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Exhibit 10(v)
▇▇▇▇▇▇ CORPORATION
STOCK OPTION AGREEMENT
TERMS AND CONDITIONS
(AS OF 8/22/97)
1. THE OPTION - TERMS AND CONDITIONS. Under and subject to the
provisions of the Corporation's Stock Incentive Plan as in effect from time to
time (the "Plan"), the Corporation has granted to the Employee a non-statutory
option (the "Option") to purchase such number of shares of Common Stock of the
Corporation as set forth and designated in writing by the Corporation to the
Employee at the designated price per share. Such grant is subject to the
following Terms and Conditions:
(a) The Option shall not be exercisable to any extent until
and unless the Employee shall have remained continuously in the employ
of the Corporation for one year from the grant date. The grant of the
Option shall not limit or restrict the Corporation's rights to
terminate the Employee's employment.
(b) During the lifetime of the Employee, the Option shall be
exercisable only by the Employee, and (except when Section 2 is
applicable) only while the Employee continues as an Employee of the
Corporation.
(c) Notwithstanding any other provision of these Terms and
Conditions and the Agreement of which they form a part, the Option
shall expire no later than ten years from the grant date (the
"Expiration Date"), and shall not be exercisable thereafter.
(d) The Option is exercisable as follows:
(i) After the end of one year and prior to the end
of two years from the grant date, not more than fifty percent
of the grant;
(ii) After the end of two years and prior to the end
of three years from the grant date, not more than seventy-five
percent of the grant; and
(iii) After the end of three years from the grant
date, one-hundred percent of the grant.
(e) Upon a "change of control" of the Corporation (as defined
in Section 11.1 of the Plan) any outstanding Option shall immediately
become fully exercisable, provided that if the Employee is an officer
of the Corporation and a stock appreciation right has been granted with
respect to a portion or all of the shares covered by these Terms and
Conditions, the Option granted as to such shares may not in any event
be exercised prior to the end of six months from the grant date, but
the time set forth in Paragraph 2(d) shall be extended accordingly.
2. TERMINATION OF EMPLOYMENT.
(a) DEATH. In the event of the death of the Employee, the
Option shall be exercisable only within the twelve (12) months
following the date of death, but no later than the Expiration Date and
then only (i) by the executor or administrator of the Employee's estate
or by the person or persons to whom the Employee's rights under the
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Option shall pass by the Employee's will or the laws of descent and
distribution, and (ii) if and to the extent that the Option was
exercisable at the date of the Employee's death.
(b) DISABILITY. In the event of disability of the Employee,
the Option shall be exercisable by the Employee only within the twelve
(12) months following such cessation of employment but no later than
the Expiration Date and to the extent that the Option was exercisable
at the date of such cessation of employment, and no more.
(c) RETIREMENT. In the event of retirement of the Employee,
the Option shall, if the retirement occurs after the Employee has
reached age 55 and has ten or more years of full-time service, be
exercisable by the Employee within thirty six (36) months following
such retirement, but no later than the Expiration Date and to the
extent that the Option was exercisable at the date of such retirement,
and no more.
(d) TERMINATION OF EMPLOYMENT. In the event of termination of
employment for reasons other than death, disability or retirement at
age 55 with ten or more years of full-time service, the Option shall be
exercisable only by the Employee within three (3) months following such
cessation of employment but no later than the Expiration Date and to
the extent that it was exercisable at the date of such cessation of
employment, and no more. The three month period shall be increased to
such greater period up to six months as may be necessary to permit
exercise by an Employee who is an officer under the conditions set
forth in Section 1(e).
3. EXERCISE OF OPTION. The Option may be exercised by delivering to the
Corporation at the office of the Corporate Secretary (i) a written notice,
signed by the person entitled to exercise the Option, stating the number of
shares such person then elects to purchase, (ii) payment in an amount equal to
the full purchase price of the shares then to be purchased, and (iii) in the
event the Option is exercised by any person other than the Employee, evidence
satisfactory to the Corporation that such person has the right to exercise the
Option. Payment shall be made (a) in cash, (b) in previously acquired shares of
Common Stock of the Corporation, or (c) in any combination of cash and such
shares. Shares tendered in payment of the purchase price which have been
acquired through an exercise of a stock option shall have been held at least six
months prior to exercise of the Option and shall be valued at the closing price
as reported in the consolidated transaction system for the day preceding the
date of exercise of the Option. Upon the exercise of the Option, the Corporation
shall issue and deliver to the Employee, one or more certificates for the shares
in respect of which the Option shall have been so exercised. The Employee does
not have any rights as a shareholder in respect of any shares as to which the
Option shall not have been duly exercised and no rights as a shareholder shall
exist prior to the proper exercise of such Option.
4. PROHIBITION AGAINST TRANSFER. The Option and rights granted by the
Corporation under these Terms and Conditions and the Agreement of which they
form a part are not transferable except to family members or trust, by will or
by the laws of descent and distribution, provided that the Option may not be
transferred to family members or trusts except as permitted by applicable law or
regulations. Without limiting the generality of the foregoing, the Option may
not be assigned, transferred except as aforesaid, pledged or hypothecated, shall
not be assignable by operation of law, and shall not be subject to execution,
attachment or similar process. Any attempted assignment, transfer, pledge,
hypothecation or other disposition of the Option contrary to the provisions
hereof, or the levy of any execution, attachment or similar process upon the
Option, shall be null and void and without effect.
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5. EMPLOYMENT BY PARENT, SUBSIDIARY OR SUCCESSOR. For the purpose of
these Terms and Conditions and the Agreement of which they form a part,
employment by a parent or subsidiary of or a successor to the Corporation shall
be considered employment by the Corporation. "Parent" and "subsidiary" as used
herein shall have the meaning of "parent" and "subsidiary corporation,"
respectively, as defined in Section 424 of the Internal Revenue Code of 1986, as
amended, or subsequent comparable statute.
6. COMMITTEE. The Committee administering the Plan shall have
authority, subject to the express provisions of the Plan as in effect from time
to time, to construe these Terms and Conditions and the Agreement of which they
form a part and the Plan, to establish, amend and rescind rules and regulations
relating to the Plan, and to make all other determinations in the judgment of
the Committee necessary or desirable for the administration of the Plan. The
Committee may correct any defect or supply any omission or reconcile any
inconsistency in these Terms and Conditions and the Agreement of which they form
a part in the manner and to the extent it shall deem expedient to carry the Plan
into effect, and it shall be the sole and final judge of such expediency.
7. INCORPORATION OF PLAN PROVISIONS. These Terms and Conditions and the
Agreement of which they form a part are made pursuant to the Plan, the
provisions of which are hereby incorporated by reference. Capitalized terms not
otherwise defined herein have the meanings set forth in the Plan. In the event
of a conflict between the terms of these Terms and Conditions and the Agreement
of which they form a part and the Plan, the terms of the Plan shall govern.
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▇▇▇▇▇▇ CORPORATION
RESTORATION STOCK OPTION AGREEMENT
TERMS AND CONDITIONS
(AS OF 8/22/97)
1. THE OPTION - TERMS AND CONDITIONS. Under and subject to the
provisions of the Corporation's Stock Incentive Plan as in effect from time to
time (the "Plan"), the Corporation has granted to the Employee a non-statutory
option (the "Option") to purchase such number of shares of Common Stock of the
Corporation as set forth and designated in writing by the Corporation to the
Employee at the designated price per share. Such grant is subject to the
following Terms and Conditions:
(a) The grant of the Option shall not limit or restrict the
Corporation's rights to terminate the Employee's employment.
(b) During the lifetime of the Employee, the Option shall be
exercisable only by the Employee, and (except when Section 2 is
applicable) only while the Employee continues as an Employee of the
Corporation.
(c) Notwithstanding any other provision of these Terms and
Conditions and the Agreement of which they form a part, the Option
shall expire no later than the date designated in writing to the
Employee by the Corporation (the "Expiration Date"), and shall not be
exercisable thereafter.
(d) The Option shall not be exercisable to any extent until
six months after the grant date, at which time the Option shall be
fully exercisable.
(e) Upon a "Change of Control" of the Corporation (as defined
in Section 11.1 of the Plan) any outstanding Option shall immediately
become fully exercisable, provided that if the Employee is an officer
of the Corporation and a stock appreciation right has been granted with
respect to a portion or all of the shares covered by these Terms and
Conditions, the Option granted hereby as to such shares may not in any
event be exercised prior to the end of six months from the grant date,
but the time set forth in Paragraph 2(d) shall be extended accordingly.
2. TERMINATION OF EMPLOYMENT.
(a) DEATH. In the event of the death of the Employee, the
Option shall be exercisable only within the twelve (12) months
following the date of death but no later than the Expiration Date, and
then only (i) by the executor or administrator of the Employee's estate
or by the person or persons to whom the Employee's rights under the
Option shall pass by the Employee's will or the laws of descent and
distribution, and (ii) if and to the extent that the Option was
exercisable at the date of the Employee's death.
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(b) DISABILITY. In the event of disability of the Employee,
the Option shall be exercisable by the Employee only within the twelve
(12) months following such cessation of employment but no later than
the Expiration Date and to the extent that the Option was exercisable
at the date of such cessation of employment, and no more.
(c) RETIREMENT. In the event of retirement of the Employee
subsequent to the date which is six months after the grant date, the
Option shall, if the retirement occurs after the Employee has reached
age 55 and has ten or more years of full-time service, be exercisable
by the Employee within thirty six (36) months following such
retirement, but no later than the Expiration Date and to the extent
that the Option was exercisable at the date of such retirement, and no
more.
(d) TERMINATION OF EMPLOYMENT. In the event of termination of
employment for reasons other than death, disability or retirement at
age 55 with ten or more years of full time service, the Option shall be
exercisable only by the Employee within three (3) months following such
cessation of employment but no later than the Expiration Date and to
the extent that it was exercisable at the date of such cessation of
employment, and no more. The three month period shall be increased to
such greater period up to six months as may be necessary to permit
exercise by an Employee who is an officer under the conditions set
forth in Section 1(e).
3. EXERCISE OF OPTION. The Option may be exercised by delivering to the
Corporation at the office of the Corporate Secretary (i) a written notice,
signed by the person entitled to exercise the Option, stating the number of
shares such person then elects to purchase, (ii) payment in an amount equal to
the full purchase price of the shares then to be purchased, and (iii) in the
event the Option is exercised by any person other than the Employee, evidence
satisfactory to the Corporation that such person has the right to exercise the
Option. Payment shall be made (a) in cash, (b) in previously acquired shares of
Common Stock of the Corporation, or (c) in any combination of cash and such
shares. Shares tendered in payment of the purchase price which have been
acquired through the exercise of a stock option shall have been held at least
six months prior to exercise of the Option and shall be valued at the closing
price as reported in the consolidated transaction system for the day preceding
the date of exercise of the Option. Upon the exercise of the Option, the
Corporation shall issue and deliver to the Employee, one or more certificates
for the shares in respect of which the Option shall have been so exercised. The
Employee does not have any rights as a shareholder in respect of any shares as
to which the Option shall not have been duly exercised and no rights as a
shareholder shall exist prior to the proper exercise of such Option.
4. PROHIBITION AGAINST TRANSFER. The Option and rights granted by the
Corporation under these Terms and Conditions and the Agreement of which they
form a part are not transferable except to family members or trust, by will or
by the laws of descent and distribution, provided that the Option may not be
transferred to family members or trusts except as permitted by applicable law or
regulations. Without limiting the generality of the foregoing, the Option may
not be assigned, transferred except as aforesaid, pledged or hypothecated, shall
not be assignable by operation of law, and shall not be subject to execution,
attachment or similar process. Any
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attempted assignment, transfer, pledge, hypothecation or other disposition of
the Option contrary to the provisions hereof, or the levy of any execution,
attachment or similar process upon the Option, shall be null and void and
without effect.
5. EMPLOYMENT BY PARENT, SUBSIDIARY OR SUCCESSOR. For the purpose of
these Terms and Conditions and the Agreement of which they form a part,
employment by a parent or subsidiary of or a successor to the Corporation shall
be considered employment by the Corporation. "Parent" and "subsidiary" as used
herein shall have the meaning of "parent" and "subsidiary corporation,"
respectively, as defined in Section 424 of the Internal Revenue Code of 1986, as
amended, or subsequent comparable statute.
6. COMMITTEE. The Committee administering the Plan shall have
authority, subject to the express provisions of the Plan as in effect from time
to time, to construe these Terms and Conditions and the Agreement of which they
form a part and the Plan, to establish, amend and rescind rules and regulations
relating to the Plan, and to make all other determinations in the judgement of
the Committee necessary or desirable for the administration of the Plan. The
Committee may correct any defect or supply any omission or reconcile any
inconsistency in these Terms and Conditions and the Agreement of which they form
a part in the manner and to the extent it shall deem expedient to carry the Plan
into effect, and it shall be the sole and final judge of such expediency.
7. INCORPORATION OF PLAN PROVISIONS. These Terms and Conditions and the
Agreement of which they form a part are made pursuant to the Plan, the
provisions of which are hereby incorporated by reference. Capitalized terms not
otherwise defined herein have the meanings set forth in the Plan. In the event
of a conflict between the terms of these Terms and Conditions and the Agreement
of which they form a part and the Plan, the terms of the Plan shall govern.
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OUTSIDE DIRECTORS
STOCK OPTION AGREEMENT
▇▇▇▇▇▇ CORPORATION
STOCK INCENTIVE PLAN
Amended as of 10/24/97
This Stock Option Agreement ("Agreement") is entered into as of the 24th day of
October, 1997 between ▇▇▇▇▇▇ Corporation (the "Corporation"), a Delaware
corporation having its principal office in Melbourne, Florida, and name (the
"Director"), an outside director of the Corporation.
1. THE OPTION: Under and subject to the provisions of the Corporation's
Stock Incentive Plan as in effect from time to time (the "Plan"), the
Corporation hereby grants to the Director the option to purchase an aggregate of
2,000 shares of Common Stock of the Corporation at the price of [$__] per share,
subject to the following conditions:
(a) During the lifetime of the Director, this option shall be
exercisable only by the Director, and (except when Section 2
is applicable) only while the Director continues to serve as a
Director of the Corporation.
(b) Notwithstanding any other provision of this Agreement,
this option shall expire no later than ten years from the date
of this Agreement, and shall not be exercisable thereafter.
(c) The number of shares of Common Stock with respect to which
the option may be exercised from time to time is limited to
the following percentages of the aggregate number of shares
optioned hereby:
(i) After the end of one year and prior to the end of
two years from the date hereof, not more than fifty
percent;
(ii) After the end of two years and prior to the end
of three years from the date hereof, not more than
seventy-five percent;
(iii) After the end of three years from the date
hereof, one-hundred percent.
(d) Upon a "Change of Control" of the Corporation any option
which has been outstanding for more than one year shall
immediately become exercisable. For purpose of this Agreement,
a "Change of Control" is defined in Section 11 of the Plan.
2. RETIREMENT. The option may be exercised by the Director and for a
period of three (3) years following retirement, provided that only those Options
exercisable at the date of the Director's retirement may be exercised during the
period following retirement.
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3. DEATH. In the event of the death of the Director, the Option shall
be exercisable only within the twelve (12) months next succeeding the date of
death, and then only (i) by the executor or administrator of the Director's
estate or by the person or persons to whom the Director's rights under the
Option shall pass by the Director's will or the laws of descent and
distribution, and (ii) if and to the extent that the Director was entitled to
exercise the Option at the date of the Director's death.
4. EXERCISE OF OPTION. This option may be exercised by delivering to
the Corporation at the office of its Secretary (i) a written notice, signed by
the person entitled to exercise the option, stating the number of shares such
person then elects to purchase hereunder, (ii) payment in an amount equal to the
full purchase price of the shares then to be purchased, and (iii) in the event
the option is exercised by any person other than the Director, evidence
satisfactory to the Corporation that such person has the right to exercise the
option. Payment shall be made in cash, shares of common stock, or any
combinations thereof. Upon the due exercise of the option, the Corporation shall
issue in the name of the person exercising the option, and deliver to the
Director, one or more certificates for the shares in respect of which the option
shall have been so exercised. The Director agrees that no holder of the option
shall have any rights as a shareholder in respect of any shares as to which the
option shall not have been duly exercised and that no rights as a shareholder
shall arise in respect of any shares as to which the option shall have been duly
exercised until and except to the extent that a certificate or certificates for
such shares shall have been issued.
5. PROHIBITION AGAINST TRANSFER. The option and rights granted by the
Corporation under this Agreement are not transferable except by will or the laws
of descent and distribution. Without limiting the generality of the foregoing,
the option may not be assigned, transferred except as aforesaid, pledged or
hypothecated, shall not be assignable by operation of law, and shall not be
subject to execution, attachment or similar process. Any attempted assignment,
transfer, pledge, hypothecation or other disposition of the option contrary to
the provisions hereof, or the levy of any execution, attachment or similar
process upon the option, shall be null and void and without effect.
6. ADJUSTMENTS. In case there shall be a merger, reorganization,
consolidation, recapitalization, stock dividend or other change in corporate
structure such that shares of Common Stock are changed into or become
exchangeable for a larger or smaller number of shares, thereafter the number of
shares subject to outstanding Options granted to Directors and the number of
shares subject to Options to be granted to Directors under the Plan shall be
increased or decreased, as the case may be, in direct proportion to the increase
or decrease in the number of shares of Common Stock by reason of such change in
corporate structure, provided that the number of shares shall always be a whole
number, and the purchase price per share of any outstanding Options shall, in
the case of an increase in the number of shares, be proportionately reduced, and
in the case of a decrease in the number of shares, shall be proportionately
increased.
7. COMMITTEE. The Committee administering the Plan shall have
authority, subject to the express provisions of the Plan as in effect from time
to time, to construe this Agreement.
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8. INCORPORATION OF PLAN PROVISIONS. This Agreement is made pursuant to
the Plan, the provisions of which are hereby incorporated by reference.
Capitalized terms not otherwise defined herein have the meanings set forth in
the Plan. In the event of a conflict between the terms of this Agreement and the
Plan, the terms of the Plan shall govern.
▇▇▇▇▇▇ CORPORATION
By: __________________________
Chairman, President and
Chief Executive Officer
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▇▇▇▇▇▇ CORPORATION
EXECUTIVE PERFORMANCE SHARE AWARD AGREEMENT
TERMS AND CONDITIONS
(AS OF 8/22/97)
1. DEFINITIONS. "Executive Officer" is any person so designated by the
Board of Directors of ▇▇▇▇▇▇ Corporation. "Corporate Officers" are all officers
of the Corporation who have not been designated Executive Officers.
2. AWARD-TERMS AND CONDITIONS. Under and subject to the provisions of
the Corporation's Stock Incentive Plan, as in effect from time to time (the
"Plan"), the Corporation has granted to the Executive a Performance Share Award
(the "Award") of such number of shares of Common Stock, $1.00 par value, of the
Corporation as set forth and designated in writing by the Corporation to the
Executive (the "Stock"). Such Award subject to the following Terms and
Conditions:
(a) For purposes of this Agreement, the "Performance Period"
shall be the Performance Period set forth and designated as such in
writing by the Corporation to the Executive.
(b) Upon the expiration of the Performance Period and
satisfaction of the applicable withholding obligations, the Corporation
shall at its option, cause such shares as to which the Executive is
entitled pursuant to Section 2(c) hereof either (i) to be issued by
delivery of a stock certificate in the name of the Executive or his
designee, and the certificate shall be released to the custody of the
Executive, or (ii) to be credited to an account for the benefit of the
Executive maintained by the Corporation's stock transfer agent or its
designee.
(c) (i) For Executive Officers, the Award shall be contingent
upon the attainment during the Performance Period of the goals exhibit
delivered to the Executive at the time of the making of the Award (the
"Exhibit"). The payout shall be determined upon the expiration of the
Performance Period in accordance with the Exhibit. The final payout
determination will be authorized by the ▇▇▇▇▇▇ Board of Directors, or
its designee.
(ii) For Corporate Officers, the Award shall be contingent
upon the attainment during the Performance Period of the goals
specified in the approved Strategic Plan covering the Performance
Period. The percentage attainment of the Shares subject of the Award
shall be determined upon the expiration of the Performance Period based
on an assessment of actual performance compared with the Strategic Plan
and other relevant market, competitive, economic and other factors
during the Performance Period. The final pay-out determination will be
authorized by the ▇▇▇▇▇▇ Board of Directors, or its designee.
(iii) If employment is commenced after July 15th of the
first fiscal year of the Performance Period (such commencement date is
referred to as the "Start Date"), the
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final pay-out to be made to the Executive determined in accordance with
the prior provisions of this Section 2(c) shall be reduced by 1/36th
for each month between July 1 of the first fiscal year or the
Performance Period and the Start Date. Only a Start Date prior to the
15th of a month shall be deemed employment for a full month. Other than
with respect to the final pay-out, the pro-ration pursuant to this
Section will not otherwise impact the Award (e.g., the Executive will
have full voting rights and will be entitled to receive dividend
equivalent payments and other distributions with respect to all Award
shares).
(d) Subject to Section 8 hereof, during the Performance
Period, the Executive may exercise full voting rights with respect to
all shares of Stock subject of the Award and shall be entitled to
receive dividends and other distributions paid with respect to such
shares. Upon the expiration of the Performance Period, the Executive
may exercise voting rights and shall be entitled to receive dividends
and other distributions with respect to the number of shares to which
the Executive is entitled pursuant to Section 2(c) hereof.
(e) The number of shares subject of the Award is based upon
the assumption that the Executive shall continue to perform
substantially the same duties throughout the Performance Period, and
such number of shares may be reduced or increased by the Board of
Directors or its designee without formal amendment of this Agreement to
reflect a change in duties during the Performance Period.
3. TERMINATION OF EMPLOYMENT. Other than in the event of a "change in
control" covered in paragraph 6 herein, if the Executive ceases to be an
employee of the Corporation or of one of its affiliates prior to the expiration
of the Performance Period: (i) for any reason other than death, disability or
retirement after age 55 with ten or more years full-time service, all shares of
Stock awarded to the Executive hereunder shall be forfeited; or (ii) due to (a)
death, (b) disability or (c) retirement after the Executive has reached age 55
and has ten or more years of full-time service, the Executive shall be eligible
to receive a pro-rata proportion of the shares of Stock which would have been
issued to the Executive under the Award at the end of the Performance Period,
such pro-rata proportion to be measured by a fraction of which the numerator is
the number of months of the Performance Period during which the Executive's
employment continued, and the denominator is the full number of months of the
Performance Period. For purposes of Section 3, only employment for 15 days or
more of a month shall be deemed employment for a full month.
4. TRANSFER OF EMPLOYMENT. If the Executive transfers employment from
one business unit of the Corporation or an affiliate to another business unit or
affiliate during a Performance Period, such Executive shall be eligible to
receive the number of shares of Stock determined by the Board of Directors or
the Committee of the Board of Directors administering the Plan based upon such
factors as the Board of Directors or the Committee, as the case may be, in its
sole discretion may deem appropriate.
5. PROHIBITION AGAINST TRANSFER. Until the expiration of the
Performance Period, the Award and the shares of Stock subject of the Award are
nontransferable except by will or by the
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laws of descent and distribution. Without limiting the generality of the
foregoing, the Award and such shares may not be sold, exchanged, assigned,
transferred, pledged, hypothecated or otherwise disposed of until the expiration
of the Performance Period, shall not be assignable by operation of law, and
shall not be subject to execution, attachment or similar process. Any attempt to
effect any of the foregoing shall be null and void and without effect.
6. CHANGE IN CONTROL. (a) Upon a "change in control" of the Corporation
as defined in Section 11.1 of the Plan, the performance objectives shall be
conclusively deemed to have been attained. The Award shall be vested immediately
prior to the occurrence of a "Change in control." The Award shall be paid to the
Executive at the end of the Performance Period, provided however, (i) in the
event of death, disability, retirement, or involuntary termination other than
for Cause, the Award shall be paid in stock as soon as practicable; (ii) in the
event of resignation or termination for Cause, the Award shall be forfeited; and
(iii) in the event of a "change in the Corporation's capital structure," at the
election of the Executive, the Award shall be paid in stock or converted and
paid in cash. The amount of the cash payment will be an amount equal to the
number of shares in subject of the Award multiplied by the highest price per
share paid in any transaction reported on the New York Stock Exchange Composite
Index: (x) during the sixty (60) day period preceding and including the date of
a "change in the Corporation's capital structure;" or (y) during the sixty (60)
day period preceding and including the date of "change in control," whichever is
higher. An Award in Stock or cash shall be paid as soon as practicable.
(b) For purposes hereof, a "change in the Corporation's
capital structure" shall be deemed to have occurred if:
(i) the Stock is no longer the only class of the
Corporation's common stock;
(ii) the Stock ceases to be, or is not readily,
tradable on an established securities market (in the United States)
within the meaning of Section 409(1)(1) of the Internal Revenue Code of
1986, as amended;
(iii) the Corporation issues warrants, convertible
debt, or any other security that is exercisable or convertible into
common stock, except for rights granted under the Corporation's Stock
Incentive Plan; or
(iv) the ratio of total debt to total capitalization
exceeds 45 percent. Total debt is the total debt for borrowed money.
Total capitalization is consolidated total assets of the Corporation
less consolidated total liabilities of the Corporation.
(c) "Cause" shall mean (1) a material breach by the Executive
of the duties and responsibilities of the Executive (other than as a
result of incapacity due to physical or mental illness) which is (x)
demonstrably willful, continued and deliberate on the employee's part,
(y) committed in bad faith or without reasonable belief that such
breach is in the best interests of the Corporation and (z) not remedied
within fifteen (15) days
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after receipt of written notice, from the Corporation which
specifically identifies the manner in which such breach has occurred or
(2) the Executive's conviction of, or plea of nolo contendere to, a
felony involving willful misconduct which is materially and
demonstrably injurious to the Corporation. Any act, or failure to act,
based upon authority given pursuant to a resolution duly adopted by the
Board or based upon the advice of counsel for the Corporation shall be
conclusively presumed to be done, or omitted to be done, by the
Executive in good faith and in the best interests of the Corporation.
Cause shall not exist unless and until the Company has delivered to
Executive a copy of a revolution duly adopted by three-quarters (3/4)
of the entire Board at a meeting of the Board called and held for such
purpose (after thirty (30) days notice to Executive and an opportunity
for Executive, together with counsel, to be heard before the Board),
finding that in the good faith opinion of the Board an event set forth
in clauses (1) or (2) has occurred and specifying the particulars
thereof in detail. The Company must notify the Executive of any event
constituting Cause within ninety (90) days following the Company's
knowledge of its existence or such event shall not constitute Cause
under these Terms and Conditions.
7. MISCELLANEOUS. These Terms and Conditions and the Agreement of which
they form a part (a) shall be binding upon and inure to the benefit of any
successor of the Corporation, (b) shall be governed by the laws of the State of
Florida and any applicable laws of the United States, and (c) except as
permitted under Sections 4.1 and 13.6 of the Plan, may not be amended without
the written consent of both the Corporation and the Executive. No contract or
right of employment shall be implied by these Terms and Conditions and the
Agreement of which they form a part. If the Award is assumed or a new award is
substituted therefor in any corporate reorganization, (including, but not
limited to, any transaction of the type referred to in Section 424(a) of the
Internal Revenue Code of 1986, as amended), employment by such assuming or
substituting corporation or by a parent corporation or subsidiary thereof shall
be considered for all purposes of the Award to be employment by the Corporation.
8. SECURITIES LAW REQUIREMENTS. The Corporation shall not be required
to issue shares pursuant to the Award unless and until (a) such shares have been
duly listed upon each stock exchange on which the Corporation's Stock is then
registered; and (b) a registration statement under the Securities Act of 1933
with respect to such shares is then effective.
9. COMMITTEE. The Committee of the Board of Directors administering the
Plan shall have authority, subject to the express provisions of the Plan as in
effect from time to time, to construe these Terms and Conditions and the
Agreement of which they form a part and the Plan, to establish, amend and
rescind rules and regulations relating to the Plan, and to make all other
determinations in the judgment of the Committee necessary or desirable for the
administration of the Plan. The Committee may correct any defect or supply any
omission or reconcile any inconsistency in these Terms and Conditions and the
Agreement of which they form a part in the manner and to the extent it shall
deem expedient to carry the Plan into effect, and it shall be the sole and final
judge of such expediency.
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10. ADJUSTMENTS. Non-recurring losses or charges which are separately
identified and quantified in the Corporation's audited financial statements and
notes thereto including, but not limited to, extraordinary items, changes in tax
laws, changes in generally accepted accounting principles, impact of
discontinued operations, restructuring charges, restatement of prior period
financial results, shall be excluded from the calculation of performance results
for purposes of the Plan. However, the Committee can choose to include any or
all such non-recurring items as long as inclusion of each such item causes the
Award to be reduced,
11. INCORPORATION OF PLAN PROVISIONS. These Terms and Conditions and
the Agreement of which they form a part are made pursuant to the Plan and are
subject to all of the provisions of the Plan as if the same were fully set forth
herein. Capitalized terms not otherwise defined herein shall have the meanings
set forth for such terms in the Plan. In the event of a conflict between the
terms of these Terms and Conditions and the Agreement of which they form a part
and the Plan, the terms of the Plan shall govern.
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▇▇▇▇▇▇ CORPORATION
PERFORMANCE SHARE AWARD AGREEMENT
TERMS AND CONDITIONS
(AS OF 8/22/97)
1. AWARD - TERMS AND CONDITIONS. Under and subject to the provisions of
the Corporation's Stock Incentive Plan, as in effect from time to time (the
"Plan"), the Corporation has granted to the Employee a Performance Share Award
(the "Award") of such number of shares of Common Stock, $1.00 par value, of the
Corporation as set forth and designated in writing by the Corporation to the
Employee (the "Stock"). Such Award is subject to the following Terms and
Conditions:
(a) For purposes of this Agreement, the "Performance Period"
shall be the performance period set forth and designated as such in
writing by the Corporation to the Employee.
(b) Upon the expiration of the Performance Period and
satisfaction of applicable withholding obligations, the Corporation
shall at its option, cause such shares as to which the Employee is
entitled pursuant to Section 1(c) hereof either (i) to be issued by
delivery of a stock certificate in the name of the Employee or his
designee, and the certificate shall be released to the custody of the
Employee, or (ii) to be credited to an account for the benefit of the
Employee maintained by the Corporation's stock transfer agent or its
designee.
(c) The Award shall be contingent upon the attainment during
the Performance Period of the goals specified in the approved Strategic
Plan covering the Performance Period. The percentage attainment of the
Shares subject of the Award shall be determined upon the expiration of
the Performance Period based upon an assessment of actual performance
compared with the Strategic Plan and other relevant market,
competitive, economic and other factors during the Performance Period.
The final pay-out determination will be authorized by the ▇▇▇▇▇▇ Board
of Directors, or its designee. If employment is commenced after July
15th of the first fiscal year of the Performance Period (such
commencement date is referred to as the "Start Date"), the final
pay-out to be made to the Employee determined in accordance with the
prior provisions of this Section 1(c) shall be reduced by 1/36th for
each month between July 1 of the first fiscal year of the Performance
Period and the Start Date. Only a Start Date prior to the 15th of a
month shall be deemed employment for a full month. Other than with
respect to the final pay-out, the pro-ration pursuant to this Section
will not otherwise impact the Award (e.g., the Employee will have full
voting rights and will be entitled to receive dividend equivalent
payments and other distributions with respect to all Award shares).
(d) Subject to Section 7 hereof, during the Performance
Period, the Employee may exercise full voting rights with respect to
all shares of Stock subject of the Award and shall be entitled to
receive dividends and other distributions paid with respect to such
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shares. Upon the expiration of the Performance Period, the Employee may
exercise voting rights and shall be entitled to receive dividends and
other distributions with respect to the number of shares to which the
Employee is entitled pursuant to Section 1(c) hereof.
(e) The number of shares subject of the Award is based upon
the assumption that the Employee shall continue to perform
substantially the same duties throughout the Performance Period, and
such number of shares may be reduced or increased by the Board of
Directors or its designee without formal amendment of this Agreement to
reflect a change in duties during the Performance Period.
2. TERMINATION OF EMPLOYMENT. Other than in the event of a "change in
control" covered in paragraph 5 herein, if the Employee ceases to be an employee
of the Corporation or of one of its affiliates prior to the expiration of the
Performance Period: (i) for any reason other than death, disability or
retirement after age 55 with ten or more years full-time service, all shares of
Stock awarded to the Employee hereunder shall be forfeited; or (ii) due to (a)
death, (b) disability or (c) retirement after the Employee has reached age 55
and has ten or more years of full-time service, the Employee shall be eligible
to receive a pro-rata proportion of the shares of Stock which would have been
issued to the Employee under the Award at the end of the Performance Period,
such pro-rata proportion to be measured by a fraction of which the numerator is
the number of months of the Performance Period during which the Employee's
employment continued, and the denominator is the full number of months of the
Performance Period. For purposes of Section 2, only employment for 15 days or
more of a month shall be deemed employment for a full month.
3. TRANSFER OF EMPLOYMENT. If the Employee transfers employment from
one business unit of the Corporation or an affiliate to another business unit or
affiliate during a Performance Period, such Employee shall be eligible to
receive the number of shares of Stock determined by the Board of Directors or
the Committee of the Board of Directors administering the Plan based upon such
factors as the Board of Directors or the Committee, as the case may be, in its
sole discretion may deem appropriate.
4. PROHIBITION AGAINST TRANSFER. Until the expiration of the
Performance Period, the Award and the shares of Stock subject of the Award are
nontransferable except by will or by the laws of descent and distribution.
Without limiting the generality of the foregoing, the Award and such shares may
not be sold, exchanged, assigned, transferred, pledged, hypothecated or
otherwise disposed of until the expiration of the Performance Period, shall not
be assignable by operation of law, and shall not be subject to execution,
attachment or similar process. Any attempt to effect any of the foregoing shall
be null and void and without effect.
5. CHANGE IN CONTROL. (a) Upon a "change in control" of the Corporation
as defined in Section 11.1 of the Plan, the performance objectives shall be
conclusively deemed to have been attained. The Award shall be vested immediately
prior to the occurrence of a "change in control." The Award shall be paid to the
Employee at the end of the Performance Period, provided however: (i) in the
event of death, disability, retirement, or involuntary termination other than
for Cause, the Award shall be paid in Stock as soon as practicable; (ii) in the
event of resignation or
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termination for cause, the Award shall be forfeited; and (iii) in the event of a
"change in the Corporation's capital structure," at the election of the
Employee, the Award shall be paid in stock or converted and paid in cash. The
amount of the cash payment will be an amount equal to the number of shares
subject of the Award multiplied by the highest price per share paid in any
transaction reported on the New York Stock Exchange Composite Index: (x) during
the sixty (60) day period preceding and including the date of a "change in the
Corporation's capital structure;" or (y) during the sixty (60) day period
preceding and including the date of "change in control," whichever is higher. An
Award in Stock or cash shall be paid as soon as practicable.
(b) For purposes hereof, a "change in the Corporation's
capital structure" shall be deemed to have occurred if:
(i) the Stock is no longer the only class of the
Corporation's common stock;
(ii) the Stock ceases to be, or is not readily,
tradable on an established securities market (in the United
States) within the meaning of Section 409 (l)(1) of the
Internal Revenue Code of 1986, as amended;
(iii) the Corporation issues warrants, convertible
debt, or any other security that is exercisable or convertible
into common stock, except for rights granted under the
Corporation's Stock Incentive Plan; or
(iv) the ratio of total debt to total capitalization
exceeds 45 percent. Total debt is the total debt for borrowed
money. Total capitalization is consolidated total assets of
the Corporation less consolidated total liabilities of the
Corporation.
(c) "Cause" shall mean (1) a material breach by the employee
of the duties and responsibilities of the employee (other than as a
result of incapacity due to physical or mental illness) which is (x)
demonstrably willful, continued and deliberate on the employee's part,
(y) committed in bad faith or without reasonable belief that such
breach is in the best interests of the Corporation and (z) not remedied
within fifteen (15) days after receipt of written notice from the
Corporation which specifically identifies the manner in which such
breach has occurred or (2) the employee's conviction of, or plea of
nolo contendere to, a felony involving willful misconduct which is
materially and demonstrably injurious to the Corporation.
6. MISCELLANEOUS. These Terms and Conditions and the Agreement of which
they form a part (a) shall be binding upon and inure to the benefit of any
successor of the Corporation, (b) shall be governed by the laws of the State of
Florida and any applicable laws of the United States, and (c) except as
permitted under Sections 4.1 and 13.6 of the Plan, may not be amended without
the written consent of both the Corporation and the Employee. No contract or
right of employment shall be implied by these Terms and Conditions and the
Agreement of which they form a part. If the Award is assumed or a new award is
substituted therefor in any corporate reorganization (including, but not limited
to, any transaction of the type referred to in Section
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424(a) of the Internal Revenue Code of 1986, as amended), employment by such
assuming or substituting corporation or by a parent corporation or subsidiary
thereof shall be considered for all purposes of the Award to be employment by
the Corporation.
7. SECURITIES LAW REQUIREMENTS. The Corporation shall not be required
to issue shares pursuant to the Award unless and until (a) such shares have been
duly listed upon each stock exchange on which the Corporation's Stock is then
registered; and (b) a registration statement under the Securities Act of 1933
with respect to such shares is then effective.
8. COMMITTEE. The Committee of the Board of Directors administering
the Plan shall have authority, subject to the express provisions of the Plan as
in effect from time to time, to construe these Terms and Conditions and the
Agreement of which they form a part and the Plan, to establish, amend and
rescind rules and regulations relating to the Plan, and to make all other
determinations in the judgment of the Committee necessary or desirable for the
administration of the Plan. The Committee may correct any defect or supply any
omission or reconcile any inconsistency in these Terms and Conditions and the
Agreement of which they form a part in the manner and to the extent it shall
deem expedient to carry the Plan into effect, and it shall be the sole and final
judge of such expediency.
9. ADJUSTMENTS. Non-recurring losses or charges which are separately
identified and quantified in the Corporation's audited financial statements and
notes thereto including, but not limited to, extraordinary items, changes in tax
laws, changes in generally accepted accounting principles, impact of
discontinued operations, restructuring charges, restatement of prior period
financial results, shall be excluded from the calculation of performance results
for purposes of the Plan. However, the Committee can choose to include any or
all such non-recurring items as long as inclusion of each such item causes the
Award to be reduced.
10. INCORPORATION OF PLAN PROVISIONS. These Terms and Conditions and
the Agreement of which they form a part are made pursuant to the Plan and are
subject to all of the provisions of the Plan as if the same were fully set forth
herein. Capitalized terms not otherwise defined herein shall have the meanings
set forth for such terms in the Plan. In the event of a conflict between the
terms of these Terms and Conditions and the Agreement of which they form a part
and the Plan, the terms of the Plan shall govern.
4