EXHIBIT 10.12
▇▇▇▇ CORP.
PHANTOM STOCK PLAN
▇▇▇▇ CORP.
PHANTOM STOCK PLAN
ARTICLE I - PURPOSE OF PLAN
1.1 PURPOSE OF PLAN. The purpose of the ▇▇▇▇ Corp. Phantom Stock Plan is to
further the long-term growth of the Company's earnings, thereby enhancing the
value of the Company's stock by offering long-term incentives in addition to
current compensation to key executives of the Company.
ARTICLE II - DEFINITIONS
2.1 AGREEMENT means an agreement with respect to Awards as described in
Article V.
2.2 AWARD means Units granted hereunder.
2.3 BOARD means the Board of Directors of the Company.
2.4 CALCULATED SHARE VALUE means the value of a Unit, as determined by the
Plan Administrator. The Plan Administrator shall use the following
valuation methodology in determining the Calculated Share Value:
STEP I
Multiply 6 times the Company's earnings before interest,
taxes, depreciation and amortization ("EBITDA") as reported in
the Company's audited financial statements as of the Valuation
Date. The calculation of EBITDA shall exclude any
extraordinary items.
STEP 2
Subtract the Company's debt outstanding as of the Valuation
Date, as reported in the Company's audited financial
statements, from the amount determined in Step 1. For purposes
of this Step, debt means all interest bearing debt plus all
amounts attributable to floor financing plans or capitalized
lease obligations, less the total amount of cash and cash
equivalents reported in the Company's audited financial
statements.
STEP 3
Divide the result of Step 2 by the Equity Divisor as of the
Valuation Date.
The Calculated Share Value of a Unit as of the original date of the
grant of Units hereunder [January 1, 1997], shall be deemed to be $9.00
per share. The Plan Administrator has determined this to be an
appropriate valuation for purposes of valuing the initial grant of
Units. The Calculated Share Value of a Unit for Awards granted
subsequent to 1997 shall be determined as of the December 31
immediately preceding the grant of the Units.
2.5 CHANGE IN CONTROL means any merger, consolidation, business
combination, stock sale or other transaction or series of related
transactions, the result of which is that General Electric Capital
Corp., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ do not directly or
indirectly own, in the aggregate, voting securities representing 50
percent or more of the voting power of all issued and outstanding
voting securities.
2.6 COMPANY means ▇▇▇▇ Corp. and its subsidiaries, or any successors as
described in Article IX.
2.7 DISABILITY means the classification of a Participant as "disabled" as
defined in Section 22(e)(3) of the Code.
2.8 EQUITY DIVISOR means one-hundred (100) times the total number of shares
of Stock of the Company which have been issued as of the Valuation Date
or which have been reserved for issuance either in connection with
options granted to employees or in connection with the conversion of
Series B or Series C preferred stock. As of January 1, 1997, the Equity
Divisor has been determined to be 17,777,700.
2.9 PARTICIPANT means an individual who has been selected by the Plan
Administrator to receive an Award under this Plan, who has executed an
Agreement with respect to such Award, and who has not forfeited such
Award under Article VII. Any individual is eligible to become a
Participant in this Plan.
2.10 PLAN means the ▇▇▇▇ Corp. Phantom Stock Plan.
2.11 PLAN ADMINISTRATOR means the President of the Company.
2.12 REDEMPTION SHARE VALUE means the difference between (a) the value of a
Participant's Award as of the Valuation Date (the Calculated Share
Value), and (b) the value of the Participant's Award on the date on
which such Award was granted to the Participant (the Calculated Share
Value as of the date the Award was made ($9.00 per Unit for Awards
granted as of January 1, 1997)). The following example illustrates the
calculation of the Redemption Share Value:
Calculated Share Value as of the payment date (per Unit) $14.00
Calculated Share Value at date of issuance (per Unit) 9.00
--------
Redemption Share Value (per Unit) $5.00
x Number of Units Granted to Executive 5,000.00
--------
= Total Redemption Share Value $25,000.00
2.13 RETIREMENT means normal retirement by an employee from the Company on
or after
age 65.
2.14 STOCK means the Common Stock, par value $..01 - per share, of the
Company.
2.15 TERMINATION means resignation or discharge from employment with the
Company, except in the event of involuntary termination of employment
by the Company without cause, voluntary or involuntary termination by
the Company following a Change in Control, Death, Disability, or
Retirement.
2.16 UNIT means a hypothetical share of stock corresponding in value at any
particular time to the approximate value of one one-hundredth of a
share of Stock at such time.
2.17 VALUATION DATE means the December 31 immediately- preceding the date on
which the cash value of an Award is actually paid under this Plan.
ARTICLE III - EFFECTIVE DATE AND DURATION
3.1 EFFECTIVE DATE. Except as provided to the contrary herein, this Plan shall
be effective as of January 1, 1997.
3.2 TERMINATION. This Plan shall terminate as of January 1, 2003 or otherwise as
provided in Article X, but shall continue in effect until all matters relating
to the payment of Awards and the administration of the Plan have been settled.
ARTICLE IV - ADMINISTRATION
4.1 ADMINISTRATION. This Plan shall be administered by the Plan Administrator
with the approval of the Board. All questions of interpretation and application
of this Plan, or of the terms and conditions pursuant to which Awards are
granted or forfeited or pursuant to which amounts are paid under the provisions
hereof, shall be subject to the determination of the Plan Administrator. Such
determination shall be final and binding upon all parties affected thereby.
ARTICLE V - GRANT OF AWARDS
5.1 GRANTS OF AWARDS: NUMBER OF UNITS. The individuals identified in Exhibit I
shall be the initial Participants of the Plan and shall receive from the Company
as of January 1, 1997, the grant of Awards in the form of Units, as set forth in
the attached Exhibit I.
5.2 SUBSEQUENT GRANTS. If specifically authorized by the Board, the Plan
Administrator shall grant additional Awards hereunder to individuals on terms
established by the Plan Administrator. All Awards granted hereunder are granted
in the sole and absolute discretion of the Plan Administrator as provided
herein, subject to the review and approval of the Board.
ARTICLE VI - BENEFITS
6.1 DIVIDEND EQUIVALENT RIGHTS. if the Company declares one or more cash
dividends with an aggregated value in excess of five percent of the value of the
Stock to holders of record as of the date or dates during the term of the Plan,
the Company shall pay in cash to each Participant who is employed by the Company
on the last day of the year containing such record date(s) an amount per Unit
held hereunder as of such date(s) by the Participant, whether vested or
unvested, equal to one one-hundredth of the amount per share of stock paid to
such holders of record of Stock. The amount payable to Participants under this
Section 6.1 shall be paid as soon as possible after the last day of the year
containing such record date(s).
6.2 PAYMENT TO THE PARTICIPANT. Each Unit will vest with respect to the
beginning of the fiscal year in which it was granted, in accordance with the
following schedule (which may be shortened for any Participant at the discretion
of the Administrator):
End of Year I 0%
End of Year 2 25%
End of Year 3 50%
End of Year 4 75%
End of Year 5 100%
Units which vest according to this schedule shall be redeemed by the Company,
and upon redemption a cash award shall be paid to a Participant in the amount of
the Redemption Share Value. Payment of such amounts shall be made in one lump
sum as soon as administratively possible following the first anniversary of the
Participant's becoming vested in such amount. The Administrator, in his sole
discretion, shall have the right to accelerate or delay the payment of any and
all vested amounts payable under this Plan.
ARTICLE VII - TERMS AND CONDITIONS OF PHANTOM STOCK AWARDS
7.1 PHANTOM STOCK AGREEMENTS. Awards shall be evidenced by Phantom Stock
Agreements in such form as the Plan Administrator shall, from time to time,
approve. Phantom Stock Agreements, which need not be identical, shall state the
number of Units originally awarded to the Participant, shall be signed by the
Company, and shall incorporate by reference the terms of this Plan, which shall
be attached thereto.
7.2 FORFEITURE OF PAYMENT OF AWARDS. Except as otherwise provided in any
employment agreement or other written agreement with the Participant, if a
Participant ceases employment with the Company, prior to payment of the
Participant's Awards, such Awards shall be forfeited or shall be payable as
follows:
(a) Termination. In the event of a termination, the Participant's
Awards, vested and unvested, shall be forfeited immediately.
(b) Involuntary Termination Without Cause. In the event of a
Participant's involuntary termination without cause by the
Company, the Participant shall receive payment of his or her
vested Awards, as determined as of the date of such
termination, as soon as practicable after such termination but
within one year. Nonvested Awards will be canceled.
(c) Retirement or Disability. In the event of a Participant's
retirement or disability, the Participant shall receive
payment of his or her vested Awards, as determined as of the
date of such retirement or disability, as soon as practicable
after such retirement or disability but within one year.
Nonvested Awards will be canceled.
(d) Death. If the Participant dies while in the employment of the
Company, the Participant's estate, personal representative, or
beneficiary (as applicable) shall receive payment of the
Participant's vested Awards, determined as of the date of the
Participant's death, as soon as practicable after the
Participant's death but within one year. Nonvested Awards will
be canceled.
(e) Termination Following Change in Control. In the event of a
Participant's involuntary termination by the Company following
a change in control, the Participant shall receive payment of
his or her vested Awards, as determined as of the date of such
termination, as soon as possible but within one year.
Nonvested Awards will be canceled.
(f) Required Amendments. Each Award shall be subject to any
provision necessary to assure compliance with law.
ARTICLE VIII - CHANGE IN CAPITAL STRUCTURE
8.1 CAPITAL STRUCTURE CHANGES. Upon dissolution or liquidation of the Company,
or upon a reorganization, merger, or consolidation in which the Company is not
the surviving corporation, or upon the sale of substantially all of the assets
of the Company to another corporation, all outstanding Awards shall continue to
operate and be paid as provided under Article VI of this Plan. However, the
Administrator shall have the discretion and power in any such event to determine
and to make effective provisions for the acceleration of time during which the
Awards may be payable, notwithstanding any other provision of this Plan.
ARTICLE IX - COMPANY SUCCESSORS
9.1 IN GENERAL. If the Company shall be the surviving or resulting corporation
in any merger, sale of assets or sale of stock, consolidation, or corporate
reorganization (including a
reorganization in which the holders of Stock receive securities of another
corporation), any Award granted hereunder shall pertain to and apply to the
securities to which a holder of Stock would have been entitled. The
Administrator shall make such appropriate determination and adjustments as it
deems necessary so as substantially to preserve the rights and benefits, both as
to number of Units and otherwise, of Participants under this Plan.
ARTICLE X - AMENDMENT OR TERMINATION OF PLAN
10.1 AMENDMENTS AND TERMINATION. The Plan shall terminate on the sixth (6th)
anniversary of the initial effective date of the Plan (i.e., on January 1, 2003)
unless extended for an additional six (6) year period by action of the
Administrator. In addition, the Administrator may at any time and from time to
time after, amend, suspend, or terminate this Plan in whole or in part, except
that no such action shall adversely affect the amount of benefits payable to a
Participant during the initial six (6) year term of this Plan under Article VI,
except as such termination or amendment of this Plan is required by statute or
rules and regulations promulgated thereunder.
ARTICLE XI - MISCELLANEOUS PROVISIONS
11.1 NONTRANSFERABILITY. Except by the laws of descent and distribution, no
benefit provided hereunder shall be subject to alienation, assignment, or
transfer by a Participant (or by any person entitled to such benefit pursuant to
the terms of this Plan), nor shall it be subject to attachment or other legal
process of whatever nature, any attempted alienation, assignment, attachment, or
transfer shall be void and of no effect whatsoever, and upon any such attempt,
the benefit shall terminate and be of no force or effect. During a Participant's
lifetime, Awards granted to the Participant shall be payable only to the
Participant. Deposit of any sum in any financial institution to the credit of
any Participant (or to a person entitled to such sum pursuant to the terms of
this Plan) shall constitute payment into the hands of that Participant (or such
person).
11.2 NO EMPLOYMENT RIGHT. Neither this Plan nor any action taken hereunder shall
be construed as giving any right to any individual to be retained as a director,
officer, or employee of the Company.
11.3 TAX WITHHOLDING. The Company shall have the right to deduct from all Awards
paid any federal, state, local, or employment taxes which it deems are required
by law to be withheld with respect to such payments. At the request of a
Participant, or as required by law, such sums as may be required for the payment
of any estimated or accrued income tax liability may be withheld and paid over
to the governmental entity entitled to receive the same.
11.4 ACCELERATION. Except as otherwise provided hereunder, the Plan
Administrator in his discretion may accelerate the time at which an Award
granted hereunder is payable.
11.5 GOVERNMENT AND OTHER REGULATIONS. The obligation of the Company to make
payment of Awards shall be subject to all applicable laws, rules, and
regulations and to such approvals by any government agencies as may be deemed
necessary or appropriate by the Administrator.
11.6 INDEMNIFICATION. The Plan Administrator shall be indemnified and held
harmless by the Company against and from (i) any loss, cost, liability, or
expense that may be imposed upon or reasonably incurred by such person in
connection with or resulting from any claim, action, suit, or proceeding to
which such person may be a party or in which such person may be involved by
reason of any action or failure to act under this Plan; and (ii) any and all
amounts paid by such person in satisfaction of judgment in any such action,
suit, or proceeding relating to the Plan. The Plan Administrator shall give the
Company an opportunity, at its own expense, to handle and defend the same before
such person undertakes to handle and defend the same on such person's own
behalf. The foregoing right of indemnification shall not be exclusive of any
other rights of indemnification to which such persons may be entitled under the
charter or bylaws of the Company, as a matter of law, or otherwise, or any power
that the Company may have to indemnify such person or hold such person harmless.
11.7 RELIANCE ON REPORTS. Each member of the Board and the Plan Administrator
shall be fully justified in relying or acting in good faith upon any report made
by the independent public accountants of the Company and upon any other
information furnished in connection with this Plan. In no event shall the Plan
Administrator or any person who is or shall have been a member of the Board be
liable for any determination made or other action taken or any omission to act
in reliance upon any such report or information, or for any action taken,
including the furnishing of information, or failure to act, if in good faith.
11.8 GOVERNING LAW. All matters relating to this Plan or to Awards granted
hereunder shall be governed by the laws of the State of Florida, without regard
to the principles of conflict of laws thereof, except to the extent preempted by
the laws of the United States.
11.9 RELATIONSHIP TO OTHER BENEFITS. No payment under this Plan shall be taken
into account in determining any benefits under any pension, retirement, profit
sharing, or group insurance plan of the Company.
11.10 EXPENSES. The expenses of implementing and administering the Plan shall be
borne by the Company.
11.11 TITLES AND HEADING. The titles and headings of the Articles and Sections
in this Plan are for convenience of reference only, and in the event of any
conflict, the text of this Plan, rather than such titles or headings shall
control.
IN WITNESS WHEREOF, the Company has caused this Plan to be executed by its duly
authorized officer and its seal to be affixed hereto, effective as of January 1,
1997.
▇▇▇▇ CORP.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Title: Chief Executive Officer and President
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[SEAL]
ATTEST/WITNESS
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FIRST AMENDMENT TO THE ▇▇▇▇ CORP.
PHANTOM STOCK PLAN
This First Amendment to the ▇▇▇▇ Corp. Phantom Stock Plan dated January
1, 1997 (the "Plan") is made as of May 19, 1998. Capitalized terms used herein
and not otherwise defined shall have the meanings assigned to such terms in the
Plan.
WHEREAS the Company has (i) converted the Common Stock, par value $.01
per share of the Company into Class A Common Stock, par value $.01 per share of
the Company (the "Class A Common Stock"), (ii) exchanged all of the issued and
outstanding shares of Series B and Series C Cumulative Convertible Redeemable
Preferred Stock for shares of Class B Special Common Stock, par value $.01 per
share (the "Class B Common Stock") and (iii) effected an 84.65 for 1.00 stock
split of the Class A Common Stock and the Class B Common Stock; and
WHEREAS the Plan Administrator wishes to amend the Plan and the Phantom
Stock Agreements issued under the Plan to reflect the foregoing changes in the
Company's capital structure;
Now therefore, pursuant to Article X of the Plan, the Plan
Administrator hereby amends the Plan as follows:
1. Section 2.8 is modified by deleting it in its entirety and replacing it with
the following text:
EQUITY DIVISOR means one-hundred (100) times the total number
of shares of Stock of the Company which have been issued as of the Valuation
Date or which have been reserved for issuance either in connection with options
granted to employees or in connection with the conversion of the Class B Common
Stock.
2. Section 2.12 is modified by deleting it in its entirety and replacing it with
the following text:
REDEMPTION SHARE VALUE means the difference between (a) (the
greater of (i) the value of a Participant's Award as of the
Valuation Date (the Calculated Share Value) and (ii) the
average closing price of the Stock as quoted on the New York
Stock Exchange, or if the Stock is not listed thereon, then
the average of the closing "bid" and "ask" prices per share in
the over-the-counter securities market, for the thirty (30)
trading days prior to the Valuation Date) and (b) the value of
the Participant's Award on the date on which such Award was
granted to the participant (the Calculated Share Value as of
the date the Award was made ($9.00 per Unit for Awards granted
as of January 1, 1997)). The following example illustrates the
calculation of the Redemption Share Value:
Calculated Share Value as of the payment date (per Unit) $14.00
- Calculated Share Value at date of issuance (per Unit) 9.00
----------
= Redemption Share Value (per Unit) $5.00
x Number of Units Granted to Participant 5,000.00
----------
= Total Redemption Share Value $25,000.00
3. Section 2.14 is modified by deleting it in its entirety and replacing it with
the following text:
STOCK means the Class A Common Stock, par value $.01 per share, of the
Company.
2
IN WITNESS WHEREOF, the Plan Administrator has executed this First
Amendment to the Plan as of the day and year indicated above.
/S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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