exv10w6






Exhibit 10.6




IMPERIAL HOLDINGS, INC.




2010 OMNIBUS INCENTIVE PLAN



1. Purpose and Effective Date.




     (a) Purpose. The Imperial Holdings, Inc. 2010 Omnibus Incentive Plan has two
complementary purposes: (i) to attract and retain outstanding individuals to serve as officers,
directors, employees and consultants and (ii) to increase shareholder value. The Plan will provide
participants incentives to increase shareholder value by offering the opportunity to acquire shares
of the Company’s common stock, receive monetary payments based on the value of such common stock,
or receive other incentive compensation, on the potentially favorable terms that this Plan
provides.



     (b) Effective Date. This Plan will become effective, and Awards may be granted
under this Plan, on and after the Effective Date.



2. Definitions. Capitalized terms used in this Plan have the following meanings:




     (a) “Affiliate” has the meaning ascribed to such term in Rule 12b-2 under the
Exchange Act or any successor rule or regulation thereto.



     (b) “Award” means a grant of Options, Stock Appreciation Rights, Performance Shares,
Performance Units, Shares, Restricted Stock, Restricted Stock Units, an Incentive Award or any
other type of award permitted under this Plan. Any Award granted under this Plan that is not
exempt from the requirements of Code Section 409A shall be provided or made in such manner and at
such time as complies with the applicable requirements of Code Section 409A to avoid a plan failure
described in Code Section 409A(a)(1), including, without limitation, deferring payment to a
specified employee or until a specified distribution event, as provided in Code Section 409A(a)(2).



     (c) “Board” means the Board of Directors of the Company.



     (d) “Change in Control” means the occurrence of any one of the following events:




	 	(i)	 	any one person, or more than one person acting as a group,
acquires ownership of common stock of the Company that, together with common
stock held by such person or group, possesses more than 50% of the total fair
market value or total voting power of the common stock of the Company;
provided, however, that if any one person, or more than one person acting as a
group, is considered to own more than 50% of the total fair market value or
total voting power of the common stock of the Company, the acquisition of
additional common stock by the same person or persons will not be considered a
Change in Control. Notwithstanding the foregoing, an increase in the
percentage of common stock of the Company owned by any one person, or persons
acting as a group, as a result of a transaction in which the Company acquires
its common stock in exchange for property will be treated as an acquisition of
common stock of the Company for purposes of this clause (i);




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	 	(ii)	 	during any period of 12 consecutive months, individuals who at
the beginning of such period constituted the Board (together with any new or
replacement directors whose election by the Board, or whose nomination for
election by the Company’s shareholders, was approved by a vote of at least a
majority of the directors then still in office who were either directors at the
beginning of such period or whose election or nomination for election was
previously so approved) cease for any reason to constitute a majority of the
directors then in office; or
	 
	 	(iii)	 	any one person, or more than one person acting as a group,
acquires (or has acquired during the 12-month period ending on the date of the
most recent acquisition by the person or persons) assets from the Company,
outside of the ordinary course of business, that have a gross fair market value
equal to or more than 40% of the total gross fair market value of all of the
assets of the Company immediately prior to such acquisition or acquisitions.
For purposes of this Section 2(d), “gross fair market value” means the value of
the assets of the Company, or the value of the assets being disposed of,
determined without regard to any liabilities associated with such assets.
Notwithstanding anything to the contrary in this Agreement, the following shall
not be treated as a Change in Control under this Section 2(d):






	 	(A)	 	a transfer of assets from the Company to a
shareholder of the Company (determined immediately before the asset
transfer);
	 
	 	(B)	 	a transfer of assets from the Company to an
entity, 50% or more of the total value or voting power of which is
owned, directly or indirectly, by the Company;
	 
	 	(C)	 	a transfer of assets from the Company to a
person, or more than one person acting as a group, that owns, directly
or indirectly, 50% or more of the total value or voting power of all
the outstanding capital stock of the Company; or
	 
	 	(D)	 	a transfer of assets from the Company to an
entity, at least 50% of the total value or voting power of which is
owned, directly or indirectly, by a person described in clause (iii)
above.




Notwithstanding the foregoing, no “Change in Control” shall be deemed to have occurred if there is
consummated any transaction or series of integrated transactions immediately following which the
record holders of the common stock of the Company immediately prior to such transaction or series
of transactions continue to have substantially the same proportionate ownership in an entity which
owns all or substantially all of the assets of the Company immediately following such transaction
or series of transactions, or if the sole purpose of the transaction is to change the state of the
Company’s incorporation or to create a holding company that will be owned in substantially the same
proportions by the Persons who held the Company’s securities immediately before such transaction.



With respect to an Award that is considered deferred compensation subject to Code Section 409A, a
“Change in Control” shall not be deemed to have occurred unless such event also satisfies the
requirements of a change of control under Code Section 409A.







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     (e) “Code” means the Internal Revenue Code of 1986, as amended. Any reference to a
specific provision of the Code includes any successor provision and the regulations promulgated
under such provision.



     (f) “Committee” means the Compensation Committee of the Board (or a successor
committee with the same or similar authority).



     (g) “Company” means Imperial Holdings, Inc., a Florida corporation, or any successor
thereto.



     (h) “Director” means a member of the Board, and “Non-Employee Director” means a
Director who is not an employee of the Company or its Subsidiaries.



     (i) “Effective Date” means the date the Board approves this Plan, subject to
approval by the Company’s shareholders within twelve (12) months of the Effective Date. Awards
granted under this Plan on and after the Effective Date but prior to shareholder approval shall be
subject to, and contingent upon, such shareholder approval of the Plan.



     (j) “Exchange Act” means the Securities Exchange Act of 1934, as amended. Any
reference to a specific provision of the Exchange Act includes any successor provision and the
regulations and rules promulgated under such provision.



     (k) “Fair Market Value” means, per Share on a particular date the last sales price
on such date on the national securities exchange on which the Stock is then traded, as reported in
The Wall Street Journal, or if no sales of Stock occur on the date in question, on the last
preceding date on which there was a sale on such exchange. If the Shares are not listed on a
national securities exchange, but are traded in an over-the-counter market, the last sales price
(or, if there is no last sales price reported, the average of the closing bid and asked prices) for
the Shares on the particular date, or on the last preceding date on which there was a sale of
Shares on that market, will be used. If the Shares are neither listed on a national securities
exchange nor traded in an over-the-counter market, the price determined by the Committee, in its
discretion, will be used. Notwithstanding the foregoing, in the case of the sale of Shares, the
actual sale price shall be the Fair Market Value of such Shares.



     (l) “Incentive Award” means the right to receive a cash payment to the extent
Performance Goals are achieved, and shall include “Annual Incentive Awards” as described in Section
10 and “Long-Term Incentive Awards” as described in Section 11.



     (m) “Option” means the right to purchase Shares at a stated price for a specified
period of time.



     (n) “Participant” means an individual selected by the Committee to receive an Award.



     (o) “Performance Goals” means any goals the Committee establishes that relate to one
or more of the following with respect to the Company or any one or more Subsidiaries, Affiliates or
other business units: net income; operating income; income from continuing operations; net sales;
cost of sales; revenue; gross income; earnings (including before taxes, and/or interest and/or
depreciation and amortization); net earnings per share (including diluted earnings per share); Fair
Market Value; cash flow; net cash provided by operating activities; net cash provided by operating
activities less net cash used in



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investing activities; net operating profit; pre-tax profit; ratio of debt to debt plus equity;
return on shareholder equity; total shareholder return; return on capital; return on assets; return
on equity; return on investment; return on revenues; operating working capital; working capital as
a percentage of net sales; cost of capital; average accounts receivable; economic value added;
performance value added; customer satisfaction; customer loyalty and/or retention; market share;
cost structure reduction; cost savings; operating goals; operating margin; profit margin; sales
performance; and internal revenue growth. As to each Performance Goal, the relevant measurement of
performance shall be computed in accordance with generally accepted accounting principles, but,
unless otherwise determined by the Committee and to the extent consistent with Code Section 162(m),
will exclude the effects of: (i) charges for reorganizing and restructuring; (ii) discontinued
operations; (iii) asset write-downs; (iv) gains or losses on the disposition of a business; (v)
changes in tax or accounting principles, regulations or laws; (vi) mergers, acquisitions or
dispositions; and (vii) extraordinary, unusual and/or non-recurring items of gain or loss, that in
all of the foregoing the Company identifies in its audited financial statements, including
footnotes, or the Management’s Discussion and Analysis section of the Company’s annual report.
Also, the Committee may, to the extent consistent with Code Section 162(m), appropriately adjust
any evaluation of performance under a Performance Goal to exclude any of the following events that
occurs during a performance period: (i) litigation, claims, judgments or settlements; (ii) the
effects of changes in other laws or regulations affecting reported results; and (iii) accruals of
any amounts for payment under this Plan or any other compensation arrangements maintained by the
Company. In addition, in the case of Awards that at the date of grant the Committee determines
will not be considered “performance-based compensation” under Code Section 162(m), the Committee
may establish other Performance Goals not listed in this Plan and make any adjustments to such
goals not listed in this Plan. Where applicable, the Performance Goals may be expressed, without
limitation, in terms of attaining a specified level of the particular criterion or the attainment
of an increase or decrease (expressed as absolute numbers or a percentage) in the particular
criterion or achievement in relation to a peer group or other index. The Performance Goals may
include a threshold level of performance below which no payment will be made (or no vesting will
occur), levels of performance at which specified payments will be paid (or specified vesting will
occur), and a maximum level of performance above which no additional payment will be made (or at
which full vesting will occur).




     (p) “Performance Shares” means the right to receive Shares to the extent Performance
Goals are achieved.



     (q) “Performance Units” means the right to receive cash and/or Shares valued in
relation to a unit that has a designated dollar value or the value of which is equal to the Fair
Market Value of one or more Shares, to the extent Performance Goals are achieved.



     (r) “Person” has the meaning given in Section 3(a)(9) of the Exchange Act, as
modified and used in Sections 13(d) and 14(d) thereof.



     (s) “Plan” means this Imperial Holdings, Inc. 2010 Omnibus Incentive Plan, as it may
be amended from time to time.



     (t) “Restricted Stock” means Shares that are subject to a risk of forfeiture and/or
restrictions on transfer, which may lapse upon the achievement or partial achievement of
Performance Goals, the completion of a period of service or the occurrence of one or more specified
events.



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     (u) “Restricted Stock Unit” means the right to receive cash and/or Shares the value
of which is equal to the Fair Market Value of one Share.



     (v) “Rule 16b-3” means Rule 16b-3 as promulgated by the United States Securities and
Exchange Commission under the Exchange Act.



     (w) “Section 16 Participants” means Participants who are subject to the provisions
of Section 16 of the Exchange Act.



     (x) “Share” means a share of Stock.



     (y) “Stock” means the Common Stock of the Company, $0.01 par value.



     (z) “Stock Appreciation Right” or “SAR” means the right of a Participant to receive
cash, and/or Shares with a Fair Market Value, equal to the appreciation of the Fair Market Value of
a Share during a specified period of time.



     (aa) “Subsidiary” means any corporation, limited liability company or other limited
liability entity in an unbroken chain of entities beginning with the Company if each of the
entities (other than the last entities in the chain) owns the stock or equity interest possessing
more than fifty percent (50%) of the total combined voting power of all classes of stock or other
equity interests in one of the other entities in the chain.



3. Administration.




     (a) Committee Administration. In addition to the authority specifically granted to
the Committee in this Plan, the Committee has full discretionary authority to administer this Plan,
including but not limited to the authority to (i) interpret the provisions of this Plan and any
agreement covering an Award, (ii) prescribe, amend and rescind rules and regulations relating to
this Plan, (iii) correct any defect, supply any omission, or reconcile any inconsistency in the
Plan or any Award or agreement covering an Award in the manner and to the extent it deems desirable
to carry this Plan or such Award into effect and (iv) make all other determinations necessary or
advisable for the administration of this Plan. All Committee determinations shall be made in the
sole discretion of the Committee and are final and binding on all interested parties.



     (b) Delegation to Other Committees or Officers. To the extent applicable law
permits, the Board may delegate to another committee of the Board, or the Committee may delegate to
one or more officers of the Company, any or all of the authority and responsibility of the
Committee; provided, however, that no such delegation is permitted with respect to Awards made to
Section 16 Participants at the time any such delegated authority or responsibility is exercised
unless the delegation is to another committee of the Board consisting entirely of Non-Employee
Directors and does not relate to awards intended to qualify as performance-based compensation under
Code Section 162(m). If the Board has made such a delegation, then all references to the Committee
in this Plan include such other committee or one or more officers to the extent of such delegation.



     (c) Indemnification. The Company will indemnify and hold harmless each member of
the Board and the Committee, and each officer or member of any other committee to whom a delegation



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under Section 3(b) has been made, as to any acts or omissions, or determination made, with
respect to this Plan or any Award to the maximum extent that the law and the Company’s by-laws
permit.




4. Eligibility.




     The Committee may designate any of the following as a Participant from time to time: any
officer or other employee of the Company or its Affiliates, a consultant who provides services to
the Company or its Affiliates, or a Director, including a Non-Employee Director. The Committee’s
designation of a Participant in any year will not require the Committee to designate such person to
receive an Award in any other year. The Committee’s granting of a particular type of Award to a
Participant will not require the Committee to grant any other type of Award to such individual.



5. Types of Awards.




     Subject to the terms of this Plan, the Committee may grant any type of Award to any
Participant it selects, but only employees of the Company or a Subsidiary may receive grants of
incentive stock options within the meaning of Code Section 422. Awards may be granted alone or in
addition to, in tandem with, or in substitution for any other Award (or any other award granted
under another plan of the Company or any Affiliate).



6. Shares Reserved under this Plan.




     (a) Plan Reserve. Subject to adjustment as provided in Section 17, an aggregate of
1,200,000 Shares are reserved for issuance under this Plan; provided that only 1,200,000 shares may
be issued pursuant to the exercise of incentive stock options within the meaning of Code Section
422. The Shares reserved for issuance may be either authorized and unissued Shares or Shares
reacquired at any time and now or hereafter held as treasury stock. The aggregate number of Shares
reserved under this Section 6(a) shall be depleted on the date of grant of an Award by the maximum
number of Shares, if any, with respect to which such Award is granted.



     (b) Replenishment of Shares Under this Plan. If (i) an Award lapses, expires,
terminates or is cancelled without the issuance of Shares under, or the payment of other
compensation with respect to Shares covered by, the Award (whether due currently or on a deferred
basis), (ii) it is determined during or at the conclusion of the term of an Award that all or some
portion of the Shares with respect to which the Award was granted will not be issuable, or that
other compensation with respect to Shares covered by the Award will not be payable, (iii) Shares
are forfeited under an Award, (iv) Shares are issued under any Award and the Company subsequently
reacquires them pursuant to rights reserved upon the issuance of the Shares or (v) Shares are
tendered or withheld to satisfy federal, state or local tax withholding obligations, then such
Shares shall be recredited to the Plan’s reserve and may again be used for new Awards under this
Plan. Notwithstanding the foregoing, in no event shall the following Shares be recredited to the
Plan’s reserve: (i) Shares purchased by the Company using proceeds from Option exercises; and (ii)
Shares tendered or withheld in payment of the exercise price of an Option or as a result of the net
settlement of an outstanding Stock Appreciation Right.



     (c) Participant Limitations. Subject to adjustment as provided in Section 17, no
Participant may be granted Awards that could result in such Participant:



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	 	(i)	 	receiving Options for, and/or Stock Appreciation Rights with
respect to, more than 120,000 Shares during any fiscal year of the Company;
	 
	 	(ii)	 	receiving Awards of Restricted Stock and/or Restricted Stock
Units relating to more than 120,000 Shares during any fiscal year of the
Company;
	 
	 	(iii)	 	receiving, with respect to an Award of Performance Shares
and/or an Award of Performance Units the value of which is based on the Fair
Market Value of a Share, payment of more than 120,000 Shares in any fiscal
year;
	 
	 	(iv)	 	receiving, with respect to an Annual Incentive Award in respect
of any single fiscal year of the Company, a cash payment of more than
$2,000,000;
	 
	 	(v)	 	receiving, with respect to a Long-Term Incentive Award and/or
an Award of Performance Units the value of which is not based on the Fair
Market Value of a Share, a cash payment of more than $3,000,000 in respect of
any period of two consecutive fiscal years of the Company, or of more than
$4,000,000 in respect of any period of three consecutive fiscal years of the
Company; or
	 
	 	(vi)	 	receiving other Stock-based Awards pursuant to Section 12
relating to more than 120,000 Shares during any fiscal year of the Company.





     In all cases, determinations under this Section 6(c) should be made in a manner that is
consistent with the exemption for performance-based compensation that Code Section 162(m) provides.



7. Options.




     Subject to the terms of this Plan, the Committee will determine all terms and conditions of
each Option, including but not limited to: (a) whether the Option is an “incentive stock option”
which meets the requirements of Code Section 422, or a “nonqualified stock option” which does not
meet the requirements of Code Section 422; (b) the grant date, which may not be any day prior to
the date that the Committee approves the grant; (c) the number of Shares subject to the Option; (d)
the exercise price, which may never be less than the Fair Market Value of the Shares subject to the
Option as determined on the date of grant; (e) the terms and conditions of exercise, including
vesting; and (f) the term, except that an Option must terminate no later than 10 years after the
date of grant. In all other respects, the terms of any incentive stock option should comply with
the provisions of Code Section 422 except to the extent the Committee determines otherwise. If an
Option that is intended to be an incentive stock option fails to meet the requirements thereof, the
Option shall automatically be treated as a nonqualified stock option to the extent of such failure.



8. Stock Appreciation Rights.




     Subject to the terms of this Plan, the Committee will determine all terms and conditions of
each SAR, including but not limited to: (a) whether the SAR is granted independently of an Option
or relates to an Option; (b) the grant date, which may not be any day prior to the date that the
Committee approves the grant; (c) the number of Shares to which the SAR relates; (d) the grant
price, which may never be less than the Fair Market Value of the Shares subject to the SAR as
determined on the date of grant; (e) the terms and conditions of exercise or maturity, including
vesting; (f) the term, provided that an SAR must terminate no later than 10 years after the date of
grant; and (g) whether the SAR will be settled in cash,



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Shares or a combination thereof. If an SAR is granted in relation to an Option, then unless
otherwise determined by the Committee, the SAR shall be exercisable or shall mature at the same
time or times, on the same conditions and to the extent and in the proportion, that the related
Option is exercisable and may be exercised or mature for all or part of the Shares subject to the
related Option. Upon exercise of any number of SARs, the number of Shares subject to the related
Option shall be reduced accordingly and such Option may not be exercised with respect to that
number of Shares. The exercise of any number of Options that relate to a SAR shall likewise result
in an equivalent reduction in the number of Shares covered by the related SAR.




9. Performance and Stock Awards.




     Subject to the terms of this Plan, the Committee will determine all terms and conditions of
each award of Shares, Restricted Stock, Restricted Stock Units, Performance Shares or Performance
Units, including but not limited to: (a) the number of Shares and/or units to which such Award
relates; (b) whether, as a condition for the Participant to realize all or a portion of the benefit
provided under the Award, one or more Performance Goals must be achieved during such period as the
Committee specifies; (c) the length of the vesting and/or performance period and, if different, the
date on which payment of the benefit provided under the Award will be made; (d) with respect to
Performance Units, whether to measure the value of each unit in relation to a designated dollar
value or the Fair Market Value of one or more Shares; and (e) with respect to Performance Shares,
Performance Units and Restricted Stock Units, whether to settle such Awards in cash, in Shares
(including Restricted Stock), or in a combination of cash and Shares.



10. Annual Incentive Awards.




     Subject to the terms of this Plan, the Committee will determine all terms and conditions of an
Annual Incentive Award, including but not limited to the Performance Goals, performance period, the
potential amount payable, the type of payment, and the timing of payment, subject to the following:
(a) the Committee must require that payment of all or any portion of the amount subject to the
Annual Incentive Award is contingent on the achievement or partial achievement of one or more
Performance Goals during the period the Committee specifies, although the Committee may specify
that all or a portion of the Performance Goals subject to an Award are deemed achieved upon a
Participant’s death, disability (as defined by the Committee) or a Change in Control or, in the
case of Awards that at the date of grant the Committee determines will not be considered
performance-based compensation under Code Section 162(m), retirement (as defined by the Committee)
or such other circumstances as the Committee may specify; and (b) the performance period must
relate to a period of at least one fiscal year of the Company except that, if the Award is made at
the time of commencement of employment with the Company or on the occasion of a promotion, then the
Award may relate to a period shorter than one fiscal year; and (c) payment will be in cash except
to the extent that the Committee determines that payment will be in Shares, either on a mandatory
basis or at the election of the Participant, having a Fair Market Value at the time of the payment
equal to the amount payable with respect to the Annual Incentive Award.



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11. Long-Term Incentive Awards.




     Subject to the terms of this Plan, the Committee will determine all terms and conditions of a
Long-Term Incentive Award, including but not limited to the Performance Goals, performance period,
the potential amount payable, the type of payment, and the timing of payment, subject to the
following: (a) the Committee must require that payment of all or any portion of the amount subject
to the Long-Term Incentive Award is contingent on the achievement or partial achievement of one or
more Performance Goals during the period the Committee specifies, although the Committee may
specify that all or a portion of the Performance Goals subject to an Award are deemed achieved upon
a Participant’s death, disability (as defined by the Committee) or a Change in Control or, in the
case of Awards that at the date of grant the Committee determines will not be considered
performance-based compensation under Code Section 162(m), retirement (as defined by the Committee)
or such other circumstances as the Committee may specify; (b) the performance period must relate to
a period of more than one fiscal year of the Company except that, if the Award is made at the time
of commencement of employment with the Company or on the occasion of a promotion, then the Award
may relate to a shorter period; and (c) payment will be in cash except to the extent that the
Committee determines that payment will be in Shares, either on a mandatory basis or at the election
of the Participant, having a Fair Market Value at the time of the payment equal to the amount
payable with respect to the Long-Term Incentive Award.



12. Other Stock-Based Awards.




     Subject to the terms of this Plan, the Committee may grant to Participants other types of
Awards, which may be denominated or payable in, valued in whole or in part by reference to, or
otherwise based on, Shares, either alone or in addition to or in conjunction with other Awards, and
payable in Stock or cash. Without limitation, such Award may include the issuance of shares of
unrestricted Stock, which may be awarded in payment of director fees, in lieu of cash compensation,
in exchange for cancellation of a compensation right, as a bonus, or upon the attainment of
Performance Goals or otherwise, or rights to acquire Stock from the Company. The Committee shall
determine all terms and conditions of the Award, including but not limited to, the time or times at
which such Awards shall be made, and the number of Shares to be granted pursuant to such Awards or
to which such Award shall relate; provided that any Award that provides for purchase rights shall
be priced at no less than one hundred percent (100%) of Fair Market Value on the grant date of the
Award.



13. Amendment of Minimum Vesting and Performance Periods.




     Notwithstanding any provision of this Plan or an Award that requires a minimum vesting and/or
performance period for an Award, the Committee, at the time an Award is granted or any later date,
may subject an Award to a shorter vesting and/or performance period to take into account a
Participant’s hire or promotion, or may accelerate the vesting or deem an Award to be earned, in
whole or in part, in the event of a Participant’s termination of employment or a Change in Control;
provided that the foregoing discretion shall not apply in the case of Awards that are intended to
be considered performance-based compensation under Code Section 162(m) to the extent such
discretion would cause such Award to cease to be considered performance-based compensation.



14. Transferability.




     Awards are not transferable other than by will or the laws of descent and distribution, unless
and to the extent the Committee allows a Participant to: (a) designate in writing a beneficiary to
exercise the



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Award or receive payment under the Award after the Participant’s death; (b) transfer an Award
to the former spouse of the Participant as required by a domestic relations order incident to a
divorce; or (c) transfer an Award; provided, however, that with respect to clause (c) above the
Participant may not receive consideration for such a transfer of an Award.




15. Termination and Amendment of Plan; Amendment, Modification or Cancellation of Awards.




     (a) Term of Plan. Unless the Board earlier terminates this Plan pursuant to Section
15(b), this Plan will terminate on the earlier of (i) the tenth anniversary of the Effective Date
and (ii) the date when all Shares reserved for issuance have been issued.



     (b) Termination and Amendment. The Board or the Committee may amend, alter,
suspend, discontinue or terminate this Plan at any time, subject to the following limitations:




	 	(i)	 	the Board must approve any amendment of this Plan to the extent
the Company determines such approval is required by: (A) prior action of the
Board, (B) applicable corporate law or (C) any other applicable law;
	 
	 	(ii)	 	shareholders must approve any amendment of this Plan to the
extent the Company determines such approval is required by: (A) Section 16 of
the Exchange Act, (B) the Code, (C) the listing requirements of any principal
securities exchange or market on which the Shares are then traded or (D) any
other applicable law; and
	 
	 	(iii)	 	shareholders must approve any of the following Plan
amendments: (A) an amendment to materially increase any number of Shares
specified in Section 6(a) or 6(c) (except as permitted by Section 17); or (B)
an amendment to the provisions of Section 15(e).





     (c) Amendment, Modification or Cancellation of Awards. Except as provided in
Section 15(e) and subject to the limitations imposed under this Plan, the Committee may modify or
amend any Award, or waive any restrictions or conditions applicable to any Award or the exercise of
the Award, or amend, modify or cancel any terms and conditions applicable to any Award, in each
case only with the consent of the Participant or any other person(s) as may then have an interest
in the Award; provided that the Committee need not obtain Participant (or other interested party)
consent for any such action that is permitted by the provisions of Section 17(a) or Section 18 or
for any such action: (i) to the extent the action is deemed necessary by the Committee to comply
with any applicable law or the listing requirements of any principal securities exchange or market
on which the Shares are then traded; (ii) to the extent the action is deemed necessary by the
Committee to preserve favorable accounting or tax treatment of any Award for the Company; or (iii)
to the extent the Committee determines that such action does not materially and adversely affect
the value of an Award or that such action is in the best interest of the affected Participant or
any other person(s) as may then have an interest in the Award.



     (d) Survival of Authority and Awards. Notwithstanding the foregoing, the authority
of the Board and the Committee under the Plan (other than to grant Awards) will extend beyond the
date of this Plan’s termination. In addition, termination of this Plan will not affect the rights
of Participants with respect to Awards previously granted to them, and all unexpired Awards will
continue in full force and



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effect after termination of this Plan except as they may lapse or be terminated by their own
terms and conditions.




     (e) Repricing Prohibited. Notwithstanding anything in this Plan to the contrary,
and except for the adjustments provided in Section 17, neither the Committee nor any other person
may decrease the exercise price for any outstanding Option or SAR after the date of grant, cancel
an outstanding Option or SAR in exchange for cash (other than cash equal to the excess of the Fair
Market Value of the Shares subject to such Option or SAR at the time of cancellation over the
exercise or grant price for such Shares), or allow a Participant to surrender an outstanding Option
or SAR to the Company as consideration for the grant of a new Option or SAR with a lower exercise
price.



16. Taxes.




     (a) Withholding. In the event the Company or an Affiliate of the Company is
required to withhold any federal, state or local taxes or other amounts in respect of any income
recognized by a Participant as a result of the grant, vesting, payment or settlement of an Award or
disposition of any Shares acquired under an Award, the Company may deduct (or require an Affiliate
to deduct) cash from any payments of any kind otherwise due the Participant, or with the consent of
the Committee, withhold Shares otherwise deliverable or vesting under an Award, to satisfy such tax
obligations. Alternatively, the Company may require such Participant to pay to the Company, in
cash, promptly on demand, or make other arrangements satisfactory to the Company regarding the
payment to the Company of the aggregate amount of any such taxes and other amounts. If Shares are
deliverable upon exercise or payment of an Award, the Committee may permit a Participant to satisfy
all or a portion of the federal, state and local withholding tax obligations arising in connection
with such Award by electing to (a) have the Company withhold Shares otherwise issuable under the
Award, (b) tender back Shares received in connection with such Award or (c) deliver other
previously owned Shares, in each case having a Fair Market Value equal to the amount to be
withheld; provided that the amount to be withheld may not exceed the total minimum statutory
federal, state and local tax withholding obligations associated with the transaction to the extent
needed for the Company to avoid an accounting charge. If an election is provided, the election
must be made on or before the date as of which the amount of tax to be withheld is determined and
otherwise as the Committee requires. In any case, the Company may defer making payment or delivery
of Shares under an Award if any such tax may be pending unless and until indemnified to its
satisfaction.



     (b) No Guarantee of Tax Treatment. Notwithstanding any provision of this Plan to
the contrary, the Company does not guarantee to any Participant or any other person(s) with an
interest in an Award that (i) any Award intended to be exempt from Code Section 409A shall be so
exempt, (ii) any Award intended to comply with Code Section 409A or Code Section 422 shall so
comply, or (iii) any Award shall otherwise receive a specific tax treatment under any other
applicable tax law, nor in any such case will the Company or any Affiliate be required to
indemnify, defend or hold harmless any individual with respect to the tax consequences of any
Award.



17. Adjustment Provisions.




     (a) Adjustment of Shares. If (i) the Company shall at any time be involved in a
merger or other transaction in which the Shares are changed or exchanged; or (ii) the Company shall
subdivide or combine the Shares or the Company shall declare a dividend payable in Shares, other
securities or other property; or (iii) the Company shall effect a cash dividend the amount of which
exceeds ten percent (10%) of the trading price of the Shares at the time the dividend is declared,
or the Company shall effect



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any other dividend or other distribution on the Shares in the form of cash, or a repurchase of
Shares, that the Board determines by resolution is special or extraordinary in nature or that is in
connection with a transaction that the Company characterizes publicly as a recapitalization or
reorganization involving the Shares; or (iv) any other event shall occur which, in the case of this
clause (iv), in the judgment of the Committee necessitates an adjustment to prevent dilution or
enlargement of the benefits or potential benefits intended to be made available under this Plan,
then the Committee shall, in such manner as it may deem equitable, adjust any or all of (A) the
number and type of Shares subject to this Plan (including the number and type of Shares described
in Sections 6(a) and 6(c)) and which may after the event be made the subject of Awards under this
Plan, including incentive stock options, (B) the number and type of Shares subject to outstanding
Awards, (C) the grant, purchase, or exercise price with respect to any Award, and (D) to the extent
such discretion does not cause an Award that is intended to qualify as performance-based
compensation under Code Section 162(m) to lose its status as such, the Performance Goals of an
Award. In any such case, the Committee may also (or in lieu of the foregoing) make provision for a
cash payment to the holder of an outstanding Award in exchange for the cancellation of all or a
portion of the Award (without the consent of the holder of an Award) in an amount determined by the
Committee effective at such time as the Committee specifies (which may be the time such transaction
or event is effective). However, in each case, with respect to Awards of incentive stock options,
no such adjustment may be authorized to the extent that such authority would cause this Plan to
violate Code Section 422(b). Further, the number of Shares subject to any Award payable or
denominated in Shares must always be a whole number. In any event, previously granted Options or
SARs are subject to only such adjustments as are necessary to maintain the relative proportionate
interest the Options and SARs represented immediately prior to any such event and to preserve,
without exceeding, the value of such Options or SARs.




     Without limitation, in the event of any such merger or similar transaction, subdivision or
combination of Shares, dividend or other event described above (other than any such transaction in
which the Company is the continuing corporation and in which the outstanding Stock is not being
converted into or exchanged for different securities, cash or other property, or any combination
thereof), the Committee shall substitute, on an equitable basis as the Committee determines, for
each Share then subject to an Award, the number and kind of shares of stock, other securities, cash
or other property to which holders of Stock are or will be entitled in respect of each Share
pursuant to the transaction. Notwithstanding the foregoing, if the Company shall subdivide the
Shares or the Company shall declare a dividend payable in Shares, and if no action is taken by the
Board or the Committee, then the adjustments contemplated by this Section 17(a) that are
proportionate shall nevertheless automatically be made as of the date of such subdivision of the
Shares or dividend in Shares.



     (b) Issuance or Assumption. Notwithstanding any other provision of this Plan, and
without affecting the number of Shares otherwise reserved or available under this Plan, in
connection with any merger, consolidation, acquisition of property or stock, or reorganization, the
Committee may authorize the issuance in exchange for the cancellation or assumption of awards under
this Plan upon such terms and conditions as it may deem appropriate.



18. Change in Control.




     (a) Effect of Change in Control Upon Awards. The Committee may specify in any Award
agreement the effect of a Change in Control upon such Award. If the Award agreement does not
specify the effect of a Change in Control upon such Award, then upon a Change in Control, the
Committee may, in its discretion, determine that any or all outstanding Awards held by Participants
who are then in the



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employ or service of the Company or any Affiliate shall vest or be deemed to have been earned
in full (assuming the target performance goals provided under such Award were met, if applicable),
and:





	 	(i)	 	If the successor or surviving corporation (or parent thereof)
so agrees, some or all outstanding Awards shall be assumed, or replaced with
the same type of award with similar terms and conditions, by the successor or
surviving corporation (or parent thereof) in the Change in Control transaction.
If applicable, each Award which is assumed by the successor or surviving
corporation (or parent thereof) shall be appropriately adjusted, immediately
after such Change in Control, to apply to the number and class of securities
which would have been issuable to the Participant upon the consummation of such
Change in Control had the Award been exercised or vested immediately prior to
such Change in Control, and such other appropriate adjustments in the terms and
conditions of the Award shall be made.
	 
	 	(ii)	 	If the provisions of paragraph (i) do not apply with respect to
any particular outstanding Award, then the Committee may provide that all such
outstanding Awards shall be cancelled as of the date of the Change in Control
in exchange for a payment in cash and/or Shares (which may include shares or
other securities of any surviving or successor entity or the purchasing entity
or any parent thereof) equal to: (x) in the case of an Option or SAR, the
excess of the Fair Market Value of the Shares on the date of the Change in
Control covered by the vested portion of the Option or SAR that has not been
exercised over the exercise or grant price of such Shares under the Award,
provided that if such excess is zero, then the Option or SAR shall be cancelled
without payment therefor; (y) in the case of Restricted Stock Units, the Fair
Market Value of a Share on the date of the Change in Control multiplied by the
number of vested units; and (z) in the case of a Performance Share Award, the
Fair Market Value of a Share on the date of the Change in Control multiplied by
the number of earned Shares.





     (b) Parachute Payment Limitation.




	 	(i)	 	Except as may be set forth in a written agreement by and
between the Company and the Participant, in the event that the Company’s
auditors determine that any payment or transfer by the Company under the Plan
to or for the benefit of a Participant (a “Payment”) would be nondeductible by
the Company for federal income tax purposes because of the provisions
concerning “excess parachute payments” in Code Section 280G, then the aggregate
present value of all Payments shall be reduced (but not below zero) to the
Reduced Amount. For purposes of this Section 18(b), the “Reduced Amount” shall
be the amount, expressed as a present value, which maximizes the aggregate
present value of the Payments without causing any Payment to be nondeductible
by the Company because of Code Section 280G.
	 
	 	(ii)	 	If the Company’s auditors determine that any Payment would be
nondeductible by the Company because of Code Section 280G, then the Company
shall promptly give the Participant notice to that effect and a copy of the
detailed calculation thereof and of the Reduced Amount, and the Participant may
then




13









 






	 	 	 	elect, in his or her sole discretion, which and how much of the Payments
shall be eliminated or reduced (as long as after such election the aggregate
present value of the Payments equals the Reduced Amount) and shall advise
the Company in writing of his or her election within ten (10) days of
receipt of notice. If no such election is made by the Participant within
such ten (10) day period, then the Company may elect which and how much of
the Payments shall be eliminated or reduced (as long as after such election
the aggregate present value of the Payments equals the Reduced Amount) and
shall notify the Participant promptly of such election. For purposes of
this Section 18(b), present value shall be determined in accordance with
Code Section 280G(d)(4). All determinations made by the Company’s auditors
under this Section 18(b) shall be binding upon the Company and the
Participant and shall be made within sixty (60) days of the date when a
Payment becomes payable or transferable. As promptly as practicable
following such determination and the elections hereunder, the Company shall
pay or transfer to or for the benefit of the Participant such amounts as are
then due to him or her under the Plan and shall promptly pay or transfer to
or for the benefit of the Participant in the future such amounts as become
due to him or her under the Plan.
	 
	 	(iii)	 	As a result of uncertainty in the application of Code Section
280G at the time of an initial determination by the Company’s auditors
hereunder, it is possible that Payments will have been made by the Company that
should not have been made (an “Overpayment”) or that additional Payments that
will not have been made by the Company could have been made (an
“Underpayment”), consistent in each case with the calculation of the Reduced
Amount hereunder. In the event that the Company’s auditors, based upon the
assertion of a deficiency by the Internal Revenue Service against the Company
or the Participant that the auditors believe has a high probability of success,
determine that an Overpayment has been made, such Overpayment shall be treated
for all purposes as a loan to the Participant which he or she shall repay to
the Company, together with interest at the applicable federal rate provided in
Code Section 7872(f)(2); provided, however, that no amount shall be payable by
the Participant to the Company if and to the extent that such payment would not
reduce the amount subject to taxation under Code Section 4999. In the event
that the auditors determine that an Underpayment has occurred, such
Underpayment shall promptly be paid or transferred by the Company to or for the
benefit of the Participant, together with interest at the applicable federal
rate provided in Code Section 7872(f)(2).
	 
	 	(iv)	 	For purposes of this Section 18(b), the term “Company” shall
include affiliated corporations to the extent determined by the Auditors in
accordance with Code Section 280G(d)(5).





19. Miscellaneous.




     (a) Other Terms and Conditions. The grant of any Award may also be subject to other
provisions (whether or not applicable to the Award granted to any other Participant) as the
Committee determines appropriate, including, without limitation, provisions for:



14









 






	 	(i)	 	one or more means to enable Participants to defer the delivery
of Shares or recognition of taxable income relating to Awards or cash payments
derived from the Awards on such terms and conditions as the Committee
determines, including, by way of example, the form and manner of the deferral
election, the treatment of dividends paid on the Shares during the deferral
period or a means for providing a return to a Participant on amounts deferred,
and the permitted distribution dates or events (provided that no such deferral
means may result in an increase in the number of Shares issuable under this
Plan);
	 
	 	(ii)	 	the payment of the purchase price of Options (A) by delivery of
cash or other Shares or other securities of the Company (including by
attestation) having a then Fair Market Value equal to the purchase price of
such Shares, (B) by delivery (including by fax) to the Company or its
designated agent of an executed irrevocable option exercise form together with
irrevocable instructions to a broker-dealer to sell or margin a sufficient
portion of the Shares and deliver the sale or margin loan proceeds directly to
the Company to pay for the exercise price, (C) by surrendering the right to
receive Shares otherwise deliverable to the Participant upon exercise of the
Award having a Fair Market Value at the time of exercise equal to the total
exercise price, or (D) by any combination of (A), (B) and/or (C);
	 
	 	(iii)	 	giving the Participant the right to receive dividend payments
with respect to Restricted Stock, which payments may be either made currently
or credited to a nonqualified deferred compensation account for the Participant
that complies with the applicable requirements of Code Section 409A, provides
for the deferral of payment of such amounts to a specified employee or until a
specified event described in Code Section 409A(a)(2), and may be settled in
cash or Shares, as the Committee determines, it being understood that neither
dividend payments nor dividend equivalent payments shall be made with respect
to the Shares subject to an Award of Options, SARs, Performance Shares,
Performance Units or Restricted Stock Units;
	 
	 	(iv)	 	restrictions on resale or other disposition of Shares; and
	 
	 	(v)	 	compliance with federal or state securities laws and stock
exchange requirements.





     (b) Employment and Service. The issuance of an Award shall not confer upon a
Participant any right with respect to continued employment or service with the Company or any
Affiliate, or the right to continue as a Director. Unless determined otherwise by the Committee,
for purposes of the Plan and all Awards, the following rules shall apply:




	 	(i)	 	a Participant who transfers employment between the Company and
its Affiliates, or between Affiliates, will not be considered to have
terminated employment;
	 
	 	(ii)	 	a Participant who ceases to be a Non-Employee Director because
he or she becomes an employee of the Company or an Affiliate shall not be
considered to




15









 






	 	 	 	have ceased service as a Director with respect to any Award earlier than
such Participant’s termination of employment with the Company and its
Affiliates;
	 
	 	(iii)	 	a Participant who ceases to be employed by the Company or an
Affiliate and immediately thereafter becomes a Non-Employee Director, a
non-employee director of an Affiliate, or a consultant to the Company or any
Affiliate shall not be considered to have terminated employment until such
Participant’s service as a director of, or consultant to, the Company and its
Affiliates has ceased; and
	 
	 	(iv)	 	a Participant employed by an Affiliate will be considered to
have terminated employment when such entity ceases to be an Affiliate.




Notwithstanding the foregoing, with respect to an Award that is considered deferred compensation
subject to Code Section 409A, if a Participant’s termination of employment or service triggers the
payment of compensation under such Award, then the Participant will be deemed to have terminated
employment or service upon the Participant’s “separation from service” within the meaning of Code
Section 409A.




     (c) No Fractional Shares. No fractional Shares or other securities may be issued or
delivered pursuant to this Plan, and the Committee may determine whether cash, other securities or
other property will be paid or transferred in lieu of any fractional Shares or other securities, or
whether such fractional Shares or other securities or any rights to fractional Shares or other
securities will be canceled, terminated or otherwise eliminated.



     (d) Unfunded Plan. This Plan is unfunded and does not create, and should not be
construed to create, a trust or separate fund with respect to this Plan’s benefits. This Plan does
not establish any fiduciary relationship between the Company and any Participant or other person.
To the extent any person holds any rights by virtue of an Award granted under this Plan, such
rights are no greater than the rights of the Company’s general unsecured creditors.



     (e) Requirements of Law and Securities Exchange. The granting of Awards and the
issuance of Shares in connection with an Award are subject to all applicable laws, rules and
regulations and to such approvals by any governmental agencies or national securities exchanges as
may be required. Notwithstanding any other provision of this Plan or any award agreement, the
Company has no liability to deliver any Shares under this Plan or make any payment unless such
delivery or payment would comply with all applicable laws and the applicable requirements of any
securities exchange or similar entity, and unless and until the Participant has taken all actions
required by the Company in connection therewith. The Company may impose such restrictions on any
Shares issued under the Plan as the Company determines necessary or desirable to comply with all
applicable laws, rules and regulations or the requirements of any national securities exchanges.
Notwithstanding any provision of this Plan or any document pertaining to Awards granted hereunder
to the contrary, this Plan shall be so construed, interpreted and administered to meet the
applicable requirements of Code Section 409A to avoid a plan failure described in Code Section
409A(a)(1).



     (f) Governing Law. This Plan, and all agreements under this Plan, will be construed
in accordance with and governed by the laws of the State of Florida, without reference to any
conflict of law principles.



16









 





     (g) Limitations on Actions. Any legal action or proceeding with respect to this
Plan, any Award or any award agreement must be brought within one year (365 days) after the day the
complaining party first knew or should have known of the events giving rise to the complaint.



     (h) Construction. Whenever any words are used herein in the masculine, they shall
be construed as though they were used in the feminine in all cases where they would so apply; and
wherever any words are used in the singular or plural, they shall be construed as though they were
used in the plural or singular, as the case may be, in all cases where they would so apply. Title
of sections are for general information only, and this Plan is not to be construed with reference
to such titles.



     (i) Severability. If any provision of this Plan or any award agreement or any Award
(i) is or becomes or is deemed to be invalid, illegal or unenforceable in any jurisdiction, or as
to any person or Award, or (ii) would cause this Plan, any award agreement or any Award to violate
any law the Committee deems applicable, then such provision should be construed or deemed amended
to conform to applicable laws, or if it cannot be so construed or deemed amended without, in the
determination of the Committee, materially altering the intent of this Plan, award agreement or
Award, then such provision should be stricken as to such jurisdiction, person or Award, and the
remainder of this Plan, such award agreement and such Award will remain in full force and effect.




17