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EXHIBIT 10.1
BOCA RESORTS, INC.
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SECOND AMENDED AND RESTATED
1996 STOCK OPTION PLAN
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1. STATEMENT OF PURPOSE. This Second Amended and Restated 1996 Stock
Option Plan (the "Plan") is intended to provide certain employees, directors
(both employee and non-employee directors), independent contractors and
consultants of Boca Resorts, Inc., formally known as Florida Panthers Holdings,
Inc., a Delaware corporation (the "Company"), and its subsidiaries with an added
incentive to provide their services to the Company and to induce them to exert
their maximum effort toward the Company's success through the encouragement of
stock ownership in the Company by such persons.
2. ADMINISTRATION. The Plan shall be administered by a committee (the
"Committee"), appointed by the board of directors of the Company (the "Board of
Directors"), consisting of two or more outside directors (each of whom qualifies
as an "outside director" under Section 162(m) of the Internal Revenue Code of
1986, as amended (the "Code"), and as a "non-employee director" under Rule 16b-3
under the Securities Exchange Act of 1934, as amended (the "Exchange Act")),
whose interpretation of the terms and provisions of the Plan shall be final and
conclusive. The selection of employees, directors (both employee and
non-employee directors), independent contractors and consultants for
participation in the Plan and all decisions concerning the timing, pricing and
amount of any grant or award under the Plan shall be made solely by the
Committee. In the event a Committee of two or more qualifying directors cannot
be formed, the Plan shall be administered by the Board of Directors. No member
of the Board of Directors or of the Committee shall be liable for any action or
determination made in good faith with respect to the Plan or any option granted
or option agreement entered into hereunder.
3. ELIGIBILITY. Options shall be granted only to employees (including
officers) and directors (employee and non-employee directors) of the Company and
it subsidiaries, as well as independent contractors and consultants performing
services for the Company and its subsidiaries (collectively, the "Optionees"),
selected initially and from time to time by the Committee on the basis of their
importance to the business of the Company or its subsidiaries.
4. GRANTING OF OPTIONS. Subject to Section 10 of the Plan, the Company
may grant to Optionees from time to time options to purchase an aggregate of up
to 7,500,000 shares of the Company's Class A common stock, par value $.01 per
share (the "Class A Common Stock"). In the event that an option expires or is
terminated or canceled unexercised as to any shares, such released shares may
again be optioned (including a grant in substitution for a canceled option).
Shares subject to options may be made available from authorized and unissued
shares of Class A Common Stock. Options granted under the Plan shall not
constitute "incentive stock options" for purposes of Section 422 of the Code.
The maximum number of shares of Class A Common Stock with respect to which
options may be granted during any calendar year to any person shall be 500,000.
All options granted pursuant to the Plan shall be evidenced by agreements, to be
executed by the Company and by the Optionee, in such form or forms as the
Committee shall from time to time determine. Option agreements covering options
granted from time to time or at the same time need not contain provisions
specified in the Plan; provided, however, that all such option agreements shall
comply with all terms and provisions of the Plan. The date of grant of an option
under this Plan shall be the date as of which the Committee approves the grant.
5. OPTION PRICE. The option price shall be determined by the Committee
and, subject to the provisions of Section 10 hereof, shall be not less than the
fair market value, as determined by the Committee at the time the option is
granted, of the shares of Class A Common Stock subject to the option.
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6. DURATION OF OPTIONS, INCREMENTS AND EXTENSIONS. Subject to the
provisions of Section 8 hereof, each option shall be for such term of not less
than five years nor more than 10 years, as shall be determined by the Committee
at the time the option is granted. Each option shall become exercisable with
respect to 25% of the total number of shares subject to the option 12 months
after the date of its grant and with respect to each additional 25% at the end
of each 12-month period thereafter during the succeeding three years.
Notwithstanding the foregoing, the Committee may in its discretion (i)
specifically provide for another time or times of exercise at the time the
option is granted; (ii) accelerate the exercisability of any option subject to
such terms and conditions as the Committee deems necessary and appropriate; or
(iii) at any time prior to the expiration or termination of any option
previously granted, extend the term of any option (including such options held
by officers) for such additional period as the Committee in its discretion shall
determine. In no event, however, shall the aggregate option period with respect
to any option, including the original term of the option and any extensions
thereof, exceed 10 years. Subject to the foregoing and the other provisions of
this Plan, all or any part of the shares to which the right to purchase has
accrued may be purchased at the time of such accrual or at any time or times
thereafter during the option period.
In the event of a Change in Control (as defined below), all outstanding
options shall become immediately exercisable. Notwithstanding any other
provisions hereunder, during the period of 30 days after a Change in Control,
each Optionee shall have the right to require the Company to purchase from such
Optionee any option granted under this Plan at a purchase price equal to the
excess of fair market value per share over the option price multiplied by the
number of option shares specified by the Optionee for purchase in a written
notice to the Company, attention of the Secretary. A "Change in Control" shall
be deemed to occur if any person (i) shall acquire direct or indirect control of
at least 50% of the outstanding voting stock, or (ii) has the power (whether
such power arises as a result of the ownership of capital stock by contract or
otherwise) or the ability to elect or cause the election of directors consisting
at the time of such election of a majority of the Board of Directors. As used
herein, "person" shall mean any person, corporation, partnership, joint venture
or other entity or any group (as such term is defined in Section 13(d) of the
Exchange Act, and the rules promulgated thereunder). For purposes of this
paragraph, "fair market value per share" shall mean the average of the highest
sales price per share of the Class A Common Stock as quoted on The Nasdaq Stock
Market, or by the principal exchange upon which the Class A Common Stock is
listed, on each of the five trading days immediately preceding the date on which
such individual so notifies the Company. The amount payable to each such
individual by the Company shall be in cash or by certified check and shall be
reduced by any taxes required to be withheld.
7. EXERCISE OF OPTION. As a condition to the exercise of any option,
the Quoted Price (as defined below) per share of Class A Common Stock on the
date of exercise must be equal to or exceed the option price referred to in
Section 5 hereof. An option may be exercised by giving written notice to the
Company, attention of the Secretary, specifying the number of shares to be
purchased, accompanied by the full purchase price for the shares to be purchased
(i) in cash, (ii) by check, (iii) to the extent permitted by applicable law by a
promissory note in a form specified by the Company and payable to the Company no
later than 15 business days after the date of exercise of the option, (iv) if so
approved by the Committee, by shares of Class A Common Stock of the Company, (v)
by delivering a written direction to the Company that the option be exercised
pursuant to a "cashless" exercise/sale procedure (pursuant to which funds to pay
for exercise of the option are delivered to the Company by a broker upon receipt
of stock certificates from the Company) or a cashless exercise/loan procedure
(pursuant to which the Optionee would obtain a margin loan from a broker to fund
the exercise) through a licensed broker acceptable to the Company whereby the
stock certificate or certificates for the shares for which the option is
exercised will be delivered to such broker as the agent for the individual
exercising the option and the broker will deliver to the Company cash (or cash
equivalents acceptable to the Company) equal to the option price for the shares
of Class A Common Stock purchased pursuant to the exercise of the option plus
the amount (if any) of federal and other taxes that the Company may, in its
judgment, be required to withhold with respect to the exercise of the option or
(vi) by a combination of these methods of payment. The "Quoted Price" and the
per share value of Class A Common Stock for purposes of paying the option price
in accordance with the immediately preceding sentence shall equal the closing
selling price per share of Class A Common Stock one business day prior to the
exercise date.
At the time of any exercise of any option, the Company may, if it shall
determine it necessary or desirable for any reason, require the Optionee (or his
or her heirs, legatees or legal representative, as the case may be), as a
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condition upon the exercise thereof, to deliver to the Company a written
representation of present intention to purchase the shares for investment and
not for distribution. In the event such representation is required to be
delivered, an appropriate legend may be placed upon each certificate delivered
to the Optionee (or his or her heirs, legatees or legal representative, as the
case may be) upon his or her exercise of part or all of the option and a stop
transfer order may be placed with the transfer agent. Each option shall also be
subject to the requirement that, if at any time the Company determines, in its
discretion, that the listing, registration or qualification of the shares
subject to the option upon any securities exchange or under any state or federal
law, or the consent or approval of any governmental regulatory body is necessary
or desirable as a condition of or in connection with, the issuance or purchase
of the shares thereunder, the option may not be exercised in whole or in part
unless such listing, registration, qualification, consent or approval shall have
been effected or obtained free of any conditions not acceptable to the Company
in its sole discretion. The Company shall not be obligated to take any
affirmative action in order to cause the exercisability or vesting of an option
or to cause the exercise of an option or the issuance of shares pursuant thereto
to comply with any law or regulation of any governmental authority.
At the time of the exercise of any option, the Committee may require,
as a condition of the exercise of such option, the Optionee (i) to pay the
Company an amount equal to the amount of tax the Company may be required to
withhold to obtain a deduction for federal income tax purposes as a result of
the exercise of such option by the Optionee, or (ii) to make such other
arrangements with the Company which would enable the Company to pay such
withholding tax, including, without limitation, holding back a number of shares
issuable upon exercise of the option equal to the amount of such withholding
tax, or permitting the Optionee to deliver a promissory note in a form specified
by the Committee or withhold taxes from other compensation payable to the
Optionee by the Company, or (iii) a combination of the foregoing.
8. TERMINATION OF RELATIONSHIP AND EXERCISE THEREAFTER. In the event
the employment, directorship, contractor or consulting relationship between the
Company and an Optionee is terminated for any reason other than death, permanent
disability or retirement, such Optionee's options shall expire and all rights to
purchase shares pursuant thereto shall terminate immediately. The Committee may,
in its sole discretion, permit any option to remain exercisable for such period
after such termination as the Committee may prescribe, but in no event after the
expiration date of the option. Unless otherwise determined by the Committee,
temporary absence from employment or as a member of the Board of Directors, an
independent contractor or a consultant because of illness, vacation, approved
leaves of absence and transfers of employment among the Company and its
subsidiaries, shall not be considered to terminate employment, directorship or
contract or consulting relationship or to interrupt continuous employment,
directorship or contract or consulting relationship.
In the event of termination of said relationship because of death,
permanent disability (as that term is defined in Section 22(e)(3) of the Code,
as now in effect or as subsequently amended), or retirement, the option may be
exercised in full, without regard to any installments or vesting schedule
established under Section 6 hereof, by the Optionee or, if he or she is not
living, by his or her heirs, legatees or legal representatives (as the case may
be) during its specific term prior to three years after the date of death,
permanent disability or retirement, or such longer period as the Committee may
prescribe, but in no event after the expiration date of the option.
9. NON-TRANSFERABILITY. During the lifetime of the Optionee, options
shall be exercisable only by the Optionee, and options shall not be assignable
or transferable by the Optionee otherwise than by will or by the laws of descent
and distribution, or pursuant to a qualified domestic relations order as defined
by the Code, or Title I of the Employment Retirement Income Security Act of
1974, as amended, or the rules thereunder.
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10. ADJUSTMENTS. The number of shares subject to the Plan and options
granted under the Plan shall be adjusted as follows: (i) in the event that the
number of outstanding shares of Class A Common Stock is changed by any stock
dividend, stock split or combination of shares, the number of shares subject to
the Plan and to options granted hereunder shall be proportionately adjusted;
(ii) in the event of any merger, consolidation or reorganization of the Company
with any other corporation or corporations, there shall be substituted, on an
equitable basis, for each share of Class A Common Stock then subject to the
Plan, whether or not at the time subject to outstanding options, the number and
kind of shares of stock or other securities to which the holders of shares of
Class A Common Stock will be entitled pursuant to the transaction; and (iii) in
the event of any other relevant change in the capitalization of the Company, an
equitable adjustment shall be made in the number of shares of Class A Common
Stock then subject to the Plan, whether or not then subject to outstanding
options. In the event of any such adjustment, the purchase price per share shall
be proportionately adjusted. The grant of an option pursuant to the Plan shall
not affect or limit in any way the right or power of the Company to make
adjustments, reclassifications, reorganizations or changes in its capital or
business structure or to merge, consolidate, dissolve or liquidate, or to sell
or transfer all or any part of its business or capital.
11. AMENDMENT OF PLAN. The Board of Directors may amend or discontinue
the Plan at any time. However, no amendment or discontinuance shall be made
without the requisite approval of the shareholders of the Company if such
approval is required as a condition to the Plan continuing to comply with the
provisions of Section 162(m) of the Code.
12. CASH PROCEEDS. Any cash proceeds received by the Company from the
sale of shares pursuant to the options granted under the Plan shall be used for
general corporate purposes.
13. NO IMPAIRMENT OF RIGHTS. Nothing contained in the Plan or any
option granted pursuant thereto shall confer upon any Optionee any right to be
continued in the employment of the Company or its subsidiaries or to be
continued as an independent contractor or a consultant to the Company or its
subsidiaries, or interfere in any way with the right of the Company or its
subsidiaries to terminate such employment or contract or consulting relationship
and/or to remove any Optionee who is a director from service on the Board of
Directors or the board of directors of any of the Company's subsidiaries at any
time in accordance with the Company's By-Laws or any provisions of applicable
law.
14. COMPLIANCE WITH RULE 16b-3. The Plan is intended to comply with all
provisions of Rule 16b-3 or its successors promulgated under the Exchange Act
necessary to secure an exemption from Section 16(b) of the Exchange Act for
participating officers and directors, regardless of whether such provisions are
set forth in the Plan. To the extent any provision of the Plan or action of the
Plan administrators fails to so comply, it shall be deemed null and void, to the
extent permitted by law and deemed advisable by the Plan administrators.
15. SEVERABILITY. If any provision of the Plan or any option agreement
shall be determined to be illegal or unenforceable by any court of law in any
jurisdiction, the remaining provisions hereof and thereof shall be severable and
enforceable in accordance with their terms, and all provisions shall remain
enforceable in any other jurisdiction.
16. GOVERNING LAW. The validity and construction of this Plan and the
instruments evidencing the options granted hereunder shall be governed by the
laws of the State of Florida (excluding its choice of law rules).
17. EFFECTIVE DATE. The effective date of the Plan shall be November
15, 1999, the date the Plan was adopted and authorized by the Company's
stockholders.