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Exhibit 10.76
INSURANCE MANAGEMENT SOLUTIONS GROUP, INC.
2000 STOCK INCENTIVE PLAN
(Effective as of October 19, 2000,
subject to shareholder approval)
SECTION 1. PURPOSE AND DEFINITIONS
(a) PURPOSE. The purpose of the Insurance Management Solutions Group,
Inc. 2000 Stock Incentive Plan is to promote the best interests of Insurance
Management Solutions Group, Inc., its Subsidiaries and shareholders by providing
for the acquisition of an equity interest in the Company by employees and
certain consultants, advisors and other persons providing services to the
Company and its Subsidiaries and to enable the Company and its Subsidiaries to
retain the services of such individuals upon whose judgment, interests, skills
and efforts the successful conduct of their operations is largely dependent.
(b) DEFINITIONS. The following terms shall have the following
respective meanings unless the context requires otherwise:
(1) The term "Board" shall mean the Board of Directors of the
Company.
(2) A "Change of Control" of the Company shall be deemed to
have occurred if the event set forth in any one of the following paragraphs
shall have occurred:
(A) any "Person" (as such term is defined in Section 3(a)(9)
of the Exchange Act, as modified and used in Sections
13(d) and 14(d) thereof, except that the term "Person"
shall not include (1) the Company or any of its
subsidiaries, (2) Bankers Financial Corporation, Bankers
Insurance Group, Inc. or any of their Subsidiaries, (3) a
trustee or other fiduciary holding securities under an
employee benefit plan of the Company or any of its
Subsidiaries, (4) an underwriter temporarily holding
securities pursuant to an offering of such securities, or
(5) a corporation owned, directly or indirectly, by the
shareholders of the Company in substantially the same
proportions as their ownership of stock in the Company)
is or becomes the "Beneficial Owner" (as defined in Rule
13d-3 under the Exchange Act), directly or indirectly, of
securities of the Company (not including in the
securities beneficially owned by such Person any
securities acquired directly from the Company or its
affiliates) representing 25% or more of either the then
outstanding shares of Stock of the Company or the
combined voting power of the Company's then outstanding
voting securities; or
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(B) during any period of two consecutive years, individuals
who, at the beginning of such period, constituted the
Board cease, for any reason, to constitute at least a
majority thereof, unless the election or nomination for
election of each new director was approved by a vote of
at least two-thirds (2/3) of the directors then still in
office who were directors of the Company at the beginning
of the period; or
(C) the shareholders of the Company approve a merger or
consolidation of the Company with any other corporation
or person as a result of which less than 50% of the
outstanding voting securities of the surviving or
resulting person would be owned by the former
shareholders of the Company (other than a shareholder who
is an "affiliate," as defined in the Exchange Act, of any
party to such consolidation or merger); or
(D) the shareholders of the Company approve a plan of
complete liquidation or dissolution of the Company or an
agreement for the sale or disposition by the Company of
all or substantially all of the Company's assets (in one
transaction or a series of related transactions within
any period of 24 consecutive months), other than a sale
or disposition by the Company of all or substantially all
of the Company's assets to an entity, at least 75% of the
combined voting power of the voting securities of which
are owned by Persons in substantially the same
proportions as their ownership of the Company immediately
prior to such sale.
Notwithstanding the foregoing, no "Change of Control" shall be deemed to have
occurred if there is consummated any transaction or series of integrated
transactions immediately following which the record holders of the shares of
Stock of the Company immediately prior to such transaction or series of
transactions continue to have substantially the same proportionate ownership in
an entity which owns all or substantially all of the assets of the Company
immediately following such transaction or series of transactions.
(3) The term "Code" shall mean the Internal Revenue Code of
1986, or any successor thereto, as the same may be amended and in effect from
time to time.
(4) The term "Committee" shall mean the committee appointed
pursuant to Section 2 to administer the Plan.
(5) The term "Company" shall mean Insurance Management
Solutions Group, Inc. and any successor thereto.
(6) The term "Covered Executive" shall mean the Chief
Executive Officer and the other four highest compensated officers of the Company
and its Subsidiaries at year-end whose compensation is required to be reported
in the Summary Compensation Table of the Company's Proxy Statement.
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(7) The term "Eligible Individual" shall mean any employee of
the Company or a Subsidiary and any consultant, advisor or other person who
provides services to the Company or a Subsidiary, including any person who
provides services to the Company or its Subsidiaries pursuant to a lease or
similar arrangement.
(8) The term "Exchange Act" shall mean the Securities Exchange
Act of 1934, as the same may be amended and in effect from time to time.
(9) For purposes of determining the "Fair Market Value" of a
share of Stock as of any date, the following rules shall apply:
(A) if the principal market for the Stock is a national
securities exchange or the Nasdaq Stock Market, then the
"Fair Market Value" as of that date shall be the average
of the high and low sale prices of the Stock on that date
on the principal exchange or market on which the Stock is
then listed or admitted to trading;
(B) if sale prices are not available or if the principal
market for the Stock is not a national securities
exchange and the Stock is not quoted on the Nasdaq Stock
Market, the average between the highest bid and lowest
asked prices for the Stock on such day as reported on the
Nasdaq OTC Bulletin Board Service or by the National
Quotation Bureau Incorporated or a comparable service; or
(C) if the day is not a business day, and as a result,
paragraphs (A) and (B) next above are inapplicable, the
Fair Market Value of the Stock shall be determined as of
the next earlier business day. If paragraphs (A) and (B)
next above are otherwise inapplicable, then the Fair
Market Value of the Stock shall be determined in good
faith by the Committee.
(10) The term "Net Tangible Book Value Per Share" shall mean
the Net Tangible Book Value of a share of Stock as of the end of the Company's
most recent fiscal quarter ended on or prior to the relevant date, as reported
on the most recent Form 10-Q or Form 10-K filed by the Company with the
Securities and Exchange Commission. The term Net Tangible Book Value per share
of Stock shall be determined by dividing (1) the Company's tangible net worth
(total tangible assets less total liabilities) by (2) the total number of shares
of Stock outstanding. For purposes of determining Net Tangible Book Value,
tangible assets shall exclude (A) intangible assets (including without
limitation goodwill), that cannot be sold separately from all other assets of
the business and (B) any other intangible asset for which recovery of book value
is subject to significant uncertainty or illiquidity.
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(11) The term "Option" or "Options" shall mean the option to
purchase Stock in accordance with Section 5 and such other terms and conditions
as may be prescribed by the Committee. An Option may be either an "incentive
stock option", as such term is defined in the Code, or shall otherwise be
designated as an option entitled to favorable treatment under the Code ("ISO"),
or a "nonqualified stock option". ISOs and nonqualified stock options are
individually called an "Option" and collectively called "Options".
(12) The term "Other Stock Based Awards" shall mean awards of
Stock or other rights made in accordance with Section 6.
(13) The term "Participant" shall mean an Eligible Individual
who has been designated for participation in the Plan.
(14) The term "Plan" shall mean the "Insurance Management
Solutions Group, Inc. 2000 Stock Incentive Plan" as the same may be amended and
in effect from time to time.
(15) The term "Stock Appreciation Right" shall mean the right
to receive, without payment to the Company, an amount of cash or Stock as
determined in accordance with Section 5 based upon the amount by which the Fair
Market Value of a share of Stock on the relevant valuation date exceeds the
grant price.
(16) The term "Subsidiary" shall mean any corporation during
any period in which it is a "subsidiary corporation," as that term is defined in
Section 424(f) of the Code, with respect to the Company.
(17) The term "Stock" shall mean shares of the Company's
common stock, par value $.01 per share.
SECTION 2. ADMINISTRATION
(a) COMMITTEE. The Plan shall be administered by a committee of the
Board consisting of not less than two (2) members of the Board who meet the
"outside" director requirements of Section 162(m) of the Code and the
"non-employee director" requirements of Rule 16b-3 of the Exchange Act. The
Committee shall administer the Plan and perform such other functions as are
assigned to it under the Plan. The Committee is authorized, subject to the
provisions of the Plan, to determine those individuals to whom awards will be
granted, to determine the types of awards and the number of shares covered by
awards, to determine the terms, conditions and other provisions of such awards,
to establish such rules and regulations as it may deem appropriate for the
proper administration of the Plan, and to make such determinations under, and
such interpretations of, and to take such steps in connection with, the Plan and
the awards as it may deem necessary or advisable, in each case in its sole
discretion. The Committee's decisions and determinations under the Plan need not
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be uniform and may be made selectively among Participants, whether or not they
are similarly situated. Any authority granted to the Committee may also be
exercised by the Board, except to the extent that the grant or exercise of such
authority would cause any qualified performance-based award to cease to qualify
for exemption under Section 162(m) of the Code. To the extent that any permitted
action taken by the Board conflicts with action taken by the Committee, the
Board action shall control.
(b) DELEGATION OF AUTHORITY. To the extent permitted by applicable law,
the Committee may delegate any or all of its powers and duties under the Plan,
including, but not limited to, its authority to make awards under the Plan, to
one or more executive officers of the Company, pursuant to such conditions or
limitations as the Committee may establish; PROVIDED, HOWEVER, that the
Committee shall not delegate its authority to (1) act on matters affecting any
Participant who is subject to Section 16 of the Exchange Act, or (2) amend or
modify the Plan pursuant to the provisions of Section 11. To the extent of any
such delegation, the term "Committee" when used herein shall mean and include
any such delegate.
SECTION 3. STOCK AVAILABLE FOR PLAN AWARDS
(a) SHARES AVAILABLE. Subject to adjustment as provided in Section
3(b):
(1) NUMBER OF SHARES AVAILABLE. The number of shares of Stock
with respect to which awards may be granted under the Plan shall be 1,000,000,
plus up to 750,000 shares of Stock that are represented by awards granted under
the Insurance Management Solutions Group, Inc. Long Term Incentive Plan, which
are forfeited, expire or are cancelled without delivery of shares of Stock or
which result in the forfeiture of shares of Stock back to the Company. If any
shares of Stock covered by an award granted under the Plan, or to which any
award relates, are forfeited or if an award otherwise terminates, expires or is
cancelled prior to the delivery of all of the shares or of other consideration
issuable or payable pursuant to such award, then the number of shares of Stock
counted against the number of shares available under the Plan in connection with
the grant of such award, to the extent of any such forfeiture, termination,
expiration or cancellation, shall again be available for the granting of
additional awards under the Plan.
(2) LIMITATIONS ON AWARDS TO INDIVIDUAL PARTICIPANTS. No
Covered Executive shall be granted, during any calendar year, (A) Options for
more than 100,000 shares of Stock and (B) Stock Appreciation Rights with respect
to more than 50,000 shares of Stock under the Plan. Such number of shares as
specified in the preceding sentence shall be subject to adjustment in accordance
with the terms of Section 3(b) hereof. In all cases, determinations under this
Section 3(a)(2) shall be made in a manner that is consistent with the exemption
for performance-based compensation provided by Section 162(m) of the Code (or
any successor provision thereto) and any regulations promulgated thereunder.
(3) ACCOUNTING FOR AWARDS. The number of shares of Stock
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) SOURCES OF SHARES DELIVERABLE UNDER AWARDS. Any shares of
Stock delivered pursuant to an award under the Plan may consist, in whole or in
part, of authorized and unissued shares or of treasury shares.
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(b) ADJUSTMENTS. In the event that the Committee shall determine that
any dividend or other distribution (whether in the form of cash, shares of
Stock, other securities, or other property), recapitalization, stock split,
reverse stock split, reorganization, merger, consolidation, split-up, spin-off,
combination, repurchase, or exchange of shares or other securities of the
Company, issuance of warrants or other rights to purchase shares or other
securities of the Company, or other similar corporate transaction or event
affects the shares of Stock 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 (1) the number and type of shares of Stock subject to the Plan and which
thereafter may be made the subject of awards under the Plan, (2) the number and
type of shares of Stock which may be granted to an individual participant under
the Plan, (3) the number and type of shares of Stock subject to outstanding
awards, and (4) the grant, purchase, or exercise price with respect to any
award; or, if deemed appropriate, make provision for a cash payment to the
holder of an outstanding award in lieu of such adjustment or in exchange for
cancellation of such award; PROVIDED, HOWEVER, in each case, that with respect
to awards of ISOs no such adjustment shall be authorized to the extent that such
authority would cause the Plan to violate Section 422(b) of the Code (or any
successor provision thereto); and PROVIDED FURTHER that the number of shares
subject to any award payable or denominated in shares shall always be a whole
number.
SECTION 4. ELIGIBILITY
Participants in the Plan shall be selected by the Committee from among
those Eligible Individuals as the Committee may designate from time to time. The
Committee shall consider such factors as it deems appropriate in selecting
Participants and in determining the type and amount of their respective awards.
The Committee's designation of a Participant in any year shall not require the
Committee to designate such person to receive an award in any other year.
SECTION 5. OPTIONS AND STOCK APPRECIATION RIGHTS
(a) GRANT OF OPTIONS.
(1) The Committee, at any time and from time to time while the
Plan is in effect, may authorize the granting of Options to Eligible Individuals
for such number of shares as it shall designate, subject to the provisions of
this Section 5 and Section 3. Each Option granted pursuant to the Plan shall be
designated at the time of grant as either an ISO or a nonqualified stock option;
PROVIDED, HOWEVER, that only Eligible Individuals who are employees of the
Company or one of its Subsidiaries at the time of grant may receive grants of
ISOs.
(2) The date on which an Option is granted shall be the date
of authorization of such grant or such later date as may be determined at the
time such grant is authorized. Any individual may hold more than one Option.
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(b) EXERCISE PRICE. The exercise price per share of an Option granted
under the Plan shall not be less than 100% of the Fair Market Value of a share
of Stock on the date of grant of such Option, or, if greater, the Net Tangible
Book Value Per Share on the date of grant of such Option.
(c) GRANT OF STOCK APPRECIATION RIGHTS.
(1) The Committee, at any time and from time to time while the
Plan is in effect, may authorize the granting of Stock Appreciation Rights to
Eligible Individuals for such numbers of shares as it shall designate, subject
to the provisions of this Section 5 and Section 3. Each Stock Appreciation Right
may relate to all or a portion of a specific Option granted under the Plan and
may be granted concurrently with the Option to which it relates or at any time
prior to the exercise, termination or expiration of such Option (a "Tandem
SAR"), or may be granted independently of any Option, as determined by the
Committee. If the Stock Appreciation Right is granted independently of an
Option, the grant price of such right shall be the Fair Market Value of Stock on
the date of grant, or, if greater, the Net Tangible Book Value Per Share on the
date of grant; PROVIDED, HOWEVER, that the Committee may, in its discretion, fix
a grant price in excess of the Fair Market Value of Stock on such grant date.
(2) Upon exercise of a Stock Appreciation Right, the
Participant shall be entitled to receive, without payment to the Company, either
(A) that number of shares of Stock determined by dividing (i) the total number
of shares of Stock subject to the Stock Appreciation Right being exercised by
the Participant, multiplied by the amount by which the Fair Market Value of a
share of Stock on the day the right is exercised exceeds the grant price (such
amount being hereinafter referred to as the "Spread"), by (ii) the Fair Market
Value of a share of Stock on the exercise date; or (B) cash in an amount
determined by multiplying (i) the total number of shares of Stock subject to the
Stock Appreciation Right being exercised by the Participant, by (ii) the amount
of the Spread; or (C) a combination of shares of Stock and cash, in amounts
determined as set forth in clauses (A) and (B) above, as determined by the
Committee in its sole discretion; PROVIDED, HOWEVER, that, in the case of a
Tandem SAR, the total number of shares which may be received upon exercise of a
Stock Appreciation Right for Stock shall not exceed the total number of shares
subject to the related Option or portion thereof, and the total amount of cash
which may be received upon exercise of a Stock Appreciation Right for cash shall
not exceed the Fair Market Value on the date of exercise of the total number of
shares subject to the related Option or portion thereof.
(d) TERMS AND CONDITIONS.
(1) Each Option and Stock Appreciation Right granted under the
Plan shall be exercisable on such date or dates, during such period, for such
number of shares of Stock and subject to such further conditions as shall be
determined pursuant to the provisions of the award agreement with respect to
such Option and Stock Appreciation Right; PROVIDED, HOWEVER, that a Tandem SAR
shall not be exercisable prior to or later than the time the related Option
could be exercised; and PROVIDED, FURTHER, that in any event no ISO shall be
exercised beyond ten years from the date of grant.
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(2) The Committee may impose such conditions as it may deem
appropriate upon the exercise of an Option or a Stock Appreciation Right,
including, without limitation, a condition that the Stock Appreciation Right may
be exercised only in accordance with rules and regulations adopted by the
Committee from time to time.
(3) With respect to Options issued with Tandem SARs, the right
of a Participant to exercise a Stock Appreciation Right shall be cancelled if
and to the extent the related Option is exercised, and the right of a
Participant to exercise an Option shall be cancelled if and to the extent that
shares covered by such Option are used to calculate shares or cash received upon
exercise of the Tandem SAR.
(4) If any fractional share of Stock would otherwise be
payable to a Participant upon the exercise of an Option or Stock Appreciation
Right, the Participant shall be paid a cash amount equal to the same fraction of
the Fair Market Value of the Stock on the date of exercise.
(e) REDESIGNATION AS NONQUALIFIED STOCK OPTION. If an ISO at any time
fails to meet the requirements of Section 422 of the Code, such option, to the
extent the requirements of Section 422 of the Code are not met, shall be treated
as a nonqualified stock option for Federal income tax purposes automatically
without further action by the Committee, effective as of the first date on which
any such requirement is not met.
(f) AWARD AGREEMENT. Each Option and Stock Appreciation Right shall be
evidenced by an award agreement in such form and containing such provisions not
inconsistent with the provisions of the Plan as the Committee from time to time
shall approve.
(g) PAYMENT FOR OPTION SHARES.
(1) Payment for shares of Stock purchased upon exercise of an
Option granted hereunder shall be made, either in full or, if the Committee
shall so determine and at the election of the Participant, in installments, in
such manner as provided in the applicable award agreement.
(2) The Committee shall determine the methods and the forms
for payment of the exercise price, including (A) by delivery of cash or shares
of Stock (either actual delivery or by attestation) which have been beneficially
owned by the Participant for a period of not less than six months prior to the
date of exercise, (B) by delivery (including by fax) to the Company or its
designated agent of an executed option exercise form together with irrevocable
instructions to a broker-dealer to sell or margin a sufficient portion of the
Stock and deliver the sale or margin loan proceeds directly to the Company to
pay the exercise price, or (C) by a combination of cash and Stock. Any shares of
Stock so delivered shall be valued at their Fair Market Value on the date of
such exercise.
(h) CERTAIN REPLACEMENT OPTIONS. Without in any way limiting the
authority of the Committee to make grants of Options to Participants hereunder,
and in order to induce Participants to retain ownership of the Stock acquired
upon the exercise of Options, the Committee shall have the authority (but not an
obligation) to include within any agreement setting forth the terms of any
Options (or any amendment thereto) a provision entitling a Participant to
further Options ("Replacement Options") in the event the Participant exercises
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any Options (including a Replacement Option) under the Plan, in whole or in
part, by surrendering previously acquired shares of Stock. Any such Replacement
Options shall (1) be nonqualified stock options, exercisable at an exercise
price, unless otherwise determined by the Committee, of one hundred percent
(100%) of the Fair Market Value of the shares of Stock on the date the
Replacement Options are granted, (2) be for a number of shares of Stock equal to
the number of shares surrendered, (3) only become exercisable on the terms
specified by the Committee in the event the Participant holds, for a minimum
period of time prescribed by the Committee, the shares of Stock the Participant
acquired upon the exercise in connection with which the Replacement Options were
issued, and (4) be subject to such other terms and conditions as the Committee
may determine.
SECTION 6. STOCK AND OTHER STOCK-BASED AND COMBINATION AWARDS
(a) GRANTS OF OTHER STOCK-BASED AWARDS. The Committee, at any time and
from time to time while the Plan is in effect, may grant Other Stock Based
Awards to Eligible Individuals, as it may select. Such awards pursuant to which
Stock is or may in the future be acquired, or awards valued or determined in
whole or part by reference to, or otherwise based on, Stock, may include, but
are not limited to awards of restricted Stock or awards denominated in the form
of "stock units", grants of so-called "phantom stock" and options containing
terms or provisions differing in whole or in part from Options granted pursuant
to Section 5. Other Stock-Based Awards may be granted either alone, in addition
to, in tandem with or as an alternative to any other kind of award, grant or
benefit granted under the Plan or under any other employee plan of the Company,
including a plan of any acquired entity.
(b) TERMS AND CONDITIONS. Subject to the provisions of the Plan, the
Committee shall have authority to determine the time or times at which Other
Stock-Based Awards shall be made, the number of shares of Stock or stock units
and the like to be granted or covered pursuant to such awards (subject to the
provisions of Section 3) and all other terms and conditions of such awards,
including, but not limited to, whether such awards shall be payable or paid in
cash, Stock or otherwise.
(c) CONSIDERATION FOR OTHER STOCK-BASED AWARDS. In the discretion of
the Committee, any Other-Stock Based Award may be granted as a Stock bonus for
no consideration other than services rendered.
SECTION 7. NON-TRANSFERABILITY OF AWARDS; RESTRICTIONS ON DISPOSITION AND
EXERCISE OF AWARDS
(a) RESTRICTIONS ON TRANSFER OF OPTIONS OR STOCK APPRECIATION RIGHTS.
Unless the Committee determines otherwise, no Option or Stock Appreciation Right
shall be transferable by a Participant otherwise than by will or the laws of
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descent and distribution, and during the lifetime of a Participant the Option or
Stock Appreciation Right shall be exercisable only by such Participant or such
Participant's guardian or legal representative.
(b) RESTRICTIONS ON TRANSFER OF CERTAIN OTHER STOCK-BASED AWARDS.
Unless the Committee determines otherwise, no Other-Stock Based Award shall be
transferable by a Participant otherwise than by will or the laws of descent and
distribution, and during the lifetime of a Participant any such Other-Stock
Based Award shall be exercisable only by such Participant or such Participant's
guardian or legal representative.
(c) ATTACHMENT AND LEVY. No award shall be subject, in whole or in
part, to attachment, execution or levy of any kind, and any purported transfer
in violation hereof shall be null and void. Without limiting the generality of
the foregoing, no domestic relations order purporting to authorize a transfer of
an award, or to grant to any person other than the Participant the authority to
exercise or otherwise act with respect to an award, shall be recognized as
valid.
SECTION 8. DESIGNATION OF BENEFICIARIES
Anything contained in the Plan to the contrary notwithstanding, a
Participant may file with the Company a written designation of a beneficiary or
beneficiaries under the Plan (subject to such limitations as to the classes and
number of beneficiaries and contingent beneficiaries and such other limitations
as the Committee from time to time may prescribe). A Participant may from time
to time revoke or change any such designation of beneficiary. Any designation of
beneficiary under the Plan shall be controlling over any other disposition,
testamentary or otherwise; PROVIDED, HOWEVER, that if the Committee shall be in
doubt as to the entitlement of any such beneficiary to any Option, Stock
Appreciation Right or Other Stock-Based Award, or if applicable law requires the
Company to do so, the Committee may determine to recognize only the legal
representative of such Participant, in which case the Company, the Committee and
the members thereof shall not be under any further liability to anyone. In the
event of the death of any Participant, the term "Participant" as used in the
Plan shall thereafter be deemed to refer to the beneficiary designated pursuant
to this Section 8 or, if no such designation is in effect, the executor or
administrator of the estate of such Participant, unless the context otherwise
requires.
SECTION 9. CHANGE OF CONTROL
In the event of a Change of Control, the Board in its discretion may,
at the time an award is made or at anytime thereafter, take one or more of the
following actions: (a) provide for the acceleration of any time period relating
to the exercise or realization of the award; (b) provide for the purchase of the
award for an amount of cash or other property that could have been received upon
the exercise or realization of the award had the award been currently
exercisable or payable; (c) adjust the terms of the award in the manner
determined by the Board to reflect the Change of Control; (d) cause the award to
be assumed, or new right substituted therefor, by another entity; or (e) make
such other provision as the Board may consider equitable and in the best
interests of the Company.
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Notwithstanding anything contained in this Section 9, the Board may, in
its sole and absolute discretion, amend, modify or rescind the provisions of
this Section 9 if it determines that the operation of this Section 9 may prevent
a transaction in which the Company or any Subsidiary is a party from being
accounted for on a pooling-of-interests basis; PROVIDED, HOWEVER, that in such
event, the Board shall take such action as it deems appropriate in order to
maintain the benefits intended to be provided by awards granted under the Plan,
based on the value (as determined by the Board) reflected by any awards
outstanding under the Plan prior to the date such action is taken by the Board.
SECTION 10. RIGHTS AS A SHAREHOLDER
A Participant shall not have any rights as a shareholder with respect
to any share covered by any award until such Participant shall have become the
holder of record of such share.
SECTION 11. TERM, AMENDMENT, MODIFICATION AND TERMINATION OF THE PLAN AND
AGREEMENTS
(a) TERM. Unless terminated earlier pursuant to subsection (b), the
Plan shall terminate on October 18, 2010 (the "Termination Date"). However,
unless otherwise expressly provided in the Plan or in an applicable award
agreement, any award granted before the Termination Date may extend beyond the
Termination Date and, to the extent set forth in the Plan, the authority of the
Board to amend, alter, 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 the Termination
Date.
(b) AMENDMENT, MODIFICATION AND TERMINATION OF PLAN. The Board may,
from time to time, amend or modify the Plan or any outstanding award, including
without limitation, to authorize the Committee to make awards payable in other
securities or other forms of property of a kind to be determined by the
Committee, and such other amendments as may be necessary or desirable to
implement such awards, or terminate the Plan or any provision thereof, PROVIDED,
HOWEVER, shareholder approval of any amendment of the Plan shall be obtained if
otherwise required by the Code or any rules promulgated thereunder or any
securities laws.
(c) AMENDMENT OF AWARD AGREEMENT. The Committee may, at any time, amend
any award agreement, subject to any restrictions or limitations provided herein
or in such agreement. The Committee may, in whole or in part, waive any
conditions or other restrictions with respect to any award granted under the
Plan.
(d) NO ADVERSE EFFECT. No amendment to or termination of the Plan or
any provision hereof, and no amendment or cancellation of any outstanding award,
by the Board or the shareholders of the Company, shall, without the written
consent of the affected Participant, adversely affect any outstanding award,
except as specifically provided in Section 3(b) or Section 9. The Committee's
authority to act with respect to any outstanding award shall survive termination
of the Plan.
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(e) CHANGES FOR LAWS. Notwithstanding the foregoing provisions, the
Board shall have authority to amend outstanding awards and the Plan to take into
account changes in law and tax and accounting rules as well as other
developments, and to grant awards that qualify for beneficial treatment under
such rules without shareholder approval.
SECTION 12. TAXES
The Company shall be entitled to withhold the amount of any tax
attributable to any amount payable or shares of Stock deliverable under the Plan
after giving the person entitled to receive such amount or shares of Stock
notice as far in advance as practicable, and the Company may defer making
payment or delivery if any such tax may be pending unless and until indemnified
to its satisfaction. The Committee may, in its discretion and subject to such
rules as it may adopt, permit a Participant to pay all or a portion of the
federal, state and local withholding taxes arising in connection with (a) the
exercise of a nonqualified stock option or (b) a disqualifying disposition of
Stock received upon the exercise of an ISO by electing to (i) have the Company
withhold shares of Stock, (ii) tender back shares of Stock received in
connection with such benefit, or (iii) deliver other previously owned shares of
Stock, in each case having a Fair Market Value equal to the amount to be
withheld; PROVIDED, however, that the amount to be withheld shall not exceed the
Participant's minimum total federal, state and local tax obligations associated
with the transaction. The election must be made on or before the date as of
which the amount of tax to be withheld is determined and the payment of such
amount is otherwise required by the Committee. The Fair Market Value of
fractional shares of Stock remaining after payment of the withholding taxes
shall be paid to the Participant in cash.
SECTION 13. FINALITY OF DETERMINATIONS
Each determination, interpretation, or other action made or taken
pursuant to the provisions of the Plan by the Board, the Committee or any
executive officers of the Company administering the Plan shall be final and
shall be binding and conclusive for all purposes and upon all persons,
including, but without limitation thereto, the Company, the shareholders, the
Committee and each of the members thereof, and the directors, officers, and
employees of the Company and its Subsidiaries, the Participants, and their
respective successors in interest.
SECTION 14. NO RIGHTS TO CONTINUED EMPLOYMENT OR TO PLAN AWARD
(a) NO RIGHT TO EMPLOYMENT. Nothing contained in this Plan, or in any
booklet or document describing or referring to the Plan, shall be deemed to
confer on any Participant the right to continue as an employee or director of
the Company or a Subsidiary, whether for the duration of any vesting period
under an award, or otherwise, or affect the right of the Company or a Subsidiary
to terminate the employment or service of any Participant for any reason.
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(b) NO RIGHT TO AWARD. No employee or other person shall have any claim
or right to be granted an award under the Plan. Having received an award under
the Plan shall not give a Participant or any other person any right to receive
any other award under the Plan. A Participant shall have no rights in any award,
except as set forth herein and in the applicable award grant.
SECTION 15. GOVERNING LAW AND CONSTRUCTION
(a) GOVERNING LAW. The Plan and all actions taken hereunder shall be
governed by, and the Plan shall be construed in accordance with, the laws of the
State of Florida without regard to the principle of conflict of laws. Titles and
headings to Sections are for purposes of reference only, and shall in no way
limit, define or otherwise affect the meaning or interpretation of the Plan. Any
legal action or proceeding with respect to this Plan, any award or any award
agreement, or for recognition and enforcement of any judgment in respect
thereof, may only be brought and determined in a court sitting in the County of
Hillsborough or the County of Pinellas, in the State of Florida.
(b) SEVERABILITY. If any provision of the Plan or any award agreement
or any award (1) is or becomes or is deemed to be invalid, illegal or
unenforceable in any jurisdiction, or as to any person or award, or (2) would
disqualify the Plan, any award agreement or any award under any law deemed
applicable by the Committee, then such provision shall be construed or deemed
amended to conform to applicable laws, or if it cannot be so construed or deemed
amended without, in the determination of the Committee, materially altering the
intent of the Plan, any award agreement or the award, such provision shall be
stricken as to such jurisdiction, person or award, and the remainder of the
Plan, any such award agreement and any such award shall remain in full force and
effect.
SECTION 16. OTHER PROVISIONS AND SECURITIES AND STOCK EXCHANGE REQUIREMENTS
(a) OTHER PROVISIONS. The grant of any award under the Plan may also be
subject to other provisions (whether or not applicable to the benefit awarded to
any other Participant) as the Committee determines appropriate, including,
without limitation, provisions for (1) the Participant's agreement to abide by
any non-disclosure or non-compete requirements or restrictions as specified in
the Participant's award agreement; (2) one or more means to enable Participants
to defer recognition of taxable income relating to awards or cash payments
derived therefrom, which means may provide for a return to a Participant on
amounts deferred as determined by the Committee (PROVIDED that no such deferral
means may result in an increase in the number of shares of Stock issuable
hereunder); (3) the purchase of Stock under options in installments; or (4) the
financing of the purchase of Stock under the options in the form of a promissory
note issued to the Company by a Participant on such terms and conditions as the
Committee determines.
(b) RESTRICTIONS ON RESALE. Notwithstanding any other provision of the
Plan, no person who acquires Stock pursuant to the Plan may, during any period
of time that such person is an affiliate of the Company (within the meaning of
the rules and regulations of the Securities Exchange Commission), sell or
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otherwise transfer such Stock, unless such offer and sale or transfer is made
(1) pursuant to an effective registration statement under the Securities Act of
1933 ("1933 Act"), which is current and includes the Stock to be sold, or (2)
pursuant to an appropriate exemption from the registration requirements of the
1933 Act, such as that set forth in Rule 144 promulgated pursuant thereto.
(c) REGISTRATION, LISTING AND QUALIFICATION OF SHARES OF COMMON STOCK.
Notwithstanding any other provision of the Plan, if at any time the Committee
shall determine that the registration, listing or qualification of the Stock
covered by an award upon any securities exchange or under any foreign, federal,
state or local law or practice, or the consent or approval of any governmental
regulatory body, is necessary or desirable as a condition of, or in connection
with, the granting of such award or the purchase or receipt of Stock in
connection therewith, no Stock may be purchased, delivered or received pursuant
to such award unless and until such registration, listing, qualification,
consent or approval shall have been effected or obtained free of any condition
not acceptable to the Committee. Any person receiving or purchasing Stock
pursuant to an award shall make such representations and agreements and furnish
such information as the Committee may request to assure compliance with the
foregoing or any other applicable legal requirements. The Company shall not be
required to issue or deliver any certificate or certificates for Stock under the
Plan prior to the Committee's determination that all related requirements have
been fulfilled. The Company shall in no event be obligated to register any
securities pursuant to the 1933 Act or applicable state or foreign law or to
take any other action in order to cause the issuance and delivery of such
certificates to comply with any such law, regulation, or requirement.
SECTION 17. EFFECTIVE DATE
The Plan shall become effective on October 19, 2000, subject to the
approval of the Plan by the shareholders of the Company within twelve (12)
months before or after the date of adoption of the Plan by the Board. To the
extent that any awards are made under the Plan prior to its approval by
shareholders, the awards shall be contingent on approval of the Plan by the
shareholders of the Company.
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