Exhibit 10.1(h)
HOLLYWOOD MEDIA CORP.
2000 STOCK INCENTIVE PLAN
1. PURPOSE. The Hollywood Media Corp. 2000 Stock Incentive Plan (the
"Plan") is intended to provide incentives which will attract, retain and
motivate highly competent persons as officers and key employees of, and
consultants to, Hollywood Media Corp. (the "Company") and its subsidiaries and
affiliates, by providing them opportunities to acquire shares of the Company's
common stock, par value $.01 per share (the "Common Stock"), or to receive
monetary payments based on the value of such shares pursuant to the Benefits (as
defined below) described herein. Additionally, the Plan is intended to assist in
further aligning the interests of the Company's officers, key employees and
consultants to those of its other stockholders.
2. ADMINISTRATION.
(a) The Plan will be administered by one or more committees
(collectively, the "Committee") appointed by the Board of Directors of the
Company from among its members (which may be or include the Compensation
Committee). The Committee is authorized, subject to the provisions of the Plan,
to establish such rules and regulations as it deems necessary for the proper
administration of the Plan and to make such determinations and interpretations
and to take such action in connection with the Plan and any Benefits granted
hereunder as it deems necessary or advisable. All determinations and
interpretations made by the Committee shall be binding and conclusive on all
participants and their legal representatives. No member of the Committee and no
employee of the Company shall be liable for any act or failure to act hereunder,
except in circumstances involving his or her bad faith, gross negligence or
willful misconduct, or for any act or failure to act hereunder by any other
member or employee or by any agent to whom duties in connection with the
administration of this Plan have been delegated. The Company shall indemnify
members of the Committee and any agent of the Committee who is an employee of
the Company, a subsidiary or an affiliate against any and all liabilities or
expenses to which they may be subjected by reason of any act or failure to act
with respect to their duties on behalf of the Plan, except in circumstances
involving such person's bad faith, gross negligence or willful misconduct. In
the event that the Committee fails to meet the requirements for an exception to
the maximum compensation expense deduction limit under Section 162(m) of the
Internal Revenue Code of 1986, as amended (the "Code") then the Committee may
have its decisions ratified by the Board, to the extent necessary to meet the
requirements applicable to such exception under Section 162(m) of the Code.
(b) The Committee may delegate to one or more of its members,
or to one or more agents, such administrative duties as it may deem advisable,
and the Committee, or any person to whom it has delegated duties as aforesaid,
may employ one or more persons to render advice with respect to any
responsibility the Committee or such person may have under the Plan. The
Committee may employ such legal or other counsel, consultants and agents as it
may deem desirable for the administration of the Plan and may rely upon any
opinion or computation received from any such counsel, consultant or agent.
Expenses incurred by the Committee in the engagement of such counsel, consultant
or agent shall be paid by the Company, or the subsidiary or affiliate whose
employees have benefited from the Plan, as determined by the Committee.
3. PARTICIPANTS. Participants will consist of such officers and key
employees of, and such consultants to, the Company and its subsidiaries and
affiliates as the Committee in its sole discretion determines to be
significantly responsible for the success and future growth and profitability of
the Company and whom the Committee may designate from time to time to receive
Benefits under the Plan. Designation of a participant in any year shall not
require the Committee to designate such person to receive a Benefit in any other
year or, once designated, to receive the same type or amount of Benefit as
granted to the participant in any other year. The Committee shall consider such
factors as it deems pertinent in selecting participants and in determining the
type and amount of their respective Benefits.
4. TYPE OF BENEFITS. Benefits under the Plan may be granted in any one
or a combination of (a) Stock Options, (b) Stock Appreciation Rights, (c) Stock
Awards, (d) Performance Awards and (e) Stock Units (each as described below, and
collectively, the "Benefits"). Stock Awards, Performance Awards, and Stock Units
may, as determined by the Committee in its discretion, constitute
Performance-Based Awards, as described in Section 11 hereof. Benefits shall be
evidenced by agreements (which need not be identical) in such forms as the
Committee may from time to time approve; provided, however, that in the event of
any conflict between the provisions of the Plan and any such agreements, the
provisions of the Plan shall prevail.
5. COMMON STOCK AVAILABLE UNDER THE PLAN. The aggregate number of
shares of Common Stock that may be subject to Benefits, including Stock Options,
granted under this Plan shall be up to 1,000,000 shares of Common Stock, which
may be authorized and unissued or treasury shares, subject to any adjustments
made in accordance with Section 13 hereof. In addition, as the number of
outstanding shares of Common Stock increases from time to time (which number
shall be determined without considering as outstanding any shares of Common
Stock that are the subject of any unexercised options under this Plan or any
other option plan of the Company or any shares of Common Stock owned by the
Company or any of its subsidiaries) the number of shares of Common Stock
available for issuance under this Plan shall increase proportionately on the
first day of each fiscal quarter of the Company beginning on January 1, 2001, so
that such number shall equal the lesser of 2,000,000 shares of Common Stock
(which number is subject to adjustment in accordance with Section 13 hereof) or
five percent (5%) of the outstanding shares of Common Stock. The maximum number
of shares of Common Stock with respect to which Benefits may be granted or
measured to any individual participant under the Plan during the term of the
Plan shall not exceed 750,000; provided, however, that the maximum number of
shares of Common Stock with respect to which Stock Options and Stock
Appreciation Rights may be granted to an individual participant under the Plan
during the term of the Plan shall not exceed 750,000 (in each case subject to
adjustments made in accordance with Section 13 hereof). Any shares of Common
Stock subject to a Stock Option or Stock Appreciation Right which for any reason
is cancelled or terminated without having been exercised, any shares subject to
Stock Awards, Performance Awards or Stock Units which are forfeited, any shares
subject to Performance Awards settled in cash or any shares delivered to the
Company as part or full payment for the exercise of a Stock Option or Stock
Appreciation Right shall again be available for Benefits under the Plan. The
preceding sentence shall apply only for purposes of determining the aggregate
number of shares of Common Stock subject to Benefits; provided, however, that
shares of Common Stock that are again made available for Benefits under the
immediately preceding sentence shall nevertheless be treated as outstanding with
respect to the individual to whom Benefits relating to such shares were
originally granted for purposes of determining the maximum shares of Common
Stock that may be awarded to any individual participant under the Plan.
6. STOCK OPTIONS. Stock Options will consist of awards from the Company
that will enable the holder to purchase a number of shares of Common Stock, at
set terms. Stock Options may be "incentive stock options" ("Incentive Stock
Options"), within the meaning of Section 422 of the Code, or Stock Options which
do not constitute Incentive Stock Options ("Nonqualified Stock Options"). The
Committee will have the authority to grant to any participant one or more
Incentive Stock Options, Nonqualified Stock Options, or both types of Stock
Options (in each case with or without Stock Appreciation Rights). Each Stock
Option shall be subject to such terms and conditions consistent with the Plan as
the Committee may impose from time to time, subject to the following
limitations:
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(a) EXERCISE PRICE. Each Stock Option granted hereunder shall
have such per-share exercise price as the Committee may determine at the date of
grant; provided, however, subject to subsection (d) below, that the per-share
exercise price for Incentive Stock Options granted hereunder shall not be less
than 100% of the Fair Market Value (as defined below) of the Common Stock on the
date the Incentive Stock Option is granted.
(b) PAYMENT OF EXERCISE PRICE. The option exercise price may
be paid in cash or, in the discretion of the Committee, by the delivery of
shares of Common Stock of the Company then owned by the participant, or by
delivery to the Company of (x) irrevocable instructions to deliver directly to a
broker the stock certificates representing the shares for which the Option is
being exercised, and (y) irrevocable instructions to such broker to sell such
shares for which the Option is being exercised, and promptly deliver to the
Company the portion of the proceeds equal to the Option exercise price and any
amount necessary to satisfy the Company's obligation for withholding taxes, or
any combination thereof. For purposes of making payment in shares of Common
Stock, such shares shall be valued at their Fair Market Value on the date of
exercise of the Option and shall have been held by the Participant for at least
six months. To facilitate the foregoing, the Company may enter into agreements
for coordinated procedures with one or more brokerage firms. The Committee may
prescribe any other method of paying the exercise price that it determines to be
consistent with applicable law and the purpose of the Plan, including, without
limitation, in lieu of the exercise of a Stock Option by delivery of shares of
Common Stock of the Company then owned by a participant, providing the Company
with a notarized statement attesting to the number of shares owned, where upon
verification by the Company, the Company would issue to the participant only the
number of incremental shares to which the participant is entitled upon exercise
of the Stock Option.
(c) EXERCISE PERIOD. Stock Options granted under the Plan
shall be exercisable at such time or times and subject to such terms and
conditions as shall be determined by the Committee; provided, however, that no
Stock Option shall be exercisable later than ten years after the date it is
granted except in the event of a participant's death, in which case, the
exercise period of such participant's Stock Options may be extended beyond such
period but no later than one year after the participant's death. All Stock
Options shall terminate at such earlier times and upon such conditions or
circumstances as the Committee shall in its discretion set forth in such option
agreement at the date of grant; provided, however, the Committee may, in its
sole discretion, later waive any such condition.
(d) LIMITATIONS ON INCENTIVE STOCK OPTIONS. Incentive Stock
Options may be granted only to participants who are employees of the Company or
one of its subsidiaries (within the meaning of Section 424(f) of the Code) at
the date of grant. The aggregate Fair Market Value (determined as of the time
the Stock Option is granted) of the Common Stock with respect to which Incentive
Stock Options are exercisable for the first time by a participant during any
calendar year (under all option plans of the Company and of any parent
corporation or subsidiary corporation (as defined in Sections 424(e) and (f) of
the Code, respectively)) shall not exceed $100,000. For purposes of the
preceding sentence, Incentive Stock Options will be taken into account in the
order in which they are granted. The per-share exercise price of an Incentive
Stock Option shall not be less than 100% of the Fair Market Value of the Common
Stock on the date of grant, and no Incentive Stock Option may be exercised later
than ten years after the date it is granted; provided, however, Incentive Stock
Options may not be granted to any participant who, at the time of grant, owns
stock possessing (after the application of the attribution rules of Section
424(d) of the Code) more than 10% of the total combined voting power of all
classes of stock of the Company or any parent or subsidiary corporation of the
Company, unless the exercise price is fixed at not less than 110% of the Fair
Market Value of the Common Stock on the date of grant and the exercise of such
option is prohibited by its terms after the expiration of five years from the
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date of grant of such option. In addition, no Incentive Stock Option may be
issued to a participant in tandem with a Nonqualified Stock Option.
(e) POST-EMPLOYMENT EXERCISES. The exercise of any Stock
Option after termination of employment of a participant with the Company, a
subsidiary of the Company or with any company providing consulting services to
the Company shall be subject to such conditions as imposed by the Committee at
the time of the grant and satisfaction of the conditions precedent that the
participant neither (i) competes with, or takes other employment with or renders
services to a competitor of, the Company, its subsidiaries or affiliates without
the written consent of the Company; provided that this clause (i) shall not
apply to consultants of the Company, nor (ii) conducts himself or herself in a
manner adversely affecting the Company; provided, however, that the Committee,
in its sole discretion, may waive any conditions imposed in the grant letter or
as set forth in (i) and (ii) above relating to the exercise of options after the
date of termination of employment during the term of the option.
7. STOCK APPRECIATION RIGHTS.
(a) The Committee may, in its discretion, grant Stock
Appreciation Rights to the holders of any Stock Options granted hereunder. In
addition, Stock Appreciation Rights may be granted independently of, and without
relation to, Stock Options. A Stock Appreciation Right means a right to receive
a payment in cash, Common Stock or a combination thereof, in an amount equal to
the excess of (x) the Fair Market Value, or other specified valuation, of a
specified number of shares of Common Stock on the date the right is exercised
over (y) the Fair Market Value, or other specified valuation (which shall be no
less than the Fair Market Value) of such shares of Common Stock on the date the
right is granted, all as determined by the Committee; provided, however, that if
a Stock Appreciation Right is granted in tandem with or in substitution for a
Stock Option, the designated Fair Market Value in the award agreement may be the
Fair Market Value on the date such Stock Option was granted. Each Stock
Appreciation Right shall be subject to such terms and conditions as the
Committee shall impose from time to time.
(b) Stock Appreciation Rights granted under the Plan shall be
exercisable at such time or times and subject to such terms and conditions as
shall be determined by the Committee; provided, however, that no Stock
Appreciation Rights shall be exercisable later than ten years after the date it
is granted except in the event of a participant's death, in which case, the
exercise period of such participant's Stock Appreciation Rights may be extended
beyond such period but no later than one year after the participant's death. All
Stock Appreciation Rights shall terminate at such earlier times and upon such
conditions or circumstances as the Committee shall in its discretion set forth
in such right at the date of grant.
(c) The exercise of any Stock Appreciation Right after
termination of employment of a participant with the Company, a subsidiary of the
Company or with any company providing consulting services to the Company shall
be subject to satisfaction of the conditions precedent that the participant
neither (i) competes with, or takes other employment with or renders services to
a competitor of, the Company, its subsidiaries or affiliates without the written
consent of the Company; provided that this clause (i) shall not apply to
consultants of the Company, nor (ii) conducts himself or herself in a manner
adversely affecting the Company; provided, however, that the Committee, in its
sole discretion, may waive any conditions imposed in the grant letter or as set
forth in (i) and (ii) above relating to the exercise of options after the date
of termination of employment during the term of the option.
8. STOCK AWARDS. The Committee may, in its discretion, grant Stock
Awards (which may include mandatory payment of bonus incentive compensation in
stock) consisting of Common Stock issued or transferred to participants with or
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without other payments therefor. Stock Awards may be subject to such terms and
conditions as the Committee determines appropriate, including, without
limitation, restrictions on the sale or other disposition of such shares, the
right of the Company to reacquire such shares for no consideration upon
termination of the participant's employment within specified periods, and may
constitute Performance-Based Awards, as described in Section 11 hereof. The
Committee may require the participant to deliver a duly signed stock power,
endorsed in blank, relating to the Common Stock covered by such an Award. The
Committee may also require that the stock certificates evidencing such shares be
held in custody or bear restrictive legends until the restrictions thereon shall
have lapsed. The Stock Award shall specify whether the participant shall have,
with respect to the shares of Common Stock subject to a Stock Award, all of the
rights of a holder of shares of Common Stock of the Company, including the right
to receive dividends and to vote the shares.
9. PERFORMANCE AWARDS.
(a) Performance Awards may be granted to participants at any
time and from time to time, as shall be determined by the Committee. Performance
Awards may constitute Performance-Based Awards, as described in Section 11
hereof. The Committee shall have complete discretion in determining the number,
amount and timing of awards granted to each participant. Such Performance Awards
may be in the form of shares of Common Stock or Stock Units. Performance Awards
may be awarded as short-term or long-term incentives. Performance targets may be
based upon, without limitation, Company-wide, divisional and/or individual
performance.
(b) With respect to those Performance Awards that are not
intended to constitute Performance-Based Awards, the Committee shall have the
authority at any time to make adjustments to performance targets for any
outstanding Performance Awards which the Committee deems necessary or desirable
unless at the time of establishment of such targets the Committee shall have
precluded its authority to make such adjustments.
(c) Payment of earned Performance Awards shall be made in
accordance with terms and conditions prescribed or authorized by the Committee.
The participant may elect to defer, or the Committee may require or permit the
deferral of, the receipt of Performance Awards upon such terms as the Committee
deems appropriate.
10. STOCK UNITS.
(a) The Committee may, in its discretion, grant Stock Units to
participants hereunder. The Committee shall determine the criteria for the
vesting of Stock Units. Stock Units may constitute Performance-Based Awards, as
described in Section 11 hereof. A Stock Unit granted by the Committee shall
provide payment in shares of Common Stock at such time as the award agreement
shall specify. Shares of Common Stock issued pursuant to this Section 10 may be
issued with or without other payments therefor as may be required by applicable
law or such other consideration as may be determined by the Committee. The
Committee shall determine whether a participant granted a Stock Unit shall be
entitled to a Dividend Equivalent Right (as defined below).
(b) Upon vesting of a Stock Unit, unless the Committee has
determined to defer payment with respect to such unit or a participant has
elected to defer payment under subsection (c) below, shares of Common Stock
representing the Stock Units shall be distributed to the participant unless the
Committee provides for the payment of the Stock Units in cash or partly in cash
and partly in shares of Common Stock equal to the value of the shares of Common
Stock which would otherwise be distributed to the participant.
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(c) Prior to the year with respect to which a Stock Unit may
vest, the participant may elect not to receive a distribution upon the vesting
of such Stock Unit and for the Company to continue to maintain the Stock Unit on
its books of account. In such event, the value of a Stock Unit shall be payable
in shares of Common Stock pursuant to the agreement of deferral.
(d) A "Stock Unit" means a notional account representing one
share of Common Stock. A "Dividend Equivalent Right" means the right to receive
the amount of any dividend paid on the share of Common Stock underlying a Stock
Unit, which shall be payable in cash or in the form of additional Stock Units.
11. PERFORMANCE-BASED AWARDS. Certain Benefits granted under the Plan
may be granted in a manner such that the Benefits qualify for the
performance-based compensation exemption of Section 162(m) of the Code
("Performance-Based Awards"). As determined by the Committee in its sole
discretion, either the granting or vesting of such Performance-Based Awards
shall be based on achievement of hurdle rates and/or growth rates in one or more
business criteria that apply to the individual participant, one or more business
units or the Company as a whole. The business criteria shall be as follows,
individually or in combination: (i) net earnings; (ii) earnings per share; (iii)
net sales growth; (iv) market share; (v) net operating profit; (vi) expense
targets; (vii) working capital targets relating to inventory and/or accounts
receivable; (viii) operating margin; (ix) return on equity; (x) return on
assets; (xi) planning accuracy (as measured by comparing planned results to
actual results); (xii) market price per share; and (xiii) total return to
stockholders. In addition, Performance-Based Awards may include comparisons to
the performance of other companies, such performance to be measured by one or
more of the foregoing business criteria. With respect to Performance-Based
Awards, (i) the Committee shall establish in writing (x) the performance goals
applicable to a given period, and such performance goals shall state, in terms
of an objective formula or standard, the method for computing the amount of
compensation payable to the participant if such performance goals are obtained
and (y) the individual employees or class of employees to which such performance
goals apply no later than 90 days after the commencement of such period (but in
no event after 25% of such period has elapsed) and (ii) no Performance-Based
Awards shall be payable to or vest with respect to, as the case may be, any
participant for a given period until the Committee certifies in writing that the
objective performance goals (and any other material terms) applicable to such
period have been satisfied. With respect to any Benefits intended to qualify as
Performance-Based Awards, after establishment of a performance goal, the
Committee shall not revise such performance goal or increase the amount of
compensation payable thereunder (as determined in accordance with Section 162(m)
of the Code) upon the attainment of such performance goal. Notwithstanding the
preceding sentence, the Committee may reduce or eliminate Benefits payable upon
the attainment of such performance goal.
12. FOREIGN LAWS. The Committee may grant Benefits to individual
participants who are subject to the tax laws of nations other than the United
States, which Benefits may have terms and conditions as determined by the
Committee as necessary to comply with applicable foreign laws. The Committee may
take any action which it deems advisable to obtain approval of such Benefits by
the appropriate foreign governmental entity; provided, however, that no such
Benefits may be granted pursuant to this Section 12 and no action may be taken
which would result in a violation of the Exchange Act, the Code or any other
applicable law.
13. ADJUSTMENT PROVISIONS; CHANGE IN CONTROL.
(a) If there shall be any change in the Common Stock of the
Company or the capitalization of the Company through merger, consolidation,
reorganization, recapitalization, stock dividend, stock split, reverse stock
split, split up, spin-off, combination of shares, exchange of shares, dividend
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in kind or other like change in capital structure or distribution (other than
normal cash dividends) to stockholders of the Company in order to prevent
dilution or enlargement of participants' rights under the Plan, the Committee,
in its sole discretion, shall adjust, in an equitable manner, as applicable, the
number and kind of shares that may be issued under the Plan, the number and kind
of shares subject to outstanding Benefits, the exercise price applicable to
outstanding Benefits, and the Fair Market Value of the Common Stock and other
value determinations applicable to outstanding Benefits; provided, however, that
any such arithmetic adjustment to a Performance-Based Award shall not cause the
amount of compensation payable thereunder to be increased from what otherwise
would have been due upon attainment of the unadjusted award. Appropriate
adjustments may also be made by the Committee in the terms of any Benefits under
the Plan to reflect such changes or distributions and to modify any other terms
of outstanding Benefits on an equitable basis, including modifications of
performance targets and changes in the length of performance periods; provided,
however, that any such arithmetic adjustment to a Performance-Based Award shall
not cause the amount of compensation payable thereunder to be increased from
what otherwise would have been due upon attainment of the unadjusted award. In
addition, other than with respect to Stock Options, Stock Appreciation Rights,
and other awards intended to constitute Performance-Based Awards, the Committee
is authorized to make adjustments to the terms and conditions of, and the
criteria included in, Benefits in recognition of unusual or nonrecurring events
affecting the Company or the financial statements of the Company, or in response
to changes in applicable laws, regulations, or accounting principles.
Notwithstanding the foregoing, (i) each such adjustment with respect to an
Incentive Stock Option shall comply with the rules of Section 424(a) of the
Code, and (ii) in no event shall any adjustment be made which would render any
Incentive Stock Option granted hereunder other than an incentive stock option
for purposes of Section 422 of the Code. The determination of the Committee as
to the foregoing adjustments, if any, shall be conclusive and binding on
participants under the Plan.
(b) Notwithstanding any other provision of this Plan, if there
is a Change in Control of the Company, all then outstanding Stock Options and
Stock Appreciation Rights shall immediately vest and become exercisable. For
purposes of this Section 14(b), a "Change in Control" of the Company shall be
deemed to have occurred upon any of the following events:
(i) the Company's Board of Directors shall approve
any merger, consolidation, or like business combination or reorganization of the
Company (which shall include a series of transactions occurring within 60 days
or occurring pursuant to a plan), that will have the result that (A) any legal
entity or person owns at least 51 percent of the voting stock of the Company or
(B) shareholders of the Company immediately before such transaction cease to own
at least 51 percent of the voting stock of the Company or of any entity that
results from the participation of the Company in the transaction, and such
transaction shall have been consummated; or
(ii) during any period of two (2) consecutive years,
the individuals who at the beginning of such period constitute the Company's
Board of Directors or any individuals who would be "Continuing Directors" (as
hereinafter defined) cease for any reason to constitute at least a majority
thereof; or
(iii) the Company's Common Stock shall cease to be
publicly traded; or
(iv) the Company's Board of Directors shall approve a
sale of all or substantially all of the assets of the Company, and such
transaction shall have been consummated.
For purposes of this Section 13(b), "Continuing Directors"
shall mean (x) the directors of the Company in office on the Effective Date (as
defined below) and (y) any successor to any such director and any additional
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director who after the Effective Date was nominated or selected by a majority of
the Continuing Directors (or the Nominating Committee of the Board of Directors
of the Company) in office at the time of his or her nomination or selection.
The Committee, in its discretion, may determine that, upon the
occurrence of a Change in Control of the Company or the other events specified
in Section 13(a), each Stock Option and Stock Appreciation Right outstanding
hereunder shall terminate within a specified number of days after notice to the
holder, and such holder shall receive, with respect to each share of Common
Stock subject to such Stock Option or Stock Appreciation Right, an amount equal
to the excess of the Fair Market Value of such shares of Common Stock
immediately prior to the occurrence of such Change in Control over the exercise
price per share of such Stock Option or Stock Appreciation Right; such amount to
be payable in cash, in one or more kinds of property (including the property, if
any, payable in the transaction) or in a combination thereof, as the Committee,
in its discretion, shall determine. The provisions contained in the preceding
sentence shall be inapplicable to a Stock Option or Stock Appreciation Right
granted within six (6) months before the occurrence of a Change in Control if
the holder of such Stock Option or Stock Appreciation Right is subject to the
reporting requirements of Section 16(a) of the Exchange Act and no exception
from liability under Section 16(b) of the Exchange Act is otherwise available to
such holder.
14. NONTRANSFERABILITY. Each Benefit granted under the Plan to a
participant shall not be transferable otherwise than by will or the laws of
descent and distribution, and shall be exercisable, during the participant's
lifetime, only by the participant. In the event of the death of a participant,
each Stock Option or Stock Appreciation Right theretofore granted to him or her
shall be exercisable during such period after his or her death as the Committee
shall in its discretion set forth in such option or right at the date of grant
and then only by the executor or administrator of the estate of the deceased
participant or the person or persons to whom the deceased participant's rights
under the Stock Option or Stock Appreciation Right shall pass by will or the
laws of descent and distribution. Notwithstanding the foregoing, at the
discretion of the Committee, an award of a Benefit other than an Incentive Stock
Option may permit the transferability of a Benefit by a participant solely to
the participant's spouse, siblings, parents, children and grandchildren or
trusts for the benefit of such persons or partnerships, corporations, limited
liability companies or other entities owned solely by such persons, including
trusts for such persons, subject to any restriction included in the award of the
Benefit.
15. OTHER PROVISIONS. The award of any Benefit under the Plan may also
be subject to such other provisions (whether or not applicable to the Benefit
awarded to any other participant) as the Committee determines appropriate,
including, without limitation, for the installment purchase of Common Stock
under Stock Options, for the installment exercise of Stock Appreciation Rights,
to assist the participant in financing the acquisition of Common Stock, for the
forfeiture of, or restrictions on resale or other disposition of, Common Stock
acquired under any form of Benefit, for the acceleration of exercisability or
vesting of Benefits in the event of a change in control of the Company, for the
payment of the value of Benefits to participants in the event of a change in
control of the Company, or to comply with federal and state securities laws, or
understandings or conditions as to the participant's employment in addition to
those specifically provided for under the Plan. The Committee shall have full
discretion to interpret and administer the Plan.
16. FAIR MARKET VALUE. For purposes of this Plan and any Benefits
awarded hereunder, Fair Market Value shall be (i) the closing price of the
Company's Common Stock on the date preceding the date of calculation (or on the
last preceding trading date if Common Stock was not traded on such date) if the
Company's Common Stock is readily tradeable on a national securities exchange or
other market system, (ii) if the Company's Common Stock is not readily
tradeable, Fair Market Value shall mean the amount determined in good faith by
the Committee as the fair market value of the Common Stock of the Company and
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(iii) in connection with a Change in Control of the Company or an event
specified in Section 13(a), the value of the consideration paid to stockholders
in connection with such Change in Control or event or if no consideration is
paid in respect thereof, the amount determined pursuant to clause (i) above.
17. WITHHOLDING. All payments or distributions of Benefits made
pursuant to the Plan shall be net of any amounts required to be withheld
pursuant to applicable federal, state and local tax withholding requirements. If
the Company proposes or is required to distribute Common Stock pursuant to the
Plan, it may require the recipient to remit to it or to the corporation that
employs such recipient an amount sufficient to satisfy such tax withholding
requirements prior to the delivery of any certificates for such Common Stock. In
lieu thereof, the Company or the employing corporation shall have the right to
withhold the amount of such taxes from any other sums due or to become due from
such corporation to the recipient as the Committee shall prescribe. The
Committee may, in its discretion and subject to such rules as it may adopt
(including any as may be required to satisfy applicable tax and/or non-tax
regulatory requirements), permit an optionee or award or right holder to pay all
or a portion of the federal, state and local withholding taxes arising in
connection with any Benefit consisting of shares of Common Stock by electing to
have the Company withhold shares of Common Stock having a Fair Market Value
equal to the amount of tax to be withheld, such tax calculated at rates required
by statute or regulation.
18. TENURE. A participant's right, if any, to continue to serve the
Company or any of its subsidiaries or affiliates as an officer, employee, or
otherwise, shall not be enlarged or otherwise affected by his or her designation
as a participant under the Plan.
19. UNFUNDED PLAN. Participants shall have no right, title, or interest
whatsoever in or to any investments which the Company may make to aid it in
meeting its obligations under the Plan. Nothing contained in the Plan, and no
action taken pursuant to its provisions, shall create or be construed to create
a trust of any kind, or a fiduciary relationship between the Company and any
participant, beneficiary, legal representative or any other person. To the
extent that any person acquires a right to receive payments from the Company
under the Plan, such right shall be no greater than the right of an unsecured
general creditor of the Company. All payments to be made hereunder shall be paid
from the general funds of the Company and no special or separate fund shall be
established and no segregation of assets shall be made to assure payment of such
amounts except as expressly set forth in the Plan. The Plan is not intended to
be subject to the Employee Retirement Income Security Act of 1974, as amended.
20. NO FRACTIONAL SHARES. No fractional shares of Common Stock shall be
issued or delivered pursuant to the Plan or any Benefit. The Committee shall
determine whether cash, or Benefits, or other property shall be issued or paid
in lieu of fractional shares or whether such fractional shares or any rights
thereto shall be forfeited or otherwise eliminated.
21. DURATION, AMENDMENT AND TERMINATION. No Benefit shall be granted
more than ten years after the Effective Date. The Committee may amend the Plan
from time to time or suspend or terminate the Plan at any time. No amendment of
the Plan may be made without approval of the stockholders of the Company if the
amendment will: (i) disqualify any Incentive Stock Options granted under the
Plan; (ii) increase the aggregate number of shares of Common Stock that may be
delivered through Stock Options under the Plan; (iii) change the types of
business criteria on which Performance-Based Awards are to be based under the
Plan; or (iv) modify the requirements as to eligibility for participation in the
Plan.
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22. GOVERNING LAW. This Plan, Benefits granted hereunder and actions
taken in connection herewith shall be governed and construed in accordance with
the laws of the State of Florida (regardless of the law that might otherwise
govern under applicable Florida principles of conflict of laws).
23. EFFECTIVE DATE.
(a) The Plan shall be effective as of November 3, 2000, the
date on which the Plan was adopted by the Board of Directors (the "Effective
Date"), provided that the Plan is approved by the stockholders of the Company at
an annual meeting, any special meeting or by written consent of stockholders of
the Company within 12 months of the Effective Date, and such approval of
stockholders shall be a condition to the right of each participant to receive
any Benefits hereunder. Any Benefits granted under the Plan prior to such
approval of stockholders shall be effective as of the date of grant (unless,
with respect to any Benefit, the Committee specifies otherwise at the time of
grant), but no such Benefit may be exercised or settled and no restrictions
relating to any Benefit may lapse prior to such stockholder approval, and if
stockholders fail to approve the Plan as specified hereunder, any such Benefit
shall be cancelled.
(b) This Plan shall terminate on November 3, 2010 (unless
sooner terminated by the Committee).
* * *
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