ORBITTRAVEL.COM CORPORATION
2000 LONG TERM INCENTIVE PLAN
ARTICLE 1
PURPOSE
1.1 GENERAL. The purpose of the orbitTRAVEL.com. Corporation ("Orbit") 2000
Incentive Plan (the "Plan") is to promote the success, and enhance the value, of
Orbit (the "Corporation"), by linking the personal interests of its employees,
officers and directors to those of Corporation shareholders and by providing its
employees, officers and directors with an incentive for outstanding performance.
The Plan is further intended to provide flexibility to the Corporation in its
ability to motivate, attract, and retain the services of employees, officers and
directors upon whose judgment, interest, and special effort the successful
conduct of the Corporation*s operation is largely dependent. Accordingly, the
Plan permits the grant of incentive awards from time to time to selected
employees, officers, directors, and consultants.
ARTICLE 2
EFFECTIVE DATE
2.1 EFFECTIVE DATE. The Plan shall be effective as of the date upon which it
shall be approved by the Board (the "Effective Date"). [However, the Plan shall
be submitted to the shareholders of the Corporation for approval within 12
months of the Board*s approval thereof] No Incentive Stock Options granted under
the Plan may be exercised prior to approval of the Plan by the shareholders and
if the shareholders fail to approve the Plan within 12 months of the Board's
approval thereof, any Incentive Stock Options previously granted hereunder shall
be automatically converted to Non-Qualified Stock Options without any further
act. In the discretion of the Committee, Awards may be made to Covered Employees
which are intended to constitute qualified performance-based compensation under
Code Section 162(m). Any such Awards shall be contingent upon the shareholders
having approved the Plan.
ARTICLE 3
DEFINITIONS
3. 1 DEFINITIONS. When a word or phrase appears in this Plan with the initial
letter capitalized, and the word or phrase does not start a sentence, the word
or phrase shall generally be given the meaning ascribed to it in this Section or
in Section 1.1 unless a clearly different meaning is required by the context.
The following words and phrases shall have the following meanings:
(a) "Award" means any Option, Stock Appreciation Right, Restricted Stock Award,
Performance Share Award, Dividend Equivalent Award, or Other Stock-Based Award,
or any other right or interest relating to Stock or cash, granted to a
Participant under the Plan.
(b) "Award Agreement" means any written agreement, contract, or other instrument
or document evidencing an Award.
(c) "Board" means the Board of Directors of the Corporation.
(d) "Change of Control" means and includes the occurrence of any one of the
following events:
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(i) individuals who, at the Effective Date, constitute the Board (the "Incumbent
Directors") cease for any reason to constitute at least a majority of the Board,
provided that any person becoming a director after the Effective Date and whose
election or nomination for election was approved by a vote of at least a
majority of the Incumbent Directors then on the Board (either by a specific vote
or by approval of the proxy statement of the Company in which such person is
named as a nominee for director, without written objection to such nomination)
shall be an Incumbent Director; provided, however, that no individual initially
elected or nominated as a director of the Company as a result of an actual or
threatened election contest (as described in Rule 14a-1 1 under the 1 934 Act
("Election Contest") or other actual or threatened solicitation of proxies or
consents by or on behalf of any "person" (as such term is defined in Section
3(a)(9) of the 1934 Act and as used in Section 13(d)(3) and 14(d)(2) of the 1934
Act) other than the Board ("Proxy Contest"), including by reason of any
agreement intended to avoid or settle any Election Contest or Proxy Contest,
shall be deemed an Incumbent Director;
(ii) any person becomes a "beneficial owner" (as defined in Rule 13d-3 under the
1934 Act), directly or indirectly, of securities of the Company representing 30%
or more of the combined voting power of the Company's then outstanding
securities eligible to vote for the election of the Board (the "Company Voting
Securities"); provided, however, that the event described in this paragraph (ii)
shall not be deemed to be a Change in Control of the Company by virtue of any of
the following acquisitions: (A) any acquisition by a person who is on the
Effective Date the beneficial owner of 30% or more of the outstanding Company
Voting Securities, (B) an acquisition by the Company which reduces the number of
Company Voting Securities outstanding and thereby results in any person
acquiring beneficial ownership of more than 2500 of the outstanding Company
Voting Securities; provided that if after such acquisition by the Company such
person becomes the beneficial owner of additional Company Voting Securities that
increases the percentage of outstanding Company Voting Securities beneficially
owned by such person, a Change in Control of the Company shall then occur, (C)
an acquisition by any employee benefit plan (or related trust) sponsored or
maintained by.. the Company or any Parent or Subsidiary, (C) an acquisition by
an underwriter temporarily holding securities pursuant to an offering of such
securities, (D) an acquisition pursuant to a Non-Qualifying Transaction (as
defined in paragraph (iii)), or (E) a transaction (other than the one described
in paragraph (iii) below) in which Company Voting Securities are acquired from
the Company, if a majority of the Incumbent Directors approve a resolution (at
any time prior to the exercise of any Awards the vesting of which would
otherwise be accelerated as a result of a Change in Control) providing expressly
that the acquisition pursuant to this clause (E) does not constitute a Change in
Control of the Company under this paragraph (ii); or
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(iii) the consummation of a reorganization, merger, consolidation, statutory
share exchange or similar form of corporate transaction involving the Company
that requires the approval of the Company*s stockholders, whether for such
transaction or the issuance of securities in the transaction (a
"Reorganization"), or the sale or other disposition of all or substantially all
of the Company*s assets to an entity that is not an affiliate of the Company (a
"Sale"), unless immediately following such Reorganization or Sale: (A) more than
30% of the total voting power of (x) the corporation resulting from such
Reorganization or the corporation which has acquired all or substantially all of
the assets of the Company (in either case, the "Surviving Corporation"), or (y)
if applicable, the ultimate parent corporation that directly or indirectly has
beneficial ownership of 100% of the voting securities eligible to elect
directors of the Surviving Corporation (the "Parent Corporation"), is
represented by the Company Voting Securities that were outstanding immediately
prior to such Reorganization or Sale (or, if applicable, is represented by
shares into which such Company Voting Securities were converted pursuant to such
Reorganization or Sale), and such voting power among the holders thereof is in
substantially the same proportion as the voting power of such Company Voting
Securities among the holders thereof immediately prior to the Reorganization or
Sale, (B) no person (other than (x) the Company, (y) any employee benefit plan
(or related trust) sponsored or maintained by the Surviving Corporation or the
Parent Corporation, or (z) a person who immediately prior to the Reorganization
or Sale was the beneficial owner of 30% or more of the outstanding Company
Voting Securities) is the beneficial owner, directly or indirectly, of 30% or
more of the total voting power of the outstanding voting securities eligible to
elect directors of the Parent Corporation (or, if there is no Parent
Corporation, the Surviving Corporation), and (C) at least a majority of the
members of the board of directors of the Parent Corporation (or, if there is no
Parent Corporation, the Surviving Corporation) following the consummation of the
Reorganization or Sale were Incumbent Directors at the time of the Board's
approval of the execution of the initial agreement providing for such
Reorganization or Sale (any Reorganization or Sale which satisfies all of the
criteria specified in (A), (B) and (C) above shall be deemed to be a
"Non-Qualifying Transaction"); or
(iv) approval by the stockholders of the Company of a complete liquidation or
dissolution of the Company.
(e) "Code" means the Internal Revenue Code of 1986, as amended From time to
time.
(f) "Committee" means the committee of the Board described in Article 4.
(g) "Corporation" means orbitTRAVEL.com Corporation, a Delaware corporation.
(h) "Covered Employee" means a covered employee as defined in Code Section 1
62(m)(3).
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(i) "Disability" shall mean any illness or other physical or mental condition of
a Participant that renders the Participant incapable of performing his customary
and usual duties for the Corporation, or any medically determinable illness or
other physical or mental condition resulting from a bodily injury, disease or
mental disorder which, in the judgment of the Committee, is permanent and
continuous in nature. The Committee may require such medical or other evidence
as it deems necessary to judge the nature and permanency of the Participant's
condition. Notwithstanding the above, with respect to an Incentive Stock Option,
Disability shall mean Permanent and Total Disability as defined in Section
22(e)(3) of the Code.
(j) "Dividend Equivalent" means a right granted to a Participant under Article
11.
(k) "Effective Date" has the meaning assigned such term in Section 2.1.
(1) "Fair Market Value", on any date, means (i) if the Stock is listed on a
securities exchange or is traded over the Nasdaq National Market, the closing
sales price on such exchange or over such system on such date or, in the absence
of reported sales on such date, the closing sales price on the immediately
preceding date on which sales were reported, (ii) if the Stock is not listed on
a securities exchange or traded over the Nasdaq National Market, the mean
between the bid and offered prices as quoted by Nasdaq for such date, provided
that if it is determined that the fair market value is not properly reflected by
such Nasdaq quotations, Fair Market Value will be determined by such other
method as the Committee determines in good faith to be reasonable, or (iii) if
the Stock is not listed on a securities exchange or traded over the Nasdaq
National Market or otherwise quoted on a bulletin board system or the over the
counter market, the value as determined reasonably and in the utmost good faith
by the Committee.
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(m) "Incentive Stock Option" means an Option that is intended to meet the
requirements of Section 422 of the Code or any successor provision thereto.
(n) "Non-Qualified Stock Option" means an Option that is not an Incentive Stock
Option.
(o) "Option" means a right granted to a Participant under Article 7 of the Plan
to purchase Stock at a specified price during specified time periods. An Option
may be either an Incentive Stock Option or a Non-Qualified Stock Option.
(p) "Other Stock-Based Award" means a right, granted to a Participant Finder
Article 12, that relates to or is valued by reference to Stock or other Awards
relating to Stock.
(q) "Parent" means a corporation which owns or beneficially owns a majority of
the outstanding voting stock or voting power of the Corporation. For Incentive
Stock Options, the term shall have the same meaning as set forth in Code Section
424(e).
(r) "Participant" means a person who, as an employee, officer, consultant or
director of the Corporation or any Parent or Subsidiary, has been granted an
Award under the Plan.
(s) "Performance Share" means a right granted to a Participant under Article 9,
to receive cash, Stock, or other Awards, the payment of which is contingent upon
achieving certain performance goals established by the Committee.
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(t) "Plan" means the orbitTRAVEL.com Corporation 2000 Incentive Plan, as amended
from time to time.
(u) "Restricted Stock Award" means Stock granted to a Participant under Article
10 that is subject to certain restrictions and to risk of forfeiture.
(v) "Retirement" means a Participant's termination of employment with the
Corporation. Parent or Subsidiary after attaining any normal or early retirement
age specified in any pension, profit sharing or other retirement program
sponsored by the Corporation, or, in the event of the inapplicability thereof
with respect to the person in question as determined by the Committee in its
reasonable judgment.
(w) "Stock" means the $.001 par value common stock of the Corporation and such
other securities of the Corporation as may be substituted for Stock pursuant to
Article 14.
(x) "Stock Appreciation Right" or "SAR" means a right granted to a Participant
under Article 8 to receive a payment equal to the difference between the Fair
Market Value of a share of Stock as of the date of exercise of the SAR over the
grant price of the SAR, all as determined pursuant to Article 8.
(y) "Subsidiary" means any corporation, limited liability company, partnership
or other entity of which a majority of the outstanding voting stock or voting
power is beneficially owned directly or indirectly by the Corporation. For
Incentive Stock Options, the term shall have the meaning set forth in Code
Section 424(f).
(z) "1933 Act" means the Securities Act of 1933, as amended from time to time.
(aa) "1934 Act" means the Securities Exchange Act of 1934, as amended from time
to time.
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ARTICLE 4
ADMINISTRATION
4. 1 COMMITTEE. The Plan shall be administered by a committee (the "Committee")
of at least two directors appointed from time to time by the Board, having the
duties and authority set forth herein in addition to any other authority granted
by the Board; provided, however, at any time the Board shall not have appointed
a Committee, any reference herein to the Committee shall mean a reference to the
Board which shall have full authority to in place of and instead of such
Committee.
4.2 ACTION BY THE COMMITTEE. For purposes of administering the Plan, the
following rules of procedure shall govern the Committee. A majority of the
Committee shall constitute a quorum. The acts of a majority of the members
present at any meeting at which a quorum is present, and acts approved
unanimously in writing by the members of the Committee in lieu of a meeting,
shall be deemed the acts of the Committee. Each member of the Committee is
entitled to, in good faith, rely or act upon any report or other information
furnished to that member by any officer or other employee of the Corporation or
any Parent or Subsidiary, the Corporation*s independent certified public
accountants, or any executive compensation consultant or other professional
retained by the Corporation to assist in the administration of the Plan.
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4.3 AUTHORITY OF COMMITTEE. Except as provided below, the Committee has the
exclusive power, authority and discretion to:
(a) Designate Participants;
(b) Determine the type or types of Awards to be granted to each Participant;
(c) Determine the number of Awards to be granted and the number of shares of
Stock to which an Award will relate;
(d) Determine the terms and conditions of any Award granted under the Plan,
including but not limited to, the exercise price, grant price, or purchase
price, any restrictions or limitations on the Award, any schedule for lapse of
forfeiture restrictions or restrictions on the exercisability of an Award, and
accelerations or waivers thereof, based in each case on such considerations as
the Committee in its sole discretion determines;
(e) Accelerate the vesting or lapse of restrictions of any outstanding Award,
based in each case on such considerations as the Committee in its sole
discretion determines;
(f) Determine whether, to what extent, and under what circumstances an Award may
be settled in, or the exercise price of an Award may be paid in, cash, Stock,
other Award or other property, or an Award may be canceled, forfeited, or
surrendered;
(g) Prescribe the form of each Award Agreement, which need not be identical for
each Participant;
(h) Decide all other matters that must be determined in connection with an
Award;
(i) Establish, adopt or revise any rules and regulations as it may deem
necessary or advisable to administer the Plan;
(j) Make all other decisions and determinations that may be required under the
Plan or as the Committee deems necessary or advisable to administer the Plan;
and
(k) Amend the Plan or any Award Agreement as provided herein.
Notwithstanding the above, the Board or the Committee may expressly delegate to
a special committee consisting of one or more directors who are also officers of
the Company some or all of the Committee*s authority under subsections (a)
through (g) above with respect to those eligible Participants who, at the time
of grant are not, and are not anticipated to be become, either (i) Covered
Employees or (ii) persons subject to the insider trading restrictions of Section
16 of the 1934 Act.
4.4. DECISIONS BINDING. The Committee*s interpretation of the Plan, any Awards
granted under the Plan, any Award Agreement and all decisions and determinations
by the Committee with respect to the Plan are final, binding, and conclusive on
all parties.
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ARTICLE 5
SHARES SUBJECT TO THE PLAN
5.1. NUMBER OF SHARES. Subject to adjustment as provided in Section 14.1, the
aggregate number of shares of Stock reserved and available for Awards or which
may be used to provide a basis of measurement for or to determine the value of
an Award (such as with a Stock Appreciation Right or Performance Share Award)
shall be 175,000,000.
5.2. LAPSED AWARDS. To the extent that an Award is canceled, terminates, expires
or lapses for any reason, any shares of Stock subject to the Award will again be
available for the grant of an Award under the Plan and shares subject to SARs or
other Awards settled in cash will be available for the grant of an Award under
the Plan.
5.3. STOCK DISTRIBUTED. Any Stock distributed pursuant to an Award may consist,
in whole or in part, of authorized and unissued Stock, treasury Stock or Stock
purchased on the open market.
ARTICLE 6
ELIGIBILITY
6.1. GENERAL. Awards may be granted only to individuals who are employees,
officers, directors or consultants of the Corporation or a Parent or Subsidiary.
ARTICLE 7
STOCK OPTIONS
7.1. GENERAL. The Committee is authorized to grant Options to Participants on
the following terms and conditions:
(a) EXERCISE PRICE. The exercise price per share of Stock under an Option shall
be determined by the Committee.
(b) TIME AND CONDITIONS OF EXERCISE. Subject to Article 13, the Committee shall
determine the time or times at which an Option may be exercised in whole or in
part. The Committee also shall determine the performance or other conditions, if
any, that must be satisfied before all or part of an Option may be exercised.
The Committee may waive any exercise provisions at any time in whole or in part
based upon factors as the Committee may determine in its sole discretion so that
the Option becomes exercisable at an earlier date.
(c) PAYMENT. The Committee shall determine the methods by which the exercise
price of an Option may be paid, the form of payment, including, without
limitation, cash, shares of Stock, or other property (including "cashless
exercise" arrangements), and the methods by which shares of Stock shall be
delivered or deemed to be delivered to Participants; provided, however, that if
shares of Stock are used to pay the exercise price of an Option, such shares
must have been held by the Participant for at least six months.
(d) EVIDENCE OF GRANT. All Options shall be evidenced by a written Award
Agreement between the Corporation and the Participant. The Award Agreement shall
include such provisions, not inconsistent with the Plan, as may be specified by
the Committee.
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7.2. INCENTIVE STOCK OPTIONS. The terms of any Incentive Stock Options granted
under the Plan must comply with the following additional rules:
(a) EXERCISE PRICE. The exercise price per share of Stock shall be set by the
Committee, provided that the exercise price for any Incentive Stock Option shall
not be less than the Fair Market Value as of the date of the grant.
(b) EXERCISE. In no event may any Incentive~ Stock Option be exercisable for
more than ten years from the date of its grant.
(c) LAPSE OF OPTION. An Incentive Stock Option shall lapse under the earliest of
the following circumstances; provided, however, that the Committee may, prior to
the lapse of the Incentive Stock Option under the circumstances described in
paragraphs (3), (4) and (5) below, provide in writing that the Option will
extend until a later date, but if Option is exercised after the dates specified
in paragraphs (3), (4) and (5) below, it will automatically become a
Non-Qualified Stock Option:
(1) The Incentive Stock Option shall lapse as of the option expiration date set
forth in the Award Agreement.
(2) The Incentive Stock Option shall lapse ten years after it is granted, unless
an earlier time is set in the Award Agreement.
(3) If the Participant terminates employment for any reason other than as
provided in paragraph (4) or (5) below, the Incentive Stock Option shall lapse,
unless it is previously exercised, three months after the Participant's
termination of employment; provided, however, that if the Participant's
employment is terminated by the Corporation for cause (as determined by the
Company) or by the Participant without the consent of the Corporation, the
Incentive Stock Option shall (to the extent not previously exercised) lapse
immediately.
(4) If the Participant terminates employment by reason of his Disability, the
Incentive Stock Option shall lapse, unless it is previously exercised, one year
after the Participant's termination of employment.
(5) If the Participant dies while employed, or during the three-month period
described in paragraph (3) or during the one-year period described in paragraph
(4) and before the Option otherwise lapses, the Option shall lapse one year
after the Participant's death. Upon the Participant's death, any exercisable
Incentive Stock Options may be exercised by the Participant*s beneficiary,
determined in accordance with Section 13.6.
Unless the exercisability of the Incentive Stock Option is accelerated as
provided in Article 13, if a Participant exercises an Option after termination
of employment, the Option may be exercised only with respect to the shares that
were otherwise vested on the Participant*s termination of employment.
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(d) INDIVIDUAL DOLLAR LIMITATION. The aggregate Fair Market Value (determined as
of the time an Award is made) of all shares of Stock with respect to which
Incentive Stock Options are first exercisable by a Participant in any calendar
year may not exceed $100,000.00.
(e) TEN PERCENT OWNERS. No Incentive Stock Option shall be granted to any
individual who, at the date of grant, owns stock possessing more than ten
percent of the total combined voting power of all classes of stock of the
Corporation or any Parent or Subsidiary unless the exercise price per share of
such Option is at least 110% of the Fair Market Value per share of Stock at the
date of grant and the Option expires no later than five years after the date of
grant.
(f) EXPIRATION OF INCENTIVE STOCK OPTIONS. No Award of an Incentive Stock Option
may be made pursuant to the Plan after the day immediately prior to the tenth
anniversary of the Effective Date.
(g) RIGHT TO EXERCISE. During a Participant's lifetime, an Incentive Stock
Option may be exercised only by the Participant or, in the case of the
Participant's Disability, by the Participant's guardian or legal representative.
(h) DIRECTORS. The Committee may not grant an Incentive Stock Option to a
non-employee director. The Committee may grant an Incentive Stock Option to a
director who is also an employee of the Corporation or Parent or Subsidiary but
only in that individual's position as an employee and not as a director.
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ARTICLE 8
STOCK APPRECIATION RIGHTS
8. 1 . GRANT OF SARs. The Committee is authorized to grant SARs to Participants
on the following terms and conditions:
(a) RIGHT TO PAYMENT. Upon the exercise of a Stock Appreciation Right, the
Participant to whom it is granted has the right to receive the excess, if any,
of
(1) The Fair Market Value of one share of Stock on the date of exercise; over
(2) The grant price of the Stock Appreciation Right as determined by the
Committee, which shall not be less than the Fair Market Value of one share of
Stock on the date of grant in the case of any SAR related to an Incentive Stock
Option.
(b) OTHER TERMS. All awards of Stock Appreciation Rights shall be evidenced by
an Award Agreement. The terms, methods of exercise, methods of settlement, form
of consideration payable in settlement, and any other terms and conditions of
any Stock Appreciation Right shall be determined by the Committee at the time of
the grant of the Award and shall be reflected in the Award Agreement.
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ARTICLE 9
PERFORMANCE SHARES
9.1. GRANT OF PERFORMANCE SHARES. The Committee is authorized to grant
Performance Shares to Participants on such terms and conditions as may be
selected by the Committee. The Committee shall have the complete discretion to
determine the number of Performance Shares granted to each Participant. All
Awards of Performance Shares shall be evidenced by an Award Agreement.
9.2. RIGHT TO PAYMENT. A grant of Performance Shares gives the Participant
rights, valued as determined by the Committee, and payable to, or exercisable
by, the Participant to whom the Performance Shares are granted, in whole or in
part, as the Committee shall establish at grant or thereafter. The Committee
shall set performance goals and other terms or conditions to payment of the
Performance Shares in its discretion which, depending on the extent to which
they are met, will determine the number and value of Performance Shares that
will be paid to the Participant.
9.3. OTHER TERMS. Performance Shares may be payable in cash, Stock, or other
property, and have such other terms and conditions as determined by the
Committee and reflected in the Award Agreement.
ARTICLE 10
RESTRICTED STOCK AWARDS
10.1. GRANT OF RESTRICTED STOCK. The Committee is authorized to make Awards of
Restricted Stock to Participants in such amounts and subject to such terms and
conditions as may be selected by the Committee. All Awards of Restricted Stock
shall be evidenced by a Restricted Stock Award Agreement.
10.2. ISSUANCE AND RESTRICTIONS. Restricted Stock shall be subject to such
restrictions on transferability and other restrictions as the Committee may
impose (including, without limitation, limitations on the right to vote
Restricted Stock or the right to receive dividends on the Restricted Stock).
These restrictions may lapse separately or in combination at such times, under
such circumstances, in such installments, upon the satisfaction of performance
goals or otherwise, as the Committee determines at the time of the grant of the
Award or thereafter.
10.3. FORFEITURE. Except as otherwise determined by the Committee at the time of
the grant of the Award or thereafter, upon termination of employment during the
applicable restriction period or upon failure to satisfy a performance goal
during the applicable restriction period, Restricted Stock that is at that time
subject to restrictions shall be Forfeited and reacquired by the Corporation;
provided, however, that the Committee may provide in any Award Agreement that
restrictions or forfeiture conditions relating to Restricted Stock will be
waived in whole or in part in the event of terminations resulting from specified
causes, and the Committee may in other cases waive in whole or in part
restrictions or forfeiture conditions relating to Restricted Stock.
10.4. CERTIFICATES FOR RESTRICTED STOCK. Restricted Stock granted under the Plan
may be evidenced in such manner as the Committee shall determine. If
certificates representing shares of Restricted Stock are registered in the name
of the Participant, certificates must bear an appropriate legend referring to
the terms, conditions, and restrictions applicable to such Restricted Stock.
ARTICLE 11
DIVIDEND EQUIVALENTS
11.1 GRANT OF DIVIDEND EQUIVALENTS. The Committee is authorized to grant
Dividend Equivalents to Participants subject to such terms and conditions as may
be selected by the Committee. Dividend Equivalents shall entitle the Participant
to receive payments equal to dividends with respect to all or a portion of the
number of shares of Stock subject to an Award, as determined by the Committee.
The Committee may provide that Dividend Equivalents be paid or distributed when
accrued or be deemed to have been reinvested in additional shares of Stock, or
otherwise reinvested.
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ARTICLE 12
OTHER STOCK-BASED AWARDS
12.1. GRANT OF OTHER STOCK-BASED AWARDS. The Committee is authorized, subject to
limitations under applicable law, to grant to Participants such other Awards
that are payable in, valued in whole or in part by reference to, or otherwise
based on or related to shares of Stock, as deemed by the Committee to be
consistent with the purposes of the Plan, including without limitation shares of
Stock awarded purely as a "bonus" or compensation for services and not subject
to any restrictions or conditions, convertible or exchangeable debt securities,
other rights convertible or exchangeable into shares of Stock, and Awards valued
by reference to book value of shares of Stock or the value of securities of or
the performance of specified Parents or Subsidiaries. The Committee shall
determine the terms and conditions of such Awards.
ARTICLE 13
PROVISIONS APPLICABLE TO AWARDS
13.1. STAND-ALONE. TANDEM. AND SUBSTITUTE AWARDS. Awards granted under the Plan
may, in the discretion of the Committee, be granted either alone or in addition
to, in tandem with, or in substitution for, any other Award granted under the
Plan. If an Award is granted in substitution for another Award, the Committee
may require the surrender of such other Award in consideration of the grant of
the new Award. Awards granted in addition to or in tandem with other Awards may
be granted either at the same time as or at a different time from the grant of
such other Awards.
13.2. EXCHANGE PROVISIONS. The Committee may at any time offer to exchange or
buy out any previously granted Award for a payment in cash, Stock, or another
Award (subject to Section 14. 1), based on the terms and conditions the
Committee determines and communicates to the Participant at the time the offer
is made, and after taking into account the tax, securities and accounting
effects of such an exchange.
13.3. TERM OF AWARD. The term of each Award shall be for the period as
determined by the Committee, provided that in no event shall the term of any
Incentive Stock Option or a Stock Appreciation Right granted in tandem with the
Incentive Stock Option exceed a period often years from the date of its grant
(or, if Section 7.2(e) applies, five years from the date of its grant).
13.4. FORM OF PAYMENT FOR AWARDS. Subject to the terms of the Plan and any
applicable law or Award Agreement, payments or transfers to be made by the
Corporation or a Parent or Subsidiary on the grant or exercise of an Award may
be made in such form as the Committee determines at or after the time of grant,
including without limitation, cash, Stock, other Awards, or other property, or
any combination, and may be made in a single payment or transfer, in
installments, or on a deferred basis, in each case determined in accordance with
rules adopted by, and at the discretion of, the Committee.
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13.5. LIMITS ON TRANSFER. No right or interest of a Participant in any
unexercised or restricted Award may be pledged, encumbered, or hypothecated to
or in Favor of any party other than the Corporation or a Parent or Subsidiary,
or shall be subject to any lien, obligation, or liability of such Participant to
any other party other than the Corporation or a Parent or Subsidiary. No
unexercised or restricted Award shall be assignable or transferable by a
Participant other than by will or the laws of descent and distribution or,
except in the case of an Incentive Stock Option, pursuant to a domestic
relations order that would satisfy Section 414(p)(l)(A) of the Code if such
Section applied to an Award under the Plan; provided, however, that the
Committee may (but need not) permit other transfers where the Committee
concludes that such transferability (i) does not result in accelerated taxation,
(ii) does not cause any Option intended to be an incentive stock option to fail
to be described in Code Section 422(b), and (iii) is otherwise appropriate and
desirable, taking into account any factors deemed relevant, Including without
limitation, state or federal tax or securities laws applicable to transferable
Awards.
13.6 BENEFICIARIES. Notwithstanding Section 13.5, a Participant may, in the
manner determined by the Committee, designate a beneficiary to exercise the
rights of the Participant and to receive any distribution with respect to any
Award upon the Participant*s death. A beneficiary, legal guardian, legal
representative, or other person claiming any rights under the Plan is subject to
all terms and conditions of the Plan and any Award Agreement applicable to the
Participant, except to the extent the Plan and Award Agreement otherwise
provide, and to any additional restrictions deemed necessary or appropriate by
the Committee. If no beneficiary has been designated or survives the
Participant, payment shall be made to the Participant's estate. Subject to the
foregoing, a beneficiary designation may be changed or revoked by a Participant
at any time provided the change or revocation is filed with the Committee.
13.7. STOCK CERTIFICATES. All Stock certificates delivered under the Plan are
subject to any stop-transfer orders and other restrictions as the Committee
deems necessary or advisable to comply with federal or state securities laws,
rules and regulations and the rules of any national securities exchange or
automated quotation system on which the Stock is listed, quoted, or traded. The
Committee may place legends on any Stock certificate. to reference restrictions
applicable to the Stock.
13.8 ACCELERATION UPON DEATH OR DISABILITY OR RETIREMENT. Notwith-standing any
other provision in the Plan or any Participant*s Award Agreement to the
contrary, the Committee may, in its sole discretion at any time upon the
Participant*s death or Disability during his employment or service as a director
or consultant, or upon the Participant*s Retirement, determine that all or a
portion of a Participant*s outstanding Options, Stock Appreciation Rights, and
other Awards in the nature of rights that may be exercised shall become fully
exercisable and all or a portion of the restrictions on outstanding Awards
lapse. Any Option or Stock Appreciation Rights Awards shall thereafter continue
or lapse in accordance with the other provisions of the Plan and the Award
Agreement. To the extent that any action under this provision causes Incentive
Stock Options to exceed the dollar limitation set forth in Section 7.2(d), the
excess Options shall be deemed to be Non-Qualified Stock Options.
<PAGE>
13.9. ACCELERATION UPON A CHANGE IN CONTROL. Except as otherwise provided in the
Award Agreement, the Committee may, in its sole discretion at any time upon the
occurrence of a Change in Control, determine that all or a portion of a
Participant*s outstanding Options, Stock Appreciation Rights, and other Awards
in the nature of rights that may be exercised shall become fully exercisable and
all or a portion of the restrictions on outstanding Awards lapse; provided,
however that the Committee must consult with the Corporation*s accountants to
determine if such acceleration would preclude the use of "pooling of interest"
accounting treatment for a Change in Control transaction that (a) would
otherwise qualify for such accounting treatment, and (b) is contingent upon
qualifying for such accounting treatment. To the extent that any action under
this provision causes Incentive Stock Options to exceed the dollar limitation
set forth in Section 7.2(d), the excess Options shall be deemed to be
Non-Qualified Stock Options.
13.10. ACCELERATION UPON CERTAIN EVENTS NOT CONSTITUTING A CHANGE IN CONTROL. In
the event of the occurrence of any circumstance, transaction or event not
constituting a Change in Control (as defined in Section 3.1) but which the Board
of Directors deems to be, or to be reasonably likely to lead to, an effective
change in control of the Corporation of a nature that would be required to be
reported in response to Item 6(e) of Schedule 14A of the 1 934 Act, the
Committee may in its sole discretion declare all outstanding Options, Stock
Appreciation Rights, and other Awards in the nature of rights that may be
exercised to be fully exercisable, and/or all restrictions on all outstanding
Awards to have lapsed, in each case, as of such date as the Committee may, in
its sole discretion, declare, which may be on or before the consummation of such
transaction or event. To the extent that this provision causes Incentive Stock
Options to exceed the dollar limitation set forth in Section 7.2(d), the excess
Options shall be deemed to be Non-Qualified Stock Options.
13.11. ACCELERATION FOR ANY OTHER REASON. Regardless of whether an event has
occurred as described in Section 13.10 above, the Board may in its sole
discretion at any time determine that all or a portion of a Participant's
Options, Stock Appreciation Rights, and other Awards in the nature of rights
that may be exercised shall become Lily or partially exercisable, and/or that
all or a part of the restrictions on all or a portion of the outstanding Awards
shall lapse, in each case, as of such date as the Board may, in its sole
discretion, declare. The Board may discriminate among Participants and among
Awards granted to a Participant in exercising its discretion pursuant to this
Section 13.11.
13.12 EFFECT OF ACCELERATION. If an Award is accelerated under Section 13.9,
13.10, or 13.11, the Committee may, in its sole discretion, provide (i) that the
Award will expire after a designated period of time after such acceleration to
the extent not then exercised, (ii) that the Award will be settled in cash
rather than Stock, (iii) that the Award will be assumed by another party to the
transaction giving rise to the acceleration or otherwise be equitably converted
in connection with such transaction, or (iv) any combination of the foregoing.
The Committee*s determination need not be uniform and may be different for
different Participants whether or not such Participants are similarly situated.
<PAGE>
13.13. PERFORMANCE GOALS. The Committee may determine that any Award granted
pursuant to this Plan to a Participant (including, but not limited to,
Participants who are Covered Employees) shall be determined solely on the basis
of (a) the achievement by the Corporation or a Parent or Subsidiary of a
specified target return, or target growth in return, on equity or assets, (b)
the Corporation*s stock*s Fair Market Value, (c) the Corporation*s total
shareholder return (stock price appreciation plus reinvested dividends) relative
to a defined comparison group or target over a specific performance period, (d)
the achievement by a business unit of the Corporation, Parent or Subsidiary of a
specified target, or target growth in, net income or earnings per share, or (e)
any combination of the goals set forth in (a) through (d) above. If an Award is
made on such basis, the Committee has the right for any reason to reduce (but
not increase) the Award, notwithstanding the achievement of a specified goal. If
an Award is made on such basis, the Committee shall establish goals prior to the
beginning of the period for which such performance goal relates (or such later
date as may be permitted under Code Section 162(m) or the regulations
thereunder). Any payment of an Award granted with performance goals shall be
conditioned on the written certification of the Committee in each case that the
performance goals and any other material conditions were satisfied.
13.14. TERMINATION OF EMPLOYMENT. Whether military, government or other service
or other leave of absence shall constitute a termination of employment shall be
determined in each case by the Committee at its discretion, and any
determination by the Committee shall be final and conclusive. A termination of
employment shall not occur in a circumstance in which a Participant transfers
from the Corporation to one of its Parents or Subsidiaries, transfers from a
Parent or Subsidiary to the Corporation, or transfers from one Parent or
Subsidiary to another Parent or Subsidiary.
13.15. LOAN PROVISIONS. With the consent of the Committee, the Corporation may
make, guarantee or arrange for a loan or loans to a Participant with respect to
the exercise of any Option granted under this Plan and/or with respect to the
payment of the purchase price, if any, of any Award granted hereunder and/or
with respect to the payment by the Participant of any or all federal and/or
state income taxes due on account of the granting or exercise of any Award
hereunder. The Committee shall have full authority to decide whether to make a
loan or loans hereunder and to determine the amount, terms and provisions of any
such loan or loans, including the interest i-ate to be charged in respect of any
such loan or loans, whether the loan or loans are to be made with or without
recourse against the borrower, the terms on which the loan is to be repaid and
the conditions, if any, under which the loan or loans may be forgiven.
<PAGE>
ARTICLE 14
CHANGES IN CAPITAL STRUCTURE
14.1. GENERAL. In the event a stock dividend is declared upon the Stock, the
authorization limit under Section 5.1 shall be increased proportionately, and
the shares of Stock then subject to each Award shall be increased
proportionately without any change in the aggregate purchase price therefor. In
the event the Stock shall be changed into or exchanged for a different number or
class of shares of stock or securities of the Corporation or of another
corporation, whether through reorganization, recapitalization, reclassification,
share exchange, stock split-up, combination of shares, merger or consolidation,
the authorization limit under Section 5.1 shall be adjusted proportionately, and
there shall be substituted for each such share of Stock then subject to each
Award the number and class of shares into which each outstanding share of Stock
shall be so exchanged, all without any change in the aggregate purchase price
for the shares then subject to each Award, or, subject to Section 15.2, there
shall be made such other equitable adjustment as the Committee shall approve.
ARTICLE 15
AMENDMENT, MODIFICATION AND TERMINATION
15.1. AMENDMENT. MODIFICATION AND TERMINATION. The Board or the Committee may,
at any time and from time to time, amend, modify or terminate the Plan without
shareholder approval; provided, however, that the Board or Committee may
condition any amendment or modification on the approval of shareholders of the
Corporation if such approval is necessary or deemed advisable with respect to
tax, securities or other applicable laws, policies or regulations.
15.2 AWARDS PREVIOUSLY GRANTED. At any time and from time to time, the Committee
may amend, modify or terminate any outstanding Award without approval of the
Participant; provided, however, that, subject to the terms of the applicable
Award Agreement, such amendment, modification or termination shall not, without
the Participant's consent, reduce or diminish the value of such Award determined
as if the Award had been exercised, vested, cashed in or otherwise settled on
the date of such amendment or termination. No termination, amendment, or
modification of the Plan shall adversely affect any Award previously granted
under the Plan, without the written consent of the Participant.
ARTICLE 16
GENERAL PROVISIONS
16.1 . NO RIGHTS TO AWARDS. No Participant or any eligible participant shall
have any claim to he granted any Award under the Plan, and neither the
Corporation nor the Committee is obligated to treat Participants or eligible
participants uniformly.
16.2. NO STOCKHOLDER RIGHTS. No Award gives the Participant any of the rights of
a shareholder of the Corporation unless and until shares of Stock are in fact
issued to such person in connection with such Award.
<PAGE>
16.3. WITHHOLDING. The Corporation or any Parent or Subsidiary shall have the
authority and the right to deduct or withhold, or require a Participant to remit
to the Corporation, an amount sufficient to satisfy federal, state, and local
taxes (including the Participant*s FICA obligation) required by law to be
withheld with respect to any taxable event arising as a result of the Plan. With
respect to withholding required upon any taxable event under the Plan, the
Committee may, at the time the Award is granted or thereafter, require or permit
that any such withholding requirement be satisfied, in whole or in part, by
withholding from the Award shares of Stock having a Fair Market Value on the
date of withholding equal to the minimum amount (and not any greater amount)
required to be withheld for tax purposes, all in accordance with such procedures
as the Committee establishes.
16.4. NO RIGHT TO CONTINUED SERVICE. Nothing in the Plan or any Award Agreement
shall interfere with or limit in any way the right of the Corporation or any
Parent or Subsidiary to terminate any Participant*s employment or status as an
officer, director or consultant at any time, nor confer upon any Participant any
right to continue as an employee, officer, director or consultant of the
Corporation or any Parent or Subsidiary.
16.5. UNFUNDED STATUS OF AWARDS. The Plan is intended to be an "unfunded" plan
for incentive and deferred compensation. With respect to any payments not yet
made to a Participant pursuant to an Award, nothing contained in the Plan or any
Award Agreement shall give the Participant any rights that are greater than
those of a general creditor of the Corporation or any Parent or Subsidiary.
16.6. INDEMNIFICATION. To the extent allowable under applicable law, each member
of the Committee shall be indemnified and held harmless by the Corporation from
any loss, cost, liability, or expense that may be imposed upon or reasonably
incurred by such member in connection with or resulting from any claim, action,
suit, or proceeding to which such member may be a party or in which he may be
involved by reason of any action or failure to act under the Plan and against
and from any and all amounts paid by such member in satisfaction of judgment in
such action, suit, or proceeding against him provided he gives the Corporation
an opportunity, at its own expense, to handle and defend the same before he
undertakes to handle and defend it on his own behalf The foregoing right of
indemnification shall not be exclusive of any other rights of indemnification to
which such persons may be entitled under the Corporation*s Articles of
Incorporation or Bylaws, as a matter of law, or otherwise, or any power that the
Corporation may have to indemnify them or hold them harmless.
16.7. RELATIONSHIP TO OTHER BENEFITS. No payment under the Plan shall be taken
into account in determining any benefits under any pension, retirement, savings,
profit sharing, group insurance, welfare or benefit plan of the Corporation or
any Parent or Subsidiary unless provided otherwise in such other plan.
<PAGE>
16.8. EXPENSES. The expenses of administering the Plan shall be borne by the
Corporation and its Parents or Subsidiaries.
16.9. TITLES AND HEADINGS. The titles and headings of the Sections in the Plan
are for convenience of reference only, and in the event of any conflict, the
text of the Plan, rather than such titles or headings, shall control.
16.10. GENDER AND NUMBER. Except where otherwise indicated by the context, any
masculine term used herein also shall include the feminine; the plural shall
include the singular and the singular shall include the plural.
16.11. GOVERNMENT AND OTHER REGULATIONS. The obligation of the Corporation to
make payment of awards in Stock or otherwise shall be subject to all applicable
laws, rules, and regulations, and to such approvals by government agencies as
may be required. The Corporation shall be under no obligation to register under
the 1933 Act, or any state securities act, any of the shares of Stock issued in
connection with the Plan. The shares issued in connection with the Plan may in
certain circumstances be exempt from registration under the 1933 Act, and the
Corporation may restrict the transfer of such shares in such manner as it deems
advisable to ensure the availability of any such exemption.
16.12. GOVERNING LAW. To the extent not governed by federal law, the Plan and
all Award Agreements shall be construed in accordance with and governed by the
laws of the State of Florida.
16.13 ADDITIONAL PROVISIONS. Each Award Agreement may contain such other terms
and conditions as the Committee may determine; provided that such other terms
and conditions are not inconsistent with the provisions of this Plan.
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