EXHIBIT 4.1
INTREPID TECHNOLOGY & RESOURCES, INC., AND SUBSIDIARIES
2005 STOCK INCENTIVE PLAN
ARTICLE 1.
PURPOSE AND ADOPTION OF THE PLAN
1.1. PURPOSE. The purpose of the Intrepid Technology & Resources, Inc., 2005
Stock Incentive Plan (hereinafter referred to as the "PLAN") is to assist in
attracting and retaining highly competent key employees, non-employee directors
and consultants and to act as an incentive in motivating selected key employees,
non-employee directors and consultants of Intrepid Technology & Resources, Inc.,
and its Subsidiaries (as defined below) to achieve long-term corporate
objectives.
1.2. ADOPTION AND TERM. The Plan has been approved by the Board of Directors
(hereinafter referred to as the "BOARD") of Intrepid Technology & Resources,
Inc., (hereinafter referred to as the "COMPANY"), to be effective as of the date
the Plan is approved by the Board (the "EFFECTIVE DATE). The Plan shall remain
in effect until terminated by action of the Board. The Company intends that any
grant, award or other acquisition of the Company's securities pursuant to the
Plan to any officer and/or director of the Company shall be exempt from Section
16(b) of the Exchange Act.
ARTICLE 2.
DEFINITIONS
For the purposes of this Plan, capitalized terms shall have the following
meanings:
2.1. AWARD means any grant to a Participant of Restricted Shares described in
Article VII and Performance Awards described in Article VIII.
2.2. AWARD AGREEMENT means a written agreement between the Company and a
Participant or a written notice from the Company to a Participant specifically
setting forth the terms and conditions of an Award granted under the Plan.
2.3. AWARD PERIOD means, with respect to an Award, the period of time set forth
in the Award Agreement during which specified target performance goals must be
achieved or other conditions set forth in the Award Agreement must be satisfied.
2.4. BENEFICIARY means an individual, trust or estate who or which, by a written
designation of the Participant filed with the Company or by operation of law,
succeeds to the rights and obligations of the Participant under the Plan and an
Award Agreement upon the Participant's death.
2.5. BOARD means the Board of Directors of the Company.
2.6. CHANGE IN CONTROL means, and shall be deemed to have occurred upon the
occurrence of, any one of the following events:
(a) The acquisition in one or more transactions by any individual, entity or
group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act)
(a "PERSON") of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of shares or other securities (as defined in
Section 3(a)(10) of the Exchange Act) representing 30% or more of either (i) the
Outstanding Common Stock or (ii) the Company Voting Securities; provided,
however, that a Change in Control as defined in this clause (a) shall not be
deemed to occur in connection with any acquisition by the Company, an employee
benefit plan of the Company or any Person who immediately prior to the Effective
Date is a holder of Outstanding Common Stock or
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Company Voting Securities (a "CURRENT STOCKHOLDER") so long as such acquisition
does not result in any Person other than the Company, such employee benefit plan
or such Current Stockholder beneficially owning shares or securities
representing 30% or more of either the Outstanding Common Stock or Company
Voting Securities; or
(b) Any election has occurred of persons as directors of the Company that causes
two-thirds or more of the Board to consist of persons other than (i) persons who
were members of the Board on the Effective Date and (ii) persons who were
nominated by the Board for election as members of the Board at a time when at
least two-thirds of the Board consisted of persons who were members of the Board
on the Effective Date; provided, however, that any person nominated for election
by the Board when at least two-thirds of the members of the Board are persons
described in subclause (i) or (ii) and persons who were themselves previously
nominated in accordance with this clause (b) shall, for this purpose, be deemed
to have been nominated by a Board composed of persons described in subclause
(ii); or
(c) Consummation by the Company of a reorganization, merger, consolidation or
similar transaction (a "REORGANIZATION TRANSACTION"), in each case, unless,
immediately following such Reorganization Transaction, more than 50% of,
respectively, the outstanding shares of common stock (or similar equity
security) of the corporation or other entity resulting from or surviving such
Reorganization Transaction and the combined voting power of the securities of
such corporation or other entity entitled to vote generally in the election of
directors, is then beneficially owned, directly or indirectly, by the
individuals and entities who were the respective beneficial owners of the
Outstanding Common Stock and the Company Voting Securities immediately prior to
such Reorganization Transaction in substantially the same proportions as their
ownership of the Outstanding Common Stock and Company Voting Securities
immediately prior to such Reorganization Transaction; or
(d) Consummation by the Company of (i) a complete liquidation or dissolution of
the Company or (ii) the sale or other disposition of all or substantially all of
the assets of the Company to a corporation or other entity, unless, with respect
to such corporation or other entity, immediately following such sale or other
disposition more than 50% of, respectively, the outstanding shares of common
stock (or similar equity security) of such corporation or other entity and the
combined voting power of the securities of such corporation or other entity
entitled to vote generally in the election of directors, is then beneficially
owned, directly or indirectly, by the individuals and entities who were the
respective beneficial owners of the Outstanding Common Stock and the Company
Voting Securities immediately prior to such sale or disposition in substantially
the same proportions as their ownership of the Outstanding Common Stock and
Company Voting Securities immediately prior to such sale or disposition.
2.7. CODE means the Internal Revenue Code of 1986, as amended. References to a
section of the Code include that section and any comparable section or sections
of any future legislation that amends, supplements or supersedes said section.
2.8. COMMITTEE means the committee established in accordance with Section 3.1.
2.9. COMPANY means Intrepid Technology & Resources, Inc., an Idaho corporation,
and its successors.
2.10. COMMON STOCK means Common Stock of the Company, par value $.005 per share.
2.11. COMPANY VOTING SECURITIES means the combined voting power of all
outstanding securities of the Company entitled to vote generally in the election
of directors of the Company.
2.12. DATE OF GRANT means the date designated by the Committee as the date as of
which it grants an Award, which shall not be earlier than the date on which the
Committee approves the granting of such Award.
2.13. EFFECTIVE DATE shall have the meaning given to such term in Section 1.2.
2.14. EXCHANGE ACT means the Securities Exchange Act of 1934, as amended.
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2.15. FAIR MARKET VALUE means, as of any applicable date: (i) if the Common
Stock is listed on a national securities exchange Over the Counter Bulletin
Board, or is authorized for quotation on The Nasdaq National Market System
("NMS"), the closing price, regular way, of the Common Stock on such exchange or
NMS, or Over the Counter Bulletin Board as the case may be, on such date or if
no sale of the Common Stock shall have occurred on such date, on the next
preceding date on which there was such a reported sale; or (ii) if the Common
Stock is not listed for trading on a national securities exchange or authorized
for quotation on NMS, the closing bid price as reported by The Nasdaq SmallCap
Market or Over the Counter Bulletin Board on such date, or if no such price
shall have been reported for such date, on the next preceding date for which
such price was so reported; or (iii) if the Common Stock is not listed for
trading on a national securities exchange or authorized for quotation on NMS or
The Nasdaq SmallCap Market (if applicable), the last reported bid price
published in the "pink sheets" or displayed on the National Association of
Securities Dealers, Inc. ("NASD") Electronic Bulletin Board, as the case may be;
or (iv) if the Common Stock is not listed for trading on a national securities
exchange, is not authorized for quotation on NMS or The Nasdaq SmallCap Market
and is not published in the "pink sheets" or displayed on the NASD Electronic
Bulletin Board, the fair market value of the Common Stock as determined in good
faith by the Committee.
2.16. MERGER means any merger, reorganization, consolidation, share exchange,
transfer of assets or other transaction having similar effect involving the
Company.
2.17. NON-EMPLOYEE DIRECTOR means a member of the Board who (i) is not currently
an officer or otherwise employed by the Company or a parent or a subsidiary of
the Company, (ii) does not receive compensation directly or indirectly from the
Company or a parent or a subsidiary of the Company for services rendered as a
consultant or in any capacity other than as a director, except for an amount for
which disclosure would not be required pursuant to Item 404(a) of Regulation
S-K, (iii) does not possess an interest in any other transaction for which
disclosure would be required pursuant to Item 404(a) of Regulation S-K, (iv) is
not engaged in a business relationship for which disclosure would be required
pursuant to Item 404(b) of Regulation S-K, and (v) qualifies as "Outside
Director" pursuant to Section 162(m) of the Code.
2.18. OUTSTANDING COMMON STOCK means, at any time, the issued and outstanding
shares of Common Stock.
2.19. PARTICIPANT means a person designated to receive an Award under the Plan
in accordance with Section 5.1.
2.20. PERFORMANCE AWARDS means Awards granted in accordance with Article VIII.
2.21. PLAN means the Intrepid Technology & Resources, Inc., 2005 Stock Incentive
Plan as described herein, as the same may be amended from time to time.
2.22. RESTRICTED SHARES means Common Stock subject to restrictions imposed in
connection with Awards granted under Article VII.
2.23. RETIREMENT means early or normal retirement under a pension plan or
arrangement of the Company or one of its Subsidiaries in which the Participant
participates.
2.24. SUBSIDIARY means a subsidiary of the Company within the meaning of Section
424(f) of the Code.
2.25. TERMINATION OF EMPLOYMENT means the voluntary or involuntary termination
of a Participant's employment with the Company or a Subsidiary for any reason,
including death, disability, and retirement or as the result of the divestiture
of the Participant's employer or any similar transaction in which the
Participant's employer ceases to be the Company or one of its Subsidiaries.
Whether entering military or other government service shall constitute
Termination of Employment, or whether a Termination of Employment shall occur as
a result of disability, shall be determined in each case by the Committee in its
sole discretion. In the case of a consultant who is not an employee of the
Company or a Subsidiary, Termination of Employment shall mean voluntary or
involuntary
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termination of the consulting relationship for any reason. In the case of a
Non-Employee Director, Termination of Employment shall mean voluntary or
involuntary termination, non-election, removal or other act, which results in
such Non-Employee Director no longer serving in such capacity.
ARTICLE 3.
ADMINISTRATION
3.1. COMMITTEE. The Plan shall be administered by a committee of the Board (the
"COMMITTEE") comprised of at least two Non-Employee Directors. The Committee
shall have exclusive and final authority in each determination, interpretation
or other action affecting the Plan and its Participants. The Committee shall
have the sole discretionary authority to interpret the Plan, to establish and
modify administrative rules for the Plan, to impose such conditions and
restrictions on Awards as it determines appropriate, and to take such steps in
connection with the Plan and Awards granted hereunder as it may deem necessary
or advisable. The Committee may, subject to compliance with applicable legal
requirements, with respect to Participants who are not subject to Section 16(b)
of the Exchange Act, delegate such of its powers and authority under the Plan as
it deems appropriate to designated officers or employees of the Company. In
addition, the Board may exercise any of the authority conferred upon the
Committee hereunder. In the event of any such delegation of authority or
exercise of authority by the Board, references in the Plan to the Committee
shall be deemed to refer to the delegate of the Committee or the Board, as the
case may be.
ARTICLE 4.
SHARES
4.1. NUMBER OF SHARES ISSUABLE. The total number of shares initially authorized
to be issued under the Plan shall be 1,000,000 shares of Common Stock and are
subject to adjustment pursuant to the terms of Section 8.7. The number of shares
available for issuance under the Plan shall be subject to adjustment in
accordance with Section 8.7. The shares to be offered under the Plan shall be
authorized and unissued shares of Common Stock, or issued shares of Common
Stock, which will have been reacquired by the Company.
4.2. SHARES SUBJECT TO TERMINATED AWARDS. Shares of Common Stock forfeited as
provided in Section 6.2(a) and shares of Common Stock subject to any Award that
are otherwise surrendered by a Participant may be subject to new Awards under
the Plan.
ARTICLE 5.
PARTICIPATION
5.1. ELIGIBLE PARTICIPANTS. Participants in the Plan shall be such key
employees, non-employee directors and consultants of the Company and its
Subsidiaries, whether or not members of the Board, as the Committee, in its sole
discretion, may designate from time to time. The Committee's designation of a
Participant in any year shall not require the Committee to designate such person
to receive Awards in any other year. The designation of a Participant to receive
an Award under one portion of the Plan does not require the Committee to include
such Participant under other portions of the Plan. The Committee shall consider
such factors as it deems pertinent in selecting Participants and in determining
the types and amounts of their respective Awards.
ARTICLE 6.
RESTRICTED SHARES
6.1. RESTRICTED SHARE AWARDS. The Committee may grant to any Participant an
Award of such number of shares of Common Stock on such terms, conditions and
restrictions, whether based on performance standards, periods of service,
retention by the Participant of ownership of purchased or designated shares of
Common Stock or other criteria, as the Committee shall establish. With respect
to performance-based Awards of Restricted Shares intended to qualify for
deductibility under Section 162(m) of the Code, performance targets will include
specified levels of one or more of operating income, return or investment,
return on stockholders' equity, earnings before
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interest, taxes, depreciation and amortization and/or earnings per share. The
terms of any Restricted Share Award granted under this Plan shall be set forth
in an Award Agreement which shall contain provisions determined by the Committee
and not inconsistent with this Plan.
(A) ISSUANCE OF RESTRICTED SHARES. As soon as practicable after the Date of
Grant of a Restricted Share Award by the Committee, the Company shall cause to
be transferred on the books of the Company or its agent, shares of Common Stock,
registered on behalf of the Participant, evidencing the Restricted Shares
covered by the Award, subject to forfeiture to the Company as of the Date of
Grant if an Award Agreement with respect to the Restricted Shares covered by the
Award is not duly executed by the Participant and timely returned to the
Company. All shares of Common Stock covered by Awards under this Article VII
shall be subject to the restrictions, terms and conditions contained in the Plan
and the applicable Award Agreements entered into by the appropriate
Participants. Until the lapse or release of all restrictions applicable to an
Award of Restricted Shares the share certificates representing such Restricted
Shares may be held in custody by the Company, its designee, or, if the
certificates bear a restrictive legend, by the Participant. Upon the lapse or
release of all restrictions with respect to an Award as described in Section
6.1(d), one or more share certificates, registered in the name of the
Participant, for an appropriate number of shares as provided in Section 6.1(d),
free of any restrictions set forth in the Plan and the related Award Agreement
(however subject to any restrictions that may be imposed by law) shall be
delivered to the Participant.
(B) STOCKHOLDER RIGHTS. Beginning on the Date of Grant of a Restricted Share
Award and subject to execution of the related Award Agreement as provided in
Section 6.1(a), and except as otherwise provided in such Award Agreement, the
Participant shall become a stockholder of the Company with respect to all shares
subject to the Award Agreement and shall have all of the rights of a
stockholder, including, but not limited to, the right to vote such shares and
the right to receive dividends; provided, however, that any shares of Common
Stock distributed as a dividend or otherwise with respect to any Restricted
Shares as to which the restrictions have not yet lapsed, shall be subject to the
same restrictions as such Restricted Shares and held or restricted as provided
in Section 6.1(a).
(C) RESTRICTION ON TRANSFERABILITY. None of the Restricted Shares may be
assigned or transferred (other than by will or the laws of descent and
distribution or to an inter vivos trust with respect to which the Participant is
treated as the owner under Sections 671 through 677 of the Code), pledged or
sold prior to the lapse of the restrictions applicable thereto.
(D) DELIVERY OF SHARES UPON VESTING. Upon expiration or earlier termination of
the forfeiture period without a forfeiture and the satisfaction of or release
from any other conditions prescribed by the Committee, or at such earlier time
as provided under the provisions of Section 6.3, the restrictions applicable to
the Restricted Shares shall lapse. As promptly as administratively feasible
thereafter, subject to the requirements of Section 8.5, the Company shall
deliver to the Participant or, in case of the Participant's death, to the
Participant's Beneficiary, one or more share certificates for the appropriate
number of shares of Common Stock, free of all such restrictions, except for any
restrictions that may be imposed by law.
6.2. TERMS OF RESTRICTED SHARES.
(A) FORFEITURE OF RESTRICTED SHARES. Subject to Sections 6.2(b) and 6.3,
Restricted Shares shall be forfeited and returned to the Company and all rights
of the Participant with respect to such Restricted Shares shall terminate unless
the Participant continues in the service of the Company or a Subsidiary as an
employee until the expiration of the forfeiture period for such Restricted
Shares and satisfies any and all other conditions set forth in the Award
Agreement. The Committee shall determine the forfeiture period (which may, but
need not, lapse in installments) and any other terms and conditions applicable
with respect to any Restricted Share Award.
(B) WAIVER OF FORFEITURE PERIOD. Notwithstanding anything contained in this
Article VII to the contrary, the Committee may, in its sole discretion, waive
the forfeiture period and any other conditions set forth in any Award Agreement
under appropriate circumstances (including the death, disability or Retirement
of the Participant or a material change in circumstances arising after the date
of an Award) and subject to such terms and conditions (including forfeiture of a
proportionate number of the Restricted Shares) as the Committee shall deem
appropriate.
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6.3. CHANGE IN CONTROL. Unless otherwise provided by the Committee in the
applicable Award Agreement, in the event of a Change in Control, all
restrictions applicable to the Restricted Share Award shall terminate fully and
the Participant shall immediately have the right to the delivery of share
certificates for such shares in accordance with Section 6.1(d).
ARTICLE 7.
PERFORMANCE AWARDS
7.1. PERFORMANCE AWARDS.
(A) AWARD PERIODS AND CALCULATIONS OF POTENTIAL INCENTIVE AMOUNTS. The Committee
may grant Performance Awards to Participants. A Performance Award shall consist
of the right to receive a payment (measured by the Fair Market Value of a
specified number of shares of Common Stock, increases in such Fair Market Value
during the Award Period and/or a fixed cash amount) contingent upon the extent
to which certain predetermined performance targets have been met during an Award
Period. Performance Awards may be made in conjunction with, or in addition to,
Restricted Share Awards made under Article VII. The Award Period shall be two or
more fiscal or calendar years as determined by the Committee. The Committee, in
its discretion and under such terms as it deems appropriate, may permit newly
eligible employees, such as those who are promoted or newly hired, to receive
Performance Awards after an Award Period has commenced.
(B) PERFORMANCE TARGETS. The performance targets may include such goals related
to the performance of the Company and/or the performance of a Participant as may
be established by the Committee in its discretion. In the case of Performance
Awards intended to qualify for deductibility under Section 162(m) of the Code,
the targets will include specified levels of one or more of operating income,
return on investment, return on stockholders' equity, earnings before interest,
taxes, depreciation and amortization and/or earnings per share. The performance
targets established by the Committee may vary for different Award Periods and
need not be the same for each Participant receiving a Performance Award in an
Award Period. Except to the extent inconsistent with the performance-based
compensation exception under Section 162(m) of the Code, in the case of
Performance Awards granted to employees to whom such section is applicable, the
Committee, in its discretion, but only under extraordinary circumstances as
determined by the Committee, may change any prior determination of performance
targets for any Award Period at any time prior to the final determination of the
value of a related Performance Award when events or transactions occur to cause
such performance targets to be an inappropriate measure of achievement
(C) EARNING PERFORMANCE AWARDS. The Committee, on or as soon as practicable
after the Date of Grant, shall prescribe a formula to determine the percentage
of the applicable Performance Award to be earned based upon the degree of
attainment of performance targets.
(D) PAYMENT OF EARNED PERFORMANCE AWARDS. Payments of earned Performance Awards
shall be made in cash or shares of Common Stock or a combination of cash and
shares of Common Stock, in the discretion of the Committee. The Committee, in
its sole discretion, may provide such terms and conditions with respect to the
payment of earned Performance Awards as it may deem desirable.
7.2. TERMS OF PERFORMANCE AWARDS.
(A) TERMINATION OF EMPLOYMENT. Unless otherwise provided below or in Section
7.3, in the case of a Participant's Termination of Employment prior to the end
of an Award Period, the Participant will not have earned any Performance Awards
for that Award Period.
(B) RETIREMENT. If a Participant's Termination of Employment is because of
Retirement prior to the end of an Award Period, the Participant will not be paid
any Performance Award, unless the Committee, in its sole and exclusive
discretion, determines that an Award should be paid. In such a case, the
Participant shall be entitled to receive a pro-rata portion of his or her Award
as determined under subsection (d) of this Section 7.2.
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(C) DEATH OR DISABILITY. If a Participant's Termination of Employment is due to
death or to disability (as determined in the sole and exclusive discretion of
the Committee) prior to the end of an Award Period, the Participant or the
Participant's personal representative shall be entitled to receive a pro-rata
share of his or her Award as determined under subsection (d) of this Section
7.2.
(D) PRO-RATA PAYMENT. The amount of any payment to be made to a Participant
whose employment is terminated by Retirement, death or disability (under the
circumstances described in subsections (b) and (c)) will be the amount
determined by multiplying (i) the amount of the Performance Award that would
have been earned through the end of the Award Period had such employment not
been terminated by (ii) a fraction, the numerator of which is the number of
whole months such Participant was employed during the Award Period, and the
denominator of which is the total number of months of the Award Period. Any such
payment made to a Participant whose employment is terminated prior to the end of
an Award Period shall be made at the end of such Award Period, unless otherwise
determined by the Committee in its sole discretion. Any partial payment
previously made or credited to a deferred account for the benefit of a
Participant in accordance with Section 7.1(d) of the Plan shall be subtracted
from the amount otherwise determined as payable as provided in this Section
7.2(d).
(E) OTHER EVENTS. Notwithstanding anything to the contrary in this Article VIII,
the Committee may, in its sole and exclusive discretion, determine to pay all or
any portion of a Performance Award to a Participant who has terminated
employment prior to the end of an Award Period under certain circumstances
(including the death, disability or Retirement of the Participant or a material
change in circumstances arising after the Date of Grant), subject to such terms
and conditions as the Committee shall deem appropriate.
7.3. CHANGE IN CONTROL. Unless otherwise provided by the Committee in the
applicable Award Agreement, in the event of a Change in Control, all Performance
Awards for all Award Periods shall immediately become fully payable to all
Participants and shall be paid to Participants within thirty (30) days after
such Change in Control.
ARTICLE 8.
TERMS APPLICABLE TO ALL AWARDS GRANTED UNDER THE PLAN
8.1. PLAN PROVISIONS CONTROL AWARD TERMS. The terms of the Plan shall govern all
Awards granted under the Plan, and in no event shall the Committee have the
power to grant any Award under the Plan the terms of which are contrary to any
of the provisions of the Plan. In the event any provision of any Award granted
under the Plan shall conflict with any term in the Plan as constituted on the
Date of Grant of such Award, the term in the Plan as constituted on the Date of
Grant of such Award shall control. Except as provided in Section 8.3 and Section
8.7, the terms of any Award granted under the Plan may not be changed after the
Date of Grant of such Award so as to materially decrease the value of the Award
without the express written approval of the holder.
8.2. AWARD AGREEMENT. No person shall have any rights under any Award granted
under the Plan unless and until the Company and the Participant to whom such
Award shall have been granted shall have executed and delivered an Award
Agreement or the Participant shall have received and acknowledged notice of the
Award authorized by the Committee expressly granting the Award to such person
and containing provisions setting forth the terms of the Award.
8.3. MODIFICATION OF AWARD AFTER GRANT. No Award granted under the Plan to a
Participant may be modified (unless such modification does not materially
decrease the value of that Award) after its Date of Grant except by express
written agreement between the Company and such Participant, provided that any
such change (a) may not be inconsistent with the terms of the Plan, and (b)
shall be approved by the Committee, provided, however, that the Committee may
modify any Award if it determines that the factual assumptions underlying the
Award were not correct when the grant was made, and the Committee determines it
is in the best interests of the Company to modify the Award.
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8.4. LIMITATION ON TRANSFER. Except as provided in Section 6.1(c) in the case of
Restricted Shares, a Participant's rights and interest under the Plan may not be
assigned or transferred other than by will or the laws of descent and
distribution and, during the lifetime of a Participant, only the Participant
personally (or the Participant's personal representative) may exercise rights
under the Plan. The Participant's Beneficiary may exercise the Participant's
rights to the extent they are exercisable under the Plan following the death of
the Participant.
8.5. TAXES. The Company shall be entitled, if the Committee deems it necessary
or desirable, to withhold (or secure payment from the Participant in lieu of
withholding) the amount of any withholding or other tax required by law to be
withheld or paid by the Company with respect to any amount payable and/or shares
issuable under such Participant's Award, and the Company may defer payment of
cash or issuance of shares upon exercise or vesting of an Award unless
indemnified to its satisfaction against any liability for any such tax. The
amount of such withholding or tax payment shall be determined by the Committee
and shall be payable by the Participant at such time as the Committee determines
in accordance with the following rules:
(a) The Participant shall have the right to elect to meet his or her withholding
requirement (i) by having withheld from such Award at the appropriate time that
number of shares of Common Stock, rounded up to the next whole share, the Fair
Market Value of which is equal to the amount of withholding taxes due, (ii) by
direct payment to the Company in cash of the amount of any taxes required to be
withheld with respect to such Award or (iii) by a combination of withholding
such shares and paying cash.
(b) The Committee shall have the discretion as to any Award to cause the Company
to pay to tax authorities for the benefit of the applicable Participant, or to
reimburse such Participant for, the individual taxes which are due on the grant,
exercise or vesting of any Award or the lapse of any restriction on any Award
(whether by reason of such Participant's filing of an election under Section
83(b) of the Code or otherwise), including, but not limited to, Federal income
tax, state income tax, local income tax and excise tax under Section 4999 of the
Code, as well as for any such taxes as may be imposed upon such tax payment or
reimbursement.
(c) In the case of Participants who are subject to Section 16 of the Exchange
Act, the Committee may impose such limitations and restrictions as it deems
necessary or appropriate with respect to the delivery or withholding of shares
of Common Stock to meet tax withholding obligations.
8.6. SURRENDER OF AWARDS. Any Award granted under the Plan may be surrendered to
the Company for cancellation on such terms as the Committee and the Participant
approve.
8.7. ADJUSTMENTS TO REFLECT CAPITAL CHANGES.
(A) RECAPITALIZATION. The number and kind of shares subject to outstanding
Awards, the Purchase Price or Exercise Price for such shares, the number and
kind of shares available for Awards subsequently granted under the Plan and the
maximum number of shares in respect of which Awards can be made to any
Participant in any calendar year shall be appropriately adjusted to reflect any
stock dividend, stock split, combination or exchange of shares, merger,
consolidation or other change in capitalization with a similar substantive
effect upon the Plan or the Awards granted under the Plan. The Committee shall
have the power and sole discretion to determine the amount of the adjustment to
be made in each case.
(B) MERGER. After any Merger in which the Company is the surviving corporation,
each Participant shall, at no additional cost, be entitled upon receipt of any
Award to receive (subject to any required action by stockholders), in lieu of
the number of shares of Common Stock receivable or exercisable pursuant to such
Award prior to such Merger, the number and class of shares or other securities
to which such Participant would have been entitled pursuant to the terms of the
Merger if, at the time of the Merger, such Participant had been the holder of
record of a number of shares of Common Stock equal to the number of shares of
Common Stock receivable or exercisable pursuant to such Award. Comparable rights
shall accrue to each Participant in the event of successive Mergers of the
character described above. In the event of a Merger in which the Company is not
the surviving corporation, the surviving, continuing, successor or purchasing
corporation, as the case may be (the "ACQUIRING CORPORATION"), will either
assume the Company's rights and obligations under outstanding Award Agreements
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or substitute awards in respect of the Acquiring Corporation's stock for
outstanding Awards, provided, however, that if the Acquiring Corporation does
not assume or substitute for such outstanding Awards, the Board shall provide
prior to the Merger that any unexercisable and/or unvested portion of the
outstanding Awards shall be immediately exercisable and vested as of a date
prior to such merger or consolidation, as the Board so determines. The exercise
and/or vesting of any Award that was permissible solely by reason of this
Section 8.7(b) shall be conditioned upon the consummation of the Merger.
8.8. NO RIGHT TO EMPLOYMENT. No employee or other person shall have any claim of
right to be granted an Award under the Plan. Neither the Plan nor any action
taken hereunder shall be construed as giving any employee any right to be
retained in the employ of the Company or any of its Subsidiaries.
8.9. AWARDS NOT INCLUDABLE FOR BENEFIT PURPOSES. Payments received by a
Participant pursuant to the provisions of the Plan shall not be included in the
determination of benefits under any pension, group insurance or other benefit
plan applicable to the Participant which is maintained by the Company or any of
its Subsidiaries, except as may be provided under the terms of such plans or
determined by the Board.
8.10. GOVERNING LAW. All determinations made and actions taken pursuant to the
Plan shall be governed by the laws of the State of Florida, other than the
conflict of law provisions thereof, and construed in accordance therewith.
8.11. NO STRICT CONSTRUCTION. No rule of strict construction shall be implied
against the Company, the Committee or any other person in the interpretation of
any of the terms of the Plan, any Award granted under the Plan or any rule or
procedure established by the Committee.
8.12. CAPTIONS. The captions (i.e., all Section headings) used in the Plan are
for convenience only, do not constitute a part of the Plan, and shall not be
deemed to limit, characterize or affect in any way any provisions of the Plan,
and all provisions of the Plan shall be construed as if no captions had been
used in the Plan.
8.13. SEVERABILITY. Whenever possible, each provision in the Plan and every
Award at any time granted under the Plan shall be interpreted in such manner as
to be effective and valid under applicable law, but if any provision of the Plan
or any Award at any time granted under the Plan shall be held to be prohibited
by or invalid under applicable law, then (a) such provision shall be deemed
amended to accomplish the objectives of the provision as originally written to
the fullest extent permitted by law and (b) all other provisions of the Plan,
such Award and every other Award at any time granted under the Plan shall remain
in full force and effect.
8.14. AMENDMENT AND TERMINATION.
(A) AMENDMENT. The Board shall have complete power and authority to amend the
Plan at any time without the authorization or approval of the Company's
stockholders, unless the amendment (i) materially increases the benefits
accruing to Participants under the Plan, (ii) materially increases the aggregate
number of securities that may be issued under the Plan or (iii) materially
modifies the requirements as to eligibility for participation in the Plan, but
in each case only to the extent then required by the Code or applicable law, or
deemed necessary or advisable by the Board. No termination or amendment of the
Plan may, without the consent of the Participant to whom any Award shall
theretofore have been granted under the Plan, materially adversely affect the
right of such individual under such Award.
(B) TERMINATION. The Board shall have the right and the power to terminate the
Plan at any time. No Award shall be granted under the Plan after the termination
of the Plan, but the termination of the Plan shall not have any other effect and
any Award outstanding at the time of the termination of the Plan may be
exercised after termination of the Plan at any time prior to the expiration date
of such Award to the same extent such Award would have been exercisable had the
Plan not been terminated.
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