DYCOM INDUSTRIES, INC.
2003 LONG-TERM INCENTIVE PLAN
(Amended and Restated Effective as of November 21, 2006)
1. Purposes of the Plan
The purposes of the Plan are to aid the Company in (a) attracting,
retaining and motivating highly qualified key employees and officers of the
Company and its Subsidiaries, (b) promoting the long-term success of the Company
and its Subsidiaries and (c) increasing stockholder value by providing eligible
key employees and officers with incentives to contribute to the long-term growth
and profitability of the Company.
2. Definitions and Rules of Construction
(a) Definitions. For purposes of the Plan, the following capitalized words
shall have the meanings set forth below:
"Award" means an Option, Restricted Share Unit, Performance Share
Unit, Stock Appreciation Right or Other Award granted by the Committee
pursuant to the terms of the Plan.
"Award Document" means an agreement, certificate or other type or form
of document or documentation approved by the Committee which sets forth the
terms and conditions of an Award. An Award Document may be in written,
electronic or other media, may be limited to a notation on the books and
records of the Company and, unless the Committee requires otherwise, need
not be signed by a representative of the Company or a Participant.
"Board" means the Board of Directors of the Company.
"CEO" means the Chief Executive Officer of the Company.
"Code" means the Internal Revenue Code of 1986, as amended.
"Committee" means the Compensation Committee of the Board or such
other committee appointed by the Board to administer the Plan.
"Common Stock" means the common stock of the Company, par value $0.333
per share, or such other class of share or other securities as may be
applicable under Section 13(b) of the Plan.
"Company" means Dycom Industries, Inc., a Florida corporation, or any
successor to substantially all of its business.
"Effective Date" means the date on which the Plan is approved by the
stockholders of the Company.
"Eligible Individual" means an individual described in Section 4(a) of
the Plan.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations thereunder.
"Fair Market Value" means, with respect to a share of Common Stock,
the fair market value thereof as of the relevant date of determination, as
determined in accordance with a valuation methodology approved by the
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Committee. In the absence of any alternative valuation methodology approved
by the Committee, the Fair Market Value of a share of Common Stock shall
equal the average of the high and low prices of a share of Common Stock as
reported on the composite tape for securities listed on the New York Stock
Exchange, or such other national securities exchange as may be designated
by the Committee, or, in the event that the Common Stock is not listed for
trading on a national securities exchange but is quoted on an automated
system, on such automated system, in any such case on the valuation date
(or, if there were no sales on the valuation date, the average of the high
and low prices as reported on said composite tape or automated system for
the most recent day during which a sale occurred).
"Incentive Stock Option" means an Option that is intended to comply
with the requirements of Section 422 of the Code or any successor provision
thereto.
"Nonqualified Stock Option" means an Option that is not intended to
comply with the requirements of Section 422 of the Code or any successor
provision thereto.
"Option" means an Incentive Stock Option, Nonqualified Stock Option or
any other type of option granted pursuant to Section 7 of the Plan.
"Other Award" means any form of Award other than an Option, Restricted
Share Unit, Performance Share Unit or Stock Appreciation Right granted
pursuant to Section 11 of the Plan.
"Participant" means an Eligible Individual who has been granted an
Award under the Plan.
"Performance Period" means the period specified in the applicable
Award Document over which Performance Targets are measured.
"Performance Share Unit" means a right to receive a Target Number of
shares of Common Stock (or cash, if applicable) payable at the end of a
Performance Period, subject to the Participant's continued employment and
the achievement of the applicable Performance Targets, granted pursuant to
Section 9 of the Plan.
"Performance Target" means the targets prescribed in the applicable
Award Document.
"Plan" means the Dycom Industries, Inc. 2003 Long-Term Incentive Plan
as described herein.
"Repricing" means (i) amending the terms of an Option or Stock
Appreciation Right after its grant date to reduce its exercise price; (ii)
canceling an Option or Stock Appreciation Right at a time when its exercise
price is equal to or greater than the Fair Market Value of the underlying
Common Stock in exchange for another Option or Stock Appreciation Right; or
(iii) any action that is treated as a repricing of an Option or Stock
Appreciation Right under generally accepted accounting principles or any
applicable laws, rules or regulations.
"Restricted Share Unit" means a right to receive a share of Common
Stock (or cash, if applicable), subject to time vesting and the
Participant's continued employment with the Company, granted pursuant to
Section 8 of the Plan.
"Stock Appreciation Right" means a right to receive all or some
portion of the appreciation on shares of Common Stock granted pursuant to
Section 10 of the Plan.
"Subsidiary" means (i) a domestic or foreign corporation or other
entity with respect to which the Company, directly or indirectly, has the
power, whether through the ownership of voting securities, by contract or
otherwise, to elect at least a majority of the members of such
corporation's board of directors or analogous governing body, or (ii) any
other domestic or foreign corporation or other entity in which the Company,
directly or indirectly, has an equity or similar interest and which the
Committee designates as a Subsidiary for purposes
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of the Plan. For purposes of determining eligibility for the grant of
Incentive Stock Options under the Plan, the term "Subsidiary" shall be
defined in the manner required by Section 424(f) of the Code.
"Target Number" means the target number of shares of Common Stock
specified in the applicable Award Document.
(b) Rules of Construction. The masculine pronoun shall be deemed to include
the feminine pronoun and the singular form of a word shall be deemed to include
the plural form, unless the context requires otherwise. Unless the text
indicates otherwise, references to sections are to sections of the Plan.
3. Administration
(a) Committee. The Plan shall be administered by the Committee, no member
of which shall be eligible to participate in the Plan.
(b) Powers and Responsibility. The Committee shall have full power and
authority, subject to the express provisions hereof, to:
(i) select the Participants from the Eligible Individuals;
(ii) grant Awards in accordance with the Plan;
(iii) determine the number of shares of Common Stock subject to each
Award or the cash amount payable in connection with an Award;
(iv) determine the terms and conditions of each Award, including,
without limitation, those related to vesting, forfeiture, payment,
settlement and exercisability, and the effect, if any, of a Participant's
termination of employment with the Company or any of its Subsidiaries or a
change in control of the Company;
(vi) delegate to the CEO the right to allocate Awards among Eligible
Individuals who are not executive officers or directors of the Company
within the meaning of the Exchange Act, such delegation to be subject to
such terms and conditions as the Committee in its discretion shall
determine;
(vii) make factual determinations in connection with the
administration or interpretation of the Plan;
(viii) establish, amend and rescind administrative regulations, rules
and procedures relating to the Plan;
(ix) employ such legal counsel, independent auditors and consultants
as it deems desirable for the administration of the Plan and to rely upon
any opinion or computation received therefrom;
(x) vary the terms of Awards to take account of tax, securities law
and other regulatory requirements of foreign jurisdictions; and
(xi) take any other action desirable or necessary to interpret,
construe or implement properly the provisions of the Plan or any Award
Document.
(c) Plan Construction and Interpretation. The Committee shall have full
power and authority, subject to the express provisions hereof, to construe and
interpret the Plan.
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(d) Determinations of Committee Final and Binding. All determinations by
the Committee in carrying out and administering the Plan and in construing and
interpreting the Plan shall be final, binding and conclusive for all purposes
and upon all persons interested herein.
(e) Delegation of Authority. The Committee may designate persons other
than its members to carry out its responsibilities under such conditions or
limitations as it may set, except that the Committee may not delegate (i) its
authority with regard to Awards (including decisions concerning the timing,
pricing and amount of Common Stock subject to an Award) granted to Eligible
Individuals who are officers or directors for purposes of Section 16(b) of the
Exchange Act and (ii) its authority pursuant to Section 20 to amend the Plan.
(f) Liability of Committee. No member of the Board or Committee, the CEO,
or any officer or employee of the Company to whom any duties or responsibilities
are delegated hereunder shall be liable for any action or determination made in
connection with the operation, administration or interpretation of the Plan and
the Company shall indemnify, defend and hold harmless each such person from any
liability arising from or in connection with the Plan, except where such
liability results directly from such person's fraud, willful misconduct or
failure to act in good faith. In the performance of its responsibilities with
respect to the Plan, the Committee shall be entitled to rely upon information
and advice furnished by the Company's officers, the Company's accountants, the
Company's counsel and any other party the Committee deems necessary, and no
member of the Committee shall be liable for any action taken or not taken in
reliance upon any such advice.
(g) Action by the Board. Anything in the Plan to the contrary
notwithstanding, any authority or responsibility that, under the terms of the
Plan, may be exercised by the Committee may alternatively be exercised by the
Board.
4. Eligibility
(a) Eligible Individuals. Only officers and key employees of the Company or
any of its Subsidiaries (or a division or operating unit thereof) or any
individual who has accepted an offer of employment with the Company or any of
its Subsidiaries (or a division or operating unit thereof) as an officer or key
employee shall be eligible to participate in the Plan and to receive Awards
under the Plan. Members of the Committee shall not be eligible to participate in
the Plan.
(b) Grants to Participants. The Committee shall have no obligation to grant
any Eligible Individual an Award or to designate an Eligible Individual as a
Participant solely by reason of such Eligible Individual having received a prior
Award or having been previously designated as a Participant. The Committee may
grant more than one Award to a Participant and may designate an Eligible
Individual as a Participant for overlapping periods of time.
5. Common Stock Subject to the Plan
(a) Plan Limit. The maximum number of shares of Common Stock which may be
awarded for all purposes under the Plan shall be the aggregate of:
(i) 4,000,000 shares;
(ii) the number of shares previously authorized but not reserved for
awards under the 1998 Dycom Industries, Inc. Incentive Stock Option Plan
(the "Prior Plan") as of the date the Plan is approved; and
(iii) any shares corresponding to awards under the Prior Plan that are
forfeited after the date the Plan is approved (collectively, the "Plan
Limit").
Such shares of Common Stock may be newly issued shares of Common Stock or
reacquired shares of Common Stock held in the treasury of the Company.
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(b) Rules Applicable to Determining Shares Available for Issuance. For
purposes of determining the number of shares of Common Stock that remain
available for issuance under the Plan, the number of shares of Common Stock
corresponding to Awards under the Plan that are forfeited, the number of shares
of Common Stock tendered or withheld to pay the exercise price of an Award and
the number of shares withheld from any Award to satisfy a Participant's tax
withholding obligations shall be added back to the Plan Limit and again be
available for the grant of Awards.
(c) Special Limits. Anything to the contrary in Section 5(a) above
notwithstanding, but subject to Section 13(b), the following special limits
shall apply to shares of Common Stock available for Awards under the Plan:
(i) The maximum number of shares of Common Stock that may be subject
to Awards, including, without limitation, Incentive Stock Options, granted
to any Eligible Individual in any calendar year shall equal 250,000 shares,
plus any shares which were available under this Section 5(c)(i) for Awards
to such Eligible Individual in any prior calendar year but which were not
covered by such Awards.
(ii) In no event will the number of shares of Common Stock issued in
connection with the grant of Awards exceed the Plan Limit, as in effect on
the Effective Date.
6. Awards in General
(a) Types of Awards. Awards under the Plan may consist of Options,
Restricted Share Units, Performance Share Units, Stock Appreciation Rights and
Other Awards. Any Award described in Sections 7 through 11 of the Plan may be
granted singly or in combination or tandem with any other Awards, as the
Committee may determine. Awards under the Plan may be made in combination with,
in replacement of, or as alternatives to awards or rights under any other
compensation or benefit plan of the Company, including the plan of any acquired
entity.
(b) Terms Set Forth in Award Document. The terms and conditions of each
Award shall be set forth in an Award Document in a form approved by the
Committee for such Award, which shall contain terms and conditions not
inconsistent with the Plan. The terms of Awards may vary among Participants and
the Plan does not impose upon the Committee any requirement to make Awards
subject to uniform terms. Accordingly, the terms of individual Award Documents
may vary.
(c) Termination of Employment and Change in Control. The Committee shall
specify at or after the time of grant of an Award the provisions governing the
disposition of an Award in the event of a Participant's termination of
employment with the Company or any of its Subsidiaries. In connection with a
Participant's termination of employment, the Committee may vary the vesting,
exercisability and settlement provisions of an Award relative to the
circumstances resulting in such termination of employment. The Committee shall
have the discretion to accelerate the vesting, exercisability or settlement of,
eliminate the restrictions and conditions applicable to, or extend the
post-termination exercise period of an outstanding Award. Similarly, the
Committee shall have full authority to determine the effect, if any, of a change
in control of the Company on the vesting, exercisability, settlement, payment or
lapse of restrictions applicable to an Award, which effect may be specified in
the applicable Award Document or determined at a subsequent time.
(d) Award Exercisable Only by Participant. During the lifetime of a
Participant, an Award shall be exercisable only by the Participant. The grant of
an Award shall impose no obligation on a Participant to exercise or settle the
Award.
(e) Rights of a Stockholder. A Participant shall have no rights as a
stockholder with respect to shares of Common Stock covered by an Award until the
date the Participant or his nominee becomes the holder of record of such shares.
No adjustment shall be made for dividends or other rights for which the record
date is prior to such date, except as provided in Section 13(b).
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(f) Limitation on Exercise and Settlement. An Award may not be exercised or
settled and no shares of Common Stock may be issued in connection with an Award
unless the issuance of such shares has been registered under the Securities Act
of 1933, as amended, and qualified under applicable state "blue sky" laws, or
the Company has determined that an exemption from registration and from
qualification under such state "blue sky" laws is available.
(g) Performance-Based Awards. The Committee may determine whether any Award
under the Plan is intended to be "performance-based compensation" as that term
is used in Section 162(m) of the Code. Any such Awards designated to be
"performance-based compensation" shall be conditioned on the achievement of one
or more Performance Targets, to the extent required by Section 162(m) of the
Code. The Performance Targets that may be used by the Committee for such Awards
will be based on financial goals such as net income, net revenue, cash flow,
operating margin, operating revenue, pre-tax income, pre-tax operating income,
operating income growth, return on assets, total shareholder return, share
price, return on equity, diluted earnings per share or earnings per share
growth, or a combination thereof as selected by the Committee, and quantifiable
non-financial goals. Each Participant is assigned a Target Award payable if
Performance Targets are achieved. If a Participant's performance exceeds such
Participant's Performance Targets, Awards may be greater than the Target Number,
but may not exceed 200% of such Participant's Target Number. The Committee
retains the right to reduce any Award if it believes that individual performance
does not warrant the Award calculated by reference to the result. In the event
that all members of the Committee are not "outside directors" as that term is
defined in Section 162(m) of the Code, the grant and terms of Awards intended to
qualify as "performance-based compensation" will be made by a subcommittee of
the Committee consisting of two or more "outside directors."
7. Terms and Conditions of Options
(a) General. The Committee, in its discretion, may grant Options to
eligible Participants and shall determine whether such Options shall be
Incentive Stock Options, Nonqualified Stock Options or any other type of Option
which may exist from time to time. Each Option shall be evidenced by an Award
Document that shall expressly identify the Option as an Incentive Stock Option
or Nonqualified Stock Option (or other type of Option, as applicable), and be in
such form and contain such provisions as the Committee shall from time to time
deem appropriate. Without limiting the foregoing, the Committee may, at any
time, or from time to time, authorize the Company, with the consent of the
respective recipients, to issue new Options, including Options in exchange for
the surrender and cancellation of any or all outstanding Options or Stock
Appreciation Rights.
(b) Exercise Price. The exercise price of an Option shall be fixed by the
Committee at the time of grant or shall be determined by a method specified by
the Committee at the time of grant; provided that the exercise price of an
Option may not be less than the Fair Market Value of a share of Common Stock on
the date of grant. Payment of the exercise price of an Option shall be made in
cash, or, to the extent provided by the Committee at or after the time of grant,
in shares of Common Stock already owned and held by the Participant or in any
combination of cash and shares of Common Stock held by the Participant. Except
in connection with a transaction or event described in Section 13(b), nothing in
the Plan shall be construed as permitting the Company to reduce the exercise
price of Options previously granted under the Plan or options previously granted
under any other plan of the Company without stockholder approval. In accordance
with the rules and procedures established by the Committee for this purpose, an
Option may also be exercised through a "cashless exercise" procedure, approved
by the Committee, involving a broker or dealer, that affords Participants the
opportunity to sell immediately some or all of the shares of Common Stock
underlying the exercised portion of the Option in order to generate sufficient
cash to pay the exercise price of the Option and to satisfy withholding tax
obligations related to the Option.
(c) Term. An Option shall be effective for such term as shall be determined
by the Committee and as set forth in the Award Document relating to such Option,
and the Committee may extend the term of an Option after the time of grant;
provided, however, that the term of an Option may in no event extend beyond the
10th anniversary of the date of grant of such Option.
(d) Incentive Stock Options. The exercise price per share of an Incentive
Stock Option may not be less than 100% of the Fair Market Value per share on the
date of grant (or if the exercise price is not fixed on the date of
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grant, then on such date as the exercise price is fixed). No Incentive Stock
Option may be issued pursuant to the Plan to any individual who, at the time the
Incentive Stock Option is granted, owns stock possessing more than 10% of the
total combined voting power of all classes of stock of the Company or any of its
Subsidiaries, unless (i) the exercise price determined as of the date of grant
is at least 110% of the Fair Market Value on the date of grant of the shares of
Common Stock subject to such Incentive Stock Option, and (ii) the Incentive
Stock Option is not exercisable more than five years from the date of grant
thereof. The terms of any Incentive Stock Option granted under the Plan shall
comply in all respects with the provisions of Section 422 of the Code, or any
successor provision thereto, and any regulations promulgated thereunder.
8. Terms and Conditions of Restricted Share Units
The Committee is authorized to grant Restricted Share Units to Eligible
Individuals. A Restricted Share Unit shall entitle a Participant to receive,
subject to the terms, conditions and restrictions set forth in the Plan and
applicable Award Document, one or more shares of Common Stock in consideration
of the Participant's employment with the Company or any of its Subsidiaries. If
and when the forfeiture provisions lapse, the Restricted Share Units shall
become shares of Common Stock owned by the corresponding Participant or, at the
sole discretion of the Committee, cash, or a combination of cash and shares of
Common Stock, with a value equal to the Fair Market Value of the shares at the
time of payment.
At the time of grant of a Restricted Share Unit, the Committee shall, in
its sole discretion, establish a restriction period (the "Restriction Period")
during which the forfeiture provisions may lapse. The Restriction Period may
lapse over a period of time specified by the Committee in an Award Document;
provided, however, that, subject to Section 6(c) hereof, such Restriction Period
shall be not less than three years.
9. Terms and Conditions of Performance Share Units
The Committee is authorized to grant Performance Share Units to Eligible
Individuals. A Performance Share Unit shall entitle a Participant to receive,
subject to the terms, conditions and restrictions set forth in the Plan and
applicable Award Document, a Target Number of shares of Common Stock based upon
the achievement of Performance Targets over the applicable Performance Period.
At the sole discretion of the Committee, Performance Share Units shall be
settled through the delivery of shares of Common Stock or cash, or a combination
of cash and shares of Common Stock, with a value equal to the Fair Market Value
of the shares of Common Stock as of the last day of the applicable Performance
Period.
At the time of grant of a Performance Share Unit, the Committee shall, in
its sole discretion, establish a Performance Period. The Performance Targets
applicable to each Performance Period shall be measured over a period of not
less than one year.
10. Stock Appreciation Rights
(a) General. The Committee is authorized to grant Stock Appreciation Rights
to Eligible Individuals. A Stock Appreciation Right shall entitle a Participant
to receive, upon satisfaction of the conditions to payment specified in the
applicable Award Document, an amount equal to the excess, if any, of the Fair
Market Value on the exercise date of the number of shares of Common Stock for
which the Stock Appreciation Right is exercised, over the exercise price for
such Stock Appreciation Right specified in the applicable Award Document. The
exercise price per share of Common Stock covered by a Stock Appreciation Right
shall be fixed by the Committee at the time of grant or, alternatively, shall be
determined by a method specified by the Committee at the time of grant;
provided, however, that, except as provided in Section 13(b) below, the exercise
price per share of Common Stock subject to a Stock Appreciation Right may not be
adjusted or amended, including by means of amendment, cancellation or the
replacement of such Stock Appreciation Right with a subsequently awarded Stock
Appreciation Right. At the sole discretion of the Committee, payments to a
Participant upon exercise of a Stock Appreciation Right may be made in cash or
shares of Common Stock, or in a combination of cash and shares of Common Stock,
having an aggregate Fair Market Value as of the date of exercise equal to such
cash amount.
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(b) Stock Appreciation Rights in Tandem with Options. A Stock Appreciation
Right granted in tandem with an Option may be granted either at the same time as
such Option or subsequent thereto. If granted in tandem with an Option, a Stock
Appreciation Right shall cover the same number of shares of Common Stock as
covered by the Option (or such lesser number of shares as the Committee may
determine) and shall be exercisable only at such time or times and to the extent
the related Option shall be exercisable, and shall have the same term and
exercise price as the related Option (which, in the case of a Stock Appreciation
Right granted after the grant of the related Option, may be less than the Fair
Market Value per share on the date of grant of the tandem Stock Appreciation
Right). Upon exercise of a Stock Appreciation Right granted in tandem with an
Option, the related Option shall be canceled automatically to the extent of the
number of shares covered by such exercise; conversely, if the related Option is
exercised as to some or all of the shares covered by the tandem grant, the
tandem Stock Appreciation Right shall be canceled automatically to the extent of
the number of shares covered by the Option exercise.
11. Other Awards
The Committee shall have the authority to specify the terms and provisions
of other forms of equity-based or equity-related Awards not described above that
the Committee determines to be consistent with the purpose of the Plan and the
interests of the Company, which Awards may provide for cash payments based in
whole or in part on the value or future value of shares of Common Stock, for the
acquisition or future acquisition of shares of Common Stock, or any combination
thereof. Notwithstanding the foregoing, subject to Section 6(c) hereof, any
applicable Restriction Period shall not be less than three years and any
applicable Performance Targets related to a Performance Period shall be measured
over a period of not less than one year.
12. Tax Withholding
The Company or a Subsidiary, as appropriate, may require any individual
entitled to receive a payment in respect of an Award to remit to the Company,
prior to such payment, an amount sufficient to satisfy any applicable tax
withholding requirements. In the case of an Award payable in shares of Common
Stock, the Company may permit such individual to satisfy, in whole or in part,
such obligation to remit taxes by directing the Company to withhold shares that
would otherwise be received by such individual or to repurchase shares of Common
Stock that were issued to such individual to satisfy the minimum statutory
withholding rates for any applicable tax withholding purposes, in accordance
with all applicable laws and pursuant to such rules as the Committee may
establish from time to time. The Company or a Subsidiary, as appropriate, shall
also have the right to deduct from all cash payments made to a Participant
(whether or not such payment is made in connection with an Award) any applicable
taxes required to be withheld with respect to such payments.
13. No Restriction on Right of Company to Effect Corporate Changes
(a) Authority of the Company and Stockholders. The existence of the Plan,
the Award Documents and the Awards granted hereunder shall not affect or
restrict in any way the right or power of the Company or the stockholders of the
Company to make or authorize any adjustment, recapitalization, reorganization or
other change in the Company's capital structure or business, any merger or
consolidation of the Company, any issue of stock or of options, warrants or
rights to purchase stock or of bonds, debentures, preferred or prior preference
stocks whose rights are superior to or affect the Common Stock or the rights
thereof or which are convertible into or exchangeable for Common Stock, or the
dissolution or liquidation of the Company, or any sale or transfer of all or any
part of its assets or business, or any other corporate act or proceeding,
whether of a similar character or otherwise.
(b) Change in Capitalization. Notwithstanding any provision of the Plan or
any Award Document, the number and kind of shares authorized for issuance under
Section 5, including the maximum number of shares available under the special
limits provided for in Section 5(c), may be equitably adjusted in the sole
discretion of the Committee in the event of a stock split, stock dividend,
recapitalization, reorganization, merger, consolidation, extraordinary dividend,
split-up, spin-off, combination, exchange of shares, warrants or rights offering
to purchase Common Stock at a price substantially below Fair Market Value or
other similar corporate event affecting the Common Stock in order to preserve,
but not increase, the benefits or potential benefits intended to be made
available
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under the Plan. In addition, upon the occurrence of any of the foregoing events,
the number of outstanding Awards and the number and kind of shares subject to
any outstanding Award and the exercise price per share, if any, under any
outstanding Award may be equitably adjusted (including by payment of cash to a
Participant) in the sole discretion of the Committee in order to preserve the
benefits or potential benefits intended to be made available to Participants
granted Awards. Such adjustments shall be made by the Committee, in its sole
discretion, whose determination as to what adjustments shall be made, and the
extent thereof, shall be final. Unless otherwise determined by the Committee,
such adjusted Awards shall be subject to the same restrictions and vesting or
settlement schedule to which the underlying Award is subject.
(c) Repricings. The Committee may not effect a Repricing of any Option or
Stock Appreciation Right granted under the Plan without the approval of the
Company's shareholders.
14. Application of Funds
The proceeds received by the Company from the sale of Common Stock pursuant
to Awards will be used for general corporate purposes.
15. Exchange Act
Notwithstanding anything contained in the Plan or any Award Document under
the Plan to the contrary, if the consummation of any transaction under the Plan,
or the taking of any action by the Committee in connection with a change in
control of the Company, would result in the possible imposition of liability on
a Participant pursuant to Section 16(b) of the Exchange Act, the Committee shall
have the right, in its sole discretion, but shall not be obligated, to defer
such transaction or the effectiveness of such action to the extent necessary to
avoid such liability, but in no event for a period longer than 180 days.
16. No Right to Employment
No person shall have any claim or right to receive Awards under the Plan.
Neither the Plan, the grant of Awards under the Plan, nor any action taken or
omitted to be taken under the Plan shall be deemed to create or confer on any
Eligible Individual any right to be retained in the employ of the Company or any
Subsidiary or other affiliate thereof, or to interfere with or to limit in any
way the right of the Company or any Subsidiary or other affiliate thereof to
terminate the employment of such Eligible Individual at any time.
17. Awards to Individuals Subject to Non-U.S. Jurisdictions
To the extent that Awards under the Plan are awarded to individuals who are
domiciled or resident outside of the United States or to persons who are
domiciled or resident in the United States but who are subject to the tax laws
of a jurisdiction outside of the United States, the Committee may adjust the
terms of the Awards granted hereunder to such person (i) to comply with the laws
of such jurisdiction and (ii) to permit the grant of the Award not to be a
taxable event to the Participant. The authority granted under the previous
sentence shall include the discretion for the Committee to adopt, on behalf of
the Company, one or more sub-plans applicable to separate classes of Eligible
Individuals who are subject to the laws of jurisdictions outside of the United
States.
18. Term of the Plan
Unless earlier terminated pursuant to Section 20, the Plan shall terminate
on the 10th anniversary of the Effective Date, except with respect to Awards
then outstanding. No Awards may be granted under the Plan after the 10th
anniversary of the Effective Date.
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19. Effective Date
The Plan shall become effective on the Effective Date. If the Plan is not
approved by the stockholders upon submission to them for approval, the Plan
shall be void ab initio and of no further force and effect.
20. Amendment and Termination
Notwithstanding anything herein to the contrary, the Board or the Committee
may, at any time, terminate or, from time to time, amend, modify or suspend the
Plan; provided, however, that no termination, amendment, modification or
suspension of the Plan shall materially and adversely alter or impair the rights
of a Participant in any Award previously made under the Plan without the consent
of the holder thereof and no amendment which (a) increases the limits set forth
in Section 5(c)(ii), (b) permits a reduction in the exercise price of Options or
Stock Appreciation Rights (or options or stock appreciation rights granted under
another plan of the Company), under circumstances other than in connection with
a transaction or event described in Section 13(b), or (c) materially amends or
modifies any material term of the Plan shall be effective without approval of
the Company's shareholders.
21. Award Document
In the event of any conflict or inconsistency between the Plan and any
Award Document, the Plan shall govern and the Award Document shall be
interpreted to minimize or eliminate any such conflict or inconsistency.
22. Governing Law
The Plan and all agreements entered into under the Plan shall be construed
in accordance with and governed by the laws of the State of Florida and without
giving effect to principles of conflicts of laws.
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