Exhibit 10.4
MARINEMAX, INC. 1998 INCENTIVE STOCK PLAN
ADOPTED BY THE BOARD OF DIRECTORS AS OF APRIL 5, 1998
APPROVED BY THE STOCKHOLDERS AS OF APRIL 30, 1998
AMENDED AND RESTATED BY THE BOARD OF DIRECTORS AS OF MAY 30, 1998
FURTHER AMENDED BY THE BOARD OF DIRECTORS AS OF NOVEMBER 15, 2000
AMENDMENT APPROVED BY THE STOCKHOLDERS AS OF FEBRUARY 27, 2001
1. PURPOSE. The purpose of this 1998 Incentive Stock Plan (the
"Plan") is to attract, retain and motivate employees, directors and independent
contractors by providing them with the opportunity to acquire a proprietary
interest in MARINEMAX, INC., a Delaware corporation (the "Company") and to link
their interests and efforts to the long-term interests of the Company's
stockholders.
2. PLAN ADMINISTRATION
2.1 IN GENERAL. The Plan shall be administered by the
Company's Board of Directors (the "Board"). Except for the power to amend the
Plan as provided in Section 12, the Board, in its sole discretion, may delegate
all or any portion of its authority and duties under the Plan to a committee
appointed by the Board, under such conditions and limitations as the Board may
from time to time establish. The Board and/or any committee that has been
delegated the authority to administer the Plan shall be referred to as the "Plan
Administrator". Except as otherwise explicitly set forth in the Plan, the Plan
Administrator shall have the authority, in its discretion, to determine all
matters relating to awards under the Plan, including the selection of the
individuals to be granted awards, the type of awards, the number of shares of
the Company's common stock ("Common Stock") subject to an award, vesting
conditions, and any and all other terms, conditions, restrictions and
limitations, if any, of an award. All decisions made by the Plan Administrator
pursuant to the Plan and related orders and resolutions shall be final and
conclusive. The Plan Administrator may, in its sole discretion, delegate all or
any portion of its authority and duties under the Plan, with respect to awards
to persons who are not executive officers or directors of the Company and who do
not own more than 10% of the Company's issued and outstanding Common Stock, to
one or more committees (each, an "Award Committee") appointed by the Plan
Administrator, each consisting of at least one member of the Board who may or
may not be employed by the Company. Except as otherwise explicitly set forth in
the Plan, an Award Committee shall have the authority, under such conditions and
limitations as the Plan Administrator may from time to time establish, to
determine all matters relating to awards under the Plan to employees, proposed
employees and independent contractors of the Company or one or more subsidiaries
of the Company, including the selection of individuals to be granted awards, the
type of awards, the number of shares of Common Stock subject to an award,
vesting conditions, and any and all other terms, conditions, restrictions and
limitations, if any, of an award.
2.2 RULE 16b-3 AND CODE SECTION 162(m). Notwithstanding
any provision of this Plan to the contrary, only the Board or a committee
composed of two or more "Non-Employee Directors" may make determinations
regarding grants of awards to officers, directors and 10% stockholders of the
Company. (The term "Non-Employee Directors" shall have the meaning set forth in
Rule 16b-3 promulgated under the Securities Exchange Act of 1934, as amended
(the "1934 Act")). The Plan Administrator shall have the authority and
discretion to determine the extent to which awards will conform to the
requirements of Section 162(m) Internal Revenue Code of 1986, as amended (the
"Code"), and to take such action, establish such procedures, and impose such
restrictions as the Plan Administrator determines to be necessary or appropriate
to conform to such requirements.
2.3 OTHER PLANS. The Plan Administrator shall also have
authority to grant awards as an alternative to or as the form of payment for
grants or rights earned or due under other compensation plans or arrangements of
the Company, including the plan of any entity acquired by the Company.
3. ELIGIBILITY. Any employee of the Company shall be eligible to
receive any award under the Plan. Directors who are not employees, proposed
directors, proposed employees and independent contractors shall be eligible to
receive awards other than Incentive Stock Options (as defined in Section 5.2).
For purposes of this Section 3, the "Company," with respect to all awards under
the Plan other than Incentive Stock Options, includes any entity that is
directly or indirectly controlled by the Company or any entity in which the
Company has a
significant equity interest, as determined by the Plan Administrator. With
respect to Incentive Stock Options, the "Company" includes any parent or
subsidiary of the Company as defined in Section 424 of the Code.
4. SHARES SUBJECT TO THE PLAN
4.1 NUMBER AND SOURCE. The shares offered under the Plan
shall be shares of Common Stock and may be unissued shares or shares now held or
subsequently acquired by the Company as treasury shares, as the Plan
Administrator may from time to time determine. Subject to adjustment as provided
in Section 4.3, the aggregate number of shares that may be issued under the Plan
shall not exceed 4,000,000 shares; provided, however that awards shall not be
granted under the Plan if, at the time of such grant, the aggregate number of
shares of Stock that have been or may be issued under previously granted awards
or options under the Plan equal or exceed 20% of the total number of outstanding
shares at such time. The aggregate number of shares that may be covered by
awards granted to any one individual in any year shall not exceed 50% of the
total number of shares that may be issued under the Plan.
4.2 SHARES AVAILABLE. Any shares subject to an award
granted under the Plan that is forfeited, terminated or canceled, or any shares
that do not vest, shall again be available for the granting of awards under the
Plan. If a stock appreciation right is settled in cash, the shares covered by
such award shall remain available for the granting of other awards. The payment
of cash dividends and dividend equivalents paid in cash in conjunction with
outstanding awards shall not be counted against the shares available for
issuance.
4.3 ADJUSTMENT OF SHARES AVAILABLE. The aggregate number
and type of shares available for awards under the Plan, the maximum number and
type of shares that may be subject to awards to any individual under the Plan,
the number and type of shares covered by each outstanding award, and the
exercise price per share (but not the total price) for stock options, stock
appreciation rights or similar awards outstanding under the Plan shall all be
proportionately adjusted for any increase or decrease in the number of issued
shares of Common Stock resulting from any split-up, combination or exchange of
shares, consolidation, spin-off or recapitalization of shares or any like
capital adjustment or the payment of any stock dividend.
4.4 TRANSFER OF CONTROL. In the event of a Transfer of
Control (as defined below), the surviving, continuing, successor or purchasing
corporation or parent corporation thereof, as the case may be (the "Acquiring
Corporation") shall either assume the Company's rights and obligations under
outstanding awards or substitute for outstanding awards substantially equivalent
awards for the Acquiring Corporation's stock. In the event the Acquiring
Corporation elects not to assume or substitute for such outstanding awards in
connection with the Transfer of Control, the Board may, in its discretion,
provide that any unexercisable and/or unvested portion of the outstanding awards
shall be immediately exercisable and vested in full on or before the date of the
Transfer of Control. The exercise and/or vesting of any award that is
permissible solely by reason of this Section 4.4 shall be conditioned upon the
consummation of the Transfer of Control. Any awards that are neither assumed or
substituted for by the Acquiring Corporation in connection with the Transfer of
Control nor exercised on or before the date of the Transfer of Control shall
terminate and cease to be outstanding effective as of the date of the Transfer
of Control. Unless otherwise determined by the Board, a "Transfer of Control"
shall be deemed to have occurred in the event of any of the following: (a) the
direct or indirect sale or exchange by the stockholders of the Company of all or
substantially all of the stock of the Company if the stockholders of the Company
before such sale or exchange do not retain, directly or indirectly, at least a
majority of the beneficial interest in the voting stock of the Company after
such sale or exchange; (b) a merger or consolidation if the stockholders of the
Company before such merger or consolidation do not retain, directly or
indirectly, at least a majority of the beneficial interest in the voting stock
of the Company after such merger or consolidation (regardless of whether the
Company is the surviving corporation); (c) the sale, exchange or transfer of all
or substantially all of the assets of the Company; or (d) a liquidation or
dissolution of the Company.
5. AWARDS
5.1 TYPES OF AWARDS. Subject to the Plan, the Plan
Administrator shall have the authority, in its sole discretion, to determine the
type or types of awards to be granted to employees, directors and independent
contractors under the Plan. Such awards may include, but are not limited to,
Incentive Stock Options, Nonqualified
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Stock Options (as defined in Section 5.2), stock appreciation rights or
restricted stock awards. Such awards may be granted either alone, in addition to
or in tandem with any other type of award granted under the Plan.
5.2 STOCK OPTIONS. The Plan Administrator may grant stock
options, designated as "Incentive Stock Options," which comply with the
provisions of Section 422 of the Code or any successor statutory provision, or
"Nonqualified Stock Options." The price for which shares may be purchased upon
exercise of a particular option shall be determined by the Plan Administrator;
however, the exercise price of an Incentive Stock Option shall not be less than
100% of the Fair Market Value of such shares on the date such option is granted
(110% if options are intended to be Incentive Stock Options and are granted to a
stockholder who at the time the option is granted owns or is deemed to own stock
possessing more than 10% of the total combined voting power of all classes of
stock of the Company or of any parent or subsidiary of the Company). For
purposes of the Plan, "Fair Market Value" as to a particular day equals shall be
(a) as determined by the Board for grants prior to the date (the "IPO Date")
that shares of Common Stock first become registered under Section 12 of the 1934
Act, (b) the initial public offering price per share for grants on the IPO Date,
and (c) the per share closing price for the Common Stock as reported for the
prior trading day in the Wall Street Journal or in such other source as the Plan
Administrator deems reliable for grants after the IPO Date. The Plan
Administrator shall set the term of each stock option, but no Incentive Stock
Option shall be exercisable more than 10 years after the date such option is
granted and, to the extent the aggregate Fair Market Value (determined as of the
date the option is granted) of Common Stock with respect to which Incentive
Stock Options granted to a particular individual become exercisable for the
first time during any calendar year (under the Plan and all other stock option
plans of the Company) exceeds $100,000 (or such corresponding amount as may be
set by the Code) such options shall be treated as Nonqualified Stock Options. An
optionholder and the Plan Administrator can agree at any time to convert an
Incentive Stock Option to a Nonqualified Stock Option.
5.3 STOCK APPRECIATION RIGHTS. The Plan Administrator may
grant stock appreciation rights, either in tandem with a stock option granted
under the Plan or with respect to a number of shares for which an option is not
granted. A stock appreciation right shall entitle the holder to receive, with
respect to each share of stock as to which the right is exercised, payment in an
amount equal to the excess of the share's Fair Market Value on the date the
right is exercised over its Fair Market Value on the date the right was granted.
Such payment may be made in cash or in shares of Common Stock valued at Fair
Market Value as of the date of the surrender, or partly in cash and partly in
shares of Common Stock, as determined by the Plan Administrator in its sole
discretion. The Plan Administrator may establish a maximum appreciation value
payable for stock appreciation rights.
5.4 RESTRICTED STOCK AWARDS. The Plan Administrator may
grant restricted stock awards under the Plan in Common Stock or denominated in
units of Common Stock. The Plan Administrator, in its discretion, may make such
awards subject to conditions and restrictions, as set forth in the instrument
evidencing the award, which may be based on continuous service with the Company
or the attainment of certain performance goals related to profits, profit
growth, profit-related return ratios, cash flow or shareholder returns, where
such goals may be stated in absolute terms or relative to comparison companies
or indices to be achieved during a period of time. The Plan Administrator may
choose, at the time of granting an award or at any time thereafter up to the
time of payment of the award, to include as part of such award an entitlement to
receive dividends or dividend equivalents, subject to such terms as the Plan
Administrator may establish. All dividends or dividend equivalents that are not
paid currently may, in the Plan Administrator's sole discretion, accrue interest
and be paid to the participant if, when and to the extent such award is paid.
5.5 PAYMENT; DEFERRAL. Awards granted under the Plan may
be settled through cash payments, the delivery of Common Stock (valued at Fair
Market Value) or the granting of awards or combinations thereof as the Plan
Administrator shall determine. Any award settlement, including payment
deferrals, may be subject to such conditions, restrictions and contingencies as
the Plan Administrator shall determine. The Plan Administrator may permit or
require the deferral of any award payment, subject to such rules and procedures
as it may establish, which may include provisions for the payment or crediting
of interest, or dividend equivalents, including converting such credits to
deferred stock unit equivalents.
5.6 INDIVIDUAL AWARD AGREEMENTS. Stock Options shall and
other awards may be evidenced by agreements between the Company and the
recipient in such form and content as the Plan Administrator from time to time
approves, which agreements shall substantially comply with and be subject to the
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terms of the Plan. Such individual agreements may contain such provisions or
conditions as the Plan Administrator deems necessary or appropriate to
effectuate the sense and purpose of the Plan and may be amended from time to
time in accordance with the terms thereof.
6. AWARD EXERCISE
6.1 PRECONDITION TO STOCK ISSUANCE. No shares shall be
delivered pursuant to the exercise of any stock option or stock appreciation
right, in whole or in part, until qualified for delivery under such securities
laws and regulations as may be deemed by the Plan Administrator to be applicable
thereto and until, in the case of the exercise of an option, payment in full of
the option price thereof (in cash or stock as provided in Section 6.3) is
received by the Company. No holder of an option or stock appreciation right, or
any legal representative, legatee or distributee shall be or be deemed to be a
holder of any shares subject to such option or right unless and until such
shares are issued.
6.2 NO FRACTIONAL SHARES. No stock option may at any time
be exercised with respect to a fractional share. No fractional share shall be
issued with respect to a stock appreciation right; however, a fractional stock
appreciation right may be exercised for cash.
6.3 FORM OF PAYMENT. An optionee may exercise a stock
option using as the form of payment (a) cash or cash equivalent, (b)
stock-for-stock payment (as described below), (c) any combination of the above,
or (d) such other means as the Plan Administrator may approve. Any optionee who
owns Common Stock may use such shares as a form of payment to exercise stock
options granted under the Plan. The Plan Administrator, in its discretion, may
restrict or rescind this right by notice to optionees. A stock option may be
exercised in such manner only by tendering (actually or by attestation) to the
Company whole shares of Common Stock having a Fair Market Value equal to or less
than the exercise price. If an option is exercised by surrender of shares having
a Fair Market Value less than the exercise price, the optionholder must pay the
difference in cash.
7. AUTOMATIC GRANT PROGRAM
7.1 AMOUNT AND DATE OF GRANT. During the term of the
Plan, the Company shall make automatic grants of options ("Automatic Options")
in the form of Nonqualified Stock Options to each Board member ("Eligible
Director") (or proposed Board member pursuant to Section 7.1.3) who is not
employed by the Company, whether or not such person is a Non-Employee Director
as referred to in Section 2.2 as follows:
7.1.1 ANNUAL GRANTS. Each year on the Annual Grant
Date, an Automatic Option to acquire 2,500 shares of Common Stock shall be
granted to each Eligible Director for so long as shares of Common Stock are
available under Section 4.1 hereof. The "Annual Grant Date" shall be the date of
the Company's annual stockholders meeting commencing as of the first annual
meeting occurring after the date (the "Effective Date") the Plan is approved by
the stockholders of the Company. Any Eligible Director that was granted an
Automatic Option under Section 7.1.2 or Section 7.1.3 within 90 days of an
Annual Grant Date shall be ineligible to receive an Automatic Option pursuant to
this Section 7.1.1 on such Annual Grant Date.
7.1.2 INITIAL NEW DIRECTOR GRANTS. On the Initial
Grant Date, every new member of the Board, who is an Eligible Director and has
not previously received an Automatic Option under this Section 7.1.2 shall be
granted an Automatic Option to acquire 5,000 shares of Common Stock for so long
as shares of Common Stock are available under Section 4.1 hereof. The "Initial
Grant Date" shall be the date that an Eligible Director is first appointed or
elected to the Board. Any Eligible Director who previously received an Automatic
Option pursuant to Section 7.1.3 shall be ineligible to receive an Automatic
Option pursuant to this Section 7.1.2.
7.1.3 INITIAL PROPOSED DIRECTOR GRANTS. On the
date that shares of Common Stock first become registered under Section 12 of the
1934 Act, the Company shall grant an Automatic Option to acquire 10,000 shares
of Common Stock to each non-employee whose election to the Board is proposed as
of such date.
7.2 EXERCISE PRICE. The exercise price per share of
Common Stock subject to each Automatic Option granted under Section 7.1.1 or
Section 7.1.2 shall be equal to 100 percent of the Fair Market
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Value per share of the Common Stock on the date such Automatic Option was
granted as determined in accordance with the valuation provisions of Section
5.2. The exercise price per share of Common Stock subject to each Automatic
Option granted under Section 7.1.3 shall be equal to the initial public offering
price per share of Common Stock.
7.3 VESTING. Each Automatic Option granted pursuant to
Section 7.1.1 shall vest and become exercisable 12 months after the date of
grant. Each Automatic Option granted pursuant to Section 7.1.2 shall vest and
become exercisable in a series of three equal and successive installments with
the first installment vested on the date of grant and the next two installments
12 months and 24 months after the date of grant. Each Automatic Option granted
pursuant to Section 7.1.3 shall vest and become exercisable in a series of three
equal and successive installments with the first installment vested on the date
of the recipient's election to the Board and the next two installments 12 months
and 24 months after the date of grant. Each Automatic Option shall vest and
become exercisable only if the optionholder has not ceased serving as a Board
member as of such vesting date.
7.4 TERM OF AUTOMATIC OPTIONS. Each Automatic Option
shall expire on the tenth anniversary (the "Expiration Date") of the date on
which such Automatic Option was granted. Except as determined by the Plan
Administrator, should an Eligible Director's service as a Board member cease
prior to the Expiration Date for any reason while an Automatic Option remains
outstanding and unexercised, the Automatic Option term shall immediately be
modified and the Automatic Option shall terminate and cease to be outstanding in
accordance with the following provisions:
7.4.1 The Automatic Option shall immediately
terminate and cease to be outstanding with respect to any shares that were not
vested at the time of the optionholder's cessation of Board service; provided,
however, that a proposed director who receives a grant pursuant to Section 7.1.3
shall not be treated as ceasing to serve as a Board member for purposes of this
Section 7 prior to such individual's election to the Board.
7.4.2 Should an optionholder cease, for any reason
other than death, to serve as a member of the Board, then the optionholder shall
have 90 days measured from the date of such cessation of Board service in which
to exercise his or her Automatic Options that vested prior to the time of such
cessation of Board service. In no event, however, may any Automatic Option be
exercised after the Expiration Date of such Automatic Option.
7.4.3 Should an optionholder die while serving as
a Board member or within 90 days after cessation of Board service, then the
personal representative of the optionholder's estate (or the person or persons
to whom the Automatic Option is transferred pursuant to the optionholder's will
or in accordance with the laws of the descent and distribution) shall have a
90-day period measured from the date of the optionholder's cessation of Board
service in which to exercise the Automatic Options that vested prior to the time
of such cessation of Board service. In no event, however, may any Automatic
Option be exercised after the Expiration Date of such Automatic Option.
7.5 OTHER TERMS. Except as expressly provided otherwise
in this Section 7, an Automatic Option shall be subject to all of the terms and
conditions of the Plan. Eligible Directors shall be entitled to receive other
awards under the Plan or other plans of the Company in accordance with the terms
and conditions thereof.
8. TRANSFERABILITY. Any Incentive Stock Option granted under the
Plan shall, during the recipient's lifetime, be exercisable only by such
recipient, and shall not be assignable or transferable by such recipient other
than by will or the laws of descent and distribution. Except as specifically
allowed by the Plan Administrator, any other award under the Plan and any of the
rights and privileges conferred thereby shall not be assignable or transferable
by the recipient other than by will or the laws of descent and distribution and
such award shall be exercisable during the recipient's lifetime only by the
recipient.
9. WITHHOLDING TAXES; OTHER DEDUCTIONS. The Company shall have
the right to deduct from any settlement of an award granted under the Plan,
including the delivery or vesting of shares, (a) an amount sufficient to cover
withholding as required by law for any federal, state or local taxes, and (b)
any amounts due from the recipient of such award to the Company or to any parent
or subsidiary of the Company or to take such other action as may be
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necessary to satisfy any such withholding or other obligations, including
withholding from any other cash amounts due or to become due from the Company to
such recipient an amount equal to such taxes or obligations.
10. TERMINATION OF SERVICES. The terms and conditions under which
an award may be exercised following termination of a recipient's employment,
directorship or independent contractor relationship with the Company shall be
determined by the Plan Administrator; provided, however, that Incentive Stock
Options shall not be exercisable at any time after the earliest of the date that
is (a) three months after termination of employment, unless due to death or
Disability (as defined in Section 22(e)(3) of the Code); (b) one year after
termination of employment due to Disability; or (c) ten years after the date of
grant (five years if granted to a stockholder who at the time the option is
granted owns or is deemed to own stock possessing more than 10% of the total
combined voting power of all classes of stock of the Company or of any parent or
subsidiary of the Company).
11. TERM OF THE PLAN. The Plan shall become effective as of the
date of adoption by the Board, and shall remain in full force and effect through
the date that is ten years thereafter, unless sooner terminated by the Board.
After the Plan is terminated, no future awards may be granted, but awards
previously granted shall remain outstanding in accordance with their applicable
terms and conditions and the Plan's terms and conditions.
12. PLAN AMENDMENT. The Board may amend, suspend or terminate the
Plan at any time; provided that no such amendment shall be made without the
approval of the Company's stockholders (a) that would increase the number of
shares available for issuance under the Plan (other than in accordance with
Section 4.3), or (b) if such approval is required (i) to comply with Section 422
of the Code with respect to Incentive Stock Options, or (ii) for purposes of
Section 162(m) of the Code.
13. PLAN NOT EXCLUSIVE. This Plan is not intended to be the
exclusive means by which the Company may issue awards to acquire its Common
Stock.
14. BIFURCATION OF THE PLAN. Notwithstanding any provision of this
Plan to the contrary, the Board, in its sole discretion, may bifurcate the Plan
so as to restrict, limit or condition the use of any provision of the Plan to
participants who are officers or directors subject to Section 16 of the 1934 Act
without so restricting, limiting or conditioning the Plan with respect to other
participants.
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