REGENCY REALTY CORPORATION
1993 LONG TERM OMNIBUS PLAN
iii
REGENCY REALTY CORPORATION
1993 LONG TERM OMNIBUS PLAN
Table of Contents
Page
Article I. Purpose..........................................................1
1.1 Purpose..........................................................1
1.2 Adoption.........................................................1
Article II. Definitions......................................................1
2.1 Affiliate........................................................1
2.2 Annual Retainer..................................................1
2.3 Award............................................................1
2.4 Award Agreement..................................................1
2.5 Board............................................................1
2.6 Code.............................................................1
2.7 Committee........................................................1
2.8 Company Matching Contribution....................................2
2.9 DEU Option.......................................................2
2.10 Dividend Equivalent Account......................................2
2.11 Dividend Equivalent Units........................................2
2.12 Exchange Act.....................................................2
2.13 Fair Market Value................................................2
2.14 Incentive Stock Option...........................................2
2.15 Key Employee.....................................................2
2.16 Net Dividend Rate................................................2
2.17 Non-Employee Director............................................2
2.18 Non-Qualified Stock Option.......................................3
2.19 Option...........................................................3
2.20 PRT Merger Agreement.............................................3
2.21 Participant......................................................3
2.22 Performance Award................................................3
2.23 Plan.............................................................3
2.24 Plan Year........................................................3
2.25 Quarterly Period.................................................3
2.26 Released Securities..............................................3
2.27 Restricted Stock.................................................3
2.28 Rule 16b-3.......................................................3
2.29 Share Equivalents................................................3
2.30 Shares...........................................................3
2.31 Share Value......................................................3
2.32 Stock Appreciation Rights........................................4
2.33 Stock Purchase Award.............................................4
Article III. Administration.................................................4
3.1 Committee........................................................4
3.2 Delegation of Authority..........................................4
Article IV. Shares...........................................................5
4.1 Number of Shares Available.......................................5
4.2 Shares Subject to Terminated Awards..............................5
4.3 Adjustments......................................................5
Article V. Participation....................................................6
5.1 Eligible Participants............................................6
Article VI. Stock Options and Stock Appreciation Rights......................6
6.1 Grant of Option..................................................6
6.2 Award of Dividend Equivalent Units...............................7
6.3 Stock Appreciation Rights........................................9
6.4 Compliance With Code Section 162(m)..............................9
Article VII. Restricted Stock...............................................9
7.1 Restricted Stock Awards..........................................9
Article VIII. Stock Purchase Awards.........................................10
8.1 Grant of Stock Purchase Award...................................10
Article IX. Performance Awards..............................................10
9.1 Performance Awards..............................................10
Article X. Other Share-Based Awards........................................11
10.1 Grant of Other Awards...........................................11
10.2 Terms of Other Awards...........................................12
Article XI. Non-Employee Director Awards....................................12
11.1 Automatic Grant of Non-Employee Director Option Awards..........12
11.2 Payment of Annual Retainer......................................13
Article XII. Non-Employee Director Share Purchase Rights...................14
12.1 Share Purchase Rights...........................................14
12.2 Company Matching Contribution...................................14
12.3 Deferral Election...............................................15
12.4 Termination of Participation....................................15
12.5 Registration....................................................15
Article XIII. Terms Applicable to All Awards Granted Under the Plan.........15
13.1 Award Agreement.................................................15
13.2 No Consideration for Awards.....................................16
13.3 Awards May Be Granted Separately or Together; No Limitations
on Other Awards to Non-Employee Directors.......................16
13.4 Limitations on Transfer of Awards...............................16
13.5 Term............................................................16
13.6 Taxes...........................................................16
13.7 Rights and Status of Recipients.................................17
13.8 Awards Not Includable for Benefit Purposes......................17
13.9 Share Certificates; Representation by Key Employee Participants;
Registration Requirements.......................................17
13.10 Amendments to Awards............................................17
13.11 Adjustment to Awards Upon Certain Acquisitions..................17
13.12 Correction of Defects, Omissions, and Inconsistencies...........17
Article XIV. Amendment and Termination.....................................18
14.1 Amendment.......................................................18
14.2 Termination.....................................................18
Article XV. General Provisions..............................................18
15.1 Effective Date of the Plan......................................18
15.2 Term of Plan....................................................18
15.3 Governing Law...................................................18
15.4 Unfunded Status of Plan.........................................18
15.5 Headings........................................................19
15.6 Severability....................................................19
004.132335.5
2
004.132335.5
REGENCY REALTY CORPORATION
1993 LONG TERM OMNIBUS PLAN
Article I. Purpose
1.1 Purpose. The purpose of the Regency Realty Corporation 1993 Long Term
Omnibus Plan, as amended (the "Plan"), is to assist Regency Realty Corporation
(the "Company"), together with any successor thereto, and its Affiliates, to
attract and retain highly competent individuals to serve as Key Employees and as
Non-Employee Directors who will contribute to the Company's success, and to
motivate such Non-Employee Directors and Key Employees to achieve long-term
objectives which will inure to the benefit of all shareholders of the Company.
1.2 Adoption. The Plan has been approved by the Board of Directors of the
Company subject to the approval of the Company's shareholders.
Article II. Definitions
For purposes of this Plan, capitalized terms shall have the following
meanings:
2.1 Affiliate means any entity of which shares (or other ownership interests)
having 50 percent or more of the voting power are owned or controlled, directly
or indirectly, by the Company. "Affiliate" also includes, other than for
purposes of issuance of Incentive Stock Option Awards under the Plan, Regency
Realty Group, Inc. and its wholly-owned subsidiaries.
2.2 Annual Retainer means the total amount each Non-Employee Director is
entitled to receive as annual director's fees, including fees for service as
committee member and chair, for serving as a director of the Company, and any
attendance or other director fees or payments for other services of the
Non-Employee Director to the Company or its Affiliates, at the rate in effect on
the date an Award is granted to such Non-Employee Director pursuant to Article
XI.
2.3 Award means any Non-Qualified Stock Options or Incentive Stock Options,
Stock Appreciation Rights, Restricted Stock, Stock Purchase Awards, Performance
Awards, or any other award made under the terms of the Plan (other than Shares
acquired by Non-Employee Directors pursuant to Article XII), or any Award
granted to a Non-Employee Director pursuant to Article XI.
2.4 Award Agreement means a written agreement, contract, or other instrument or
document specifically setting forth the terms and conditions of any Award
granted under the Plan.
2.5 Board means the Board of Directors of the Company.
2.6 Code means the Internal Revenue Code of 1986, as amended from time to time.
2.7 Committee means a committee of the Board designated by the Board to
administer the Plan and composed of not less than two directors.
2.8 Company Matching Contribution means the amount contributed by the Company
pursuant to Section 12.2 based on the amount of a Non-Employee Director's Total
Purchases.
2.9 DEU Option means an Option that also carries the right to receive Dividend
Equivalent Units.
2.10 Dividend Equivalent Account means an account established for a Participant
pursuant to Section 6.2 to which there are credited Dividend Equivalent Units
for any DEU Option held by the Participant.
2.11 Dividend Equivalent Units means the right to receive additional Shares,
based on dividends paid on Shares, which right may be awarded with respect to an
Option as described in Section 6.2.
2.12 Exchange Act means the Securities Exchange Act of 1934, as amended.
2.13 Fair Market Value means, with respect to any property (including, without
limitation, any Shares or other securities), the fair market value of such
property determined by such methods or procedures as shall be established from
time to time by the Committee.
2.14 Incentive Stock Option means an Option designated as an incentive stock
option as defined in Code Section 422.
2.15 Key Employee means any officer or other key employee of the Company or of
any Affiliate who is responsible for or contributes to the management, growth,
or profitability of the business of the Company or any Affiliate as determined
by the Committee. For purposes of the grant of substitute options pursuant to
the PRT Merger Agreement, each of Dennis H. Alberts, Jane E. Mody and Joshua M.
Brown shall be deemed to be a Key Employee even though such person may not be a
Key Employee of the Company or of any Affiliate. In connection with any merger,
acquisition or other business combination to which the Company or any Affiliate
is a party, the Board is authorized to designate other persons who may be deemed
Key Employees for purposes of the Plan (other than the award of Incentive Stock
Options) where such persons are key employees of another party to the business
combination (or key employees of any affiliate of such party) but do not become
employees of the Company or any Affiliate following the business combination,
provided that the Board determines that granting substitute Awards under the
Plan, in place of outstanding awards held by the recipient under one or more
plans of the predecessor employer, constitutes appropriate severance
compensation.
2.16 Net Dividend Rate means as to any dividend record date the cash dividend in
question computed on an annualized basis, divided by the exercise price of the
DEU Option, less the average annual dividend yield on the date the DEU Option
was awarded for the companies included in the Standard and Poors 500 Index (or
such other similar index selected by the Committee), as determined under
procedures established by the Committee.
2.17 Non-Employee Director means each member of the Board who is not an employee
of the Company or any Affiliate.
2.18 Non-Qualified Stock Option means an Option that is not an Incentive Stock
Option as defined by Code Section 422.
2.19 Option means any option to purchase Shares granted pursuant to the Plan,
including any reload feature which also may be awarded.
2.20 PRT Merger Agreement means the Agreement and Plan of Merger dated September
23, 1998 between the Company and Pacific Retail Trust.
2.21 Participant shall mean any Key Employee (referred to as a Key Employee
Participant) or any Non-Employee Director (referred to as a Non-Employee
Director Participant) receiving an Award under the Plan.
2.22 Performance Award means the right, granted pursuant to Article IX, to
receive an Award, payable in cash or Shares or a combination of both at the end
of a specified period for which performance goals have been established.
2.23 Plan means the Regency Realty Corporation 1993 Long Term Omnibus Plan as
set forth herein, and as the same may be amended from time to time.
2.24 Plan Year means the twelve month period ending on any December 31.
2.25 Quarterly Period means a consecutive three month period commencing on the
first day of each January, April, July and October.
2.26 Released Securities mean Shares of Restricted Stock with respect to which
all applicable restrictions have expired, lapsed, or been waived.
2.27 Restricted Stock means Shares subject to restrictions imposed in connection
with Awards granted under the Plan.
2.28 Rule 16b-3 means Rule 16b-3 as promulgated by the Securities and Exchange
Commission under Section 16 of the Exchange Act, as the same may be amended from
time to time, and any successor rule.
2.29 Share Equivalents means securities of the Company or any Affiliate which
are convertible into or exchangeable for Shares, including units of limited
partnership interest of Regency Centers, L.P. which are exchangeable for Shares,
but shall exclude Options and any Shares of special common stock of the Company
counted as Shares.
2.30 Shares mean the shares of common stock of the Company, $.01 par value per
share, and such other securities or property as may become subject to Awards
pursuant to an adjustment made under Section 4.3 of the Plan. Shares shall also
include shares of special common stock of the Company, $.01 par value per share,
except that if shares of special common stock are convertible into a different
number of shares of common stock, such shares of special common stock shall be
treated as Share Equivalents.
2.31 Share Value means the value of a Share based on the average of the closing
prices of a Share, as determined by the Committee, during the Quarterly Period.
2.32 Stock Appreciation Rights mean awards granted in accordance with Article
VI.
2.33 Stock Purchase Award means an Award, granted in accordance with Article
VIII, of the right to acquire Shares of the Company.
Article III.......Administration
3.1 Committee. The Plan will be administered by the Committee; provided,
however, that if at any time the Committee shall not be in existence, the
functions of the Committee shall be exercised by the Board. Subject to the terms
of the Plan and applicable law, the Committee shall have full power and
authority to: (i) designate Key Employees to be Participants; (ii) determine the
type or types of Awards to be granted to Key Employee Participants under the
Plan; (iii) determine the number of Shares to be covered by (or with respect to
which payments, rights, or other matters are to be calculated in connection
with) Awards granted to Key Employee Participants; (iv) determine the terms and
conditions of any Award granted to a Key Employee Participant; (v) determine
whether, to what extent, and under what circumstances Awards granted to Key
Employee Participants may be settled or exercised in cash, Shares, other
securities, other awards, or other property, or canceled, forfeited, or
suspended to the extent permitted in Sections 13.10--13.12 of the Plan, and the
method or methods by which Awards may be settled, exercised, canceled,
forfeited, or suspended; (vi) determine whether, to what extent, and under what
circumstances cash, Shares, other securities, other Awards, other property, and
other amounts payable with respect to an Award granted to Key Employee
Participants under the Plan shall be deferred either automatically or at the
election of the holder thereof; (vii) interpret and administer the Plan and any
instrument or agreement relating to, or Award made under, the Plan (including,
without limitation, any Award Agreement); (viii) establish, amend, suspend, or
waive such rules and regulations and appoint such agents as it shall deem
appropriate for the proper administration of the Plan; and (ix) make any other
determination and take any other action that the Committee deems necessary or
desirable for the administration of the Plan. Unless otherwise expressly
provided in the Plan, all designations, determinations, interpretations, and
other decisions under or with respect to the Plan or any Award shall be within
the discretion of the Committee, may be made at any time, and shall be final,
conclusive, and binding upon all persons, including the Company, any Affiliate,
any Key Employee Participant, any Non-Employee Director Participant, any holder
or beneficiary of any Award, any shareholder, and any employee of the Company or
of any Affiliate. Option Awards to Non-Employee Directors under Section 11.1 of
the Plan shall be automatic and the amount and terms of such Awards shall be
determined as provided in Article XI of the Plan.
The Committee shall solicit and consider the recommendations of the Chief
Executive Officer of the Company with regard to, among other things, the
designation of Key Employee Participants, the type of Awards to be granted under
the Plan to such Key Employee Participants and the number of Shares to be
subject thereto, and the other terms and conditions of such Awards.
3.2 Delegation of Authority. To the extent permitted by applicable law, the
Board may, in its discretion, delegate to another committee of the Board or to
one or more officers of the Company any or all of the authority and
responsibility of the Committee with respect to awards to Key Employee
Participants other than those who are subject to the provisions of Section 16 of
the Exchange Act at the time any such delegated authority or responsibility is
exercised. To the extent that the Board has delegated to such other committee or
one or more officers the authority and responsibility of the Committee, all
references to the Committee herein shall include such other committee or one or
more officers. In addition, the Committee may appoint an administrator to
administer the Non-Employee Director Share purchase program set forth in Article
XII and assist the Committee with the related recordkeeping and other
ministerial type functions.
Article IV. Shares
4.1 Number of Shares Available. The maximum number of Shares which may be issued
under the Plan is the lesser of (1) 8,520,000 Shares, or (2) 12 percent of all
Shares and Share Equivalents then outstanding, except that this 12 percent
limitation shall not invalidate any Awards made prior to a decrease in the
number of outstanding Shares or Share Equivalents even though such Awards have
resulted or may result in Shares constituting more than 12 percent of the
outstanding Shares and Share Equivalents being available for issuance under the
Plan. Shares available under the Plan which are not awarded in one particular
year may be awarded in subsequent years. Any and all Shares may be issued in
respect of any of the types of Awards. The Shares to be offered under the Plan
may be authorized and unissued Shares or treasury Shares. The number of Shares
covered by an Award under the Plan, or to which such Award relates, shall be
counted on the date of grant of such Award against the number of Shares
available for granting Awards under the Plan.
4.2 Shares Subject to Terminated Awards. The (i) Shares covered by any
unexercised portions of terminated Options, (ii) Shares forfeited as provided
under the Plan, and (iii) Shares subject to any Awards which are otherwise
surrendered by the Participant and as to which Shares no Participant has
received any payment or other benefit of ownership with respect thereto, may
again be subject to new Awards under the Plan. In the event the purchase price
of an Option is paid in whole or in part through the delivery of Shares, the
gross number of Shares issuable in connection with the exercise of the Option
shall not again be available for the grant of Awards under the Plan. Shares used
to measure the amount payable to a Participant in respect of an earned
Performance Award shall not again be available for the grant of Awards under the
Plan. Shares issued in payment of Performance Awards which are denominated in
cash amounts shall not again be available for the grant of Awards under the
Plan.
4.3 Adjustments. In the event that the Committee shall determine that any
dividend or other distribution (whether in the form of cash, Shares, other
securities, or other property), recapitalization, stock split, reverse stock
split, reorganization, merger, consolidation, split-up, spin-off, combination,
repurchase, or exchange of securities of the Company, 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 benefits or potential benefits intended to be made available under the Plan,
then the Committee may, in such manner as it may deem equitable, adjust any or
all of (i) the number and type of Shares subject to the Plan and which
thereafter may be issued under the Plan, (ii) the number and type of Shares
subject to outstanding Awards, (iii) the grant, purchase, or exercise price with
respect to any Award, and (iv) the number and type of outstanding Dividend
Equivalent Units, or, if deemed appropriate, make provisions for a cash payment
to the holder of an outstanding Award; provided, however, in each case, that
with respect to Awards of 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 or any successor provision thereto; and provided
further, however, that the number of Shares subject to any Award payable or
denominated in Shares shall always be a whole number. Notwithstanding the
foregoing, Nonqualified Stock Option Awards subject to grant or previously
granted to Non-Employee Directors under the Plan at the time of any event
described in the preceding sentence shall be subject to only such adjustment as
shall be necessary to maintain the proportionate interest of the optionee and
preserve, without exceeding, the value of such Option Awards.
Article V. Participation
5.1 Eligible Participants. Any Key Employee, including any executive officer or
employee-director of the Company or of any Affiliate, shall be eligible to be
designated a Key Employee Participant. Key Employees who hold unexercised
options under the Pacific Retail Trust 1996 Share Incentive Plan and became
employees of the Company or any of its Affiliates as a result of the merger
shall receive substitute options pursuant to and on the terms set forth in the
PRT Merger Agreement. All Non-Employee Directors shall be Participants and
receive Awards as provided in Article XI of the Plan (the provisions of which
are automatic and non-discretionary in operation), shall have the right to
receive Options under Article VI, and shall have the right to purchase Shares
from the Company pursuant to Article XII.
Article VI. Stock Options and Stock Appreciation Rights
6.1 Grant of Option. The Committee is hereby authorized to grant Options to Key
Employee Participants as set forth below and with such additional terms and
conditions, in either case not inconsistent with the provisions of the Plan, as
the Committee shall determine. The Board is hereby authorized to grant Options
to Non-Employee Directors as set forth below with such additional terms and
conditions, in either case not inconsistent with the provisions of the Plan, as
the Board shall determine, and any reference to the Committee in this Article V
shall mean the Board with reference to any Options granted to Non-Employee
Directors under this Article V.
(a) Exercise Price. The exercise price per Share purchasable under an 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 Share on the date of grant of such
Option, which shall not be earlier than the date on which the Committee approves
such grant.
(b) Option Term. The term of each Option shall be fixed by the Committee,
but no Incentive Stock Option shall be exercisable more than ten years after
the date of grant.
(c) Exercisability and Method of Exercise. An Option Award may contain such
performance targets and waiting periods, and shall become exercisable in such
manner and within such period or periods and in such installments or otherwise,
as shall be determined by the Committee at the time of grant. The Committee
shall also determine the method or methods by which, and the form or forms,
including, without limitation, cash, Shares, other securities, other Awards, or
other property, or any combination thereof, having a Fair Market Value on the
exercise date equal to the relevant exercise price, in which payment of the
exercise price with respect to any Option may be made or deemed to have been
made (including payment in accordance with a cashless exercise program under
which, if so instructed by the Participant, Shares may be issued directly to the
Participant's broker or dealer upon receipt of the purchase price in cash from
the broker or dealer). No Shares shall be issued until payment, as provided
herein, therefor has been made. A Participant shall generally have the rights to
dividends or other rights of a shareholder with respect to Shares subject to the
Option when the Participant has given written notice of exercise and has paid
for such Shares as provided herein. Notwithstanding the foregoing, if payment in
full or in part has been made in the form of Restricted Stock, an equivalent
number of Shares issued on exercise of the Option shall be subject to the same
restrictions and conditions for the remainder of the Award Period applicable to
the Restricted Stock surrendered therefor. In the case of Incentive Stock
Options the right to make payment of the purchase price in the form of Shares
may be authorized only at the time of grant.
(d) Incentive Stock Options. The maximum number of Incentive Options which may
be awarded under the Plan is 8,520,000. The terms of any Incentive Stock Option
granted under the Plan shall comply in all respects with the provisions of Code
Section 422, or any successor provision thereto, and any regulations promulgated
thereunder.
(e) Reload Feature. The Committee shall have the authority to specify, at the
time of grant or, with respect to Non-qualified Stock Options, at or after the
time of grant, that a Key Employee Participant's Options, in part or in whole,
shall include a "reload feature." The reload feature is a provision which the
Committee may, but is not required to, include in any Option granted to Key
Employee Participants under this Plan to the effect that at such time as the
original Option is exercised, the optionee shall automatically be granted a new
Option pursuant hereto to purchase a number of Shares equal to the number of
Shares utilized by the optionee to pay the option exercise price on the original
option. A reload Option shall have an exercise price equal to the Fair Market
Value of the Shares on the date it is granted and shall expire on the stated
expiration date of the original Option. A reload Option shall contain such other
terms and conditions as the Committee, in its discretion, deems to be desirable.
6.2 Award of Dividend Equivalent Units. If so specified by the Committee, a
Participant who is awarded an Option under the Plan shall also receive Dividend
Equivalent Units with respect to such Option ("DEU Option"), as follows, and
each Non-Employee Director receiving an Option under Section 11.1(a) at any time
after the 1999 annual meeting shall receive Dividend Equivalent Units with
respect to such DEU Option, as follows:
(a) With respect to the number of Shares subject to a DEU Option, a notional
number of shares shall be credited to an account ("Dividend Equivalent Account")
to be established for the Participant, which account shall be unfunded and
unsecured and shall be held with the general assets of the Company. Each such
credit shall be recorded as of the first business day of the calendar quarter
immediately following each record date for a cash dividend declared on Shares
for any DEU Option which is outstanding on such record date. The notional share
amounts (such amounts, together with any amounts credited pursuant to Section
6.2(b), the "Dividend Equivalent Units") credited to the Participant's Dividend
Equivalent Account shall be the aggregate number of Shares, rounded to the
nearest whole Share, derived by (1) multiplying (x) the Net Dividend Rate by (y)
the exercise price of the DEU Option, (2) dividing the product thereof by four
(or whatever other multiplier was used in arriving at the annualized dividend
rate), (3) multiplying the resultant quotient by the number of Shares subject to
the unexercised portion of the DEU Option as of the dividend record date, and
(4) dividing the product thereof by the average closing price of a Share during
the immediately preceding calendar quarter on the principal exchange on which
the Shares are traded. For example, assume that (1) on January 1, 2000 the
Committee awards a DEU Option to a Key Employee for 1,000 Shares having an
exercise price of $25 per Share, (2) on January 1, 2000, the average annual
yield of the Standard and Poors 500 Index is 1.5%, (3) the Board declares a
quarterly dividend of $.50 for shareholders of record as of February 10, 2000,
(4) the Participant has not exercised the DEU Option as of February 10, 2000,
and (5) the average closing price for Shares on the New York Stock Exchange
during the calendar quarter ending March 31, 2000 is $26. The Net Dividend Rate
for the DEU Option is 4 times .$50 divided by $25, i.e., 8.0%, less 1.5%, or
6.5%. As of April 3, 2000, the first business day of the next calendar quarter,
there would be credited to the Participant's Dividend Equivalent Account the
number of Dividend Equivalent Units as follows: First, 6.5% times $25 divided by
4 times 1,000 Shares equals $406.25. Next, $406.25 divided by $26 equals 15.625
Shares, or 16 Dividend Equivalent Units, rounded to the nearest whole number.
(b) Dividend Equivalent Units shall be credited for each Dividend Equivalent
Unit on the same basis as on the Shares subject to the unexercised portion of
the DEU Option, except that the actual dividend rate per Share shall be used
instead of the Net Dividend Rate.
(c) Unless determined otherwise by the Committee with respect to DEU Options
awarded to Key Employees, Dividend Equivalent Units (including Dividend
Equivalent Units paid on DEU Options issued to Non-Employee Director pursuant to
Section 11.1(a)) shall be subject to the following terms and conditions:
(1) Dividend Equivalent Units shall vest in accordance with the vesting
schedule applicable to the DEU Option with respect to which the Dividend
Equivalent Unit was awarded.
(2) All Dividend Equivalent Units which are not vested upon the Participant's
date of termination of employment (or termination as a Non-Employee
Director, as the case may be) shall be forfeited.
(3) At the election of the Participant, any vested Dividend Equivalent Units
may be withdrawn from the Participant's Dividend Equivalent Account, upon
delivery of written notice to the Committee stating the number of vested
Dividend Equivalent Units being withdrawn. As promptly as practicable
after receipt of written notice of withdrawal, the Committee shall cause
one whole Share to be issued for each Dividend Equivalent Unit so
withdrawn. Any fractional Dividend Equivalent Units withdrawn from the
Participant's Dividend Equivalent Account shall be settled in cash, based
on the Fair Market Value of a Share on the date of the notice of
withdrawal. The Participant shall be deemed to have withdrawn all vested
Dividend Equivalent Units on the date of termination of employment (or
termination as a Non-Employee Director, as the case may be.
(d) The Committee shall have sole and absolute authority to award other types of
Dividend Equivalent Units to Key Employees from time to time, and the Board of
Directors shall have sole and absolute authority to award other types of
Dividend Equivalent Units to Non-Employee Directors from time to time. In
addition, the Committee shall have sole and absolute authority to revise the
procedure for determining the value of Shares, the Net Dividend Rate and the
crediting date for Dividend Equivalent Units if the Committee determines, in its
sole and absolute discretion, that such revised procedure simplifies the
administration of Dividend Equivalent Units or more fairly reflects the intent
of this Section 6.2 and the Committee determines that the impact of such
revision is not significant in terms of the amount to be credited to Dividend
Equivalent Accounts.
6.3 Stock Appreciation Rights. The Committee is hereby authorized to grant Stock
Appreciation Rights to Key Employee Participants. Stock Appreciation Rights
granted in tandem with Incentive Stock Options may only be granted
simultaneously with the grant of the related Incentive Stock Option to such
Participant. Subject to the terms of the Plan, the grant price, term, methods of
exercise, methods of settlement (including whether Stock Appreciation Rights
will be settled in cash, Shares, other securities, other Awards, or other
property, or any combination thereof), and any other terms and conditions of any
Stock Appreciation Right shall be as determined by the Committee. The Committee
may impose such conditions or restrictions on the exercise of any Stock
Appreciation Right as it may deem appropriate.
6.4 Compliance With Code Section 162(m). Notwithstanding any other provision of
the Plan, the maximum number of Options and Stock Appreciation Rights, in the
aggregate, which may be awarded to any individual Key Employee Participant
during any calendar year under the Plan is 400,000 Shares and/or Rights.
Article VII.......Restricted Stock
7.1 Restricted Stock Awards. The Committee is hereby authorized to grant Awards
of Restricted Stock to Key Employee Participants as set forth below and with
such additional terms and conditions, in either case not inconsistent with the
provisions of the Plan, as the Committee shall determine. Non-Employee Directors
shall not be eligible to be granted Restricted Stock under this Article VII.
(a) Restrictions. The Committee may grant to any Key Employee an Award of
Restricted Stock in such number, and subject to such terms and conditions
relating to forfeitability (whether based on performance standards, periods of
service or otherwise) and relating to restrictions (including, without
limitation, any limitation on the right to vote a share of Restricted Stock or
the right to receive any dividend or other right or property), which
restrictions may lapse separately or in combination at such time or times, in
such installments or otherwise, as the Committee may deem appropriate.
(b) Registration. Any Restricted Stock granted under the Plan to a Key Employee
Participant may be evidenced in such manner as the Committee may deem
appropriate, including, without limitation, book-entry registration or issuance
of a stock certificate or certificates. In the event any stock certificate is
issued in respect of Shares of Restricted Stock granted under the Plan to a Key
Employee Participant, such certificate shall be registered in the name of the
employee and shall bear an appropriate legend (as determined by the Committee)
referring to the terms, conditions, and restrictions applicable to such
Restricted Stock.
(c) Shareholder Rights. Unless otherwise provided by an Award Agreement, a Key
Employee Participant shall become a shareholder of the Company with respect to
all Shares subject to the Award Agreement and shall have all of the rights of a
shareholder, including, but not limited to, the right to vote such Shares and
the right to receive dividends (or dividend equivalents); provided, however,
that any Shares distributed as a dividend or otherwise with respect to any
Restricted Stock as to which the restrictions have not yet lapsed shall be
subject to the same restrictions, and evidenced in the same manner, as such
Restricted Stock and shall be evidenced in the same manner as such Restricted
Stock.
(d) Payment of Restricted Stock. At the end of the applicable restriction period
relating to Restricted Stock granted to a Key Employee Participant, one or more
stock certificates for the appropriate number of Shares, free of restrictions,
shall be delivered to the employee, or, if the employee received stock
certificates representing the Restricted Stock at the time of grant, the legends
placed on such certificates shall be removed.
(e) Forfeiture. Except as otherwise determined by the Committee, upon
termination of employment of a Key Employee (as determined under criteria
established by the Committee) for any reason during the applicable restriction
period, all Shares of Restricted Stock still subject to restriction shall be
forfeited by the employee and reacquired by the Company; provided, however, that
the Committee may, when it finds that a waiver would be in the interests of the
Company, waive in whole or in part any or all remaining restrictions with
respect to Shares of Restricted Stock held by a Key Employee Participant.
Article VIII......Stock Purchase Awards
8.1 Grant of Stock Purchase Award. The Committee is hereby authorized to grant
Stock Purchase Awards to Key Employee Participants as set forth below and with
such additional terms and conditions, in either case not inconsistent with the
provisions of the Plan, as the Committee shall determine. Non-Employee Directors
shall not be eligible to be granted Stock Purchase Awards under the Plan.
(a) Issuance. A Stock Purchase Award shall consist of the right to purchase
Shares of the Company and to pay for such Shares with a stock purchase loan, the
terms of which shall be as set forth in the Award Agreement and which may
include forgiveness by the Company of a portion of such indebtedness over such
time, or pursuant to such schedule, as is determined by the Committee and set
forth in such Award Agreement. The Committee may, when it finds that additional
forgiveness by the Company of indebtedness under a stock purchase loan is in the
interest of the Company, forgive any or all remaining indebtedness with respect
to Shares covered by such Award Agreement whether or not such forgiveness is
specifically provided for in such Award Agreement.
(b) Tax Loan. The Committee may also provide a "tax loan" to Key Employee
Participants equal to a percentage of any federal, state, and local taxes which
such Participant incurs as a result of the forgiveness of the loan described in
(a), above.
Article IX. Performance Awards
9.1 Performance Awards. The Committee is hereby authorized to grant Performance
Awards to Key Employee Participants as set forth below and with such additional
terms and conditions, in either case not inconsistent with the provisions of the
Plan, as the Committee shall determine. Non-Employee Directors shall not be
eligible to be granted Performance Awards under the Plan.
(a) Issuance. A Performance Award shall consist of the right to receive a
payment (measured by (i) the Fair Market Value of a specified number of Shares
at the end of the Award period or (ii) the increase in the Fair Market Value of
a specified number of Shares during the Award period or (iii) a fixed cash
amount payable at the end of the Award period) contingent upon the extent to
which certain predetermined performance targets have been met during an Award
period.
(b) Performance Targets. The performance targets may include individual
performance standards or specified levels of funds from operations, earnings per
share, return on investment, return on shareholder equity and/or such other
goals related to the performance of the Company as may be established by the
Committee in its sole discretion. The Committee, in its sole discretion, but
only under circumstances when events or transactions occur to cause the
performance targets to be an inappropriate measure of achievement as determined
by the Committee, may change the performance targets for any Award period at any
time prior to the final determination of the Award.
(c) Earning Performance Awards. The Committee at the date of grant shall
prescribe a formula to determine the percentage of the Performance Award to be
earned based upon the degree of attainment of performance targets. The degree of
attainment of performance targets shall be determined as of the last day of the
Award period. In the event the minimum performance targets established by the
Committee are not achieved, no payment shall be made to the Participant.
(d) Payment of Earned Performance Awards. Payments of earned Performance Awards
shall be made in cash or Shares (based on the Fair Market Value of a Share on
the last day of the Award period), or a combination of cash and Shares at the
sole discretion of the Committee. Payment normally will be made as soon as is
practicable following the end of an Award period; the Committee, however, may
permit deferral of the payment of all or a portion of a Performance Award
payable in cash upon the request of the Participant timely made in accordance
with rules prescribed by the Committee. Deferred amounts may generate earnings
for the Participant under the conditions of a separate agreement approved by the
Committee and executed by the Participant. The Committee, in its sole
discretion, may define in the Award Agreement such other conditions of payment
of earned Performance Awards as it may deem desirable in carrying out the
purposes of the Plan.
Article X. Other Share-Based Awards
10.1 Grant of Other Awards. Other Awards, valued in whole or in part by
reference to, or otherwise based on, Shares may be granted either alone or in
addition to or in conjunction with other Awards under the Plan by the Committee
to Key Employee Participants or by the Board to Non-Employee Directors. Subject
to the provisions of the Plan, the Committee (or the Board in the case of an
Award to a Non-Employee Director) shall have authority to determine the persons
to whom and the time or times at which such Awards shall be made, the number of
Shares to be granted pursuant to such Awards, and all other conditions of the
Awards. Any such Award shall be confirmed by an Award Agreement executed by the
Committee and the Participant, which Award Agreement shall contain such
provisions as the Committee (or the Board in the case of an Award to a
Non-Employee Director) determines to be necessary or appropriate to carry out
the intent of this Plan with respect to such Award.
10.2 Terms of Other Awards. In addition to the terms and conditions specified in
the Award Agreement, Shares issued as a bonus pursuant to this Article X shall
be issued for such consideration as the Committee (or the Board in the case of
an Award to a Non-Employee Director) shall determine, in its sole discretion,
but purchase rights shall be priced at 100% of Fair Market Value on the date of
the Award.
Article XI. Non-Employee Director Awards
11.1 Automatic Grant of Non-Employee Director Option Awards.
(a) Periodic Option Awards. Each person serving as a Non-Employee Director of
the Company on December 31, 1994, and December 31 of each succeeding year,
through and including December 31, 1998, shall, as of each such date, be granted
a Nonqualified Stock Option Award consisting of an option to purchase 1,000
Shares. Each person serving as a Non-Employee Director immediately following any
annual meeting of shareholders of the Company, beginning with the 1999 annual
meeting, and who is not initially elected to membership on the Board at the
annual meeting in question shall be granted on the date of such annual meeting a
Nonqualified Stock Option Award consisting of an option to purchase 5,000 Shares
and the right to receive Dividend Equivalent Units with respect thereto. The
exercise price for such Options shall be the greater of the Fair Market Value of
the Shares on the date of such grant or the average of the closing prices of
Shares, as determined by the Committee, on the 20 business days preceding the
date of such grant. The Dividend Equivalent Units shall have the terms and
conditions set forth in Section 6.2.
(b) Initial Option Awards. Upon initial election to membership on the Board, at
any time prior to January 1, 1999, each Non-Employee Director joining the Board
for the first time shall receive a Nonqualified Stock Option Award consisting of
an Option to purchase 2,000 Shares, with an exercise price equal to the greater
of the Fair Market Value of the Shares on the date of such grant or the average
trading price of Shares, as determined by the Committee, on the 20 business days
preceding the date of such grant. Non-Employee Directors who (1) were directors
of Pacific Retail Trust immediately prior to the effective time of the merger of
Pacific Retail Trust into the Company, (2) hold unexercised options under the
Pacific Retail Trust 1996 Share Incentive Plan, and (3) become non-employee
directors of the Company, shall receive substitute options pursuant to and on
the terms set forth in the Merger Agreement.
(c) Restrictions. A Non-Employee Director must serve continuously as a
Non-Employee Director of the Company for a period of twelve consecutive months
from the date of grant of an Option Award under this Article XI before he or she
can exercise any part of such Award. On and after the first anniversary of the
date of grant, the Non-Employee Director may exercise an Award granted under
this Article XI prior to the 1999 annual meeting of shareholders with respect to
any or all Shares covered thereby, at any time or from time to time before the
expiration of the stated term of the Award. Awards granted under this Article XI
after the 1999 annual meeting of shareholders become exercisable in 25%
increments on each anniversary date of grant, beginning with the first
anniversary date and ending on the fourth anniversary date. Each Award granted
under this Article XI shall expire ten years (10) from the date of grant.
(d) Termination.
(1) If a Non-Employee Director's service with the Company terminates by reason
of death or disability (within the meaning of Code Section 22(a)(3)) any
Option Award granted under this Article XI to such Non-Employee Director
prior to the 1999 annual meeting of shareholders may be exercised for a
period of two (2) years from the date of such termination or until the
expiration of the Award, whichever is shorter, to the extent to which the
individual would on the date of exercise have been entitled to exercise
the Award if such individual had continued to serve as a Non-Employee
Director. If a Non-Employee Director's service with the Company terminates
other than by reason of death or disability, under mutually satisfactory
conditions, any such Award held by such Non-Employee Director may be
exercised for a period of two (2) years from the date of such termination,
or until the expiration of the stated term of the Award, whichever is
shorter, to the extent to which the individual would on the date of
exercise have been entitled to exercise the Award if such individual had
continued to serve as a Non-Employee Director.
(2) If a Non Employee Director's service with the Company terminates by reason
of death, disability (within the meaning of Code Section 22(a)(3)) or
involuntary termination for any other reason, any Option Award granted
under this Article XI to such Non-Employee Director after the 1999 annual
meeting shall vest in full upon the date of termination and may be
exercised for a period of two (2) years from the date of such termination,
or until expiration of the Award, whichever is shorter.
(e) Other Provisions. All applicable provisions of the Plan not
inconsistent with this Section 11.1 shall apply to Option Awards granted to
Non-Employee Directors.
11.2 Payment of Annual Retainer.
(a) Payment in Shares. During the term of this Plan, each Non-Employee Director
shall receive his or her Annual Retainer, in the form of quarterly payments in
arrears, in the form of Shares, unless the Non-Employee Director elects to
receive such payment in cash in accordance with paragraph (b), below. The total
number of Shares to be issued to a Non-Employee Director pursuant to this
Section 11.2 shall be determined by dividing the dollar amount of the Annual
Retainer due for the payment period (which shall be prorated in the event that
the Non-Employee Director serves for less than a full quarter based on the
number of days of service) by the average of the closing prices of Shares, as
determined by the Committee, during the quarter constituting the payment period.
In no event shall the Company be required to issue fractional Shares. Whenever
under the terms of this Section the issuance of a fractional Share would
otherwise be required, an amount in lieu thereof shall be paid in cash based
upon the Fair Market Value of such fractional share. The Shares issuable to
Non-Employee Directors hereunder shall be issued and any remaining cash portion
of the Annual Retainer shall be paid on the first business day immediately
following the payment period. Shares issued pursuant to this Section 11.2 shall
not be transferable unless registered under the Securities Act of 1933, as
amended, or in the opinion of counsel to the Company, such registration is not
required.
(b) Optional Payment in Cash. Non-Employee Directors who would otherwise receive
payment of their Annual Retainer in Shares may make a written election prior to
the payment date, in the manner and form prescribed for this purpose by the
Committee, to receive payment in cash.
Article XII.......Non-Employee Director Share Purchase Rights
12.1 Share Purchase Rights.
(a) Annual Purchases. Each Plan Year each Non-Employee Director shall have the
right to purchase from the Company such number of Shares whose aggregate Share
Value does not exceed $20,000. Subject to the limitations in the Plan,
Non-Employee Directors may exercise their rights to purchase Shares each
Quarterly Period by completing an application on a form prescribed by the
Committee. The application must be submitted to the Committee by the last
business day of a Quarterly Period and accompanied by payment in full in cash or
its equivalent for the aggregate Share Value of Shares to be purchased (the
"Purchase Price"). The number of Shares to be purchased will be determined by
dividing the Purchase Price by the Share Value of a Share for the Quarterly
Period. The Committee shall establish and maintain a separate account
("Account") for each participating Non-Employee Director. The number of Shares
purchased during the Quarterly Period will be credited to the Non-Employee
Directors' Accounts. No interest will be paid on funds held by the Committee
pending determination of the number of Shares to be purchased during a Quarterly
Period.
(b) Cash Dividends. All cash dividends paid by the Company on Shares held in a
Non-Employee Director's Account will be paid in cash, unless the Non-Employee
Director elects to have any such cash dividends automatically reinvested in
additional Shares and credited to his account. The election shall be made in
writing in accordance with such rules and procedures as the Committee may
determine.
(c) Shareholder Rights. A Non-Employee Director will become a shareholder with
respect to all Shares credited to his Account and shall have all of the rights
of a shareholder, including but not limited to the right to vote Shares and the
right to receive dividends.
12.2 Company Matching Contribution.
(a) Amount of Match. The Company will contribute to a Non-Employee Director's
Account a Company Matching Contribution equal to up to 50% of the amount of the
Non-Employee Director's Total Purchases (as defined below) during a Quarterly
Period, subject to a maximum Company Matching Contribution of $10,000 per Plan
Year. The Company Matching Contribution shall be paid to the Committee within
ten (10) business days following the end of the applicable Quarterly Period,
subject to deferral pursuant to Section 12.3. The number of Shares credited to a
Non-Employee Director's Account will equal the amount of the Company Matching
Contribution divided by the Share Value of a Share for the Quarterly Period.
(b) Total Purchases. A Non-Employee Director's Total Purchases during a
Quarterly Period shall equal the sum of the aggregate Share Value of Director
Shares purchased by the Non-Employee Director from the Company during the
Quarterly Period pursuant to Section 12.1(a), the dollar amount of any Shares
purchased by the Non-Employee Director under the Company's dividend reinvestment
plan (including purchases with optional cash payments) during the Quarterly
Period, and the dollar amount of any Shares purchased by the Non-Employee
Director in the open market during the Quarterly Period, as evidenced by
confirmation slips or other similar documentation provided to the Committee.
12.3 Deferral Election.
(a) Deferral. Each Non-Employee Director may elect to defer receiving all or any
portion of the Company Matching Contribution or the Annual Retainer that would
otherwise be paid in Shares pursuant to Section 11.2. A deferral election shall
be effective on the ____ day of the month that is coincident with or following
the date the election is delivered. A deferral election must be in writing and
delivered to the Committee.
(b) Stock Deferral Plan. All Shares deferred pursuant to Section 12.3(a)
shall be deferred into and subject to all of the terms and conditions of the
Company's Stock Deferral Plan.
12.4 Termination of Participation.
(a) Voluntary. A participating Non-Employee Director may terminate his Account
at any time by completing a form authorized by the Committee and delivering it
to the Committee. Promptly after receipt of the form, the Committee will
transfer all certificates representing full Shares in the Non-Employee
Director's Account to the Non-Employee Director and sell any fractional Shares
at the current market price. The Committee will remit the proceeds from the sale
of the fractional Shares less applicable brokerage fees to the Non-Employee
Director within a reasonable period of time thereafter. No interest will be
earned on the Account while it is awaiting payment.
(b) Termination of Director Status. Upon termination as a Non-Employee Director
of the Company for any reason, the Non-Employee Director's participation in the
Plan will cease. The former Non-Employee Director may either request the sale of
all Shares in his Account at current market price or the transfer of all
certificates representing full Shares in the Account to the former Non-Employer
Director. A former Non-Employee Director who directs the Committee to sell
Shares will be charged for the fees, commissions and other expenses incurred by
the Committee in connection with the sale. No interest will be paid on the
Account while it is awaiting payment.
12.5 Registration. Shares issued pursuant to this Article XII shall not be
transferrable unless registered under the Securities Act of 1933, as amended, or
in the opinion of counsel to the Company, such registration is not required.
Article XIII......Terms Applicable to All Awards Granted Under the Plan
13.1 Award Agreement. No person shall have any rights under any Award granted
under the Plan unless and until the Company and the Participant to whom such
Award shall have been granted shall have executed and delivered an Award
Agreement or received any other Award acknowledgment authorized by the Committee
expressly granting the Award to such person and containing provisions setting
forth the terms of the Award. If there is any conflict between the provisions of
an Award Agreement and the terms of the Plan, the terms of the Plan shall
control.
13.2 No Consideration for Awards. Awards shall be granted to Key Employee
Participants for no cash consideration unless otherwise determined by the
Committee. Non-Employee Director Awards under Article XI shall be granted for no
cash consideration unless otherwise required by law.
13.3 Awards May Be Granted Separately or Together; No Limitations on Other
Awards to Non-Employee Directors. Subject to the limitations of Section 6.2,
regarding Stock Appreciation Rights, Awards to Key Employee Participants under
the Plan may be granted either alone or in addition to, in tandem with, or in
substitution for any other Award or any award granted under any other plan of
the Company or any Affiliate and the terms and conditions of an Award need not
be the same with respect to each such Participant. Awards granted in addition to
or in tandem with other Awards, or in addition to or in tandem with awards
granted under any other plan of the Company or any Affiliate may be granted
either at the same time as or at a different time from the grant of such other
Awards or awards. Grants to the Non-Employee Directors pursuant to the Plan
shall not limit the rights of such Non-Employee Directors to receive awards or
other benefits provided under other plans of the Company or of any Affiliate.
13.4 Limitations on Transfer of Awards. Awards granted under the Plan shall not
be transferable other than by will or the laws of descent and distribution,
except that a Key Employee Participant or Non-Employee Director Participant may,
to the extent allowed by the Committee and in a manner specified by the
Committee, (a) designate in writing a beneficiary to exercise the Award after
the Key Employee Participant's or Non-Employee Director Participant's death, as
the case may be, and (b) transfer any award. No Award (other than Released
Securities), and no right under any such Award, may be pledged, alienated,
attached, or otherwise encumbered, and any purported pledge, alienation,
attachment, or encumbrance thereof shall be void and unenforceable against the
Company or any Affiliate.
13.5 Term. Except as otherwise provided in the Plan, the term of each Award
shall be for such period as may be determined by the Committee.
13.6 Taxes. The Company shall be entitled, if the Committee deems it necessary
or desirable, to withhold (or secure payment from the Participant in lieu of
withholding) the amount of any withholding or other tax required by law to be
withheld or paid by the Company with respect to any amount payable and/or Shares
issuable to such Participant under the Plan, or with respect to any income
recognized upon the lapse of restrictions applicable to an Award or upon a
disqualifying disposition of Shares received pursuant to the exercise of an
Incentive Stock Option, and the Company may defer payment or issuance of the
cash or Shares upon the grant, exercise or vesting of an Award unless
indemnified to its satisfaction against any liability for any such tax. The
amount of such withholding or tax payment shall be determined by the Committee
and shall be payable by the Participant at such time as the Committee
determines. The Committee may prescribe in each Award Agreement one or more
methods by which the Participant will be permitted to satisfy his or her tax
withholding obligation, which methods may include, without limitation, the
payment of cash by the Participant to the Company and the withholding from the
Award, at the appropriate time, of a number of Shares sufficient, based upon the
Fair Market Value of such Shares, to satisfy such tax withholding requirements.
The Committee shall be authorized, in its sole discretion, to establish such
rules and procedures relating to any such withholding methods as it deems
necessary or appropriate.
13.7 Rights and Status of Recipients. No Employee, Participant (other than a
Non-Employee Director Participant as provided in Article XI), or other person
shall have any claim or right to be granted an Award under this Plan. Neither
the Plan nor any action taken hereunder shall be construed as giving any
employee any right to be retained in the employ of the Company or any Affiliate.
The grant of an Award to a Non-Employee Director pursuant to Article XI of the
Plan shall confer no right on such Non-Employee Director to continue as a
director of the Company.
13.8 Awards Not Includable for Benefit Purposes. Income recognized by a
Participant pursuant to the provisions of the Plan shall not be included in the
determination of benefits under any employee pension benefit plan (as such term
is defined in Section 3(2) of the Employee Retirement Income Security Act of
1974, as amended) or group insurance or other benefit plans applicable to the
Participant which are maintained by the Company, except as may be provided under
the terms of such plans or determined by resolution of the Board.
13.9 Share Certificates; Representation by Key Employee Participants;
Registration Requirements. In addition to the restrictions imposed pursuant to
Article VII hereof, all certificates for Shares delivered under the Plan,
whether pursuant to any Award or the exercise thereof or otherwise, shall be
subject to such stop transfer orders and other restrictions as the Committee may
deem advisable under the Plan or the rules, regulations, and other requirements
of the Securities Exchange Commission, any stock exchange or other market upon
which such Shares are then listed or traded, and any applicable federal or state
securities laws, and the Committee may cause a legend or legends to be put on
any such certificates to make appropriate reference to such restrictions. The
Committee may require each Key Employee Participant or other person who acquires
Shares under the Plan by means of an Award originally made to a Key Employee
Participant to represent to the Company in writing that such Key Employee
Participant or other person is acquiring the Shares without a view to the
distribution thereof.
13.10 Amendments to Awards. The Committee may, in whole or in part, waive any
conditions or other restrictions with respect to, and may amend, alter, suspend,
discontinue, or terminate any Award granted under the Plan to a Key Employee
Participant, prospectively or retroactively, but no such action shall impair the
rights of any Key Employee Participant without his or her consent except as
provided in Sections 4.3, 9.1(b), and 13.11.
13.11 Adjustment to Awards Upon Certain Acquisitions. In addition to and not in
lieu of the authority granted the Committee under Section 4.3 hereof, in the
event the Company or any Affiliate shall assume outstanding employee awards or
the right or obligation to make future awards in connection with the acquisition
of another business or another corporation or business entity, the Committee may
make such adjustments, not inconsistent with the terms of the Plan, in the terms
of Awards granted to Key Employee Participants as it shall deem appropriate in
order to achieve reasonable comparability or other equitable relationship
between the assumed awards and the Awards granted under the Plan granted to Key
Employees as so adjusted.
13.12 Correction of Defects, Omissions, and Inconsistencies. The Committee may
correct any defect, supply any omission, or reconcile any inconsistency in any
Award or Award Agreement in the manner and to the extent it shall deem desirable
to carry the Plan into effect.
Article XIV.......Amendment and Termination
14.1 Amendment. The Board may amend, alter, suspend, discontinue, or terminate
the Plan or any part thereof at any time it is deemed necessary or appropriate;
provided, however, that no amendment, alteration, suspension, discontinuation or
termination of the Plan shall in any manner (except as otherwise provided in
this Article XIV) adversely affect any Award granted and then outstanding under
the Plan, without the consent of the respective Key Employee or Non-Employee
Director Participant, as the case may be; and provided, further, that
shareholder approval of any amendment of the Plan shall also be obtained if
otherwise required by (i) the Code or any rules promulgated thereunder (in order
to allow for Incentive Stock Options to be granted under the Plan or to enable
the Company to comply with the provisions of Section 162(m) of the Code so that
the Company can deduct compensation in excess of the limitation set forth
therein), or (ii) the listing requirements of the principal securities exchange
or market on which the Shares are then traded (in order to maintain the listing
or quotation of the Shares thereon).
14.2 Termination. The Board shall have the right and the power to terminate the
Plan at any time. No Award shall be granted under the Plan after the termination
of the Plan, but the termination of the Plan shall not have any other effect and
any Award outstanding at the time of the termination of the Plan may be
exercised after termination of the Plan at any time prior to the expiration date
of such Award to the same extent such Award would have been exercisable had the
Plan not terminated.
Article XV. General Provisions
15.1 Effective Date of the Plan. The Plan shall be effective as of
September 23, 1993.
15.2 Term of Plan. The term of the Plan shall be indefinite except that no
Incentive Stock Option Award shall be granted under the Plan after September 23,
2003. However, unless otherwise expressly provided in the Plan or in an
applicable Award Agreement, any Incentive Stock Option Award theretofore granted
may extend beyond such date, and, to the extent set forth in the Plan, the
authority of the Committee to amend, alter, adjust, suspend, discontinue, or
terminate any such Award, or to waive any conditions or restrictions with
respect to any such Award, and the authority of the Board to amend the Plan,
shall extend beyond such date.
15.3 Governing Law. The Plan and all determinations made and actions taken
pursuant to the Plan shall be governed by the laws of the state of Florida
and applicable federal laws.
15.4 Unfunded Status of Plan. Unless otherwise determined by the Committee, the
Plan shall be unfunded and shall not create (or be construed to create) a trust
or a separate fund or funds. The Plan shall not establish any fiduciary
relationship between the Company and any Key Employee Participant, any
Non-Employee Director Participant, or other person. To the extent any person
holds any right by virtue of a grant under the Plan, such right (unless
otherwise determined by the Committee) shall be no greater than the right of an
unsecured general creditor of the Company.
15.5 Headings. Section headings are used in the Plan for convenience only, do
not constitute a part of the Plan, and shall not be deemed in any way to be
material or relevant to the construction or interpretation of the Plan or any
provision thereof.
15.6 Severability. Whenever possible, each provision in the Plan and every Award
and right at any time granted under the Plan shall be interpreted in such manner
as to be effective and valid under applicable law, but if any provision of the
Plan or any Award at any time granted under the Plan shall be held to be
prohibited by or invalid under applicable law, then (a) such provision shall be
deemed amended to accomplish the objectives of the provision as originally
written to the fullest extent permitted by law and (b) all other provisions of
the Plan and every other Award or right at any time granted under the Plan shall
remain in full force and effect.