EXHIBIT 10.5(A)
AMENDMENT TO SERVICE AGREEMENT
This Amendment to Service Agreement (this "Amendment") is made as of
25th day of March, 1997 by and between ELEMIS LIMITED, a United Kingdom company
(the "Company"), and Xxxx X. Xxxxxxxxxx ("Employee").
WITNESSETH:
WHEREAS, the Company and Employee entered into an Service Agreement
dated September 18, 1996 (the "Service Agreement"); and
WHEREAS, the Company and Employee desire to amend the Service
Agreement as provided below.
NOW, THEREFORE, in consideration of the premises and mutual
agreements hereinafter contained, the parties hereto agree as follows:
1. COMPENSATION.
(a) BASE SALARY. Clause 5(a) of the Service Agreement is hereby amended to
delete "(pound)50,000.00" on the third line thereof and replacing it with
"(pound)52,500.00."
(b) BONUS. The first sentence of clause 5(b)(ii) of the Service Agreement
is hereby amended by deleting the words "Chairman of the Board" immediately
before the bracketed language at the end of the sentence, and replacing those
words with the words "Compensation Committee of the Board of Directors of
Xxxxxxx Leisure Limited."
2. EFFECTIVE DATE. The effective date of the amendments to the Service
Agreement contained in this Amendment shall be January 1, 1997.
3. NO OTHER AMENDMENT. Except as set forth in this Amendment, all
provisions of the Service Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment
as of the day and year first above written.
ELEMIS LIMITED
/S/ XXXX X. XXXXXXXXXX By:/S/ XXXXX X. XXXXXXX
----------------------------- ------------------------------------
Xxxx X. Xxxxxxxxxx Xxxxx X. Xxxxxxx,
Chairman of the Board and
Chief Executive Officer of
XXXXXXX LEISURE LIMITED,
Duly authorized to sign
2
EXHIBIT 10.6
XXXXXXX LEISURE LIMITED
AMENDED AND RESTATED
1996 SHARE OPTION AND INCENTIVE PLAN
ADOPTED MARCH 23, 1997
XXXXXXX LEISURE LIMITED 1996 SHARE OPTION AND INCENTIVE PLAN
1. PURPOSE.
The purpose of the Xxxxxxx Leisure Limited 1996 Share Option and Incentive
Plan (hereinafter referred to as this "Plan") is to (i) assist Xxxxxxx Leisure
Limited (the "Company") in attracting and retaining highly qualified, officers,
key employees, directors and consultants for the successful conduct of its
business; (ii) provide incentives and rewards for persons eligible for awards
which are directly linked to the financial performance of the Company in order
to motivate such persons to achieve long-range performance goals; and (iii)
allow persons receiving awards to participate in the growth of the Company.
2. DEFINITIONS.
2.1 "BOARD" means the Board of Directors of the Company.
2.2 "CHANGE IN CONTROL" A Change in Control of the Company shall be
deemed to occur if any of the following circumstances have occurred after the
closing of initial public offering of the Shares:
(i) any transaction as a result of which a change
in control of the Company would be required to
be reported in response to Item 1(a) of the
Current Report on Form 8-K as in effect on the
date hereof, pursuant to Sections 13 or 15(d)
of the Exchange Act, whether or not the
Company is then subject to such reporting
requirement, otherwise than through an
arrangement or arrangements consummated with
the prior approval of the Board;
(ii) any "person" or "group" within the meaning of
Sections 13(d) and 14(d)(2) of the Exchange
Act (a) becomes the "beneficial owner," as
defined in Rule 13d-3 under the Exchange Act,
of more than 20% of the then outstanding
voting securities of the Company, otherwise
than through a transaction or transactions
arranged by, or consummated with the prior
approval of, the Board or (b) acquires by
proxy or otherwise the right to vote for the
election of directors, for any merger or
consolidation of the Company or for any other
matter or question, more than 20% of the then
2
outstanding voting securities of the Company,
otherwise than through an arrangement or
arrangements consummated with the prior approval
of the Board;
(iii) during any period of 24 consecutive months
(not including any period prior to the
adoption of this Plan), Present Directors
and/or New Directors cease for any reason to
constitute a majority of the Board. For
purposes of the preceding sentence, "Present
Directors" shall mean individuals who, at the
beginning of such consecutive 24 month period,
were members of the Board and "New Directors"
shall mean any director whose election by the
Board or whose nomination for election by the
Company's shareholders was approved by a vote
of at least two-thirds of the Directors then
still in office who were Present Directors or
New Directors;
(iv) any "person" or "group" within the meaning
of Sections 13(d) and 14(d)(2) of the Exchange
Act that is the "beneficial owner" as defined
in Rule 13d-3 under the Exchange Act of 20% or
more of the then outstanding voting securities
of the Company commences soliciting proxies; and
(v) with respect to a particular Employee, there
occurs a "change in control," as such term is
defined under any employment agreement or
service agreement between the Company or any
direct or indirect subsidiary thereof and such
Employee, entered into before or after the
date of adoption of this Plan (a "Change in
Control Agreement"), which provides for, upon
such change in control, the acceleration of
the vesting of share options or otherwise
affects awards that may be made under this
Plan; provided, however, that this Section
2.2.(v) applies only with respect to the award
or awards accelerated, or otherwise affected
by such Change in Control under such Change in
Control Agreement.
2.3 "CODE" means the United States Internal Revenue Code of 1986, as
currently in effect or hereafter amended.
3
2.4 "COMMITTEE" means the committee appointed to administer this Plan in
accordance with Section 4 of this Plan.
2.5 "DISABILITY" means "permanent and total disability" as defined in
Section 22(e)(3) of the Code.
2.6 "EMPLOYEE" means any employee of the Company or any direct or indirect
subsidiary of the Company (a "Subsidiary"), fincluding officers of the Company
and any Subsidiary, as well as such officers who are also directors of the
Company.
2.7 "EXCHANGE ACT" means the Securities Exchange Act of 1934,
as amended.
2.8 "EXERCISE PAYMENT" means a payment described in Section 8 upon the
exercise of a Share Option.
2.9 "FAIR MARKET VALUE," unless otherwise required by any applicable
provision of the Code or any regulations issued thereunder, means, as of any
date, the mean of the high and low prices reported per Share on the applicable
date (i) as quoted on the Nasdaq National Market or the Nasdaq Small Cap Market
(each, a "Nasdaq Market") or (ii) if not traded on a Nasdaq Market, as reported
by any principal national securities exchange in the United States on which it
is then traded (or if the Shares have not been quoted or reported, as the case
may be, on such date, on the first day prior thereto on which the Shares were
quoted or reported, as the case may be), except that in the case of a Share
Appreciation Right that is exercised for cash during the first three (3) days of
the ten (10) day period set forth in Section 7.4 of this Plan, "Fair Market
Value" means the highest daily closing price per Share as reported on such
Nasdaq Market or exchange during such ten (10) day period. Notwithstanding the
foregoing, if a Share Appreciation Right is exercised during the sixty (60) day
period commencing on the date of a Change in Control, the Fair Market Value for
purposes of determining the Share Appreciation shall be the highest of (i) the
Fair Market Value per Share, as determined under the preceding sentence; (ii)
the highest Fair Market Value per Share during the ninety (90) day period ending
on the date of exercise of the SAR; (iii) the highest price per Share shown on
Schedule 13D or an amendment thereto filed pursuant to Section 13(d) of the
Xxxxxxxx Xxx 0000 by any person holding 20% of the combined voting power of the
Company's then outstanding voting securities; or (iv) the highest price paid or
to be paid per Share pursuant to a tender or exchange offer as determined by the
Committee. If the Shares are not reported or quoted on a Nasdaq Market or a
national securities exchange, its Fair Market Value shall be as determined in
good faith by the Committee.
4
2.10 "INCENTIVE STOCK OPTION" or "ISO" means any Share Option granted to
an Employee pursuant to this Plan which is designated as such by the Committee
and which complies with Section 422 of the Code or any successor provision.
2.11 "NON-QUALIFIED SHARE OPTION" means any Share Option granted to a
Participant pursuant to this Plan which is not an ISO.
2.12 "OPTION PRICE" means the purchase price of one Share upon exercise
of a Share Option.
2.13 "PERFORMANCE AWARD" means an award described in Section 10 of this
Plan.
2.14 "RETIREMENT" means retirement from employment by the Company or any
Subsidiary by a Participant who has attained the normal retirement age under any
applicable retirement plan (which is qualified under Section 401(a) of the Code)
of the Company in which such Participant participates.
2.15 "RESTRICTED SHARES" means Shares subject to restrictions on the
transfer of such Shares, conditions of forfeitability of such Shares or any
other limitations or restrictions as determined by the Committee.
2.16 "SETTLEMENT DATE" means, (i) with respect to any Share Appreciation
Rights that have been exercised, the date or dates upon which cash payment is to
be made to the Participant, or in the case of Share Appreciation Rights that are
to be settled in Shares, the date or dates upon which such Shares are to be
delivered to the Participant; (ii) with respect to Performance Awards, the date
or dates upon which Shares are to be delivered to the Participant; (iii) with
respect to Exercise Payments, the date or dates upon which payment thereof is to
be made; and (iv) with respect to grants of Shares, including Restricted Shares,
the date or dates upon which such Shares are to be delivered to the Participant,
in each case determined in accordance with the terms of the grant (including any
award agreement) under which any such award was made.
2.17 "SHARE" or "SHARES" means the common shares of the
Company.
2.18 "SHARE APPRECIATION" means the excess of the Fair Market Value per
Share over the Option Price of the related Share, as determined by the
Committee.
5
2.19 "SHARE APPRECIATION RIGHT" or "SAR" means an award that entitles a
Participant to receive an amount described in Section 7.2.
2.20 "SHARE OPTION" or "OPTION" means an award that entitles a Partici-
pant to purchase one Share for each Option granted.
3. PARTICIPATION.
The participants in this Plan ("Participants") shall be those persons who
are selected to participate in this Plan by the Committee and who are (i)
Employees serving in managerial, administrative or professional positions, (ii)
directors of the Company or (iii) consultants to the Company or any Subsidiary.
4. ADMINISTRATION.
This Plan shall be administered and interpreted by a committee of two or
more members of the Board appointed by the Board. Members of the Committee shall
be "Non-Employee Directors" as that term is defined for purposes of Rule
16b-3(b)(3)(i) under the Exchange Act. All decisions and acts of the Committee
shall be final and binding upon all Participants. The Committee shall: (i)
determine the number and types of awards to be made under this Plan; (ii) set
the Option Price, the number of Options to be awarded and the number of Shares
to be awarded out of the total number of Shares available for award; (iii)
establish any applicable administrative regulations to further the purpose of
this Plan; (iv) approve forms of award agreements between the participant and
the Company; and (v) take any other action desirable or necessary to interpret,
construe or implement the provisions of this Plan. Prior to the appointment of
the Committee by the Board, or if the Committee shall not be in existence at any
time during the term of this Plan, this Plan shall be administered and
interpreted by the Board and, in such case, all references to the Committee
herein shall be deemed to refer to the Board.
5. AWARDS.
5.1 FORM OF AWARDS. Awards under this Plan may be in any of the following
forms (or a combination thereof): (i) Share Options; (ii) Share Appreciation
Rights; (iii) Exercise Payment rights; (iv) grants of Shares, including
Restricted Shares; or (v) Performance Awards. The Committee may require that any
or all awards under this Plan be made pursuant to an award agreement between the
Participant and the Company. Such award agreements shall be in such form as the
Committee may approve from time to time. The
6
Committee may accelerate awards and waive conditions and restrictions on any
awards to the extent it may deem appropriate.
5.2 MAXIMUM AMOUNT OF SHARES AVAILABLE. The total number of Shares
(including Restricted Shares, if any) granted, or covered by Options granted,
under this Plan during the term of this Plan shall not exceed 720,000. Solely
for the purpose of computing the total number of Shares optioned or granted
under this Plan, there shall not be counted any Shares which have been forfeited
and any Shares covered by Options which, prior to such computation, have
terminated in accordance with their terms or have been canceled by the
Participant or the Company.
5.3 ADJUSTMENT IN THE EVENT OF RECAPITALIZATION, ETC. In the event of any
change in the outstanding Shares of the Company by reason of any share split,
share dividend, recapitalization, merger, consolidation, combination or exchange
of shares or other similar corporate change or in the event of any special
distribution to the shareholders, the Committee shall make such equitable
adjustments in the number of Shares and prices per Share applicable to Options
then outstanding and in the number of Shares which are available thereafter for
Option awards or other awards, both under this Plan as a whole and with respect
to individuals, as the Committee determines are necessary and appropriate. Any
such adjustment shall be conclusive and binding for all purposes of this Plan.
6. SHARE OPTIONS.
6.1 GRANT OF AWARD. The Company may award Options to purchase Shares,
including Restricted Shares (hereinafter referred to as "Share Option Awards")
to such Participants as the Committee authorizes and under such terms as the
Committee establishes. The Committee shall determine with respect to each Share
Option Award, and designate in the grant whether a Participant is to receive an
ISO or a Non-Qualified Share Option.
6.2 OPTION PRICE. The Option Price per Share subject to a Share Option
Award shall be specified in the grant, but, to the extent any Share Option is an
Incentive Stock Option, the Option Price in no event shall be less than the Fair
Market Value per Share on the date of grant. Notwithstanding the foregoing, if
the Participant to whom an ISO is granted owns, at the time of the grant, more
than ten percent (10%) of the combined voting power of the Company, the Option
Price per Share subject to such grant shall be not less than one hundred ten
percent (110%) of the Fair Market Value.
7
6.3 TERMS OF OPTION. A Share Option that is an ISO shall not be
transferable by the Participant other than as permitted under Section 422 of the
Code or any successor provision, and, during the Participant's lifetime, shall
be exercisable only by the Participant. Non-Qualified Share Options may be
subject to such restrictions on transferability and exercise as may be provided
for by the Committee in the terms of the grant thereof. A Share Option shall be
of no more than ten (10) years' duration, except that an ISO granted to a
Participant who, at the time of the grant, owns Shares representing more than
ten percent (10%) of the combined voting power of the Company shall by its terms
be of no more than five (5) years' duration. A Share Option by its terms shall
vest in a Participant to whom it is granted and be exercisable only after the
earliest of: (i) such period of time as the Committee shall determine and
specify in the grant, but, with respect to Employees, in no event less than one
(1) year following the date of grant of such award; (ii) the Participant's
death; or (iii) a Change in Control.
6.4 EXERCISE OF OPTION. A Non-Qualified Share Option is only exercisable
by a Participant who is an Employee while such Participant is in active
employment with the Company or a Subsidiary or within thirty (30) days after
termination of such employment, except (i) during the three-year period after a
Participant's death, Disability or Retirement; (ii) during a three-year period
commencing on the date of a Participant's termination of employment by the
Company or a Subsidiary other than for cause; (iii) during a three-year period
commencing on the date of termination, by the Participant or the Company or a
Subsidiary, of employment after a Change in Control unless such termination of
employment is by the Company or a Subsidiary for cause; or (iv) if the Committee
decides that it is in the best interest of the Company to permit other
exceptions. A Non-Qualified Stock Option may not be exercised pursuant to this
paragraph after the expiration date of the Share Option.
An Incentive Share Option is only exercisable by a Participant while
the Participant is in active employment with the Company or a Subsidiary or
within thirty (30) days after termination of such employment, except (i) during
a one-year period after a Participant's death, where the Option is exercised by
the estate of the Participant or by any person who acquired such Option by
bequest or inheritance; (ii) during a three-month period commencing on the date
of the Participant's termination of employment other than due to death, a
Disability or by the Company or a Subsidiary other than for cause; or (iii)
during a one-year period commencing on the Participant's termination of
employment on account of Disability. An Incentive Share Option may not be
exercised pursuant to this paragraph after the expiration date of the Share
Option.
8
An Option may be exercised with respect to part or all of the Shares
subject to the Option by giving written notice to the Company of the exercise of
the Option. The Option Price for the Shares for which an Option is exercised
shall be paid on or within ten (10) business days after the date of exercise in
cash (by certified or bank cashier's check), in whole Shares owned by the
Participant prior to exercising the Option, in a combination of cash and such
Shares or on such other terms and conditions as the Committee may approve. The
value of any Share delivered in payment of the Option Price shall be its Fair
Market Value on the date the Option is exercised.
6.5 LIMITATION APPLICABLE TO ISOS. The aggregate Fair Market Value,
determined as of the date the related Share Option is granted, of all Shares
with respect to which ISOs are exercisable for the first time by a Participant
in any one calendar year, under this Plan or any other share option plan
maintained by the Company, shall not exceed $100,000.
7. SHARE APPRECIATION RIGHTS.
7.1 GENERAL. The Committee may, in its discretion, grant SARs to
Participants who have received a Share Option Award. The SARs may relate to such
number of Shares, not exceeding the number of Shares that the Participant may
acquire upon exercise of a related Share Option, as the Committee determines in
its discretion. Upon exercise of a Share Option by a Participant, the SAR
relating to the Share covered by such exercise shall terminate. Upon termination
or expiration of a Share Option, any unexercised SAR related to that Option
shall also terminate. Upon exercise of SARs, such rights and the related Share
Options, to the extent of an equal number of Shares shall be surrendered to the
Committee, and such SARs and the related Share Options shall terminate.
7.2 AWARD. Upon a Participant's exercise of some or all of the
Participant's SARs, the Participant shall receive an amount equal to the value
of the Share Appreciation for the number of SARs exercised, payable in cash,
Shares, Restricted Shares, or a combination thereof, at the discretion of the
Committee.
7.3 FORM OF SETTLEMENT. The Committee shall have the discretion to
determine the form in which payment of an SAR will be made, or to permit an
election by the Participant to receive cash in full or partial settlement of the
SAR. Unless otherwise specified in the grant of the SAR, if a Participant
exercises an SAR during the sixty (60) day period commencing on the date of a
Change in Control, the form of payment of such SAR shall be cash, provided that
such SAR was granted at least six (6) months prior to the date of exercise, and
shall be Shares if such SAR was granted
9
six (6) months or less prior to the date of the exercise. Settlement for
exercised SARs may be deferred by the Committee in its discretion to such date
and under such terms and conditions as the Committee may determine.
7.4 RESTRICTIONS ON CASH EXERCISE. Except in the case of an SAR that was
granted at least six (6) months prior to exercise and is exercised for cash
during the sixty (60) day period commencing on the date of the Change in
Control, any election by a Participant to receive cash in full or partial
settlement of the SAR, as well as any exercise by a Participant of the
Participant's SAR for such cash, shall be made only during the period beginning
on the third business day following the date of release of the quarterly or
annual summary statements of sales and earnings and ending on the twelfth
business day following such date.
7.5 RESTRICTIONS. An SAR is only vested, exercisable and transferable
during the period when the Share Option to which it is related is also vested,
exercisable and transferable, respectively. If the Participant is a person
subject to Section 16 of the Exchange Act, the SAR may not be exercised within
six (6) months after the grant of the related Share Option, unless otherwise
permitted by law.
8. EXERCISE PAYMENTS.
The Committee may grant to Participants holding Share Options the right to
receive payments in connection with the exercise of a Participant's Share
Options ("Exercise Payments") relating to such number of Shares covered by such
Share Options, and subject to such restrictions and pursuant to such other terms
as the Committee may determine. Exercise Payments shall be in an amount
determined by the Committee in its discretion, which amount shall not be greater
than 60% of the excess of the Fair Market Value (as of the date of exercise)
over the Option Price of the Shares acquired upon the exercise of the Option. At
the discretion of the Committee, the Exercise Payment may be made in cash,
Shares, including Restricted Shares, or a combination thereof.
9. GRANTS OF SHARES.
9.1 AWARDS. The Committee may grant, either alone or in addition to other
awards granted under this Plan, Shares (including Restricted Shares) to such
Participants as the Committee authorizes and under such terms (including the
payment of a purchase price) as the Committee establishes. The Committee, in its
discretion, may also make a cash payment to a Participant granted Shares or
Restricted Shares under this Plan to allow such Participant to
10
satisfy tax obligations arising out of receipt of such Shares or
Restricted Shares.
9.2 RESTRICTED SHARE AWARD. Awards of Restricted Shares shall be subject
to such terms and conditions as are established by the Committee. Such terms and
conditions may include, but are not limited to, the requirement of continued
service with the Company, achievement of specified business objectives and other
measurements of individual or business unit performance, the manner in which
such Restricted Shares are held, the extent to which the holder of such
Restricted Shares has rights of a shareholder and the circumstances under which
such Restricted Shares shall be forfeited. The Participant shall not be
permitted to sell, assign, transfer, pledge or otherwise encumber Shares
received pursuant to this Section 9 prior to the date on which any applicable
restriction established by the Committee lapses. The Participant shall have,
with respect to Restricted Shares, all of the rights of a shareholder of the
Company, including the right to vote the Restricted Shares and the right to
receive any dividends, unless the Committee shall otherwise in the grant of such
Restricted Shares. Restricted Shares may not be sold or transferred by the
Participant until any restrictions that have been established by the Committee
have lapsed. Upon the termination of employment of a Participant who is an
Employee during the period any restrictions are in effect, all Restricted Shares
shall be forfeited without compensation to the Participant unless otherwise
provided in the grant of such Restricted Shares.
10. PERFORMANCE AWARDS.
The Committee may grant, either alone or in addition to other awards
granted under this Plan, awards of Shares based on the attainment, over a
specified period, of individual performance targets or other parameters to such
Participants as the Committee authorizes and under such terms as the Committee
establishes. Performance Awards shall entitle the Participant to receive an
award if the measures of performance established by the Committee, are met. The
Committee, shall determine the times at which Performance Awards are to be made
and all conditions of such awards. The Participant shall not be permitted to
sell, assign, transfer, pledge or otherwise encumber Shares received pursuant to
this Section 10 prior to the date on which any applicable restriction or
performance period established by the Committee lapses. Performance Awards may
be paid in Shares, Restricted Shares, or other securities of the Company, cash
or any other form of property that the Committee shall determine. Unless
otherwise provided in the Performance Award, a Participant who is an Employee
must be an Employee at the end of the performance period in order to receive a
Performance Award, unless the Participant dies, has reached Retirement or incurs
a Disability or under such other circumstances as the Committee may determine.
11
11. GENERAL PROVISIONS.
11.1 Any assignment or transfer of any awards granted under this Plan may
be effected only if such assignment or transfer does not violate the terms of
the award.
11.2 Nothing contained herein shall require the Company to segregate any
monies from its general funds, or to create any trusts, or to make any special
deposits for any immediate or deferred amounts payable to any Participant for
any year.
11.3 Participation in this Plan shall not affect the Company's right to
discharge a Participant or constitute an agreement of employment between a
Participant and the Company.
11.4 This Plan shall be interpreted in accordance with, and the
enforcement of this Plan shall be governed by, the laws of The Bahamas, subject
to any applicable United States federal or state securities laws.
12. AMENDMENT, SUSPENSION, OR TERMINATION.
12.1 GENERAL RULE. Except as otherwise required under applicable rules of
a Nasdaq Market or a securities exchange or other market where the securities of
the Company are traded or applicable law, the Board may suspend, terminate or
amend this Plan, including but not limited to such amendments as may be
necessary or desirable resulting from changes in the United States federal
income tax laws and other applicable laws without the approval of the Company's
shareholders or Participants; provided, however, that no such action shall
adversely affect any awards previously granted to a Participant without the
Participant's consent.
12.2 COMPLIANCE WITH RULE 16B-3. With respect to any person subject to
Section 16 of the Exchange Act, transactions under this Plan are intended to
comply with the requirements of Rule 16b-3 under the Exchange Act, as applicable
during the term of this Plan. To the extent that any provision of this Plan or
action of the Committee or its delegates fail to so comply, it shall be deemed
null and void.
13. EFFECTIVE DATE AND DURATION OF PLAN.
This Plan shall be effective on August 15, 1996. No award shall be granted
under this Plan subsequent to August 15, 2006.
12
14. TAX WITHHOLDING.
The Company shall have the right to (i) make deductions from any
settlement of an award, including delivery or vesting of Shares, or require that
Shares or cash, or both, be withheld from any award, in each case in an amount
sufficient to satisfy withholding of any federal, state or local taxes required
by law or (ii) take such other action as may be necessary or appropriate to
satisfy any such withholding obligations. The Committee may determine the manner
in which such tax withholding shall be satisfied, and may permit Shares (rounded
up to the next whole number) to be used to satisfy required tax withholding
based on the Fair Market Value of such Shares as of the Settlement Date of the
applicable award.
13
EXHIBIT 10.7(A)
XXXXXXX LEISURE LIMITED
NON-EMPLOYEE DIRECTORS' SHARE
OPTION PLAN
ADOPTED OCTOBER 8, 1996
AMENDMENT NO. 1 DATED
FEBRUARY 10, 1997
XXXXXXX LEISURE LIMITED
NON-EMPLOYEE DIRECTORS' SHARE OPTION PLAN
1. INTRODUCTION.
This plan shall be known as the "Xxxxxxx Leisure Limited Non- Employee
Directors' Share Option Plan" (this "Plan"). This Plan sets forth the terms of
grants of options (each, an "Option") to purchase the common shares (the
"Shares") of Xxxxxxx Leisure Limited (the "Company") to Non-Employee Directors
(as defined below) of the Company. The purpose of this Plan is to advance the
interests of Company and its shareholders by promoting an identity of interest
between the Company's non-employee directors and its shareholders, providing
non-employee directors with a proprietary stake in the Company's success and
strengthening the Company's ability to attract and retain qualified non-employee
directors by affording such persons an opportunity to share in the future
success of the Company.
2. DEFINITIONS.
(a) Act means the Securities Act of 1933, as
amended.
(b) Board means the Board of Directors of the
Company.
(c) Company means Xxxxxxx Leisure Limited.
(d) Date of Grant means the date as of which an Option is
granted to a Non-Employee Director pursuant to Section 5 of this Plan.
(e) Exchange Act means the Securities Exchange Act
of 1934, as amended.
(f) Fair Market Value means, on the date in question, or if
the prices described in clauses (i) and (ii), below, are not available on such
date, on the latest date preceding the date in question on which such prices are
available, (i) the
1
closing sales price per share of the Shares underlying an Option on the Nasdaq
Stock Market ("Nasdaq") or, if the Shares are not then traded on Nasdaq, on any
national securities exchange, or (ii) if the Shares are not then traded on
Nasdaq or such exchange, and are then traded on an over-the-counter market, the
average of the closing bid and asked prices for the Shares in such
over-the-counter market or (iii) if the Shares are then not listed on Nasdaq or
such exchange, or traded in an over-the-counter market, such value as the Board
may determine.
(g) Non-Employee Director means a member of the Board of
Directors of the Company who is not an employee of the Company or any subsidiary
(as defined under Rule 12b-2 under the Exchange Act) of the Company on a date in
question.
(h) Options means the options to purchase Shares
granted pursuant to this Plan.
(i) Plan means this Xxxxxxx Leisure Limited
Directors' Share Option Plan.
(j) Shares means the common shares of the Company,
par value (U.S.) $.01 per share.
3. ADMINISTRATION.
This Plan shall be administered by the Board or a committee of the
Board so designated by the Board to administer this Plan. Where the context so
requires, references to the Board herein shall refer to any such committee.
Subject to the provisions of this Plan, the Board shall be authorized to
interpret this Plan, to establish, amend and rescind any rules and regulations
relating to this Plan and to make all other determinations necessary or
advisable for the administration of this Plan; provided, however, that the Board
shall have no discretion with respect to the selection of directors to receive
Options, the number of Shares to be received upon exercise of Options or the
timing of grants of Options, all of which shall be determined in accordance with
the provisions of this Plan. Notwithstanding the foregoing, the Board may amend
this Plan pursuant to Section 8, below. The determinations of the Board in the
administration of this Plan, as described herein, shall be final and conclusive.
The Chairman of the Board and the Chief Operating Officer of the Company, and
either of them, shall be authorized to implement this Plan in accordance with
its terms and to take such actions of a ministerial nature as shall be necessary
to effectuate the intent and purposes
2
thereof. Except as otherwise provided herein, the validity, construction and
effect of this Plan and any rules and regulations relating to this Plan shall be
determined in accordance with the laws of the Commonwealth of the Bahamas
subject to any applicable requirements under United States federal or state
securities laws.
4. ELIGIBILITY; OPTION AGREEMENT.
Only Non-Employee Directors shall be eligible to receive Options
under this Plan. Options shall be evidenced by written option agreements in such
form as the Board shall approve.
5. GRANTS OF OPTIONS.
Options shall be granted to Non-Employee Directors, subject to the
limitation on the number of Shares that may be issued under this Plan as
described in Section 6, below, as follows:
(a) GRANTS TO INITIAL DIRECTORS. Each of the initial four
Non-Employee Directors (the "Initial Directors") shall be granted, on the
effective date of the appointment or election of such Initial Director (the
"Initial Effective Date") without the need for further action by the Board,
Options to purchase that number of Shares equal to 1,250 multiplied by a
fraction, the numerator of which is the number of days from the Initial
Effective Date until the scheduled date of the then next annual meeting of
Shareholders of the Company ("Annual Meeting") (or, if such date has not yet
been scheduled, a date approximating the date of the next Annual Meeting as
determined in good faith by the Board), and the denominator of which is 365.
(b) ANNUAL GRANTS. On the date of each Annual Meeting during
the term of this Plan, each individual elected or re-elected as a Non-Employee
Director at such meeting or continuing as a Non-Employee Director shall be
granted, without the need for further action by the Board, an Option to purchase
1,250 Shares.
(c) OTHER GRANTS. Any new Non-Employee Director who is
appointed by the Board to fill a vacancy on the Board, or who is otherwise
appointed or elected to the Board otherwise than at an Annual Meeting shall be
granted, on the effective date of such appointment or election (the "Effective
Date"), without the need for further action by the Board, an Option to purchase
that number of Shares equal to 1,250 multiplied by a fraction, the
3
numerator of which is the number of days from the Effective Date until the
scheduled date of the then next Annual meeting (or, if such date has not yet
been scheduled, the anniversary date of the then immediately preceding Annual
Meeting or, in the absence of such date, a date approximating the date of the
next Annual Meeting as determined in good faith by the Board), and the
denominator of which is 365.
(d) EXERCISE PRICE. The exercise price of each
Option shall be the Fair Market Value of the Shares on the Date of
Grant.
(e) DURATION OF OPTIONS. Except as otherwise provided herein,
the latest date on which an Option may be exercised (the "Final Exercise Date")
shall be the date which is ten years from the Date of Grant.
(f) EXERCISE OF OPTIONS. Except as otherwise provided herein,
an Option shall become exercisable one year after the Date of Grant. An Option
may be exercised by giving written notice to the Secretary of the Company
specifying the number of Shares to be purchased, accompanied by the full
purchase price for the Shares to be purchased. An Option may not be exercised
for a fraction of a Share.
(g) PAYMENT FOR SHARES. Shares purchased pursuant to the
exercise of an Option granted under this Plan shall be paid for as follows: (i)
in cash or by certified check, bank draft or money order payable to the order of
the Company, (ii) through the delivery of Shares having a Fair Market Value on
the last business day preceding the date of exercise equal to the purchase
price, provided that, in the case of Shares acquired directly from the Company,
such Shares have been held for at least six months, or (iii) by a combination of
cash and Shares, as provided in clauses (i) and (ii), above.
(h) WITHHOLDING TAXES. Prior to issuance of the Shares upon
exercise of an Option, the Option holder shall pay or make adequate provision
for any applicable United States federal or state, or other tax withholding
obligations of the Company. Where approved by the Board in its sole discretion,
the Option holder may provide for the payment of withholding taxes upon exercise
of the Option by requesting that the Company retain Shares with a Fair Market
Value equal to the amount of taxes required to be withheld. In such case, the
Company shall issue the net number of Shares to the Option holder by deducting
the Shares retained from the Shares
4
with respect to which the Option was exercised. The Fair Market Value of the
Shares to be withheld shall be determined on the date that the amount of tax to
be withheld is to be determined. All elections by Option holders to have Shares
withheld for this purpose shall be made in writing in form acceptable to the
Board.
(i) DELIVERY OF SHARE CERTIFICATES. Until the issuance (as
evidenced by the appropriate entry on the books of the Company or of a duly
authorized transfer agent of the Company) of the certificate evidencing the
Shares underlying an Option, an Option holder shall not have any rights as a
shareholder of the Company. A certificate for the number of Shares purchased
pursuant to the exercise of an Option shall be issued as soon as practicable
after exercise of the Option. However, the Company shall not be obligated to
deliver a certificate evidencing Shares issuable under an Option (i) until, in
the opinion of the Company's counsel, all applicable Bahamas and United States
federal and state laws and regulations have been complied with and any
applicable taxes have been paid, (ii) if the Shares are at the time traded on
Nasdaq or any national securities exchange, until the Shares represented by the
certificate to be delivered have been listed or are authorized to be listed on
Nasdaq or such exchange, and (iii) until all other legal matters in connection
with the issuance and delivery of such certificate have been approved by the
Company's counsel. If the sale of Shares has not been registered under the Act,
the Company may require, as a condition to exercise of the Option, such
representations or agreements as counsel for the Company may consider
appropriate to avoid violation of the Act and may require that the certificate
evidencing such Shares bear an appropriate legend restricting transfer. The
inability of the Company to obtain authority from any regulatory body having
jurisdiction, which authority is deemed by the Company's counsel to be necessary
to the lawful issuance and sale of any Shares hereunder, shall relieve the
Company of any liability in respect of the failure to issue or sell such Shares.
(j) ASSIGNMENT OR TRANSFER. Except as set forth in this Section 5(j),
no Option may be transferred other than by will or by the laws of descent and
distribution, and during a Non-Employee Director's lifetime an Option may be
exercised only by the Non- Employee Director to whom it was granted. An Option
may be transferred to a (i) Non-Employee Director's spouse, children or
grandchildren (referred to herein as "Family Members"), (ii) a trust or trusts
for the exclusive benefit of Family Members or (iii) a partnership in which
Family Members are the only partners. Any transfer pursuant to this Section 5
(j) shall be subject to the following: (i) there shall be no consideration for
such transfer, (ii) there may be no subsequent transfers without the approval of
5
the Board and (iii) all transfers shall be made so that no liability under
Section 16(b) of the Exchange Act arises as a result of such transfer. Following
any transfer, an Option shall continue to be subject to the same terms and
conditions as were applicable to the Non-Employee Director immediately prior to
transfer, with the transferee being deemed to be the Non-Employee Director for
such purposes, except that the events of death and termination of service
described in Sections 5(k) and 5(l), below, shall continue to apply with respect
to the Non-Employee Director.
(k) DEATH. Upon the death of a Non-Employee Director, all Options
held by such Non-Employee Director that are not then exercisable shall
immediately become exercisable. All Options held by such Non-Employee Director
immediately prior to death may be exercised by his or her executor or
administrator, or by the person or persons to whom the Option is transferred by
will or the applicable laws of descent and distribution, at any time within the
three years following the date of death (but not later than the Final Exercise
Date); provided, however, that the Company shall be under no obligation to
deliver a certificate representing Shares that may be issued pursuant to such
exercise until the Company is satisfied as to the authority of the person or
persons exercising the Option.
(l) OTHER TERMINATION OF STATUS OF NON-EMPLOYEE DIRECTOR. If a
Non-Employee Director ceases to be a member of the Board for any reason other
than death, all Options held by such Non-Employee Director that are not then
exercisable shall terminate three years following the date they first become
exercisable. Options that are exercisable on the date of such termination shall
continue to be exercisable for a period of three years following the date of
termination (or until the Final Exercise Date, if earlier). Notwithstanding the
foregoing, all Options held by a Non-Employee Director shall terminate
immediately upon the termination of such Non-Employee Director's membership on
the Board if such termination was based on the misconduct of such Non- Employee
Director. After completion of the aforesaid three-year periods, such Options
shall terminate to the extent not previously exercised, expired or terminated.
(m) CHANGE IN CONTROL. In the event of a Change in Control (as
defined below) of the Company, any Options outstanding as of the date of such
Change in Control is determined to have occurred that are not yet exercisable on
such date shall become fully exercisable. For purposes of this Section 5(m) a
"Change in Control" means the happening of any of the following:
6
i. any transaction as a result of which a change
in control of the Company would be required to
be reported in response to Item 1(a) of the
Current Report on Form 8-K as in effect on the
date hereof, pursuant to Sections 13 or 15(d)
of the Exchange Act, whether or not the
Company is then subject to such reporting
requirement, otherwise than through an
arrangement or arrangements consummated with
the prior approval of the Board;
ii. any "person" or "group" within the meaning of
Sections 13(d) and 14(d)(2) of the Exchange
Act (a) becomes the "beneficial owner," as
defined in Rule 13d-3 under the Exchange Act,
of more than 20% of the then outstanding
voting securities of the Company, otherwise
than through a transaction or transactions
arranged by, or consummated with the prior
approval of, the Board or (b) acquires by
proxy or otherwise the right to vote for the
election of directors, for any merger or
consolidation of the Company or for any other
matter or question, more than 20% of the then
outstanding voting securities of the Company,
otherwise than through an arrangement or
arrangements consummated with the prior
approval of the Board;
iii. during any period of 24 consecutive months
(not including any period prior to the
adoption of this Plan), Present Directors
and/or New Directors cease for any reason to
constitute a majority of the Board. For
purposes of the preceding sentence, "Present
Directors" shall mean individuals who, at the
beginning of such consecutive 24 month period,
were members of the Board and "New Directors"
shall mean any director whose election by the
Board or whose nomination for election by the
Company's shareholders was approved by a vote
of at least two-thirds of the Directors then
still in office who were Present Directors or
New Directors; or
iv. any "person" or "group" within the meaning of
Sections 13(d) and 14(d)(2) of the Exchange
Act that is the "beneficial owner" as defined
7
in Rule 13d-3 under the Exchange Act of 20% or more of
the then outstanding voting securities of the Company
commences soliciting proxies.
(n) RULE 16B-3. Options granted hereunder are required to comply with
the applicable provisions of Rule 16b-3 under the Exchange Act and the award
thereof shall contain such additional conditions or restrictions as may be
required thereunder to qualify to the maximum extent for the exemption from
Section 16(b) of the Exchange Act available pursuant to Rule 16b-3.
6. SHARES AUTHORIZED.
(a) Subject to adjustment as provided below, the aggregate
number of Shares that may be issued pursuant to Options granted under this Plan
is 82,500. Such Shares may be authorized, but unissued Shares, or may be Shares
reacquired by the Company and held in treasury. If any Option granted under this
Plan terminates without being exercised in full, the number of Shares as to
which such Option was not exercised shall be available for future grants within
the limits set forth in this Section 6(a).
(b) Subject to any required action by the shareholders of the
Company in the event of any reorganization, recapitalization, share split, share
dividend, combination of shares, issuance of rights or any other change in the
capital or corporate structure of the Company, the number of Shares covered by
each outstanding Option and the number of Shares available for issuance under
this Plan, but as to which Options have not been granted or which have been
returned to the Plan upon cancellation or expiration of an Option, as well as
the exercise price per Share under outstanding Options, shall be adjusted
equitably to reflect the occurrence of such event; provided, however, that no
adjustments shall be made except as shall be necessary to preserve, rather than
enlarge or reduce the value of awards under this Plan. Any such adjustment shall
be made by the Board.
7. EFFECT AND DISCONTINUANCE.
Neither adoption of this Plan nor the grant of Options to a
Non-Employee Director hereunder shall confer upon any person any right to
continued status as a director of the Company or affect in
8
any way the right of the Company to terminate a director at any time. The Board
may at any time discontinue granting Options under this Plan.
8. EFFECTIVE DATE; TERMINATION AND AMENDMENT OF PLAN.
(a) The effective date of this Plan shall be the date of its
adoption by the Board of Directors and shareholders of the Company as indicated
on the cover page of this Plan. The final award under this Plan shall be made on
the date of the Annual Meeting in 2006, but the pertinent terms of this Plan
shall continue thereafter while previously awarded Options remain outstanding.
(b) The Board may terminate or amend this Plan as it shall
deem advisable or to conform to any change in any law or regulation applicable
thereto; provided, however, that the Board may not make any amendment that would
reduce any award previously made under this Plan.
9. GENERAL PROVISIONS.
(a) Nothing in this Plan is intended to be a substitute for,
or shall preclude or limit the establishment or continuation of, any other plan,
practice or arrangement for the payment of compensation or benefits to
Non-Employee Directors that the Company now has or may hereafter put into
effect.
(b) Options awarded hereunder and Shares underlying such
Options shall be held by the Non-Employee Director for such period of time
required so as to avoid liability under Section 16(b) of the Exchange Act.
(c) Headings are given to sections of this Plan solely as a
convenience to facilitate reference and are not intended to affect the meaning
of any provision hereof. The references herein to any statute, regulation or
other provision of law shall be construed to refer to any amendment or successor
to such provisions.
9
EXHIBIT 10.11
DEFERRED COMPENSATION AGREEMENT
DEFERRED COMPENSATION AGREEMENT made effective the 31ST day of
DECEMBER , 1996, by and between XXXXXXX LEISURE LIMITED., a Bahamian corporation
(hereinafter referred to as "Company"), and XXXXXXX XXXXXXX, a resident of Dade
County, Florida (hereinafter referred to as "Employee").
W I T N E S S E T H :
WHEREAS, Company has heretofore employed Employee as an executive of
the Company;
WHEREAS, Employee's past services to the Company have contributed to
the success of the Company;
WHEREAS, The Company desires to recognize the valuable and
meritorious services performed on behalf of the Company by Employee and to offer
him an incentive to remain as an employee of the Company;
WHEREAS, The parties hereto desire to set forth in writing the terms
and conditions of their understandings and agreements.
NOW, THEREFORE, the parties hereto, for and in consideration of the
sum of Ten Dollars ($10.00) and other good and valuable consideration, the
receipt of which is hereby acknowledged, and intending to be legally bound,
hereby agree as follows:
1. RECITALS. The foregoing statements and recitals are true and
correct and are incorporated herein by this reference.
2. DEFERRED COMPENSATION. Employee may elect, in accordance with
Section 3 of this Agreement, to defer annually the receipt of a portion of the
Incentive Bonus ("Bonus") that Employee may be entitled to receive annually
under the provisions of that certain Employment Agreement ("Employment
Agreement") entered into between Employee and the Company or such greater amount
as the Board of Directors of the Company may from time to time approve in
writing. Any amount of said Bonus deferred pursuant to this Section shall be
recorded by the Company in a deferred compensation account ("Account")
maintained in the name of Employee. Upon Employee's election to defer receipt of
said portion of or all of the Bonus, Company shall credit such amount to the
Account at such time as the amount would otherwise be payable to Employee and
shall also credit to the Account whatever earnings, if any, the investment of
the Account may have produced. All right, title and interest in and to all
amounts credited to the Account shall at all times be the sole and absolute
property of Company and shall in no event be deemed to constitute a fund or
collateral security for the payment under this Agreement. All amounts credited
to the Account shall for all purposes be a part of the general funds of Company.
To the extent that Employee or his designee acquires a right to receive payments
under this Agreement such right shall be not greater than the right of any
unsecured general creditor of Company. Neither Employee nor his designee shall
have any interest whatsoever in any amount credited to the account. Amounts
credited to Employee's Account may hereinafter be sometimes referred to as
"Deferred Compensation".
3. ELECTION BY EMPLOYEE. An election to defer receipt of all or a
portion of Employee's Bonus shall be made in writing and shall become effective
upon filing with the Company. An election shall remain in effect unless Employee
amends or terminates the election by a notice in writing filed with Company. An
amendment or termination of election shall be applicable only prospectively to
Employee's Bonus and shall apply for the fiscal year immediately following the
fiscal year of filing such notice with the Company, and shall not affect amounts
previously credited to the Account. Employee may not amend or terminate the
election with respect to the method or time of payment of the amounts credited
to the Account.
4. DISTRIBUTION. If Employee terminates employment other than on
account of death then all amounts credited to Employee's Account shall be paid
to Employee, at the time and in the manner specified in Employee's election
filed with Company. Employee may elect to receive all amounts credited to his
Account in one lump sum or in a specified number of equal annual installment
payments. The date on which such lump sum payment shall be
2
made, or the date on which the initial installment shall be paid, shall be
specified in the form of election filed with Company and shall be determined by
reference to the date on which Employee ceases to serve Company as an Employee.
In the event that Employee dies prior to the termination of his employment no
amounts credited to Employee's Account will be paid him.
5. BENEFICIARY DESIGNATION. Subject to the provisions of Section 4,
in the event that Employee shall die after terminating his employment but before
all amounts credited to his Account shall have been paid to him, Company shall
make payment of the balance of the amount in his Account to such person or
persons as Employee shall designate by notice in writing filed with Company.
Such payment shall be made in one lump sum or in equal annual installments, at
the election of Employee. In the event that Employee shall fail to designate any
beneficiary, then the balance of the amount in Employee's Account shall be paid
to Employee's estate in one lump sum.
6. LIFE INSURANCE. It is understood and agreed that Company shall be
under no obligation whatsoever to purchase any life insurance policy, annuity
policy, or to otherwise fund the Employee's Deferred Compensation hereunder. In
the event that Company shall voluntarily elect to purchase any such medium of
funding, Company shall be the absolute owner thereof and Employee shall have no
rights therein. It is specifically understood and agreed that payment of
Employee's Deferred Compensation hereunder shall at all times remain the general
unsecured obligation of Company and any medium of funding so purchased by
Company shall be the sole, exclusive and unrestricted property of Company. In
any and all events, whether or not any such medium of funding is in fact
purchased by Company, Company's liability to pay Deferred Compensation hereunder
shall be limited to the aggregate sums and the manner of payment hereinabove set
forth in the previous paragraphs of this Agreement.
7. SPENDTHRIFT PROVISION. The Deferred Compensation payable hereunder
shall not be subject to assignment and shall not be transferable by Employee or
by any other party, nor shall same be subject to attachment, garnishment,
execution or any other legal process by any creditor of Employee or Employee's
estate; and Employee shall have no right to alienate, hypothecate, encumber or
dispose of his right to receive all or any portion of the Deferred Compensation
herein set forth; provided, however, that if, at the time of the death of
Employee during his employment with Company, Employee is obligated to Company in
any manner whatsoever, it is specifically recognized and agreed that the first
amounts due to be paid hereunder as Deferred Compensation shall instead be used
to
3
satisfy Employee's obligations to Company in the order in which such payments
are due hereunder. In the event that there is more than one named beneficiary of
the Deferred Compensation due hereunder, such reduction and offset in such
payments for reimbursements to Company shall be taken pro rata from the payments
due to the respective beneficiaries hereunder in accordance with the respective
amounts due to all such beneficiaries.
8. RIGHT OF EMPLOYMENT. Nothing herein contained shall be construed
or interpreted as giving Employee the right to be retained in the service and
employment of Company, and Company and Employee each severally reserve the
rights to terminate such employment for any reason whatsoever in accordance with
such respective rights of termination as existed prior to the date of this
Agreement or may exist in the future.
9. COOPERATION FOR EXAMINATION. In the event that Company voluntarily
elects to purchase one or more life insurance policies or other media of funding
with respect to any Deferred Compensation hereunder which purchase requires any
one or more medical examinations of Employee, the giving of financial or other
information by Employee to any party (including but not limited to an insurance
company) or any similar act requiring the cooperation of Employee, Employee
shall fully cooperate with Company in the giving of such financial and other
information and the submission to any such medical or other examination. Upon
the failure of Employee to so cooperate in accordance with the provisions of
this paragraph, or if Employee makes any misrepresentation or false statement,
or omits any material statement of fact, or effects any other act of omission or
commission which results in the failure of any insurance company to effect
payments of death benefits under any such insurance policy, annuity or other
medium of funding which Company voluntarily elects to purchase, then, upon the
occurrence of any one or more of the foregoing events, this Agreement shall
terminate and be of no further force or effect, and in such event, Company shall
have no obligation for the payment of any Deferred Compensation.
10. INCOME TAX WITHHOLDING. If Company shall be required under
applicable law to withhold federal income or any other taxes of any kind or
description with regard to any Deferred Compensation to be paid under this
Agreement, including but not limited to federal withholding of income tax,
federal social security taxes or any state or local governmental taxes of any
kind, then any and all of such taxes shall be withheld prior to the payment of
Deferred Compensation hereunder.
4
11. MISCELLANEOUS.
(a) This Agreement shall be binding upon and shall inure to the
benefit of the respective parties hereto and the heirs, personal
representatives, successors and assigns of each of them.
(b) This Agreement contains the entire understanding and agreement
of the parties hereto and no future understanding or amendment shall be binding
unless reduced to writing and signed by both parties.
(c) This Agreement shall be construed and enforced in accordance
with the substantive and remedial laws of the State of Florida. In the event of
any dispute hereunder, the parties hereby agree that such dispute shall be
resolved by and in any court of competent jurisdiction geographically situate in
Dade County, Florida, and both parties hereby agree to submit to the personal
jurisdiction of such court.
(d) This Agreement may not be altered, amended, or modified except
in a writing executed by all parties hereto.
(e) Any party's failure to insist on compliance or enforcement of
any provision of this Agreement shall neither affect its validity or
enforceability or constitute a waiver of future enforcement of that provision or
any other provision of this Agreement.
(f) No part of this Agreement will be affected if any other part of
it is held invalid or unenforceable.
(g) This Agreement shall terminate upon the first
occurrence of any of the following events:
(i) A termination of the employment of Employee for any
reason whatsoever under the provisions of the Employment Agreement or any
renewal or extension thereof.
(ii) A voluntary termination hereof by Company and Employee
which voluntary termination shall be binding and conclusive upon the parties
hereto and all heirs, personal representatives, successors and assigns of any or
all of them.
5
Notwithstanding any termination of this Agreement, each party shall
continue to have any right to enforce any right that such party had under this
Agreement at the time of termination of this Agreement.
(h) If any term, provision, or condition of this Agreement shall be
found by any court competent jurisdiction to be against public policy, illegal
or void in any manner whatsoever, and such determination shall be upheld upon
exhaustion of all appeals, such determination shall have the effect of
terminating this Agreement AB INITIO and in such event this entire Agreement
shall be rendered null, void and of no further force or effect and Company shall
have no financial or other obligations hereunder to Employee, or any other
person hereunder.
(i) Any headings preceding the text of the several paragraphs hereof
are inserted solely for the convenience of reference and shall not constitute a
part of this Agreement, nor shall they affect its meaning, construction or
effect.
12. NOTICES. Any notice or election required or permitted to be given
hereunder shall be in writing and shall be deemed to be given upon the date it
is personally delivered to Employee or to an officer of the corporation other
than XXXXXXX XXXXXXX or three business days after it is sent by registered or
certified mail, return receipt requested addressed to such addressee at the
address set forth in the Employment Agreement or any other address notified by a
party to the other party in writing.
6
IN WITNESS WHEREOF, the parties have caused this Deferred Compensation
Agreement to be duly executed as of the day and year first above written.
XXXXXXX LEISURE LIMITED
By:/S/ XXXXX X. XXXXXXX
-----------------------------------
Xxxxx X. Xxxxxxx, Chairman
of the Board and Chief
Executive Officer
/S/ XXXXXXX X. XXXXXXX
-----------------------------------
Xxxxxxx X. Xxxxxxx
7
EXHIBIT 10.12
SPLIT-DOLLAR INSURANCE AGREEMENT
AGREEMENT MADE effective the __th day of _____, 1997, by and between
XXXXXXX LEISURE LIMITED, a Bahamian corporation, (hereinafter referred to as the
"Company") and XXXXXXX XXXXXXX, a resident of Dade County, Florida (hereinafter
referred to as the "Insured").
W I T N E S S E T H :
WHEREAS, the Insured desires to insure his life, for the benefit and
protection of his family; and
WHEREAS, Company desire to assist Insured providing insurance for
the benefit and protection of his family by paying the full amount of premiums
due on the policy on the Insured's life; and
WHEREAS, the Insured will be the owner of the policy of insurance on
his life acquired pursuant to the terms of this Agreement, the policy will be
assigned to the Company as security for the repayment of the amount which the
Company will contribute toward payment of the premiums due on said policy;
NOW, THEREFORE, the parties hereto, for and in consideration of the
mutual covenants herein contained, the sum of TEN DOLLARS ($10.00) and other
good and valuable consideration, the receipt whereof is hereby acknowledged, and
intending to be legally bound, hereby agree as follows:
1. APPLICATION FOR INSURANCE. Insured agrees to apply for one or
more policies (each a "Policy" and collectively the "Policies") of life
insurance covering the life of Insured from such companies, in such types and
face amounts, and on such terms and conditions as shall be referred to in
Exhibit "A" attached hereto and made a part of this Agreement listing the
insurer (the
"Insurer"), the face amount, the type and premium of each such
policy.
2. INCIDENTS OF OWNERSHIP. The Insured shall be the sole and
absolute owner of any and all Policies and may exercise all ownership rights and
incidents of ownership granted to the owner of each such Policy by Insurer,
except as may expressly provided to the contrary in this Agreement. It is the
intention of the parties that the Insured retain all rights that each such
Policy grants to the owner thereof, except Company's right to be repaid the
amounts that it pays toward the premiums on each such Policy. Specifically (but
not limited thereto), Company may neither have nor exercise any rights as
collateral assignee of each such Policy that could in any way defeat or impair
the Insured's right to receive the cash surrender value or the death proceeds of
each such Policy in excess of the amount due to Company under this Agreement.
All provisions of the collateral assignment to the Company described in Section
5 below shall be construed so as to carry out such intention.
3. DIVIDENDS. All dividends declared on each Policy may be applied
to buy one-year term insurance on the life of the Insured, in an amount equal to
such Policy's cash value as of such Policy's next anniversary date. If the
premium for such term insurance is less than the amount of such dividend, then
the balance of such dividend shall be used to reduce the premiums payable on
such Policy. If such dividend is not adequate to buy the required amount of
one-year term insurance on the life of the Insured, then the entire dividend may
be applied to buy such term insurance on his life. The parties hereto agree that
the dividend election provisions of each Policy shall conform to the provisions
of this section.
4. PREMIUM PAYMENTS. Except as otherwise provided in this Agreement,
on or before the due date of each Policy premium, or within the grace period
provided in each Policy, Company shall pay the full amount of such premium to
the Insurer, and shall, upon request, promptly furnish to the Insured evidence
of timely payment of each such premium. Company shall annually furnish to
Insured a statement of the amount of income reportable by him for federal income
tax purposes as a result of such premium payments.
5. RIGHT OF REPAYMENT. To secure the repayment to the Company of the
amount of premiums on each Policy paid by it hereunder, the Insured has,
contemporaneously herewith, assigned the Policy to the Company as
collateral, under the form used by the Insurer to such assignments, which
collateral assignment specifi-
2
cally limits the Company's right thereunder to the repayment of the amounts it
paid towards premiums on such Policy. Such repayment shall be made from such
Policy's cash surrender value if this Agreement is terminated or if the Insured
surrenders or cancels such Policy, or from such Policy's death proceeds, if the
Insured should die while such Policy and this Agreement remain in force. In no
event shall the Company have any right to borrow against such Policy. Each
Policy's collateral assignment shall not be terminated, altered, or amended by
the Insured without the express written consent of the Company. The parties
hereto agree to take all actions necessary to cause such collateral assignment
to conform to the provisions of the Agreement.
6. RIGHTS OF THE INSURED IN THE POLICY.
6.1 RIGHTS OF THE COMPANY PROTECTED. The Insured shall take no
action with respect to each Policy that would in any way compromise or
jeopardize the Company's right to be repaid the amount it paid towards such
Policy's premiums, without the Company's express written consent.
6.2 RIGHT TO BORROW. The Insured may pledge or assign such
Policy, subject to the terms and conditions of this Agreement, in order to
secure a loan from the Insurer or from a third party, in an amount that shall
not exceed such Policy's cash surrender value as of the most recent date on
which the premiums have been paid, less the amount of the premiums on such
Policy paid by the Company. Interest charges on such loan shall be the
responsibility of and shall be paid by the Insured. For each Policy year in
which the Insured borrows against such Policy, the Company shall be
correspondingly relieved of its obligation to pay any amounts towards premiums
for that particular Policy year.
6.3 RIGHT TO CANCEL. The Insured shall have the sole right to
surrender or cancel such Policy and to receive such Policy's full cash surrender
value directly from the Insurer. Notwithstanding the foregoing, upon any
surrender or cancellation of such Policy, the Company shall have the unqualified
right to receive a portion of the cash surrender value equal to the total amount
of the premiums paid by it under this Agreement. Immediately upon receipt of the
cash value, the Insured shall pay to the Company the portion of such cash value
to which it is entitled under this Agreement, and shall retain the balance, if
any.
7. UPON THE INSURED'S DEATH. Upon the death of the
Insured, the Company and the Insured shall promptly take all action
3
necessary to obtain the death benefit provided under each Policy. The Company
shall have the unqualified right to receive a portion of such death benefits
equal to the total amount of the premiums paid by it under this Agreement. The
balance of the death benefits provided under each Policy, if any, shall be paid
directly to the beneficiary designated by the Insured in the manner and in the
amount provided in such Policy's beneficiary designation provisions. In no event
shall the amount payable to the Company under this Agreement exceed each Policy
proceeds payable at the death of the Insured. No amount shall be paid from such
death benefits to the beneficiary designated by the Insured until the full
amount due to the Company has been paid. The parties agree that the beneficiary
designation provision of each Policy shall conform to the provisions of this
Agreement.
8. RELEASE OF COLLATERAL ASSIGNMENT. For sixty (60) days after the
date this Agreement is terminated, the Insured shall have the option of
obtaining the release of the collateral assignment of each Policy to the
Company. The Insured may exercise this option by repaying Company the total
amount of the premium payments Company has made under this Agreement, and upon
receipt of such amount, Company shall release the Employee's collateral
assignment of each Policy by its execution and delivery of an appropriate
instrument of release. If the Insured fails to exercise such option within the
said sixty (60) day period, then, at the Company's written request, he shall
execute any document required by the Insurer to transfer his interest in such
Policy to the Company. Alternatively, the Company may enforce its right to be
repaid the amount of each Policy premiums paid by it from the Policy's cash
surrender value under such Policy's collateral assignment, and if the cash
surrender value exceeds the amount of such premium payments, the excess will be
paid to the Insured.
9. TERMINATION. This Agreement shall automatically terminate upon
cessation of Insured's employment with Company. In addition, this Agreement may
be terminated by either party giving written notice to the other party of such
intention to terminate. Such notice, if given, shall be given at least thirty
(30) days prior to the date on which the next premium on each Policy purchased
in accordance herewith is due and payable; and within thirty (30) days after
the receipt of any such notice of intention to terminate, the Insured shall have
the right and option to assume Company's interest in and to the Policy from
Company by paying to the Company an amount equal to the aggregate amount of
premiums that the Company paid for such Policy. Notwithstanding such
termination, each party shall continue to have the right to enforce any right
that such party had at the
4
time of termination under this Agreement. In the event of such purchase by
Insured, Company shall execute all documents which may be necessary or advisable
to release or otherwise transfer its interest in the Policy to the Insured.
10. INSURER PROTECTED. The Insurer shall be fully discharged
from its obligations under each Policy by payment of such Policy's death
benefit to the beneficiary named in each such Policy, subject to such Policy's
terms and conditions. In no event shall the Insurer be considered a party to
this Agreement. No provision of this Agreement shall in any way be construed as
enlarging, changing, varying, or in any other way affecting the Insurer's
obligations as expressly provided in such Policy, except insofar as the
provisions of this Agreement are made a part of such Policy by the collateral
assignment document executed by the Insured and filed with the Insurer in
connection with this Agreement.
11. THE COMPANY AS FIDUCIARY. The Company is the named fiduciary
under this Agreement and as such it shall have the authority to control the
administration of this Agreement. The Company will make all determinations
relating to the rights and benefits conferred by this Agreement, and its
decision regarding any claim by the Insured or his beneficiary for benefits
under this Agreement must be stated in writing and delivered or mailed to the
Insured or such beneficiary. Such decision shall set forth the specific reasons
for any such denial.
12. GOVERNING LAW. This Agreement shall be executed and delivered in
the State of Florida and shall be construed and enforced in accordance with the
laws of such State. In the event of any dispute hereunder, the parties hereby
agree that such dispute shall be resolved by and in any court of competent
jurisdiction geographically situate in Dade County, Florida, and both parties
hereby agree to submit to the personal jurisdiction of such court.
13. MODIFICATION. This Agreement may not be altered,
amended, or modified except in a writing executed by all parties
hereto.
14. BINDING AGREEMENT. This Agreement is binding on and
enforceable by and against the parties, their successors, legal
representatives, and assigns.
5
15. NOTICES. Any notice or election required or permitted to be
given hereunder shall be in writing and shall be deemed to be given upon the
date it is personally delivered to Employee or to an officer of the corporation
other than XXXXXXX XXXXXXX or three business days after it is sent by registered
or certified mail, return receipt requested addressed to such addressee at the
address set forth in any employment agreement entered into between the parties
hereto and in effect or any other address notified by a party to the other party
in writing.
16. WAIVER. Any party's failure to insist on compliance
or enforcement of any provision of this Agreement shall neither
affect its validity or enforceability or constitute a waiver of
future enforcement of that provision or any other provision of this
Agreement.
17. COPIES. More than one (1) copy of this Agreement
may be executed and all parties agree and acknowledge that each
executed copy shall be a duplicate original.
18. SEVERABILITY. No part of this Agreement will be
affected if any other part of it is held invalid or unenforceable.
19. HEADINGS. Any headings preceding the text of the
several paragraphs hereof are inserted solely for the convenience
of reference and shall not constitute a part of this Agreement, nor
shall they affect its meaning, construction or effect.
20. ENTIRE AGREEMENT. This Agreement contains the
entire understanding and agreement of the parties hereto and no
future understanding or amendment shall be binding unless reduced
to writing and signed by both parties.
6
IN WITNESS WHEREOF, the parties have caused this Agreement to be
duly executed as of the day and year first above written.
XXXXXXX LEISURE LIMITED
By:/S/ XXXXX X. XXXXXXX
-----------------------------------
Xxxxx X. Xxxxxxx, Chairman
of the Board and Chief
Executive Officer
/S/ XXXXXXX X. XXXXXXX
-----------------------------------
Xxxxxxx X. Xxxxxxx
7
