EXHIBIT 10.7
HUGHES SUPPLY, INC. 1997 EXECUTIVE STOCK PLAN
Amended and Restated Plan
(as amended through April 9, 2003)
SECTION 1. BACKGROUND AND PURPOSE
The name of this Plan is the Hughes Supply, Inc. 1997 Executive Stock Plan (the
"Plan"). The purpose of this Plan is to promote the interest of the Company and
its Subsidiaries through grants to Key Employees and Non-Employee Directors of
Options to purchase Stock, grants of stock appreciation rights and grants of
Restricted Stock, including Performance-Based Restricted Stock, in order (1) to
attract and retain Key Employees and Non-Employee Directors, (2) to provide an
additional incentive to Key Employees and Non-Employee Directors to work to
increase the value of Stock and (3) to establish or increase Key Employees' and
Non-Employee Directors' stake in the future of the Company which corresponds to
the stake of the Company's shareholders.
SECTION 2. DEFINITIONS
Each term set forth in this Section 2 shall have the meaning set forth opposite
such term for purposes of this Plan and, for purposes of such definitions, the
singular shall include the plural and the plural shall include the singular.
2.1 Board - means the Board of Directors of the Company.
2.2 Change in Control - means the first to occur of the following events:
(a) any person (as defined in Section 3(a)(9) of the Exchange Act and
as used in Sections 13(d) and 14(d) thereof), excluding the Company, any
Subsidiary and any employee benefit plan sponsored or maintained by the Company
or any Subsidiary (including any trustee of such plan acting as trustee) (the
Company, all Subsidiaries, and such employee benefit plans and trustees acting
as trustees being hereinafter referred to as the "Company Group"), but including
a `group' defined in Section 13(d)(3) of the Exchange Act (a "Person"), becomes
the beneficial owner of shares of the Company having at least fifty percent
(50%) of the total number of votes that may be cast for the election of
directors of the Company (the "Voting Shares"); provided that no Change in
Control will occur as a result of an acquisition of stock by the Company Group
which increases, proportionately, the stock representing the voting power of the
Company, and provided further that if such person or group acquires beneficial
ownership of stock representing more than fifty percent (50%) of the voting
power of the Company by reason of share purchases by the Company Group, and
after such share purchases by the Company Group acquires any additional shares
representing voting power of the Company, then a Change in Control shall occur;
(b) the shareholders of the Company shall approve any merger or other
business combination of the Company, sale of the Company's assets or combination
of the foregoing transactions (a "Transaction") other than a Transaction
involving only the Company and one or more of its Subsidiaries, or a Transaction
immediately following which the shareholders of the Company immediately prior to
the Transaction continue to have a majority of the voting power in the resulting
entity excluding for this purpose any shareholder owning directly or indirectly
more than ten percent (10%) of the shares of the other company involved in the
merger; or
(c) within any 24-month period, the persons who are directors of the
Company immediately before the beginning of such period (the "Incumbent
Directors") shall cease (for any reason other than death) to constitute at least
a majority of the Board or the board of directors of any successor to the
Company, provided that any director who was not a director as of the effective
date of this Plan shall be deemed to be an Incumbent Director if such director
was elected to the Board by, or on the recommendation of or with the approval
of, at least two-third of the directors who were then qualified as Incumbent
Directors either actually or by prior operation of this clause (c); and provided
further that any director elected to the Board to avoid or settle a threatened
or actual proxy contest shall in no event be deemed to be an Incumbent Director.
2.3 Change in Control Price - means, as determined by the Board,
(a) the highest Fair Market Value of a share of Stock within the
60-day period immediately preceding the date of determination of the Change in
Control Price by the Board (the "60-Day Period"), or
(b) the highest price paid or offered per share of Stock, as
determined by the Board, in any bona fide transaction or bona fide offer related
to the Change in Control, at any time within the 60-Day Period, or
(c) some lower price as the Board, in its discretion, determines to
be a reasonable estimate of the Fair Market Value of a share of Stock.
2.4 Code - means the Internal Revenue Code of 1986, as amended.
2.5 Committee - means the Compensation Committee of the Board to which the
responsibility to administer this Plan is delegated by the Board and which shall
consist of at least two members of the Board all of whom are "outside directors"
within the meaning of Code Section 162(m).
2.6 Company- means Hughes Supply, Inc., a Florida company, and any
successor to such corporation.
2.7 Disability- has the same meaning as provided in the long-term
disability plan or policy maintained or, if applicable, most recently
maintained, by the Company or, if applicable, any affiliate of the Company for
the Grantee. If no long-term disability plan or policy was ever maintained on
behalf of the Grantee or, if the determination of Disability relates to an ISO,
Disability shall mean that condition described in Code Section 22(e)(3), as
amended from time to time. In the event of a dispute, the determination of
Disability shall be made by the Board and shall be supported by advice of a
physician competent in the area to which such Disability relates.
2.8 Exchange Act - means the Securities Exchange Act of 1934, as amended.
2.9 Fair Market Value - refers to the determination of value of a share of
Stock. If the Stock is actively traded on any national securities exchange or
any Nasdaq quotation or market system, Fair Market Value shall mean the closing
price at which sales of Stock shall have been sold on the most recent trading
date immediately prior to the date of determination, as reported by any such
exchange or system selected by the Committee on which the shares of Stock are
then traded. If the shares of Stock are not actively traded on any such exchange
or system, Fair Market Value shall mean the arithmetic mean of the bid and asked
prices for the shares of Stock on the most recent trading date within a
reasonable period prior to the determination date as reported by such exchange
or system. If there are no bid and asked prices within a reasonable period or if
the shares of Stock are not traded on any exchange or system as of the
determination date, Fair Market Value shall mean the fair market value of a
share of Stock as determined by the Committee taking into account such facts and
circumstances deemed to be material by the Committee to the value of the Stock
in the hands of the Grantee; provided that, for purposes of granting awards
other than ISOs, Fair Market Value of a share of Stock may be determined by the
Committee by reference to the average market value determined over a period
certain or as of specified dates, to a tender offer price for the shares of
Stock (if settlement of an award is triggered by such an event) or to any other
reasonable measure of fair market value and provided further that, for purposes
of granting ISOs, Fair Market Value of a share of Stock shall be determined in
accordance with the valuation principles described in the regulations
promulgated under Code Section 422.
2.10 Family Member - means any child, stepchild, grandchild, parent,
stepparent, grandparent, spouse, former spouse, sibling, niece, nephew,
mother-in-law, father-in-law, son-in-law, brother-in-law, or sister-in-law of
the Grantee, including adoptive relationships, any person sharing the Grantee's
household (other than a tenant or employee), a trust in which these persons have
more than fifty percent of the beneficial interest, a foundation in which these
persons (or the Grantee) control the management of assets, and any other entity
in which these persons (or the Grantee) own more than fifty percent of the
voting interests.
2.11 Grantee -- means a Key Employee or Non-Employee Director who receives
a grant of an Option, a SAR or Restricted Stock.
2.12 ISO - means an option granted under this Plan to purchase Stock which
is evidenced by an Option Agreement which provides that the option is intended
to satisfy the requirements for an incentive stock option under Section 422 of
the Code.
2.13 Key Employee - means any employee of the Company or any Subsidiary, or
any Outside Consultant, who, in the judgment of the Committee acting in its
absolute discretion, is a key to the success of the Company or such Subsidiary.
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2.14 Non-Employee Director - means a member of the Board who, on the date
of determination, is not an employee of the Company.
2.15 NQO - means an option granted under this Plan to purchase Stock which
is evidenced by an Option Agreement which provides that the option shall not be
treated as an incentive stock option under Section 422 of the Code.
2.16 Option - means an ISO or a NQO.
2.17 Option Agreement - means the written agreement or instrument which
sets forth the terms of an Option granted to a Grantee under Section 7 of this
Plan.
2.18 Option Price - means the price which shall be paid to purchase one
share of Stock upon the exercise of an Option granted under this Plan.
2.19 Outside Consultant - means an independent contractor that regularly
performs services for, provides goods to, or purchases goods or services from,
the Company or any Subsidiary.
2.20 Parent Corporation - means any corporation which is a parent of the
Company within the meaning of Section 424(e) of the Code.
2.21 Performance-Based Restricted Stock - means Stock granted to a Grantee
under Section 8.2 of this Plan.
2.22 Plan - means this Hughes Supply, Inc. 1997 Executive Stock Plan, as
amended from time to time.
2.23 Restricted Stock - means Stock granted to a Grantee under Section 8 of
this Plan, including Performance-Based Restricted Stock.
2.24 Restricted Stock Agreement - means the written agreement or instrument
which sets forth the terms of a Restricted Stock grant to a Grantee under
Section 8 of this Plan.
2.25 Rule 16b-3 - means the exemption under Rule 16b-3 to Section 16(b) of
the Exchange Act or any successor to such rule.
2.26 Stock - means the One Dollar ($1.00) par value common stock of the
Company.
2.27 SAR - means a right which is granted pursuant to the terms of Section
7 of this Plan to the appreciation in the Fair Market Value of a share of Stock
in excess of the SAR Share Value for such a share.
2.28 SAR Agreement - means the written agreement or instrument which sets
forth the terms of a SAR granted to a Grantee under Section 7 of this Plan.
2.29 SAR Share Value - means the figure which is set forth in each SAR
Agreement and which is no less than the Fair Market Value of a share of Stock on
the date the related SAR is granted.
2.30 Subsidiary - means any corporation which is a subsidiary corporation
(within the meaning of Section 424(f) of the Code) of the Company except a
corporation which has subsidiary corporation status under Section 424(e) of the
Code exclusively as a result of the Company or its subsidiary holding stock in
such corporation as a fiduciary with respect to any trust, estate,
conservatorship, guardianship or agency.
2.31 Ten Percent Shareholder - means a person who owns (after taking into
account the attribution rules of Section 424(d) of the Code) more than ten
percent of the total combined voting power of all classes of stock of either the
Company, a Subsidiary or a Parent Corporation.
SECTION 3. SHARES RESERVED UNDER PLAN
There shall be 3,250,000 shares of Stock reserved for use under this Plan. All
such shares of Stock shall be reserved to the extent that the Company deems
appropriate from authorized but unissued shares of Stock and from shares of
Stock which have been reacquired by the Company. Furthermore, any shares of
Stock subject to an Option which remain unissued after the cancellation,
expiration or exchange of such Option and any Restricted Shares which are
forfeited thereafter shall again become available for use under this Plan, but
any shares of Stock used to satisfy a withholding obligation under Section 14.3
shall not again become available for use under this Plan. The exercise of
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a SAR or a surrender right in an Option with respect to any shares of Stock
shall be treated for purposes of this Section 3 the same as the exercise of an
Option for the same number of shares of Stock.
SECTION 4. EFFECTIVE DATE
This Plan was originally effective on April 2, 1997. The Plan shall be amended
and restated effective April 9, 2003, the date of the adoption of the amendment
and restatement by the Board, provided the shareholders of the Company (acting
at a duly called meeting of such shareholders) approve the amendment and
restatement of the Plan within twelve (12) months after such date and such
approval satisfies the requirements for shareholder approval under Code Section
422(b)(1) and Code Section 162(m). Any Restricted Stock, any Option, and any SAR
granted under this Plan before such shareholder approval automatically shall be
granted subject to such shareholder approval.
SECTION 5. COMMITTEE
This Plan shall be administered by the Committee. The Committee acting in its
absolute discretion shall exercise such powers and take such action as expressly
called for under this Plan and, further, the Committee shall have the power to
interpret this Plan and (subject to Section 11, Section 12 and Section 13) to
take such other action in the administration and operation of this Plan as the
Committee deems equitable under the circumstances, which action shall be binding
on the Company, on each affected Key Employee or Non-Employee Director and on
each other person directly or indirectly affected by such action. The Committee
shall use its best efforts to grant Options, SARs and Restricted Stock under
this Plan to a Grantee which will qualify as "performance-based compensation"
for purposes of Section 162(m) of the Code, except where the Committee deems
that the Company's interests when viewed broadly will be better served by a
grant which is free of the conditions required to so qualify any such grant for
purposes of Section 162(m) of the Code.
SECTION 6. ELIGIBILITY
Only Key Employees and Non-Employee Directors shall be eligible for the grant of
Options, SARs or Restricted Stock under this Plan.
SECTION 7. OPTIONS AND SARS
7.1 Options. The Committee acting in its absolute discretion shall have the
right to grant Options to Key Employees and Non-Employee Directors under this
Plan from time to time to purchase shares of Stock; provided, however, the
Committee shall not grant an ISO to an Outside Consultant or a Non-Employee
Director. Each grant of an Option shall be evidenced by an Option Agreement, and
each Option Agreement shall set forth whether the Option is an ISO or a NQO and
shall set forth such other terms and conditions of such grant as the Committee
acting in its absolute discretion deems consistent with the terms of this Plan.
7.2 $100,000 Limit. The aggregate Fair Market Value of ISOs granted to a
Key Employee under this Plan and incentive stock options granted to such Key
Employee under any other stock option plan adopted by the Company, a Subsidiary
or a Parent Corporation which first become exercisable in any calendar year
shall not exceed $100,000; provided, however, that if the limitation is
exceeded, the ISOs which cause the limitation to be exceeded will be treated as
NQOs. Such Fair Market Value figure shall be determined by the Committee on the
date the ISO or other incentive stock option is granted, and the Committee shall
interpret and administer the limitation set forth in this Section 7.2 in
accordance with Section 422(d) of the Code.
7.3 Share Limitation. A Key Employee or Non-Employee Director may be
granted in any calendar year one or more Options, or one or more SARs, or one or
more Options and SARs in any combination which, individually or in the
aggregate, relate to no more than 50,000 shares of Stock.
7.4 Option Price. Subject to adjustment in accordance with Section 11, the
Option Price for each share of Stock subject to an Option must be set forth in
the applicable Option Agreement. In no event shall the Option Price for each
share of Stock subject to an ISO be less than the Fair Market Value of a share
of Stock on the date the Option ISO is granted. With respect to each grant of an
ISO to a Key Employee who is a Ten Percent Shareholder, the Option Price must
not be less than 110% of the Fair Market Value of a share of Stock as of the
date the Option is granted. With respect to each grant of a NQO, the Committee
is authorized to establish any Option Price, in its sole discretion. The Option
Price may not be amended or modified after the grant of the Option, and an
Option may not
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be surrendered in consideration of or exchanged for a grant of a new Option
having an Option Price below that of the Option which was surrendered or
exchanged.
7.5 Payment. The Option Price shall be payable in full upon the exercise
of any Option, and an Option Agreement at the discretion of the Committee can
provide for the payment of the Option Price:
(a) in cash or by a check acceptable to the Committee,
(b) in Stock which has been held by the Grantee for a period
acceptable to the Committee and which Stock is otherwise acceptable to the
Committee,
(c) through a broker facilitated exercise procedure acceptable to
the Committee, or
(d) in any combination of the three methods described in this
Section 7.5 which is acceptable to the Committee.
Any payment made in Stock shall be treated as equal to the Fair Market Value of
such Stock on the date the properly endorsed certificate for such Stock is
delivered to the Committee.
7.6 Exercise Period. Any ISO granted to a Key Employee who is not a Ten
Percent Shareholder is not exercisable after the expiration of ten (10) years
after the date the Option is granted. Any ISO granted to a Key Employee who is a
Ten Percent Shareholder is not exercisable after the expiration of five (5)
years after the date the Option is granted. The term of any NQO must be
specified in the applicable Option Agreement. The date an Option is granted is
the date on which the Committee has approved the terms and conditions of the
Option and has determined the recipient of the Option and the number of Shares
of Stock covered by the Option.
7.7 Conditions to Exercise of an Option. Each Option granted under the
Plan is exercisable by whom, at such time or times, or upon the occurrence of
such event or events, and in such amounts as the Committee shall specify in the
Option Agreement; provided, however, that subsequent to the grant of an Option,
the Committee, at any time before complete termination of the Option, may
accelerate the time or times at which such Option may be exercised in whole or
in part, including, without limitation, upon a Change in Control and may permit
the Grantee or any other designated person to exercise the Option, or any
portion thereof, for all or part of the remaining Option term, notwithstanding
any provisions in the Option Agreement to the contrary.
7.8 Termination of an ISO. With respect to an ISO, in the event of
termination of employment of a Key Employee, the Option or portion thereof held
by the Key Employee which is unexercised will expire, terminate, and become
exercisable no later than the expiration of three (3) months after the date of
termination of employment; provided, however, that in the case of a holder whose
termination of employment is due to death or Disability, one (1) year shall be
substituted for such three (3) month period. For purposes of this Section 7.8,
termination of employment by the Key Employee will not be deemed to have
occurred if the Key Employee is employed by another corporation (or a parent or
subsidiary corporation of such other corporation) which has assumed the ISO of
the Key Employee in a transaction to which Code Section 424(a) is applicable.
7.9 Special Provisions for Certain Substitute Options. Notwithstanding
anything to the contrary in Section 7, any Option issued in substitution for an
option previously issued by another entity, which substitution occurs in
connection with a transaction to which Code Section 424(a) is applicable, may
provide for an exercise price computed in accordance with Code Section 424(a)
and the regulations thereunder and may contain such other terms and conditions
as the Committee may prescribe to cause substitute Option to contain as nearly
as possible the same terms and conditions (including the applicable vesting and
termination provisions) as those conditions in the previously issued option
being replaced thereby.
7.10 Nontransferability. Except to the extent the Committee deems
permissible under Section 422(b) of the Code and consistent with the best
interests of the Company, neither an Option granted under this Plan, and any
related surrender rights, nor a SAR granted under this Plan shall be
transferable by a Grantee other than by will or by the laws of descent and
distribution, and such Option and any such surrender rights and any such SAR
shall be exercisable during a Grantee's lifetime only by the Grantee. To the
extent authorized by the Committee in its sole discretion, an Option granted
under this Plan, and any related surrender rights, or a SAR granted under this
Plan may be transferred or assigned to one or more Family Members of the
Grantee, provided any such transfer or assignment
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is made without consideration to the Grantee. The Family Member or Family
Members to whom an Option or a SAR is transferred thereafter shall be treated as
the Grantee under this Plan.
7.11 SARs and Surrender Rights.
(a) SARs. The Committee acting in its absolute discretion may grant
a Key Employee or Non-Employee Director a SAR which will give the Grantee the
right to the appreciation in one, or more than one, share of Stock, and any such
appreciation shall be measured from the related SAR Share Value. The Committee
shall have the right to make any such grant subject to such additional terms as
the Committee deems appropriate, and such terms shall be set forth in the
related SAR Agreement.
(b) Option Surrender Rights. The Committee acting in its absolute
discretion also may incorporate a provision in an Option Agreement to give a
Grantee the right to surrender his or her Option in whole or in part in lieu of
the exercise (in whole or in part) of that Option to purchase Stock on any date
that
(1) the Fair Market Value of the Stock subject to such
Option exceeds the Option Price for such Stock, and
(2) the Option to purchase such Stock is otherwise
exercisable.
(c) Procedure. The exercise of a SAR or a surrender right in an
Option shall be effected by the delivery of the related SAR Agreement or Option
Agreement to the Committee (or to its delegate) together with a statement signed
by the Grantee which specifies the number of shares of Stock as to which the
Grantee, as appropriate, exercises his or her SAR or exercises his or her right
to surrender his or her Option and (at the Grantee's option) how he or she
desires payment to be made with respect to such shares.
(d) Payment. A Grantee who exercises his or her SAR or right to
surrender his or her Option shall (to the extent consistent with the exemption
under Rule 16b-3) receive a payment in cash or in Stock, or in a combination of
cash and Stock, equal in amount on the date such exercise is effected to: (i)
the number of shares of Stock with respect to which, as applicable, the SAR or
the surrender right is exercised times (ii) the excess of the Fair Market Value
of a share of Stock on such date over, as applicable, the SAR Share Value for a
share of Stock subject to the SAR or the Option Price for a share of stock
subject to an Option. The Committee acting in its absolute discretion shall
determine the form and timing of such payment, and the Committee shall have the
right (1) to take into account whatever factors the Committee deems appropriate
under the circumstances, including any written request made by the Grantee and
delivered to the Committee (or to its delegate) and (2) to forfeit a Grantee's
right to payment of cash in lieu of a fractional share of stock if the Committee
deems such forfeiture necessary in order for the surrender of his or her Option
under this Section 7.11 to come within the exemption under Rule 16b-3. Any cash
payment under this Section 7.11 shall be made from the Company's general assets,
and a Grantee shall be no more than a general and unsecured creditor of the
Company with respect to such payment.
(e) Restrictions. Each SAR Agreement and each Option Agreement
which incorporates a provision to allow a Grantee to surrender his or her Option
shall incorporate such additional restrictions on the exercise of such SAR or
surrender right as the Committee deems necessary to satisfy the conditions to
the exemption under Rule 16b-3.
SECTION 8. RESTRICTED STOCK
8.1 Committee Action. The Committee acting in its absolute discretion
shall have the right to grant Restricted Stock to Key Employees and Non-Employee
Directors under this Plan from time to time. However, no more than 1,625,000
shares of Stock shall be granted as Restricted Stock from the shares otherwise
available for grants under this Plan. Each Restricted Stock grant shall be
evidenced by a Restricted Stock Agreement, and each Restricted Stock Agreement
shall set forth the conditions, if any, which will need to be timely satisfied
before the grant will be effective and the conditions, if any, under which the
Grantee's interest in the related Stock will be forfeited. The Committee may
make grants of Performance-Based Restricted Stock and grants of Restricted Stock
which is not Performance-Based Restricted Stock.
8.2 Performance-Based Restricted Stock.
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(a) Effective Date. A grant of Performance-Based Restricted Stock
shall be effective as of the date the Committee certifies that the applicable
conditions described in Section 8.2(c) have been timely satisfied.
(b) Share Limitation. No more than 75,000 shares of Performance-Based
Restricted Stock may be granted to a Key Employee or Non-Employee Director in
any calendar year.
(c) Grant Conditions. The Committee, acting in its absolute
discretion, may select from time to time Key Employees and Non-Employee
Directors to receive grants of Performance-Based Restricted Stock in such
amounts as the Committee may, in its absolute discretion, determine, subject to
any limitations provided in this Plan. The Committee shall make each grant
subject to the attainment of certain performance targets. The Committee shall
determine the performance targets which will be applied with respect to each
grant of Performance-Based Restricted Stock at the time of grant, but in no
event later than ninety (90) days after the commencement of the period of
service to which the performance targets relate. The performance criteria
applicable to Performance-Based Restricted Stock grants will be one or more of
the following criteria: (i) Stock price; (ii) average annual growth in earnings
per share; (iii) increase in shareholder value; (iv) earnings per share; (v) net
income; (vi) return on assets; (vii) return on shareholders' equity; (viii)
increase in cash flow; (ix) operating profit or operating margins; (x) revenue
growth of the Company; and (xi) operating expenses. The related Restricted Stock
Agreement shall set forth the applicable performance criteria and the deadline
for satisfying the performance criteria. Shares of Performance-Based Restricted
Stock shall be unavailable under Section 3 for the period which begins on the
date as of which such grant is made and, if a Performance-Based Restricted Stock
grant fails to become effective in whole or in part under Section 8.2, such
period shall end on the date of such failure (i) for the related shares of Stock
subject to such grant (if the entire grant fails to become effective) or (ii)
for the related shares of Stock subject to that part of the grant which fails to
become effective (if only part of the grant fails to become effective). If such
period ends for any such shares of Stock, such shares shall be treated under
Section 3 as forfeited at the end of such period and shall again become
available under Section 3.
(d) Forfeiture Conditions. The Committee may make each
Performance-Based Restricted Stock grant (if, when and to the extent that the
grant becomes effective) subject to one, or more than one, objective employment,
performance or other forfeiture condition which the Committee acting in its
absolute discretion deems appropriate under the circumstances for Key Employees
or Non-Employee Directors generally or for a Grantee in particular, and the
related Restricted Stock Agreement shall set forth each such condition and the
deadline for satisfying each such forfeiture condition. A Grantee's
nonforfeitable interest in the shares of Stock related to a Performance-Based
Restricted Stock grant shall depend on the extent to which each such condition
is timely satisfied. Each share of Stock related to a Performance-Based
Restricted Stock grant shall again become available under Section 3 after such
grant becomes effective if such share is forfeited as a result of a failure to
timely satisfy a forfeiture condition, in which event such share of Stock shall
again become available under Section 3 as of the date of such failure. A Stock
certificate shall be issued (subject to the conditions, if any, described in
this Section 8.2) to, or for the benefit of, the Grantee with respect to the
number of shares for which a grant has become effective as soon as practicable
after the date the grant becomes effective.
8.3 Restricted Stock Other Than Performance-Based Restricted Stock
(a) Effective Date. A Restricted Stock grant which is not a grant of
Performance-Based Restricted Stock shall be effective (a) as of the date set by
the Committee when the grant is made or, if the grant is made subject to one, or
more than one, condition, (b) as of the date the Committee determines that such
conditions have been timely satisfied.
(b) Grant Conditions. The Committee acting in its absolute discretion
may make the grant of Restricted Stock which is not Performance-Based Restricted
Stock to a Grantee subject to the satisfaction of one, or more than one,
objective employment, performance or other grant condition which the Committee
deems appropriate under the circumstances for Key Employees or Non-Employee
Directors generally or for a Grantee in particular, and the related Restricted
Stock Agreement shall set forth each such condition and the deadline for
satisfying each such grant condition. If a Restricted Stock grant which is not a
grant of Performance-Based Restricted Stock will become effective only upon the
satisfaction of one, or more than one, condition, the related shares of Stock
shall be unavailable under Section 3 for the period which begins on the date as
of which such grant is made and, if a Restricted Stock grant which is not a
grant of Performance-Based Restricted Stock fails to become
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effective in whole or in part under Section 8.3, such period shall end on the
date of such failure (i) for the related shares of Stock subject to such grant
(if the entire grant fails to become effective) or (ii) for the related shares
of Stock subject to that part of the grant which fails to become effective (if
only part of the grant fails to become effective). If such period ends for any
such shares of Stock, such shares shall be treated under Section 3 as forfeited
at the end of such period and shall again become available under Section 3.
(c) Forfeiture Conditions. The Committee may make each grant of
Restricted Stock which is not a grant of Performance-Based Restricted Stock (if,
when and to the extent that the grant becomes effective) subject to one, or more
than one, objective employment, performance or other forfeiture condition which
the Committee acting in its absolute discretion deems appropriate under the
circumstances for Key Employees or Non-Employee Directors generally or for a
Grantee in particular, and the related Restricted Stock Agreement shall set
forth each such condition and the deadline for satisfying each such forfeiture
condition. A Grantee's nonforfeitable interest in the shares of Stock related to
a grant of Restricted Stock which is not a grant of Performance-Based Restricted
Stock shall depend on the extent to which each such condition is timely
satisfied. Each share of Stock related to a Restricted Stock grant which is not
a grant of Performance-Based Restricted Stock shall again become available under
Section 3 after such grant becomes effective if such share is forfeited as a
result of a failure to timely satisfy a forfeiture condition, in which event
such share of Stock shall again become available under Section 3 as of the date
of such failure. A Stock certificate shall be issued (subject to the conditions,
if any, described in this Section 8.3) to, or for the benefit of, the Grantee
with respect to the number of shares for which a grant has become effective as
soon as practicable after the date the grant becomes effective.
8.4 Dividends and Voting Rights.
(a) Each Restricted Stock Agreement shall state whether the Grantee
shall have a right to receive any cash dividends which are paid with respect to
his or her Restricted Stock after the date his or her Restricted Stock grant has
become effective and before the first day that the Grantee's interest in such
stock is forfeited completely or becomes completely nonforfeitable. If a
Restricted Stock Agreement provides that a Grantee has no right to receive a
cash dividend when paid, such agreement shall set forth the conditions, if any,
under which the Grantee will be eligible to receive one, or more than one,
payment in the future to compensate the Grantee for the fact that he or she had
no right to receive any cash dividends on his or her Restricted Stock when such
dividends were paid. If a Restricted Stock Agreement calls for any such payments
to be made, the Company shall make such payments from the Company's general
assets, and the Grantee shall be no more than a general and unsecured creditor
of the Company with respect to such payments.
(b) If a Stock dividend is declared on such a share of Stock after
the grant is effective but before the Grantee's interest in such Stock has been
forfeited or has become nonforfeitable, such Stock dividend shall be treated as
part of the grant of the related Restricted Stock, and a Grantee's interest in
such Stock dividend shall be forfeited or shall become nonforfeitable at the
same time as the Stock with respect to which the Stock dividend was paid is
forfeited or becomes nonforfeitable.
(c) If a dividend is paid other than in cash or Stock, the
disposition of such dividend shall be made in accordance with such rules as the
Committee shall adopt with respect to each such dividend.
(d) A Grantee shall have the right to vote the Stock related to his
or her Restricted Stock grant after the grant is effective with respect to such
Stock but before his or her interest in such Stock has been forfeited or has
become nonforfeitable.
8.5 Satisfaction of Forfeiture Conditions. A share of Stock shall cease to
be Restricted Stock at such time as a Grantee's interest in such Stock becomes
nonforfeitable under this Plan, and the certificate representing such share
shall be reissued as soon as practicable thereafter without any further
restrictions related to Section 8.2 or Section 8.3 and shall be transferred to
the Grantee.
8.6 Transferability. To the extent authorized by the Committee in its sole
discretion, Restricted Stock granted under this Plan may be transferred or
assigned to one or more Family Members of the Grantee, provided any such
transfer or assignment is made without consideration to the Grantee. The Family
Member or Family Members to whom Restricted Stock is transferred thereafter
shall be treated as the Grantee under this Plan.
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SECTION 9. SECURITIES REGISTRATION AND ESCROW OF SHARES
9.1 Securities Registration. Each Option Agreement, SAR Agreement and
Restricted Stock Agreement shall provide that, upon the receipt of shares of
Stock as a result of the exercise of an Option (or any related surrender right)
or a SAR or the satisfaction of the forfeiture conditions under a Restricted
Stock Agreement, the Grantee shall, if so requested by the Company, hold such
shares of Stock for investment and not with a view of resale or distribution to
the public and, if so requested by the Company, shall deliver to the Company a
written statement satisfactory to the Company to that effect. As for Stock
issued pursuant to this Plan, the Company at its expense shall take such action
as it deems necessary or appropriate to register the original issuance of such
Stock to a Grantee under the Securities Act of 1933, as amended, or under any
other applicable securities laws or to qualify such Stock for an exemption under
any such laws prior to the issuance of such Stock to a Grantee; however, the
Company shall have no obligation whatsoever to take any such action in
connection with the transfer, resale or other disposition of such Stock by a
Grantee.
9.2 Escrow of Shares. Any certificates representing the shares of Stock
issued under the Plan shall be issued in the Grantee's name, but, if the
applicable Option Agreement, SAR Agreement or Restricted Stock Agreement (the
"Agreement") so provides, the shares of Stock will be held by a custodian
designated by the Committee (the "Custodian"). Each applicable Agreement
providing for the transfer of shares of Stock to the Custodian shall appoint the
Custodian as attorney-in-fact for the Grantee for the term specified in the
applicable Agreement, with full power and authority in the Grantee's name, place
and stead to transfer, assign and convey to the Company any shares of Stock held
by the Custodian for such Grantee, if the Grantee forfeits the shares of Stock
under the terms of the applicable Agreement. During the period that the
Custodian holds the shares subject to this Section, the Grantee will be entitled
to all rights, except as provided in the applicable Agreement, applicable to
shares of Stock not so held. Subject to Section 8.4 of this Plan, any dividends
declared on shares of Stock held by the Custodian will, as the Committee may
provide on the applicable Agreement, be paid directly to the Grantee or, in the
alternative, be retained by the Custodian or by the Company until the expiration
of the term specified in the applicable Agreement and will then be delivered,
together with any proceeds, with the shares of Stock to the Grantee or to the
Company, as applicable.
SECTION 10. LIFE OF PLAN
No Option or SAR or Restricted Stock shall be granted under this Plan after
December 31, 2006, after which this Plan otherwise thereafter shall continue in
effect until all outstanding Options (and any related surrender rights) and SAR
have been exercised in full or no longer are exercisable and all Restricted
Stock grants under this Plan have been forfeited or the forfeiture conditions on
the related Stock have been satisfied in full.
SECTION 11. ADJUSTMENT
The number of shares of Stock reserved under Section 3 of this Plan, the number
of shares of Stock related to Restricted Stock grants under this Plan and any
related grant conditions and forfeiture conditions, the number of shares of
Stock subject to Options granted under this Plan and the Option Price of such
Options and the SAR Grant Value and the number of shares of Stock related to any
SAR all shall be adjusted by the Board in an equitable manner to reflect any
change in the capitalization of the Company, including, but not limited to, such
changes as stock dividends or stock splits. Furthermore, the Board shall have
the right to adjust (in a manner which satisfies the requirements of Section
424(a) of the Code) the number of shares of Stock reserved under Section 3 of
this Plan, the number of shares of Stock related to Restricted Stock grants
under this Plan and any related grant conditions and forfeiture conditions, the
number of shares subject to Options granted under this Plan and the Option Price
of such Options and the SAR Grant Value and the number of shares of Stock
related to any SAR in the event of any corporate transaction described in
Section 424(a) of the Code which provides for the substitution or assumption of
such Options, SARs or Restricted Stock grants. If any adjustment under this
Section 11 would create a fractional share of Stock or a right to acquire a
fractional share of Stock, such fractional share shall be disregarded and the
number of shares of Stock reserved under this Plan and the number subject to any
Options or related to any SARs or Restricted Stock grants under this Plan shall
be the next lower number of shares of Stock, rounding all fractions downward. An
adjustment made under this Section 11 by the Board shall be conclusive and
binding on all affected persons.
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SECTION 12. CHANGE IN CONTROL
If there is a Change in Control and the Board determines that no adequate
provision has been made as part of such Change in Control for either the
assumption of the Options, SARs and Restricted Stock grants outstanding under
this Plan or for the granting of comparable, substitute stock options, stock
appreciation rights and restricted stock grants,
(1) each outstanding Option and SAR at the direction and discretion of the Board
(a) may (subject to such conditions, if any, as the Board deems
appropriate under the circumstances) be cancelled unilaterally by the Company in
exchange for the number of whole shares of Stock (and cash in lieu of a
fractional share), if any, which each Grantee would have received if on the date
set by the Board he or she had exercised his or her SAR in full or if he or she
had exercised a right to surrender his or her outstanding Option in full under
Section 7.11 of this Plan, or
(b) may (subject to such conditions, if any, as the Board deems
appropriate under the circumstances) be cancelled unilaterally by the Company in
exchange for a cash payment equal to the Change in Control Price (reduced by the
exercise price applicable to such Options or SARs), or
(c) may be cancelled unilaterally by the Company if the Option Price or
SAR Share Value equals or exceeds the Fair Market Value of a share of Stock on
such date, and
(2) the grant conditions, if any, and forfeiture conditions on all outstanding
Restricted Stock grants may be deemed completely satisfied on the date set by
the Board.
SECTION 13. AMENDMENT OR TERMINATION
This Plan may be amended by the Board from time to time to the extent that the
Board deems necessary or appropriate; provided, however, that any such amendment
may be conditioned on shareholder approval if the Committee determines such
approval is necessary and desirable for compliance with Section 422 of the Code
or Rule 16b-3 under the Exchange Act or with any other applicable law, rule or
regulation, including requirements of any exchange or quotation system on which
the Stock is listed or quoted. The Board also may suspend the granting of
Options, SARs and Restricted Stock under this Plan at any time and may terminate
this Plan at any time; provided, however, the Company shall not have the right
to modify, amend or cancel any Option, SAR or Restricted Stock granted before
such suspension or termination unless (1) the Grantee consents in writing to
such modification, amendment or cancellation or (2) there is a dissolution or
liquidation of the Company or a transaction described in Section 11 or Section
12 of this Plan.
SECTION 14. MISCELLANEOUS
14.1 Shareholder Rights. No Grantee shall have any rights as a shareholder
of the Company as a result of the grant of an Option or a SAR under this Plan or
his or her exercise of such Option or SAR pending the actual delivery of the
Stock subject to such Option to such Grantee. Subject to Section 8, a Grantee's
rights as a shareholder in the shares of Stock related to a Restricted Stock
grant which is effective shall be set forth in the related Restricted Stock
Agreement.
14.2 No Contract of Employment or Service. The grant of an Option, SAR or
Restricted Stock to a Grantee under this Plan shall not constitute a contract of
employment or service and shall not confer on a Grantee any rights upon
termination of his or her employment or service with the Company in addition to
those rights, if any, expressly set forth in the Option Agreement which
evidences his or her Option, the SAR Agreement which evidences his or her SAR or
the Restricted Stock Agreement related to his or her Restricted Stock.
14.3 Withholding. The Company shall deduct from all cash distributions
under the Plan any taxes required to be withheld by federal, state or local
government. Whenever the Company proposes or is required to issue or transfer
shares of Stock under the Plan, the Company shall have the right to require the
recipient to remit to the Company an amount sufficient to satisfy any federal,
state and local withholding tax requirements prior to the delivery of any
certificate or certificates for such shares. A Grantee may pay the withholding
tax in cash, or, if the applicable Option Agreement, SAR Agreement or Restricted
Stock Agreement provides, a Grantee may elect to have the number of shares of
Stock he is to receive reduced by the smallest number of whole shares of Stock
which,
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when multiplied by the Fair Market Value of the shares of Stock determined as of
the Tax Date (defined below), is sufficient to satisfy federal, state and local,
if any, withholding taxes arising from exercise or payment of a grant under this
Plan (a "Withholding Election"). A Grantee may make a Withholding Election only
if the Withholding Election is made on or prior to the date on which the amount
of tax required to be withheld is determined (the "Tax Date") by executing and
delivering to the Company a properly completed notice of Withholding Election as
prescribed by the Committee. The Committee may in its sole discretion disapprove
and give no effect to the Withholding Election.
14.4 Construction. This Plan shall be construed under the laws of the State
of Florida, to the extent not preempted by federal law, without reference to the
principles of conflict of laws.
14.5 Compliance with Code. All ISOs to be granted hereunder are intended to
comply with Code Section 422, and all provisions of the Plan and all ISOs
granted hereunder shall be construed in such manner as to effectuate that
intent.
14.6 Non-alienation of Benefits. Other than as specifically provided
herein, no benefit under the Plan shall be subject in any manner to
anticipation, alienation, sale, transfer, assignment, pledge, encumbrance or
charge; and any attempt to do so shall be void. No such benefit shall, prior to
receipt by the Grantee, be in any manner liable for or subject to the debts,
contracts, liabilities, engagements or torts of the Grantee.
14.7 Listing and Legal Compliance. The Committee may suspend the exercise
or payment of any incentive granted under this Plan so long as it determines
that securities exchange listing or registration or qualification under any
securities laws is required in connection therewith and has not been completed
on terms acceptable to the Committee.
HUGHES SUPPLY, INC.
By: /s/ David H. Hughes
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Title: Chairman and Chief Executive Officer
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ATTEST:
By: /s/ Benjamin P. Butterfield
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Title: Secretary
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[CORPORATE SEAL]
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