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EXHIBIT 10.21
NATIONAL BEVERAGE CORP.
KEY EMPLOYEE EQUITY PARTNERSHIP PROGRAM
SECTION 1. PURPOSE; DEFINITIONS.
(a) Purpose. The purpose of the Program is to enable the Corporation to
attract, retain and reward officers, directors and key employees of and
consultants to the Corporation and its Subsidiaries and Affiliates, to encourage
such individuals to acquire and retain ownership of the Corporation's Common
Stock, and to strengthen the mutuality of interests between such individuals and
the Corporation's shareholders, by offering such officers, directors, key
employees and consultants Options to purchase shares of Common Stock of the
Corporation on the terms set forth herein. The creation of the Program shall not
diminish or prejudice other compensation programs approved from time to time by
the Board.
(b) Definitions. For purposes of the Program, the following terms are
defined as set forth below:
(i) "Affiliate" means any entity other than the Corporation
and its Subsidiaries designated by the Board as a participating
employer under the Program, provided that the Corporation directly or
indirectly owns at least 20% of the combined voting power of all
classes of stock of such entity or at least 20% of the ownership
interests in such entity.
(ii) "Board" means the Board of Directors of the
Corporation.
(iii) "Capital Transaction" has the meaning provided in
Section 3(b) of the Program.
(iv) "Cause" has the meaning provided in Section 5(b)(ix)
of the Program.
(v) "Change of Control" has the meaning set forth in
Section 3(c) of the Program.
(vi) "Code" means the Internal Revenue Code of 1986, as
amended from time to time, and any successor thereto.
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(vii) "Commission" means the Securities and Exchange
Commission.
(viii) "Committee" means the Committee referred to in Section
2 of the Program.
(ix) "Common Stock" means the Corporation's Common Stock,
par value of $0.01 per share.
(x) "Consultant" shall include any employee or director of
Corporate Management Advisers, Inc. ("CMA"). For purposes of the
Program, so long as CMA is providing management services to the
Corporation, service with CMA will be deemed to be a consulting
arrangement with the Corporation.
(xi) "Corporation" means National Beverage Corp., a
corporation organized under the laws of the State of Delaware, or any
successor corporation.
(xii) "Disability" means disability as reasonably determined
by the Committee.
(xiii) "Exchange Act" means the Securities Exchange Act of
1934, as amended from time to time, and any successor thereto.
(xiv) "Fair Market Value" means the reported closing price
of shares of the Common Stock on the American Stock Exchange on the
relevant date or, if no shares of Common Stock are traded on that date,
the reported closing price on the next preceding date on which shares
were traded. In the event that trading in the shares of Common Stock is
no longer reported on the American Stock Exchange, Fair Market Value
shall be determined by such other method as the Committee in good faith
deems appropriate without regard to any restriction other than a
restriction which, by its terms, will never lapse.
(xv) "Legend" has the meaning set forth in Section 6 of the
Program.
(xvi) "Nonemployee Director" has the meaning set forth in
Rule 16b-3(b)(3)(i) as promulgated under the Exchange Act, or any
successor definition adopted by the Commission.
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(xvii) "Option" means any option to purchase shares of Common
Stock granted pursuant to Section 5 below.
(xviii) "Owned Shares" has the meaning provided in Section
5(b)(i) of the Program.
(xix) "Program" means this National Beverage Corp. Key
Employee Equity Partnership Program, as amended from time to time in
accordance herewith.
(xx) "Purchase Price" has the meaning set forth in Section
5(b)(ii) of the Program.
(xxi) "Retirement" for purposes of this Program means (i)
retirement from active employment or other service (including service
as a Consultant) with the Corporation and any Subsidiary or Affiliate
on or after age 65 or (ii) retirement from active employment or other
service (including service as a Consultant) with the Corporation and
any Subsidiary or Affiliate prior to age 65 with the express consent of
the Corporation at or before the time of such retirement.
(xxii) "Subsidiary" means any corporation (other than the
Corporation) in an unbroken chain of corporations beginning with the
Corporation if each of the corporations (other than the last
corporation in the unbroken chain) owns stock possessing 50% or more of
the total combined voting power of all classes of stock in one of the
other corporations in the chain.
SECTION 2. ADMINISTRATION.
(a) The Committee. The Program shall be administered by a Committee of
not less than two (2) Nonemployee Directors, who shall be appointed by the Board
and who shall serve at the pleasure of the Board. The functions of the Committee
specified in the Program may be exercised by an existing Committee of the Board
composed exclusively of Nonemployee Directors. The initial Committee shall be
the Compensation and Stock Option Committee of the Board.
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(b) Authority of the Committee. The Committee shall have authority to
grant Options, pursuant to the terms of the Program, to officers, directors, key
employees and Consultants eligible under Section 4 hereof.
In particular, the Committee shall have the authority, consistent with
the terms of the Program:
(i) to select the officers, directors and key employees of
and Consultants to the Corporation and its Subsidiaries and Affiliates
to whom Options may from time to time be granted hereunder;
(ii) to determine whether and to what extent Options are to
be granted hereunder to one or more eligible persons;
(iii) to determine the terms and conditions, not inconsistent
with the terms of the Program, of any award granted hereunder
(including, but not limited to, any restriction or limitation, or any
vesting, acceleration of vesting or waiver of forfeiture restrictions
regarding any Option or other award or the shares of Common Stock
relating thereto, based in each case on such factors as the Committee
shall determine, in its sole discretion) and to amend or waive any such
terms and conditions to the extent permitted by Section 7 hereof;
(iv) to determine any conditions and restrictions on the
holding of Owned Shares and the terms and circumstances under which
such shares may be released to the optionee;
(v) to determine whether, to what extent and under what
circumstances shares of Common Stock and other amounts payable with
respect to an award under this Program may be deferred either
automatically or at the election of the participant (including
providing for and determining the amount (if any) of any deemed
earnings on any deferred amount during any deferral period); and
(vi) to determine whether to require payment of any
withholding requirements in shares of Common Stock.
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The Committee shall have the authority to adopt, alter and repeal such
rules, guidelines and practices governing the Program as it shall, from time to
time, deem advisable; to interpret the terms and provisions of the Program and
any award issued under the Program (and any agreements relating thereto); and to
otherwise supervise the administration of the Program.
All decisions made by the Committee pursuant to the provisions of the
Program shall be made in the Committee's sole discretion and shall be final and
binding on all persons, including the Corporation and Program participants.
SECTION 3. SHARES OF COMMON STOCK SUBJECT TO PROGRAM.
(a) Shares of Common Stock Reserved Under Program. The aggregate number
of shares of Common Stock reserved and available for distribution under the
Program shall be 50,000 shares. Such shares of Common Stock may consist, in
whole or in part, of authorized and unissued shares or treasury shares. The
Committee may at any time grant Options (i) to any officer, director, key
employee or Consultant having at the time of grant of the Options at least three
years of service with or to the Corporation or any of its Subsidiaries or
Affiliates, provided that the number of Options then granted to such person,
when aggregated with the number of Options granted to such person under the
Program during the preceding two year period, may not exceed 3,000 Options, and
(ii) to any officer, director, key employee or Consultant having at the time of
grant of the Options at least 18 months but less than three years of services
with or to the Corporation or any of its Subsidiaries or Affiliates provided
that the number of Options then granted to such person, when aggregated with the
number of Options granted to such person under the Program during the preceding
two year period, may not exceed 2,000 Options. If any Option expires or is
forfeited without exercise, such shares shall again be available for
distribution in connection with future awards under the Program.
(b) Adjustment in Certain Events. In the event of any merger,
reorganization, consolidation, recapitalization, extraordinary cash dividend,
stock dividend, stock split, or other change in corporate structure affecting
the Common Stock (a "Capital Transaction"), the Committee shall substitute or
adjust (i) the aggregate number of shares reserved and available for issuance
under the Program, (ii) the maximum number of Options which may be granted to
any eligible person under the Program, and (iii) the number and price (if
applicable) of shares subject
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to outstanding Options granted under the Program, so as to provide each holder
of an award under this Program with the same rights on exercise or distribution
of the benefits of such award that such holder would have received if such
holder had exercised or received a distribution of the benefits of such award
immediately prior to the occurrence of such Capital Transaction; provided,
however, that the number of shares subject to any award shall always be a whole
number. In the event of any dispute as to any substitution or adjustment made
under this Section 3(b), the decision of the Committee shall be final and
binding on all persons, including the Corporation and Program participants.
(c) Change in Control. Notwithstanding anything in this Program to the
contrary, any Options granted hereunder and then outstanding shall become
immediately exercisable in full at the then applicable exercise price if any of
the following events (each of which shall be deemed a "Change in Control") shall
occur:
(i) any "person" within the meaning of Section 14(d) of the
Exchange Act becomes the "beneficial owner" as defined in Rule 13d-3
thereunder, directly or indirectly, of more than 50% of the issued and
outstanding shares of Common Stock (provided, however, that this
provision shall not apply to any person who on the date of adoption of
the Program is the "beneficial owner" as defined in Rule 13d-3 of the
Exchange Act of more than 50% of the issued and outstanding shares of
Common Stock);
(ii) any "person" acquires by proxy or otherwise the right to
vote more than 50% of the issued and outstanding shares of Common Stock
for the election of directors (provided, however, that this provision
shall not apply to (1) any person who on the date of the adoption of
the Program has the right by proxy or otherwise to vote more than 50%
of the issued and outstanding shares of Common Stock, or (2) the
Incumbent Board (as defined herein) or any person designated by the
Incumbent Board);
(iii) during any two-year period, individuals who constitute
the Board (the "Incumbent Board") as of the beginning of the period
cease for any reason to constitute at least a majority thereof,
provided that any person becoming a Director during such period who is
appointed by the Incumbent Board or whose election or nomination for
election by the Corporation's stockholders was approved by a vote of at
least three quarters of the
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Incumbent Board (either by specific vote or by approval of the proxy
statement of the Corporation in which such person is named as a nominee
for Director without objection to such nomination) shall be, for
purposes of this clause (iii), considered as though such person were a
member of the Incumbent Board;
(iv) the consummation of a sale of all or substantially all of
the assets of the Corporation; or
(v) the consummation of any merger, consolidation,
reorganization or other change in corporate structure in which the
Corporation is not the surviving entity or as a result of which there
shall occur a "Change in Control" under subparagraph (i), (ii) or (iii)
above.
Notwithstanding the foregoing, a Change of Control shall not occur if
the event causing the Change of Control is a repurchase by the Corporation of
its own shares (although subsequent acquisitions of shares of Common Stock by
any "person" owning more than the percentage interest set forth above shall
constitute a Change in Control).
SECTION 4. ELIGIBILITY.
Officers, directors and key employees of and Consultants to the
Corporation and its Subsidiaries and Affiliates who have served with the
Corporation or any of its Subsidiaries or Affiliates for at least 18 months and
are responsible for or contribute to the management, growth or profitability of
the business of the Corporation and its Subsidiaries and Affiliates as
determined by the Committee are eligible to be granted awards under the Program.
SECTION 5. OPTIONS.
(a) Administration. The Committee shall have the authority to grant
Options on the terms and conditions set forth in Section 5(b) below. Any Option
granted under the Program shall be in such form as the Committee may from time
to time approve.
(b) Terms and Conditions. Options granted under the Program shall be
subject to the following terms and conditions and shall contain such additional
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terms and conditions, not inconsistent with the terms of the Program, as the
Committee shall deem desirable.
(i) Grant of Option. The Committee may, in its discretion
(but is not required to) grant Options to any person eligible to
participate in the Program if such person (A) acquires at least 500
shares of Common Stock of the Corporation pursuant to an open market
transaction at any time after January 1, 1996 and continues to hold
such shares on the date on which the Options relating thereto are
granted, and (B) except as otherwise determined by the Committee,
submits the stock certificates representing such shares (the "Owned
Shares") to the Corporation or its transfer agent and agrees to the
imposition thereon of the Legend pursuant to Section 6 of this Program.
Notwithstanding anything else to the contrary set forth in this
Program, the Committee may not grant to any person Options to acquire
shares of Common Stock which exceed 50% of the number of Owned Shares
delivered to the Company by such person. As a condition to the grant of
the Option, the grantee must deliver to the Corporation such evidence
as the Committee shall deem appropriate of the date on which the Owned
Shares were purchased and the price at which such shares were
purchased.
(ii) Exercise Price. The initial exercise price per share of
Common Stock purchasable under an Option shall be 60% of the Purchase
Price of the Owned Shares. On the date that is eighteen months after
the grant of the Option, the exercise price will be reduced to 45% of
the Purchase Price of the Owned Shares. On the date that is thirty-six
months after grant of the Option, the exercise price will be reduced to
30% of the Purchase Price of the Owned Shares. On the date that is
fifty-four months after the grant of the Option, the exercise price
will be reduced to 15% of the Purchase Price of the Owned Shares. On
the date that is seventy-two months after the grant of the Option, the
exercise price will be the par value of the Shares of Common Stock
underlying such Option, and at no time will the exercise price be
permitted to fall below the par value of such shares. For purposes of
this Program, the term "Purchase Price" means the purchase price paid
by the Program participant for the Owned Shares in the open market
transaction in which such shares were purchased; provided that the
Purchase Price for any Owned Shares acquired prior to March 14, 1997
shall be fixed at the closing price on the American Stock Exchange of
Common Stock on March 14, 1997.
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(iii) Option Term. The term of each Option shall be fixed by
the Committee, but no Option will be exercisable more than ten years
after the date of grant.
(iv) Exercisability. Unless otherwise determined by the
Committee, no Option shall be exercisable until the third anniversary
of the date of grant. On or after the third anniversary of the date of
grant, the Option will be exercisable for a total of 40% of the shares
of Common Stock underlying the Option. On and after the sixth
anniversary of the date of grant, the Option will be exercisable with
respect to all of the shares of the Common Stock underlying the Option.
(v) Method of Exercise. Subject to the installment exercise
restrictions under Section 5 (b) (iv) hereof, Options may be exercised
in whole or in part at any time during the option period, by giving
written notice of exercise to the Corporation specifying the number of
shares to be purchased. Such notice shall be accompanied by (1)
evidence of the continued uninterrupted ownership of the Owned Shares,
and (2) payment in full of the exercise price, either by check or a
note or such other instrument as the Committee may accept. As
determined by the Committee, in its sole discretion, at or after grant,
payment in full or in part may also be made in the form of shares of
Common Stock already owned by the optionee (based in each case, on the
Fair Market Value of the Common Stock on the date the Option is
exercised). No shares of Common Stock shall be issued until full
payment therefor has been made. An optionee shall generally have the
rights to dividends or other rights of a shareholder with respect to
shares subject to the Option when the optionee has given written notice
of exercise, has paid in full for such shares, and, if requested, has
given the representation described in Section 9(a) hereof.
(vi) Termination by Death. If an optionee's employment by or
other service with the Corporation and any Subsidiaries or Affiliates
terminates by reason of death, any Option held by such optionee may
thereafter be exercised, to the extent such Option was exercisable at
the time of death or on such accelerated basis as the Committee may
determine at or after grant (or as may be determined in accordance with
procedures established by the Committee) by the legal representative of
the estate or by the legatee of the optionee under the will of the
optionee, for a period of three years (or such
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shorter period as the Committee may specify at grant) from the date of
such death or until the expiration of the stated term of such Option,
whichever period is the shorter.
(vii) Termination by Reason of Disability. If an optionee's
employment by or other service with the Corporation and any
Subsidiaries or Affiliates terminates by reason of Disability, any
Option held by such optionee may thereafter be exercised by the
optionee, to the extent it was exercisable at the time of termination
or on such accelerated basis as the Committee may determine at or after
grant (or as may be determined in accordance with procedures
established by the Committee), for a period of three years (or such
shorter period as the Committee may specify at grant) from the date of
such termination of employment or until the expiration of the stated
term of such Option, whichever period is the shorter; provided,
however, that, if the optionee dies within the period specified above
(or such other period as the Committee shall specify at grant), any
unexercised Option held by such optionee shall thereafter be
exercisable to the extent to which it was exercisable at the time of
death (or on such accelerated basis as may be determined by the
Committee) by the legal representative of the estate or by the legatee
of the optionee under the will of the optionee for the balance of such
three year period or until the expiration of the stated term of such
Option, whichever period is the shorter.
(viii) Termination by Reason of Retirement. If an optionee's
employment by the Corporation and any Subsidiaries or Affiliates
terminates by reason of Retirement, any Option held by such optionee
may thereafter be exercised by the optionee, to the extent it was
exercisable at the time of such Retirement or on such accelerated basis
as the Committee may determine at or such after grant (or as may be
determined in accordance with procedures established by the Committee),
for a period of six months (or such shorter period as the Committee may
specify at grant) from the date of such termination of employment or
the expiration of the stated term of such Option, whichever period is
the shorter; provided, however, that, if the optionee dies within the
period specified above (or such shorter period as the Committee may
specify at grant), any unexercised Option held by such optionee shall
thereafter be exercisable, to the extent to which it was exercisable at
the time of death (or on such accelerated basis as may be determined by
the Committee) by the legal representative of the estate or by
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the legatee of the optionee under the will of the optionee for the
balance of such six month period or until the expiration of the stated
term of such Option.
(ix) Resignation or Other Termination. Unless otherwise
determined by the Committee (or pursuant to procedures established by
the Committee) at or after grant, (a) if an optionee's employment by
the Corporation and any Subsidiaries or Affiliates is involuntarily
terminated other than for Cause (as defined below) or if the employee
voluntarily resigns, in each case, for any reason other than death,
Disability or Retirement, the Option shall thereupon terminate, except
that such Option may be exercised, to the extent otherwise then
exercisable, or on such accelerated basis as the Committee may
determine on or after grant, for the lesser of three months from the
date of termination or the balance of such Option's term, and (b) if an
optionee's employment by the Corporation and any Subsidiaries or
Affiliates is involuntarily terminated for Cause, the Option shall
thereupon terminate and may not thereafter be exercised. For purposes
of this Program, "Cause" means (A) a felony conviction of a participant
or the failure of a participant to contest prosecution for a felony, or
(B) a participant's willful misconduct or dishonesty, which is directly
and materially harmful to the business or reputation of the Corporation
or any Subsidiary or Affiliate.
(x) Forfeiture on Transfer of Owned Shares. Unless otherwise
determined by the Committee, an Option will terminate automatically
upon any transfer of the Owned Shares to which such Options relate
other than a transfer upon the death of the optionee to the optionee's
estate or legatee of the optionee under the will of the optionee.
SECTION 6. PLACEMENT AND REMOVAL OF LEGEND ON OWNED SHARES.
Except as otherwise may be determined by the Committee, prior to
receipt of any Option to be granted to an optionee under this Program, the
optionee shall submit to the Corporation or its transfer agent the stock
certificate(s) representing the Owned Shares, and thereby agree to the
inscription thereon of the following legend (the "LEGEND"):
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE
NATIONAL
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BEVERAGE CORP. KEY EMPLOYEE EQUITY PARTNERSHIP PROGRAM
AND MAY NOT BE TRANSFERRED WITHOUT THE PRIOR WRITTEN
CONSENT OF THE CORPORATION.
The Legend shall remain on the stock certificate representing the Owned Shares
until the exercise, forfeiture or expiration of the Option relating thereto. If
an Option is exercised with regard to which the Owned Shares relate, the
optionee shall submit the share certificate(s) representing such Owned Shares to
the Corporation or its transfer agent and the Corporation or transfer agent
shall issue a new share certificate representing such shares which does not bear
the Legend. If an Option is exercised with respect to which a portion of the
Owned Shares relate, the optionee shall submit the share certificate(s) which
includes the Owned Shares to the Corporation or its transfer agent and the
Corporation or transfer agent shall issue (a) a share certificate representing a
proportionate number of Owned Shares to which such Option relates which does not
bear the Legend, and (b) a share certificate representing a proportionate number
of Owned Shares which relate to unexercised Options which bears the Legend. Upon
expiration or forfeiture of Options to which the Owned Shares relate, the
optionee may submit the share certificate representing the Owned Shares to the
Corporation or its transfer agent and the Corporation or transfer agent shall
issue a share certificate representing such Owned Shares which does not bear the
Legend.
While the stock certificates representing the Owned Shares bear the
Legend, the optionee shall not have the right to transfer the Owned Shares
(other than upon exercise, expiration or forfeiture of an Option to which such
Owned Shares relate). If an optionee wishes to transfer the Owned Shares, the
optionee shall submit the stock certificate(s) representing the Owned Shares to
the Company or its transfer agent and request that the Legend be removed
therefrom, and the Company or transfer agent will issue a new stock certificate
representing such Owned Shares and the Option to which the Owned Shares relate
will, except as otherwise determined by the Committee, be automatically
forfeited.
SECTION 7. AMENDMENTS AND TERMINATION.
The Board may amend, alter or discontinue the Program, but no
amendment, alteration or discontinuation shall be made which would impair the
rights of an optionee under an Option theretofore granted, without the
optionee's or participant's
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consent. The Committee may amend the terms of any Option theretofore granted,
prospectively or retroactively, but, subject to Section 3(b) above, no such
amendment shall impair the rights of any holder without the holder's consent.
The Committee may also substitute new Options for previously granted Options (on
a one for one or other basis). Subject to the above provisions, the Board shall
have broad authority to amend the Program to take into account changes in
applicable securities and tax laws and accounting rules, as well as other
developments.
SECTION 8. UNFUNDED STATUS OF PROGRAM.
The Program is intended to constitute an "unfunded" plan for incentive
and deferred compensation. With respect to any payments not yet made to a
participant or optionee by the Corporation, nothing contained herein shall give
any such participant or optionee any rights that are greater than those of a
general creditor of the Corporation. In its sole discretion, the Committee may
authorize the creation of trusts or other arrangements to meet the obligations
created under the Program to deliver shares of Common Stock or payments in lieu
of or with respect to awards hereunder; provided, however, that, unless the
Committee otherwise determines with the consent of the affected participant, the
existence of such trusts or other arrangements is consistent with the "unfunded"
status of the Program.
SECTION 9. GENERAL PROVISIONS.
(a) Securities Law Restrictions. The Committee may require each person
purchasing shares of Common Stock pursuant to an Option or other award under the
Program to represent to and agree with the Corporation in writing that the
optionee or participant is acquiring the shares for investment, without a view
to distribution thereof. The certificates for such shares may include any legend
which the Committee deems appropriate to reflect any restrictions on transfer.
All certificates for shares of Common Stock or other securities delivered under
the Program shall be subject to such stock-transfer orders and other
restrictions as the Committee may deem advisable under the rules, regulations
and other requirements of the Commission, any stock exchange upon which the
Common Stock is then listed, and any applicable Federal or state securities law,
and the Committee may cause a legend or legends to be put on any such
certificates to make appropriate reference to such restrictions.
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(b) Other Compensation Arrangements. Nothing contained in this Program
shall prevent the Board from adopting other or additional compensation
arrangements, subject to shareholder approval if such approval is required and
such arrangement may be either generally applicable or applicable only in
specific cases.
(c) No Right to Continued Employment. The adoption of the Program shall
not confer upon any employee of or consultant to the Corporation or any
Subsidiary or Affiliate any right to continued employment or a continued
consulting arrangement with the Corporation or a Subsidiary or Affiliate, as the
case may be, nor shall it interfere in any way with the right of the Corporation
or a Subsidiary or Affiliate to terminate the employment or consulting
arrangement of any of its employees or consultants at any time.
(d) Withholding. No later than the date as of which an amount first
becomes includible in the gross income of the participant for Federal income tax
purposes with respect to any award under the Program, the participant shall pay
to the Corporation, or make arrangements satisfactory to the Committee regarding
the payment of, any Federal, state or local taxes of any kind required by law to
be withheld with respect to such amount. Withholding obligations may be settled
with shares of Common Stock, including shares of Common Stock that are a part of
the award that gives rise to the withholding requirement (based on the Fair
Market Value of the Common Stock on the date as of which an amount first becomes
includible in the gross income of the participant for federal income tax
purposes). The obligations of the Corporation under the Program shall be
conditional on such payment or arrangements for payment and the Corporation and
its Subsidiaries or Affiliates shall, to the extent permitted by law, have the
right to deduct any such taxes from any payment of any kind otherwise due to the
participant.
(e) Restrictions on Transfer. Unless otherwise provided in the
applicable award agreement, no Option issued under this Program is transferable
by the participant other than by will or the laws of decent and distribution.
The designation of a beneficiary will not constitute a transfer.
(f) Governing Law. The Program and all awards made and actions taken
thereunder shall be governed by and construed in accordance with the laws of
the State of Delaware, without regard to the principles of conflicts of law
thereof.
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(g) Buy-out Provisions. The Committee may at any time offer to buy out
for a payment in cash or shares of Common Stock an Option previously granted,
based on such terms and conditions as the Committee shall establish and
communicate to the optionee at the time that such offer is made.
(h) Award Provisions May Differ. The provisions of awards need not be
the same with respect to each recipient.
(i) Liability and Indemnification of Board and Committee Members. The
members of the Committee and the Board shall not be liable to any employee,
consultant or other person with respect to any determination made hereunder in
a manner that is not inconsistent with their legal obligations as members of
the Board. In addition to such other rights of indemnification that they may
have as directors or as members of the Committee, the members of the Committee
shall be indemnified by the Corporation against the reasonable expenses,
including attorneys' fees actually and necessarily incurred in connection
with the defense of any action, suit or proceeding, or in connection with any
appeal therein, to which they or any of them may be a party by reason of any
action taken or failure to act under or in connection with the Program or any
option granted thereunder, and against all amounts paid by them in settlement
thereof (provided such settlement is approved by independent legal counsel
selected by the Corporation) or paid by them in satisfaction of a judgment in
any such action, suit or proceeding, except in relation to matters as to which
it shall be adjudged in such action, suit or proceeding that such Committee
member is liable for negligence or misconduct in the performance of his
duties; provided that within sixty (60) days after institution of any such
action, suit or proceeding, the Committee member shall in writing offer the
Corporation the opportunity, at its own expense, to handle and defend the
same.
(j) Notices. Any notice, request, demand or other communication
related to the Program shall be in writing and shall be delivered by certified
or registered mail (first class postage pre-paid, return receipt requested) or
by guaranteed overnight delivery (i) if to the Corporation, to it at One North
University Drive, Fort Lauderdale, Florida 33324, Attention: General Counsel, or
if the Corporation should move its principal office, to such principal office,
and (ii) if to any officer, director or key employee of or Consultant to the
Corporation granted Options hereunder, to him or her at the last permanent
address shown on the Corporation's records.
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SECTION 10. EFFECTIVE DATE OF PROGRAM.
The Program shall be effective on and after March 14, 1997, the date of
its adoption by the Board.
SECTION 11. TERM OF PROGRAM.
No Option shall be granted pursuant to the Program on or after the
tenth anniversary of the date of adoption of the Program by the Board, but
awards granted prior to such tenth anniversary may be extended beyond that date.
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