ROLLINS, INC.
1994 EMPLOYEE STOCK INCENTIVE PLAN
JANUARY 25, 1994
TABLE OF CONTENTS
PAGE
SECTION 1. PURPOSE; DEFINITIONS.......................................................................... 2
SECTION 2. ADMINISTRATION................................................................................ 4
SECTION 3. STOCK SUBJECT TO PLAN......................................................................... 5
SECTION 4. ELIGIBILITY................................................................................... 5
SECTION 5. STOCK OPTIONS................................................................................. 5
(a) OPTION PRICE..................................................................................... 5
(b) OPTION TERM...................................................................................... 6
(c) EXERCISABILITY................................................................................... 6
(d) METHOD OF EXERCISE............................................................................... 6
(e) NON-TRANSFERABILITY OF OPTIONS................................................................... 6
(f) TERMINATION BY DEATH............................................................................. 6
(g) TERMINATION BY REASON OF DISABILITY.............................................................. 6
(h) TERMINATION BY REASON OF RETIREMENT.............................................................. 7
(i) OTHER TERMINATION................................................................................ 7
(j) BUYOUT PROVISIONS................................................................................ 7
(k) CERTAIN RECAPITALIZATIONS........................................................................ 7
(l) SUBDIVISION OR CONSOLIDATION..................................................................... 7
(m) FRACTIONAL SHARES................................................................................ 8
(n) COMPLIANCE WITH SECTION 422...................................................................... 8
SECTION 6. STOCK APPRECIATION RIGHTS..................................................................... 8
(a) GRANT AND EXERCISE............................................................................... 8
(b) TERMS AND CONDITIONS............................................................................. 8
SECTION 7. OTHER STOCK-BASED AWARDS...................................................................... 9
(a) ADMINISTRATION................................................................................... 9
(b) TERMS AND CONDITIONS............................................................................. 9
SECTION 8. AMENDMENTS AND TERMINATION.................................................................... 11
SECTION 9. UNFUNDED STATUS OF PLAN....................................................................... 11
SECTION 10. GENERAL PROVISIONS........................................................................... 12
SECTION 11. EFFECTIVE DATE OF PLAN....................................................................... 12
SECTION 12. TERM OF PLAN................................................................................. 12
1
ROLLINS, INC.
1994 EMPLOYEE STOCK INCENTIVE PLAN
SECTION 1. PURPOSE; DEFINITIONS.
The purpose of the Rollins, Inc. 1994 Employee Stock Incentive Plan (the
Plan) is to enable Rollins, Inc. (the Company) to attract, retain and reward
directors and key employees of the Company and its Subsidiaries and Affiliates,
and strengthen the mutuality of interests between such persons and the Company's
shareholders, by offering such persons performance-based stock incentives and/or
other equity interests or equity-based incentives in the Company, as well as
performance-based incentives payable in cash.
For purposes of this Plan, the following terms shall be defined as set
forth below:
(a) Affiliate means any entity other than the Company and its Subsidiaries
that is designated by the Board as a participating employer under this Plan,
provided that the Company directly or indirectly owns at least 20% of the
combined voting power of all classes of stock of such entity or at least 50% of
the ownership interests in such entity.
(b) Board means the Board of Directors of the Company.
(c) Book Value means, at any given date, (i) the consolidated stockholders'
equity in the Company and its Subsidiaries, as shown on the Company's
consolidated balance sheet as of the end of the immediately preceding fiscal
year, subject to such adjustments as the Committee shall in good faith specify
at or after grant, divided by (ii) the number of shares of Outstanding Stock as
of such year-end date (as adjusted by the Committee for subsequent events).
(d) Code means the Internal Revenue Code of 1986, as amended from time to
time, and any successor thereto.
(e) Committee means the Committee referred to in Section 2 of this Plan. If
at any time no Committee shall be in office, then the functions of the Committee
specified in this Plan may be exercised by the Board or the Compensation
Committee of the Board, as set forth in Section 2 hereof.
(f) Company means Rollins, Inc., a corporation organized under the laws of
the State of Delaware, or any successor corporation.
(g) Disability means disability as determined under procedures established
by the Committee for purposes of this Plan and shall in all events be consistent
with the definition of disabled provided in Sections 422(c)(6) and 22(e)(3) of
the Code.
(h) Disinterested Person shall have the meaning set forth in Rule 16b-3 as
promulgated by the Securities and Exchange Commission (Commission) under the
Securities Exchange Act of 1934, as amended (the Exchange Act), or any successor
definition adopted by the Commission.
(i) Early Retirement means retirement with the express written consent of
the Committee (given for purposes of this Plan only at or before the time of
such retirement) from active employment with the Company and/or any Subsidiary
or Affiliate or pursuant to the early retirement provisions of the applicable
pension plan of such entity.
(j) Fair Market Value means, as of any given date, unless otherwise
determined by the Committee in good faith:
(i) if the Stock is listed on an established stock exchange or
exchanges, or traded on the NASDAQ National Market System (NASDAQ/NMS) the
highest closing price of the Stock as listed thereon on the applicable day,
or if no sale of Stock has been made on any exchange or on NASDAQ/NMS on
that date, on the next preceding day on which there was a sale of Stock;
(ii) if the Stock is not listed on an established stock exchange or
NASDAQ/NMS but is instead traded over-the-counter, the mean of the dealer
bid and askprices of the Stock in the over-the-counter market on the
applicable day, as reported by the National Association of Securities
Dealers, Inc.;
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(iii) if the Stock is not listed on any exchange or traded
over-the-counter, the value determined in good faith by the Committee.
(k) Incentive Stock Option means any Stock Option designated as an
Incentive Stock Option within the meaning of Section 422 of the Code.
(l) Non-Qualified Stock Option means any Stock Option that is not an
Incentive Stock Option.
(m) Normal Retirement means retirement from active employment with the
Company and/or any Subsidiary or Affiliate on or after age 65.
(n) Other Stock-Based Award means an award under Section 7 below that is
valued in whole or in part by reference to, or is otherwise based on, Stock.
(o) Outstanding Stock shall include all outstanding shares of Common Stock,
$1.00 par value, of the Company as well as the number of shares of Common Stock
into which then outstanding shares of capital stock of the Company, of whatever
class, are convertible as of the year-end immediately preceding the date of
calculation thereof (as adjusted by the Committee for certain events).
(p) Performance-Accelerated Restricted Stock means Restricted Stock which
is subject to restrictions for a stated period of time based on continued
employment, with the opportunity for the restriction period to be shortened
based on the achievement of predetermined performance goals.
(q) Performance Stock means Stock awarded under Section 7 below at the end
of a specified performance period, the amount of which is determined by
multiplying a performance factor times either (i) the Fair Market Value of the
Stock on the last day of the performance period, or (ii) the difference between
the Fair Market Value of the Stock on the first and last days of the performance
period; provided, however, that at the discretion of the Committee, participants
may receive the value of Performance Stock in cash, as determined by reference
to the Fair Market Value on the date the amount of the award is determined.
(r) Performance Unit means an award pursuant to Section 7 with a starting
value and an associated performance period, such that at the end of the
performance period participants receive an amount, payable in either cash or
Stock, at the discretion of the Committee, equal to (i) the number of units
earned based on a predetermined performance schedule times the starting unit
value, or (ii) the number of units granted times the ending unit value based on
a predetermined performance schedule.
(s) Plan means this Rollins, Inc. 1994 Employee Stock Incentive Plan, as
hereafter amended from time to time.
(t) Premium Stock Option means any Stock Option with an exercise price in
excess of the Fair Market Value, as computed on the date of grant of the Stock
Option.
(u) Retirement means Normal or Early Retirement.
(v) Restricted Stock means Stock awarded under Section 7 below which is (i)
subject to restrictions for a stated period of time based on continued
employment, (ii) subject to restrictions which will only lapse upon the
achievement of predetermined performance goals, or (iii) subject to a
combination of the restrictions described in (i) and (ii) above.
(w) Stock means the Common Stock, $1.00 par value per share, of the
Company.
(x) Stock Appreciation Right means the right pursuant to an award granted
under Section 6 below to receive an amount in either cash or stock, equal to the
difference between the Fair Market Value of the Stock on the date of exercise
and the Fair Market Value of the Stock on the date of grant of the right.
(y) Stock Option or Option means any option to purchase shares of Stock
granted pursuant to Section 5 below.
(z) Subsidiary means any corporation (other than the Company) in an
unbroken chain of corporations beginning with the Company if each of the
corporations (other than the last corporation in
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the unbroken chain) owns stock possessing 100% or more of the total combined
voting power of all classes of stock in one of the other corporations in the
chain.
SECTION 2. ADMINISTRATION.
This Plan shall be administered by a Committee of not less than two
Disinterested Persons, who shall be members of the Board and who shall serve at
the pleasure of the Board, such Committee to be designated by the Board. The
functions of the Committee specified in this Plan may be exercised by the Board
or by the Compensation Committee of the Board, however, if and to the extent
that no Committee meeting the requirements of this Section 2 has been designated
by the Board as having the authority to so administer this Plan and if a
resolution to such effect is adopted by the Board after due consideration of the
impact of such resolution upon the status of this Plan under Rule 16b-3
promulgated pursuant to the Exchange Act (Rule 16b-3).
The Committee shall have full authority to grant, pursuant to the terms of
this Plan, to directors, officers and other key employees eligible under Section
4: (i) Stock Options, including, without limitation, Incentive Stock Options,
Non-Qualified Stock Options and Premium Stock Options, (ii) Stock Appreciation
Rights and/or (iii) Other Stock-Based Awards, including, without limitation,
Restricted Stock, Performance-Accelerated Restricted Stock, Performance Stock
and Performance Units.
In particular, the Committee shall have the authority:
(i) subject to Section 4 hereof, to select the directors, officers and
other key employees of the Company or its Subsidiaries and Affiliates to
whom Stock Options, Stock Appreciation Rights and/or Other Stock-Based
Awards may from time to time be granted hereunder;
(ii) to determine whether and to what extent Stock Options, Stock
Appreciation Rights and/or Other Stock-Based Awards, or any combination
thereof, are to be granted hereunder to one or more eligible employees;
(iii) to determine the number of shares of Stock to be covered by each
such award granted hereunder;
(iv) to determine the terms and conditions, not inconsistent with the
terms of this Plan, of any award granted hereunder (including, but not
limited to, the share price and any restriction or limitation, or any
vesting, acceleration or waiver of forfeiture restrictions regarding any
Stock Option or other award and/or the shares of Stock relating thereto,
based in each case on such factors as the Committee shall determine, in its
sole discretion);
(v) to determine whether and under what circumstances Stock Options,
Stock Appreciation Rights, Performance Stock and Performance Units may be
settled in cash;
(vi) to determine whether, to what extent and under what circumstances
Stock Option grants and/or other awards under this Plan and/or other cash
awards made by the Company are to be made, and operate, on a tandem basis
vis-a-vis other awards under this Plan and/or cash awards made outside of
this Plan, or on an additive basis; and
(vii) to determine whether, to what extent and under what
circumstances Stock and other amounts payable with respect to an award
under this Plan shall be deferred either automatically or at the election
of the participant (including providing for and determining the amount (if
any) of any deemed earnings on any deferred amount during any deferral
period).
The Committee shall have the authority to adopt, alter and repeal such
rules, guidelines and practices governing this Plan as it shall, from time to
time, deem advisable; to interpret the terms and provisions of this Plan and any
award issued under this Plan (and any agreements relating thereto); and to
otherwise supervise the administration of this Plan.
Except as otherwise specifically provided herein, all decisions made by the
Committee pursuant to the provisions of this Plan shall be made in the
Committee's sole discretion and shall be final and binding on all persons,
including the Company and all Plan participants.
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SECTION 3. STOCK SUBJECT TO PLAN.
The total number of shares of Stock reserved and available for distribution
under this Plan shall be 1,200,000 shares. Such shares may consist, in whole or
in part, of authorized and unissued shares or treasury shares.
Subject to section 6(b)(iv) below, if any shares of Stock that have been
optioned hereunder cease to be subject to a Stock Option, or if any such shares
of Stock that are subject to any Other Stock-Based Award granted hereunder are
forfeited or any such award otherwise terminates without a payment being made to
the participant in the form of Stock, such shares shall again be available for
distribution in connection with future awards under this Plan.
In the event of any merger, reorganization, consolidation,
recapitalization, stock dividends, stock split or other changes in corporate
structure affecting the Stock, and subject to Sections 5(k) and 5(m), such
substitution or adjustment shall be made in the aggregate number of shares
reserved for issuance under this Plan, in the number and option price of shares
subject to outstanding Options granted under this Plan and in the number of
shares subject to other outstanding awards granted under this Plan as may be
determined to be appropriate by the Committee, in its sole discretion, provided
that the number of shares subject to any award shall always be a whole number.
Such adjusted option price shall be used to determine the amount payable by the
Company upon the exercise of any Stock Appreciation Right associated with any
Stock Option.
SECTION 4. ELIGIBILITY.
Directors, officers and other key employees of the Company or its
Subsidiaries and Affiliates (but excluding members of the Committee if a
Committee meeting the requirements of Section 2 is designated by the Board) who
are responsible for or contribute to the management, growth and/or profitability
of the business of the Company and/or its Subsidiaries and Affiliates are
eligible to be granted awards under this Plan. Notwithstanding the foregoing,
Incentive Stock Options may only be granted to employees of the Company and any
of its Subsidiaries or Affiliates that are a subsidiary corporation (within the
meaning of Section 424(f) of the Code). Furthermore, no director who is not also
an employee of the Company shall be eligible to receive Incentive Stock Options.
SECTION 5. STOCK OPTIONS.
Stock Options may be granted alone, in addition to or in tandem with other
awards granted under this Plan and/or cash awards made outside of this Plan. Any
Stock Option granted under this Plan shall be in such form as the Committee may
from time to time approve.
Stock Options granted under this Plan may be of two types: (i) Incentive
Stock Options, and (ii) Non-Qualified Stock Options. Incentive Stock Options and
Non-Qualified Stock Options may be issued as Premium Stock Options at the
discretion of the Board.
Subject to the restrictions contained in Section 4 hereof concerning the
grant of Incentive Stock Options, the Committee shall have the authority to
grant to any optionee Incentive Stock Options, Non-Qualified Stock Options, or
both types of Stock Options (in each case with or without Stock Appreciation
Rights). To the extent that the Fair Market Value of the shares with respect to
which Incentive Stock Options first become exercisable by an optionee during any
calendar year (under the Plan and any other plans granting Incentive Stock
Options which are established by the Company or its Subsidiaries) exceeds
$100,000, such Options shall be treated as Non-Qualified Stock Options.
Options granted under this Plan shall be subject to the following terms and
conditions and shall contain such additional terms and conditions, not
inconsistent with the terms of this Plan, as the Committee shall deem desirable:
(a) OPTION PRICE. The option price per share of Stock purchasable under a
Stock Option shall be determined by the Committee at the time of grant but shall
be (i) not less than 100% (or, in the case of an employee who owns stock
possessing more than 10 percent of the total combined voting power of all
classes of capital stock of the Company or of any of its subsidiary or parent
corporations, not less than 110%) of the Fair Market Value of the Stock at
grant, in the case of Incentive Stock
5
Options, and (ii) not less than 90% of the Fair Market Value of the Stock at
grant, in the case of Non-Qualified Stock Options.
(b) OPTION TERM. The term of each Stock Option shall be fixed by the
Committee, but no Stock Option shall be exercised more than ten years (or, in
the case of an employee who owns stock possessing more than 10 percent of the
total combined voting power of all classes of stock of the Company or any of its
subsidiary or parent corporations, more than five years) after the date the
Option is granted.
(c) EXERCISABILITY. Stock Options shall be exercised at such time or times
and subject to such terms and conditions as shall be determined by the Committee
at or after grant; provided, however, that, except as provided in Section 5(f),
5(g), or 5(k), unless otherwise determined by the Committee at or after grant,
no Stock Option shall be exercisable until at least one year after the granting
of the Option. If the Committee provides, in its sole discretion, that any Stock
Option is exercisable only in installments, the Committee may waive such
installment exercise provisions at any time at or after grant in whole or in
part, based on such factors as the Committee shall determine, in its sole
discretion.
(d) METHOD OF EXERCISE. Subject to whatever installment exercise provisions
or other restrictions apply under Section 5(c), Stock Options may be exercised
in whole or in part at any time during the option period, by giving written
notice of exercise to the Company specifying the number of shares to be
purchased; provided, however, that if exercised in part, a Stock Option may not
be exercised for fewer than 100 shares, unless the remaining balance of the
Stock Option is less than 100 shares, in which case the Stock Option may be
exercised for the remaining balance.
Such notice shall be accompanied by payment in full of the purchase price,
either by cash or such instrument as the Committee may accept. Payment in full
or in part may also be made in the form of unrestricted Stock already owned by
the optionee for a period of at least six months, based, in each case, on the
Fair Market Value of the Stock on the date the option is exercised, unless it
shall be determined by the Committee, at or after grant, in its sole discretion,
that unrestricted Stock is not a permissible form of payment with respect to any
Stock Option or Options.
No shares of Stock shall be issued until full payment therefor has been
made. An optionee shall generally have the rights to dividends or other rights
of a shareholder with respect to shares subject to the Stock Option when the
optionee has given written notice of exercise, has paid in full for such shares,
and, if requested, has given the representation described in Section 10(a).
(e) NON-TRANSFERABILITY OF OPTIONS. No Stock Option shall be transferable
by the optionee otherwise than by will or by the laws of descent and
distribution, and all Stock Options shall be exercisable, during the optionee's
lifetime, only by the optionee.
(f) TERMINATION BY DEATH. Subject to Section 5(k), if an optionee's
employment by the Company and/or any Subsidiary or Affiliate terminates by
reason of death, any Stock Option held by such optionee may thereafter be
exercised to the extent such option was exercisable at the time of death or on
such accelerated basis as the Committee may determine at or after grant (or as
may be determined in accordance with procedures established by the Committee),
by the legal representative of the estate or by the legatee of the optionee
under the will of the optionee, for a period of six months (or such other period
as the Committee may specify at grant) from the date of such death or until the
expiration of the stated term of such Stock Option, whichever period is the
shorter.
(g) TERMINATION BY REASON OF DISABILITY. Subject to Section 5(k), if an
optionee's employment by the Company and/or any Subsidiary or Affiliate
terminates by reason of Disability, any Stock Option held by such optionee may
thereafter be exercised by the optionee or his/her guardian, to the extent it
was exercisable at the time of termination or on such accelerated basis as the
Committee may determine at or after grant (or as may be determined in accordance
with procedures established by the Committee), for a period of one year (or such
other period as the Committee may specify at grant) from the date of such
termination of employment or until the expiration of the stated term of such
Stock Option, whichever period is the shorter; provided, however, that, if the
optionee dies
6
within such one-year period (or such other period as the Committee may specify
at grant), any unexercised Stock Option held by such optionee shall thereafter
be exercisable only pursuant to Section 5(f). In the event of termination of
employment by Disability, if a Stock Option theretofore designated as an
Incentive Stock Option is exercised more than one year after such termination of
employment, such Stock Option shall be treated as a Non-Qualified Stock Option.
(h) TERMINATION BY REASON OF RETIREMENT. Subject to Section 5(k), if an
optionee's employment by the Company and/or any Subsidiary or Affiliate
terminates by reason of Normal or Early Retirement, any Stock Option held by
such optionee may be exercised by the optionee, to the extent it was exercisable
at the time of such Retirement, for a period of three months, less one day, (or
such other period as the Committee may specify at grant) from the date of such
termination, or the expiration of the stated term of such Stock Option,
whichever period is the shorter; provided, however, that if the optionee dies
within such three-month, less one day, period (or such other period as the
Committee may specify at grant), any unexercised Stock Option held by such
optionee shall thereafter be exercisable only pursuant to Section 5(f). In the
event of termination of employment by Retirement, if a Stock Option theretofore
designated as an Incentive Stock Option is exercised more than three (3) months
after such termination of employment, such Stock Option shall be treated as a
Non-Qualified Stock Option.
(i) OTHER TERMINATION. Unless otherwise determined by the Committee (or
pursuant to procedures established by the Committee) at or after grant, if an
optionee's employment by the Company and/or any Subsidiary or Affiliate
terminates for any reason other than death, Disability or Normal or Early
Retirement, as in the case of voluntary resignation of employment by the
optionee, the Stock Option shall thereupon terminate and shall be immediately
forfeited, regardless of its vesting status.
(j) BUYOUT PROVISIONS. The Committee may at any time offer to buy out for a
payment in cash or Stock a Stock Option previously granted, based on such terms
and conditions as the Committee shall establish and communicate to the optionee
at the time that such offer is made.
(k) CERTAIN RECAPITALIZATIONS. In general, if the Company is merged into or
consolidated with another corporation under circumstances in which the Company
is not the surviving corporation, or if the Company is liquidated, or sells or
otherwise disposes of substantially all of its assets to another corporation
(any such merger, consolidation, etc. being hereinafter referred to as a
Non-Acquiring Transaction) while unexercised Options are outstanding under this
Plan, after the effective date of a Non-Acquiring Transaction each holder of an
outstanding Option shall be entitled, upon exercise of such Option, to receive
such stock or other securities as the holders of the same class of stock as
those shares subject to the Option shall be entitled to receive in such
Non-Acquiring Transaction based upon the agreed upon conversion ratio or per
share distribution. However, in the discretion of the Board of Directors, after
giving due consideration to the impact on the optionee, if any, pursuant to Rule
16b-3, any limitations on exercisability of Options may be waived so that all
Options, from and after a date prior to the effective date of such Non-Acquiring
Transaction shall be exercisable in full. Furthermore, in the discretion of the
Board of Directors, the right to exercise may be given to each holder of an
Option during a 30-day period preceding the effective date of such Non-Acquiring
Transaction. Any outstanding Options not exercised within such 30-day period may
be cancelled by the Board of Directors as of the effective date of any such
Non-Acquiring Transaction. To the extent that the foregoing adjustments relate
to stock or securities of the Company, such adjustments shall be made by the
Board of Directors, whose determination in that respect shall be final, binding
and conclusive. The Committee need not treat all optionees and/or Options in the
same manner.
(l) SUBDIVISION OR CONSOLIDATION. Except as set forth in this Plan,
optionees shall have no rights by reason of any subdivision or consolidation of
shares of stock of any class or the payment of any stock dividend or any other
increase or decrease in the number of shares of stock of any class or by reason
of any dissolution, liquidation, merger, or consolidation or spinoff of stock of
another corporation, and no issue by the Company of shares of stock of any class
shall affect, and no adjustment by reason thereof shall be made with respect to,
the number or price of shares subject to the Stock Option. The grant of any
Stock Option pursuant to this Plan shall not affect in any way the right or
7
power of the Company to make adjustments, reclassifications, reorganizations or
changes of its capital or business structure or to merge or to consolidate or to
dissolve, liquidate or sell, or to transfer all or any part of its business or
assets.
(m) FRACTIONAL SHARES. If any adjustment referred to herein shall result in
a fractional share for any optionee under any Stock Option hereunder, such
fraction shall be completely disregarded and the optionee shall only be entitled
to the whole number of shares resulting from such adjustment.
(n) COMPLIANCE WITH SECTION 422. Unless otherwise determined by the
Committee with the consent of the optionee, any Option granted hereunder and
designated as an Incentive Stock Option shall comply with all relevant
provisions of Section 422 of the Code; provided, however, that to the extent
that any such Option which is designated as an Incentive Stock Option hereunder
fails for any reason to comply with the provisions of Section 422 it shall be
treated as a Non-Qualified Stock Option.
SECTION 6. STOCK APPRECIATION RIGHTS.
(a) GRANT AND EXERCISE. Stock Appreciation Rights may be granted alone, in
addition to or in tandem with all or part of any other award granted under this
Plan. In the case of a Non-Qualified Stock Option, such tandem rights may be
granted either at or after the time of the grant of such Stock Option. In the
case of an Incentive Stock Option, such tandem rights may be granted only at the
time of the grant of such Stock Option.
A Stock Appreciation Right or applicable portion thereof granted in tandem
with a given Stock Option shall terminate and no longer be exercisable upon the
termination or exercise of the related Stock Option, subject to such provisions
as the Committee may specify at grant where a Stock Appreciation Right is
granted with respect to less than the full number of shares covered by a related
Stock Option.
A Stock Appreciation Right may be exercised by an optionee, subject to
Section 6(b), in accordance with the procedures established by the Committee for
such purpose. Upon such exercise, the optionee shall be entitled to receive an
amount determined in the manner prescribed in Section 6(b). Stock Options which
were issued in tandem with exercised Stock Appreciation Rights shall no longer
be exercisable to the extent that the related Stock Appreciation Rights have
been exercised.
(b) TERMS AND CONDITIONS. Stock Appreciation Rights shall be subject to
such terms and conditions, not inconsistent with the provisions of this Plan, as
shall be determined from time to time by the Committee, including the following:
(i) Except as set forth below, the term of each Stock Appreciation
Right shall be fixed by the Committee, but no such Stock Appreciation Right
shall be exercised more than ten years after the date it is granted. Stock
Appreciation Rights granted in tandem with Stock Options shall be
exercisable only at such time or times and to the extent that the Stock
Options to which they relate shall be exercisable in accordance with the
provisions of Section 5 and this Section 6 whenever the Fair Market Value
of the Stock exceeds the option price per share specified in the related
Stock Option. The foregoing notwithstanding, no Stock Appreciation Right
granted hereunder to a Plan participant who is subject to Section 16(b) of
the Exchange Act shall be exercisable during the first six months of its
term, except that, with the exception of Stock Appreciation Rights granted
in tandem with Incentive Stock Options, in the discretion of the Committee,
after giving due consideration to the impact on the participant, if any,
pursuant to Rule 16b-3, this special limitation may be waived in the event
of death or Disability of the optionee prior to the expiration of the
six-month period. The exercise of Stock Appreciation Rights held by
participants who are subject to Section 16(b) of the Exchange Act shall
comply with Rule 16b-3(e)(3) thereunder, or any successor provision, to the
extent applicable.
(ii) Stock Appreciation Rights shall be exercised at such time or
times and subject to such terms and conditions as shall be determined by
the Committee at or after grant; provided, however, that, except as
provided in Section 5(f), 5(g), or 5(k), as incorporated herein by Section
8
6(b)(vi) below, unless otherwise determined by the Committee at or after
grant, no Stock Appreciation Right shall be exercisable until at least one
year after its date of grant. If the Committee provides, in its sole
discretion, that any Stock Appreciation Right is exercisable only in
installments, the Committee may waive such installment exercise provisions
at any time at or after grant in whole or in part, based on such factors as
the Committee shall determine, in its sole discretion. Upon the exercise of
a Stock Appreciation Right, a participant shall be entitled to receive an
amount in cash and/or shares of Stock equal in value to the excess of Fair
Market Value of the Stock on the date of exercise over the Fair Market
Value of the Stock on the date of grant multiplied by the number of Stock
Appreciation Rights exercised, with the Committee having the right to
determine the form of payment. Subject to whatever installment exercise
provisions or other restrictions apply hereunder, Stock Appreciation Rights
may be exercised in whole or in part at any time during the term thereof by
giving written notice of exercise to the Company specifying the number of
rights to be exercised.
(iii) No Stock Appreciation Right shall be transferable by a
participant otherwise than by will or by the laws of descent and
distribution, and all Stock Appreciation Rights shall be exercisable,
during the participant's lifetime, only by the participant.
(iv) Upon the exercise of a tandem Stock Appreciation Right, the Stock
Option or part thereof to which such Stock Appreciation Right is related
shall be deemed to have been exercised for the purpose of the limitation
set forth in Section 3 of this Plan on the number of shares of Stock to be
issued under this Plan, but only to the extent of the number of shares
issued under the Stock Appreciation Right at the time of exercise based on
the value of the Stock Appreciation Right at such time.
(v) Stock Appreciation Rights issued in tandem with Incentive Stock
Options shall contain such terms and conditions as the Committee may
determine to be necessary for the qualification of the Incentive Stock
Options.
(vi) Sections 5(f)-(m) hereof shall apply equally to all Stock
Appreciation Rights granted pursuant to this Plan, as if each reference
therein to a Stock Optionwas instead a reference to a Stock Appreciation
Right.
SECTION 7. OTHER STOCK-BASED AWARDS.
(a) ADMINISTRATION. Other awards of Stock and other awards that are valued
in whole or in part by reference to, or are otherwise based on, Stock (Other
Stock-Based Awards), including, without limitation, Restricted Stock,
Performance-Accelerated Restricted Stock, Performance Stock, Performance Units
and Stock awards or options valued by reference to Book Value or Subsidiary
performance, may be granted either alone or in addition to or in tandem with
Stock Options or Stock Appreciation Rights granted under this Plan and/or cash
awards made outside of this Plan.
Subject to the provisions of this Plan, the Committee shall have authority
to determine the persons to whom and the time or times at which such awards
shall be made, the number of shares of Stock to be awarded pursuant to such
awards, and all other conditions of the awards. The Committee may also provide
for the grant of Stock upon the completion of a specified performance period or
event.
The provisions of Other Stock-Based Awards need not be the same with
respect to each recipient.
(b) TERMS AND CONDITIONS. Other Stock-Based Awards made pursuant to this
Section 7 shall be subject to the following terms and conditions:
(i) Subject to the provisions of this Plan and the award agreement
referred to in Section 7(b)(v) below, Other Stock-Based Awards and shares
subject to such awards made under this Section 7 may not be sold, assigned,
transferred, pledged or otherwise encumbered, in the case of shares of
Stock, prior to the date on which the shares are issued, or, if later, the
date on which any applicable restriction, performance or deferral period
lapses, and in all other cases, not at all.
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(ii) Subject to the provisions of this Plan and the award agreement
and unless otherwise determined by the Committee at grant, the recipient of
an award under this Section 7 shall be entitled to receive, currently or on
a deferred basis, as determined by the Committee, interest or dividends or
interest or dividend equivalents with respect to the number of shares
covered by the award, as determined at the time of the award by the
Committee, in its sole discretion, and the Committee may provide that such
amounts (if any) shall be deemed to have been reinvested in additional
Stock or otherwise reinvested.
(iii) Any award under this Section 7 and any Stock covered by any such
award shall vest or be forfeited to the extent so provided in the award
agreement, as determined by the Committee, in its sole discretion.
(iv) In the event of the participant's Retirement, Disability or
death, and in other instances, the Committee may, in its sole discretion,
waive in whole or in part any or all of the remaining limitations,
performance requirements or restrictions imposed (if any) with respect to
any or all of an award under this Section 7 and/or accelerate the payment
of cash or Stock pursuant to any such award.
(v) Each award under this Section 7 shall be confirmed by, and subject
to the terms of, an agreement or other instrument executed by the Company
and by the participant.
(vi) Stock (including securities convertible into Stock) issued on a
bonus basis under this Section 7 may be issued for no cash consideration.
(vii) Other Stock-Based Awards, to the extent they constitute
derivative securities for purposes of Section 16 of the Exchange Act, and
are owned by persons who are subject to Section 16(b) of the Exchange Act,
shall be transferable only when and to the extent a Stock Option would be
transferable under Section 5(e) of this Plan. The Committee may also take
into account other provisions contained in the Exchange Act or which are
promulgated pursuant thereto.
(viii) Unless otherwise determined by the Committee at or after grant,
if a participant's employment by the Company and/or any Subsidiary or
Affiliate terminates by reason of death or Disability, a pro rata portion
of the restrictions pertaining to continued employment on any Restricted
Stock will lapse, based on the number of full months the participant was
employed during the restriction period divided by the total number of
months in the restriction period. All such pro rata awards will be
determined and distributed at such time as awards are paid to other Plan
participants.
(ix) Unless otherwise determined by the Committee at or after grant,
if a participant's employment by the Company and/or any Subsidiary or
Affiliate terminates by reason of Normal Retirement, all of the
restrictions pertaining to continued employment on any Restricted Stock
will lapse. Any such award will be determined and distributed at such time
as awards are paid to other Plan participants.
(x) Unless otherwise determined by the Committee at or after grant, if
a participant's employment by the Company and/or any Subsidiary or
Affiliate terminates by reason of death or Disability, the estate of the
participant or the participant, as applicable, will receive a pro rata
portion of the payment or Stock the participant would have received for
Performance Stock or Performance Units, based on the number of full months
in the performance period prior to the participants's death or Disability,
divided by the total number of months in the performance period. All such
pro rata payments will be determined and distributed at such time as awards
are paid to other Plan participants.
(xi) Unless otherwise determined by the Committee at or after grant,
if a participant's employment by the Company and/or any Subsidiary or
Affiliate terminates by reason of Early Retirement and if such Early
Retirement occurs before age 65 and before completion of 10 years of
service with the Company and/or a Subsidiary or Affiliate subsequent to the
date of grant of Restricted Stock or Performance-Accelerated Restricted
Stock, all such Restricted Stock and
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Performance-Accelerated Restricted Stock will be forfeited by the
participant. In addition, in the event of Normal or Early Retirement before
the end of the performance period for Performance Stock or Performance
Units, no awards will be paid unless specifically approved by the Committee
on a case-by-case basis.
(xii) Unless otherwise determined by the Committee (or pursuant to
procedures established by the Committee) at or after grant, if a
participant's employment by the Company and/or any Subsidiary or Affiliate
terminates for any reason other than death, Disability or Normal or Early
Retirement, as in the case of voluntary resignation of employment by the
participant, all Other Stock-Based Awards shall be immediately forfeited.
(xiii) The Committee may at any time offer to buy out for a payment in
cash or Stock an Other Stock-Based Award previously granted, based on such
terms and conditions as the Committee shall establish and communicate to
the participant at the time that such offer is made.
(xiv) Except as set forth in this Plan, participants shall have no
rights by reason of any subdivision or consolidation of shares of stock of
any class or the payment of any stock dividend or any other increase or
decrease in the number of shares of stock of any class or by reason of any
dissolution, liquidation, merger, or consolidation or spinoff of stock of
another corporation, and no issue by the Company of shares of stock of any
class shall affect, and no adjustment by reason thereof shall be made with
respect to, the number or price of shares subject to any Other Stock-Based
Award. The grant of any Other Stock-Based Award pursuant to this Plan shall
not affect in any way the right or power of the Company to make
adjustments, reclassifications, reorganizations or changes of its capital
or business structure or to merge or to consolidate or to dissolve,
liquidate or sell, or to transfer all or any part of its business or
assets.
SECTION 8. AMENDMENTS AND TERMINATION.
The Board may amend, alter, or discontinue this Plan, but, except as
otherwise provided herein, no amendment, alteration, or discontinuation shall be
made which would impair the rights of an optionee or participant under a Stock
Option, Stock Appreciation Right or Other Stock-Based Award theretofore granted,
without the optionee's or participant's consent, or which, without the approval
of the Company's stockholders, would:
(a) materially increase the benefits accruing to participants under
this Plan;
(b) materially increase the number of securities which may be issued
under this Plan; or
(c) materially modify the requirements as to eligibility for
participation in this Plan.
The Committee may amend the terms of any Stock Option or other award
theretofore granted, prospectively or retroactively, but, subject to Section 3
above, no such amendment shall impair the rights of any holder without the
holder's consent. The Committee may also substitute new Stock Options for
previously granted Stock Options (on a one for one or other basis), including
previously granted Stock Options having higher option exercise prices.
Subject to the above provisions, the Board shall have broad authority to
amend this Plan to take into account changes in applicable securities and tax
laws and accounting rules, as well as other developments.
SECTION 9. UNFUNDED STATUS OF PLAN.
This Plan is intended to constitute an unfunded plan for incentive and
deferred compensation. With respect to any payments not yet made to a
participant or optionee by the Company, nothing contained herein shall give any
such participant or optionee any rights that are greater than those of a general
creditor of the Company. In its sole discretion, the Committee may authorize the
creation of trusts or other arrangements to meet the obligations created under
this Plan to deliver Stock or payments in lieu of or with respect to awards
hereunder; provided, however, that, unless the Committee otherwise determines
with the consent of the affected participant, the existence of such trusts or
other arrangements is consistent with the unfunded status of this Plan.
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SECTION 10. GENERAL PROVISIONS.
(a) The Company shall not be obligated to sell or issue any shares pursuant
to any Option unless the shares with respect to which the Option is being
exercised are at the time effectively registered or exempt from registration
under the Securities Act of 1933, as amended (the 1933 Act). The Company shall
have no obligation to register pursuant to the 1933 Act any shares of Stock
issued pursuant to this Plan. The Committee may require each person purchasing
shares pursuant to a Stock Option or other award under this Plan to represent to
and agree with the Company in writing that the optionee or participant is
acquiring the shares for investment and without a view to distribution thereof.
The certificates for such shares may include any legend which the Committee
deems appropriate to reflect any restrictions on transfer.
All certificates for shares of Stock or other securities delivered under
this Plan shall be subject to such conditions, stop-transfer orders and other
restrictions as the Committee may deem advisable under the rules, regulations,
and other requirements of the Securities and Exchange Commission, any stock
exchange upon which the Stock is then listed, and any applicable federal or
state securities law, and the Committee may cause a legend or legends to be put
on any such certificates to make appropriate reference to such restrictions.
(b) Nothing contained in this Plan shall prevent the Board from adopting
other or additional compensation arrangements, subject to stockholder approval
if such approval is required, and such arrangements may be either generally
applicable or applicable only in specific cases.
(c) The adoption of this Plan shall not confer upon any employee of the
Company or of any Subsidiary or Affiliate any right to continued employment with
the Company or a Subsidiary or Affiliate, as the case may be, nor shall it
interfere in any way with the right of the Company or a Subsidiary or Affiliate
to terminate the employment of any of its employees at any time.
(d) No later than the date as of which an amount first becomes includable
in the gross income of the participant for federal income tax purposes with
respect to the exercise of any Option or Stock Appreciation Right or any award
under this Plan, the participant shall pay to the Company, or make arrangements
satisfactory to the Committee regarding the payment of, any federal, state, or
local taxes of any kind required by law to be withheld with respect to such
amount. The obligations of the Company under this Plan shall be conditional on
such payment or arrangements, and the Company and its Subsidiaries or Affiliates
shall, to the extent permitted by law, have the right to deduct any such taxes
from any payment of any kind otherwise due to the participant.
(e) The actual or deemed reinvestment of dividends or dividend equivalents
in additional types of Plan awards at the time of any dividend payment shall
only be permissible if sufficient shares of Stock are available under Section 3
for such reinvestment, taking into account other Plan awards then outstanding.
(f) This Plan and all awards made and actions taken hereunder shall be
governed by and construed in accordance with the Delaware General Corporation
Law, to the extent applicable, and in accordance with the laws of the State of
Georgia in all other respects.
(g) The value of awards made pursuant to this Plan shall not be included as
part of the definition of cash compensation in connection with any other benefit
offered by the Company.
SECTION 11. EFFECTIVE DATE OF PLAN.
This Plan shall be effective as of January 25, 1994.
SECTION 12. TERM OF PLAN.
No Stock Option, Stock Appreciation Right or Other Stock-Based Award shall
be granted pursuant to this Plan on or after the tenth anniversary of the
effective date of this Plan, but awards granted prior to such tenth anniversary
may extend beyond that date.
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