Exhibit 10.2
MPS GROUP, INC.
2008 NON-EXECUTIVE EQUITY
INCENTIVE PLAN
ARTICLE 1 — GENERAL
PROVISIONS
1.1 Establishment and Purposes of
Plan . MPS Group, Inc., a Florida corporation, hereby
establishes an equity incentive plan to be known as the “MPS
Group, Inc. 2008 Non-Executive Equity Incentive Plan”, as set
forth in this document. The objectives of the Plan are (i) to
provide incentives to those individuals who contribute
significantly to the long-term performance and growth of the
Company and its affiliates; and (ii) to attract, motivate and
retain directors, employees, consultants, advisors and other
persons who perform services for the Company by providing
compensation opportunities that are competitive with other
companies; and (iii) to align the long-term financial
interests of employees and other Eligible Participants with those
of the Company’s stockholders.
1.2 Types of Awards . Awards
under the Plan may be made to Eligible Participants who are
employees in the form of (i) Incentive Stock Options,
(ii) Nonqualified Stock Options, (iii) Restricted Stock,
(iv) Restricted Stock Units, (v) Other Awards, or
(vi) any combination of the foregoing. Awards under the Plan
may be made to Eligible Participants who are not employees in the
form of (i) Nonqualified Stock Options, (ii) Restricted
Stock; and (iii) Restricted Stock Units, (iv) Other
Awards,or (v) any combination of the foregoing.
1.3 Effective Date . The Plan
shall be effective upon approval by the Company’s
stockholders (the “ Effective Date
”).
ARTICLE 2 —
DEFINITIONS
Except where the context otherwise
indicates, the following definitions apply:
“ Agreement ”
means the written agreement evidencing an Award granted to the
Participant under the Plan.
“ Award ” means
an award granted to a Participant under the Plan that is an Option,
Restricted Stock, Other Award, or combination of these.
“ Board ” means
the Board of Directors of the Company.
“ Cause ” means,
unless provided otherwise in the Agreement, the involuntary
termination of a Participant by the Company for any of the
following reasons: (a) as a result of an act or acts by the
Participant which have been found in an applicable court of law to
constitute a felony (other than traffic-related offenses);
(b) as a result of one or more acts by a Participant which in
the good faith judgment of the Board are believed to be in
violation of law or of policies of the Company and which result in
demonstrably material injury to the Company; (c) as a result
of an act or acts of proven dishonesty by the Participant resulting
or intended to result directly or indirectly in significant gain or
personal enrichment to the Participant at the expense of the
Company or public stockholders of the Company; or (d) upon the
willful and continued failure by the Participant to perform his or
her duties with the Company (other than any such failure resulting
from incapacity due to mental or physical illness not constituting
a Disability), after a demand in writing for substantial
performance is delivered by the Board, which demand specifically
identifies the manner in which the Board believes that the
Participant has not substantially performed his or her duties. For
purposes of this Plan, no act or failure to act by the Participant
shall be deemed to be “willful” unless done or omitted
to be done by the Participant not in good faith and without
reasonable belief that the Participant’s action or omission
was in the best interests of the Company. “Cause” shall
be determined by the Committee. Notwithstanding the foregoing, if
the Participant has entered into an employment agreement with the
Employer that is binding as of the date of employment termination,
and if such employment agreement defines “Cause,” then
the definition of “Cause” in such agreement, in lieu of
the definition provided above, shall apply to the Participant for
purposes of the Plan.
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“ Change in Control
” means any of the following events:
(a) The acquisition by any
“person,” as the term person is used for purposes of
Sections 13(d) or 14(d) of the Exchange Act, not a stockholder of
the Company on the Effective Date, of legal or beneficial ownership
of 35% or more of either (i) the then outstanding shares of
common stock of the Company or (ii) the combined voting power
of the then outstanding voting securities of the Company entitled
to vote generally in the election of directors;
(b) Individuals who, on the
Effective Date, constitute the Board cease for any reason to
constitute at least a majority of the Board; provided, however,
that any individual becoming a director subsequent to the date
hereof whose election, or nomination for election by the
Company’s stockholders, was approved by a vote of at least a
majority of the directors then comprising the Board shall be
considered as though such individual were a member of the Board as
of the date hereof;
(c) Approval by the stockholders of
the Company of a reorganization, merger, or consolidation, in each
case unless the stockholders of the Company immediately before such
reorganization, merger, or consolidation own, directly or
indirectly, immediately following such reorganization, merger, or
consolidation at least a majority of the combined voting power of
the outstanding voting securities of the corporation resulting from
such reorganization, merger, or consolidation in substantially the
same proportion as their ownership of the voting securities
immediately before such reorganization, merger or consolidation;
or
(d) Approval by the stockholders of
the Company of (i) a complete liquidation or dissolution of
the Company, or (ii) the sale or other disposition of more
than 50% of the assets of the Company within a twelve month
period.
“ Code ” means
the Internal Revenue Code of 1986, as now in effect or as hereafter
amended. All citations to sections of the Code are to such sections
as they may from time to time be amended or renumbered.
“ Committee ”
means the Compensation Committee of the Board or such other
committee consisting of two or more members of the Board as may be
appointed by the Board to administer this Plan pursuant to Article
3 of the Plan.
“ Company ” means
MPS Group, Inc., a Florida corporation, and its successors and
assigns.
“ Director ”
means any individual who is a member of the Board of Directors of
the Company; provided, however, that any Director who is employed
by the Company or any Employer shall not be considered a Director,
but instead shall be considered an employee for purposes of the
Plan.
“ Disability ”
means, (i) with respect to a Participant who is eligible to
participate in the Employer’s program of long-term disability
insurance, if any, a condition with respect to which the
Participant is entitled to commence benefits under such program,
and (ii) with respect to any Participant (including a
Participant who is eligible to participate in the Employer’s
program of long-term disability insurance, if any), the inability
of the Participant to engage in any substantial gainful activity by
reason of any medically determinable physical or mental impairment
expected to result in death or to be of continuous duration of six
(6) months or more. The determination of Disability shall be
made by the Committee.
“ Effective Date
” shall have the meaning ascribed to such term in
Section 1.3 hereof.
“ Eligible Participant
” means an employee of the Employer, as well as any Director
or other person, including a consultant or advisor, who provides
bona fide services to the Employer, as shall be determined by the
Committee. Notwithstanding the foregoing, no person who at the time
of a proposed grant of an Award hereunder is an Excluded Executive
Officer shall be an Eligible Participant or granted any Award under
this Plan.
“ Employer ”
means the Company and any entity during any period of which it is a
“parent corporation” or a “subsidiary
corporation” with respect to the Company within the meaning
of Code Sections 424(e) and 424(f). With respect to all purposes of
the Plan, including, but not limited to, the establishment,
amendment, termination, operation and administration of the Plan,
the Company shall be authorized to act on behalf of all other
entities included within the definition of
“Employer.”
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“ Exchange Act ”
means the Securities Exchange Act of 1934, as now in effect or as
hereafter amended. All citations to sections of the Exchange Act or
rules thereunder are to such sections or rules as they may from
time to time be amended or renumbered.
“ Excluded Executive
Officer ” means each of the Company’s Principal
Executive Officer, Principal Financial Officer, and other executive
officers as may be determined by the Committee.
“ Fair Market Value
” means the fair market value of a Share, as determined in
good faith by the Committee as follows:
(a) if the Shares are admitted to
trading on a national securities exchange, Fair Market Value on any
date shall be the last sale price reported for the Shares on such
exchange on such date or, if no sale was reported on such date, on
the last date preceding such date on which a sale was
reported;
(b) if the Shares are admitted to
quotation on the National Association of Securities Dealers
Automated Quotation System (“ NASDAQ ”) or other
comparable quotation system and have been designated as a National
Market System (“ NMS ”) security, Fair Market
Value on any date shall be the last sale price reported for the
Shares on such system on such date or on the last day preceding
such date on which a sale was reported;
(c) If the Shares are admitted to
Quotation on the NASDAQ and have not been designated a NMS
Security, Fair Market Value on any date shall be the average of the
highest bid and lowest asked prices of the Shares on such system on
such date; or
(d) if (a), (b) and (c) do
not apply, on the basis of the good faith determination of the
Committee.
For purposes of subsection
(a) above, if Shares are traded on more than one securities
exchange then the following exchange shall be referenced to
determine Fair Market Value: (i) the New York Stock Exchange
(“ NYSE ”), or (ii) if shares are not
traded on the NYSE, the NASDAQ, or (iii) if shares are not
traded on the NYSE or NASDAQ, the largest regional exchange on
which Shares are traded.
“ Incentive Stock
Option ” means an Option granted to an Eligible
Participant under Article 5 of the Plan which is intended to meet
the requirements of Section 422 of the Code.
“ Nonqualified Stock
Option ” means an Option granted to an Eligible
Participant under Article 5 of the Plan which is not intended to
meet the requirements of Section 422 of the Code.
“ Option ” means
an Incentive Stock Option or a Nonqualified Stock Option. An Option
shall be designated as either an Incentive Stock Option or a
Nonqualified Stock Option, and in the absence of such designation,
shall be treated as a Nonqualified Stock Option.
“ Option Price ”
means the price at which a Share may be purchased by a Participant
pursuant to an Option.
“ Other Award ”
means any other award granted to a Participant pursuant to Article
7 of this Plan
“ Participant ”
means an Eligible Participant to whom an Award has been
granted.
“ Permitted Transferee
” means any members of the immediate family of the
Participant ( i.e., spouse, children and grandchildren), any
trusts for the benefit of such family members or any partnerships
whose only partners are such family members. Appropriate evidence
of any transfer to the Permitted Transferees shall be delivered to
the Company at its principal executive office. If all or part of an
Option is transferred to a Permitted Transferee, the Permitted
Transferee’s rights thereunder shall be subject to the same
restrictions and limitations with respect to the Option as the
Participant.
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“ Plan ” means
the MPS Group, Inc. 2008 Non-Executive Equity Incentive Plan, as
set forth herein and as it may be amended from time to
time.
“Principal Executive
Officer” means the
individual serving as the Company’s principal executive
officer, as determined in accordance with Item 402 of
Regulation S-K.
“Principal Financial
Officer” means the
individual serving as the Company’s principal financial
officer, as determined in accordance with Item 402 of
Regulation S-K.
“ Restricted Stock
” means an Award of Shares under Article 6 of the Plan, which
Shares are issued with such restriction(s) as the Committee, in its
sole discretion, may impose, including without limitation, any
restriction on the right to retain such Shares, to sell, transfer,
pledge or assign such Shares, to vote such Shares, and/or to
receive any dividends or distributions with respect to such Shares,
which restrictions may lapse separately or in combination at such
time or times, in installments or otherwise, as the Committee may
deem appropriate.
“ Restricted Stock
Units ” means a right granted under Article 6 of the Plan
to receive a number of Shares or a cash payment for each such Share
equal to the Fair Market Value of a Share on a specified
date.
“ Restriction Period
” means the period commencing on the date an Award of
Restricted Stock or Restricted Stock Units is granted and ending on
such date as the Committee shall determine.
“ Retirement ”
means termination of employment other than for Cause after a
Participant has (i) attained age 65; or (ii) reached the
age of 55 years and has completed at least 10 years of
service.
“ Securities Act
” means the Securities Act of 1933, as now in effect or as
hereafter amended. All citations to sections of the Securities Act
or rules thereunder are to such sections or rules as they may from
time to time be amended or renumbered.
“ Share ” means
one share of common stock, par value $.01 per share, of the
Company, and as such Share may be adjusted pursuant to the
provisions of Section 4.2 of the Plan.
ARTICLE 3 —
ADMINISTRATION
3.1 General . This Plan shall
be administered by the Committee. The Committee, in its discretion,
may delegate to one or more of its members, or to officers of the
Company, such of its powers as it deems appropriate.
3.2 Authority of the
Committee .
(a) The Committee shall have the
exclusive right to interpret, construe and administer the Plan, to
select the Eligible Participants who are eligible to receive an
Award, and to act in all matters pertaining to the granting of an
Award and the contents of the Agreement evidencing the Award,
including, without limitation, the determination of the number of
Options, Restricted Stock, Restricted Stock Units, or Other Awards
subject to an Award and the form, terms, conditions and duration of
each Award, and any amendment thereof consistent with the
provisions of the Plan. The Committee may adopt such rules,
regulations and procedures of general application for the
administration of this Plan, as it deems appropriate.
(b) The Committee may correct any
defect, supply any omission or reconcile any inconsistency in the
Plan or any Agreement in the manner and to the extent it shall deem
desirable to carry it into effect.
(c) In the event the Company shall
assume outstanding employee benefit awards or the right or
obligation to make future such awards in connection with the
acquisition of another corporation or business entity, the
Committee may, in its discretion, make such adjustments in the
terms of Awards under the Plan as it shall deem
appropriate.
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(d) All acts, determinations and
decisions of the Committee made or taken pursuant to grants of
authority under the Plan or with respect to any questions arising
in connection with the administration and interpretation of the
Plan, including the severability of any and all of the provisions
thereof, shall be conclusive, final and binding upon all parties,
including the Company, its stockholders, Participants, Eligible
Participants and their estates, beneficiaries and
successors.
3.3 Award Agreements . Each
Award granted under the Plan shall be evidenced by a written
Agreement. Each Agreement shall be subject to and incorporate, by
reference or otherwise, the applicable terms and conditions of the
Plan, and any other terms and conditions, not inconsistent with the
Plan, as may be imposed by the Committee, including without
limitation, provisions related to the consequences of termination
of employment. A copy of such document shall be provided to the
Participant, and the Committee may, but need not, require that the
Participant sign a copy of the Agreement.
3.4 Indemnification . In
addition to such other rights of indemnification as they may have
as directors, officers or as members of the Committee, directors
and officers of the Company and the members of the Committee shall
be indemnified by the Company against reasonable expenses,
including attorney’s fees, actually and necessarily incurred
in connection with the defense of any action, suit or proceeding,
or in connection with any appeal therein, to which they or any of
them may be a party by reason of any action taken or failure to act
under or in connection with the Plan or any Award granted
hereunder, and against all amounts paid by them in settlement
thereof, provided such settlement is approved by independent legal
counsel selected by the Company, or paid by them in satisfaction of
a judgment or settlement in any such action, suit or proceeding,
except as to matters as to which the director, officer or Committee
member has been grossly negligent or engaged in willful misconduct
in the performance of his duties; provided, that within 60 days
after institution of any such action, suit or proceeding, a
director, officer or Committee member shall in writing offer the
Company the opportunity, at its own expense, to handle and defend
the same.
ARTICLE 4 — SHARES SUBJECT
TO THE PLAN
4.1 Number of Shares
.
(a) Subject to adjustment as
provided in (b) below and in Section 4.2, the aggregate
number of Shares which are available for issuance pursuant to
Awards under the Plan is Two Million (2,000,000) Shares. The
number of Incentive Stock Options that may be issued under the Plan
is 2,000,000. Such Shares shall be made available from Shares
currently authorized but unissued or Shares currently held (or
subsequently acquired) by the Company as treasury shares, including
Shares purchased in the open market or in private transactions. If
Options, Restricted Stock or Restricted Stock Units are issued in
respect of options, restricted stock, or restricted stock units of
an entity acquired, by merger or otherwise, by the Company (or any
subsidiary of the Company or any Employer), to the extent such
issuance shall not be inconsistent with the terms, limitations and
conditions of Code section 422, the aggregate number of Shares for
which Awards may be made hereunder shall automatically be increased
by the number of Shares subject to Awards so issued; provided,
however, the aggregate number of shares for which Awards may be
granted hereunder shall automatically be decreased by the number of
Shares covered by any unexercised portion of an Award so issued
that has terminated for any reason, and the Shares subject to any
such unexercised portion may not be the subject of an Award to any
other person.
(b) The following rules shall apply
for purposes of the determination of the number of Shares available
for grant under the Plan:
(i) If, for any reason, any
Shar
