e EXHIBIT 10.f
AMENDED AND RESTATED
SUNBEAM CORPORATION
EQUITY TEAM PLAN
(Amended as of December 5, 1996)
1. PURPOSE.
The purpose of the Sunbeam Corporation Equity Team Plan is to provide
incentives for selected executives, key employees, Outside Directors and
Designated Others to promote the financial success and progress of
Sunbeam Corporation. Capitalized terms used throughout this Plan shall
have the meanings ascribed to them in Section 16 hereof.
2. STOCK SUBJECT TO THE PLAN.
(a) Subject to the provisions of this Section and Section 9, the
maximum number of shares of Stock that may be issued under the
Plan is 11,500,000 shares, to be allocated as follows:
(i) 11,300,000 shares may be issued in connection with the
grant of Options pursuant to Section 3; and
(ii) 200,000 shares may be issued in connection with the grant
of Restricted Stock Awards pursuant to Section 3.
Such shares may be either authorized but unissued shares or
treasury shares.
(b) The number of shares subject to an Option or a Restricted
Stock Award that has been granted under the Plan shall no longer
be charged against the limitation provided in Section 2(a), and
may again be made subject to Options or Restricted Stock Awards,
as the case may be, to the extent that Options expire unexercised
or are terminated, surrendered or canceled before exercise or
Restricted Stock Awards are forfeited, terminated, surrendered or
canceled due to a Participant's termination of employment or
service as an Outside Director or for any other reason.
3. GRANTS OF OPTIONS AND RESTRICTED STOCK AWARDS.
(a) Subject to the provisions of the Plan, the Committee may at any
time, or from time to time, grant Options to officers, key
employees, Outside Directors of the Company (or its subsidiaries)
and Designated Others.
(b) Subject to the provisions of the Plan, the Committee may at any
time, or from time to time, grant shares of Stock which are
subject to the Restrictions set forth in Section 4(b)
("Restricted Stock") to officers, key employees and Outside
Directors of the Company (or its subsidiaries) and Designated
Others.
(c) The Committee shall cause shares of Restricted Stock to be
issued to each Outside Director immediately and automatically
upon his or her election, re-election or appointment as a
Director of the Company. If such Outside Director is elected at
an Annual Meeting of the Shareholders of the Company (the "Annual
Meeting"), the number of shares of Restricted Stock to be issued
shall
be 1,500. The number of shares of Restricted Stock to be issued
to an Outside Director who is elected or appointed at any time
other than at an Annual Meeting shall be 1,500 multiplied by a
fraction, the numerator of which shall be the number of days
after the date of such election to and including the date of the
next Annual Meeting (which for such purpose shall be assumed to
be the next May 15) and the denominator of which shall be 365;
provided, however, (i) that in the case of an Outside Director
elected to the Board for the first time during the period
beginning August 1, 1996 and ending December 31, 1996, the number
of such shares shall not be prorated, and each such Outside
Director shall receive 1,500 shares for the period of his service
between the date of his election and the date of the next Annual
Meeting (assumed to be May 15, 1997); and (ii) that each
incumbent Outside Director, elected prior to August 1, 1996,
shall receive that number of shares of Restricted Stock which
results from applying to 1,500 such shares the proration formula
provided above, using for such calculation the period from August
6, 1996 until and including the date of the next Annual Meeting
(assumed to be May 15, 1997).
(d) Deleted.
(e) Each Option shall be evidenced by a Stock Option Agreement, and
each Restricted Stock Award shall be evidenced by a Restricted
Stock Award Agreement, each in a form approved by the Committee
or by a Company officer designated by the Committee.
(f) Notwithstanding any other provision of the Plan, no person shall
be granted Options for more than 250,000 shares of Stock or
Restricted Stock Awards for more than 25,000 shares of Stock in
any single fiscal year of the Company.
4. TERMS AND CONDITIONS.
(a) OPTIONS.
(i) An Option shall entitle the Participant who holds it to
exercise the Option on and subject to the terms,
conditions and restrictions of the Plan (as the Plan may
be amended from time to time) and such additional terms,
conditions and restrictions as may be imposed by the
Committee at the time of grant.
(ii) Unless otherwise specified by the Committee, the term
of each Option granted prior to May 15, 1996 (herein the
"1996 Amendment Date") and which is In-the-Money as of the
1996 Amendment Date shall commence on the date of grant of
the Option and shall expire at the close of business on
the earlier of (A) the tenth anniversary of the date of
grant or (B) the 45th day following the termination of the
Participant's employment with, or service as director of,
the Company (or a subsidiary). Unless otherwise specified
by the Committee, the term of each Option granted on or
after the 1996 Amendment Date and the term of each Option
granted prior to the 1996 Amendment Date which is Out-
of-the- Money as of the 1996 Amendment Date, shall
commence on the Grant Date of the Option and shall expire
at the close of business on the earliest of (A) the tenth
anniversary of the Grant Date; or (B) the third
anniversary of the date of termination of the
Participant's employment with, or service as a director
of, the Company (or a subsidiary), in the case of
retirement or termination by the Company without Cause; or
(C) 90 days after the date of termination of employment in
the case of resignation, voluntary departure or
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termination by the Company with Cause; or (D) in the case
of a Designated Other, the date specified in the Stock
Option Agreement. Notwithstanding the foregoing sentence,
Participants who are subject to Section 16(b) of the
Exchange Act shall have until the earlier of (A) the tenth
anniversary of the Grant Date; or (B) the third
anniversary of the date of termination of their employment
with, or service as a director of the Company, regardless
of the cause, within which to exercise Options which are
granted on or after the 1996 Amendment Date and Options
which are Out-of-the-Money as of the 1996 Amendment Date;
provided, however, that no such Option may be exercised by
any such person during the period beginning on the date of
termination and ending on the six month anniversary of the
date of termination.
(iii) All Restrictions shall lapse with respect to the
Restricted Stock subject to a Restricted Stock Award made
to an Outside Director pursuant to Section 3(c) hereof
immediately and automatically upon the Director's
acceptance of election or appointment as a Director of the
Company, as evidenced in such manner as may be established
by the Committee. Unless otherwise specified by the
Committee (which is empowered to provide different vesting
schedules with respect to any grant of Options or
Restricted Stock), all other Options granted under the
Plan shall become exercisable with respect to 20% of the
shares subject to the Option beginning on the first
anniversary of the Grant Date and as to an additional 20%
on each of the second, third, fourth and fifth
anniversaries of the Grant Date (each twelve month period
ending on an anniversary of a Grant Date being referred to
herein as an "Option Year"), provided in each case that
the Participant shall have remained an employee or a
director of the Company (or a subsidiary), or in the case
of a Designated Other, shall have remained in the position
set forth in the Stock Option Agreement, continuously
since the Grant Date. Notwithstanding the foregoing,
during the remaining term of any options (if not already
so exercisable) : (A) if a Participant's employment or
service as a director, or in the case of a Designated
Other, the period of service as defined in the Stock
Option Agreement, terminates due to death, all Options
held by the Participant at death shall become immediately
exercisable in full; (B) upon a Change in Control, coupled
with a Change in Status of a Participant, all Options held
by such Participant who is then an employee or director of
the Company (or a subsidiary) shall become immediately
exercisable in full; and (C) in the event that the
exercisability of an Option accelerates due to a Change in
Control and a Change in Status, Participants who are
subject to Section 16(b) of the Exchange Act may not sell
the shares acquired upon such accelerated exercise within
six months of the Grant Date of such Option.
(iv) Except to the extent permitted by Rule 16b-3 or its
successor, Options shall not be sold, assigned,
transferred, pledged, hypothecated, or otherwise disposed
of, except by will or the laws of descent and
distribution, pursuant to a qualified domestic relations
order ("QDRO") as defined in the Code or ERISA (or the
rules thereunder) or as otherwise set forth in this
Section 4(a)(iv). Each Option shall be exercisable during
the lifetime of a Participant only by the Participant to
whom it was granted, and after the Participant's death
only by the Participant's estate or legal representative.
To the extent exercisable, an Option may be exercised in
whole at any time, or in part from time to time, during
the term of the Option.
(v) Any Option may be converted, modified, forfeited or
canceled, prospectively or retroactively, in whole or in
part, by the Committee in its sole discretion; provided,
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however, that no such action shall adversely affect the
rights of any Participant under any Option granted prior
to such action without his consent. Except as may be
otherwise provided in an Agreement, the Committee may, in
its sole discretion, in whole or in part, waive any
restrictions or conditions applicable to, or accelerate
the vesting of, any Option.
(b) STOCK AWARDS.
(i) Upon the grant of a Restricted Stock Award, a stock
certificate representing a number of shares of Stock equal
to the number of shares of Restricted Stock granted to a
Participant shall be registered in the Participant's name
but shall be held in custody by the Company for the
Participant's account. The Participant shall generally
have the rights and privileges of a stockholder as to such
Restricted Stock, including the right to vote such
Restricted Stock, except that the following restrictions
(the "Restrictions") shall apply: (A) the Participant
shall not be entitled to delivery of the certificate until
the Restricted Period (set forth in paragraph (iii) below)
applicable to such Restricted Stock has expired or
terminated and until any other conditions prescribed by
the Committee are satisfied; (B) none of the Restricted
Stock may be sold, transferred, assigned, pledged, or
otherwise encumbered or disposed of during the Restricted
Period applicable to such Restricted Stock and prior to
the satisfaction of any other conditions prescribed by the
Committee; and (C) shares of Restricted Stock shall be
forfeited and all rights of the Participant to such
Restricted Stock shall terminate without further
obligation on the part of the Company unless the
Participant has (1) remained an employee or a director of
the Company (or a subsidiary) until the expiration or
termination of the Restricted Period applicable to such
Restricted Stock (or in the case of a Designated Other,
the duration specified in the Restricted Stock Award
Agreement) and (2) satisfied any other conditions
prescribed by the Committee applicable to such Restricted
Stock. At the discretion of the Committee, cash and stock
dividends with respect to the Restricted Stock may be
either currently paid or withheld by the Company for the
Participant's account. Cash dividends so withheld by the
Committee shall not be subject to forfeiture. Upon the
forfeiture of any shares of Restricted Stock, such
forfeited Restricted Stock shall be transferred to the
Company without further action by the Participant. The
Participant shall have the same rights and privileges, and
be subject to the Restrictions, with respect to any shares
or other property received pursuant to Section 9.
(ii) Upon the expiration or termination of the Restricted
Period with respect to shares of Restricted Stock and the
satisfaction of any other conditions prescribed by the
Committee, the Restrictions applicable to such Restricted
Stock shall lapse and a stock certificate for the number
of shares of Stock with respect to which the Restricted
Period has lapsed shall be delivered, free of all
restrictions, except any that may be imposed by law, to
the Participant or the Participant's beneficiary or
estate, as the case may be. The Company shall not be
required to deliver any fractional share of Stock but will
pay, in lieu thereof, the Fair Market Value (determined as
of the date the Restricted Period expires or terminates)
of such fractional share to the Participant or the
Participant's beneficiary or estate, as the case may be.
No payment will be required from the Participant upon the
issuance or delivery of any shares of Stock under this
paragraph, except that any amount necessary to satisfy
applicable federal, state or local tax requirements shall
be withheld or paid promptly upon notification of the
amount due and prior to or concurrently with the issuance
or delivery of a certificate representing such shares.
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(iii) Unless otherwise specified by the Committee at the
time of the award and included in the Restricted Stock
Award Agreement, the Restrictions shall also lapse with
respect to one-fifth of the Restricted Stock subject to
all other Restricted Stock Awards on each of the first
through the fifth anniversaries of the Grant Date,
provided in each case that the Participant shall have
remained an employee or a director of the Company (or a
subsidiary) continuously since the date of grant (or in
the case of a Designated Other, shall have complied with
the terms and conditions of the Restricted Stock Award
Agreement). Notwithstanding the foregoing: (A) if a
Participant's employment or service as a director, or in
the case of a Designated Other, the period defined in the
Restricted Stock Award Agreement, terminates due to death,
the Restrictions shall lapse with respect to all
Restricted Stock Awards held by the Participant at death
(if not already so lapsed); (B) upon a Change in Control,
coupled with a Change in Status of a Participant, the
Restrictions shall lapse with respect to all Restricted
Stock Awards held by such Participant who is an employee
or director of the Company (or a subsidiary) (if not
already so lapsed); and (C) in the event of an accelerated
lapse of Restrictions due to a Change in Control and a
Change in Status, Participants who are subject to Section
16(b) of the Exchange Act may not sell the shares of Stock
whose Restrictions have so lapsed within six months of the
Grant Date of the Restricted Stock Award pursuant to which
such Stock was received. The "Restricted Period" as to any
shares constituting part of a Restricted Stock Award shall
be the period of time commencing with the Grant Date of a
Restricted Stock Award and ending with the date on which
the Restrictions lapse with respect to any such shares, or
any portion thereof.
(c) In the event that the acceleration of (i) the exercisability
of an Option or (ii) the lapse of Restrictions relating to
Restricted Stock upon a Change in Control and a Change in Status
results in excise tax pursuant to Section 4999 of the Code, or
any successor or similar provision thereto, or comparable state
or local tax laws, the Company shall pay to the Participant such
additional compensation as is necessary (after taking into
account all Federal, state and local income and excise taxes
payable by the Participant as a result of the receipt of such
compensation ) to place the Participant in the same after-tax
position he would have been in had no such excise tax (or any
interest or penalties thereon) been paid or incurred. The amount
of such payment shall be determined by the independent accounting
firm serving as the Company's outside auditor immediately prior
to the Change in Control.
5. EXERCISE OF OPTIONS.
(a) The Exercise Price of the shares purchasable under an Option
shall be the Fair Market Value per share on the Grant Date of
such Option, subject to subsequent adjustment pursuant to the
provisions of Section 9.
(b) Options shall be considered exercised (herein the "Exercise
Date") on the date written notice, in such form as the Committee
may prescribe, is received by the Option Plan Administrator of
the Company, advising of the exercise of an Option and either
transmitting payment of the total Exercise Price for the number
of shares of Stock involved or electing one of the alternative
payment procedures set forth in Section 5(c) below.
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(c) The Exercise Price shall be paid in cash (including cash
obtained through a margin loan on the shares as to which the
Option is being exercised) or (and provided (x) the use of the
following procedure by a Participant would comply with safeguards
established by the Committee designed to avoid "short-swing"
profits to the Participant under Section 16(b) of the Exchange
Act, and (y) does not otherwise violate any applicable laws)
through (i) a broker-assisted cashless exercise program
established by the Committee, based on the actual proceeds from
the sale of share of Stock; or (ii) in shares of Stock, valued on
the basis of the closing market price of the Stock on the
Exercise Date.
(d) Subject to the provisions of Section 6 and the other
provisions of the Plan, the Stock Option Agreement and the
Option, the Company shall issue shares of Stock in the
Participant's name as soon as practicable (but in no event later
than 30 days) after the Exercise Date. The Participant shall not
be deemed to be a holder of any shares pursuant to an Option, and
shall not have any rights as a stockholder in connection with
such shares, until the date of transfer of shares of Stock to the
Participant. The Company shall have no liability of any nature
whatsoever to any Participant by reason of any change in the
market price of the Stock during the period of time between the
Exercise Date and the date on which any shares of Stock resulting
from the exercise are issued or sold.
6. RESTRICTIONS.
(a) Notwithstanding any other provision of the Plan, an Option or
Restricted Stock Award to the contrary, no Option shall be
exercised, and the Company shall not be obligated to issue or
transfer shares of Stock under any Option or Restricted Stock
Award, until the Company shall have received such assurances as
the Company may reasonably request from its counsel that the
exercise of the Option and the issuance and transfer of shares
pursuant to the Option or Restricted Stock Award will not violate
the Securities Act of 1933, as amended, or any other applicable
Federal or state laws. In connection with any such issuance or
transfer, the Participant shall, if requested by the Company,
give assurances satisfactory to counsel to the Company, in
respect of the Participant's investment intent or such other
matters as counsel to the Company may deem necessary or desirable
to assure compliance with all applicable legal requirements.
(b) No provisions of the Plan or any Option or Restricted Stock Award
shall be interpreted or construed to obligate the Company to
register any Stock under Federal or state law.
(c) The Company and the Committee reserve the right to
investigate at any time the circumstances surrounding any
exercise of Options, including any investigation regarding
whether a Participant is in compliance with the provisions of
Section 13 hereof (or has threatened or is reasonably believed to
intend to violate the provisions of Section 13 hereof), and the
Company and the Committee shall have no liability or
responsibility to any Participant for any alleged damage
sustained by the Participant by reason of any delay in the
implementation of an Option exercise during the pendency of any
such investigation, whether by reason of any change in the market
price of the Stock or otherwise.
(d) Notwithstanding any other provision hereof, the Committee shall
have the right at any time to deny or delay a Participant's
exercise Options if such Participant is reasonably believed by
the Committee (i) to be engaged in material conduct adversely
affecting the Company or (ii) to be
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contemplating such conduct, unless and until the Committee shall
have received reasonable assurance that the Participant is not
engaged in, and is not contemplating, such material conduct
adverse to the interests of the Company.
(e) Participants are and at all times shall remain subject to the
trading window policies adopted by the Company from time to time
throughout the period of time during which they may exercise
Options or sell Restricted Stock granted pursuant to the Plan.
Participants may request at any time a copy of any calendar of
scheduled open windows by contacting the Option Plan
Administrator.
7. FAIR MARKET VALUE.
(a) During any period that the Company's Stock is Actively Traded, Fair
Market Value shall equal the arithmetic average of the closing prices of
a share of Stock on the exchange or national market system on which the
Stock is traded, for the last twenty market trading days prior to the
date of determination of Fair Market Value, or pursuant to such other
method as the Committee may reasonably specify for determining the
Stock's Fair Market Value.
(b) During any period during which the Company's Stock is not Actively
Traded, Fair Market Value shall be determined by the Committee.
8. TERM.
This Amended and Restated Plan shall be effective as of the date set
forth on the first page hereof. No Option or Restricted Stock Award
shall be granted under the Plan after February 12, 2006, but the Plan
shall continue in effect thereafter with respect to any previously
granted Options and Restricted Stock Awards that remain outstanding and
the duration of any such grant or award shall not be affected by the
expiration of the Plan.
9. ADJUSTMENTS.
In the event that any recapitalization, or reclassification, split-up or
consolidation of shares of Stock shall be effected, or the outstanding
shares of Stock shall, in connection with a merger or consolidation of
the Company or a transaction or series of related transactions that
results in the sale of all or substantially all of the Company's assets,
be exchanged for a different number or class of shares of stock or other
securities or property of the Company or any other Person, or a record
date or dates for determination of holders of Stock entitled to receive
a dividend payable in stock or a liquidating dividend (or series of
dividends) shall occur, equitable and proportional adjustments aimed at
preventing the inequitable enlargement or dilution of any rights
hereunder shall be made to (i) the number and class of shares or other
securities or property that may be issued or transferred pursuant to the
Plan and any outstanding Options and Restricted Stock Awards and (ii)
the Exercise Price to be paid per share under any outstanding Options;
PROVIDED, HOWEVER, that in the event of a merger or consolidation of the
Company, or similar transaction pursuant to which the outstanding Stock
is exchanged for cash or other property, the unexercised Options shall
thereafter be exercisable for, and the Restricted Stock Awards shall
entitle the Participant to receive, the cash or other property which an
Option or Restricted Stock Award holder, as the case may be, would have
been entitled to receive had the Options been exercised, or the
Restrictions relating to the Restricted Stock Award lapsed, immediately
prior to the record date for such merger, consolidation or similar
transaction except to the extent that provision is made in writing in
connection with such transaction for (1) the assumption of the Options
by, or the substitution for the Options of new options covering the
stock of, a successor acquiring
7
corporation, in each case providing terms no less favorable to
the holder of such Options than would an assumption or
substitution described in Treasury Regulation ss.1.425-1(a) that
would not constitute a "modification" for purposes of Code
ss.424(a), and (2) the substitution for Restricted Stock Awards
of stock of a successor or acquiring corporation having terms no
less favorable to the holder thereof than the terms of the
Restricted Stock Award in effect before such transaction.
10. ADMINISTRATION.
(a) The Plan shall be administered by the Committee. The
Committee shall, subject to the provisions of the Plan, have full
power and authority to administer the Plan, to select the
Participants in the Plan, and, except for grants and awards which
are automatically made to Outside Directors as provided pursuant
to Section 3 of the Plan, to determine the number of shares to be
made subject to each Option and Restricted Stock Award and all
terms and conditions of each Option and Restricted Stock Award.
The Committee shall have the power to interpret the Plan and to
adopt such rules for the administration, interpretation and
application of the Plan as are consistent therewith and to
interpret, amend or revoke any such rules. All actions taken and
all interpretations and determinations made by the Committee
shall be final and binding upon all Participants, the Company and
all other interested persons, absent a determination by a court
of competent jurisdiction that the Committee has acted in bad
faith or has engaged in reckless or willful misconduct.
(b) Members of the Committee and the Board and officers administering
this Plan shall be fully protected in taking actions under the
Plan or in relying upon the advice of counsel and shall incur no
liability except for bad faith, recklessness or willful
misconduct in the performance of their duties.
(c) Except as required by Rule 16b-3 with respect to grants of
Options to individuals who are subject to Section 16 of the
Exchange Act, or as otherwise required for compliance with Rule
16b-3 or other applicable law, the Committee may delegate all or
any part of its authority under the Plan to an employee,
employees or committee of employees.
(d) To the extent the Committee deems it necessary, appropriate or
desirable to comply with foreign law or practices and to further
the purpose of the Plan, the Committee may, without amending this
Plan, establish special rules applicable to Options granted to
Participants who are foreign nationals, are employed outside the
United States, or both, including rules that differ from those
set forth in the Plan, and grant Options to such Participants in
accordance with those rules.
(e) Determinations by the Committee under the Plan relating to the
form, amount and terms and conditions of grants and awards need
not be uniform, and may be made selectively among persons who
receive or are eligible to receive grants and awards under the
Plan, whether or not such persons are similarly situated.
11. GENERAL PROVISIONS.
(a) Nothing in this Plan or in any instrument executed pursuant
hereto shall confer upon any Person any right to continue in the
employment or other service of the Company (or any subsidiary),
or shall affect the right of the Company (or any subsidiary) to
terminate the employment or other service of any person at any
time with or without Cause.
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(b) The Company may make appropriate provisions for the
withholding of any taxes which the Company determines it is
required to withhold in connection with any Option or Restricted
Stock Award including, at the request of a Participant and
provided that it does not violate any applicable laws, the
payment of such withholding taxes through a broker-assisted sale
of a sufficient number of shares underlying the Option or subject
to the Restricted Stock Award or by delivery to the Company of
shares of Stock previously owned by the Participant, in either
case having an actual sale price equal to the amount of such
taxes. Notwithstanding the foregoing, a Participant whose
transactions in Stock are subject to Section 16(b) of the
Exchange Act may make a share withholding election only if it
complies with safeguards established by the Committee designed to
avoid "short swing" profits to the Participant under Section
16(b) of the Exchange Act. The certificates evidencing a
Restricted Stock Award made to an Outside Director pursuant to
Section 3(c) hereof shall be automatically reduced by 28% to
provide for the estimated Federal income tax payment obligation
of the Outside Director, or by such other higher percentage as
may be required by law to be withheld, with the Company remitting
to the appropriate tax authorities the fair market value of the
Restricted Stock Award for which the certificates are not so
delivered.
(c) By accepting any benefits under the Plan, each Participant,
and each Person claiming under or through the Participant, shall
be conclusively deemed to have indicated acceptance and
ratification of, and consent to, all provisions of the Plan. Each
Participant hereby further agrees that amendments and
modifications to the Plan, which may be adopted from time to time
by the Committee and/or the Board of the Corporation (as set
forth in Section 12 hereof), shall be binding upon such
Participant and upon all Options or Restricted Stock which the
Participant may hold, including (with retroactive effect) Options
or Restricted Stock previously granted to the Participant, except
to the extent set forth in Section 12 hereof.
(d) With respect to Participants subject to Section 16 of the
Exchange Act, transactions under the Plan are intended to comply
with all applicable provisions of Rule 16b-3 or its successor. To
the extent any provision the Plan or action by the Plan
administrators fails to so comply, it shall be deemed null and
void, to the extent permitted by law and deemed advisable by the
Committee.
(e) A Participant shall have no rights as a stockholder of the
Company with respect to any Shares to be issued upon exercise of
an Option until such Participant has exercised such Option and
becomes a holder of such Shares.
12. AMENDMENTS; MODIFICATION AND TERMINATION.
This Plan may be amended or modified by the Committee, with ratification
by the Board, or terminated by the Board, at any time and in any
respect, except that no amendment shall be made without the approval of
the shareholders of the Company if shareholder approval would be
required by Rule 16b-3 under the Exchange Act or any other law or rule
of any governmental authority, stock exchange or other self-regulatory
organization to which the Company is subject. No such amendment,
modification or termination shall have effect to reduce the number of
shares as to which any Option or Restricted Stock Award previously has
been granted to a Participant; to extend the vesting schedule with
respect to any Option or Restricted Stock Award or to extend the period
of non-competition or confidentiality as set forth in Section 13 hereof.
In the event of the passage of any law, rule or regulation or a
determination by any regulatory agency or court, requiring an adverse
change in the Company's accounting or tax treatment relating to the
9
Plan, the Committee shall have the right to modify the terms of
outstanding Options and Restricted Stock Awards to the extent
necessary to avoid the adverse consequences of such change.
13. CONFIDENTIALITY AND NON-COMPETITION; CONDUCT NOT IN THE INTEREST OF THE
CORPORATION.
By accepting Options or Restricted Stock Awards under the Plan and as a
condition to the exercise of Options and the enjoyment of any of the
benefits of the Plan, each Participant agrees as follows:
(a) CONFIDENTIALITY -- During the period of each
Participant's employment or service as a director with the
Company (or the Participant's engaging in any other
activity with or for the Company) and for a two year
period thereafter, each Participant shall treat and
safeguard as confidential and secret all Confidential
Information received by such Participant at any time.
Without the prior written consent of the Company, except
as required by law, such Participant will not disclose or
reveal any Confidential Information to any third party
whatsoever or use the same in any manner except in
connection with the businesses of the Company and its
subsidiaries. In the event that a Participant is requested
or required (by oral questions, interrogatories, requests
for information or documents, subpoena, civil
investigative demand or other process) to disclose (i) any
Confidential Information or (ii) any information relating
to his opinion, judgment or recommendations concerning the
Company or its subsidiaries as developed from the
Confidential Information, Participant will provide the
Company with prompt written notice of any such request or
requirement so that the Company may seek an appropriate
protective order or waive compliance with the provisions
contained herein. If, failing the entry of a protective
order or the receipt of a waiver hereunder, Participant
is, in the reasonable opinion of his counsel, compelled to
disclose Confidential Information, Participant shall
disclose only that portion of the Confidential Information
which his counsel advises that he is compelled to disclose
and will exercise best efforts to obtain assurances that
confidential treatment will be accorded such Confidential
Information.
(b) NON-COMPETITION -- During the period of employment
with the Company or its subsidiaries of any Participant
(other than a director) compensated at a rate (including
bonuses) in excess of $75,000 per year in cash
compensation from his employment with the Company or any
of its subsidiaries (determined as of the most recently
completed fiscal year of the Company), and, for a two-year
period thereafter (the "Non-Compete Period"), each such
Participant shall not, without prior written consent of
the Committee, do, directly or indirectly, any of the
following:
(1) own, manage, control or participate in the
ownership, management, or control of, or be employed
or engaged by or otherwise affiliated or associated
with, any other corporation, partnership,
proprietorship, firm, association or other business
entity, or otherwise engage in any business which
competes with the business of the Company or any of
its subsidiaries (as such business is conducted
during the term of such Participant's employment
with the Company or its subsidiaries) in the
geographical regions in which such business is
conducted; PROVIDED, HOWEVER, that the ownership of
a maximum of one percent of the outstanding stock of
any publicly traded corporation shall not violate
this covenant; or
(2) employ, solicit for employment or assist in
employing or soliciting for employment any present,
former or future employee, officer or agent of the
Company or any of its subsidiaries.
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In the event any court of competent jurisdiction should
determine that the foregoing covenant of non-competition
is not enforceable because of the extent of the
geographical area or the duration thereof, then the
Company and the affected Participant hereby petition such
court to modify the foregoing covenant to the extent, but
only to the extent, necessary to create a covenant which
is enforceable in the opinion of such court, with the
intention of the parties that the Company shall be
afforded the maximum enforceable covenant of
non-competition which may be available under the
circumstances and applicable law.
(c) Each Participant acknowledges that remedies at law for
any breach by him of this section 13 may be inadequate and
that the damages resulting from any such breach are not
readily susceptible to being measured in monetary terms.
Accordingly, each Participant acknowledges that upon his
violation of any provision of this Section 13, the Company
will be entitled to immediate injunctive relief and may
obtain an order restraining any threatened or future
breach. Each Participant further agrees, subject to the
proviso at the end of this sentence, that if he violates
any provision of this Section 13, he shall immediately
forfeit any rights and benefits under this Plan and shall
return to the Company any unexercised Options and forfeit
the rights under any Restricted Stock Awards and shall
return any shares of Stock held by such Participant
received upon exercise of any Option or the lapse of the
Restrictions relating to Restricted Stock Awards granted
hereunder, together with any proceeds from sales of any
shares of Stock received upon exercise of such Options or
the lapse of Restrictions of such Restricted Stock Awards;
PROVIDED, HOWEVER, that upon violation of subsection (b)
of this Section, the forfeiture and return provisions
contained in this sentence shall apply only to Options
which have become exercisable, and Restricted Stock, the
Restrictions with respect to which have lapsed, and in any
such case the proceeds of sales therefrom, during the two
year period immediately prior to termination of the
Participant's employment. Nothing in this Section 13 will
be deemed to limit, in any way, the remedies at law or in
equity of the Company, for a breach by Participant of any
of the provisions of this Section 13.
(d) Each Participant agrees to provide written notice of
the provisions of this Section 13 to any future employer
of Participant, and the Company expressly reserves the
right to provide such notice to the Participant's future
employer(s).
(e) If any provision or part of any provision of this
Section 13 is held for any reason to be unenforceable, (i)
the remainder of this Section 13 shall nevertheless remain
in full force and effect and (ii) such provision or part
shall be deemed to be amended in such manner as to render
such provision enforceable.
14. GOVERNING LAW.
The validity, construction and effect of the Plan and any rules relating
to the Plan shall be determined in accordance with the laws of the State
of Delaware and applicable Federal law.
15. ARBITRATION.
The Company and each Participant hereby agree that in the event of any
dispute or controversy arising with respect to the Plan, any Stock
Option Agreement, the exercise of any Option (or the disallowance of any
exercise at any time, for any reason) or any other matter relating to
Options or Restricted Stock Awards, then such dispute or controversy
shall be submitted by the parties to mandatory and binding arbitration
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before a panel of arbitrators appointed by the American Arbitration
Association ("AAA"), each of whom shall be knowledgeable in matters of
securities in general and, if possible, the administration of stock
option programs similar to the Plan. The arbitration proceedings shall
be conducted in whichever of the following cities is closest to the work
location of the affected Participant: Fort Lauderdale, Florida; Chicago,
Illinois; New York, New York; Kansas City, Missouri; Jackson,
Mississippi; Nashville, Tennessee or Atlanta, Georgia. The decision of
the Company as to which city is closest to the work location of the
Participant shall be conclusive and binding, except for manifest error.
The decision of the arbitrators shall be rendered in writing, shall be
promptly rendered after a hearing on the matter and shall be final,
conclusive and binding and may be incorporated in a final judgment
rendered by any court of competent jurisdiction.
Notwithstanding the foregoing, nothing contained herein shall preclude
the Company from seeking injunctive or other relief from any court of
competent jurisdiction to enforce the provisions of Section 13 hereof.
16. DEFINITIONS.
The following terms, when used in the Plan, shall have the meanings set
forth below:
ACTIVELY TRADED: Trading of Company Stock on the New York Stock
Exchange, the American Stock Exchange or the NASDAQ National
Market System in an average weekly volume that equals at least
0.20% of the then outstanding Company Stock for each of at least
four weeks in a row.
BENEFICIAL OWNER: With respect to any securities of the Company,
any Person who is a beneficial owner of such securities as
defined in rule 13d-3 under the Exchange Act. The Committee may
from time to time adopt interpretations or pronouncements as to
who shall be deemed to be Beneficial Owners of the Company's
outstanding voting securities as of a given date, which
interpretation shall be final and binding on all Participants,
the Company and all other interested Persons.
BOARD: The Board of Directors of the Company.
CAUSE: Any cause stated in an employment agreement between the
Company and the Participant and/or material violations of
employment agreements or the terms of this Plan, acts of
dishonesty with respect to the Company, insubordination,
divulging confidential information about the Company,
interference with the relationship between the Company and any
supplier, client, customer, similar person, or performance of any
act or omission which the Committee, in its sole discretion,
deems to be sufficiently injurious to the interest of the Company
to constitute cause.
CHANGE IN CONTROL: The occurrence of any of the following: (i) a
merger or consolidation to which the Company is a party if the
individuals and entities who were stockholders of the Company
immediately prior to the effective date of such merger or
consolidation are Beneficial Owners of less than 50% of the total
combined voting power for election of directors of the surviving
corporation following the effective date of such merger or
consolidation; or (ii) any Person becomes the Beneficial Owner in
the aggregate of securities of the Company representing 50% or
more of the total combined voting power of the Company's then
issued and outstanding securities unless such Person (or a Person
owned directly or indirectly by such Person) was the Beneficial
Owner, directly or indirectly, as of the Grant Date applicable to
the affected Participant, of more than 50% of the Company's
voting securities outstanding as of such Grant Date; or (iii)
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the sale of all or substantially all of the assets of the Company
to any person or entity that is not a wholly-owned subsidiary of
the Company; or (iv) the stockholders of the Company approve any
plan or proposal for the liquidation of the Company.
CHANGE IN STATUS: The occurrence with respect to a Participant,
of any of the following (but only if such event occurs within two
(2) years following a Change in Control): (i) any reduction in
the aggregate annual compensation paid or payable to a
Participant, or any material reduction in the aggregate benefit
coverages provided to such Participant under the Company's
standard benefit package for all employees; (ii) the assignment
to the Participant of any duties inconsistent in any material
respect with the Participant's position (including status,
offices, titles and reporting responsibilities), authorities,
duties or responsibilities as in effect immediately prior to the
date of the Change in Control; (iii) the Company's requiring the
Participant to be based at any office, facility or location other
than the office, facility or location at which the Participant
was based immediately prior to the date of the Change in Control;
(iv) if the Participant is a party to any employment agreement
with the Company, any material breach by the Company of such
agreement, or any purported termination by the Company of the
Participant's employment otherwise than as permitted by such
employment agreement; or (v) in the case of a director, the
removal of a director or the failure to nominate the director for
reelection.
CODE: Internal Revenue Code of 1986, as amended.
COMMITTEE: A committee designated by the Board consisting of not
less than two members of the Board who are "disinterested
persons," as defined in Rule 16b-3 under the Exchange Act, to
administer the Plan.
COMPANY: Sunbeam Corporation (formerly known as Sunbeam-Oster
Company, Inc.)
CONFIDENTIAL INFORMATION: Any information not generally known to
the public, including, without limiting the generality of the
foregoing, any customer lists, supplier lists, trade secrets,
invention, formulas, methods or processes, whether or not
patented or patentable, channels of distribution, business plans,
pricing policies and records, financial information of any sort
and inventory records of the Company or any affiliate (and such
other information normally understood to be confidential or
otherwise designated as such in writing by the Company or its
subsidiaries). It is not necessary, however, that any information
be formally designated as "confidential" if it falls within any
of the foregoing categories and is not generally known to the
public.
DESIGNATED OTHER: Any consultant, advisor, contractor or agent of
the Company or its subsidiaries, who is not an employee, officer
or Outside Director of the Company and who is granted Options or
a Restricted Stock Award pursuant to this Plan.
EFFECTIVE DATE: January 1, 1991; Amended and Restated as of
May 15, 1996.
ERISA: Titles I and IV of the Employee Retirement Income
Security Act of 1974, as amended.
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended.
EXERCISE PRICE: The Exercise Price of shares purchasable upon
exercise of an Option, as
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determined pursuant to the terms of Section 5(a).
FAIR MARKET VALUE: The fair market value of a share of Stock, as
determined pursuant to the terms of Section 7.
GRANT DATE: The date as of which the Committee (or such other
committee of the Board of Directors of the Company as shall be
empowered to grant Options or to make awards of Restricted Stock)
shall grant Options or Restricted Stock, as the case may be, to a
Participant under the Plan, as so designated by such Committee.
IN-THE-MONEY: Options to acquire Stock are considered to be
"in-the-money" if the exercise price of the Option is less than
the current market price of the Stock.
NEXT OPTION INCREMENT: This term shall have the meaning ascribed
to it in Section 4(a)(iii).
OPTION: An option, granted under the Plan, to purchase shares of
Stock at the Exercise Price. Options granted under the Plan shall
not be incentive stock options pursuant to Section 422 of the
Code.
OPTION YEAR: This term shall have the meaning ascribed to it in
Section 4(a)(iii).
OUT-OF-THE-MONEY: Options to acquire Stock are considered to be
"out-of-the-money" if the exercise price is equal to or greater
than the current market price of the Stock.
OUTSIDE DIRECTOR: A director of the Company who is not either:
(i) an officer or employee of the Company, or (ii) a Beneficial
Owner of, or an officer or employee of any Person which is a
direct or indirect Beneficial Owner of, more than 10% of the
outstanding Stock.
PARTICIPANT: An officer, employee, Outside Director of the
Company (or a subsidiary of the Company) or Designated Other who
is granted an Option or a Restricted Stock Award under the Plan
by the Committee. Upon the death of a Participant, the
"Participant" shall be deemed to mean the Participant's estate or
legal representative.
PERSON: Any individual, corporation, partnership, association,
company, trust, joint venture or other organization or entity or
group of associated persons or entities acting in concert. As
used herein, references to the male gender shall include the
female gender or the neuter, as applicable.
PLAN: The Equity Team Plan herein set forth, as it may be amended
from time to time.
RESTRICTED PERIOD: This term shall have the meaning ascribed to
it in Section 4(b)(iii).
RESTRICTED STOCK: Shares of Stock granted pursuant to Section
3(b) or (c) of the Plan.
RESTRICTED STOCK AWARD: The grant of Shares of Restricted Stock
to a Participant pursuant to Section 3(b) or 3(c) of the Plan.
RESTRICTED STOCK AWARD AGREEMENT: The agreement described in
Section 3(e).
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RESTRICTIONS: The restrictions described in Section 4(b) relating
to Restricted Stock.
"SHARES" or "STOCK": The Common Stock, $0.01 par value per share,
of the Company, or such other class of securities as may be
applicable pursuant to the provisions of Section 9.
STOCK OPTION AGREEMENT: The agreement described in Section 3(e).
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