options may be exercised, in whole or in part, by giving written notice
of exercise to the Company specifying the number of Shares to be purchased. The
notice shall be accompanied by payment in full of the purchase price (including
applicable withholding taxes, if any) in cash, by certified or cashier's check,
by money order or by personal check (if approved by the Board) of an amount
equal to the aggregate purchase price of the Shares to which such exercise
relates. No person will have the rights of a shareholder with respect to Shares
subject to an Option granted under this Plan until a certificate or certificates
for the Shares have been delivered to him or her.
(c) Notwithstanding the foregoing payment provisions, the
Board may refuse to recognize the method of exercise set forth in Section 6(b),
if, in the opinion of counsel to the Company, (i) the Optionee is, or within the
six (6) months preceding such exercise was, subject to reporting under Section
16(a) of the Exchange Act of 1934, as amended (the "Exchange Act"), and (ii)
there is a substantial likelihood that the method of exercise selected by the
Optionee would subject the Optionee to substantial risk of liability under
Section 16 of the Exchange Act.
(d) Notwithstanding any provision herein to the contrary, in
the event a Director is removed as a director of the Company as a result of his
or her permanent and total disability (as defined in Section 22(e)(3) of the
Code), he or she may, but only within the period of time one (1) year from the
date of such removal (but not later than the expiration of the Option Period),
exercise his or her Option to the extent he or she was entitled to exercise it
at the date of such removal. To the extent the Optionee was not entitled to
exercise the Option at the date of such removal, or if he or she does not
exercise such Option (which he or she was entitled to exercise) within the time
specified herein, the Option shall terminate.
(e) In the event of the death of an Optionee during his or her
term of service as a Director of the Company, to the extent the Optionee was
entitled to exercise the Option at the time of his or her death, the Option may
be exercised within a one-year period following the date of death (but not later
than the expiration of the term of the Option) by the Optionee's estate or by a
person who acquired the right to exercise the Option by bequest or inheritance.
To the extent the Optionee was not entitled to exercise the Option at the date
of his or her death, the Option shall terminate.
(f) Termination of Services: If a Director ceases continuous
service as a Director for any reason other than death or disability (such
disability being determined by the Board in its sole discretion provided, that
no Director shall participate in any such determination relating to himself or
herself), all Options held by the Director shall lapse on the earlier of the end
of the Option Period or ninety (90) days following the effective date of the
termination of the Director's services to the Company. Any Option shall lapse at
the earlier of the end of the Option Period or the end of the period established
by the Optionee's termination of services to the Company. The Option may be
exercised only for the number of Shares for which it could have been exercised
on such termination date, subject to any adjustment under Section 8.
7. Non-Transferability of Options.
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Except as hereinafter provided, no Option and no rights or interest
therein shall be assignable or transferable by an Optionee and may not be sold,
pledged, encumbered or otherwise alienated or hypothecated, otherwise than by
will or the laws of descent and distribution, and during the lifetime of an
Optionee, Options are exercisable only by the Optionee or his or her legal
representative. The Board may, in its discretion, authorize all or a portion of
any Option granted to an Optionee to be on terms which permit transfer by such
Option to (i) the Optionee's spouse, former spouse, children, grandchildren or
any other member of the Optionee's immediate family (collectively, "Immediate
Family Members"); (ii) a trust or trusts for the exclusive benefit of any
Immediate Family Members; (iii) one or more family partnerships, family limited
partnerships, family limited liability companies or similar entities of which
or in which any Immediate Family Members and/or the Optionee are the only
partners, members, shareholders or other owners; or (iv) such other persons or
entities permitted by the Board in its discretion; provided that (x) the Option
Agreement pursuant to which such Option is granted must expressly provide for
transferability in a manner consistent with this Section 7; (y) any transfer of
an Option shall be in accordance with any other terms, conditions, rules and
limitations prescribed by the Board; and (z) subsequent transfers of previously
transferred Options shall be prohibited, otherwise than by will or the laws of
descent and distribution. Following the valid transfer of any Option, the
transferred Option shall continue to be subject to the same terms and
conditions as were applicable immediately prior to such transfer, provided that
the applicable transferee of such Option shall be treated under the Plan and
the applicable Option Agreement as the Optionee, except that the terms of
paragraph (d), (e) and (f) of Section 6 hereof, dealing with exercise of an
Option following termination of a Director's service with the Company (and any
similar terms and conditions of the applicable Option Agreement), shall
continue to be applied with respect to the original Optionee, so that following
any such termination, any transferee of the original Optionee's Option may only
exercise such Option for the period specified in such paragraph (and any
similar terms and conditions of the applicable Option Agreement).
8. Adjustments.
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(a) The existence of the Plan and the Options granted
hereunder shall not affect or restrict in any way the right or power of the
Board or the stockholders of the Company to make or authorize any adjustment,
recapitalization, reorganization or other change in the Company's capital
structure or its business, any merger or consolidation of the Company, any
issue of bonds, debentures, preferred or prior preference stocks ahead of or
affecting the Stock or the rights thereof, the dissolution or liquidation of
the Company, or any sale or transfer of all or any part of its assets or
business, or any other corporate act or proceeding.
(b) In the event of any change in capitalization affecting the
Stock, such as a stock dividend, stock split, extraordinary dividend payable in
cash or other property, recapitalization, merger, consolidation, split-up,
combination, exchange of shares, other form of reorganization, or any other
change affecting the Stock, the Board, in its discretion, may make
proportionate adjustments it deems appropriate to reflect such change with
respect to (i) the maximum number of shares of Stock which may be sold or
awarded to any Optionee, (ii) the number of shares of Stock covered by each
outstanding Option, and (iii) the price per share in respect of the outstanding
Options. Notwithstanding the foregoing, the Board may increase the aggregate
number of shares of Stock for which Options may be granted under the Plan
solely to reflect the change, if any, of the capitalization of the Company.
9. Securities Laws Restrictions.
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The Company shall have no obligation to register Shares covered by the
Plan under the Securities Act of 1933, as amended (the "Securities Act").
Whether or not the Options and Shares covered by the Plan have been registered
under the Securities Act, each person exercising an Option under the Plan may be
required by the Company to give a representation in writing that he or she is
acquiring Shares for his or her own account for investment and not with a view
to, or for sale in connection with, the distribution of any part thereof. As a
condition of any transfer of the certificate evidencing Shares, the Company may
require such other agreements or undertakings, if any, that it may deem
necessary or appropriate to ensure compliance with any provisions of the Plan or
any law or regulation. Certificates for Shares delivered under the Plan may be
subject to such stock-transfer orders and other restrictions as counsel for the
Company may deem advisable under the rules, regulations, and other requirements
of the Securities and Exchange Commission, any stock exchange or other market
upon which the Stock is then listed, and any applicable federal or state
securities law. The Company may cause a legend or legends to be placed on any
such certificates to refer to such restrictions.
10. Amendment, Modification, Suspension or Discontinuance of this
Plan.
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(a) Except as set forth in Sections 10(b), 10(c) and 10(d)
below, without shareholder approval, the Board may at any time amend, modify,
suspend, discontinue or terminate the Plan, including, without limitation, for
the purpose of meeting or addressing any changes in legal requirements or for
any other purpose permitted by law.
(b) Except as set forth in Section 10(c) below, to comply with
the restrictions set forth in Rule 16b-3 promulgated by the Securities and
Exchange Commission under the Exchange Act, or any successor rule ("Rule 16b-3")
and to comply with the Code and accompanying regulations, but subject to changes
in law or other legal requirements (including any change in the provisions of
Rule 16b-3 and the Code and accompanying regulations that would permit
otherwise), the Board must obtain approval of the stockholders of the Company to
make any amendment that would (i) increase the aggregate number of shares of
Stock that may be issued under the Plan pursuant to Sections 2 and 3 of the Plan
(except for adjustments pursuant to Section 8 of the Plan), (ii) modify
materially the requirements as to eligibility for participation in the Plan, or
(iii) increase materially the benefits accruing to the Optionees under the Plan,
including, but not limited to, an increase in the number of Shares subject to an
Option, a reduction in the Option exercise price described in Section 4(a)
hereof, an extension of the period during which Options may be granted or
exercised under the Plan or a change in the vesting period or timing of Option
grants.
(c) Notwithstanding Sections 10(a) and 10(b), under no
circumstances may the Board amend, alter, discontinue or terminate the Plan so
as to impair the vested rights of Optionees under any Option theretofore granted
under the Plan without their written consent.
11. Government Regulations.
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The Plan, and the granting and exercise of Options thereunder, and the
obligation of the Company to sell and deliver Shares under such Options, shall
be subject to all applicable laws, rules and regulations, and to such approvals
by any governmental agencies or national securities exchanges or other markets
as may be required.
12. Costs of Plan; Plan Unfunded.
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The costs and expenses of administering the Plan shall be borne by the
Company. The Plan shall be unfunded. Neither the Company nor the Board shall be
required to establish any special or separate fund or to make any other
segregation of assets to assure the issuance of Shares upon exercise of any
Option under the Plan and issuance of Shares upon exercise of Options shall be
subordinate to the claims of the Company's general creditors. Proceeds from the
sale of Shares pursuant to Options shall constitute general funds of the
Company. None of the Company, any subsidiary of the Company or the Board shall
be deemed to be a trustee of any amounts to be paid under the Plan.
13. Governing Law.
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The Plan and all actions taken thereunder shall be governed by and
construed in accordance with the laws of the State of Florida.
14. Effective Date.
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The Plan shall be effective if and when approved by a majority of the
Company's stockholders at the 1994 annual meeting of stockholders or any
adjournment thereof.
15. Interpretation.
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(a) If any provision of the Plan is held invalid for any
reason, such holding shall not affect the remaining provisions hereof, but
instead the Plan shall be construed and enforced as if such provision had never
been included in the Plan.
(b) Headings contained in this Agreement are for convenience
only and shall in no manner be construed as part of this Plan.
(c) Any reference to the masculine, feminine, or neuter gender
shall be a reference to such other gender as is appropriate.
16. Duration of Plan.
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Options may be granted under this Plan only during the ten (10) years
immediately following the effective date of this Plan, unless the Plan is
terminated earlier pursuant to Section 10 hereof.
17. Taxes; Compliance with Law; Approval of Regulatory Bodies.
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(a) The Company, if necessary or desirable, may pay or
withhold the amount of any tax attributable to any Shares deliverable or
amounts payable under this Plan, and the Company may defer making any such
delivery or payment until it is indemnified to its satisfaction or paid for
that tax in accordance with such procedures as may be adopted by the Board.
(b) Options are exercisable, and Shares can be delivered under
this Plan, only in compliance with all applicable federal and state laws and
regulations, including, without limitation, state and federal securities laws,
and the rules of all stock exchanges or other markets on which the Company's
stock is listed at any time. An Option is exercisable only if either (a) a
registration statement pertaining to the Shares to be issued upon exercise of
the Option has been filed with the Securities and Exchange Commission and has
become effective and remains effective on the date of exercise, or (b) an
exemption from the registration requirements of applicable securities laws is
available. This Plan does not require the Company, however, to file such a
registration statement or to assure the availability of such exemptions. Any
certificate issued to evidence Shares issued under the Plan may bear such
legends and statements, and shall be subject to such transfer restrictions, as
the Board deems advisable to assure compliance with federal and state laws and
regulations and with the requirements of this Section. Each Option may not be
exercised, and Shares may not be issued under this Plan, until the Company has
obtained the consent or approval of every regulatory body, federal or state,
having jurisdiction over such matters as the Board deems advisable.
(c) Each person who acquires the rights to exercise an Option
by bequest or inheritance may be required by the Board to furnish reasonable
evidence of ownership of the Option as a condition to his exercise of the
Option. In addition, the Board may require such consents and releases to taxing
authorities as the Board deems advisable.
18. Miscellaneous.
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(a) By accepting any benefit under the Plan, each Optionee and
each person claiming under or through such Optionee shall be conclusively
deemed to have indicated his or her acceptance and ratification of, and consent
to, all of the terms and conditions of the Plan and any action taken under the
Plan by the Company, the Board or their delegees.
(b) No person shall have any rights or claims under the Plan
except in accordance with the provisions of the Plan and any Option Agreement.
Except as expressly provided for in the Plan, no Director or other person shall
have any claim or right to be granted an Option under the Plan.