<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 11, 1999
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
--------------
MANSUR INDUSTRIES INC.
- --------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
FLORIDA 65-0226813
- ------------------------------- ----------------------
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification Number)
8305 N.W. 27TH STREET
SUITE 107
MIAMI, FLORIDA 33122
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(Address of Principal Executive Offices)
1996 EXECUTIVE INCENTIVE COMPENSATION PLAN
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(Full title of the Plan)
PAUL I. MANSUR
CHIEF EXECUTIVE OFFICER
MANSUR INDUSTRIES INC.
8305 N.W. 27TH STREET
SUITE 107
MIAMI, FLORIDA 33122
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(Name and address of agent for service)
(305) 593-8015
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(Telephone number, including area code, of agent for service)
COPY TO:
JEFFREY M. OSHINSKY
GREENBERG TRAURIG, P.A.
1221 BRICKELL AVENUE
MIAMI, FLORIDA 33131
(305) 579-0500
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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PROPOSED
MAXIMUM PROPOSED
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE MAXIMUM AGGREGATE AMOUNT OF
TO BE REGISTERED REGISTERED PER SHARE (1) OFFERING PRICE(1) REGISTRATION FEE
---------------- ---------- ------------- ----------------- ----------------
<S> <C> <C> <C> <C>
Common Stock, $.001 par value......... 375,000 shares $7.50-$19.50 $4,841,524.00 $1,345.94
===================================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee which
was computed in accordance with Rule 457(h) on the basis of (i) the actual
price of (i) 197,722 options granted under the Registrant's 1996 Executive
Incentive Compensation Plan (10,000 shares at $7.50; 84,680 shares at
$13.125; 3,500 shares at $14.50; 10,500 shares at $14.75; 5,500 shares at
$15.50; 1,000 shares at $15.875; 7,000 shares at $16.00; 1,000 shares at
$16.50; 2,500 shares at $17.00, 1,000 share at $19.25; and 71,042 shares at
$19.50), and (ii) an assumed price of $10.00 per share (based on the average
of the high and low sale price of the Common Stock on January 5, 1999 as
reported on the Nasdaq SmallCap Market) with respect to 177,278 shares of
Common Stock subject to future grants of options under the 1996 Executive
Incentive Compensation Plan.
<PAGE> 2
PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Registrant hereby incorporates by reference into this Registration
Statement the following documents or portions thereof as indicated:
(a) the Registrant's Annual Report on Form 10-KSB for the year ended
December 31, 1997;
(b) the Registrant's Quarterly Reports on Form 10-QSB for the quarters ended
March 31, 1998, June 30, 1998 and September 30, 1998, and all other
reports filed by the Registrant pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (the "Exchange Act") since January 1,
1998;
(c) the Registrant's Current Report on Form 8-K dated October 8, 1998;
(d) the Registrant's Schedule 14A filed on April 30, 1998 in connection with
the Registrant's 1998 Annual Meeting of Shareholders; and
(e) the description of the Registrant's Common Stock and related matters set
forth under the captions "Description of Capital Stock" and "Dividend
Policy" in the Registrant's Registration Statement on Form S-1 (File No.
333-08657) filed under the Securities Act of 1933, as amended (the "Act"),
including any amendments to such descriptions in such Registration
Statement.
In addition, all documents subsequently filed by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment which indicates that all securities
offered hereby have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated herein by reference and to be a part
hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant has authority under Section 607.0850 of the Florida
Business Corporation Act to indemnify its directors and officers to the extent
provided in such statute. The Registrant's Articles of Incorporation provide
that the Registrant shall indemnify and may insure its officers and directors to
the fullest extent not prohibited by law.
The provisions of the Florida Business Corporation Act that authorize
indemnification do not eliminate the duty of care of a director, and in
appropriate circumstances equitable remedies such as injunctive or other forms
of nonmonetary relief will remain available under Florida law. In addition, each
director will continue to be subject to liability in the event the director
breaches or fails to perform his duties as a director and such director's breach
of, or failure to perform, such duties constitutes (a) a violation of the
criminal law, unless the director had reasonable cause to believe his conduct
was lawful or had no reasonable cause to believe his conduct was unlawful;
<PAGE> 3
(b) deriving an improper personal benefit from a transaction; (c) voting for or
assenting to an unlawful distribution; (d) willful misconduct or a conscious
disregard for the best interests of the Registrant in a proceeding by or in the
right of the Registrant to procure a judgment in its favor or in a proceeding by
or in the right of a shareholder; and (e) recklessness or an act or omission
which was committed in bad faith or with malicious purpose or in a manner
exhibiting wanton and willful disregard of human rights, safety, or property in
a proceeding by or in the right of someone other than the Registrant or a
shareholder. The statute does not affect a director's responsibilities under any
other law, such as the federal securities laws or state or federal environmental
laws.
At present, there is no pending litigation or proceeding involving a
director or officer of the Registrant as to which indemnification is being
sought, nor is the Registrant aware of any threatened litigation that may result
in claims for indemnification by any officer or director.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
------- -----------
3.1 Restated Articles of Incorporation of the Registrant(1)
3.2 Bylaws of the Registrant (2)
5.1 Opinion of Greenberg Traurig, P.A.
10.1 Registrant's 1996 Executive Incentive Compensation Plan
23.1 Consent of KPMG Peat Marwick LLP
23.2 Consent of Greenberg Traurig, P.A. (contained in its opinion filed
as Exhibit 5.1 hereto)
24.1 Power of Attorney is included in the Signatures section of this
Registration Statement
- ----------
(1) Incorporated by reference to Exhibit 3.1 to the Registrant's Registration
Statement on Form S-1 (File No. 333-08657) filed on July 23, 1996.
(2) Incorporated by reference to Exhibit 3.2 to the Registrant's Registration
Statement on Form S-1 (File No. 333-08657) filed on July 23, 1996.
<PAGE> 4
ITEM 9. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
registration statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration
statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) shall not apply if
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Securities and Exchange Commission by the Registrant pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by reference in this
registration statement.
(2) That, for the purpose of determining any liability under
the Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial BONA
FIDE offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Act, each filing of the Registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial BONA
FIDE offering thereof.
(c) Insofar as indemnification for liabilities arising under the Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
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SIGNATURE
Pursuant to the requirements of the Act, the Registrant certifies that
it has reasonable grounds to believe that it meets all of the requirements for
filing on Form S-8 and has duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of
Miami, State of Florida, on 6th day of January, 1999.
MANSUR INDUSTRIES, INC.
By /s/ Paul I. Mansur
-----------------------------
Paul I. Mansur
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Paul I. Mansur his true and lawful
attorney-in-fact, acting alone, with full powers of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments, including any post-effective
amendments, to this Registration Statement, and to file the same, with exhibits
thereto, and other documents to be filed in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and confirming all that
said attorney-in-fact or his substitute, acting alone, may lawfully do or cause
to be done by virtue hereof.
Pursuant to the requirements of the Act, this Registration Statement
has been signed below by the following persons in the capacities and on the
dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
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<S> <C> <C>
/S/ PIERRE G. MANSUR Chairman of the Board and President January 6, 1999
- ---------------------------------------
Pierre G. Mansur
/S/ PAUL I. MANSUR Chief Executive Officer and Director January 6, 1999
- --------------------------------------- (principal executive officer)
Paul I. Mansur
/S/ RICHARD P. SMITH Vice President of Finance and Chief January 6, 1999
- --------------------------------------- Financial Officer
Richard P. Smith (principal financial officer and
principal accounting officer)
/S/ RONALD KORN Director January 6, 1999
- ---------------------------------------
Ronald Korn
/S/ DR. JAN HEDBERG Director January 6, 1999
- ---------------------------------------
Dr. Jan Hedberg
/S/ JOSEPH E. JACK Director January 6, 1999
- ---------------------------------------
Joseph E. Jack
</TABLE>
<PAGE> 6
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
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3.1 Restated Articles of Incorporation of the Registrant(1)
3.2 Bylaws of the Registrant(2)
5.1 Opinion of Greenberg Traurig, P.A.
10.1 Registrant's 1996 Executive Incentive Compensation Plan
23.1 Consent of KPMG Peat Marwick LLP
23.2 Consent of Greenberg Traurig, P.A. (contained in its opinion
filed as Exhibit 5.1 hereto)
24.1 Power of Attorney is included in the Signatures section of this
Registration Statement
- ---------------
(1) Incorporated by reference to Exhibit 3.1 to the Registrant's Registration
Statement on Form S-1 (File No. 333-08657, filed on July 23, 1996.
(2) Incorporated by reference to Exhibit 3.2 to the Registrant's Registration
Statement on Form S-1 (File No. 333-08657, filed on July 23, 1996.
<PAGE> 1
Exhibit 5.1
[GREENBERG TRAURIG, P.A. LETTERHEAD]
January 8, 1999
Mansur Industries Inc.
8305 N.W. 27th Street
Suite 107
Miami, Florida 33122
Gentlemen:
We have acted as counsel to Mansur Industries Inc., a Florida
corporation (the "Company"), in connection with the preparation of the Company's
Registration Statement on Form S-8 (the "Registration Statement"), covering an
aggregate of 375,000 shares of the Company's authorized but unissued common
stock, par value $.001 per share (the "Common Stock"), issuable upon exercise of
stock options, stock appreciation rights, restricted stock and other
stock-related awards that may be granted from time to time pursuant to the
Company's 1996 Executive Incentive Compensation Plan (the "Plan").
As the basis for the opinion expressed in this letter, we have examined
and relied upon the original or a copy, certified to our satisfaction, of (i)
the Articles of Incorporation and Bylaws of the Company, as amended to date;
(ii) records of corporate proceedings of the Company, authorizing the Plan and
the preparation and filing of the Registration Statement and related matters;
(iii) the Registration Statement and exhibits thereto; and (iv) such other
documents and instruments as we have deemed necessary for the expression of the
opinions herein contained. In making the foregoing examinations, we have assumed
the genuineness of all signatures and the authenticity of all documents
submitted to us as originals, and the conformity to original documents of all
documents submitted to us as certified or photostatic copies.
Based upon the foregoing examination, it is our opinion that the shares
of Common Stock issuable under the Plan, when issued in accordance with the
terms of the Plan, will be validly issued, fully paid and non-assessable.
We hereby consent to the use of this opinion in the Registration
Statement. In giving such consent, we do not admit that we come within the
category of persons whose consent is required by Section 7 of the Securities Act
of 1933, as amended, or the rules and regulations of the Securities and Exchange
Commission promulgated thereunder.
Very truly yours,
GREENBERG TRAURIG, P.A.
<PAGE> 1
EXHIBIT 10.1
MANSUR INDUSTRIES INC.
1996 EXECUTIVE INCENTIVE COMPENSATION PLAN
1. PURPOSE. The purpose of this 1996 Executive Incentive Compensation Plan (the
"Plan") is to assist Mansur Industries Inc. (the "Company") and its subsidiaries
in attracting, motivating, retaining and rewarding high-quality executives and
other employees, officers, directors and independent contractors enabling such
persons to acquire or increase a proprietary interest in the Company in order to
strengthen the mutuality of interests between such persons and the Company's
stockholders, and providing such persons with annual and long term performance
incentives to expend their maximum efforts in the creation of shareholder value.
The Plan is also intended to qualify certain compensation awarded under the Plan
for tax deductibility under Section 162(m) of the Code (as hereafter defined) to
the extent deemed appropriate by the Committee (or any successor committee) of
the Board of Directors of the Company.
2. DEFINITIONS. For purposes of the Plan, the following terms shall be defined
as set forth below, in addition to such terms defined in Section 1 hereof.
(a) "Annual Incentive Award" means a conditional right granted to a
Participant under Section 8(c) hereof to receive a cash payment, Stock or other
Award, unless otherwise determined by the Committee, after the end of a
specified fiscal year.
(b) "Award" means any Option, SAR (including Limited SAR), Restricted
Stock Deferred Stock, Stock granted as a bonus or in lieu of another award,
Dividend Equivalent, Other Stock-Based Award, Performance Award or Annual
Incentive Award, together with any other right or interest granted to a
Participant under the Plan.
(c) "Beneficiary" means the person, persons, trust or trusts which have
been designated by a Participant in his or her most recent written beneficiary
designation filed with the Committee to receive the benefits specified under the
Plan upon such Participant's death or to which Awards or other rights are
transferred if and to the extent permitted under Section 10(b) hereof. If, upon
a Participant's death, there is no designated Beneficiary or surviving
designated Beneficiary, then the term Beneficiary means person, persons, trust
or trusts entitled by will or the laws of descent and distribution to receive
such benefits.
(d) "Beneficial Owner", "Beneficially Owning" and "Beneficial
Ownership" shall have the meanings ascribed to such terms in Rule 13d-3 under
the Exchange Act and any successor to such Rule.
(e) "Board" means the Company's Board of Directors.
(f) "Change in Control" means Change in Control as defined with related
terms in Section 9 of the Plan.
(g) "Change in Control Price" means the amount calculated in accordance
with Section 9(c) of the Plan.
(h) "Code" means the Internal Revenue Code of 1986, as amended from
time to time, including regulations thereunder and successor provisions and
regulations thereto.
(i) "Committee" means a committee designated by the Board to administer
the Plan; provided, however, that the Committee shall consist solely of at least
two directors, each of whom shall be (i) a "disinterested person" within the
meaning of Rule 16b-3 under the Exchange Act, unless administration of the Plan
by "disinterested persons" is not then required in order for exemptions under
Rule 16b-3 to apply to transactions under the Plan, and (ii) an "outside
director" as defined under Section
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<PAGE> 2
162(m) of the Code, unless administration of the Plan by "outside directors" is
not then required in order to qualify for tax deductibility under Section 162(m)
of the Code.
(j) "Corporate Transaction" means a transaction as defined in Section
9(b) of the Plan.
(k) "Covered Employee" means an Eligible Person who is a Covered
Employee as specified in Section 8(e) of the Plan.
(l) "Deferred Stock" means a right, granted to a Participant under
Section 6(e) hereof, to receive Stock, cash or a combination thereof at the end
of a specified deferral period.
(m) "Director" means a member of the Board.
(n) "Disability" means a permanent and total disability (within the
meaning of Section 22(e) of the Code), as determined by a medical doctor
satisfactory to the Committee.
(o) "Dividend Equivalent" means a right, granted to a Participant under
Section 6(g) hereof, to receive cash, Stock, other Awards or other property
equal in value to dividends paid with respect to a specified number of shares of
Stock, or other periodic payments.
(p) "Effective Date" means the effective date of the Plan, which shall
be the date the Company consummates a registered initial public offering of its
Stock.
(q) "Eligible Person" means each executive officer of the Company (as
defined under the Exchange Act) and other officers, Directors and employees of
the Company or of any subsidiary, and independent contractors with the Company
or any subsidiary. The foregoing notwithstanding, no Non-Employee Director shall
be an Eligible Person for purposes of receiving any Awards under this Plan other
than Formula Grants of Options granted under Section 6(b)(iv) of the Plan and
Formula Grants of Restricted Stock granted under Section 6(d)(v) of the Plan,
and no independent contractor shall be an Eligible Person for purposes of
receiving any Awards other than Options under Section 6(b) of the Plan. An
employee on leave of absence may be considered as still in the employ of the
Company or a subsidiary for purposes of eligibility for participation in the
Plan.
(r) "Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, including rules thereunder and successor provisions
and rules thereto.
(s) "Executive Officer" means an executive officer of the Company as
defined under the Exchange Act.
(t) "Fair Market Value" means the fair market value of Stock, Awards or
other property as determined by the Committee or under procedures established by
the Committee. Unless otherwise determined by the Committee, the Fair Market
Value of Stock on any business day shall be (i) if the Stock is listed or
admitted for trading on any United States national securities exchange, or if
actual transactions are otherwise reported on a consolidated transaction
reporting system, the last reported sale price of the Stock on such exchange or
reporting system, as reported in any newspaper of general circulation, (ii) if
the Stock is quoted on the National Association of Securities Dealers Automated
Quotations System, or any similar system of automated dissemination of
quotations of securities prices in common use, the mean between the closing high
bid and low asked quotations for such day of the Stock on such system, or (iii)
if neither clause (i) or (ii) is applicable, the mean between the high bid and
low quotations for the Stock as reported by the National Quotation Bureau,
Incorporated if at least two securities dealers have inserted both bid and asked
questions for the Stock on at least 5 of the 10 preceding days.
A-2
<PAGE> 3
(u) "Formula Grants" means the Formula Grant Options and Formula Grant
Restricted Stock granted to Non-Employee Directors pursuant to Sections 6(b)(iv)
and 6(d)(v) of the Plan.
(v) "Incentive Stock Option" or "ISO" means any Option intended to be
designated as an incentive stock option within the meaning of Section 422 of the
Code or any successor provision thereto.
(w) "Incumbent Board" means the Board as defined in Section 9(b) of the
Plan.
(x) "Limited SAR" means a right granted to a Participant under Section
6(c) hereof.
(y) "Non-Employee Director" shall mean a member of the Board who is not
an employee of the Company or any subsidiary.
(z) "Option" means a right granted to a Participant under Section 6(b)
hereof, to purchase Stock or other Awards at a specified price during specified
time periods.
(aa) "Other Stock-Based Awards" means Awards granted to a Participant
under Section 6(h) hereof.
(bb) "Participant" means a person who has been granted an Award under
the Plan which remains outstanding, including a person who is no longer an
Eligible Person.
(cc) "Performance Award" means a right, granted to a Eligible Person
under Section 8 hereof, to receive Awards based upon performance criteria
specified by the Committee.
(dd) "Person" shall have the meaning ascribed to such term in Section
3(a)(9) of the Exchange Act and used in Sections 13(d) and 14(d) thereof, and
shall include a "group" as defined in Section 13(d) thereof
(ee) (intentionally omitted)
(ff) "Restricted Stock" means Stock granted to a Participant under
Section 6(d) hereof, that is subject to certain restrictions and to a risk of
forfeiture.
(gg) "Retire" or "Retirement" means termination of service as a
Director after having attained at least age 62 and having served as a Director
for at least 5 years, other than by reason of death, Disability or the
Director's willful misconduct or negligence.
(hh) "Rule 16b-3" and "Rule 16a-1(c)(3)" means Rule 16b-3 and Rule
16a-l(c)(3), as from time to time in effect and applicable to the Plan and
Participants, promulgated by the Securities and Exchange Commission under
Section 16 of the Exchange Act.
(ii) "Stock" means the Company's Common Stock, and such other
securities as may be substituted (or resubstituted) for Stock pursuant to
Section 10(c) hereof.
(jj) "Stock Appreciation Rights" or "SAR" means a right granted to a
Participant under Section 6(c) hereof.
3. ADMINISTRATION.
(a) AUTHORITY OF THE COMMITTEE. The Plan shall be administered by the
Committee. The Committee shall have full and final authority, in each case
subject to and consistent with the provisions of
A-3
<PAGE> 4
the Plan, to select Eligible Persons to become Participants, grant Awards,
determine the type, number and other terms and conditions of, and all other
matters relating to, Awards, prescribe Award agreements (which need not be
identical for each Participant) and rules and regulations for the administration
of the Plan, construe and interpret the Plan and Award agreements and correct
defects, supply omissions or reconcile inconsistencies therein, and to make all
other decisions and determinations as the Committee may deem necessary or
advisable for the administration of the Plan.
(b) MANNER OF EXERCISE OF COMMITTEE AUTHORITY. The Committee shall
exercise sole and exclusive discretion on any matter relating to a Participant
then subject to Section 16 of the Exchange Act with respect to the Company to
the extent necessary in order that transactions by such Participant shall be
exempt under Rule 16b-3 under the Exchange Act. Any action of the Committee
shall be final, conclusive and binding on all persons, including the Company,
its subsidiaries, Participants, Beneficiaries, transferees under Section 10(b)
hereof or other persons claiming rights from or through a Participant, and
stockholders. The express grant of any specific power to the Committee, and the
taking of any action by the Committee, shall not be construed as limiting any
power or authority of the Committee. The Committee may delegate to officers or
managers of the Company or any subsidiary, or committees thereof, the authority,
subject to such terms as the Committee shall determine, (i) to perform
administrative functions, (ii) with respect to Participants not subject to
Section 16 of the Exchange Act, to perform such other functions as the Committee
may determine, and (iii) with respect to Participants subject to Section 16, to
perform such other functions of the Committee as the Committee may determine to
the extent performance of such functions will not result in the loss of an
exemption under Rule 16b-3 otherwise available for transactions by such persons,
in each case to the extent permitted under applicable law and subject to the
requirements set forth in Section 8(d). The Committee may appoint agents to
assist it in administering the Plan.
(c) LIMITATION OF LIABILITY. The Committee and each member thereof
shall be entitled to, in good faith, rely or act upon any report or other
information furnished to him or her by any executive officer, other officer or
employee of the Company or a subsidiary, the Company's independent auditors,
consultants or any other agents assisting in the administration of the Plan.
Members of the Committee and any officer or employee of the Company or a
subsidiary acting at the direction or on behalf of the Committee shall not be
personally liable for any action or determination taken or made in good faith
with respect to the Plan, and shall, to the extent permitted by law, be fully
indemnified and protected by the Company with respect to any such action or
determination.
4. STOCK SUBJECT TO PLAN.
(a) OVERALL NUMBER OF SHARES SUBJECT TO AWARDS. Subject to adjustment
as provided in Section 10(c) hereof, the total number of shares of Stock that
may be subject to the granting of Awards under the Plan at any point in time
during the term of the Plan shall be 375,000.
(b) APPLICATION OF LIMITATIONS. The limitation contained in Section
4(a) shall apply not only to Awards that are settleable by the delivery of
shares of stock but also to Awards relating to shares of Stock but settleable
only in cash (such as cash-only SARs). The Committee may adopt reasonable
counting procedures to ensure appropriate counting, avoid double counting (as,
for example, in the case of tandem or substitute awards) and make adjustments if
the number of shares of Stock actually delivered differs from the number of
shares previously counted in connection with an Award.
5. ELIGIBILITY; PER-PERSON AWARD LIMITATIONS. Awards may be granted under the
Plan only to Eligible Persons. In each fiscal year during any part of which the
Plan is in effect, an Eligible Person may not be granted Awards relating to more
than 250,000 shares of Stock, subject to adjustment as provided in Section
10(c), under each of Sections 6(b), 6(c), 6(d), 6(e), 6(f), 6(g), 6(h), 8(b) and
8(c). In addition, the maximum amount that may be earned as a final Annual
Incentive Award or other cash Award in any fiscal year by any one Participant
A-4
<PAGE> 5
shall be $1,000,000, and the maximum amount that may be earned as a final
Performance Award or other cash Award in respect of a performance period by any
one Participant shall be $5,000,000.
6. SPECIFIC TERMS OF AWARDS.
(a) GENERAL. Awards may be granted on the terms and conditions set
forth in this Section 6. In addition, the Committee may impose on any Award or
the exercise thereof, at the date of grant or thereafter (subject to Section
10(e)), such additional terms and conditions, not inconsistent with the
provisions of the Plan, as the Committee shall determine, including terms
requiring forfeiture of Awards in the event of termination of employment by the
Participant and terms permitting a Participant to make Sections relating to his
or her Award. The Committee shall retain full power and discretion to
accelerate, waive or modify, at any time, any term or condition of an Award that
is not mandatory under the Plan. Except in cases in which the Committee is
authorized to require other forms of consideration under the Plan, or to the
extent other forms of consideration must be paid to satisfy the requirements of
Florida law, no consideration other than services may be required for the grant
(but not the exercise) of any Award.
(b) OPTIONS. The Committee is authorized to grant Options to
Participants on the following terms and conditions
(i) EXERCISE PRICE. The exercise price per share of
Stock purchasable under an Option shall be determined by the
Committee, provided that such exercise price shall not be less
than the Fair Market Value of a share of Stock on the date of
grant of such Option except as provided under Section 7(a)
hereof.
(ii) TIME AND METHOD OF EXERCISE. The Committee shall
determine the time or times at which or the circumstances
under which an Option may be exercised in whole or in part
(including based on achievement of performance goals and/or
future service requirements), the time or times at which
Options shall cease to be or become exercisable following
termination of employment or upon other conditions, the
methods by which such exercise price may be paid or deemed to
be paid, the form of such payment, including, without
limitation, cash, Stock, other Awards or awards granted under
other plans of the Company or any subsidiary, or other
property (including notes or other contractual obligations of
Participants to make payment on a deferred basis), and the
methods by or forms in which Stock will be delivered or deemed
to be delivered to Participants.
(iii) ISOS. The terms of any ISO granted under the
Plan shall comply in all respects with the provisions of
Section 422 of the Code. Anything in the Plan to the contrary
notwithstanding, no term of the Plan relating to ISOs
(including any SAR in tandem therewith) shall be interpreted,
amended or altered, nor shall any discretion or authority
granted under the Plan be exercised, so as to disqualify
either the Plan or any ISO under Section 422 of the Code,
unless the Participant has first requested the change that
will result in such disqualification.
(iv) FORMULA GRANTS OF OPTIONS TO NON-EMPLOYEE
DIRECTORS. Subject to adjustment as provided in the first
sentence of Section 10(c) hereof, each Non-Employee Director
shall receive (A) on the date of his or her appointment as a
Director of the Company, an Option to purchase 3,500 shares of
Stock, and (B) each year, on the day the Company issues its
earnings release for the prior fiscal year, an Option to
purchase 3,500 shares of Stock. Options granted to
Non-Employee Directors pursuant to this Section shall be for a
term of 7 years and shall become exercisable at the rate of
33-1/3% per year commencing on the first anniversary of the
date on which the Option is granted; provided, however, that
the Options shall be fully exercisable in the event that,
while serving as a Director, the NonEmployee Director dies,
suffers a Disability, or Retires. The per share exercise price
of all Options granted to Non-Employee Directors pursuant
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to this paragraph (iv) shall be equal to the Fair Market Value
of a share of Stock on the date such Option is granted. Unless
otherwise extended in the sole discretion of the Committee,
the unexercised portion of any Option granted pursuant to this
paragraph (iv) shall become null and void (V) three months
after the date on which such Non-Employee Director ceases to
be a Director of the Company for any reason other than the
Non-Employee Director's willful misconduct or negligence,
Disability, death or Retirement, (W) immediately in the event
of the Non-Employee Director's willful misconduct or
negligence, (X) one year after the Non-Employee Director
ceases to be a Director by reason of his Disability, (Y) at
the expiration of its original term, if the Non-Employee
Director ceases to be a Director by reason of his Retirement,
and (Z) twelve months after the date of the Non-Employee
Director's death in the event that such death occurs prior to
the time the Option otherwise would become null and void
pursuant to this sentence.
(c) STOCK APPRECIATION RIGHTS. The Committee is authorized to grant
SAR's to Participants on the following terms and conditions:
(i) RIGHT TO PAYMENT. A SAR shall confer on the
Participant to whom it is granted a right to receive, upon
exercise thereof, the excess of (A) the Fair Market Value of
one share of stock on the date of exercise (or, in the case of
a "Limited SAR", the Fair Market Value determined by reference
to the Change in Control Price, as defined under Section 9(c)
hereof), over (B) the grant price of the SAR as determined by
the Committee. The grant price of an SAR shall not be less
than the Fair Market Value of a share of Stock on the date of
grant except as provided under Section 7(a) hereof.
(ii) OTHER TERMS. The Committee shall determine at
the date of grant or thereafter, the time or times at which
and the circumstances under which a SAR may be exercised in
whole or in part (including based on achievement of
performance goals and/or future service requirements), the
time or times at which SARs shall cease to be or become
exercisable following termination of employment or upon other
conditions, the method of exercise, method of settlement, form
of consideration payable in settlement, method by or forms in
which Stock will be delivered or deemed to be delivered to
Participants, whether or not a SAR shall be in tandem or in
combination with any other Award, and any other terms and
conditions of any SAR. Limited SARs that may only be exercised
in connection with a Change in Control or other event as
specified by the Committee may be granted on such terms, not
inconsistent with this Section 6(c), as the Committee may
determine. SARs and Limited SARs may be either freestanding or
in tandem with other Awards.
(D) RESTRICTED STOCK. The Committee is authorized to grant Restricted
Stock to Participants on the following terms and conditions:
(i) GRANT AND RESTRICTIONS. Restricted Stock shall be
subject to such restrictions on transferability, risk of
forfeiture and other restrictions, if any, as the Committee
may impose, which restrictions may lapse separately or in
combination at such times, under such circumstances (including
based on achievement of performance goals and/or future
service requirements), in such installments or otherwise, as
the Committee may determine at the date of grant or
thereafter. In no event shall the restricted period be less
than three years unless the Restricted Stock is subject to
performance conditions in accordance with Section 8 of this
Plan, in which case the restricted period shall not be less
than one year. Except to the extent restricted under the terms
of the Plan and any Award agreement relating to the Restricted
Stock, a Participant granted Restricted Stock shall have all
of the rights of a stockholder, including the right to vote
the Restricted Stock and the right to receive dividends
thereon (subject to any mandatory reinvestment or other
requirement imposed by the Committee). During the restricted
period applicable to the Restricted Stock,
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subject to Section 10(b) below, the Restricted Stock may not
be sold, transferred, pledged, hypothecated, margined or
otherwise encumbered by the Participant.
(ii) FORFEITURE. Except as otherwise determined by
the Committee at the time of the Award, upon termination of a
Participant's employment during the applicable restriction
period, the Participant's Restricted Stock that is at that
time subject to restrictions shall be forfeited and reacquired
by the Company; provided that the Committee may provide, by
rule or regulation or in any Award agreement, or may determine
in any individual case, that restrictions or forfeiture
conditions relating to Restricted Stock shall be waived in
whole or in part in the event of terminations resulting from
specified causes.
(iii) CERTIFICATES FOR STOCK. Restricted Stock
granted under the Plan may be evidenced in such manner as the
Committee shall determine. If certificates representing
Restricted Stock are registered in the name of the
Participant, the Committee may require that such certificates
bear an appropriate legend referring to the terms, conditions
and restrictions applicable to such Restricted Stock, that the
Company retain physical possession of the certificates, and
that the Participant deliver a stock power to the Company,
endorsed in blank, relating to the Restricted Stock.
(iv) DIVIDENDS AND SPLITS. As a condition to the
grant of an Award of Restricted Stock, the Committee may
require that any cash dividends paid on a share of Restricted
Stock be automatically reinvested in additional shares of
Restricted Stock or applied to the purchase of additional
Awards under the Plan. Unless otherwise determined by the
Committee, Stock distributed in connection with a Stock split
or Stock dividend, and other property distributed as a
dividend, shall be subject to restrictions and a risk of
forfeiture to the same extent as the Restricted Stock with
respect to which such Stock or other property has been
distributed.
(v) FORMULA GRANTS OF RESTRICTED STOCK TO
NON-EMPLOYEE DIRECTORS. (intentionally omitted)
(e) DEFERRED STOCK. The Committee is authorized to grant Deferred Stock
to Participants, which are rights to receive Stock, cash, or a combination
thereof at the end of a specified deferral period, subject to the following
terms and conditions:
(i) AWARD AND RESTRICTIONS. Satisfaction of an Award
of Deferred Stock shall occur upon expiration of the deferral
period specified for such Deferred Stock by the Committee (or,
if permitted by the Committee, as elected by the Participant).
In addition, Deferred Stock shall be subject to such
restrictions (which may include a risk of forfeiture) as the
Committee may impose, if any, which restrictions may lapse at
the expiration of the deferral period or at earlier specified
times (including based on achievement of performance goals
and/or future service requirements), separately or in
combination, in installments or otherwise, as the Committee
may determine. In no event shall an Award of Deferred Stock
payable in Stock have a deferral period of less than three
years unless the Award is subject to performance conditions in
accordance with Section 8 of the Plan, in which case the
deferral period shall be for not less than one year. Deferred
Stock may be satisfied by delivery of Stock, cash equal to the
Fair Market Value of the specified number of shares of Stock
covered by the Deferred Stock, or a combination thereof, as
determined by the Committee at the date of grant or
thereafter. Prior to satisfaction of an Award of Deferred
Stock, an Award of Deferred Stock carries no voting or
dividend or other rights associated with share ownership.
(ii) FORFEITURE. Except as otherwise determined by
the Committee, upon termination of a Participant's employment
during the applicable deferral period thereof to which
forfeiture conditions apply (as provided in the Award
agreement evidencing the Deferred Stock), the
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Participant's Deferred Stock that is at that time subject to
deferral (other than a deferral at the election of the
Participant) shall be forfeited; provided that the Committee
may provide, by rule or regulation or in any Award agreement,
or may determine in any individual case, that restrictions or
forfeiture conditions relating to Deferred Stock shall 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 the forfeiture of
Deferred Stock.
(iii) DIVIDEND EQUIVALENTS. Unless otherwise
determined by the Committee at date of grant, Dividend
Equivalents on the specified number of shares of Stock covered
by an Award of Deferred Stock shall be either (A) paid with
respect to such Deferred Stock at the dividend payment date in
cash or in shares of unrestricted Stock having a Fair Market
Value equal to the amount of such dividends, or (B) deferred
with respect to such Deferred Stock and the amount or value
thereof automatically deemed reinvested in additional Deferred
Stock, other Awards or other investment vehicles, as the
Committee shall determine or permit the Participant to elect.
(f) BONUS STOCK AND AWARDS IN LIEU OF OBLIGATIONS. The Committee is
authorized to grant Stock as a bonus, or to grant Stock or other Awards in lieu
of Company obligations to pay cash or deliver other property under the Plan or
under other plans or compensatory arrangements, provided that, in the case of
Participants subject to Section 16 of the Exchange Act, the amount of such
grants remains within the discretion of the Committee to the extent necessary to
ensure that acquisitions of Stock or other Awards are exempt from liability
under Section 16(b) of the Exchange Act. Stock or Awards granted hereunder shall
be subject to such other terms as shall be determined by the Committee.
(g) DIVIDEND EQUIVALENTS. The Committee is authorized to grant Dividend
Equivalents to a Participant entitling the Participant to receive cash, Stock,
other Awards, or other property equal in value to dividends paid with respect to
a specified number of shares of Stock, or other periodic payments. Dividend
Equivalents may be awarded on a free-standing basis or in connection with
another Award. The Committee may provide that Dividend Equivalents shall be paid
or distributed when accrued or shall be deemed to have been reinvested in
additional Stock, Awards, or other investment vehicles, and subject to such
restrictions on transferability and risks of forfeiture, as the Committee may
specify.
(h) OTHER STOCK-BASED AWARDS. The Committee is authorized, subject to
limitations under applicable law, to grant to Participants such other Awards
that may be denominated or payable in, valued in whole or in part by reference
to, or otherwise based on, or related to, Stock, as deemed by the Committee to
be consistent with the purposes of the Plan, including, without limitation,
convertible or exchangeable debt securities, other rights convertible or
exchangeable into Stock, purchase rights for Stock, Awards with value and
payment contingent upon performance of the Company or any other factors
designated by the Committee, and Awards valued by reference to the book value of
Stock or the value of securities of or the performance of specified subsidiaries
or business units. The Committee shall determine the terms and conditions of
such Awards. Stock delivered pursuant to an Award in the nature of a purchase
right granted under this Section 6(h) shall be purchased for such consideration,
paid for at such times, by such methods, and in such forms, including, without
limitation, cash, Stock, other Awards or other property, as the Committee shall
determine. Cash awards, as an element of or supplement to any other Award under
the Plan, may also be granted pursuant to this Section 6(h).
7. CERTAIN PROVISIONS APPLICABLE TO AWARDS.
(a) STAND-ALONE, ADDITIONAL, 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 or exchange
for, any other Award or any award granted under another plan of the Company, any
subsidiary, or any business entity to be acquired by the Company or a
subsidiary, or any other right of a Participant to receive payment from the
Company or any subsidiary. Such additional, tandem, and
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substitute or exchange Awards may be granted at any time. If an Award is granted
in substitution or exchange for another Award or award, the Committee shall
require the surrender of such other Award or award in consideration for the
grant of the new Award. In addition, Awards may be granted in lieu of cash
compensation, including in lieu of cash amounts payable under other plans of the
Company or any subsidiary, in which the value of Stock subject to the Award is
equivalent in value to the cash compensation (for example, Deferred Stock or
Restricted Stock), or in which the exercise price, grant price or purchase price
of the Award in the nature of a right that may be exercised is equal to the Fair
Market Value of the underlying Stock minus the value of the cash compensation
surrendered (for example, Options granted with an exercise price "discounted" by
the amount of the cash compensation surrendered).
(b) TERM OF AWARDS. The term of each Award shall be for such period as
may be determined by the Committee; provided that in no event shall the term of
any Option or SAR exceed a period of ten years (or such shorter term as may be
required in respect of an ISO under Section 422 of the Code).
(c) FORM AND TIMING OF PAVEMENT UNDER AWARDS; DEFERRALS. Subject to the
terms of the Plan and any applicable Award agreement, payments to be made by the
Company or a subsidiary upon the exercise of an Option or other Award or
settlement of an Award may be made in such forms as the Committee shall
determine, including, without limitation, cash, Stock, other Awards or other
property, and may be made in a single payment or transfer, in installments, or
on a deferred basis. The settlement of any Award may be accelerated, and cash
paid in lieu of Stock in connection with such settlement, in the discretion of
the Committee or upon occurrence of one or more specified events (in addition to
a Change in Control). Installment or deferred payments may be required by the
Committee (subject to Section 10(e) of the Plan) or permitted at the election of
the Participant on terms and conditions established by the Committee. Payments
may include, without limitation, provisions for the payment or crediting of a
reasonable interest rate on installment or deferred payments or the grant or
crediting of Dividend Equivalents or other amounts in respect of installment or
deferred payments denominated in Stock.
(d) EXEMPTIONS FROM SECTION 16(b) LIABILITY. It is the intent of the
Company that this Plan comply in all respects with applicable provisions of Rule
16b-3 or Rule 16a-l(c)(3) to the extent necessary to ensure that neither the
grant of any Awards to nor other transaction by a Participant who is subject to
Section 16 of the Exchange Act is subject to liability under Section 16(b)
thereof (except for transactions acknowledged in writing to be non-exempt by
such Participant). Accordingly, if any provision of this Plan or any Award
agreement does not comply with the requirements of Rule 16b-3 or Rule
16a-l(c)(3) as then applicable to any such transaction, such provision will be
construed or deemed amended to the extent necessary to conform to the applicable
requirements of Rule 16b-3 or Rule 16a-l(c)(3) so that such Participant shall
avoid liability under Section 16(b). In addition, the purchase price of any
Award conferring a right to purchase Stock shall be not less than any specified
percentage of the Fair Market Value of Stock at the date of grant of the Award
then required in order to comply with Rule 16b-3.
8. PERFORMANCE AND ANNUAL INCENTIVE AWARDS.
(a) PERFORMANCE CONDITIONS. The right of a Participant to exercise or
receive a grant or settlement of any Award, and the timing thereof, may be
subject to such performance conditions as may be specified by the Committee. The
Committee may use such business criteria and other measures of performance as it
may deem appropriate in establishing any performance conditions, and may
exercise its discretion to reduce the amounts payable under any Award subject to
performance conditions, except as limited under Sections 8(b) and 8(c) hereof in
the case of a Performance Award or Annual Incentive Award intended to qualify
under Code Section 162(m).
(b) PERFORMANCE AWARDS GRANTED TO DESIGNATED COVERED EMPLOYEES. If and
to the extent that the Committee determines that a Performance Award to be
granted to an Eligible Person who is designated by the Committee as likely to be
a Covered Employee should qualify as "performance-based
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compensation" for purposes of Code Section 162(m), the grant, exercise and/or
settlement of such Performance Award shall be contingent upon achievement of
preestablished performance goals and other terms set forth in this Section 8(b).
(i) PERFORMANCE GOALS GENERALLY. The performance
goals for such Performance Awards shall consist of one or more
business criteria and a targeted level or levels of
performance with respect to each of such criteria, as
specified by the Committee consistent with this Section 8(b).
Performance goals shall be objective and shall otherwise meet
the requirements of Code Section 162(m) and regulations
thereunder including the requirement that the level or levels
of performance targeted by the Committee result in the
achievement of performance goals being "substantially
uncertain." The Committee may determine that such Performance
Awards shall be granted, exercised and/or settled upon
achievement of any one performance goal or that two or more of
the performance goals must be achieved as a condition to
grant, exercise and/or settlement of such Performance Awards.
Performance goals may differ for Performance Awards granted to
any one Participant or to different Participants.
(ii) BUSINESS CRITERIA. One or more of the following
business criteria for the Company, on a consolidated basis,
and/or specified subsidiaries or business units of the Company
(except with respect to the total stockholder return and
earnings per share criteria), shall be used exclusively by the
Committee in establishing performance goals for such
Performance Awards: (1) total stockholder return; (2) such
total stockholder return as compared to total return (on a
comparable basis) of a publicly available index such as, but
not limited to, the Standard & Poor's 500 Stock Index or the
S&P Specialty Retailer Index; (3) net income; (4) pretax
earnings; (5) earnings before interest expense, taxes,
depreciation and amortization; (6) pretax operating earnings
after interest expense and before bonuses, service fees, and
extraordinary or special items; (7) operating margin; (8)
earnings per share; (9) growth in earnings per share; (10)
return on equity; (11) return on capital; (12) return on
investment; (13) operating earnings; (14) working capital or
inventory; and (15) ratio of debt to stockholders' equity. One
or more of the foregoing business criteria shall also be
exclusively used in establishing performance goals for Annual
Incentive Awards granted to a Covered Employee under Section
8(c) hereof.
(iii) PERFORMANCE PERIOD; TIMING FOR ESTABLISHING
PERFORMANCE GOALS. Achievement of performance goals in respect
of such Performance Awards shall be measured over a
performance period of up to ten years, as specified by the
Committee. Performance goals shall be established not later
than 90 days after the beginning of any performance period
applicable to such Performance Awards, or at such other date
as may be required or permitted for "performance-based
compensation" under Code Section 162(m).
(iv) PERFORMANCE AWARD POOL. The Committee may
establish a Performance Award pool, which shall be an unfunded
pool, for purposes of measuring Company performance in
connection with Performance Awards. The amount of such
Performance Award pool shall be based upon the achievement of
a performance goal or goals based on one or more of the
business criteria set forth in Section 8(b)(ii) hereof during
the given performance period, as specified by the Committee in
accordance with Section 8(b)(iii) hereof. The Committee may
specify the amount of the Performance Award pool as a
percentage of any of such business criteria, a percentage
thereof in excess of a threshold amount, or as another amount
which need not bear a strictly mathematical relationship to
such business criteria.
(v) SETTLEMENT OF PERFORMANCE AWARDS; OTHER TERMS.
Settlement of such Performance Awards shall be in cash, Stock,
other Awards or other property, in the discretion of the
Committee. The Committee may, in its discretion, reduce the
amount of a settlement otherwise to be made in connection with
such Performance Awards. The Committee shall specify the
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circumstances in which such Performance Awards shall be paid
or forfeited in the event of termination of employment by the
Participant prior to the end of a performance period or
settlement of Performance Awards.
(c) ANNUAL INCENTIVE AWARDS GRANTED TO DESIGNATED COVERED EMPLOYEES. If
and to the extent that the Committee determines that an Annual Incentive Award
to be granted to an Eligible Person who is designated by the Committee as likely
to be a Covered Employee should qualify as "performance-based compensation" for
purposes of Code Section 162(m), the grant, exercise and/or settlement of such
Annual Incentive Award shall be contingent upon achievement of preestablished
performance goals and other terms set forth in this Section 8(c).
(i) ANNUAL INCENTIVE AWARD POOL. The Committee may
establish an Annual Incentive Award pool, which shall be an
unfunded pool, for purposes of measuring Company performance
in connection with Annual Incentive Awards. The amount of such
Annual Incentive Award pool shall be based upon the
achievement of a performance goal or goals based on one or
more of the business criteria set forth in Section 8(b)(ii)
hereof during the given performance period, as specified by
the Committee in accordance with Section 8(b)(iii) hereof. The
Committee may specify the amount of the Annual Incentive Award
pool as a percentage of any such business criteria, a
percentage thereof in excess of a threshold amount, or as
another amount which need not bear a strictly mathematical
relationship to such business criteria.
(ii) POTENTIAL ANNUAL INCENTIVE AWARDS. Not later
than the end of the 90th day of each fiscal year, or at such
other date as may be required or permitted in the case of
Awards intended to be "performance-based compensation" under
Code Section 162(m), the Committee shall determine the
Eligible Persons who will potentially receive Annual Incentive
Awards, and the amounts potentially payable thereunder, for
that fiscal year, either out of an Annual Incentive Award pool
established by such date under Section 8(c)(i) hereof or as
individual Annual Incentive Awards. In the case of individual
Annual Incentive Awards intended to qualify under Code Section
162(m), the amount potentially payable shall be based upon the
achievement of a performance goal or goals based on one or
more of the business criteria set forth in Section 8(b)(ii)
hereof in the given performance year, as specified by the
Committee; in other cases, such amount shall be based on such
criteria as shall be established by the Committee. In all
cases, the maximum Annual Incentive Award of any Participant
shall be subject to the limitation set forth in Section 5
hereof.
(iii) PAYOUT OF ANNUAL INCENTIVE AWARDS. After the
end of each fiscal year, the Committee shall determine the
amount, if any, of (A) the Annual Incentive Award pool, and
the maximum amount of potential Annual Incentive Award payable
to each Participant in the Annual Incentive Award pool, or (B)
the amount of potential Annual Incentive Award otherwise
payable to each Participant. The Committee may, in its
discretion, determine that the amount payable to any
Participant as a final Annual Incentive Award shall be reduced
from the amount of his or her potential Annual Incentive
Award, including a determination to make no final Award
whatsoever. The Committee shall specify the circumstances in
which an Annual Incentive Award shall be paid or forfeited in
the event of termination of employment by the Participant
prior to the end of a fiscal year or settlement of such Annual
Incentive Award.
(d) WRITTEN DETERMINATIONS. All determinations by the Committee as to
the establishment of performance goals, the amount of any Performance Award pool
or potential individual Performance Awards and as to the achievement of
performance goals relating to Performance Awards under Section 8(b), and the
amount of any Annual Incentive Award pool or potential individual Annual
Incentive Awards and the amount of final Annual Incentive Awards under Section
8(c), shall be made in writing in the case
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of any Award intended to qualify under Code Section 162(m). The Committee may
not delegate any responsibility relating to such Performance Awards or Annual
Incentive Awards.
(e) STATUS OF SECTION 8(b) AND SECTION 8(c) AWARDS UNDER CODE SECTION
162(m). It is the intent of the Company that Performance Awards and Annual
Incentive Awards under Section 8(b) and 8(c) hereof granted to persons who are
designated by the Committee as likely to be Covered Employees within the meaning
of Code Section 162(m) and regulations thereunder shall, if so designated by the
Committee, constitute "qualified performance-based compensation" within the
meaning of Code Section 162(m) and regulations thereunder. Accordingly, the
terms of Sections 8(b), (c), (d) and (e), including the definitions of Covered
Employee and other terms used therein, shall be interpreted in a manner
consistent with Code Section 162(m) and regulations thereunder. The foregoing
notwithstanding, because the Committee cannot determine with certainty whether a
given Participant will be a Covered Employee with respect to a fiscal year that
has not yet been completed, the term Covered Employee as used herein shall mean
only a person designated by the Committee, at the time of grant of Performance
Awards or an Annual Incentive Award, as likely to be a Covered Employee with
respect to that fiscal year. If any provision of the Plan or any agreement
relating to such Performance Awards or Annual Incentive Awards does not comply
or is inconsistent with the requirements of Code Section 162(m) or regulations
thereunder, such provision shall be construed or deemed amended to the extent
necessary to conform to such requirements.
9. CHANGE IN CONTROL
(a) EFFECT OF "CHANGE IN CONTROL." In the event of a "Change in
Control," as defined in Section 9(b), the following provisions shall apply:
(i) Any Award carrying a right to exercise that was
not previously exercisable and vested shall become fully
exercisable and vested as of the time of the Change in Control
and shall remain exercisable and vested for the balance of the
stated term of such Award without regard to any termination of
employment by the Participant, subject only to applicable
restrictions set forth in Section 10(a) hereof;
(ii) Any optionee who holds an Option shall be
entitled to elect, during the 60-day period immediately
following a Change in Control, in lieu of acquiring the shares
of Stock covered by such Option, to receive, and the Company
shall be obligated to pay, in cash the excess of the Change in
Control Price over the exercise price of such Option,
multiplied by the number of shares of Stock covered by such
Option; provided, however, that no optionee who is subject to
Section 16 with respect to the Company at the time of the
Change in Control shall be entitled to make such an election
if the acquisition of the right to make such election would
represent a non-exempt purchase under Section 16(b) by such
optionee;
(iii) Limited SARs (and other SARs if so provided by
their terms) shall become exercisable for amounts, in cash,
determined by reference to the Change in Control Price.
(iv) The restrictions, deferral of settlement, and
forfeiture conditions applicable to any other Award granted
under the Plan shall lapse and such Awards shall be deemed
fully vested as of the time of the Change in Control, except
to the extent of any waiver by the Participant and subject to
applicable restrictions set forth in Section 10(a) hereof; and
(v) With respect to any such outstanding Award
subject to achievement of performance goals and conditions
under the Plan, such performance goals and other conditions
will be deemed to be met if and to the extent so provided by
the Committee in the Award agreement relating to such Award.
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(b) DEFINITION OF "CHANGE IN CONTROL." A "Change in Control" shall be
deemed to have occurred upon:
(i) An acquisition by any Person of Beneficial
Ownership of the shares of Common Stock of the Company then
outstanding (the "Company Common Stock Outstanding") or the
voting securities of the Company then outstanding entitled to
vote generally in the election of directors (the "Company
Voting Securities Outstanding") if such acquisition of
Beneficial Ownership results in the Person's Beneficially
Owning 25% or more of the Company Common Stock outstanding or
25% or more of the combined voting power of the Company Voting
Securities Outstanding; or
(ii) The approval by the stockholders of the Company
of a reorganization, merger, consolidation, complete
liquidation or dissolution of the Company, sale or disposition
of all or substantially all of the assets of the Company, or
similar corporate transaction (in each case referred to in
this Section 9(b) as a "Corporate Transaction") or, if
consummation of such Corporate Transaction is subject, at the
time of such approval by stockholders, to the consent of any
government or governmental agency, the obtaining of such
consent (either explicitly or implicitly); provided, however,
that any merger, consolidation, sale, disposition or other
similar transaction to or with one or more Participants or
entities controlled by one or more Participants shall not
constitute a Corporate Transaction in respect of such
Participant(s); or
(iii) A change in the composition of the Board such
that the individuals who, as of the Effective Date, constitute
the Board (such Board shall be hereinafter referred to as the
"Incumbent Board") cease for any reason to constitute at least
a majority of the Board; provided, however, for purposes of
this Section 9(b), that any individual who becomes a member of
the Board subsequent to the Effective Date whose election, or
nomination for election by the Company's stockholders, was
approved by a vote of at least a majority of those individuals
who are members of the Board and who were also members of the
Incumbent Board (or deemed to be such pursuant to this
proviso) shall be considered as though such individual were a
member of the Incumbent Board; and, provided, further, that
any such individual whose initial assumption of office occurs
as a result of either an actual or threatened election contest
subject to Rule 14a-11 of Regulation 14A under the Exchange
Act, including any successor to such Rule, or other actual or
threatened solicitation of proxies or consents by or on behalf
of a Person other than the Board shall in no event be
considered as a member of the Incumbent Board.
Notwithstanding the provisions set forth in subparagraphs (i) and (ii)
of this Section 9(b), the following shall not constitute a Change in Control for
purposes of the Plan: (1) any acquisition by or consummation of a Corporate
Transaction with any entity that was a subsidiary of the Company immediately
prior to the transaction or an employee benefit plan (or related trust)
sponsored or maintained by the Company or an entity that was a subsidiary of the
Company immediately prior to the transaction if, immediately after such
transaction (including consummation of all related transactions, the surviving
entity is controlled by no Person other than such subsidiary, employee benefit
plan (or related trust) and/or other Persons who controlled the Company
immediately prior to such transaction; or (2) any acquisition or consummation of
a Corporate Transaction following which more than 50% of, respectively, the
shares then outstanding of common stock of the corporation resulting from such
acquisition or Corporate Transaction and the combined voting power of the voting
securities then outstanding of such corporation entitled to vote generally in
the election of directors is then Beneficially Owned, directly or indirectly, by
all or substantially all of the individuals and entities who were Beneficial
Owners, respectively, of the Company Common Stock Outstanding and Company Voting
Securities Outstanding immediately prior to such acquisition or Corporate
Transaction in substantially the same proportions as their ownership,
immediately prior to such acquisition or Corporate Transaction, of the Company
Common Stock Outstanding and Company Voting Securities Outstanding, as the case
may be.
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(c) DEFINITION OF "CHANGE IN CONTROL PRICE." The "Change in Control
Price" means an amount in cash equal to the higher of (i) the amount of cash and
fair market value of property that is the highest price per share paid
(including extraordinary dividends) in any Corporate Transaction triggering the
Change in Control under Section 9(b)(ii) hereof or any liquidation of shares
following a sale of substantially all assets of the Company, or (ii) the highest
Fair Market Value per share at any time during the 60-day period preceding and
60-day period following the Change in Control.
10. GENERAL PROVISIONS.
(a) COMPLIANCE WITH LEGAL AND OTHER REQUIREMENTS. The Company may, to
the extent deemed necessary or advisable by the Committee, postpone the issuance
or delivery of Stock or payment of other benefits under any Award until
completion of such registration or qualification of such Stock or other required
action under any federal or state law, rule or regulation, listing or other
required action with respect to any stock exchange or automated quotation system
upon which the Stock or other Company securities are listed or quoted, or
compliance with any other obligation of the Company, as the Committee may
consider appropriate, and may require any Participant to make such
representations, furnish such information and comply with or be subject to such
other conditions as it may consider appropriate in connection with the issuance
or delivery of Stock or payment of other benefits in compliance with applicable
laws, rules, and regulations, listing requirements, or other obligations. The
foregoing notwithstanding, in connection with a Change in Control, the Company
shall take or cause to be taken no action, and shall undertake or permit to
arise no legal or contractual obligation, that results or would result in any
postponement of the issuance or delivery of Stock or payment of benefits under
any Award or the imposition of any other conditions on such issuance, delivery
or payment, to the extent that such postponement or other condition would
represent a greater burden on a Participant than existed on the 90th day
preceding the Change in Control.
(b) LIMITS ON TRANSFERABILITY; BENEFICIARIES. No Award or other right
or interest of a Participant under the Plan, including any Award or right which
constitutes a derivative security as generally defined in Rule 16a-l(c) under
the Exchange Act, shall be pledged, hypothecated or otherwise encumbered or
subject to any lien, obligation or liability of such Participant to any party
(other than the Company or a subsidiary), or assigned or transferred by such
Participant otherwise than by will or the laws of descent and distribution or to
a Beneficiary upon the death of a Participant, and such Awards or rights that
may be exercisable shall be exercised during the lifetime of the Participant
only by the Participant or his or her guardian or legal representative, except
that Awards and other rights (other than ISOs and SARs in tandem therewith) may
be transferred to one or more Beneficiaries or other transferees during the
lifetime of the Participant, and may be exercised by such transferees in
accordance with the terms of such Award, but only if and to the extent such
transfers and exercises are permitted by the Committee pursuant to the express
terms of an Award agreement (subject to any terms and conditions which the
Committee may impose thereon, and further subject to any prohibitions or
restrictions on such transfers pursuant to Rule 16b-3). A Beneficiary,
transferee, or other person claiming any rights under the Plan from or through
any Participant shall be subject to all terms and conditions of the Plan and any
Award agreement applicable to such Participant, except as otherwise determined
by the Committee, and to any additional terms and conditions deemed necessary or
appropriate by the Committee.
(c) ADJUSTMENTS. In the event that any dividend or other distribution
(whether in the form of cash, Stock, or other property), recapitalization,
forward or reverse split, reorganization, merger, consolidation, spin-off,
combination, repurchase, share exchange, liquidation, dissolution or other
similar corporate transaction or event affects the Stock such that an adjustment
is determined by the Committee to be appropriate in order to prevent dilution or
enlargement of the rights of Participants under the Plan, then the Committee
shall, in such manner as it may deem equitable, adjust any or all of (i) the
number and kind of shares of Stock which may be delivered in connection with
Awards granted thereafter, (ii) the number
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<PAGE> 15
and kind of shares of Stock by which annual per-person Award limitations are
measured under Section 5 hereof, (iii) the number and kind of shares of Stock
subject to or deliverable in respect of outstanding Awards and (iv) the exercise
price, grant price or purchase price relating to any Award and/or make provision
for payment of cash or other property in respect of any outstanding Award. In
addition, the Committee is authorized to make adjustments in the terms and
conditions of, and the criteria included in, Awards (including Performance
Awards and performance goals, and Annual Incentive Awards and any Annual
Incentive Award pool or performance goals relating thereto) in recognition of
unusual or nonrecurring events (including, without limitation, events described
in the preceding sentence, as well as acquisitions and dispositions of
businesses and assets) affecting the Company, any subsidiary or any business
unit, or the financial statements of the Company or any subsidiary, or in
response to changes in applicable laws, regulations, accounting principles, tax
rates and regulations or business conditions or in view of the Committee's
assessment of the business strategy of the Company, any subsidiary or business
unit thereof, performance of comparable organizations, economic and business
conditions, personal performance of a Participant, and any other circumstances
deemed relevant; provided that no such adjustment shall be authorized or made if
and to the extent that such authority or the making of such adjustment would
cause Options, SARs, Performance Awards granted under Section 8(b) hereof or
Annual Incentive Awards granted under Section 8(c) hereof to Participants
designated by the Committee as Covered Employees and intended to qualify as
"performance-based compensation" under Code Section 162(m) and the regulations
thereunder to otherwise fail to qualify as "performance-based compensation"
under Code Section 162(m) and regulations thereunder.
(d) TAXES. The Company and any subsidiary is authorized to withhold
from any Award granted, any payment relating to an Award under the Plan,
including from a distribution of Stock, or any payroll or other payment to a
Participant, amounts of withholding and other taxes due or potentially payable
in connection with any transaction involving an Award, and to take such other
action as the Committee may deem advisable to enable the Company and
Participants to satisfy obligations for the payment of withholding taxes and
other tax obligations relating to any Award. This authority shall include
authority to withhold or receive Stock or other property and to make cash
payments in respect thereof in satisfaction of a Participant's tax obligations,
either on a mandatory or elective basis in the discretion of the Committee.
(e) CHANGES TO THE PLAN AND AWARDS. The Board may amend, alter,
suspend, discontinue or terminate the Plan or the Committee's authority to grant
Awards under the Plan without the consent of stockholders or Participants,
except that any amendment or alteration to the Plan shall be subject to the
approval of the Company's stockholders not later than the annual meeting next
following such Board action if such amendment represents a material change to
the Plan or such stockholder approval is required by any federal or state law or
regulation (including, without limitation, Rule 16b-3 or Code Section 162(m))
or the rules of any stock exchange or automated quotation system on which the
Stock may then be listed or quoted, and the Board may otherwise, in its
discretion, determine to submit other such changes to the Plan to stockholders
for approval; provided that, without the consent of an affected Participant, no
such Board action may materially and adversely affect the rights of such
Participant under any previously granted and outstanding Award. The Committee
may waive any conditions or rights under, or amend, alter, suspend, discontinue
or terminate any Award theretofore granted and any Award agreement relating
thereto, except as otherwise provided in the Plan; provided that, without the
consent of an affected Participant, no such Committee action may materially and
adversely affect the rights of such Participant under such Award.
Notwithstanding anything in the Plan to the contrary, if any right under this
Plan would cause a transaction to be ineligible for pooling of interest
accounting that would, but for the right hereunder, be eligible for such
accounting treatment, the Committee may modify or adjust the right so that
pooling of interest accounting shall be available, including the substitution of
Stock having a Fair Market Value equal to the cash otherwise payable hereunder
for the right which caused the transaction to be ineligible for pooling of
interest accounting. Notwithstanding anything hereto to the contrary, the
provisions of Section 6(b)(iv) and Section 6(d)(v) of this Plan which govern
formula grants of Options and Restricted Stock to
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<PAGE> 16
Non-Employee Directors, shall not be amended more than once every six months
other than to comport with changes to the Code or the rules promulgated
thereunder or the Employee Retirement Income Security Act of 1974, as amended,
or the rules promulgated thereunder, or with rules promulgated by the Securities
and Exchange Commission, unless such limit on amendments is not required under
Rule 16b-3 or other applicable law.
(f) LIMITATION ON RIGHTS CONFERRED UNDER PLAN. Neither the Plan nor any
action taken hereunder shall be construed as (i) giving any Eligible Person or
Participant the right to continue as an Eligible Person or Participant or in the
employ of the Company or a subsidiary; (ii) interfering in any way with the
right of the Company or a subsidiary to terminate any Eligible Person's or
Participant's employment at any time, (iii) giving an Eligible Person or
Participant any claim to be granted any Award under the Plan or to be treated
uniformly with other Participants and employees, or (iv) conferring on a
Participant any of the rights of a stockholder of the Company unless and until
the Participant is duly issued or transferred shares of Stock in accordance with
the terms of an Award.
(g) UNFUNDED STATUS OF AWARDS; CREATION OF TRUSTS. The Plan is intended
to constitute an "unfunded" plan for incentive and deferred compensation. With
respect to any payments not yet made to a Participant or obligation to deliver
Stock pursuant to an Award, nothing contained in the Plan or any Award shall
give any such Participant any rights that are greater than those of a general
creditor of the Company; provided that the Committee may authorize the creation
of trusts and deposit therein cash, Stock, other Awards or other property, or
make other arrangements to meet the Company's obligations under the Plan. Such
trusts or other arrangements shall be consistent with the "unfunded" status of
the Plan unless the Committee otherwise determines with the consent of each
affected Participant. The trustee of such trusts may be authorized to dispose of
trust assets and reinvest the proceeds in alternative investments, subject to
such terms and conditions as the Committee may specify and in accordance with
applicable law.
(h) NONEXCLUSIVITY OF THE PLAN. Neither the adoption of the Plan by the
Board nor its submission to the stockholders of the Company for approval shall
be construed as creating any limitations on the power of the Board or a
committee thereof to adopt such other incentive arrangements as it may deem
desirable including incentive arrangements and awards which do not qualify under
Code Section 162(m).
(i) PAYMENTS IN THE EVENT OF FORFEITURES; FRACTIONAL SHARES. Unless
otherwise determined by the Committee, in the event of a forfeiture of an Award
with respect to which a Participant paid cash or other consideration, the
Participant shall be repaid the amount of such cash or other consideration. No
fractional shares of Stock shall be issued or delivered pursuant to the Plan or
any Award. The Committee shall determine whether cash, other Awards or other
property shall be issued or paid in lieu of such fractional shares or whether
such fractional shares or any rights thereto shall be forfeited or otherwise
eliminated.
(j) GOVERNING LAW. The validity, construction and effect of the Plan,
any rules and regulations under the Plan, and any Award agreement shall be
determined in accordance with the laws of the State of Florida without giving
effect to principles of conflicts of laws, and applicable federal law.
(k) AWARDS UNDER PREEXISTING PLANS. Upon approval of the Plan by
stock-holders of the Company, as required under Section 10(1) hereof, no further
Awards shall be granted under any Preexisting Plan.
(l) PLAN EFFECTIVE DATE AND STOCKHOLDER APPROVAL; TERMINATION OF PLAN.
The Plan shall become effective on the Effective Date, subject to subsequent
approval by stockholders of the Company eligible to vote in the election of
directors, by a vote sufficient to meet the requirements of Code Section 162(m)
and 422, Rule 16b-3 under the Exchange Act, applicable NASDAQ requirements, and
other laws,
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<PAGE> 17
regulations, and obligations of the Company applicable to the Plan.
Awards may be granted subject to stockholder approval, but may not be exercised
or otherwise settled in the event stockholder approval is not obtained. The Plan
shall terminate at such time as no shares of Common Stock remain available for
issuance under the Plan and the Company has no further rights or obligations
with respect to outstanding Awards under the Plan.
(m) AGREEMENT WITH UNDERWRITER. The Company will agree with the
Underwriter of the Company's initial public offering that for a 13-month period
immediately following the effective date of this Plan, the Company will not,
without the consent of the Underwriter, adopt or propose to adopt any plan or
arrangement permitting the grant, issue or sale of any shares of its Common
Stock or issue, sell or offer for sale any of its Common Stock, or grant any
option for its Common Stock which shall: (x) have an exercise price per share of
Common Stock less than (a) the initial public offering price of the Common Stock
offered in this Prospectus or (b) the fair market value of the Common Stock on
the date of grant; or (y) be granted to any direct or indirect beneficial holder
of more than 10% of the issued and outstanding Common Stock of the Company. No
option or other right to acquire Common Stock granted, issued or sold during the
13-month period immediately following the effective date of this Plan shall
permit (a) the payment with any form of consideration other than cash, (b)
payment of less than the full purchase or exercise price for such shares of
Common Stock or other securities of the Company on or before the date of
issuance, or (c) the existence of stock appreciation rights, phantom options or
similar arrangements.
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<PAGE> 1
Exhibit 23.1
Independent Auditor's Consent
The Board of Directors
Mansur Industries, Inc.:
We consent to incorporation by reference in the registration statement on Form
S-8 of Mansur Industries, Inc. of our report dated February 29, 1998, relating
to the balance sheets of Mansur Industries, Inc. as of December 31, 1997 and
1996, and the related statements of operations, stockholders' equity and cash
flows for each of the years in the three year period ended December 31, 1997 and
all related schedules, which report appears in the December 31, 1997 annual
report on Form 10-KSB of Mansur Industries, Inc.
KPMG LLP
Miami, Florida
January 4, 1999
