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EXHIBIT 10.1
LAI WORLDWIDE, INC.
1997 OMNIBUS STOCK AND INCENTIVE PLAN
AMENDED EFFECTIVE AS OF DECEMBER 31, 1998
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TABLE OF CONTENTS
AMENDED EFFECTIVE AS OF DECEMBER 31, 1998
Item Page
- - ---- ----
SECTION 1. Establishment; Purpose.......................................................... 1
SECTION 2. Definitions..................................................................... 1
SECTION 3. Types of Awards Under Plan....................................................... 4
SECTION 4. Eligibility...................................................................... 4
SECTION 5. Number of Shares Covered by Awards.............................................. 4
SECTION 6. Administration................................................................... 4
SECTION 7. Stock Options.................................................................... 6
SECTION 8. Stock Appreciation Rights........................................................10
SECTION 9. Performance Shares and Units.....................................................11
SECTION 10. Restricted Stock, Restricted Stock Units, and Unrestricted Stock.................12
SECTION 11. Adjustment of Number of Shares...................................................14
SECTION 12. Change of Control................................................................15
SECTION 13. Beneficiary Designation..........................................................15
SECTION 14. Tax Withholding..................................................................16
SECTION 15. Indemnification..................................................................16
SECTION 16. Gender and Number................................................................16
SECTION 17. Controlling Law..................................................................16
SECTION 18. No Stockholder Rights............................................................17
SECTION 19. Amendments; Termination or Suspension............................................17
SECTION 20. Miscellaneous....................................................................17
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LAI WORLDWIDE, INC.
1997 OMNIBUS STOCK AND INCENTIVE PLAN
AMENDED EFFECTIVE AS OF DECEMBER 31, 1998
SECTION 1. ESTABLISHMENT; PURPOSE. LAI Worldwide, Inc. (the "Company")
hereby establishes the 1997 Omnibus Stock and Incentive Plan (the "Plan"),
pursuant to which key employees of the Company will be given the ability to
participate in increases in value of the Company. Under the Plan, the Company
may grant any one or more type of incentive awards to professional and
managerial employees who measurably impact the performance of the Company.
SECTION 2. DEFINITIONS. The following words and terms as used herein
shall have that meaning set forth therefor in this Section 2 unless a different
meaning is clearly required by the context.
(a) "AWARDS" shall mean any Options, SARs, Performance Units,
Performance Shares, Restricted Stock Units, Restricted Stock and Unrestricted
Stock granted or awarded under the Plan.
(b) "AWARD AGREEMENT(S)" shall mean any document, agreement or
certificate deemed by the Committee as necessary or advisable to be entered into
with or delivered to a Participant in connection with or as a condition
precedent to the valid completion of the grant of an Award under the Plan. Award
Agreements include Stock Option Agreements, Stock Appreciation Right Agreements,
Performance Agreements and Restriction Agreements.
(c) "BOARD" or "BOARD OF DIRECTORS" shall mean the Board of
Directors of the Company.
(d) "CHANGE IN CONTROL" shall mean:
(i) a change in control of the Company of a nature that is
required, pursuant to the Securities Exchange Act of
1934 (the "1934 Act"), to be reported in response to
Item 1(a) of a Current Report on Form 8-K or Item 6(e)
of Schedule 14A, in each case as such requirements are
in effect on June 1, 1997;
(ii) the adoption by the Company of a plan of dissolution or
liquidation;
(iii)the closing of a sale of all or substantially all of
the assets of the Company;
(iv) the closing of a merger, reorganization or similar
transaction (a "Transaction") involving the Company in
which the Company is not the surviving corporation or,
if the Company is the surviving corporation,
immediately following the closing of the Transaction,
persons who were shareholders of the Company
immediately prior to
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the Transaction own less than 75% of the combined
voting power of the surviving corporation's voting
securities;
(v) the acquisition of "Beneficial Ownership" (as defined
in Rule 13d-3 under the 1934 Act) of the Company's
securities comprising 25% or more of the combined
voting power of the Company's outstanding securities by
any "person" (as that term is used in Sections 13(d)
and 14(d)(2) of the 1934 Act and the rules and
regulations promulgated thereunder, but not including
any trustee or fiduciary acting in that capacity for an
employee benefit plan sponsored by the Company) and
such person's "affiliates" and "associates" (as those
terms are defined under the 1934 Act); or
(vi) the failure of the "Incumbent Directors" (as defined
below) to constitute at least a majority of all
directors of the Company (for these purposes,
"Incumbent Directors" mean individuals who were the
directors of the Company on June 1, 1997, and, after
his or her election, any individual becoming a director
subsequent to June 1, 1997, whose election, or
nomination for election by the Company's shareholders,
is approved by a vote of at least two-thirds of the
directors then comprising the Incumbent Directors,
except that no individual shall be considered an
Incumbent Director whose initial assumption of office
as a director is in connection with an actual or
threatened "election contest" relating to the "election
of directors" of the Company, as such terms are used in
Rule 14a-11 of Regulation 14A under the 1934 Act).
Notwithstanding any provision above to the contrary, no Change in Control shall
be deemed to have occurred with respect to any particular Participant by virtue
of a transaction, or series of transactions, that results in the Participant, or
a group of persons that includes the Participant, acquiring the Beneficial
Ownership of more than 25% of the combined voting power of the Company's
outstanding securities.
(e) "CODE" shall mean the Internal Revenue Code of 1986, as
amended. Reference to a specific section of the Code shall include a reference
to any successor provision.
(f) "COMMITTEE" shall mean the Compensation Committee of the
Board of Directors, as defined in Section 6.
(g) "COMMON STOCK" shall mean the common stock of the Company.
(h) "COMPANY" shall mean LAI Worldwide, Inc. and its
successors.
(i) "FAIR MARKET VALUE" of the Common Stock is defined in
Section 7(a).
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(j) "INCENTIVE STOCK OPTION" shall mean an Option that is
intended to qualify under Section 422 of the Code.
(k) "NON-INCENTIVE STOCK OPTION" shall mean an Option that is
not intended to qualify under Section 422 of the Code.
(l) "OPTION" shall mean an Incentive Stock Option or a
Non-Incentive Stock Option granted in accordance with the provisions of Section
7.
(m) "OPTION PERIOD" is defined in Section 7(c).
(n) "PARTICIPANT" shall mean any individual employed by the
Company or any Subsidiary to whom the Committee grants an Award.
(o) "PERFORMANCE ACCOUNT" is defined in Section 9(b).
(p) "PERFORMANCE AWARD" shall mean an Award of Performance
Shares and/or Performance Units.
(q) "PERFORMANCE PERIOD" is defined in Section 9(c).
(r) "PERFORMANCE SHARES" shall mean shares of Common Stock
granted in accordance with the provisions of Section 9.
(s) "PERFORMANCE UNITS" shall mean an Award in a form other
than shares of Common Stock granted in accordance with the provisions of Section
9.
(t) "PLAN" shall mean the LAI Worldwide, Inc. 1997 Omnibus
Stock and Incentive Plan, as set forth herein and as amended from time to time.
(u) "RESTRICTED STOCK" shall mean shares of Common Stock
subject to the provisions of Section 10 and such other terms and conditions as
the Committee may prescribe, and granted in accordance with the provisions of
Section 10.
(v) "RESTRICTED STOCK UNITS" shall mean the right to receive
shares of Common Stock or the cash equivalent thereof subject to the provisions
of Section 10 and such other terms and conditions as the Committee may
prescribe, and granted in accordance with the provisions of Section 10.
(w) "RESTRICTION PERIOD" is defined in Section 10(b).
(x) "SAR" shall mean a Stock Appreciation Right granted in
accordance with the provisions of Section 8.
(y) "STOCK APPRECIATION RIGHT" shall mean a SAR.
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(z) "SUBSIDIARY" shall mean any corporation that at the time
qualifies as a subsidiary of the Company under the definition of "subsidiary
corporation" contained in Section 424(f) of the Code.
(aa) "UNRESTRICTED STOCK" shall mean shares of Common Stock
granted in accordance with the provisions of Section 10 and not subject to
restrictions.
SECTION 3. TYPES OF AWARDS UNDER PLAN. The Company may grant under this
Plan Incentive Stock Options, Non-Incentive Stock Options, SARs, Performance
Units, Performance Shares, Restricted Stock, Restricted Stock Units, and
Unrestricted Stock.
SECTION 4. ELIGIBILITY. The Company may grant an Award to any person,
including any officer but not a person who is solely a director, who is in the
employ of the Company or any Subsidiary on the date of a grant of such Award.
Awards shall primarily be made to officers and other management and professional
employees of the Company. Any individual to whom the Committee has granted an
Award (a "Participant") shall be bound by the terms of this Plan and the Award
Agreement applicable to him or her.
SECTION 5. NUMBER OF SHARES COVERED BY AWARDS. The total number of
shares that may be issued and sold pursuant to Awards under this Plan shall be
Nine Hundred Fifty Thousand (950,000) shares of Common Stock (or the number and
kind of shares of common stock of the Company or other securities of the Company
which, in accordance with Section 11, shall be substituted for such shares of
Common Stock or to which said shares shall be adjusted; hereinafter, all
references to Common Stock includes references to said shares to which said
shares are adjusted). The issuance of shares of Common Stock pursuant to the
provisions of this Plan for Awards shall be free from any preemptive or
preferential right of subscription or purchase on the part of any stockholder.
If any outstanding Option or Restricted Stock granted or awarded under this Plan
expires, is terminated or is forfeited for any reason, the shares of Common
Stock subject to the unexercised portion of such Option or grant of Restricted
Stock will again be available for Awards under this Plan.
SECTION 6. ADMINISTRATION.
(a) This Plan shall be administered by the committee (the
"Committee") referred to in subsection (b) of this Section 6. However, until
such time as the Committee is appointed, the Board of Directors shall administer
the Plan pursuant to the provisions of this Section 6 as if it were the
Committee. Subject to the express provisions of this Plan, the Committee shall
have complete authority, in its discretion,
(i) to interpret this Plan, and to prescribe, amend and
rescind rules and regulations relating to the Plan;
(ii) to determine the terms and provisions of Awards granted
hereunder and to make such determinations as to the
Participants to receive Awards, the form, amount and
timing of such Awards, the terms and provisions of such
Awards, and the Award Agreements evidencing the
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same, which need not be uniform and which
the Committee may make selectively among
Participants who receive, or who are to
receive, Awards under the Plan, whether or
not the Participants are similarly situated;
(iii) to determine to whom the Options shall be
granted, the times and the prices at which
Options are granted, the Option periods, the
number of shares of Common Stock to be
subject to each Option, whether each Option
shall be an Incentive Stock Option or a
Non-Incentive Stock Option, and to determine
the terms and provisions of each Option
(which need not be identical);
(iv) to determine to whom SARs shall be granted,
the times and duration of each SAR, the
number of shares of Common Stock to which
each SAR relates, whether an SAR is granted
with respect to Options or alone, without
reference to any related stock option, and
to determine the terms and provisions of
each SAR (which need not be identical);
(v) to determine to whom Performance Shares and
Performance Units shall be granted, the
applicable Performance Period, and the
number of shares of Common Stock represented
by Performance Shares and Performance Units,
to maintain Performance Accounts, and to
determine the terms and provisions of
Performance Awards (which need not be
identical);
(vi) to determine to whom Restricted Stock,
Restricted Stock Units and Unrestricted
Stock shall be granted, the Restriction
Period (if applicable), the number of shares
of Restricted Stock and/or Unrestricted
Stock, the terms and provisions (which need
not be identical) of awards of Restricted
Stock and Restricted Stock Units and whether
the Participant has met the goals on or
before the close of the Restriction Period;
(vii) to impose such limitations with respect to
Options and Restricted Stock, including
without limitation, any relating to the
application of federal or state securities
laws, as the Committee may deem necessary or
desirable;
(viii) to determine the dates of employment of any
employee of the Company, and the reasons for
termination of any Participant;
(ix) to determine whether any leave of absence
constitutes a termination of employment for
purposes of this Plan and the impact, if
any, of such leave of absence on awards
theretofore made under this Plan;
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(x) to determine when a person's change of
status with respect to the Company
constitutes a termination of such person's
employment for purposes of this Plan;
(xi) to make such determinations as it deems
equitable with respect to the impact, if
any, of leaves of absence from the Company
upon Awards hereunder;
(xii) to grant dividend equivalents upon Awards
(other than Restricted Stock or Unrestricted
Stock, for which Participants are entitled
to receive dividends and other distributions
paid with respect to shares of Common Stock
so held), provided that any such dividend
equivalents shall be subject to the terms
and conditions imposed by the Committee; and
(xiii) to make all other determinations necessary
or advisable for the administration of the
Plan.
In making determinations under this Section 6, the Committee may take into
account the nature of the services rendered by the respective employees, their
present and potential contributions to the success of the Company and such other
factors as the Committee, in its discretion, deems relevant. The Committee's
determination on all of the matters referred to in this Section 6 shall be
conclusive.
(b) The Committee shall consist of the Compensation Committee
of the Board of Directors of the Company, which shall be comprised of two (2) or
more outside directors. The Committee shall be appointed by the Board, which may
at any time and from time to time, remove any member of the Committee, with or
without cause, appoint additional members to the Committee and fill vacancies,
however caused, in the Committee. A majority of members of the Committee shall
constitute a quorum. All determinations of the Committee shall be made by a
majority of its members. Any decision or determination of the Committee reduced
to writing and signed by all of the members of the Committee shall be fully
effective as if it had been made at a meeting duly called and held.
(c) No member of the Committee shall be liable for any action
or determination made in good faith with respect to the Plan.
(d) Nothing contained in this Plan shall be deemed to give any
individual any right to be granted an Award except to the extent and upon such
terms and conditions as may be determined by the Committee.
SECTION 7. STOCK OPTIONS. Each Option granted under this Plan shall be
evidenced by a written agreement (the "Stock Option Agreement"), which shall be
executed by the Company and by the Participant, and shall be subject to the
following terms and conditions:
(a) The price at which shares of Common Stock covered by each
Option may be purchased pursuant thereto shall be determined in each case on the
date of grant by the Committee;
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provided, however, that with respect to Incentive Stock Options, the price shall
be an amount not less than the Fair Market Value of the shares of Common Stock
at the time the Incentive Stock Option is granted. The date on which the
Committee approves the grant of an Option shall be considered to be the date on
which such Option is granted. For purposes of this Section, the Fair Market
Value of shares of Common Stock on any day shall be:
(i) in the event the Common Stock is not publicly traded,
the fair market value of such shares on such day as
determined by the Committee in good faith and based on
all relevant factors; or
(ii) in the event the Common Stock is publicly traded, the
closing price of such shares on the date in question
(or, if no shares are traded on such day, on the next
preceding day on which shares were traded), of the
Common Stock on the principal securities exchange in
the United States on which such stock is listed, or if
such stock is not listed on a securities exchange in
the United States, the closing price on such day on the
Nasdaq Stock Market ("Nasdaq"), or Nasdaq's successor,
or if not reported on Nasdaq, the fair market value of
such stock as determined by the Committee in good faith
and based on all relevant factors or as otherwise
determined by the Committee in its discretion pursuant
to any reasonable method contemplated by Section 422 of
the Code and any Treasury regulations issued pursuant
to that Section.
(b) The option price of the shares to be purchased pursuant to
each Option shall be paid in full (i) in United States dollars in cash or by
check, bank draft or money order payable to the order of the Company; (ii) in
the discretion of and in the manner determined by the Committee, by the delivery
of shares of Common Stock already owned by the Participant; (iii) by any other
legally permissible means acceptable to the Committee at the time of grant of
the Option (including cashless exercise as permitted under the Federal Reserve
Board's Regulation T, subject to applicable legal restrictions); or (iv) in the
discretion of the Committee, through a combination of (i), (ii) and (iii) of
this subsection (b). Shares of Common Stock delivered will be valued on the day
of delivery for the purpose of determining the extent to which the option price
has been paid thereby, in the same manner as provided for in the determination
of Fair Market Value as set forth in subsection (a) of this Section 7, or as
otherwise determined by the Committee in its discretion pursuant to any
reasonable method contemplated by Section 422 of the Code and any Treasury
regulations issued pursuant to that Section.
(c) Each Stock Option Agreement shall provide that such Option
may be exercised by the Participant, in such parts and at such times, as may be
specified in such Stock Option Agreement, within a period ending not later than
ten years after the date on which the Option is granted (the "Option Period");
provided, however, that the Option Period shall end on the earlier of the date
specified in such Stock Option Agreement or the ending date of the period
specified in the next sentence. Options may be exercised only during the Option
Period and only
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(i) during the continuance of the Participant's employment
with the Company or a Subsidiary;
(ii) if the Participant terminates employment with the
Company or a Subsidiary other than by reason of death,
during the period ending ninety (90) days after the
date of termination of employment, but only to the
extent that the right to exercise such Options had
accrued on or before the date of termination and had
not previously been exercised; provided, that if the
Participant terminates such employment by reason of
disability (within the meaning of Section 22(e)(3) of
the Code) or if the Participant dies during the ninety
(90) day period, the ninety (90) day period shall be
extended to one (1) year; or
(iii)if the Participant dies while employed by the Company
or a Subsidiary, during the period ending on the first
anniversary of the Participant's death, but only to the
extent that the right to exercise such Options had
accrued on or before the date of death and had not
previously been exercised.
Whether an authorized leave of absence or absence for military or governmental
service shall constitute termination of employment for purposes of the Plan
shall be determined by the Committee, whose determination shall be final and
conclusive. In the event of the death of a Participant, Options held by the
Participant may be exercised, to the extent specified in the Stock Option
Agreement and this subsection (c), by the person or persons entitled to do so
under the Participant's will, or, if the Participant fails to make testamentary
disposition of said Options, or dies intestate, by the Participant's legal
representative or representatives.
(d) Unless otherwise specified by the Committee, each Option
shall be exercisable, in whole or in part, only in accordance with the following
chart:
PERCENTAGE OF
NUMBER OF YEARS FROM SHARES
DATE OPTION IS GRANTED EXERCISABLE
----------------------------------------------------
Less than 1 year 0%
1 year but less than 2 years 25%
2 years but less than 3 years 50%
3 years but less than 4 years 75%
4 years or more 100%
Notwithstanding the foregoing, a Participant shall be 100% vested in the number
of shares of Common Stock originally covered by an Option in the event
Participant dies or becomes totally and permanently disabled (as determined in
the sole discretion of the Committee) while still employed by the Company or
upon a Change in Control while the Participant is still so employed. When it
deems
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special circumstances to exist, the Committee in its discretion may accelerate
the time at which an Option may be exercised if, under previously established
exercise terms, such Option was not immediately exercisable in full, even if the
acceleration would permit the Option to be exercised more rapidly than the
vesting set forth above in the chart, or as otherwise specified by the
Committee, would permit.
(e) In the discretion of the Committee, a single Stock Option
Agreement may include both Incentive Stock Options and Non-Incentive Stock
Options, or separate Stock Option Agreements may be set forth for Incentive
Stock Options and Non-Incentive Stock Options.
(f) Each Option granted under this Plan shall be
non-transferable, and its terms shall state that it is non-transferable and
that, during the lifetime of the Participant, shall be exercisable only by the
Participant; notwithstanding the foregoing, Options shall be transferable by
will or the laws of descent and distribution as set forth in subsection (c) of
this Section 7. However, a Participant may transfer a Non-Incentive Stock Option
to a trust, provided that the Committee may require that the Participant submit
an opinion of his or her legal counsel, satisfactory to the Committee, that such
holding has no adverse tax or securities law consequences for the Company.
(g) Notwithstanding anything contained herein to the contrary,
if Options as to 100 or more shares of Common Stock are held by a Participant,
then the Participant may exercise such Options only with respect to at least 100
shares at any one time, and if Options for less than 100 shares are held by a
Participant, then the Participant must exercise Options for all shares at one
time.
(h) The Stock Option Agreements under this Plan may contain
such other terms, provisions and conditions not inconsistent herewith as shall
be determined by the Committee, in its discretion, including, without
limitation, provisions (i) relating to the vesting and termination of Options;
(ii) restricting the transferability of such shares during a specified period;
and (iii) requiring the resale of such shares to the Company, at a price as
specified in the Stock Option Agreement, if the Participant's employment by the
Company terminates prior to a time specified in the Stock Option Agreement.
(i) All grants of Options made prior to the date on which
shareholders approve this Plan shall be contingent upon subsequent approval of
the shareholders of this Plan.
(j) This Section 7 shall terminate on, and no additional
Awards shall be granted after, ten years from the first to occur of (i) the date
on which the Plan is adopted or (ii) the date on which the shareholders of the
Company approve the Plan.
(k) Each Option that is intended to qualify as an Incentive
Stock Option pursuant to Section 422 of the Code, and each Option that is
intended to qualify as another type of incentive stock option that may
subsequently be authorized by law, shall comply with the applicable provisions
of the Code pertaining to such options. Accordingly, the provisions of this Plan
with respect to Incentive Stock Options shall be construed in a manner
consistent with such requirements, and no person shall be eligible to receive
any Incentive Stock Options under the Plan if such person would not be able
qualify for the benefits of incentive stock options under Section 422 of the
Code. Without limitation on the foregoing, and notwithstanding the foregoing
provisions of this Section 7, if any
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Incentive Stock Option is granted to any person at a time when such person owns,
within the meaning of Section 424(d) of the Code, more than ten percent (10%) of
the total combined voting power of all classes of stock of the employer
corporation (or a parent or subsidiary of such corporation within the meaning of
Section 424 of the Code), the price at which each share of Common Stock covered
by such Option may be purchased pursuant to such Option shall not be less than
one hundred ten percent (110%) of the Fair Market Value of the shares of Common
Stock at the time the Option is granted, and such Option must be exercised no
event later than the fifth anniversary of the date on which the Option was
granted. Moreover, as long as and to the extent required by the Code, the
aggregate Fair Market Value (determined as of the time an Incentive Stock Option
is granted) of the shares of Common Stock with respect to which Incentive Stock
Options are exercisable for the first time by any Participant in any calendar
year under the Plan and under all other incentive stock option plans of the
Company and any parent and subsidiary corporations of the Company (as those
terms are defined in Section 424 of the Code) shall not exceed $100,000.
SECTION 8. STOCK APPRECIATION RIGHTS.
(a) An SAR is a right to receive, without payment (except for
applicable withholding taxes) to the Company, a number of shares of Common
Stock, cash or a combination thereof, the amount of which is determined under
subsection (e) of this Section 8. An SAR may be granted (i) with respect to any
Option granted under this Plan, either concurrently with the grant of such
Option, or at such later time as determined by the Committee (as to all or any
portion of the shares of Common Stock subject to the Option), or (ii) alone,
without reference to any related Option. Each SAR granted by the Committee under
this Plan shall be subject to the terms and conditions of this Section 8.
(b) Each SAR granted to any Participant shall relate to the
number of shares of Common Stock as shall be determined by the Committee,
subject to adjustment as provided in Section 11. In the case of an SAR granted
with respect to an Option, the number of shares of Common Stock to which the SAR
relates shall be reduced in the same proportion that the holder of such Option
exercises with respect to such related Option, and the number of shares subject
to an Option shall be reduced in the same proportion that the holder of the SAR
exercises with respect to the related Option.
(c) The term of each SAR shall be determined by the Committee.
Unless otherwise provided by such Committee, an SAR granted in connection with
an Option shall be exercisable only at such time or times, to such extent and by
such persons as the Option to which it relates shall be exercisable, provided
that an SAR granted in connection with an Incentive Stock Option shall not be
exercisable on any date on which the Fair Market Value of a share of Common
Stock is less than or equal to the per share exercise price of the Incentive
Stock Option. An SAR shall be canceled when, and to the extent that, any related
Option is exercised, and an Option shall be canceled when, and to the extent
that, the Option is surrendered to the Company upon the exercise of a related
SAR. The Committee, in its discretion, may accelerate the time within which a
SAR may be exercised.
(d) An SAR may be exercised, in whole or in part, by giving
written notice to the Committee, specifying the number of SARs that the holder
wishes to exercise. Upon receipt of such
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written notice, the Committee shall direct the Company to deliver to the
exercising holder within ninety (90) days after receipt of the notice a
certificate for the shares of Common Stock or cash or both, as determined by the
Committee, to which the holder is entitled.
(e) Subject to the right of the Committee to deliver cash in
lieu of shares of Common Stock, the number of shares of Common Stock that shall
be issuable upon the exercise of an SAR shall be determined by dividing:
(i) the number of shares of Common Stock as to which the
SAR is exercised multiplied by the amount of
appreciation in such shares (for this purpose, the
"appreciation" shall be the amount by which the Fair
Market Value of the shares of Common Stock subject to
the SAR on the exercise date exceeds (A) in the case of
an SAR related to an Option, the purchase price of the
shares of Common Stock under the Option or (B) in the
case of an SAR granted alone, without reference to a
related Option, an amount that shall be determined by
the Committee at the time of the grant, subject to
adjustment under Section 11); by
(ii) the Fair Market Value of a share of Common Stock on the
exercise date.
In lieu of issuing shares of Common Stock upon the exercise of an SAR, the
Committee may elect to pay the holder of an SAR cash equal to the Fair Market
Value on the exercise date of any or all of the shares that would otherwise be
issuable. No fractional shares of Common Stock shall be issued upon the exercise
of an SAR; instead, the holder of the SAR shall be entitled to receive a cash
adjustment equal to the same fraction of the Fair Market Value of a share of
Common Stock on the exercise date or to purchase the portion necessary to make a
whole share at its Fair Market Value on the date of exercise.
(f) SARs awarded under the Plan shall be evidenced by either a
Stock Option Agreement or a separate signed Stock Appreciation Right Agreement
between the Company and the Participant to whom the SAR is granted.
SECTION 9. PERFORMANCE SHARES AND UNITS.
(a) The Committee may award to any Participant Performance
Shares and/or Performance Units ("Performance Awards"). Each Performance Share
shall represent one share of Common Stock. Each Performance Unit shall represent
the right of a Participant to receive an amount equal to the value to be
determined in the manner established by the Committee at the time of the award,
which value may, without limitation, be equal to the Fair Market Value of one
share of Common Stock. Each Performance Award under the Plan shall be evidenced
by a signed written agreement containing such terms and conditions as the
Committee may from time to time determine (the "Performance Agreement").
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(b) At the time of the Performance Award, the Committee shall
establish an account (the "Performance Account") for each Participant to whom a
Performance Award has been granted. Performance Units and Performance Shares
awarded to a Participant shall be credited to the Participant's Performance
Account.
(c) The performance period for each Performance Award shall be
of such duration as the Committee shall establish at the time of the award (the
"Performance Period"). There may be more than one Performance Award in existence
for a Participant at any time, and more than one Performance Period applicable
to a Participant, and the duration of Performance Periods may differ.
(d) At the time of each Performance Award, the Committee may,
in its complete discretion, establish performance target(s) to be achieved
within the Performance Period(s). The performance target(s) shall be determined
by the Committee using such measures of performance of the Company over the
Performance Period as the Committee shall select. During any Performance Period,
the Committee may adjust the performance targets for such Performance Period as
it deems equitable in recognition of unusual or non-recurring events affecting
the Company, changes in applicable tax laws or accounting principles or such
other factors as the Committee may determine. If the Committee determines that
the Participant has failed to meet the performance target(s), the Participant
will not receive payment of the Performance Award.
(e) Performance Awards will be earned as determined by the
Committee in respect of a Performance Period in relation to the degree of
attainment of performance target(s).
(f) Performance Awards shall be earned to the extent that
their terms and conditions are met. Notwithstanding the foregoing, Performance
Awards and any other amounts credited to the Participant's Performance Account
shall be payable to the Participant only in accordance with the Performance
Agreement. The Committee shall make all payment determinations during the
four-month period beginning on the first day following the close of the
Performance Period. Payment for Performance Awards may be made in a lump sum or
in installments, in cash, in shares of Common Stock or in a combination thereof
as the Committee may determine.
(g) In the event that a Participant's employment by the
Company terminates before the end of a Performance Period with the consent of
the Committee, or upon a Participant's death or disability before the end of a
Performance Period, the Committee, taking into consideration the performance of
such Participant and the performance of the Company over such portion of the
Performance Period, may authorize the payment to such Participant (or his or her
legal representative or designated beneficiary) of all or a portion of the
amount that would have been paid to the Participant had he or she continued
employment until the end of the Performance Period. In the event a Participant
ceases his or her employment for any other reason, any unpaid amounts for any
outstanding Performance Periods shall be forfeited.
SECTION 10. RESTRICTED STOCK, RESTRICTED STOCK UNITS, AND UNRESTRICTED
STOCK.
(a) The Committee may award to any Participant shares of
Common Stock subject to no restrictions ("Unrestricted Stock").
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(b) At the time of an Award under subsection (c) or (d) below,
there shall be established for each Participant a restriction period (the
"Restriction Period"), which shall lapse (i) upon the completion of a period of
time ("Time Goal") as shall be determined by the Committee, or (ii) upon the
achievement of stock price goals within certain time periods ("Price/Time Goal")
as shall be determined by the Committee.
(c) The Committee may award to any Participant shares of
Common Stock, subject to this Section 10 and such other terms and conditions as
the Committee may prescribe ("Restricted Stock"). Each certificate for
Restricted Stock shall be registered in the name of the Participant and
deposited by the Participant, together with a stock power endorsed in blank,
with the Committee. Restricted Stock awarded under this Plan shall be evidenced
by a signed written agreement containing such terms and conditions as the
Committee may from time to time determine in its discretion (the "Restriction
Agreement"). Restricted Stock may not be sold, assigned, transferred, pledged or
otherwise encumbered, except as hereinafter provided, during the Restriction
Period. Except for such restrictions on transfer, the Participant as owner of
such Restricted Stock shall have all the rights of a holder of such Common
Stock. A Participant may transfer Restricted Stock to a trust, provided that the
Committee may require that the Participant submit an opinion of his or her legal
counsel, satisfactory to the Committee, that such holding has no adverse tax or
securities law consequences for the Company.
With respect to Restricted Stock that is issued subject to a
Time Goal, the Committee shall redeliver to the Participant (or the
Participant's legal representative or designated beneficiary) the certificates
deposited pursuant to this subsection (c) at the expiration of the Restriction
Period. With respect to Restricted Stock that is issued subject to a Price/Time
Goal, the Committee shall redeliver to the Participant (or the Participant's
legal representative or designated beneficiary) the certificates deposited
pursuant to this subsection (c) at the expiration of the Restriction Period.
Notwithstanding the foregoing, if Restricted Stock is issued subject to a
Price/Time Goal or Time Goal and the Committee determines that a Participant has
not achieved the Time Goal or Price/Time Goal before the end of the Restriction
Period, the Participant shall have no further rights with respect to the
Restricted Stock, all such shares shall be forfeited and the Committee shall
have the right to complete a blank stock power in order to return such shares to
the Company.
(d) The Committee may award to a Participant a right to receive
Common Stock or the cash equivalent of the Fair Market Value of the Common
Stock, in the Committee's discretion, at the end of the Restriction Period
("Restricted Stock Units") subject to achievement of a Time Goal or Price/Time
Goal established by the Committee. Restricted Stock Units awarded under this
Plan shall be evidenced by a signed written agreement containing such terms and
conditions as the Committee may from time to time determine in its discretion
(the "Restriction Agreement"). With respect to Restricted Stock Units that are
subject to a Time Goal, the Committee shall deliver notice to the Participant
(or the Participant's legal representative or designated beneficiary) at the end
of the Restriction Period as to whether the Participant has achieved the Time
Goal. With respect to Restricted Stock Units that are awarded subject to a
Price/Time Goal, the Committee shall deliver notice to the Participant (or the
Participant's legal representative or designated beneficiary) at the end of the
Restriction Period as to whether the Participant has achieved the Price/Time
Goal. If the Committee determines that a Participant has not achieved the Time
Goal or Price/Time Goal before
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the end of the Restriction Period, the Participant shall have no further rights
with respect to the Restricted Stock Units.
(e) In the event a Participant ceases employment with the
Company with the consent of the Committee or upon the Participant's death or
disability before the end of the Restriction Period and the Participant has
received an Award subject to a Time Goal, the restrictions imposed under this
Section 10 shall lapse with respect to the number of those shares or units
subject to a Time Goal as shall be determined by the Committee. In no event,
however, shall the number of shares or units be less than a number equal to the
product of (i) a fraction, the numerator of which is the number of completed
months elapsed after the date of the Award subject to a Time Goal to the date of
termination and the denominator of which is the number of months in the
Restriction Agreement, multiplied by (ii) the number of shares of Restricted
Stock or Restricted Stock Units awarded to the Participant subject to the Time
Goal.
In the event a Participant ceases employment with the
Company with the consent of the Committee or upon the Participant's death or
disability before the end of the Restriction Period and the Participant has
received an Award subject to a Price/Time Goal, the restrictions imposed under
this Section 10 shall lapse upon the achievement of the Price/Time Goal within
two (2) years of the Participant's termination of employment with respect to
such number of shares or units subject to a Price/Time Goal as shall be
determined by the Committee. In no event, however, shall the number of shares or
units be less than a number equal to the product of (i) a fraction, the
numerator of which is the number of completed months elapsed after the date of
the Award subject to a Price/Time Goal to the date of termination and the
denominator of which is the number of months elapsed after the date of the Award
subject to a Price/Time Goal to the date of achievement of the Price/Time Goal,
multiplied by (ii) the number of shares of Restricted Stock or Restricted Stock
Units awarded to the Participant subject to the Price/Time Goal.
In the event a Participant ceases employment with the
Company for any other reason, all Restricted Stock or Restricted Stock Units
theretofore awarded to that Participant that are still subject to restrictions
shall be forfeited and the Committee shall have the right to complete the blank
stock power with respect to any such Restricted Stock.
SECTION 11. ADJUSTMENT OF NUMBER OF SHARES.
(a) In the event of any increase or decrease in the number of
issued shares of Common Stock resulting from a stock split or other division or
consolidation of shares or the payment of a stock dividend (but only on Common
Stock) or any other increase or decrease in the number of shares of Common Stock
effected without any receipt of consideration by the Company, then, in any such
event, the number of shares of Common Stock that remain available under the
Plan, the number of shares covered by each outstanding Option, the exercise
price per share covered by each outstanding Option, the number of shares covered
by each outstanding SAR and the exercise price per share and the number and any
purchase price for any other Award shares (or equivalents) granted but not yet
issued, in each case, shall be proportionately and appropriately adjusted for
any such increase or decrease.
14.
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(b) Subject to any required action by the stockholders, if any
change occurs in the Common Stock by reason of any recapitalization,
reorganization, merger, consolidation, split-up, combination or exchange of
shares, or of any similar change affecting Common Stock, then, in any such
event, the number and type of shares of Common Stock then covered by each
outstanding Option, the purchase price per share covered by each outstanding
Option, the number of shares covered by each outstanding SAR and the exercise
price per share and the number and any purchase price for any other Award shares
(or equivalents) granted but not yet issued, in each case, shall be
proportionately and appropriately adjusted for any such change.
(c) In the event of a change in the Common Stock as presently
constituted that is limited to a change of all of its authorized shares with par
value into the same number of shares with a different par value or without par
value, the shares resulting from any change shall be deemed to be Common Stock
within the meaning of the Plan.
(d) To the extent that the foregoing adjustments relate to
stock or securities of the Company, such adjustments shall be made by, and in
the discretion of, the Board of Directors, whose determination in that respect
shall be final, binding and conclusive; provided, however, that any Incentive
Stock Option granted pursuant to Section 7 shall not be adjusted in a manner
that causes such Option to fail to continue to qualify as an incentive stock
option within the meaning of Section 422 of the Code.
(e) Except as hereinabove expressly provided in this Section
11, a Participant shall have no rights by reason of any division or
consolidation of shares of stock of any class or the payment of any stock
dividend or any other increase or decrease the number of shares of stock of any
class or by reason of any dissolution, liquidation, merger or consolidation, or
spin-off of assets or stock of another corporation; and any issuance by the
Company of shares of stock of any class, securities convertible into shares of
stock of any class, or warrants or options for shares of stock of any class
shall not affect, and no adjustment by reason thereof shall be made with respect
to, the number or price of shares of Common Stock, any Option, any SAR or any
other Award shares (or equivalents) granted but not yet issued.
(f) The existence of the Plan, or the grant of an Option, SAR
or other Award under the Plan, shall not affect in any way the right or power of
the Company to make adjustments, reclassifications, reorganizations or changes
of its capital or business structure or to merge or to consolidate, or to
dissolve, to liquidate, to sell, or to transfer all or any part of its business
or assets.
SECTION 12. CHANGE OF CONTROL. In the event of a Change of Control, any
Option, SAR (whether or not granted with respect to an Option) or Restricted
Stock subject to a Time Goal shall immediately become fully vested without
regard to any other terms of the Award.
SECTION 13. BENEFICIARY DESIGNATION. Each Participant under the Plan
may name, from time to time, any beneficiary or beneficiaries (who may be named
contingently or successively) to whom any benefit (other than an Option) under
the Plan is to be paid in case of his or her death before the Participant
receives any or all of such benefit. Each designation will be effective only
with the written consent of the Participant's spouse and will revoke all prior
designations by that Participant, shall be in the form prescribed by the
Committee, and will be effective only when filed by the
15.
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Participant in writing with the Committee during his or her lifetime. In the
absence of any such designation, benefits (other than those under Options) that
are vested and remain unpaid at the Participant's death shall be paid to his or
her estate.
SECTION 14. TAX WITHHOLDING.
(a) The Company shall have the power to withhold, or require a
Participant to remit to the Company, an amount sufficient to satisfy any
federal, state or local withholding or other tax due from the Company with
respect to any amount payable and/or shares issuable under the Plan, and the
Company may defer such payment or issuance unless indemnified to its
satisfaction. Whenever under the Plan payments are to be made in cash, such
payments shall be made net of an amount sufficient to satisfy any federal, state
or local withholding tax liability.
(b) Subject to the consent of the Committee, with respect to
(i) the exercise of a Non-Incentive Stock Option, (ii) the lapse of restrictions
on Restricted Stock, or (iii) the issuance of any other stock Award under the
Plan, a Participant may make an irrevocable election (an "Election") to (A) have
shares of Common Stock otherwise issuable under (i) withheld, or (B) tender back
to the Company shares of Common Stock received pursuant to (i), (ii), or (iii),
or (C) deliver back to the Company pursuant to (i), (ii), or (iii) previously
acquired shares of Common Stock having a Fair Market Value sufficient to satisfy
all or part of the Participant's estimated tax obligations associated with the
transaction. Such Election must be made by a Participant prior to the date on
which the relevant tax obligation arises. The Committee may disapprove of any
Election, may suspend or terminate the right to make Elections, or may provide
with respect to any Award under this Plan that the right to make Elections shall
not apply to such Awards.
SECTION 15. INDEMNIFICATION. To the fullest extent permitted by law,
each person who is or shall have been a member of the Committee 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 or
her in connection with or resulting from any claim, action, suit, or proceeding
to which he or she may be a party or in which he or she 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 or her in settlement thereof, with the Company's
approval, or paid by him or her in satisfaction of any judgment in any such
action, suit, or proceeding against him or her, provided that the person shall
give the Company an opportunity, at its own expense, to handle and defend the
same before the person undertakes to handle and defend it on his or her own
behalf. The foregoing right of indemnification shall not be exclusive of any
other rights of 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.
SECTION 16. GENDER AND NUMBER. Except where otherwise indicated by the
context, words in the masculine gender when used in the Plan will include the
feminine gender, the singular shall include the plural, and the plural shall
include the singular.
SECTION 17. CONTROLLING LAW. This document shall be construed under the
laws of the State of Florida.
16.
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SECTION 18. NO STOCKHOLDER RIGHTS. No Participant hereunder shall have
any rights of a stockholder of the Company by reason of being granted an Award
under this Plan until the date on which he or she becomes a record owner of
shares of Common Stock purchased upon the exercise of an Option or otherwise
received under this Plan (the "record ownership date"). No adjustment shall be
made for dividends (ordinary or extraordinary, whether in cash, securities or
other property), distributions, or other rights for which the record date is
prior to the record ownership date.
SECTION 19. AMENDMENTS; TERMINATION OR SUSPENSION.
(a) This Plan may be amended from time to time by written
resolution of the Board of Directors of the Company; provided, however, that no
Participant's existing rights are adversely affected thereby without the consent
of such person, and provided further that, without approval of the stockholders
of the Company, no amendment shall (i) increase the total number of shares of
Common Stock that may be issued pursuant to Awards granted under this Plan, (ii)
change the designation of the class of employees eligible to receive Incentive
Stock Options or Non-Incentive Stock Options, (iii) decrease the minimum Option
price set forth in subsection (a) of Section 7 of this Plan, (iv) extend the
period during which an Option may be granted or exercised beyond the maximum
period specified in this Plan, (v) otherwise materially modify the requirements
as to eligibility for participation in the Plan, (vi) otherwise materially
increase the benefits under the Plan, or (vii) withdraw the authority to
administer this Plan from the Committee. Notwithstanding the foregoing, the
Board may amend the Plan to incorporate or conform to requirements imposed by
and amendments made to the Code or regulations promulgated thereunder which the
Board deems to be necessary or desirable to preserve (A) incentive stock option
status for outstanding Incentive Stock Options and to preserve the ability to
issue Incentive Stock Options pursuant to this Plan, (B) the deductibility by
the Company of amounts taxed to Plan Participants as ordinary compensation
income, and (C) the status of any Award as exempt from registration requirements
under any securities law for which the Award was intended to be exempt. The
foregoing prohibitions in this Section 19 shall not be affected by adjustments
in shares and purchase price made in accordance with the provisions of Section
11.
(b) The Board of Directors of the Company may terminate the
Plan or any portion thereof at any time by written resolution. No suspension or
termination shall impair the rights of Participants under outstanding Awards
without the consent of the Participants affected thereby.
SECTION 20. MISCELLANEOUS.
(a) LISTING AND REGISTRATION OF COMMON STOCK. Each Award shall
be subject to the requirement that if at any time the Board of Directors shall
determine, in its discretion, that the listing, registration or qualification of
the Common Stock that is the subject thereof or that is covered thereby upon any
securities exchange or under any state or federal laws, 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 issuance
or purchase of Common Stock thereunder, such Award may not be exercised unless
and until such listing, registration, qualification, consent or approval shall
have been effected or obtained free of any conditions not acceptable to the
Board of Directors. Notwithstanding anything in the Plan to the contrary, if the
provisions of this Section 20(a) become operative, and if, as a result thereof,
the exercise of an Award is delayed, then and in
17.
20
that event, the term of the Award shall not be affected. Notwithstanding the
foregoing or any other provision in the Plan, the Company shall have no
obligation under the Plan to cause any shares of Common Stock to be registered
or qualified under any federal or state law or listed on any stock exchange or
admitted to any national marketing system.
(b) NO IMPLIED RIGHTS TO EMPLOYEES. The existence of the Plan
and the granting of Awards under the Plan shall in no way give any employee the
right to continued employment, give any employee the right to receive any
additional Awards or any additional compensation under the Plan, or otherwise
provide any employee any rights not specifically set forth in the Plan or in any
Award Agreement.
(c) CONDITIONS PRECEDENT TO EFFECTIVENESS. The Plan shall
become effective upon the satisfaction of all the following conditions, with the
effective date of the Plan being the date that the last such condition is
satisfied:
(i) the adoption of the Plan by the Board of Directors;
(ii) the approval of the Plan by the stockholders of the
Company within twelve (12) months after its adoption
by the Board; and
(iii) the effectiveness of the Company's Registration
Statement on Form S-1 relating to the Company's
initial public offering, as filed with the SEC
(File No. 33-26027).
18.