Unassociated Document


Exhibit 4.1



2005
STOCK INCENTIVE PLAN

 

1.
   Purpose.    The
purpose of the 2005 Stock Incentive Plan of Inform Worldwide Holdings, Inc. is
to further align the interests of employees, directors and non-employee
Consultants with those of the shareholders by providing incentive compensation
opportunities tied to the performance of the Common Stock and by promoting
increased ownership of the Common Stock by such individuals. The Plan is also
intended to advance the interests of the Company and its shareholders by
attracting, retaining and motivating key personnel upon whose judgment,
initiative and effort the successful conduct of the Company’s business is
largely dependent. 

 

2.
   Definitions.    Wherever
the following capitalized terms are used in the Plan, they shall have the
meanings specified below: 

 

“Affiliate” means
(i) any entity that would be treated as an “affiliate” of the Company for
purposes of Rule 12b-2 under the Exchange Act and (ii) any joint venture or
other entity in which the Company has a direct or indirect beneficial ownership
interest representing at least one-third (1/3) of the aggregate voting power of
the equity interests of such entity or one-third (1/3) of the aggregate fair
market value of the equity interests of such entity, as determined by the
Committee.

 

“Award” means an
award of a Stock Option or Stock Award granted under the Plan. 

 

“Award
Agreement” means a
written or electronic agreement entered into between the Company and a
Participant setting forth the terms and conditions of an Award granted to a
Participant. 

 

“Board” means
the Board of Directors of the Company. 

 

“Code” means
the Internal Revenue Code of 1986, as amended.

 

“Common
Stock” means
the Company’s common stock, no par value per share.

 

“Committee” means
the Compensation Committee of the Board, or such other committee of the Board
appointed by the Board to administer the Plan, or, if no such compensation or
other committee exists, the Board.

 

“Company” means
Inform Worldwide Holdings, Inc., a Florida corporation.

 

“Consultant”
means
any
person which is (1) a consultant or advisor to the Company, (2) is a natural
person, and (3) provides bona fide services to the Company which are not in
connection with the offer or sale of securities in a capital-raising transaction
for the Company and do not directly or indirectly promote or maintain a market
for the Company’s securities.




“Date
of Grant” means
the date on which an Award under the Plan is made by the Committee, or such
later date as the Committee may specify to be the effective date of an
Award.

 

“Disability” means a
Participant being considered “disabled” within the meaning of Section
409A(a)(2)(C) of the Code, unless otherwise provided in an Award
Agreement.

 

“Eligible
Person” means
any person who is an employee of the Company or any Affiliate or any person to
whom an offer of employment with the Company or any Affiliate is extended, as
determined by the Committee, or any person who is a Non-Employee Director, or
any person who is a Consultant to the Company.

 

“Exchange
Act” means
the Securities Exchange Act of 1934, as amended.

 

“Fair
Market Value” means
the mean between the highest and lowest reported sales prices of the Common
Stock on the New York Stock Exchange Composite Tape or, if not listed on such
exchange, on any other national securities exchange on which the Company’s
common stock is listed or on The Nasdaq Stock Market, or, if not so listed on
any other national securities exchange or The Nasdaq Stock Market, then the
average of the bid price of the Company’s common stock during the last five
trading days on the OTC Bulletin Board immediately preceding the last trading
day prior to the date with respect to which the Fair Market Value is to be
determined. If the Company’s common stock is not then publicly traded, then the
Fair Market Value of the Common Stock shall be the book value of the Company per
share as determined on the last day of March, June, September, or December in
any year closest to the date when the determination is to be made. For the
purpose of determining book value hereunder, book value shall be determined by
adding as of the applicable date called for herein the capital, surplus, and
undivided profits of the Company, and after having deducted any reserves
theretofore established; the sum of these items shall be divided by the number
of shares of the Company’s common stock outstanding as of said date, and the
quotient thus obtained shall represent the book value of each share of the
Company’s common stock.

 

“Incentive
Stock Option” means a
Stock Option granted under Section 6 hereof that is intended to meet the
requirements of Section 422 of the Code and the regulations thereunder.


 

“Non-Employee
Director” means
any member of the Board who is not an employee of the Company. 

 

“Nonqualified
Stock Option” means a
Stock Option granted under Section 6 hereof that is not an Incentive Stock
Option. 

 

“Participant” means
any Eligible Person who holds an outstanding Award under the Plan. 

 

“Plan” means
the Inform Worldwide Holdings, Inc. 2005 Stock Incentive Plan as set forth
herein, as amended from time to time. 

 

“Service” means a
Participant’s employment with the Company or any Affiliate or a Participant’s
service as a Non-Employee Director with the Company, as applicable.


 

“Stock
Award” means a
grant of shares of Common Stock to an Eligible Person under Section 10 hereof
that are issued free of transfer restrictions and forfeiture conditions.


 

“Stock
Option” means a
contractual right granted to an Eligible Person under Section 6 hereof to
purchase shares of Common Stock at such time and price, and subject to such
conditions, as are set forth in the Plan and the applicable Award Agreement.








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3.
   Administration. 

 

3.1    Committee
Members.    The
Plan shall be administered by a Committee comprised of one or more members of
the Board.

 

3.2    Committee
Authority.    The
Committee shall have such powers and authority as may be necessary or
appropriate for the Committee to carry out its functions as described in the
Plan. Subject to the express limitations of the Plan, the Committee shall have
authority in its discretion to determine the Eligible Persons to whom, and the
time or times at which, Awards may be granted, the number of shares, units or
other rights subject to each Award, the exercise, base or purchase price of an
Award (if any), the time or times at which an Award will become vested,
exercisable or payable, the performance goals and other conditions of an Award,
the duration of the Award, and all other terms of the Award. Subject to the
terms of the Plan, the Committee shall have the authority to amend the terms of
an Award in any manner that is not inconsistent with the Plan, provided that no
such action shall adversely affect the rights of a Participant with respect to
an outstanding Award without the Participant’s consent. The Committee shall also
have discretionary authority to interpret the Plan, to make factual
determinations under the Plan, and to make all other determinations necessary or
advisable for Plan administration, including, without limitation, to correct any
defect, to supply any omission or to reconcile any inconsistency in the Plan or
any Award Agreement hereunder. The Committee may prescribe, amend, and rescind
rules and regulations relating to the Plan. The Committee’s determinations under
the Plan need not be uniform and may be made by the Committee selectively among
Participants and Eligible Persons, whether or not such persons are similarly
situated. The Committee shall, in its discretion, consider such factors as it
deems relevant in making its interpretations, determinations and actions under
the Plan including, without limitation, the recommendations or advice of any
officer or employee of the Company or such attorneys, consultants, accountants
or other advisors as it may select. All interpretations, determinations and
actions by the Committee shall be final, conclusive, and binding upon all
parties. 

 

3.3    Delegation
of Authority.    The
Committee shall have the right, from time to time, to delegate to one or more
officers of the Company the authority of the Committee to grant and determine
the terms and conditions of Awards granted under the Plan, subject to the
requirements of state law and such other limitations as the Committee shall
determine. In no event shall any such delegation of authority be permitted with
respect to Awards to any members of the Board or to any Eligible Person who is
subject to Rule 16b-3 under the Exchange Act or Section 162(m) of the Code. The
Committee shall also be permitted to delegate, to any appropriate officer or
employee of the Company, responsibility for performing certain ministerial
functions under the Plan. In the event that the Committee’s authority is
delegated to officers or employees in accordance with the foregoing, all
provisions of the Plan relating to the Committee shall be interpreted in a
manner consistent with the foregoing by treating any such reference as a
reference to such officer or employee for such purpose. Any action undertaken in
accordance with the Committee’s delegation of authority hereunder shall have the
same force and effect as if such action was undertaken directly by the Committee
and shall be deemed for all purposes of the Plan to have been taken by the
Committee. 

 

4.
   Shares Subject to the Plan. 

 

4.1    Maximum
Share Limitations.    Subject
to Sections 4.2 and 4.3 hereof, the maximum aggregate number of shares of Common
Stock that may be issued and sold under all Awards granted under the Plan shall
be 100 million shares. Shares of Common Stock issued and sold under the Plan may
be either authorized but unissued shares or shares held in the Company’s
treasury. To the extent that any Award involving the issuance of shares of
Common Stock is forfeited, cancelled, returned to the Company for failure to
satisfy vesting requirements or other conditions of the Award, or otherwise
terminates without an issuance of shares of Common Stock being made thereunder,
the shares of Common Stock covered thereby will no longer be counted against the
foregoing maximum share limitations and may again be made subject to Awards
under the Plan pursuant to such limitations. Any Awards or portions thereof that
are settled in cash and not in shares of Common Stock shall not be counted
against the foregoing maximum share limitations. At no time shall the total
number of securities issuable upon the exercise of all outstanding Stock Options
and the total number of shares provided for under the Plan exceed 30 percent of
the then issued outstanding shares of the Company’s Common Stock.

 

4.2    Adjustments.
   Except
as set forth in Section 4.3, if there shall occur any change with respect to the
outstanding shares of Common Stock by reason of any recapitalization,
reclassification, stock dividend, extraordinary dividend, stock split, reverse
stock split or other distribution with respect to the shares of Common Stock, or
any merger, reorganization, consolidation, combination, spin-off or other
similar corporate change, or any other change affecting the Common Stock, the
Committee may, in the manner and to the extent that it deems appropriate and
equitable to the Participants and consistent with the terms of the Plan, cause
an adjustment to be made in (i) the maximum number and kind of shares provided
in Section 4.1 hereof, (ii) the number and kind of shares of Common Stock, or
other rights subject to then outstanding Awards, (iii) the exercise or base
price for each share or other right subject to then outstanding Awards, and (iv)
any other terms of an Award that are affected by the event. Notwithstanding the
foregoing, in the case of Incentive Stock Options, any such adjustments shall,
to the extent practicable, be made in a manner consistent with the requirements
of Section 424(a) of the Code. 




4.3
Anti-Dilution.
Notwithstanding anything contained in the Plan to cover the contrary, including
any adjustments discussed in Section 4.2, the maximum aggregate number of shares
of Common Stock that may be issued and sold under all Awards granted under the
Plan shall not be adjusted in the event of a reverse stock split of the
outstanding shares of the Company’s common stock and shall not result in any
reduction in the number of shares available and authorized under the Plan at the
effective time of such reverse stock split(s).




5.
   Participation and Awards.

 

5.1    Designations
of Participants.    All
Eligible Persons are eligible to be designated by the Committee to receive
Awards and become Participants under the Plan. The Committee has the authority,
in its discretion, to determine and designate from time to time those Eligible
Persons who are to be granted Awards, the types of Awards to be granted and the
number of shares of Common Stock or units subject to Awards granted under the
Plan. In selecting Eligible Persons to be Participants and in determining the
type and amount of Awards to be granted under the Plan, the Committee shall
consider any and all factors that it deems relevant or appropriate.


 

5.2    Determination
of Awards.    The
Committee shall determine the terms and conditions of all Awards granted to
Participants in accordance with its authority under Section 3.2 hereof. An Award
may consist of one type 

of right
or benefit hereunder or of two or more such rights or benefits granted in tandem
or in the alternative. In the case of any fractional share or unit resulting
from the grant, vesting, payment or crediting of dividends or dividend
equivalents under an Award, the Committee shall have the discretionary authority
to (i) disregard such fractional share or unit, (ii) round such fractional share
or unit to the nearest lower or higher whole share or unit, or (iii) convert
such fractional share or unit into a right to receive a cash payment. To the
extent deemed necessary by the Committee, an Award shall be evidenced by an
Award Agreement as described in Section 10.1 hereof. 

 

6.
   Stock Options. 

 

6.1    Grant
of Stock Options.    A
Stock Option may be granted to any Eligible Person selected by the Committee.
Subject to the provisions of Section 6.8 hereof and Section 422 of the Code,
each Stock Option shall be designated, in the discretion of the Committee, as an
Incentive Stock Option or as a Nonqualified Stock Option. 

 

6.2    Exercise
Price.    The
exercise price per share of a Stock Option shall not be less than 85 percent of
the Fair Market Value of the shares of Common Stock on the Date of Grant,
provided that the Committee may in its discretion specify for any Stock Option
an exercise price per share that is higher than 85 percent of the Fair Market
Value on the Date of Grant, except that the price shall not be less than 110
percent of the Fair Market Value in the case of any person who owns securities
possessing more than 10 percent of the total combined voting power of all
classes of securities of the Company.







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6.3    Vesting
of Stock Options.    The
Committee shall in its discretion prescribe the time or times at which, or the
conditions upon which, a Stock Option or portion thereof shall become vested
and/or exercisable, and may accelerate the vesting or exercisability of any
Stock Option at any time, provided, however, that any Stock Option shall vest at
the rate of at least twenty percent (20%) per year over five (5) years from the
date the Stock Option is granted, subject to reasonable conditions as may be
provided for in the Award Agreement. However, in the case of a Stock Option
granted to officers, Non-employee Directors, managers or Consultants of the
Company, the Stock Option may become fully exercisable, subject to reasonable
conditions, at anytime or during any period established by the Company. The
requirements for vesting and exercisability of a Stock Option may be based on
the continued Service of the Participant with the Company or its Affiliates for
a specified time period (or periods) or on the attainment of specified
performance goals established by the Committee in its discretion. 

 

6.4    Term
of Stock Options.    The
Committee shall in its discretion prescribe in an Award Agreement the period
during which a vested Stock Option may be exercised, provided that the maximum
term of a Stock Option shall be ten years from the Date of Grant. Except as
otherwise provided in this Section 6 or as otherwise may be provided by the
Committee, no Stock Option issued to an employee or a Non-Employee Director of
the Company may be exercised at any time during the term thereof unless the
employee or a Non-Employee Director Participant is then in the Service of the
Company or one of its Affiliates. 

 

6.5    Termination
of Service.    Subject
to Section 6.8 hereof with respect to Incentive Stock Options, the Stock Option
of any Participant whose Service with the Company or one of its Affiliates is
terminated for any reason shall terminate on the earlier of (A) the date that
the Stock Option expires in accordance with its terms or (B) unless otherwise
provided in an Award Agreement, and except for termination for cause (as
described in Section 9.2 hereof), the expiration of the applicable time period
following termination of Service, in accordance with the following: (1) twelve
months if Service ceased due to Disability, (2) eighteen months if Service
ceased at a time when the Participant is eligible to elect immediate
commencement of retirement benefits at a specified retirement age under a
pension plan to which the Company or any of its Affiliates had made
contributions, (3) eighteen months if the Participant died while in the Service
of the Company or any of its Affiliates, or (iv) three months if Service ceased
for any other reason. During the foregoing applicable period, except as
otherwise specified in the Award Agreement or in the event Service was
terminated by the death of the Participant, the Stock Option may be exercised by
such Participant in respect of the same number of shares of Common Stock, in the
same manner, and to the same extent as if he or she had remained in the
continued Service of the Company or any Affiliate during the first three months
of such period; provided that no additional rights shall vest after such three
months. The Committee shall have authority to determine in each case whether an
authorized leave of absence shall be deemed a termination of Service for
purposes hereof, as well as the effect of a leave of absence on the vesting and
exercisability of a Stock Option. Unless otherwise provided by the Committee, if
an entity ceases to be an Affiliate of the Company or otherwise ceases to be
qualified under the Plan or if all or substantially all of the assets of an
Affiliate of the Company are conveyed (other than by encumbrance), such
cessation or action, as the case may be, shall be deemed for purposes hereof to
be a termination of the Service. 

 

6.6    Stock
Option Exercise; Tax Withholding.    Subject
to such terms and conditions as shall be specified in an Award Agreement, a
Stock Option may be exercised in whole or in part at any time during the term
thereof by notice in the form required by the Company, together with payment of
the aggregate exercise price therefor and applicable withholding tax. Payment of
the exercise price shall be made in the manner set forth in the Award Agreement,
unless otherwise provided by the Committee: (i) in cash or by cash equivalent
acceptable to the Committee, (ii) by payment in shares of Common Stock that have
been held by the Participant for at least six months (or such period as the
Committee may deem appropriate, for accounting purposes or otherwise) valued at
the Fair Market Value of such shares on the date of exercise, (iii) through an
open-market, broker-assisted sales transaction pursuant to which the Company is
promptly delivered the amount of proceeds necessary to satisfy the exercise
price, (iv) by a combination of the methods described above or (v) by such other
method as may be approved by the Committee and set forth in the Award Agreement.
In addition to and at the time of payment of the exercise price, the Participant
shall pay to the Company the full amount of any and all applicable income tax,
employment tax and other amounts required to be withheld in connection with such
exercise, payable under such of the methods described above for the payment of
the exercise price as may be approved by the Committee and set forth in the
Award Agreement. 

 

6.7    Limited
Transferability of Nonqualified Stock Options.    All
Stock Options shall be nontransferable except (i) upon the Participant’s death,
in accordance with Section 10.2 hereof or (ii) in the case of Nonqualified Stock
Options only, for the transfer of all or part of the Stock Option to a
Participant’s “family member” (as defined for purposes of the Form S-8
registration statement under the Securities Act of 1933), as may be approved by
the Committee in its discretion at the time of proposed transfer. The transfer
of a Nonqualified Stock Option may be subject to such terms and conditions as
the Committee may in its discretion impose from time to time. Subsequent
transfers of a Nonqualified Stock Option shall be prohibited other than in
accordance with Section 10.2 hereof. 

 

6.8    Additional
Rules for Incentive Stock Options. 

 

(a)    Eligibility.
   An
Incentive Stock Option may only be granted to an Eligible Person who is
considered an employee for purposes of Treasury Regulation §1.421-7(h) with
respect to the Company or any Affiliate that qualifies as a “subsidiary
corporation” with respect to the Company for purposes of Section 424(f) of the
Code. 

 

(b)     Termination
of Employment.    An
Award of an Incentive Stock Option may provide that such Stock Option may be
exercised not later than 3 months following termination of employment of the
Participant with the Company and all Subsidiaries, or not later than one year
following a permanent and total disability within the meaning of Section
22(e)(3) of the Code, as and to the extent determined by the Committee to comply
with the requirements of Section 422 of the Code. 

 

(c)    Other
Terms and Conditions; Nontransferability.    Any
Incentive Stock Option granted hereunder shall contain such additional terms and
conditions, not inconsistent with the terms of the Plan, as are deemed necessary
or desirable by the Committee, which terms, together with the terms of the Plan,
shall be intended and interpreted to cause such Incentive Stock Option to
qualify as an “incentive stock option” under Section 422 of the Code. An Award
Agreement for an Incentive Stock Option may provide that such Stock Option shall
be treated as a Nonqualified Stock Option to the extent that certain
requirements applicable to “incentive stock options” under the Code shall not be
satisfied. An Incentive Stock Option shall by its terms be nontransferable other
than by will or by the laws of descent and distribution, and shall be
exercisable during the lifetime of a Participant only by such Participant.


 

(d)    Disqualifying
Dispositions.    If
shares of Common Stock acquired by exercise of an Incentive Stock Option are
disposed of within two years following the Date of Grant or one year following
the transfer of such shares to the Participant upon exercise, the Participant
shall, promptly following such disposition, notify the Company in writing of the
date and terms of such disposition and provide such other information regarding
the disposition as the Company may reasonably require. 

 

6.9    Repricing
Prohibited.    Subject
to the adjustment provisions contained in Section 4.2 hereof, without the prior
approval of the Company’s shareholders, evidenced by a majority of votes cast,
neither the Committee nor the Board shall cause the cancellation, substitution
or amendment of a Stock Option that would have the effect of reducing the
exercise price of such a Stock Option previously granted under the Plan, or
otherwise approve any modification to such a Stock Option that would be treated
as a “repricing” under the then applicable rules, regulations or listing
requirements. 

 

7.
   Stock Awards. 

 

10.1    Grant
of Stock Awards.    A
Stock Award may be granted to any Eligible Person selected by the Committee. A
Stock Award may be granted for past services, in lieu of bonus or other cash
compensation, as directors’ compensation or for any other valid purpose as
determined by the Committee. A Stock Award granted to an Eligible Person
represents shares of Common Stock that are issued without restrictions on
transfer and other incidents of ownership and free of forfeiture conditions,
except as otherwise provided in the Plan and the Award Agreement. The Committee
may, in connection with any Stock Award, require the payment of a specified
purchase price. 







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10.2    Rights
as Shareholder.    Subject
to the foregoing provisions of this Section 10 and the applicable Award
Agreement, upon the issuance of the Common Stock under a Stock Award the
Participant shall have all rights of a shareholder with respect to the shares of
Common Stock, including the right to vote the shares and receive all dividends
and other distributions paid or made with respect thereto. 

 

8.
   Change in Control. 

 

8.1    Effect
of Change in Control.    Except
to the extent an Award Agreement provides for a different result (in which case
the Award Agreement will govern and this Section 8 of the Plan shall not be
applicable), notwithstanding anything elsewhere in the Plan or any rules adopted
by the Committee pursuant to the Plan to the contrary, if a Triggering Event
shall occur within the 12-month period beginning with a Change in Control of the
Company, then, effective immediately prior to such Triggering Event, (i) each
outstanding Stock Option, to the extent that it shall not otherwise have become
vested and exercisable, shall automatically become fully and immediately vested
and exercisable, without regard to any otherwise applicable vesting requirement.


 

8.2    Definitions 

 

(a)    Cause.
   For
purposes of this Section 8, the term “Cause” shall mean a determination by the
Committee that a Participant (i) has been convicted of, or entered a plea of
nolo contendere to, a crime that constitutes a felony under Federal or state
law, (ii) has engaged in willful gross misconduct in the performance of the
Participant’s duties to the Company or an Affiliate or (iii) has committed a
material breach of any written agreement with the Company or any Affiliate with
respect to confidentiality, noncompetition, nonsolicitation or similar
restrictive covenant. Subject to the first sentence of Section 8.1 hereof, in
the event that a Participant is a party to an employment agreement with the
Company or any Affiliate that defines a termination on account of “Cause” (or a
term having similar meaning), such definition shall apply as the definition of a
termination on account of “Cause” for purposes hereof, but only to the extent
that such definition provides the Participant with greater rights. A termination
on account of Cause shall be communicated by written notice to the Participant,
and shall be deemed to occur on the date such notice is delivered to the
Participant. 

 

(b)    Change
in Control.    For
purposes of this Section 8, a “Change in Control” shall be deemed to have
occurred upon: 

 

(i) the
occurrence of an acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) (a “Person”) of
beneficial ownership (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of a percentage of the combined voting power of the then
outstanding voting securities of the Company entitled to vote generally in the
election of directors (the “Company Voting Securities”) (but excluding (1) any
acquisition directly from the Company (other than an acquisition by virtue of
the exercise of a conversion privilege of a security that was not acquired
directly from the Company), (2) any acquisition by the Company or an Affiliate
and (3) any acquisition by an employee benefit plan (or related trust) sponsored
or maintained by the Company or any Affiliate) (an “Acquisition”) that is thirty
percent (30%) or more of the Company Voting Securities; 

 

(ii) at
any time during a period of two (2) consecutive years or less, individuals who
at the beginning of such period constitute the Board (and any new directors
whose election by the Board or nomination for election by the Company’s
shareholders was approved by a vote of at least two-thirds (2/3) of the
directors then still in office who either were directors at the beginning of the
period or whose election or nomination for election was so approved) cease for
any reason (except for death, Disability or voluntary retirement) to constitute
a majority thereof;

 

(iii) an
Acquisition that is fifty percent (50%) or more of the Company Voting
Securities; 

 

(iv) the
consummation of a merger, consolidation, reorganization or similar corporate
transaction, whether or not the Company is the surviving company in such
transaction, other than a merger, consolidation, or reorganization that would
result in the Persons who are beneficial owners of the Company Voting Securities
outstanding immediately prior thereto continuing to beneficially own, directly
or indirectly, in substantially the same proportions, at least fifty percent
(50%) of the combined voting power of the Company Voting Securities (or the
voting securities of the surviving entity) outstanding immediately after such
merger, consolidation or reorganization; 

 

(v) the
sale or other disposition of all or substantially all of the assets of the
Company; 

 

(vi) the
approval by the shareholders of the Company of a complete liquidation or
dissolution of the Company; or 

 

(vii) the
occurrence of any transaction or event, or series of transactions or events,
designated by the Board in a duly adopted resolution as representing a change in
the effective control of the business and affairs of the Company, effective as
of the date specified in any such resolution. 

 

(c)    Constructive
Termination.    For
purposes of this Section 8, a “Constructive Termination” shall mean a
termination of employment by a Participant within sixty (60) days following the
occurrence of any one or more of the following events without the Participant’s
written consent (i) any reduction in position, title (for Vice Presidents or
above), overall responsibilities, level of authority, level of reporting (for
Vice Presidents or above), base compensation, annual incentive compensation
opportunity, aggregate employee benefits or (ii) a request that the
Participant’s location of employment be relocated by more than fifty (50) miles.
Subject to the first sentence of Section 8.1 hereof, in the event that a
Participant is a party to an employment agreement with the Company or any
Affiliate (or a successor entity) that defines a termination on account of
“Constructive Termination,” “Good Reason” or “Breach of Agreement” (or a term
having a similar meaning), such definition shall apply as the definition of
“Constructive Termination” for purposes hereof in lieu of the foregoing, but
only to the extent that such definition provides the Participant with greater
rights. A Constructive Termination shall be communicated by written notice to
the Committee, and shall be deemed to occur on the date such notice is delivered
to the Committee, unless the circumstances giving rise to the Constructive
Termination are cured within five (5) days of such notice. 

 

(d)    Triggering
Event.    For
purposes of this Section 8, a “Triggering Event” shall mean (i) the termination
of Service of a Participant by the Company or an Affiliate (or any successor
thereof) other than on account of death, Disability or Cause, (ii) the
occurrence of a Constructive Termination or (iii) any failure by the Company (or
a successor entity) to assume, replace, convert or otherwise continue any Award
in connection with the Change in Control (or another corporate transaction or
other change effecting the Common Stock) on the same terms and conditions as
applied immediately prior to such transaction, except for equitable adjustments
to reflect changes in the Common Stock pursuant to Section 4.2 hereof.


 

8.3    Excise
Tax Limit.    In
the event that the vesting of Awards together with all other payments and the
value of any benefit received or to be received by a Participant would result in
all or a portion of such payment being subject to the excise tax under Section
4999 of the Code, then the Participant’s payment shall be either (i) the full
payment or (ii) such lesser amount that would result in no portion of the
payment being subject to excise tax under Section 4999 of the Code (the “Excise
Tax”), whichever of the foregoing amounts, taking into account the applicable
Federal, state, and local employment taxes, income taxes, and the Excise Tax,
results in the receipt by the Participant, on an after-tax basis, of the
greatest amount of the payment notwithstanding that all or some portion of the
payment may be taxable under Section 4999 of the Code. All determinations
required to be made under this Section 8 shall be made by PricewaterhouseCoopers
or any other nationally recognized accounting firm which is the Company’s
outside auditor immediately prior to the event triggering the payments that are
subject to the Excise Tax (the “Accounting Firm”). The Company shall cause the
Accounting Firm to provide detailed supporting calculations of its
determinations to the Company and the Participant. All fees and expenses of the
Accounting Firm shall be borne solely by the Company. The Accounting Firm’s
determinations must be made with substantial authority (within the meaning of
Section 6662 of the Code). For the purposes of all calculations under Section
280G of the Code and the application of this Section 8.3, all determinations as
to present value shall be made using 120 percent of the applicable Federal rate
(determined under Section 1274(d) of the Code) compounded semiannually, as in
effect on December 30, 2004. 

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9.
   Forfeirture Events. 

 

9.1    General.
   The
Committee may specify in an Award Agreement at the time of the Award that the
Participant’s rights, payments and benefits with respect to an Award shall be
subject to reduction, cancellation, forfeiture or recoupment upon the occurrence
of certain specified events, in addition to any otherwise applicable vesting or
performance conditions of an Award. Such events shall include, but shall not be
limited to, termination of Service for cause, violation of material Company
policies, breach of noncompetition, confidentiality or other restrictive
covenants that may apply to the Participant, or other conduct by the Participant
that is detrimental to the business or reputation of the Company. 

 

9.2    Termination
for Cause.    Unless
otherwise provided by the Committee and set forth in an Award Agreement, if a
Participant’s employment with the Company or any Affiliate shall be terminated
for cause, the Company may, in its sole discretion, immediately terminate such
Participant’s right to any further payments, vesting or exercisability with
respect to any Award in its entirety. In the event a Participant is party to an
employment (or similar) agreement with the Company or any Affiliate that defines
the term “cause,” such definition shall apply for purposes of the Plan. The
Company shall have the power to determine whether the Participant has been
terminated for cause and the date upon which such termination for cause occurs.
Any such determination shall be final, conclusive and binding upon the
Participant. In addition, if the Company shall reasonably determine that a
Participant has committed or may have committed any act which could constitute
the basis for a termination of such Participant’s employment for cause, the
Company may suspend the Participant’s rights to exercise any option, receive any
payment or vest in any right with respect to any Award pending a determination
by the Company of whether an act has been committed which could constitute the
basis for a termination for “cause” as provided in this Section 9.2.


 

10.
   General Provisions. 

 

10.1    Award
Agreement.    To
the extent deemed necessary by the Committee, an Award under the Plan shall be
evidenced by an Award Agreement in a written or electronic form approved by the
Committee setting forth the number of shares of Common Stock or units subject to
the Award, the exercise price, base price, or purchase price of the Award, the
time or times at which an Award will become vested, exercisable or payable and
the term of the Award. The Award Agreement may also set forth the effect on an
Award of termination of Service under certain circumstances. The Award Agreement
shall be subject to and incorporate, by reference or otherwise, all of the
applicable terms and conditions of the Plan, and may also set forth other terms
and conditions applicable to the Award as determined by the Committee consistent
with the limitations of the Plan. Award Agreements evidencing Incentive Stock
Options shall contain such terms and conditions as may be necessary to meet the
applicable provisions of Section 422 of the Code. The grant of an Award under
the Plan shall not confer any rights upon the Participant holding such Award
other than such terms, and subject to such conditions, as are specified in the
Plan as being applicable to such type of Award (or to all Awards) or as are
expressly set forth in the Award Agreement. The Committee need not require the
execution of an Award Agreement by a Participant, in which case, acceptance of
the Award by the Participant shall constitute agreement by the Participant to
the terms, conditions, restrictions and limitations set forth in the Plan and
the Award Agreement as well as the administrative guidelines of the Company in
effect from time to time. 

 

10.2    No
Assignment or Transfer; Beneficiaries.    Except
as provided in Section 6.7 hereof, Awards under the Plan shall not be assignable
or transferable by the Participant, except by will or by the laws of descent and
distribution, and shall not be subject in any manner to assignment, alienation,
pledge, encumbrance or charge. Notwithstanding the foregoing, the Committee may
provide in the terms of an Award Agreement that the Participant shall have the
right to designate a beneficiary or beneficiaries who shall be entitled to any
rights, payments or other benefits specified under an Award following the
Participant’s death. During the lifetime of a Participant, an Award shall be
exercised only by such Participant or such Participant’s guardian or legal
representative. In the event of a Participant’s death, an Award may to the
extent permitted by the Award Agreement be exercised by the Participant’s
beneficiary as designated by the Participant in the manner prescribed by the
Committee or, in the absence of an authorized beneficiary designation, by the
legatee of such Award under the Participant’s will or by the Participant’s
estate in accordance with the Participant’s will or the laws of descent and
distribution, in each case in the same manner and to the same extent that such
Award was exercisable by the Participant on the date of the Participant’s death.


 

10.3    Deferrals
of Payment.    The
Committee may in its discretion permit a Participant to defer the receipt of
payment of cash or delivery of shares of Common Stock that would otherwise be
due to the Participant by virtue of the exercise of a right or the satisfaction
of vesting or other conditions with respect to an Award. If any such deferral is
to be permitted by the Committee, the Committee shall establish rules and
procedures relating to such deferral in a manner intended to comply with the
requirements of Section 409A of the Code, including, without limitation, the
time when an election to defer may be made, the time period of the deferral and
the events that would result in payment of the deferred amount, the interest or
other earnings attributable to the deferral and the method of funding, if any,
attributable to the deferred amount. 

 

10.4    Rights
as Shareholder.    A
Participant shall have no rights as a holder of shares of Common Stock with
respect to any unissued securities covered by an Award until the date the
Participant becomes the holder of record of such securities. Except as provided
in Section 4.2 hereof, no adjustment or other provision shall be made for
dividends or other shareholder rights, except to the extent that the Award
Agreement provides for dividend payments or dividend equivalent rights.


 

10.5    Employment
or Service.    Nothing
in the Plan, in the grant of any Award or in any Award Agreement shall confer
upon any Eligible Person any right to continue in the Service of the Company or
any of its Affiliates, or interfere in any way with the right of the Company or
any of its Affiliates to terminate the Participant’s employment or other service
relationship for any reason at any time. 

 

10.6    Securities
Laws.    No
shares of Common Stock will be issued or transferred pursuant to an Award unless
and until all then applicable requirements imposed by Federal and state
securities and other laws, rules and regulations and by any regulatory agencies
having jurisdiction, and by any exchanges upon which the shares of Common Stock
may be listed, have been fully met. As a condition precedent to the issuance of
shares pursuant to the grant or exercise of an Award, the Company may require
the Participant to take any reasonable action to meet such requirements. The
Committee may impose such conditions on any shares of Common Stock issuable
under the Plan as it may deem advisable, including, without limitation,
restrictions under the Securities Act of 1933, as amended, under the
requirements of any exchange upon which such shares of the same class are then
listed, and under any blue sky or other securities laws applicable to such
shares. The Committee may also require the Participant to represent and warrant
at the time of issuance or transfer that the shares of Common Stock are being
acquired only for investment purposes and without any current intention to sell
or distribute such shares. 

 

10.7    Tax
Withholding.    The
Participant shall be responsible for payment of any taxes or similar charges
required by law to be withheld from an Award or an amount paid in satisfaction
of an Award, which shall be paid by the Participant on or prior to the payment
or other event that results in taxable income in respect of an Award. The Award
Agreement may specify the manner in which the withholding obligation shall be
satisfied with respect to the particular type of Award. 

 

10.8    Unfunded
Plan.    The
adoption of the Plan and any reservation of shares of Common Stock or cash
amounts by the Company to discharge its obligations hereunder shall not be
deemed to create a trust or other funded arrangement. Except upon the issuance
of Common Stock pursuant to an Award, any rights of a Participant under the Plan
shall be those of a general unsecured creditor of the Company, and neither a
Participant nor the Participant’s permitted transferees or estate shall have any
other interest in any assets of the Company by virtue of the Plan.
Notwithstanding the foregoing, the Company shall have the right to implement or
set aside funds in a grantor trust, subject to the claims of the Company’s
creditors or otherwise, to discharge its obligations under the Plan.


 

10.9    Other
Compensation and Benefit Plans.    The
adoption of the Plan shall not affect any other share incentive or other
compensation plans in effect for the Company or any Affiliate, nor shall the
Plan preclude the Company from establishing any other forms of share incentive
or other compensation or benefit program for employees of the Company or any
Affiliate. The amount of any compensation deemed to be received by a Participant
pursuant to an Award shall not constitute includable compensation for purposes
of determining the amount of benefits to which a Participant is entitled under
any other compensation or benefit plan or program of the Company or an
Affiliate, including, without limitation, under any pension or severance
benefits plan, except to the extent specifically provided by the terms of any
such plan. 







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10.10    Plan
Binding on Transferees.    The
Plan shall be binding upon the Company, its transferees and assigns, and the
Participant, the Participant’s executor, administrator and permitted transferees
and beneficiaries. 

 

10.11    Severability.
   If
any provision of the Plan or any Award Agreement shall be determined to be
illegal or unenforceable by any court of law in any jurisdiction, the remaining
provisions hereof and thereof shall be severable and enforceable in accordance
with their terms, and all provisions shall remain enforceable in any other
jurisdiction. 

 

10.12    Foreign
Jurisdictions.    The
Committee may adopt, amend and terminate such arrangements and grant such
Awards, not inconsistent with the intent of the Plan, as it may deem necessary
or desirable to comply with any tax, securities, regulatory or other laws of
other jurisdictions with respect to Awards that may be subject to such laws. The
terms and conditions of such Awards may vary from the terms and conditions that
would otherwise be required by the Plan solely to the extent the Committee deems
necessary for such purpose. Moreover, the Board may approve such supplements to
or amendments, restatements or alternative versions of the Plan, not
inconsistent with the intent of the Plan, as it may consider necessary or
appropriate for such purposes, without thereby affecting the terms of the Plan
as in effect for any other purpose. 

 

10.13    Substitute
Awards in Corporate Transactions.    Nothing
contained in the Plan shall be construed to limit the right of the Committee to
grant Awards under the Plan in connection with the acquisition, whether by
purchase, merger, consolidation or other corporate transaction, of the business
or assets of any corporation or other entity. Without limiting the foregoing,
the Committee may grant Awards under the Plan to an employee or director of
another corporation who becomes an Eligible Person by reason of any such
corporate transaction in substitution for awards previously granted by such
corporation or entity to such person. The terms and conditions of the substitute
Awards may vary from the terms and conditions that would otherwise be required
by the Plan solely to the extent the Committee deems necessary for such purpose.


 

10.14
Governing Law. The Plan
and all rights hereunder shall be subject to and interpreted in accordance with
the laws of the State of Florida, without reference to the principles of
conflicts of laws, and to applicable Federal securities laws. 




10.15
Financial Statements. All
Participates shall receive the financial statements of the Company at least
annually.  




10.16
Stockholder Approval. The Plan
must be approved by the stockholders by a majority of all shares entitled to
vote within twelve (12) months after the date the Plan was adopted by the Board.
Any securities purchased before stockholder approval is obtained shall be
rescinded if stockholder approval is not obtained within twelve (12) months
before or after the Plan was adopted. Such securities shall not be counted in
determining whether such approval is obtained.

 

11.
   Effective Date; Amendment and Termination.


 

11.1    Effective
Date.    The
Plan shall become effective following its adoption by the Board. The term of the
Plan shall be ten (10) years from the date of adoption by the Board, subject to
Section 11.3 hereof. 

 

11.2    Amendment.
   
The Board may at any time and from time to time and in any respect, amend or
modify the Plan. The Board may seek the approval of any amendment or
modification by the Company’s shareholders to the extent it deems necessary or
advisable in its discretion for purposes of compliance with Section 162(m) or
Section 422 of the Code, or exchange or securities market or for any other
purpose. No amendment or modification of the Plan shall adversely affect any
Award theretofore granted without the consent of the Participant or the
permitted transferee of the Award. 

 

11.3    Termination.
   The
Plan shall terminate on the tenth anniversary of the date of its adoption by the
Board. The Board may, in its discretion and at any earlier date, terminate the
Plan. Notwithstanding the foregoing, no termination of the Plan shall adversely
affect any Award theretofore granted without the consent of the Participant or
the permitted transferee of the Award. 

 










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