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EXHIBIT 10.9
KEY EMPLOYEE LONG-TERM
INCENTIVE STOCK PLAN
The Wackenhut Corporation
July 1991
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The Wackenhut Corporation
Key Employee Long-Term Incentive Stock Plan
TABLE OF CONTENTS
Article Section Page
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1 ESTABLISHMENT, PURPOSE, AND DURATION
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1.1 Establishment of the Plan 1
1.2 Purpose of the Plan 1
1.3 Duration of the Plan 2
2 DEFINITIONS AND CONSTRUCTION
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2.1 Definitions 2
2.2 Gender and Number 8
2.3 Severability 8
3 ADMINISTRATION
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3.1 The Committee 9
3.2 Authority of the Committee 9
3.3 Decisions Binding 9
3.4 Procedures of the Committee 10
3.5 Award Agreements 10
4 SHARES SUBJECT TO THE PLAN
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4.1 Number of Shares 11
4.2 Lapsed Awards 11
4.3 Adjustments in Authorized Shares 11
5 ELIGIBILITY AND PARTICIPATION
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5.1 Eligibility 12
5.2 Actual Participation 12
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Article Section Page
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6 STOCK OPTIONS
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6.1 Grant of Options 12
6.2 Option Agreement 13
6.3 Option Price 13
6.4 Duration of Options 13
6.5 Exercise of Options 13
6.6 Payment 14
6.7 Restrictions on Share Transferability 14
6.8 Termination of Employment Due to Death, Disability, or Retirement 15
6.9 Termination of Employment for Other Reasons 16
6.10 Nontransferability of Options 16
7 RESTRICTED STOCK UNITS
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7.1 Grant of Restricted Stock Units 16
7.2 Restricted Stock Unit Agreement 16
7.3 Vesting 17
7.4 Other Restrictions 17
7.5 Payment 17
7.6 Dividend Equivalents 17
7.7 Termination of Employment Due to Death, Disability or Retirement 18
7.8 Termination of Employment for Other Reasons 18
8 PERFORMANCE UNITS AND PERFORMANCE SHARES
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8.1 Grant of Performance Units and Performance Shares 19
8.2 Value of Performance Units and Performance Shares 19
8.3 Payment of Performance Units and Performance Shares 19
8.4 Form and Timing of Payment 20
8.5 Termination of Employment Due to Death, Disability or Retirement 20
8.6 Termination of Employment for Other Reasons 20
8.7 Nontransferability 20
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Article Section Page
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9 RIGHTS OF EMPLOYEES
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9.1 Employment 21
9.2 Participation 21
10 CHANGE IN CONTROL
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10.1 Stock Based Awards 21
10.2 Performance Based Awards 21
11 AMENDMENT, MODIFICATION, AND TERMINATION
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11.1 Amendment, Modification, and Termination 22
11.2 Awards Previously Granted 23
12 WITHHOLDING
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12.1 Tax Withholding 23
12.2 Share Withholding 23
13 REDEMPTION OF COMMON STOCK ON TERMINATION OF EMPLOYMENT 24
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14 INDEMNIFICATION 24
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15 SUCCESSORS 25
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16 REQUIREMENTS OF LAW
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16.1 Requirements of Law 25
16.2 Governing Law 25
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THE WACKENHUT CORPORATION
KEY EXECUTIVE LONG-TERM INCENTIVE STOCK PLAN
ARTICLE 1. ESTABLISHMENT, PURPOSE, AND DURATION
1.1 Establishment of the Plan. The Wackenhut Corporation
(hereinafter referred to as the "Company"), a Florida corporation, hereby
establishes an incentive compensation plan to be known as the "Key Executive
Long-Term Incentive Stock Plan" (hereinafter referred to as the "Plan"), as set
forth in this document. The Plan permits the grant of Nonqualified Stock
Options, Incentive Stock Options, Restricted Stock Units, Performance Units,
and Performance Shares.
Upon approval by the Board of Directors of the Company, subject to
ratification withing twelve (12) months by an affirmative vote of a majority of
Shares of the Common Stock present and entitled to vote at the Annual Meeting
at which a quorum is present, the Plan shall become effective as of August 1,
1991 (the "Effective Date"), and shall remain in effect as provided in Section
1.3 herein.
1.2 Purpose of the Plan. The purpose of the Plan is to promote
the success, and enhance the value, of the Company by providing incentives to
Key Employees that will link their personal interests to those of Company
shareholders, and provide an incentive for outstanding performances.
The Plan is further intended to provide flexibility to the Company in
its ability to motivate, attract, and retain the services of Key Employees upon
whose judgment, interest, and special effort the successful conduct of its
operations largely is dependent.
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1.3 Duration of the Plan. The Plan shall commence on the
Effective Date, as described in Section 1.1 herein, and shall remain in effect,
subject to the right of the Board of Directors to terminate the Plan at any
time pursuant to Article 12 herein, until all Shares subject to it shall have
been purchased or acquired according to the Plan's provisions. However, in no
event may an Award be granted under the Plan on or after the tenth (10th)
anniversary of the Plan's Effective Date.
ARTICLE 2. DEFINITIONS AND CONSTRUCTION
2.1 Definitions. Whenever used in the Plan, the following terms
shall have the meanings set forth below and, when the meaning is intended,
the initial letter of the word is capitalized:
(a) "Award" means, individually or collectively, a grant
under this Plan of Nonqualified Stock Options,
Incentive Stock Options, Restricted Stock Units,
Performance Units or Performance Shares.
(b) "Beneficial Owner" shall have the meaning ascribed to
such term in Rule 13d-3 of the General Rules and
Regulations under the Exchange Act.
(c) "Board" or "Board of Directors" means the Board of
Directors of the Wackenhut Corporation.
(d) "Cause" means (i) willful and gross misconduct on the
part of a Participant that is materially and
demonstrably detrimental to the Company; or
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(ii) the commission by a Participant of one or more
acts which constitute an indictable crime under
United States Federal, state, or local law. "Cause"
under either (i) or (ii) shall be determined in good
faith by a written resolution duly adopted by the
affirmative vote of not less than two-thirds (2/3) of
all the Directors at a meeting duly called and held
for that purpose after reasonable notice to the
Participant and opportunity for the Participant and
his or her legal counsel to be heard.
(e) "Change in Control" of the Company shall be deemed to
have occurred if the conditions set forth in any one
or more of the following paragraphs shall have been
satisfied:
(i) Any Person (other than a trustee or
other fiduciary holding securities
under an employee benefit plan of
the Company, or a corporation owned
directly or indirectly by the
stockholders of the Company in
substantially the same proportions
as their ownership of Shares of the
Company), 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
securities; or
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(ii) During any period of two (2) consecutive years (not
including any period prior to the execution of this
Plan), individuals who at the beginning of such period
constitute the Board (and any new Director, whose
election by the Board or nomination for election by the
Company's stockholders was approved by a vote of at
least two-thirds (2/3) of the Directors then still in
office who either were Directors at the beginning of
the period or whose election or nomination for election
was previously so approved), cease for any reason to
constitute a majority thereof; or
(iii) The stockholders of the Company approve (a) a plan of
complete liquidation of the Company; or (b) an
agreement for the sale or disposition of all or
substantially all the Company's assets; or (c) a merger
or consolidation of the Company with any other
corporation, other than a merger or consolidation which
would result in the voting securities of the Company
outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being
converted into voting securities of the surviving
entity), at least 50% of the combined voting securities
of the Company (or such surviving entity) outstanding
immediately after such merger or consolidation.
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However, in no event shall a Change in Control be
deemed to have occurred, with respect to the
Participant, if the Participant is part of a purchasing
group which consummates the Change-in-Control
transaction. A Participant shall be deemed "part of a
purchasing group..." for purposes of the preceding
sentence if the Participant is an equity participant or
has agreed to become an equity participant in the
purchasing company or group (except for (i) passive
ownership of less than 5% of the Shares of the
purchasing company; or (ii) ownership of equity
participation in the purchasing company or group which
is otherwise not deemed to be significant, as
determined prior to the Change in Control by a majority
of the disinterested Directors).
(f) "Code" means the Internal Revenue Code of 1986, as
amended from time to time.
(g) "Committee" means the Nominating and Compensation
Committee of the Board, or any other committee
appointed by the Board to administer the Plan pursuant
to Article 3 herein.
(h) "Company means The Wackenhut Corporation, a Florida
corporation (including any and all subsidiaries), or
any successor thereto as provided in Article 15 herein.
(i) "Director" means any individual who is a member of the
Board of Directors of the Company.
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(j) "Disability means a permanent and total disability,
within the meaning of the Code Section 22(e) (3),
as determined by the Committee in good faith, upon
receipt of sufficient competent medical advice from
one or more individuals, selected by the Committee, who
are qualified to give professional medical advice.
(k) "Employee" means any full-time, nonunion employee of
the Company. Directors who are not otherwise employed
by the Company shall not be considered employees under
this Plan.
(l) "Exchange Act" means the Securities Exchange Act of
1934, as amended from time to time, or any successor
Act thereto.
(m) "Fair Market Value" means the average of the highest
and lowest price at which the Stock was traded on the
five business days preceding the date of an award, as
reported on the consolidated tape of the New York Stock
Exchange.
(n) "Incentive Stock Option" or "ISO" means an option to
purchase Shares, granted under Article 6 herein, which
is designated as an Incentive Stock Option and is
intended to meet the requirements of Section 422A of
the Code.
(o) "Key Employee" means an employee of the Company,
including an employee who is an officer of the Company,
who, in the opinion of members of the Committee, can
contribute significantly to the
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growth and profitability of the Company. "Key
Employee" also may include those employees, identified
by the Committee, in situations concerning
extraordinary performance, promotion, retention, or
recruitment. The granting of an Award under this Plan
shall be deemed a determination by the Committee that
such employee is a Key Employee.
(p) "Nonqualified Stock Option" or "NQSO" means an option
to purchase Shares, granted under Article 6 herein,
which is not intended to be an Incentive Stock Option.
(q) "Option means an Incentive Stock Option or a
Nonqualified Stock Option.
(r) "Option Price" means the price at which a share may be
purchased by a Participant pursuant to an Option, as
determined by the Committee.
(s) "Participant" means a Key Employee of the Company who
has an outstanding Award granted under the plan.
(t) "Performance Share" means an Award, designated as a
performance share, granted to a Participant pursuant
to Article 8 herein.
(u) "Performance Unit" means an Award, designated as a
performance unit, granted to a Participant pursuant to
Article 8 herein.
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(v) "Period of Restriction" means the period during
which the transfer of Shares covered by each grant
of Restricted Stock Units is restricted in some way
(based on the passage of time, the achievement of
performance goals, or upon the occurrence of other
events as determined by the Committee, at its
discretion), and is subject to a substantial risk of
forfeiture, as provided in Article 7 herein.
(w) "Person" shall have the meaning ascribed to such term
in Section 3(a) (9) of the Exchange Act and used in
Sections 13(d) and 14(d) thereof, including a "group"
as defined in Section 13(d)
(x) "Restricted Stock Unit" means an Award granted to a
Participant pursuant to Article 7 herein.
(y) "Stock" or "Shares" means the $.10 par value common
stock of The Wackenhut Corporation.
2.2 Gender and Number. Except where otherwise indicated by the
context, any masculine term used herein also shall include the feminine; the
plural shall include the singular and the singular shall include the plural.
2.3 Serverability. In the event any provision of the Plan shall be
held illegal or invalid for any reason, the illegality or invalidity shall not
affect the remaining parts of the Plan, and the Plan shall be construed and
enforced as if the illegal or invalid provision had not been included.
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ARTICLE 3. ADMINISTRATION
3.1 The Committee. The Plan shall be administered by the
Nominating and Compensation Committee of the Board, or by any other Committee
appointed by the Board consisting of not less than two (2) Directors who are
not Employees. The members of the Committee shall be appointed from time to
time by, and shall serve at the discretion of, the Board of Directors. No
member of the Committee shall be eligible to participate in the Plan or any
similar Plan of the Company or any of its Subsidiaries while serving on the
Committee or shall have been so eligible at any time within one (1) year prior
to his or her service on the Committee.
3.2 Authority of the Committee. Subject to the provisions herein
and subject to ratification by the Board, the committee shall have full power to
select Key Employees to whom Awards are granted; to determine the size and
types of Awards; to determine the terms and conditions of such Awards in a
manner consistent with the Plan; to construe and interpret the Plan and any
agreement or instrument entered into under the Plan; to establish, amend, or
waive rules and regulations for the Plan's administration; and (subject to the
provisions of Article 11 herein) to amend the terms and conditions of any
outstanding Award to the extent such terms and conditons are within the
discretion of the Committee as provided in the Plan. Further, the Committee
shall have the full power to make all other determinations which may be
necessary or advisable for the administration of the Plan.
3.3 Decisions Binding. All determinations and decisions made by
the Committee pursuant to the provisions of the Plan and all related orders or
resolutions of the Board of Directors shall be final, conclusive, and binding
on all Persons, including the
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Company, its stockholders, employees, Participants, and their estates and
beneficiaries.
3.4 Procedures of the Committee. All determinations of the
Committee shall be made by not less than a majority of its members present at
the meeting (in person or otherwise) at which a quorum is present. A majority
of the entire Committee shall constitute a quorum for the transaction of
business. Any action required or permitted to be taken at a meeting of the
Committee may be taken without a meeting if a unanimous written consent, which
sets forth the action, is signed by each member of the Committee and filed with
the minutes for proceedings of the Committee. No member of the Committee shall
be liable, in the absence of bad faith, for any act or omission with respect to
his or her services on the Committee. Service on the Committee shall
constitute service as a director of the Company so that members of the
Committee shall be entitled to indemnification (as provided in Article 14
herein), and limitation of liability and reimbursement with respect to their
services as members of the Committee to the same extent as for services as
directors of the Company
3.5 Award Agreements. Each Award under the Plan shall be evidenced
by an award agreement which shall be signed by an officer of the Company and by
the Participant, and shall contain such terms and conditions as may be approved
by the Committee, which need not be the same in all cases. Any award agreement
may be supplemented or amended in writing from time to time as approved by the
Committee, provided that the terms of such agreements as amended or
supplemented, as well as the terms of the original award agreement, are not
inconsistent with the provisions of the Plan.
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ARTICLE 4. SHARES SUBJECT TO THE PLAN
4.1 Number of Shares. Subject to adjustment as provided in Section
4.3 herein, no more than 250,000 Shares may be granted under the Plan, of which
no more than 100,000 may be issued in payment of Restricted Stock Units under
Article 7 of the Plan. Stock delivered under the Plan may consist, in whole or
in part, of authorized and unissued Shares or treasury Shares. The payment of
Performance Units or Performance Shares shall not be deemed to constitute an
issuance of Stock under the Plan unless payment is made in Stock, in which case
only the number of Shares issued in payment of the Performance Unit or
Performance Share Award shall constitute an issuance of Stock under the Plan.
4.2 Lapsed Awards. If any Award granted under this Plan
terminates, expires, or lapses for any reason, any Shares subject to such Award
again shall be available for the grant of an Award under the Plan.
4.3 Adjustments in Authorized Shares. In the event of any merger,
reorganization, consolidation, recapitalization, separation, liquidation, Stock
dividend, split-up, Share combination, or other change in the corporate
structure of the Company affecting the Shares, such adjustment shall be made in
the number and class of Shares which may be delivered under the Plan, and in
the number and class of and/or price of Shares subject to outstanding Options,
Restricted Stock units, Performance Units and Performance Shares granted under
the Plan, as may be determined to be appropriate and equitable by the
Committee, in its sole discretion, to prevent dilution or enlargement of
rights; and provided that the number of Shares subject to any Award shall
always be a whole number. Any
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adjustment of an ISO under this paragraph shall be made in such a manner so as
not to constitue a "modification" within the meaning of Section 425(h) (3) of
the Code.
ARTICLE 5. ELIGIBILITY AND PARTICIPATION
5.1 Eligibility. Persons eligible to participate in this Plan
include all Employees of the Company, who, in the opinion of members of the
Committee, are Key Employees. "Key Employees" may include Employees who are
members of the Board, but may not include Directors who are not Employees.
5.2 Actual Participation. Subject to the provisions of the Plan,
the Committee may, from time to time, select from Key Employees those to whom
Awards shall be granted and shall determine the nature and amount of each
Award. No Employee shall have any right to be granted an Award under this
Plan.
ARTICLE 6. STOCK OPTIONS
6.1 Grant of Options. Subject to the terms and provisions of the
Plan, Options may be granted to Key Employees at any time and from time to time
as shall be determined by the Committee. The Committee shall have complete
discretion in determining the number of Shares subject to Options granted to
each Participant. The Committee may grant ISOs, NQSOs, or a combination
thereof. However, no Employee may receive an Award of ISOs that are first
exercisable during any calendar year to the extent that the aggregate Fair
Market Value of the Shares (determined at the time the options are granted)
exceeds $100,000. Nothing in this Article 6 shall be deemed to prevent the
grant of NQSOs in excess of the maximum established by Section 422A of the Code.
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6.2 Option Agreement. Each Option grant shall be evidenced by an
Option Agreement that shall specify the Option Price, the duration of the
Option, the number of Shares to which the Option pertains, and such other
provisions as the Committee shall determine. The Option Agreement also shall
specify whether the Option is intended to be an ISO within the meaning of
Section 422A of the Code, or a NQSO whose grant is intended not to fall under
the Code provisions of Section 422A.
6.3 Option Price. The purchase price per Share covered by an
Option shall be determined by the Committee but, in the case of an ISO, shall
not be less than 100% of the Fair Market Value of such Share on the date the
Option is granted.
An ISO granted to an employee who, at the time of grant, owns (within
the meaning of Section 425(d) of the Code) Shares possessing more than 10% of
the total combined voting power of all classes of stock of the Company, shall
have an exercise price which is at least 110% of the Fair Market Value of
the Shares subject to the Option.
6.4 Duration of Options. Each Option shall expire at such time as
the Committee shall determine at the time of grant provided, however, that no
ISO shall be exercisable later than the tenth (10th) anniversary date of its
grant.
6.5 Exercise of Options. Options granted under the Plan shall be
exercisable at such times and be subject to such restrictions and conditions as
the Committee shall in each instance approve, which need not be the same for
each grant or for each Participant. However, in no event may any Option
granted under this Plan become exercisable prior to six (6) months following
the date of its grant.
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6.6 Payment. Options shall be exercised by the delivery of a
written notice of exercise to the Secretary of the Company, setting forth the
number of Shares with respect to which the Option is to be exercised,
accompanied by full payment for the Shares.
The Option Price upon exercise of any Option shall be payable to the
Company in full either (a) in cash or its equivalent, or (b) by tendering
previously acquired Shares having a Fair Market Value at the time of exercise
equal to the total Option Price (provided that the Shares which are tendered
must have been held by the Participant for at least six (6) months prior to
their tender to satisfy the Option Price), or (c) by a combination of (a) or
(b).
The Committee also may allow cashless exercise as permitted under
Federal Reserve Board's Regulation T, subject to applicable securities law
restrictions, or by any other means which the Committee determines to be
consistent with the Plan's purpose and applicable law. The proceeds from such
a payment shall be added to the general funds of the Company and shall be used
for general corporate purposes.
As soon as practicable after receipt of a written notification of
exercise and full payment, the Company shall deliver to the Participant, in the
Participant's name, Share certificates in an appropriate amount based upon the
number of Options exercised.
6.7 Restrictions on Share Transferability. The Committee shall
impose such restrictions on any Shares acquired pursuant to the exercise of an
Option under the Plan, as it may deem advisable, including, without limitation,
restrictions under
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applicable Federal securities laws, under the requirements of any Stock
exchange or market upon which such Shares are then listed and/or traded, and
under any blue sky or state securities laws applicable to such Shares.
6.8 Termination of Employment Due to Death, Disability, or
Retirement. In the event the employment of a Participant is terminated by
reason of death or Disability, any outstanding Options shall become immediately
exercisable at any time prior to the expiration date of the Options or within
one year after such date of termination of employment, whichever period is
shorter, by such person or persons as shall have acquired the Participant's
rights under the Option by will or by the laws of descent and distribution.
In the event the employment of a Participant is terminated by reason of
retirement (as defined under the then established rules of the Company's
nonqualified retirement plan), any outstanding Options shall become immediately
exercisable at any time prior to the expiration date of the options.
In its sole discretion, and prior to the termination of the employment
due to death, Disability or retirement, the Committee may extend the period
during which outstanding Options may be exercised.
In the case of ISOs, the tax treatment prescribed under Section 422A
of the Internal Revenue Code of 1986, as amended, may not be available if the
Options are not exercised within the Section 422A prescribed time period after
termination of employment.
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6.9 Termination of Employment for Other Reasons. If the employment
of the Participant shall terminate for any reason other than for death,
Disability, retirement, or for Cause, the Participant shall have the right to
exercise Options that were vested in the Participant at the date of termination
within the 90 days after the date of termination, but in no event beyond the
expiration of the term of the Option and only to the extent that the
Participant was entitled to exercise the Option at the date of termination of
employment. The Committee, in its sole discretion, shall have the right to
extend the 90 days up to one (1) year after the date of such termination, but,
however, in no event beyond the expiration date of the Options.
If the employment of the Participant shall terminate for Cause, all
outstanding Options immediately shall be forfeited to the Company and no
additional exercise period shall be allowed, regardless of the vested status of
the Options.
6.10 Nontransferability of Options. No Option granted under the Plan
may be sold, transferred, pledged, assigned, or otherwise alienated or
hypothecated, other than by will or by the laws of descent and distribution.
Further, all Options granted to a Participant under the Plan shall be
exercisable during his lifetime only by such Participant.
ARTICLE 7. RESTRICTED STOCK UNITS
7.1 Grant of Restricted Stock Units. Subject to the terms and
provisions of the Plan, the Committee, at any time and from time to time, may
grant Restricted Stock Units to Key Employees in such amounts as the Committee
shall determine.
7.2 Restricted Stock Unit Agreement. Each Restricted Stock Unit
grant shall be evidenced by a Restricted Stock Unit
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Agreement that shall specify the Period of Restriction, or Periods, the number
of Restricted Stock Units covered by the grant, and such other provisions as
the Committee shall determine. Each Restricted Stock Unit shall be equivalent
in value to a Share of Common Stock.
7.3 Vesting. Each grant of Resticted Stock Units shall require the
Participant to remain in the employment of the Corporation or a Subsidiary for
a prescribed period ("Restriction Period"). The Committee shall determine the
Restriction Period or Periods which shall apply to the share of Common Stock
covered by each grant of Restricted Stock Units, provided that in no case shall
the Restriction period be less than six months.
7.4 Other Restrictions. The Committee shall impose such other
restrictions on any Restricted Stock Units granted pursuant to the Plan as it
may deem advisable including, without limitation, restrictions based upon the
achievement of specific (Company-wide, divisional, and/or individual)
performance goals, and/or restrictions under applicable Federal or state
securities laws.
7.5 Payment. Upon expiration of the Restriction Period or Periods
applicable to each grant of Restricted Stock Units, the Participant shall,
without payment on his part, be entitled to receive payment in an amount equal
to the aggregate fair market value of the shares of Common Stock covered by
such grant on the date of expiration. Such payment may be made only in shares
of Common Stock equal to the number of Restricted Stock Units with respect to
which such payment is made.
7.6 Dividend Equivalents. A Participant whose Restricted Stock
Units have not previously terminated shall be entitled to receive payment in an
amount equal to each cash dividend the
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Company would have paid to such Participant during the term of those Restricted
Stock Units as if the Particpant has been the owner of record of the shares of
Common Stock covered by such Restricted Stock Units on the record date for the
payment of such dividend. Payment of each such dividend equivalent shall be
made on payment date of the cash dividend with respect to which it is made, or
as soon as practicable thereafter.
7.7 Termination of Employment Due to Death, Disability, or
Retirement. In the event that a Participant's employment is terminated with
the Company because of death, Disability, or normal retirement (as defined
under the then established rules of the Company), any remaining Period of
Restriction applicable to the Restricted Stock Units pursuant to Section 7.3
hereof shall automatically terminate and, except as otherwise provided in
Section 7.4, the Shares issued in payment of the Restricted Stock Units shall be
free of restrictions and freely transferable. In the event that a Participant
terminates his employment with the Company because of early retirement (as
defined under the then established rules of the Company), the Committee, in its
sole discretion, may waive the restrictions remaining on any or all grants of
Restricted Stock Units pursuant to Section 7.3 herein and add such new
restrictions to Shares issued in payment of Restricted Stock Units as it deems
appropriate.
7.8 Termination of Employment for Other Reasons. In the event that
a Participant terminates his employment with the Company for any reason other
than for death, Disability, or retirement, as set forth in Section 7.7 herein,
during the Period of Restriction, then any Restricted Stock Units granted still
subject to restrictions as of the date of such termination shall automatically
be forfeited. In such event, the Participant shall not be entitled to receive
any payment with respect to those Restricted Stock Units, except as provided in
Section 7.6 herein,
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provided, however, that, in the event of an involuntary termination of the
employment of a Participant by the Company other than for Cause, the Committee,
in its sole discretion, may waive the automatic forfeiture of any or all such
Restricted Stock Unit grants.
ARTICLE 8. PERFORMANCE UNITS AND PERFORMANCE SHARES
8.1 Grant of Performance Units and Performance Shares. Subject to
the terms and provisions of the Plan, Performance Units or Performance Shares
may be granted to Participants at any time and from time to time as shall be
determined by the Committee. The Committee shall have complete discretion in
determining the number of Performance Units or Performance Shares granted to
each Participant.
8.2 Value of Performance Units and Performance Shares. Each
Performance Unit shall have an initial value of one dollar ($1) and each
Performance Share initially shall represent one share of Stock. The Committee
shall set performance goals in its discretion which, depending on the extent to
which they are met, will determine the ultimate value of the Performance Unit
or Performance Share to the Participant. The time period during which the
performance goals must be met shall be called a "Performance Period," and
shall, in all cases, exceed six (6) months in length.
8.3 Payment of Performance Units and Performance Shares. After a
Performance Period has ended, the holder of a Performance Unit or Performance
Share shall be entitled to receive the value thereof as determined by the extent
to which performance goals discussed in Section 8.2 have been met.
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8.4 Form and Timing of Payment. Payment in Section 8.3 above shall
be made in cash, stock, or a combination thereof as determined by the
Committee. Payment may be made in a lump sum or installments as prescribed by
the Committee. If any payment is to be made on a deferred basis, the Committee
may provide for the payment of dividend equivalents or interest during the
deferral period.
8.5 Termination of Employment Due to Death, Disability, or
Retirement. In the case of death, Disability, or retirement, the holder of a
Performance Unit or Performance Share shall receive pro rata payment based on
the number of months' service during the Performance Period but based on the
achievement of performance goals during the entire Performance Period. Payment
shall be made at the time payments are made to Participants who did not
terminate service during the Performance Period.
8.6 Termination of Employment for Other Reasons. In the event that
a Participant terminates employment with the Company for any reason other than
death, Disability, or Retirement, all Performance Units or Performance Shares
shall be forfeited; provided, however, that in the event of an involuntary
termination of the employment of the Participant by the Company other than for
Cause, the Committee in its sole discretion may waive the automatic forfeiture
provisions and pay out on a pro rata basis.
8.7 Nontransferability. No Performance Units or Performance
Shares granted under the Plan may be sold, transferred, pledged, assigned, or
otherwise alienated or hypothecated, otherwise than by will or by the laws of
descent and distribution until the termination of the applicable Performance
Period. All rights with respect to Performance Units or Performance Shares
granted to a Participant under the Plan
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shall be exercisable during his lifetime only by the Participant or the
Participant's legal representative.
ARTICLE 9. RIGHTS OF EMPLOYEES
9.1 Employment. Nothing in the Plan shall interfere with or limit
in any way the right of the Company to terminate any Participant's employment
at any time, nor confer upon any Participant any right to continue in the employ
of the Company.
9.2 Participation. No employee shall have the right to be selected
to receive an Award under this Plan, or, having been so selected, to be
selected to receive a future Award.
ARTICLE 10. CHANGE IN CONTROL
10.1 Stock Based Awards. Notwithstanding the remaining provisions
of the Plan, in the event of a Change in Control of the Company, all Stock
based awards granted under this Plan, including NQSOs, ISOs, and Restricted
Stock Units, that are still outstanding and not yet vested, shall become
immediately 100% vested in each Participant, as of the first date that the
definition of Change in Control has been fulfilled, and shall remain as such
for the remaining life of the Award, as such life is provided herein and within
the provisions of the related individual Award Agreements. Within ten (10)
business days after the occurrence of a Change in Control, the stock
certificates representing payment of Restricted Stock Unit grants, without any
restrictions or legend thereon, shall be delivered to the applicable
Participants.
10.2 Performance Based Awards. Notwithstanding the remaining
provisions of the Plan, in the event of a Change in Control of the Company, all
performance based awards granted
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under this Plan shall be immediately paid out in cash, including Performance
Units or Performance Shares. The amount of the payout shall be based on the
extent to which performance goals, established for the Performance Period then
in progress have been met up to the date of the Change in Control, or at
target, whichever is higher. Not withstanding the foregoing, all Performance
Units and Performance Share Awards which shall have been outstanding less than
six (6) months on the effective date of the Change in Control shall not be
deemed to have earned either the performance goals or the target goals.
ARTICLE 11. AMENDMENT, MODIFICATION, AND TERMINATION
11.1 Amendment, Modification, and Termination. With the approval of
the Board, at any time and from time to time, the Committee may terminate,
amend, or modify the Plan. However, without approval of the stockholders of
the Company (as may be required by the Code, by the insider trading rules of
Section 16 of the Exchange Act, by any national securities exchange or system
on which the Shares are then listed or reported, or by a regulatory body
having jurisdiction with respect hereto), no such termination, amendment, or
modification may:
(a) Increase the total amount of Shares which may be issued
under this Plan, except as provided in Section 4.3
herein; or
(b) Change the class of employees eligible to participate
in the Plan; or
(c) Materially increase the cost of the Plan or materially
increase the benefits to Participants; or
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(d) Extend the maximum period after the date of grant
during which Options may be exercised; or
(e) Change the provisions of the Plan regarding Option
Price.
11.2 Awards Previously Granted. No termination, amendment, or
modification of the Plan shall in any manner adversely affect any Award
previously granted under the Plan, without the written consent of the
Participant.
ARTICLE 12. WITHHOLDING
12.1 Tax Withholding. The Company shall have the power and the
right to deduct or withhold, or require a Participant to remit to the Company,
an amount sufficient to satisfy Federal, state, and local taxes (including the
Participant's FICA obligation) required by law to be withheld with respect to
any grant, exercise, or payment made under or as a result of this Plan.
12.2 Share Withholding. With respect to withholding required upon
the exercise of NQSOs, or upon the payment of Restricted Stock Units, or upon
the payment of Performance Units or Performance Shares (if paid in full or part
in Shares), participants may elect, subject to the approval of the Committee,
to satisfy the withholding requirement, in whole or in part, by having the
Company withhold Shares having a Fair Market Value, on the date the tax is to
be determined, equal to the amount required to be withheld. All elections
shall be irrevocable, and be made in writing, signed by the Participant in
advance of the day that the transaction becomes taxable.
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Share withholding elections made by Participants who are subject to the
short-swing profit restrictions of Section 16 of the Exchange Act must comply
with such additional restrictions in making their election.
ARTICLE 13. REDEMPTION OF COMMON STOCK ON TERMINATION OF EMPLOYMENT
As of the time of voluntary or involuntary termination of employment of
a Participant and at the discretion of the Committee, Participant shall sell to
the Corporation, and the Corporation shall redeem from the Participant, all of
Participant's Shares, that are owned or have vested due to Participant's
participation in the Plan. The redemption price for each Share redeemed shall
be the average of the highest and lowest price at which the Stock was traded
during the five business days preceding the date of the Committee's decision to
redeem the Shares of a Participant. The redeemed Shares shall be transferred
to the Corporation properly endorsed by the Participant free and clear of all
claims, liens, and encumbrances whatsoever. As used herein, the term
"termination of employment" means the complete termination of employment.
ARTICLE 14. INDEMNIFICATION
Each Person who is or shall have been a member of the Committee, or of
the Board, shall be indemnified and held harmless by the Company against and
from any loss, cost, liability, or expense that may be imposed upon or
reasonably incurred by him in connection with or resulting from any claim,
action, suit, or proceeding to which he may be a party or in which he may be
involved by reason of any action taken or failure to act under the Plan and
against and from any and all amounts paid by him in settlement thereof, with
the Company's approval, or paid by him in satisfaction of any judgment in any
such
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action, suit, or proceeding against him, provided he shall give the Company an
opportunity, at its own expense, to handle and defend the same before he
undertakes to handle and defend it on his own behalf. The foregoing right of
indemnification shall not be exclusive of any other rights on indemnification
to which such Persons may be entitled under the Company's Certificate of
Incorporation or Bylaws, as a matter of law, or otherwise, or any power that
the Company may have to indemnify them or hold them harmless.
ARTICLE 15. SUCCESSORS
All obligations of the Company under the Plan, with respect to Awards
granted hereunder, shall be binding on any successor to the Company, whether
the existence of such successor is the result of a direct or indirect purchase,
merger, consolidation, or otherwise, of all or substantially all of the
business and/or assets of the Company.
ARTICLE 16. REQUIREMENTS OF LAW
16.1 Requirements of Law. The granting of Awards and the issuance
of Shares under this Plan shall be subject to all applicable laws, rules, and
regulations, and to such approvals by any governmental agencies or national
securities exchanges as may be required.
16.2 Governing Law. To the extent not preempted by Federal law, the
Plan, and all agreements hereunder, shall be construed in accordance with and
governed by the laws of the State of Florida.
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