EXHIBIT 99.1
CRYOLIFE, INC. 2002
STOCK INCENTIVE PLAN
SECTION 1
GENERAL
1.1 Purpose. The CryoLife, Inc. 2002 Stock Incentive Plan (the "Plan") has
been established by CryoLife, Inc. ("CryoLife" or the "Company") to (i) attract
and retain persons eligible to participate in the Plan; (ii) motivate
Participants (as defined in subsection 1.2 below), by means of appropriate
incentives, to achieve long-range goals; (iii) provide incentive compensation
opportunities that are competitive with those of other similar companies; and
(iv) further identify Participants' interests with those of the Company's other
shareholders through compensation that is based on the Company's common stock;
and thereby promote the long-term financial interest of the Company and its
Subsidiaries, as hereinafter defined, including the growth in value of the
Company's equity and enhancement of long-term shareholder return. Pursuant to
the Plan, Participants may receive Options, Stock Appreciation Rights, or Stock
Awards, as defined herein.
1.2 Participation. Subject to the terms and conditions of the Plan, the
Committee (as defined in Section 6) shall determine and designate, from time to
time, from among the Eligible Grantees, as hereinafter defined (including
transferees of Eligible Grantees to the extent the transfer is permitted by the
Plan and the applicable Award Agreement), those persons who will be granted one
or more Awards under the Plan, and thereby become "Participants" in the Plan. In
the discretion of the Committee, a Participant may be granted any Award
permitted under the provisions of the Plan, and more than one Award may be
granted to a Participant. Awards may be granted as alternatives to or
replacement of awards outstanding under the Plan, or any other plan or
arrangement of the Company or a Subsidiary (including a plan or arrangement of a
business or entity, all or a portion of which is acquired by the Company or a
Subsidiary).
1.3 Operation, Administration, and Definitions. The operation and
administration of the Plan, including the Awards made under the Plan, shall be
subject to the provisions of Section 4 (relating to operation and
administration). Capitalized terms in the Plan shall be defined as set forth in
the Plan (including the definition provisions of Section 8 of the Plan).
SECTION 2
OPTIONS AND SARS
2.1 Definitions.
(a) The grant of an "Option" entitles the Participant to purchase
shares of Stock at an Exercise Price established by the Committee. Options
granted under this Section 2 may either be Incentive Stock Options ("ISOs")
or Non-Qualified Options ("NQOs"), as determined in the discretion of the
Committee. An "ISO" is an Option that is intended to satisfy the
requirements applicable to an "incentive stock option" described in section
422(b) of the Code. An "NQO" is an Option that is not intended to be an
"incentive stock option" as that term is described in section 422(b) of the
Code.
(b) A stock appreciation right (an "SAR") entitles the Participant to
receive, in cash or Stock (as determined in accordance with subsection
2.5), value equal to (or otherwise based on) the excess of: (a) the Fair
Market Value (as defined in Section 8) of a specified number of shares of
Stock at the time of exercise; over (b) an Exercise Price established by
the Committee.
2.2 Exercise Price. The Exercise Price of each Option and SAR granted under
this Section 2 shall be established by the Committee or shall be determined by a
method established by the Committee at the time the Option or SAR is granted.
The Exercise Price shall not be less than 100% of the Fair Market Value of a
share of Stock on the date of grant of the Award.
2.3 Exercise. An Option and an SAR shall be exercisable in accordance with
such terms and conditions and during such periods as may be established by the
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Committee; provided, however, that if a Participant shall die while in the
employ of the Company or a Subsidiary and shall not have fully exercised an
Option or SAR, the Option or SAR may be exercised, subject to the condition that
no Option or SAR shall be exercisable after the expiration of ten years from the
date it is granted or beyond its original term, to the extent that the
Participant's right to exercise such Option or SAR had accrued pursuant to this
Section 2 of the Plan at the time of his death and had not previously been
exercised, at any time within one (1) year after the Participant's death, by the
executors or administrators of the Participant or by any person or persons who
shall have acquired the Option or SAR directly from the Participant by bequest
or inheritance.
2.4 Payment of Option Exercise Price. The payment of the Exercise Price of
an Option granted under this Section 2 shall be subject to the following:
(a) Subject to the following provisions of this subsection 2.4, the
full Exercise Price for shares of Stock purchased upon the exercise of any
Option shall be paid at the time of such exercise (except that, in the case
of an exercise arrangement approved by the Committee and described in
paragraph 2.4(c), payment may be made as soon as practicable after the
exercise).
(b) The Exercise Price shall be payable in cash or by tendering, by
either actual delivery of shares or by attestation if permitted by the
Committee, shares of Stock acceptable to the Committee and which have been
held by the participant for at least six months, and valued at Fair Market
Value as of the day of exercise, or in any combination thereof, as
determined by the Committee.
(c) The Committee may permit a Participant to elect to pay the
Exercise Price upon the exercise of an Option by irrevocably authorizing a
third party to sell shares of Stock (or a sufficient portion of the shares)
acquired upon exercise of the Option and remit to the Company a sufficient
portion of the sale proceeds to pay the entire Exercise Price and any tax
withholding resulting from such exercise.
2.5 Settlement of Award. Shares of Stock delivered pursuant to the exercise
of an Option or SAR shall be subject to such conditions, restrictions and
contingencies as the Committee may establish in the applicable Award Agreement.
Settlement of SARs may be made in shares of Stock (valued at their Fair Market
Value at the time of exercise), in cash, or in a combination thereof, as
determined in the discretion of the Committee. The Committee, in its discretion,
may impose such conditions, restrictions and contingencies with respect to
shares of Stock acquired pursuant to the exercise of an Option or an SAR as the
Committee determines to be desirable.
SECTION 3
OTHER STOCK AWARDS
3.1 Definitions.
(a) A "Stock Unit" Award is the grant of a right to receive shares of
Stock in the future.
(b) A "Performance Share" Award is a grant of a right to receive
shares of Stock or Stock Units which is contingent on the achievement of
performance or other objectives during a specified period.
(c) A "Restricted Stock" Award is a grant of shares of Stock, and a
"Restricted Stock Unit" Award is the grant of a right to receive shares of
Stock in the future, with such shares of Stock or right to future delivery
of such shares of Stock subject to a risk of forfeiture or other
restrictions that will lapse upon the achievement of one or more goals
relating to completion of service by the Participant, or achievement of
performance or other objectives, as determined by the Committee.
3.2 Restrictions on Stock Awards. Each Stock Unit Award, Restricted Stock
Award, Restricted Stock Unit Award and Performance Share Award shall be subject
to the following:
(a) Any such Award shall be subject to such conditions, restrictions
and contingencies as the Committee shall determine.
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(b) The Committee may designate whether any such Awards being granted
to any Participant are intended to be "performance-based compensation" as
that term is used in Code Section 162(m) of the Code. Any such Awards
designated as intended to be "performance-based compensation" shall be
conditioned on the achievement of one or more Performance Measures. The
Performance Measures that may be used by the Committee for such Awards
shall be based on any one or more of the following, as selected by the
Committee: return on capital or increase in pretax earnings of the Company
and/or one or more divisions and/or subsidiaries, return on shareholders'
equity of the Company, increase in earnings per share of the Company, sales
of the Company and/or one or more divisions and/or subsidiaries, pretax
earnings of the Company and/or one or more divisions and/or subsidiaries,
net earnings of the Company and/or one or more divisions and/or
subsidiaries, control of operating and/or non-operating expenses of the
Company and/or one or more divisions and/or subsidiaries, margins of the
Company and/or one or more divisions and/or subsidiaries, market price of
the Company's securities and other objectively measurable factors directly
tied to the performance of the Company and/or one or more divisions and/or
subsidiaries. For Awards intended to be "performance-based compensation,"
the grant of the Awards and the establishment of the Performance Measures
shall be made during the period required under Code Section 162(m).
SECTION 4
OPERATION AND ADMINISTRATION
4.1 Effective Date; Duration. Subject to the approval of the shareholders
of the Company at the Company's 2002 annual meeting of its shareholders, the
Plan shall be effective as of the date of approval of shareholders (the
"Effective Date"). The Plan shall have a duration of ten years from the date the
Plan is adopted, or, if earlier, the date the Plan is approved by shareholders;
provided that in the event of Plan termination, the Plan shall remain in effect
as long as any Awards under it are outstanding; provided, further however, that,
no Award may be granted under the Plan on a date that is more than ten years
from the date the Plan is adopted or, if earlier, the date the Plan is approved
by shareholders.
4.2 Awards Subject to Plan. Awards granted under the Plan shall be subject
to the following:
(a) Subject to the following provisions of this subsection 4.2, the
maximum number of shares of Stock that may be delivered to Participants and
their beneficiaries under the Plan shall be 974,000 shares of Stock.
(b) The following limitations are imposed under the Plan: (i) a
maximum of 974,000 shares may be issued under Options intended to be
Incentive Stock Options ("ISOs") under Section 422 of the Internal Revenue
Code of 1986, as amended (the "Code"), (ii) a maximum of 100,000 shares may
be issued under Options and SARS to any one individual during any
consecutive twelve-month period, (iii) a maximum of 100,000 shares may be
issued under other Awards, and (iv) a maximum payment of $400,000 under
other Awards may be made to any one individual for any Performance Goals
established for any performance period (including the Fair Market Value of
stock subject to Awards denominated in shares). These maximums are subject
to adjustment in the event of stock dividends, stock splits, combination of
shares, recapitalization, reorganization, merger, consolidation, split-up,
spin-off, exchange of shares or other changes in the outstanding Common
Stock ("Corporate Transactions"). Any such adjustment will be made by the
Committee
(c) To the extent any shares of Stock covered by an Award are not
delivered to a Participant or beneficiary because the Award is forfeited or
canceled, or the shares of Stock are not delivered because the Award is
settled in cash or used to satisfy the applicable tax withholding
obligation, such shares shall not be deemed to have been delivered for
purposes of determining the maximum number of shares of Stock available for
delivery under the Plan. The maximum number of shares of Stock available
for delivery under the Plan shall not be reduced for shares subject to
plans assumed by the Company in an acquisition of an interest in another
company.
(d) If the exercise price of any Option granted under the Plan is
satisfied by tendering shares of Stock to the Company (by either actual
delivery or by attestation), only the number of shares of Stock issued net
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of the shares of Stock tendered shall be deemed delivered for purposes of
determining the maximum number of shares of Stock available for delivery
under the Plan.
(e) Subject to adjustment in accordance with paragraph 4.2(f), no more
than 100,000 shares of Stock may be subject to Stock Unit Awards,
Restricted Stock Awards, Restricted Stock Unit Awards and Performance Share
Awards that are intended to be "performance-based compensation" (as that
term is used for purposes of Code section 162(m)) granted to any one
individual during any one fiscal-year period (regardless of when such
shares are deliverable).
(f) Subject to any required action by the shareholders, the number of
shares covered by each outstanding Award, and the price per share in each
such Award, shall be proportionately adjusted for any increase or decrease
in the number of issued shares of the Company resulting from a Corporate
Transaction or any other increase or decrease in the number of such shares
effected without receipt of consideration by the Company.
(g) If the Company merges or consolidates with another corporation,
whether or not the Company is a surviving corporation, or if the Company is
liquidated or sells or otherwise disposes of substantially all of its
assets while unexercised Options or other Awards remain outstanding under
this Plan, (A) subject to the provisions of clause (C) below, after the
effective date of the merger, consolidation, liquidation, sale or other
disposition, as the case may be, each holder of an outstanding Option or
other Award shall be entitled, upon exercise of that Option or Award or in
place of it, as the case may be, to receive, in lieu of shares of Stock,
the number and class or classes of shares of Stock or other securities or
property to which the holder would have been entitled if, immediately prior
to the merger, consolidation, liquidation, sale or other disposition, the
holder had been the holder of record of a number of shares of Stock equal
to the number of shares of Stock as to which that Option may be exercised
or are subject to the Award; (B) if Options or other Awards have not
already become exercisable under Section 5 hereof, the Board of Directors
may waive any limitations set forth in or imposed pursuant to this Plan so
that all Options or other Awards, from and after a date prior to the
effective date of that merger, consolidation, liquidation, sale or other
disposition, as the case may be, specified by the Board of Directors, shall
be exercisable in full; and (C) all outstanding Options or SARs may be
cancelled by the Board of Directors as of the effective date of any merger,
consolidation, liquidation, sale or other disposition provided that any
optionee or SAR holder shall have the right immediately prior to such event
to exercise his or her Option or SAR to the extent such optionee or holder
is otherwise able to do so in accordance with this Plan (including Section
5 hereof) or his individual Option or SAR agreement.
(h) In the event of a change in the shares of the Company as presently
constituted, which is limited to a change of all of its authorized shares
with par value into the same number of shares with a different par value or
without par value, the shares resulting from any such change shall be
deemed to be the shares within the meaning of this Plan.
(i) To the extent that the foregoing adjustments relate to Stock or
securities of the Company, such adjustments shall be made by the Committee,
whose determination in that respect shall be final, binding and conclusive;
provided, that each Option which, upon grant of the Option, is specifically
designated as an ISO shall not be adjusted in a manner that causes the
Option to fail to continue to qualify as an ISO without the consent of the
Option holder.
(j) Except as hereinbefore expressly provided in this Section 4, a
Participant shall have no rights by reason of any subdivision or
consolidation of shares of stock of any class or the payment of any stock
dividend or any other increase or decrease in the number of shares of stock
of any class or by reason of any dissolution, liquidation, merger, or
consolidation or spin-off of assets or stock of another corporation, and no
issue by the Company of shares of stock of any class, shall affect, and no
adjustment by reason thereof shall be made with respect to, the number or
price of shares of Stock subject to an Award, unless the Committee shall
otherwise determine.
(k) The grant of any Award pursuant to this Plan shall not affect in
any way the right or power of the Company (A) to make adjustments,
reclassifications, reorganizations or changes of its capital or business
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structure, (B) to merge or consolidate, (C) to dissolve, liquidate or sell,
or transfer all or any part of its business or assets or (D) to issue any
bonds, debentures, preferred or other preference stock ahead of or
affecting the Stock. If any action described in the preceding sentence
results in a fractional share for any Participant under any Award
hereunder, such fraction shall be completely disregarded and the
Participant shall only be entitled to the whole number of shares resulting
from such adjustment.
4.3 General Restrictions. Delivery of shares of Stock or other amounts
under the Plan shall be subject to the following:
(a) Notwithstanding any other provision of the Plan, the Company shall
have no liability to deliver any shares of Stock under the Plan or make any
other distribution of benefits under the Plan unless such delivery or
distribution would comply with all applicable laws (including, without
limitation, the requirements of the Securities Act of 1933), and the
applicable requirements of any securities exchange or similar entity.
(b) To the extent that the Plan provides for issuance of stock
certificates to reflect the issuance of shares of Stock, the issuance may
be effected on a non-certificated basis, to the extent not prohibited by
applicable law or the applicable rules of any stock exchange.
4.4 Tax Withholding. All distributions under the Plan are subject to
withholding of all applicable taxes, and the Committee may condition the
delivery of any shares or other benefits under the Plan on satisfaction of the
applicable withholding obligations. The Committee, in its discretion, and
subject to such requirements as the Committee may impose prior to the occurrence
of such withholding, may permit such withholding obligations to be satisfied
through cash payment by the Participant, through the surrender of shares of
Stock which the Participant already owns, or through the surrender of shares of
Stock to which the Participant is otherwise entitled under the Plan.
4.5 Use of Shares. Subject to the overall limitation on the number of
shares of Stock that may be delivered under the Plan, the Committee may use
available shares of Stock as the form of payment for compensation, grants or
rights earned or due under any other compensation plans or arrangements of the
Company or a Subsidiary, including the plans and arrangements of the Company or
a Subsidiary assumed in business combinations.
4.6 Dividends and Dividend Equivalents. An Award (including without
limitation an Option or SAR Award) may provide the Participant with the right to
receive dividend payments or dividend equivalent payments with respect to Stock
subject to the Award (both before and after the Stock subject to the Award is
earned, vested, or acquired), which payments may be either made currently or
credited to an account for the Participant, and may be settled in cash or Stock
as determined by the Committee. Any such settlements, and any such crediting of
dividends or dividend equivalents or reinvestment in shares of Stock, may be
subject to such conditions, restrictions and contingencies as the Committee
shall establish, including the reinvestment of such credited amounts in Stock
equivalents.
4.7 Payments. Awards may be settled through cash payments, the delivery of
shares of Stock, the granting of replacement Awards, or any combination thereof
as the Committee shall determine. Any Award settlement, including payment
deferrals, may be subject to such conditions, restrictions and contingencies as
the Committee shall determine. The Committee may permit or require the deferral
of any Award payment, subject to such rules and procedures as it may establish,
which may include provisions for the payment or crediting of interest, or
dividend equivalents, including converting such credits into deferred Stock
equivalents. Each Subsidiary shall be liable for payment of cash due under the
Plan with respect to any Participant to the extent that such benefits are
attributable to the services rendered for that Subsidiary by the Participant.
Any disputes relating to liability of a Subsidiary for cash payments shall be
resolved by the Committee.
4.8 Transferability. Except as otherwise provided by the Committee, Awards
under the Plan are not transferable except as designated by the Participant by
will or by the laws of descent and distribution.
4.9 Form and Time of Elections. Unless otherwise specified herein, each
election required or permitted to be made by any Participant or other person
entitled to benefits under the Plan, and any permitted modification, or
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revocation thereof, shall be in writing filed with the Committee at such times,
in such form, and subject to such restrictions and limitations, not inconsistent
with the terms of the Plan, as the Committee shall require.
4.10 Agreement With Company. An Award under the Plan shall be subject to
such terms and conditions, not inconsistent with the Plan, as the Committee
shall, in its sole discretion, prescribe. The terms and conditions of any Award
to any Participant shall be reflected in such form of written document as is
determined by the Committee. A copy of such document shall be provided to the
Participant, and the Committee may, but need not, require that the Participant
shall sign a copy of such document. Such document is referred to in the Plan as
an "Award Agreement" regardless of whether any Participant signature is
required.
4.11 Action by Company or Subsidiary. Any action required or permitted to
be taken by the Company or any Subsidiary shall be by resolution of its board of
directors, or by action of one or more members of the board (including a
committee of the board) who are duly authorized to act for the board, or (except
to the extent prohibited by applicable law or applicable rules of any stock
exchange) by a duly authorized officer of such company.
4.12 Gender and Number. Where the context admits, words in any gender shall
include any other gender, words in the singular shall include the plural and the
plural shall include the singular.
4.13 Limitation of Implied Rights.
(a) Neither a Participant nor any other person shall, by reason of
participation in the Plan, acquire any right in or title to any assets,
funds or property of the Company or any Subsidiary whatsoever, including,
without limitation, any specific funds, assets, or other property which the
Company or any Subsidiary, in its sole discretion, may set aside in
anticipation of a liability under the Plan. A Participant shall have only a
contractual right to the Stock or amounts, if any, payable under the Plan,
unsecured by any assets of the Company or any Subsidiary, and nothing
contained in the Plan shall constitute a guarantee that the assets of the
Company or any Subsidiary shall be sufficient to pay any benefits to any
person.
(b) The Plan does not constitute a contract of employment, and
selection as a Participant will not give any participating employee the
right to be retained in the employ of the Company or any Subsidiary, nor
any right or claim to any benefit under the Plan, unless such right or
claim has specifically accrued under the terms of the Plan. Except as
otherwise provided in the Plan, no Award under the Plan shall confer upon
the holder thereof any rights as a shareholder of the Company prior to the
date on which the individual fulfills all conditions for receipt of such
rights.
4.14 Evidence. Evidence required of anyone under the Plan may be by
certificate, affidavit, document or other information which the person acting on
it considers pertinent and reliable, and shall be signed, made or presented by
the proper party or parties.
SECTION 5
CHANGE IN CONTROL
Subject to the provisions of paragraph 4.2(f) (relating to the adjustment
of shares), and except as otherwise provided in the Plan or the Award Agreement
reflecting the applicable Award, upon the occurrence of a Change in Control as
defined in Section 8:
(a) All outstanding Options held by executive officers and directors
of the Company (regardless of whether in tandem with SARs) shall become
fully exercisable.
(b) All outstanding SARs held by executive officers and directors of
the Company (regardless of whether in tandem with Options) shall become
fully exercisable.
(c) All Stock Units, Restricted Stock, Restricted Stock Units, and
Performance Shares held by executive officers and directors of the Company
shall become fully vested.
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SECTION 6
COMMITTEE
6.1 Administration. The authority to control and manage the operation and
administration of the Plan shall be vested in a committee (the "Committee") in
accordance with this Section 6. The Committee shall be selected by the Board,
and shall consist solely of two or more members of the Board who are nonemployee
directors within the meaning of Rule 16b-3 under the Securities Exchange Act of
1934, as amended, and are outside directors within the meaning of Code Section
162(m). If the Committee does not exist, or for any other reason determined by
the Board, the Board may take any action under the Plan that would otherwise be
the responsibility of the Committee. Unless otherwise determined by the Board,
the Compensation Advisory Committee of the Company shall be designated as the
"Committee" hereunder.
6.2 Powers of Committee. The Committee's administration of the Plan shall
be subject to the following:
(a) Subject to the provisions of the Plan, the Committee will have the
authority and discretion to select from among the Eligible Grantees those
persons who shall receive Awards, to determine the time or times of
receipt, to determine the types of Awards and the number of shares covered
by the Awards, to establish the terms, conditions, performance criteria,
restrictions, and other provisions of such Awards, and (subject to the
restrictions imposed by Section 7) to cancel or suspend Awards.
(b) To the extent that the Committee determines that the restrictions
imposed by the Plan preclude the achievement of the material purposes of
the Awards in jurisdictions outside the United States, the Committee will
have the authority and discretion to modify those restrictions as the
Committee determines to be necessary or appropriate to conform to
applicable requirements or practices of jurisdictions outside of the United
States.
(c) The Committee will have the authority and discretion to interpret
the Plan, to establish, amend, and rescind any rules and regulations
relating to the Plan, to determine the terms and provisions of any Award
Agreement made pursuant to the Plan, and to make all other determinations
that may be necessary or advisable for the administration of the Plan.
(d) Any interpretation of the Plan by the Committee and any decision
made by it under the Plan is final and binding on all persons.
(e) In controlling and managing the operation and administration of
the Plan, the Committee shall take action in a manner that conforms to the
certificate of incorporation and by-laws of the Company, and applicable
state corporate law.
6.3 Delegation by Committee. Except to the extent prohibited by applicable
law or the applicable rules of a stock exchange, the Committee may allocate all
or any portion of its responsibilities and powers to any one or more of its
members and may delegate all or any part of its responsibilities and powers to
any person or persons selected by it. Any such allocation or delegation may be
revoked by the Committee at any time.
6.4 Information to be Furnished to Committee. The Company and Subsidiaries
shall furnish the Committee with such data and information as it determines may
be required for it to discharge its duties. The records of the Company and
Subsidiaries as to an employee's or Participant's employment, termination of
employment, leave of absence, reemployment and compensation shall be conclusive
on all persons unless determined to be incorrect. Participants and other persons
entitled to benefits under the Plan must furnish the Committee such evidence,
data or information as the Committee considers desirable to carry out the terms
of the Plan.
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SECTION 7
AMENDMENT AND TERMINATION
The Plan may be terminated or amended by the Board of Directors at any
time, except that the following actions may not be taken without shareholder
approval: (a) materially increasing the number of shares that may be issued
under the Plan (except by certain adjustments provided for under the Plan); or
(b) amending the Plan provisions regarding the limitations on the Exercise
Price. In addition, no amendment or termination may, in the absence of written
consent to the change by the affected Participant (or, if the Participant is not
then living, the affected beneficiary) adversely affect the rights of any
Participant or beneficiary under any Award granted under the Plan prior to the
date such amendment is adopted by the Board. Options may not be granted under
the Plan after the date of termination of the Plan, but Options granted prior to
that date shall continue to be exercisable according to their terms.
SECTION 8
DEFINED TERMS
In addition to the other definitions contained herein, the following
definitions shall apply:
(a) Award. The term "Award" shall mean any award or benefit granted
under the Plan, including, without limitation, the grant of Options, SARs,
Stock Unit Awards, Restricted Stock Awards, Restricted Stock Unit Awards
and Performance Share Awards.
(b) Board. The term "Board" shall mean the Board of Directors of the
Company.
(c) Change in Control. The term "Change in Control" means a change in
the beneficial ownership of the Company's voting stock or a change in the
composition of the Board which occurs as follows:
(i) Any "person," including a "syndication" or "group" as those
terms are used in Section 13(d)(3) of the Securities Exchange Act of
1934, is or becomes the beneficial owner, directly or indirectly, of
securities of the Company representing 20% or more of the combined
voting power of the Company's then outstanding "Voting Securities,"
which is any security which ordinarily possesses the power to vote in
the election of the Board of Directors of a corporation without the
happening of any precondition or contingency;
(ii) The Company is merged or consolidated with another
corporation and immediately after giving effect to the merger or
consolidation less than 80% of the outstanding Voting Securities of
the surviving or resulting entity are then beneficially owned in the
aggregate by (x) the shareholders of the Company immediately prior to
such merger or consolidation, or (y) if a record date has been set to
determine the shareholders of the Company entitled to vote on such
merger or consolidation, the shareholders of the Company as of such
record date;
(iii) If at any time the following do not constitute a majority
of the Board of Directors of the Company (or any successor entity
referred to in clause (ii) above): Persons who, prior to their
election as a director of the Company (or successor entity if
applicable) were nominated, recommended or endorsed by a formal
resolution of the Board of Directors of the Company; or
(iv) The Company transfers substantially all of its assets to
another corporation which is a less than 80% owned subsidiary of the
Company.
(d) Code. The term "Code" means the Internal Revenue Code of 1986, as
amended. A reference to any provision of the Code shall include reference
to any successor provision of the Code.
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(e) Eligible Grantee. The term "Eligible Grantee" shall mean any
employee, consultant or director of the Company or a Subsidiary. An Award
may be granted to an employee, in connection with hiring, retention or
otherwise, prior to the date the employee first performs services for the
Company or the Subsidiaries, provided that such Award shall not become
vested prior to the date the employee first performs such services.
(f) Fair Market Value. For purposes of determining the "Fair Market
Value" of a share of Stock as of any date, then the "Fair Market Value" as
of that date shall be the closing price of the Stock on that date on the
New York Stock Exchange.
(g) Subsidiaries. The term "Subsidiary" means any subsidiary of the
Company, and any business venture designated by the Committee in which the
Company has a significant interest, as determined in the discretion of the
Committee.
(h) Stock. The term "Stock" shall mean shares of common stock of the
Company.
SECTION 9
GOVERNING LAW
This Plan shall be governed by, and construed in accordance with, the laws
of the State of Georgia, except to the extent that the Florida Business
Corporation Act shall be applicable.
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