Exhibit 10.20
ECOS Group, Inc. 2000 Equity Compensation Plan
1. ESTABLISHMENT, EFFECTIVE DATE AND TERM
ECOS GROUP, INC., a Florida corporation ("ECOS"), hereby establishes
the "ECOS Group, Inc. 2000 Equity Participation Plan" (the "Plan"). The
effective date of the Plan shall be July 11, 2000 (the "Effective Date"), which
is the date that the Plan was approved and adopted by the Board of Directors of
ECOS (the "Board"). Unless earlier terminated pursuant to Section 18 hereof, the
Plan shall terminate on July 11, 2010.
2. PURPOSE
The purpose of the Plan is to advance the interests of ECOS by
providing Eligible Individuals (as defined in Section 3 below) with an
opportunity to acquire or increase a proprietary interest in ECOS, which thereby
will create a stronger incentive to expend maximum effort for the growth and
success of ECOS and ECOS's subsidiaries, and will encourage such individuals to
remain in the employ of ECOS or one or more of its subsidiaries.
3. ELIGIBILITY
Options (as defined in Section 6 below) or Restricted Stock (as defined
in Section 15 below) (Options and Restricted Stock are collectively referred to
as "Award(s)") may be granted under the Plan to any employee, officer, or
director (employee and non-employee directors) of the Company (as defined in
Section 6 below) as determined by the Board from time to time on the basis of
their importance to the business of ECOS (collectively, "Eligible Individuals"),
provided that Incentive Stock Options (as defined in Section 6 below) may only
be granted to employees of the Company. An individual may hold more than one
Award, subject to such restrictions as are provided herein.
4. ADMINISTRATION
(a) Board. The Plan shall be administered by the Board or
a Committee (as defined in Section 4(b)), which shall
have the full power and authority to take all
actions, and to make all determinations required or
provided for under the Plan, any Award granted, any
Option Agreement (as defined in Section 9 below) or
any Restricted Stock Agreement (as defined in Section
15 below) (Option Agreements and Restricted Stock
Agreements are collectively referred to as "Award
Agreements") entered into under the Plan and all such
other actions and determinations not inconsistent
with the specific terms and provisions of the Plan
deemed by the Board to be necessary or appropriate to
the administration of the Plan, any Award granted or
any Award Agreement entered into hereunder. The Board
may correct any defect or supply any omission or
reconcile any inconsistency in the Plan or in any
Award Agreement in the manner and to the extent it
shall deem expedient to carry the Plan into effect
and shall be the sole and final judge of such
expediency. All such actions and determinations shall
be by the affirmative vote of a majority of the
members of the Board present at a meeting at which
any issue relating to the Plan is properly raised for
consideration or without a meeting by written consent
of the Board executed in accordance with ECOS's
Articles of Incorporation and By-Laws and applicable
law. The interpretation and construction by the Board
of any provision of the Plan, any Award granted or
any Award Agreement entered into hereunder shall be
final and conclusive.
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(b) Committees. The Board may, in its discretion, from
time to time appoint one or more committees (the
"Committees"). Where appropriate, any reference to
the Board in this Plan or an Award Agreement shall
also mean such Committees as appointed by the Board.
The Board shall appoint a committee consisting of not
less than two members of the Board, none of whom
shall be an officer or other salaried employee of the
Company, and each of whom shall qualify in all
respects as a "non-employee director" and an "outside
director" as defined in Rule 16b-3 promulgated under
the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and an "outside director" for
purposes of Section 162(m) of the Code (the "Outside
Director Committee"). The Board, in its sole
discretion, may provide that the role of the
Committees shall be limited to making recommendations
to the Board concerning any determinations to be made
and actions to be taken by the Board pursuant to or
with respect to the Plan, or the Board may delegate
to the Committees such powers and authorities related
to the administration of the Plan, as set forth in
Section 4(a) above, as the Board shall determine,
consistent with the Articles of Incorporation and
By-Laws of ECOS and applicable law. The Board may
remove members, add members, and fill vacancies on
the Committees from time to time, all in accordance
with ECOS's Articles of Incorporation and By-Laws,
and with applicable law. The majority vote of a
Committee, or acts reduced to or approved in writing
by a majority of the members of a Committee, shall be
the valid acts of the Committee.
(c) No Liability. No member of the Board or of the
Committees shall be liable for any action or
determination made in good faith with respect to the
Plan, any Award granted or any Award Agreement
entered into hereunder.
(d) Delegation to the Committees. In the event that the
Plan, any Award granted or any Award Agreement
entered into hereunder provides for any action to be
taken by or determination to be made by the Board,
such action may be taken by or such determination may
be made by a Committee if the power and authority to
do so has been delegated to such Committee by the
Board as provided for in Section 4(b) above. Unless
otherwise expressly determined by the Board, any such
action or determination by a Committee shall be final
and conclusive.
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5. COMMON STOCK
The capital stock of ECOS that may be issued pursuant to Awards granted
under the Plan shall be shares of common stock, with par value of $.012 per
share, of ECOS (the "Common Stock"), which shares may be treasury shares or
authorized but unissued shares. The total number of shares of Common Stock that
may be issued pursuant to Awards granted under the Plan shall be three million
one hundred twenty-seven thousand one hundred eighty-six (3,127,186) shares,
subject to adjustment as provided in Section 19 below. If any Award expires,
terminates, or is terminated or canceled for any reason prior to exercise in
full, the shares of Common Stock that were subject to the unexercised portion of
such Award shall be available for future Awards granted under the Plan.
6. TYPE OF OPTIONS
Each stock option granted under the Plan (an "Option") may be
designated by the Board, in its sole discretion, either as (i) an "incentive
stock option" ("Incentive Stock Options") within the meaning of Section 422 of
the Internal Revenue Code of 1986, as amended from time to time (the "Code"), or
(ii) as a non-qualified stock option which is not intended to meet the
requirements of Section 422 of the Code ("Non-Qualified Stock Options");
provided, however, that Incentive Stock Options may only be granted to employees
of ECOS, any "subsidiary corporation" as defined in Section 424 of the Code (a
"Subsidiary") or any "parent corporation" as defined in Section 424 of the Code
(a "Parent") (ECOS, Parent and Subsidiary are collectively referred to as the
"Company"). In the absence of any designation, Options granted under the Plan
will be deemed to be Non-Qualified Stock Options. The Plan shall be administered
and interpreted so that all Incentive Stock Options granted under the Plan will
qualify as incentive stock options under Section 422 of the Code. Options
designated as Incentive Stock Options that fail to continue to meet the
requirements of Section 422 of the Code shall be redesignated as Non-Qualified
Stock Options automatically on the date of such failure to continue to meet such
requirements without further action by the Board.
7. GRANT OF OPTIONS
Subject to the terms and conditions of the Plan, the Board may, at any
time and from time to time, prior to the date of termination of the Plan, grant
to such Eligible Individuals as the Board may determine ("Optionees"), Options
to purchase such number of shares of Common Stock on such terms and conditions
as the Board may determine. The date on which the Board approves the grant of an
Option (or such later date as is specified by the Board) shall be considered the
date on which such Option is granted. Any Option granted to a "covered employee"
as defined in Section 162(m)(3) of the Code ("Covered Employee") shall be made
by the Outside Director Committee. The maximum number of shares of Common Stock
subject to Options that may be granted during any calendar year under the Plan
to any Covered Employee shall be one million (1,000,000).
8. LIMITATION ON INCENTIVE STOCK OPTIONS
(a) Ten Percent Stockholder. Notwithstanding any other
provision of this Plan to the contrary, no individual
may receive an Incentive Stock Option under the Plan
if such individual, at the time the Option is
granted, owns (after application of the rules
contained in Section 424(d) of the Code) stock
possessing more than ten percent (10%) of the total
combined voting power of all classes of stock of the
Company, unless (i) the purchase price for each share
of Common Stock subject to such Incentive Stock
Option is at least 110 percent (110%) of the fair
market value of a share of Common Stock on the date
of grant (determined in accordance with Section 10
below) and (ii) such Incentive Stock Option is not
exercisable after the date which is five (5) years
from the date of grant.
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(b) Limitation on Grants. The aggregate fair market value
(determined with respect to each Incentive Stock
Option at the time such Incentive Stock Option is
granted and in accordance with Section 10 below) of
the shares of Common Stock with respect to which
Incentive Stock Options are exercisable for the first
time by an individual during any calendar year (under
this Plan or any other plan of the Company) shall not
exceed $100,000. If an Incentive Stock Option is
granted pursuant to which the aggregate fair market
value of shares with respect to which it first
becomes exercisable in any calendar year by an
individual exceeds such $100,000 limitation, the
portion of such Option which is in excess of the
$100,000 limitation, and any Options issued
subsequently in the same calendar year, shall be
treated as a Non-Qualified Stock Option pursuant to
Section 422(d)(1) of the Code. In the event that an
individual is eligible to participate in any other
stock option plan of the Company which is also
intended to comply with the provisions of Section 422
of the Code, such $100,000 limitation shall apply to
the aggregate number of shares for which Incentive
Stock Options may be granted under this Plan and all
such other plans.
9. OPTION AGREEMENTS
All Options granted pursuant to the Plan shall be evidenced by written
agreements ("Option Agreements"), to be executed by ECOS and by the Optionee, in
such form or forms as the Board shall from time to time determine. Option
Agreements covering Options granted from time to time or at the same time need
not contain similar provisions; provided, however, that all such Option
Agreements shall comply with all terms of the Plan.
10. OPTION PRICE
The purchase price of each share of Common Stock subject to an Option
(the "Option Price") shall be fixed by the Board and stated in each Option
Agreement, and subject to the provisions of Section 8(a) above, shall be not
less than 100 percent (100%) of the fair market value of a share of Common Stock
on the date the Option is granted. The fair market value shall be the closing
price of a share of Common Stock on the national securities exchange on which
ECOS's Common Stock is traded on the last trading day immediately prior to the
date of grant; provided, however, that when granting Incentive Stock Options,
the Board shall determine fair market value in accordance with the provisions of
Section 422 of the Code.
11. TERM AND VESTING OF OPTIONS
(a) Option Period. Subject to the provisions of Sections
8(a) and Section 14 hereof, each Option granted under
the Plan shall terminate and all rights to purchase
shares thereunder shall cease upon the expiration of
ten (10) years from the date such Option is granted,
or on such date prior thereto as may be fixed by the
Board and stated in the Option Agreement relating to
such Option. Notwithstanding the foregoing, the Board
may in its discretion, at any time prior to the
expiration or termination of any Option, extend the
term of any such Option for such additional period as
the Board in its discretion may determine; provided,
however, that in no event shall the aggregate option
period with respect to any Option, including the
initial term of such Option and any extensions
thereof, exceed (10) years.
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(b) Vesting Each Option Agreement will specify the
vesting schedule, if any, applicable to Options.
Notwithstanding the foregoing, the Board may in its
discretion provide that any vesting requirement or
other such limitation on the exercise of an Option
may be rescinded, modified or waived by the Board, in
its sole discretion, at any time and from time to
time after the date of grant of such Option, so as to
accelerate the time at which the Option may be
exercised.
12. MANNER OF EXERCISE AND PAYMENT
(a) Exercise. An Option that is exercisable hereunder may
be exercised by delivery to ECOS on any business day,
at its principal office, addressed to the attention
of the Chief Financial Officer, of written notice of
exercise, which notice shall specify the number of
shares with respect to which the Option is being
exercised, and shall be accompanied by payment in
full of the Option Price of the shares for which the
Option is being exercised, by one or more of the
methods provided below. The minimum number of shares
of Common Stock with respect to which an Option may
be exercised, in whole or in part, at any time shall
be the lesser of one hundred (100) shares or the
maximum number of shares available for purchase under
the Option at the time of exercise.
(b) Payment. Payment of the Option Price for the shares
of Common Stock purchased pursuant to the exercise of
an Option shall be made (i) in cash or in cash
equivalents; (ii) to the extent permitted by
applicable law and agreed to by the Board in its sole
and absolute discretion, through the tender to ECOS
of shares of Common Stock, which shares shall be
valued, for purposes of determining the extent to
which the Option Price has been paid thereby, at
their fair market value (determined in the manner
described in Section 10 above) on the date of
exercise; (iii) to the extent permitted by applicable
law and agreed to by the Board in its sole and
absolute discretion, by delivering a written
direction to ECOS that the Option be exercised
pursuant to a "cashless" exercise/sale procedure
(pursuant to which funds to pay for exercise of the
Option are delivered to ECOS by a broker upon receipt
of stock certificates from ECOS) or a "cashless"
exercise/loan procedure (pursuant to which the
Optionees would obtain a margin loan from a broker to
fund the exercise) through a licensed broker
acceptable to ECOS whereby the stock certificate or
certificates for the shares of Common Stock for which
the Option is exercised will be delivered to such
broker as the agent for the individual exercising the
Option and the broker will deliver to ECOS cash (or
cash equivalents acceptable to ECOS) equal to the
Option Price for the shares of Common Stock purchased
pursuant to the exercise of the Option plus the
amount (if any) of federal and other taxes that ECOS
may, in its judgment, be required to withhold with
respect to the exercise of the Option; (iv) to the
extent permitted by applicable law and agreed to by
the Board in its sole and absolute discretion, by the
delivery of a promissory note of the Optionee to ECOS
on such terms as the Board shall specify in its sole
and absolute discretion; or (v) by a combination of
the methods described in clauses (i), (ii), (iii) and
(iv). Payment in full of the Option Price need not
accompany the written notice of exercise if the
Option is exercised pursuant to the "cashless"
exercise/sale procedure described above. An attempt
to exercise any Option granted hereunder other than
as set forth above shall be invalid and of no force
and effect.
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(c) Issuance of Certificates. Promptly after the exercise
of an Option, the individual exercising the Option
shall be entitled to the issuance of a certificate or
certificates evidencing his ownership of such shares
of Common Stock. An individual holding or exercising
an Option shall have none of the rights of a
stockholder until the shares of Common Stock covered
thereby are fully paid and issued to him and, except
as provided in Section 19 below, no adjustment shall
be made for dividends or other rights for which the
record date is prior to the date of such issuance.
13. TRANSFERABILITY OF OPTIONS
(a) Incentive Stock Options. No Incentive Stock Option
shall be assignable or transferable by the Optionee
to whom it is granted, other than by will or the laws
of descent and distribution.
(b) Non-Qualified Stock Options. Unless otherwise
permitted by the Board in its sole and absolute
discretion, no non-qualified stock option shall be
assignable or transferable by the Optionee to whom it
is granted, other than by will or the laws of descent
and distribution; provided, however, that if no
consideration is received for the transfer, an
Optionee may transfer Non-Qualified Stock Options to
the Optionee's children, spouse, grandchildren or an
entity (including a trust) established solely for the
benefit of the Optionee or the Optionee's children,
spouse or grandchildren. A Non-Qualified Stock Option
transferred pursuant to this Section shall be subject
to the terms and conditions applicable to the Option
immediately before the transfer.
14. TERMINATION OF EMPLOYMENT, DEATH, OR DISABILITY
(a) General. Unless otherwise provided in an Option
Agreement, upon the termination of the employment or
other service of an Optionee with the Company, other
than by reason of Cause (as defined below), death or
"permanent and total disability" (within the meaning
of Section 22(e)(3) of the Code) of such Optionee,
any Option granted to such Optionee which has vested
as of the date upon which the termination occurs
shall be exercisable for a period not to exceed
ninety (90) days after such termination. Upon such
termination the Optionee's unvested Options shall
expire and the Optionee shall have no further right
to purchase shares of Common Stock pursuant to such
unvested Option. Notwithstanding the provisions of
this Section 14, the Board may provide, in its
discretion, that following the termination of
employment or service of an Optionee with Company
(for any reason), an Optionee may exercise an Option,
in whole or in part, at any time subsequent to such
termination of employment or service and prior to
termination of the Option pursuant to Section 11(a)
above, either subject to or without regard to any
vesting or other limitation on exercise imposed
pursuant to Section 11(b) above. Unless otherwise
determined by the Board, temporary absence from
employment or service because of illness, vacation,
approved leaves of absence, military service and
transfer of employment shall not constitute a
termination of employment or service with the
Company.
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(b) Cause. Upon termination of the employment or other
service of an Optionee with the Company for Cause,
any Option granted to the Optionee shall expire
immediately and the Optionee shall have no further
right to purchase shares of Common Stock pursuant to
such Options. For purposes of the Plan, "Cause" means
(i) failure or refusal of the Optionee to perform the
duties and responsibilities that the Company requires
to be performed by him, (ii) gross negligence or
willful misconduct by the Optionee in the performance
of his duties, (iii) commission by the Optionee of an
act of dishonesty affecting the Company, or the
commission of an act constituting common law fraud or
a felony, or (iv) the Optionee's commission of an act
(other than the good faith exercise of his business
judgment in the exercise of his responsibilities)
resulting in material damages to the Company.
Notwithstanding the above, if an Optionee and the
Company have entered into an employment agreement
which defines the term "Cause" for purposes of such
employment agreement, "Cause" shall be defined
pursuant to the definition in such employment
agreement with respect to such Optionee's Options.
The Board shall determine whether Cause exists for
purposes of this Plan.
(c) Death or Disability. If an Optionee's employment or
service with the Company terminates by reason of
death or "permanent and total disability" (within the
meaning of Section 22(e)(3) of the Code), any Option
granted to such Optionee which has vested as of the
date upon which the termination occurs shall be
exercisable for a period not to exceed one (1) year
after such termination. Upon such termination, the
Optionee's unvested Options shall expire and the
Optionee (and his beneficiaries) shall have no
further right to purchase shares of Common Stock
pursuant to such unvested Option. In the event the
Optionee's employment is terminated by reason of
death, any vested Options held by such Optionee at
the date of such Optionee's death may be exercised,
in whole or in part, by the Optionee's estate, the
devisee named in the Optionee's valid last will and
testament or the Optionee's heir at law who inherits
the Option any portion of the Option.
15. RESTRICTED STOCK
(a) Grant of Restricted Stock. Subject to the provisions
of the Plan, the Board may, at any time and from time
to time, prior to the date of termination of the
Plan, grant to such Eligible Individuals as the Board
may determine ("Recipients"), shares of Common Stock
subject to any restrictions as the Board deems
advisable ("Restricted Stock"), in such amounts as
the Board shall determine in its sole and absolute
discretion. Each grant of Restricted Stock will
satisfy the requirements as set forth in this Section
15.
(b) Written Agreement. All Restricted Stock granted
pursuant to the Plan will be evidenced by written
agreement (a "Restricted Stock Agreement"). Each
Restricted Stock Agreement shall specify the number
of shares of Restricted Stock awarded to the
Recipient and contain such provisions as the Board
shall deem appropriate at the date the Restricted
Stock is granted. The terms of the Restricted Stock
Agreement need not be identical for different
Recipients; provided, however, that all such
Restricted Stock Agreements shall comply with all
terms of the Plan. The Restricted Stock Agreement
shall specify the period during which the applicable
restrictions apply to the Restricted Stock (the
"Period of Restriction").
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(c) Restrictions. The Board shall impose such
restrictions on any Restricted Stock granted pursuant
to this Plan as it may deem advisable including,
without limitation, vesting restrictions,
restrictions based upon the achievement of specific
Company-wide and/or individual performance goals,
and/or restrictions under applicable federal or state
securities laws, and may legend the certificate
representing Restricted Stock to give appropriate
notice of such restrictions.
(d) Transferability. Unless otherwise permitted by the
Board in its sole and absolute discretion, the
Restricted Stock granted under this Plan may not be
sold, transferred, pledged, assigned or otherwise
alienated or hypothecated until the end of the
applicable Period of Restriction established by the
Board at grant and specified in the Restricted Stock
Agreement, or upon earlier satisfaction of any other
conditions, as specified by the Board at grant and
specified in the Restricted Stock Agreement.
(e) Certificate Legend. In addition to any legends placed
on certificates pursuant to Section 15(c) above, each
certificate representing shares of Restricted Stock
granted pursuant to this Plan shall bear the
following legend:
"The sale or other transfer of the shares of stock
represented by this certificate, whether voluntary,
involuntary, or by operation of law, is subject to
certain restrictions on transfer as set forth in the
ECOS Group, Inc., 2000 Equity Participation Plan, as
amended, and in a Restricted Stock Agreement dated
_______________. A copy of the Plan and the
Restricted Stock Agreement may be obtained from the
Chief Financial Officer of ECOS."
(f) Removal of Restrictions. Except as otherwise provided
in this Section 15, shares of Restricted Stock shall
become freely transferable by the Recipient after the
last day of the Period of Restriction. Once the
shares of Restricted Stock are released from the
restrictions, the Recipient shall be entitled to have
the legend required by Section 15(e) above removed
from his share certificate.
(g) Shareholder Rights. During the Period of Restriction,
the Restricted Stock shall be treated as outstanding
and the Recipient holding shares of Restricted Stock
may exercise full voting rights with respect to such
shares and shall be entitled to receive all dividends
and other distributions paid with respect to such
shares while they are so held. If any such dividends
or distributions are paid in shares of Common Stock,
such shares shall be subject to the same restrictions
on transferability and forfeitability as the shares
of Restricted Stock with respect to which they were
paid.
(h) Death or Disability. Unless otherwise provided in a
Restricted Stock Agreement, if a Recipient's
employment or service with the Company terminates by
reason of death or "total and permanent disability"
(within the meaning of Section 22(e)(3) of the Code),
all nonvested shares of Restricted Stock held by the
Recipient shall be forfeited immediately and returned
to the Company; provided, however, that the Board may
provide, in its sole and absolute discretion, on a
case by case basis, that some or all of the
restrictions on the Recipient's shares of Restricted
Stock shall expire on the date of such termination.
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(i) Termination of Service. Unless otherwise provided in
a Restricted Stock Agreement, if the Recipient's
employment or service with the Company terminates for
any reason other than death or disability, all
nonvested shares of Restricted Stock held by the
Recipient shall be forfeited immediately and returned
to the Company; provided, however, that the Board may
provide, in its sole and absolute discretion, on a
case by case basis, that some or all of the
restrictions on the Recipient's shares of Restricted
Stock shall expire on the date of such termination.
16. USE OF PROCEEDS
The proceeds received by ECOS from the sale of Common Stock pursuant to
Options granted under the Plan shall constitute general funds of ECOS.
17. REQUIREMENTS OF LAW
(a) Violations of Law. The Company shall not be required
to sell or issue any shares of Common Stock under any
Award if the sale or issuance of such shares would
constitute a violation by the individual exercising
the Option, the Recipient or the Company of any
provisions of any law or regulation of any
governmental authority, including without limitation
any federal or state securities laws or regulations.
Any determination in this connection by the Board
shall be final, binding, and conclusive. The Company
shall not be obligated to take any affirmative action
in order to cause the exercise of an Option or the
issuance of shares pursuant thereto or the grant of
Restricted Stock to comply with any law or regulation
of any governmental authority.
(b) Registration. At the time of any exercise of any
Option or receipt of Restricted Stock, the Company
may, if it shall determine it necessary or desirable
for any reason, require the Optionee or Recipient (or
Optionee's or Recipient's heirs, legatees or legal
representative, as the case may be), as a condition
to the exercise or grant thereof, to deliver to the
Company a written representation of present intention
to purchase the shares for their own account as an
investment and not with a view to, or for sale in
connection with, the distribution of such shares,
except in compliance with applicable federal and
state securities laws with respect thereto. In the
event such representation is required to be
delivered, an appropriate legend may be placed upon
each certificate delivered to the Optionee or
Recipient (or Optionee's or Recipient's heirs,
legatees or legal representative, as the case may be)
upon his or her exercise of part or all of the Option
and a stop transfer order may be placed with the
transfer agent. Each Award shall also be subject to
the requirement that, if at any time the Company
determines, in its discretion, that the listing,
registration or qualification of the shares subject
to the Award upon any securities exchange or under
any state or federal law, or the consent or approval
of any governmental regulatory body is necessary or
desirable as a condition of or in connection with,
the issuance or purchase of the shares thereunder,
the Option may not be exercised in whole or in part
and the restrictions on the Restricted Stock may not
be removed unless such listing, registration,
qualification, consent or approval shall have been
effected or obtained free of any conditions not
acceptable to Company in its sole discretion. The
Company shall not be obligated to take any
affirmative action in order to cause the
exercisability or vesting of an Option or to cause
the exercise of an Option or the issuance of shares
pursuant thereto, or to cause the grant of Restricted
Stock to comply with any law or regulation of any
governmental authority.
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(c) Withholding. The Board may make such provisions and
take such steps as it may deem necessary or
appropriate for the withholding of any taxes that the
Company is required by any law or regulation of any
governmental authority, whether federal, state or
local, domestic or foreign, to withhold in connection
with the exercise of any Option, the grant of
Restricted Stock or the removal of restrictions on
the Restricted Stock, including, but not limited to:
(i) the withholding of delivery of shares of Common
Stock until the holder of the Option or Restricted
Stock reimburses the Company for the amount the
Company is required to withhold with respect to such
taxes, (ii) the canceling of any number of shares of
Common Stock issuable in an amount sufficient to
reimburse the Company for the amount it is required
to so withhold, (iii) withholding the amount due from
any such person's wages or compensation due to such
person, or (iv) requiring the Optionee to pay the
Company cash in the amount the Company is required to
withhold with respect to such taxes.
(d) Governing Law. This Plan shall be governed by, and
construed and enforced in accordance with, the laws
of the State of Florida.
18. AMENDMENT AND TERMINATION OF THE PLAN
The Board may, at any time and from time to time, amend, suspend or
terminate the Plan as to any shares of Common Stock as to which Awards have not
been granted; provided, however, that the approval by a majority of the votes
present and entitled to vote at a duly held meeting of the stockholders of ECOS
at which a quorum representing a majority of all outstanding voting stock is,
either in person or by proxy, present and voting on the amendment, or by written
consent in accordance with applicable state law and the Articles of
Incorporation and By-Laws of ECOS shall be required for any amendment (i) that
changes the requirements as to Eligible Individuals to receive Awards under the
Plan, (ii) that increases the maximum number of shares of Common Stock in the
aggregate that may be sold or issued pursuant to Awards that are granted under
the Plan (except as permitted under Section 19 hereof), or (iii) if approval of
such amendment is necessary to comply with federal or state law (including
without limitation Section 162(m) of the Code and Rule 16b-3 under the Exchange
Act) or with the rules of any stock exchange or automated quotation system on
which the Common Stock may be listed or traded. Except as permitted under
Section 19 hereof, no amendment, suspension or termination of the Plan shall,
without the consent of the holder of the Award, alter or impair rights or
obligations under any Award theretofore granted under the Plan.
19. RECAPITALIZATION, REORGANIZATIONS, CHANGE IN CONTROL AND OTHER
CORPORATE EVENTS
(a) Recapitalization. If the outstanding shares of Common
Stock are increased or decreased or changed into or
exchanged for a different number or kind of shares or
other securities of ECOS by reason of any
recapitalization, reclassification, reorganization
(other than as described in Section 19(b) below),
stock split, reverse split, combination of shares,
exchange of shares, stock dividend or other
distribution payable in capital stock of ECOS, or
other increase or decrease in such shares effected
without receipt of consideration by ECOS, occurring
after the Effective Date, an appropriate and
proportionate adjustment shall be made by the Board
(i) in the aggregate number and kind of shares of
Common Stock available under the Plan, (ii) in the
number and kind of shares of Common Stock issuable
upon exercise (or vesting) of outstanding Awards
granted under the Plan, and (iii) in the Option Price
per share of outstanding Options granted under the
Plan.
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(b) Reorganization. Unless otherwise provided in an Award
Agreement, in the event of a Reorganization (as
defined below) of ECOS, the Board may in its sole and
absolute discretion, provide on a case by case basis
that some or all outstanding Awards may become
immediately exercisable, without regard to any
limitation on exercise imposed pursuant to Section
11(b). In the event of a Reorganization of ECOS, the
Board may, in its sole and absolute discretion,
provide on a case by case basis that Options shall
terminate upon a Reorganization, provided however,
that Optionee shall have the right, immediately prior
to the occurrence of such Reorganization and during
such reasonable period as the Board in its sole
discretion shall determine and designate, to exercise
any vested Option in whole or in part. In the event
that the Board does not terminate an Option upon a
Reorganization of ECOS, then each outstanding Option
shall upon exercise thereafter entitle the holder
thereof to such number of shares of Common Stock or
other securities or property to which a holder of
shares of Common Stock would have been entitled to
upon such Reorganization. For purposes of this Plan a
"Reorganization" of an entity shall be deemed to
occur if such entity is a party to a merger,
consolidation, reorganization, or other business
combination with one or more entities in which said
entity is not the surviving entity, if such entity
disposes of substantially all of its assets, or if
such entity is a party to a spin-off, split-off,
split-up or similar transaction; provided, however,
that the transaction shall not be a Reorganization if
ECOS, any Parent or any Subsidiary is the surviving
entity.
(c) Change in Control. Unless otherwise provided in an
Award Agreement, in the event of a Change in Control
(as defined below) of ECOS, the Board may, in its
sole and absolute discretion, provide on a case by
case basis that some or all outstanding Awards may
become immediately exercisable or vested, without
regard to any limitation imposed pursuant to Section
11(b). In the event of a Change in Control of ECOS,
the Board may, in its sole and absolute discretion,
provide on a case by case basis that Options shall
terminate, provided however, that Optionee shall have
the right for a reasonable period as the Board in its
sole discretion shall determine and designate, to
exercise any vested Option in whole or in part. For
purposes of the Plan, a "Change in Control" shall be
deemed to occur if any person shall acquire direct or
indirect beneficial ownership (whether as a result of
stock ownership, revocable or irrevocable proxies or
otherwise) of securities of an entity, pursuant to
one or more transactions, such that after
consummation and as a result of such transaction,
such person has direct or indirect beneficial
ownership of 50% or more of the total combined voting
power with respect to the election of directors of
the issued and outstanding securities of ECOS. For
purposes of the Plan, a "person" shall mean any
person, corporation, partnership, joint venture or
other entity or any group (as such term is defined
for purposes of Section 13(d) of the Exchange Act),
other than a Parent or Subsidiary, and "beneficial
ownership" shall be determined in accordance with
Rule 13d-3 under the Exchange Act.
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(d) Change in Status of Parent or Subsidiary. Unless
otherwise provided in an Award Agreement, in the
event of a Change in Control or Reorganization of a
Parent or Subsidiary, or in the event that a Parent
or Subsidiary ceases to be a Parent or Subsidiary as
defined in Section 424 of the Code, the Board may, in
its sole and absolute discretion, (i) provide on a
case by case basis that some or all outstanding
Awards held by an Optionee or a Recipient employed by
or performing service for such Parent or Subsidiary
may become immediately exercisable or vested, without
regard to any limitation imposed pursuant to this
Plan and/or (ii) treat the employment or other
services of an Optionee or Recipient employed by or
providing service to such Parent or Subsidiary as
terminated (and such Optionee shall have the right to
exercise his or her Options in accordance with
Section 14(a) of the Plan) if such Optionee is not
employed by or providing service to ECOS or any
Parent or Subsidiary immediately after such event.
(e) Dissolution or Liquidation. Upon the dissolution or
liquidation of ECOS, the Plan and all Awards
outstanding hereunder shall terminate. In the event
of any termination of the Plan under this Section
19(e), each individual holding an Option shall have
the right, immediately prior to the occurrence of
such termination and during such reasonable period as
the Board in its sole discretion shall determine and
designate, to exercise such Option in whole or in
part, whether or not such Option was otherwise
exercisable at the time such termination occurs and
without regard to any vesting or other limitation on
exercise imposed pursuant to Section 11(b) above.
(f) Adjustments. Adjustments under this Section 19
related to stock or securities of ECOS shall be made
by the Board, whose determination in that respect
shall be final, binding, and conclusive. No
fractional shares of Common Stock or units of other
securities shall be issued pursuant to any such
adjustment, and any fractions resulting from any such
adjustment shall be eliminated in each case by
rounding downward to the nearest whole share or unit.
(g) No Limitations. The grant of an Award pursuant to the
Plan shall not affect or limit in any way the right
or power of ECOS to make adjustments,
reclassifications, reorganizations or changes of its
capital or business structure or to merge,
consolidate, dissolve or liquidate, or to sell or
transfer all or any part of its business or assets.
20. DISCLAIMER OF RIGHTS
No provision in the Plan or in any Award granted or any Award Agreement
entered into pursuant to the Plan shall be construed to confer upon any
individual the right to remain in the employ of the Company or to interfere in
any way with the right and authority of the Company either to increase or
decrease the compensation of any individual, including any Option holder or
Recipient, at any time, or to terminate any employment or other relationship
between any individual and the Company. A holder of an Option shall not be
deemed for any purpose to be a stockholder of ECOS with respect to such Option
except to the extent that such Option shall have been exercised with respect
thereto and, in addition, a stock certificate shall have been issued theretofore
and delivered to the holder. No adjustment shall be made for dividends (ordinary
or extraordinary, whether in cash, securities or other property) or
distributions or other rights for which the record date is prior to the date
such stock certificate is issued, except as expressly provided in Section 20
hereof.
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21. NONEXCLUSIVITY OF THE PLAN
The adoption of the Plan shall not be construed as creating any
limitations upon the right and authority of the Board to adopt such other
incentive compensation arrangements (which arrangements may be applicable either
generally to a class or classes of individuals or specifically to a particular
individual or individuals) as the Board in its discretion determines desirable,
including, without limitation, the granting of stock options or stock
appreciation rights other than under the Plan.
22. SEVERABILITY
If any provision of the Plan or any Award Agreement shall be determined
to be illegal or unenforceable by any court of law in any jurisdiction, the
remaining provisions hereof and thereof shall be severable and enforceable in
accordance with their terms, and all provisions shall remain enforceable in any
other jurisdiction.
23. NOTICES
Any communication or notice required or permitted to be given under the
Plan shall be in writing, and mailed by registered or certified mail or
delivered by hand, if to ECOS, to its principal place of business, attention:
Stock Option Administrator, and if to the holder of an Award, to the address as
appearing on the records of the Company.
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