shares of the Company, unless the Board has made a determination
that such action does not constitute and will not constitute a material change in the Persons having control of the Company; or (F) there is a change
of control in the Company of a nature that would be required to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A promulgated
under the Exchange Act other than in circumstances specifically covered by clauses (A) through (E) above.
2.7 “Code” means the Internal Revenue Code
of 1986, as now in effect or as hereafter amended.
2.8 “Committee” means a committee of, and
designated from time to time by resolution of, the Board, which shall consist of no fewer than two members of the Board, none of whom shall be an
officer or other salaried employee of the Company or any affiliate of the Company.
2.9 “Company” means Answerthink,
Inc.
2.10 “Effective Date” means April 23, 1998,
the date on which the Plan was adopted by the Board.
2.11 “Exchange Act” means the Securities
Exchange Act of 1934, as now in effect or as hereafter amended.
2.12 “Fair Market Value” means the value of
a share of Stock, determined as follows: if on the Grant Date or other determination date the Stock is listed on an established national or regional
stock exchange, is admitted to quotation on the NASDAQ National Market, or is publicly traded on an established securities market, the Fair Market
Value of a share of Stock shall be the closing price of the Stock on such exchange or in such market (the highest such closing price if there is more
than one such exchange or market) on the Grant Date or such other determination date (or if there is no such reported closing price, the Fair Market
Value shall be the mean between the highest bid and lowest asked prices or between the high and low sale prices on such trading day) or, if no sale of
Stock is reported for such trading day, on the next preceding day on which any sale shall have been reported. If the Stock is not listed on such an
exchange, quoted on such system or traded on such a market, Fair Market Value shall be the value of the Stock as determined by the Board in good
faith.
2.13 “Grant” means an award of an Option,
Restricted Stock or Restricted Stock Units under the Plan.
2.14 “Grant Date” means, as determined by
the Board or authorized Committee, (i) the date as of which the Board or such Committee approves a Grant, (ii) the date on which the recipient of such
Grant first becomes eligible to receive a Grant under Section 6, hereof, or (iii) such other date as may be specified by the Board or such
Committee.
2.15 “Grantee” means a person who receives
or holds an Option, Restricted Stock or Restricted Stock Units under the Plan.
2.16 “Immediate Family Members” means the
spouse, children and grandchildren of the Grantee.
2.17 “Incentive Stock Option” means an
“incentive stock option” within the meaning of Section 422 of the Code, or the corresponding provision of any subsequently enacted tax
statute, as amended from time to time.
2.18 “Option” means an option to purchase
one or more shares of Stock pursuant to the Plan.
2.19 “Option Period” means the period
during which Options may be exercised as set forth in Section 10 hereof.
2.20 “Option Price” means the purchase
price for each share of Stock subject to an Option.
2.21 “Other Agreement” shall have the
meaning set forth in Section 13 hereof.
2.22 “Outside Director” means a member of
the Board who is not an officer or employee of the Company.
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2.23 “Person” means an individual, a
partnership, a limited liability company, a corporation, an association, a joint stock company, a trust, a joint venture, an unincorporated
organization and a governmental entity or any department, agency or political subdivision thereof.
2.24 “Plan” means this Answerthink, Inc.
1998 Stock Option and Incentive Plan.
2.25 “Reporting Person” means a person who
is required to file reports under Section 16(a) of the Exchange Act.
2.26 “Restricted Period” means the period
during which Restricted Stock or Restricted Stock Units are subject to restrictions or conditions pursuant to Section 12.2 hereof.
2.27 “Restricted Stock” means shares of
Stock, awarded to a Grantee pursuant to Section 12 hereof, that are subject to restrictions and to a risk of forfeiture.
2.28 “Restricted Stock Unit” means a unit
awarded to a Grantee pursuant to Section 12 hereof, which represents a conditional right to receive a share of Stock in the future, and which is
subject to restrictions and to a risk of forfeiture.
2.29 “Securities Act” means the Securities
Act of 1933, as now in effect or as hereafter amended.
2.30 “Service Provider” means a consultant
or adviser to the Company, a manager of the Company’s properties or affairs, or other similar service provider or affiliate of the Company, and
employees of any of the foregoing, as such persons may be designated from time to time by the Board pursuant to Section 6 hereof.
2.31 “Stock” means the common stock, par
value $0.01 per share, of the Company.
2.32 “Subsidiary” means any
“subsidiary corporation” of the Company within the meaning of Section 424(f) of the Code.
2.33 “Termination Date” shall be the date
upon which an Option shall terminate or expire, as set forth in Section 10.2 hereof.
3. ADMINISTRATION OF THE PLAN
3.1 Board.
The Board shall have such powers and authorities
related to the administration of the Plan as are consistent with the Company’s certificate of incorporation and by-laws and applicable law. The
Board shall have full power and authority to take all actions and to make all determinations required or provided for under the Plan, any Grant or any
Award Agreement, and shall have full power and authority to take all such other actions and make all such other determinations not inconsistent with
the specific terms and provisions of the Plan that the Board deems to be necessary or appropriate to the administration of the Plan, any Grant or any
Award Agreement. All such actions and determinations shall be by the affirmative vote of a majority of the members of the Board present at a meeting or
by unanimous consent of the Board executed in writing in accordance with the Company’s certificate of incorporation and by-laws and applicable
law. The interpretation and construction by the Board of any provision of the Plan, any Grant or any Award Agreement shall be final and conclusive. As
permitted by law, the Board may delegate its authority under the Plan to a member of the Board of Directors or an executive officer of the
Company.
3.2 Committee.
The Board from time to time may delegate to a
Committee such powers and authorities related to the administration and implementation of the Plan, as set forth in Section 3.1 above and in other
applicable provisions, as the Board shall determine, consistent with the certificate of incorporation and by-laws of the Company and applicable law. In
the event that the Plan, any Grant or any Award Agreement entered into hereunder provides for any action to be taken by or determination to be made by
the Board, such action may be taken by or such determination may be made by the Committee if the power and authority to do so has been delegated to the
Committee by the Board as provided for in this Section. Unless otherwise expressly
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determined by the Board, any such action or
determination by the Committee shall be final, binding and conclusive. As permitted by law, the Committee may delegate its authority under the Plan to
a member of the Board of Directors or an executive officer of the Company.
3.3 Grants.
Subject to the other terms and conditions of the
Plan, the Board shall have full and final authority (i) to designate Grantees, (ii) to determine the type or types of Grant to be made to a Grantee,
(iii) to determine the number of shares of Stock to be subject to a Grant, (iv) to establish the terms and conditions of each Grant (including, but not
limited to, the exercise price of any Option, the nature and duration of any restriction or condition (or provision for lapse thereof) relating to the
vesting, exercise, transfer, or forfeiture of a Grant or the shares of Stock subject thereto, and any terms or conditions that may be necessary to
qualify Options as Incentive Stock Options), (v) to prescribe the form of each Award Agreement evidencing a Grant, and (vi) to amend, modify, or
supplement the terms of any outstanding Grant. Such authority specifically includes the authority, in order to effectuate the purposes of the Plan but
without amending the Plan, to modify Grants to eligible individuals who are foreign nationals or are individuals who are employed outside the United
States to recognize differences in local law, tax policy, or custom. As a condition to any subsequent Grant, the Board shall have the right, at its
discretion, to require Grantees to return to the Company Grants previously awarded under the Plan. Subject to the terms and conditions of the Plan, any
such new Grant shall be upon such terms and conditions as are specified by the Board at the time the new Grant is made.
3.4 No Liability.
No member of the Board or of the Committee shall be
liable for any action or determination made in good faith with respect to the Plan or any Grant or Award Agreement.
3.5 Applicability of Rule 16b-3
Those provisions of the Plan that make express
reference to Rule 16b-3 under the Exchange Act shall apply only to Reporting Persons.
4. STOCK SUBJECT TO THE PLAN
Subject to adjustment as provided in Section 16
hereof, the number of shares of Stock available for issuance under the Plan shall be (i) 20,000,000, no more than 8,5000,000 of which may be issued
pursuant to awards of Restricted Stock or Restricted Stock Units and (ii) any shares of Stock that are represented by awards previously granted by the
Company, including awards granted under the Answerthink, Inc. 1997 Stock Option Plan and the Answerthink, Inc. Restricted Stock Plan as of the
Effective Date (the “Prior Plans”). Notwithstanding the foregoing, subject to Section 16 hereof, the maximum aggregate number of shares of
Stock available for grants of Incentive Stock Options shall be 10,000,000. All stock options previously granted by the Company shall be deemed to be
grants of Options pursuant to the Plan. Stock issued or to be issued under the Plan shall be authorized but unissued shares. If any shares covered by a
Grant, including Grants made prior to the Effective Date, are not purchased or are forfeited, or if a Grant otherwise terminates without delivery of
any Stock subject thereto, then the number of shares of Stock counted against the aggregate number of shares available under the Plan with respect to
such Grant shall, to the extent of any such forfeiture or termination, again be available for making Grants under the Plan.
5. EFFECTIVE DATE AND TERM OF THE PLAN
5.1 Effective Date.
The Plan shall be effective as of the Effective
Date, subject to approval of the Plan within one year of the Effective Date, by a majority of the votes cast on the proposal at a meeting of
shareholders, provided that the total votes cast represent a majority of all shares entitled to vote or by the written consent of the holders of a
majority of the Company’s shares entitled to vote. Upon approval of the Plan by the shareholders of the Company as set forth above, all Grants
made under the Plan on or after the Effective Date shall be fully
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effective as if the shareholders of the Company
had approved the Plan on the Effective Date. If the shareholders fail to approve the Plan within one year after the Effective Date, any Grants made
hereunder shall be null and void and of no effect.
5.2 Term.
The Plan has no termination date; however, no
Incentive Stock Option may be granted under the Plan on or after the tenth anniversary of the Effective Date.
6. OPTION GRANTS
6.1 Company or Subsidiary Employees.
Grants (including Grants of Incentive Stock Options)
may be made under the Plan to any employee of, or Service Provider or employee of a Service Provider providing, or who has provided, services to, the
Company or of any Subsidiary, including any such employee who is an officer or director of the Company or of any Subsidiary, as the Board shall
determine and designate from time to time. Stock options are intended to constitute “performance-based compensation” as that term is used
in Section 162(m) of the Code.
6.2 Successive Grants.
An eligible person may receive more than one Grant,
subject to such restrictions as are provided herein.
7. LIMITATIONS ON GRANTS
7.1 Limitation on Shares of Stock Subject to
Grants.
During any time when the Company has a class of
equity security registered under Section 12 of the Exchange Act, no person eligible for a Grant under Section 6 hereof may be awarded Options in any
calendar year exercisable for greater than 3,000,000 shares of Stock (subject to adjustment as provided in Section 16 hereof). During any time when the
Company has a class of equity security registered under Section 12 of the Exchange Act, the maximum number of shares of Restricted Stock that can be
awarded under the Plan (including for this purpose any shares of Stock represented by Restricted Stock Units) to any person eligible for a Grant under
Section 6 hereof is 3,000,000 per calendar year (subject to adjustment as provided in Section 16 hereof).
7.2 Limitations on Incentive Stock
Options.
An Option shall constitute an Incentive Stock Option
only (i) if the Grantee of such Option is an employee of the Company or any Subsidiary of the Company; (ii) to the extent specifically provided in the
related Award Agreement; and (iii) to the extent that the aggregate Fair Market Value (determined at the time the Option is granted) of the shares of
Stock with respect to which all Incentive Stock Options held by such Grantee become exercisable for the first time during any calendar year (under the
Plan and all other plans of the Grantee’s employer and its affiliates) does not exceed $100,000. This limitation shall be applied by taking
Options into account in the order in which they were granted.
8. AWARD AGREEMENT
Each Grant pursuant to the Plan shall be evidenced
by an Award Agreement, in such form or forms as the Board shall from time to time determine. Award Agreements granted from time to time or at the same
time need not contain similar provisions but shall be consistent with the terms of the Plan. Each Award Agreement evidencing a Grant of Options shall
specify whether such Options are intended to be non-qualified stock options or Incentive Stock Options, and in the absence of such specification such
options shall be deemed non-qualified stock options.
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9. OPTION PRICE
The Option Price of each Option shall be fixed by
the Board and stated in the Award Agreement evidencing such Option. The Option Price shall be no lower than the Fair Market Value on the Grant Date of
a share of Stock; provided, however, that in the event that a Grantee would otherwise be ineligible to receive an Incentive Stock Option by reason of
the provisions of Sections 422(b)(6) and 424(d) of the Code (relating to ownership of more than ten percent of the Company’s outstanding Stock),
the Option Price of an Option granted to such Grantee that is intended to be an Incentive Stock Option shall be not less than the greater of the par
value or 110 percent of the Fair Market Value of a share of Stock on the Grant Date. In no case shall the Option Price of any Option be less than the
par value of a share of Stock. Notwithstanding anything else to the contrary in this Section 9, the Board shall have the authority under the Plan to
make a one time grant of non-qualified options with an Option Price less than the Fair Market Value of the Stock on the Grant Date to employees of the
Company or its Subsidiaries who were participants in the Company’s Employee Stock Purchase Plan (“ESPP”) during the Offering Period
ending December 31, 2000, and participants who enrolled in the ESPP for the Offering Period beginning January 1, 2001. The Board’s authority to
make option grants at an Option Price of less than the Fair Market Value of the Stock on the Grant Date shall be limited to this one time
grant.
10. VESTING, TERM AND EXERCISE OF OPTIONS
10.1 Vesting and Option Period.
Subject to Sections 10.2 and 16.3 hereof, each
Option granted under the Plan shall become exercisable at such times and under such conditions as shall be determined by the Board and stated in the
Award Agreement. For purposes of this Section 10.1, fractional numbers of shares of Stock subject to an Option shall be rounded down to the next
nearest whole number. The period during which any Option shall be exercisable shall constitute the “Option Period” with respect to such
Option.
10.2 Term.
Each Option granted under the Plan shall terminate,
and all rights to purchase shares of Stock thereunder shall cease, upon the expiration of ten years from the date such Option is granted, or under such
circumstances and on such date prior thereto as is set forth in the Plan or as may be fixed by the Board and stated in the Award Agreement relating to
such Option (the “Termination Date”); provided, however, that in the event that the Grantee would otherwise be ineligible to receive an
Incentive Stock Option by reason of the provisions of Sections 422(b)(6) and 424(d) of the Code (relating to ownership of more than ten percent of the
outstanding Stock), an Option granted to such Grantee that is intended to be an Incentive Stock Option shall not be exercisable after the expiration of
five years from its Grant Date.
10.3 Acceleration.
Any limitation on the exercise of an Option
contained in any Award Agreement may be rescinded, modified or waived by the Board, in its sole discretion, at any time and from time to time after the
Grant Date of such Option, so as to accelerate the time at which the Option may be exercised. Notwithstanding any other provision of the Plan, no
Option shall be exercisable in whole or in part prior to the date the Plan is approved by the shareholders of the Company as provided in Section 5.1
hereof.
10.4 Termination of Employment or Other
Relationship.
Upon the termination of a Grantee’s employment
or other relationship with the Company other than by reason of death or “permanent and total disability” (within the meaning of Section
22(e)(3) of the Code), any Option or portion thereof held by such Grantee that has not vested in accordance with the provisions of Section 10.1 hereof
shall terminate immediately, and any Option or portion thereof that has vested in accordance with the provisions of Section 10.1 hereof but has not
been exercised shall terminate at the close of business on the 90th day following the Grantee’s termination of employment or other relationship
(or, if such 90th day is a Saturday, Sunday or holiday, at the close of business on the next preceding day that is no t
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a Saturday, Sunday or holiday), unless the
Board, in its discretion, extends the period during which the Option may be exercised (which period may not be extended beyond the original term of the
Option). Upon termination of an Option or portion thereof, the Grantee shall have no further right to purchase shares of Stock pursuant to such Option
or portion thereof. Whether a leave of absence or leave on military or government service shall constitute a termination of employment or other
relationship for purposes of the Plan shall be determined by the Board, which determination shall be final and conclusive. For purposes of the Plan, a
termination of employment, service or other relationship shall not be deemed to occur if the Grantee is immediately thereafter employed with the
Company or any other Service Provider, or is engaged as a Service Provider or an Outside director of the Company. Whether of termination of a Service
Provider’s or an Outside Director’s relationship with the Company shall have occurred shall be determined by the Committee, which
determination shall be final and conclusive.
10.5 Rights in the Event of Death.
If a Grantee dies while employed by or providing
services to the Company, all Options granted to such Grantee shall fully vest on the date of death, and the executors or administrators or legatees or
distributees of such Grantee’s estate shall have the right, at any time within one year after the date of such Grantee’s death (or such
longer period as the Board, in its discretion, may determine prior to the expiration of such one-year period) and prior to termination of the Option
pursuant to Section 10.2 above, to exercise any Option held by such Grantee at the date of such Grantee’s death.
10.6 Rights in the Event of
Disability.
If a Grantee’s employment or other relationship
with the Company is terminated by reason of the “permanent and total disability” (within the meaning of Section 22(e)(3) of the Code) of such
Grantee, such Grantee’s Options shall continue to vest, and shall be exercisable to the extent that they are vested, for a period of one year
after such termination of employment or service (or such longer period as the Board, in its discretion, may determine prior to the expiration of such
one-year period), subject to earlier termination of the Option as provided in Section 10.2 above. Whether a termination of employment or service is to
be considered by reason of “permanent and total disability” for purposes of the Plan shall be determined by the Board, which determination
shall be final and conclusive.
10.7 Limitations on Exercise of
Option.
Notwithstanding any other provision of the Plan, in
no event may any Option be exercised, in whole or in part, prior to the date the Plan is approved by the shareholders of the Company as provided
herein, or after ten years following the date upon which the Option is granted, or after the occurrence of an event referred to in Section 16 hereof
which results in termination of the Option.
10.8 Method of Exercise.
An Option that is exercisable may be exercised by
the Grantee’s delivery to the Company of written notice of exercise on any business day, at the Company’s principal office, addressed to the
attention of the Board. Such notice shall specify the number of shares of Stock with respect to which the Option is being exercised and shall be
accompanied by payment in full of the Option Price of the shares for which the Option is being exercised. The minimum number of shares of Stock with
respect to which an Option may be exercised, in whole or in part, at any time shall be the lesser of (i) 100 shares or such lesser number set forth in
the applicable Award Agreement and (ii) the maximum number of shares available for purchase under the Option at the time of exercise. Payment of the
Option Price for the shares purchased pursuant to the exercise of an Option shall be made (i) in cash or in cash equivalents; (ii) through the tender
to the Company of shares of Stock, which shares, if acquired from the Company, shall have been held for at least six months and which shall be valued,
for purposes of determining the extent to which the Option Price has been paid thereby, at their Fair Market Value on the date of exercise; or (iii) by
a combination of the methods described in (i) and (ii). The Board may provide, by inclusion of appropriate language in an Award Agreement, that payment
in full of the Option Price need not accompany the written notice of exercise provided that the notice of exercise directs that the certificate or
certificates for the shares of Stock for which the Option is exercised be delivered
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to a licensed broker acceptable to the Company
as the agent for the individual exercising the Option and, at the time such certificate or certificates are delivered, the broker tenders to the
Company cash (or cash equivalents acceptable to the Company) equal to the Option Price for the shares of Stock purchased pursuant to the exercise of
the Option plus the amount (if any) of federal and/or other taxes which the Company may in its judgment, be required to withhold with respect to the
exercise of the Option. An attempt to exercise any Option granted hereunder other than as set forth above shall be invalid and of no force and effect.
Unless otherwise stated in the applicable Award Agreement, an individual holding or exercising an Option shall have none of the rights of a shareholder
(for example, the right to receive cash or dividend payments or distributions attributable to the subject shares of Stock or to direct the voting of
the subject shares of Stock) until the shares of Stock covered thereby are fully paid and issued to such individual. Except as provided in Section 16
hereof, no adjustment shall be made for dividends, distributions or other rights for which the record date is prior to the date of such
issuance.
10.9 Delivery of Stock Certificates.
Promptly after the exercise of an Option by a
Grantee and the payment in full of the Option Price, such Grantee shall be entitled to the issuance of a stock certificate or certificates evidencing
his or her ownership of the shares of Stock subject to the Option.
11. TRANSFERABILITY OF OPTIONS
11.1 General Rule
Except as provided in Section 11.2, during the
lifetime of a Grantee, only the Grantee (or, in the event of legal incapacity or incompetency, the Grantee’s guardian or legal representative) may
exercise an Option. Except as provided in Section 11.2, no Option shall be assignable or transferable by the Grantee to whom it is granted, other than
by will or the laws of descent and distribution.
11.2 Family Transfers.
If authorized in the applicable Award Agreement, a
Grantee may transfer all or part of an Option that is not an Incentive Stock Option to (i) any Immediate Family Member, (ii) a trust or trusts for the
exclusive benefit of any Immediate Family Member, or (iii) a partnership in which Immediate Family Members are the only partners, provided that (x)
there may be no consideration for any such transfer, and (y) subsequent transfers of transferred Options are prohibited except those in accordance with
this Section 11.2 or by will or the laws of descent and distribution. Following transfer, any such Option shall continue to be subject to the same
terms and conditions as were applicable immediately prior to transfer, provided that for purposes of Section 11.2 hereof the term “Grantee”
shall be deemed to refer the transferee. The events of termination of the employment or other relationship of Section 10.4 hereof shall continue to be
applied with respect to the original Grantee, following which the Option shall be exercisable by the transferee only to the extent, and for the periods
specified in Sections 10.4, 10.5 or 10.6.
12. RESTRICTED STOCK
12.1 Grant of Restricted Stock or Restricted Stock
Units.
The Board may from time to time grant Restricted
Stock or Restricted Stock Units to persons eligible to receive Grants under Section 6 hereof, subject to such restrictions, conditions and other terms
as the Board may determine.
12.2 Restrictions.
At the time a Grant of Restricted Stock or
Restricted Stock Units is made, the Board shall establish a period of time (the “Restricted Period”) applicable to such Restricted Stock or
Restricted Stock Units. Each Grant of Restricted Stock or Restricted Stock Units may be subject to a different Restricted Period. The Board may, in its
sole discretion, at the time a Grant of Restricted Stock or Restricted Stock Units is made, prescribe restrictions in addition to or other than the
expiration of the Restricted Period, including the satisfaction of
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corporate or individual performance objectives,
which may be applicable to all or any portion of the Restricted Stock or Restricted Stock Units. Subject to the second sentence of this Section 12.2,
the Board also may, in its sole discretion, shorten or terminate the Restricted Period or waive any other restrictions applicable to all or a portion
of the Restricted Stock or Restricted Stock Units. Neither Restricted Stock nor Restricted Stock Units may be sold, transferred, assigned, pledged or
otherwise encumbered or disposed of during the Restricted Period or prior to the satisfaction of any other restrictions prescribed by the Board with
respect to such Restricted Stock or Restricted Stock Units.
12.3. Performance-Based
Grants.
The Committee may determine whether any Grant under
the Plan is intended to be “performance-based compensation” as that term is used in Section 162(m) of the Code. Any such Grants
designated to be “performance-based compensation” shall be conditioned on the achievement of one or more performance targets,
to the extent required by Section 162(m) of the Code. The performance targets that may be used by the Committee for such Grants will be based on
measurable and attainable financial goals for the Company, one or more of its operating divisions or Subsidiaries or any combination of the
above from the following: costs, expense targets, market share, net income, revenue, net revenue,
operating cash flow, operating margin, operating revenue, revenue growth rates, pretax income, pretax operating income, operating income growth,
net operating profit, return on assets, return on net assets, sales, total shareholder return, relative total
s hareholder return (versus an index or peer group), Stock price, return on equity, return on capital, tot al
earnings, operating earnings, earnings before interest and taxes (EBIT) , earnings before interest, taxes, depreciation
and amortization (EBITDA) , basic or diluted earnings per share or earnings per share growth calculated
on a pro-forma basis or based on generally accepted accounting principles , operating efficiency ratios, economic value added, cash
flow return on investment, free cash flow, net cash provided by operations, gross margin, internal rate of return, or a combination thereof as
selected by the Committee, and quantifiable nonfinancial goals. The performance objectives will be established by the Committee in accordance
with the provisions of Section 162(m) of the Code and the applicable regulations, and the Committee will certify the attainment of the
performance targets at the end of the applicable performance period. Payment of the Grant will be conditioned upon the Committee’s
certification. Each Grantee is assigned a target number of shares of Stock payable if the specified performance targets are achieved. If
a Grantee’s performance exceeds such Grantee’s performance targets, Grants may be greater than the Target Number, but may not
exceed 200% of such Grantee’s target number of shares of Stock. The Committee retains the right to reduce any Grant if it believes that
individual performance does not warrant the Grant calculated by reference to the result. In the event that all members of the Committee are not
“outside directors” as that term is defined in Section 162(m) of the Code, the grant and terms of Grants intended to qualify as
“performance-based compensation” will be made, and the Grant will be administered, by a subcommittee of the Committee or the
Board of Directors consisting of two or more “outside directors” for purposes of Section 162(m) of the Code.
12. 4 Restricted Stock
Certificates.
The Company shall issue, in the name of each Grantee
to whom Restricted Stock has been granted, stock certificates representing the total number of shares of Restricted Stock granted to the Grantee, as
soon as reasonably practicable after the Grant Date. The Secretary of the Company shall hold such certificates for the Grantee’s benefit until
such time as the Restricted Stock is forfeited to the Company, or the restrictions lapse.
12. 5 Rights of Holders of Restricted
Stock.
Unless the Board otherwise provides in an Award
Agreement, holders of Restricted Stock shall have the right to vote such Stock and the right to receive any dividends declared or paid with respect to
such Stock. The Board may provide that any dividends paid on Restricted Stock must be reinvested in shares of Stock, which may or may not be subject to
the same vesting conditions and restrictions applicable to such Restricted Stock. All distributions, if any, received by a Grantee with respect to
Restricted Stock as a result of any stock split, stock dividend, combination of shares, or other similar transaction shall be subject to the
restrictions applicable to the original Grant.
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12. 6 Rights of Holders of Restricted Stock
Units.
Unless the Board otherwise provides in an Award
Agreement, holders of Restricted Stock Units shall have no rights as stockholders of the Company. The Board may provide in an Award Agreement
evidencing a Grant of Restricted Stock Units that the holder of such Restricted Stock Units shall be entitled to receive, upon the Company’s
payment of a cash dividend on its outstanding Stock, a cash payment for each Restricted Stock Unit held equal to the per-share dividend paid on the
Stock. Such Award Agreement may also provide that such cash payment will be deemed reinvested in additional Restricted Stock Units at a price per unit
equal to the Fair Market Value of a share of Stock on the date that such dividend is paid.
12. 7 Termination of Employment or Other
Relationship.
Upon the termination of the employment of a Grantee
with the Company or a Service Provider or of a Service Provider’s relationship with the Company, in either case other than, in the case of
individuals, by reason of death or “permanent and total disability” (within the meaning of Section 22(e)(3) of the Code), any shares of
Restricted Stock or Restricted Stock Units held by such Grantee that have not vested, or with respect to which all applicable restrictions and
conditions have not lapsed, shall immediately be deemed forfeited, unless the Board, in its discretion, determines otherwise. Upon forfeiture of
Restricted Stock or Restricted Stock Units, the Grantee shall have no further rights with respect to such Grant, including but not limited to any right
to vote Restricted Stock or any right to receive dividends with respect to shares of Restricted Stock or Restricted Stock Units. Whether a leave of
absence or leave on military or government service shall constitute a termination of employment or other relationship for purposes of the Plan shall be
determined by the Board, which determination shall be final and conclusive. For purposes of the Plan, a termination of employment, service or other
relationship shall not be deemed to occur if the Grantee is immediately thereafter employed with the Company or any other Service Provider, or is
engaged as a Service Provider or an Outside Director of the Company. Whether a termination of a Service Provider’s or an Outside Director’s
relationship with the Company shall have occurred shall be determined by the Committee, which determination shall be final and
conclusive.
12. 8 Rights in the Event of
Death.
If a Grantee dies while employed by the Company or a
Service Provider, or while serving as a Service Provider, all Restricted Stock or Restricted Stock Units granted to such Grantee shall fully vest on
the date of death, and the shares of Stock represented thereby shall be deliverable in accordance with the terms of the Plan to the executors,
administrators, legatees or distributees of the Grantee’s estate.
12. 9 Rights in the Event of
Disability.
If a Grantee’s employment or other relationship
with the Company or a Service Provider, or while serving as a Service Provider, is terminated by reason of the “permanent and total
disability” (within the meaning of Section 22(e)(3) of the Code) of such Grantee, such Grantee’s Restricted Stock or Restricted Stock Units
shall continue to vest in accordance with the applicable Award Agreement for a period of one year after such termination of employment or service (or
such longer period as the Board, in its discretion, may determine prior to the expiration of such one-year period), subject to the earlier forfeiture
of such Restricted Stock or Restricted Stock Units in accordance with the terms of the applicable Award Agreement. Whether a termination of employment
or service is to be considered by reason of “permanent and total disability” for purposes of the Plan shall be determined by the Board, which
determination shall be final and conclusive.
12. 10 Delivery of Stock and
Payment Therefor.
Upon the expiration or termination of the Restricted
Period and the satisfaction of any other conditions prescribed by the Board, the restrictions applicable to shares of Restricted Stock or Restricted
Stock Units shall lapse, and, upon payment by the Grantee to the Company, in cash or by check, of the aggregate par value of the shares of Stock
represented by such Restricted Stock or Restricted Stock Units, a stock certificate for such shares shall be delivered, free of all such restrictions,
to the Grantee or the Grantee’s beneficiary or estate, as the case may be.
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13. PARACHUTE LIMITATIONS
Notwithstanding any other provision of this Plan or
of any other agreement, contract, or understanding heretofore or hereafter entered into by a Grantee with the Company or any Subsidiary, except an
agreement, contract, or understanding hereafter entered into that expressly modifies or excludes application of this paragraph (an “Other
Agreement”), and notwithstanding any formal or informal plan or other arrangement for the direct or indirect provision of compensation to the
Grantee (including groups or classes of participants or beneficiaries of which the Grantee is a member), whether or not such compensation is deferred,
is in cash, or is in the form of a benefit to or for the Grantee (a “Benefit Arrangement”), if the Grantee is a “disqualified
individual,” as defined in Section 280G(c) of the Code, any Option, Restricted Stock or Restricted Stock Unit held by that Grantee and any right
to receive any payment or other benefit under this Plan shall not become exercisable or vested (i) to the extent that such right to exercise, vesting,
payment, or benefit, taking into account all other rights, payments, or benefits to or for the Grantee under this Plan, all Other Agreements, and all
Benefit Arrangements, would cause any payment or benefit to the Grantee under this Plan to be considered a “parachute payment” within the
meaning of Section 280G(b)(2) of the Code as then in effect (a “Parachute Payment”) and (ii) if, as a result of receiving a Parachute
Payment, the aggregate after-tax amounts received by the Grantee from the Company under this Plan, all Other Agreements, and all Benefit Arrangements
would be less than the maximum after-tax amount that could be received by the Grantee without causing any such payment or benefit to be considered a
Parachute Payment. In the event that the receipt of any such right to exercise, vesting, payment, or benefit under this Plan, in conjunction with all
other rights, payments, or benefits to or for the Grantee under any Other Agreement or any Benefit Arrangement would cause the Grantee to be considered
to have received a Parachute Payment under this Plan that would have the effect of decreasing the after-tax amount received by the Grantee as described
in clause (ii) of the preceding sentence, then the Grantee shall have the right, in the Grantee’s sole discretion, to designate those rights,
payments, or benefits under this Plan, any Other Agreements, and any Benefit Arrangements that should be reduced or eliminated so as to avoid having
the payment or benefit to the Grantee under this Plan be deemed to be a Parachute Payment.
14. REQUIREMENTS OF LAW
14.1 General.
The Company shall not be required to sell or issue
any shares of Stock under any Grant if the sale or issuance of such shares would constitute a violation by the Grantee, any other individual exercising
an Option, or the Company of any provision of any law or regulation of any governmental authority, including without limitation any federal or state
securities laws or regulations. If at any time the Company shall determine, in its discretion, that the listing, registration or qualification of any
shares subject to a Grant upon any securities exchange or under any governmental regulatory body is necessary or desirable as a condition of, or in
connection with, the issuance or purchase of shares hereunder, no shares of Stock may be issued or sold to the Grantee or any other individual
exercising an Option pursuant to such Grant unless such listing, registration, qualification, consent or approval shall have been effected or obtained
free of any conditions not acceptable to the Company, and any delay caused thereby shall in no way affect the date of termination of the Grant.
Specifically, in connection with the Securities Act, upon the exercise of any Option or the delivery of any shares of Restricted Stock or Stock
underlying Restricted Stock Units, unless a registration statement under such Act is in effect with respect to the shares of Stock covered by such
Grant, the Company shall not be required to sell or issue such shares unless the Board has received evidence satisfactory to it that the Grantee or any
other individual exercising an Option may acquire such shares pursuant to an exemption from registration under the Securities Act. Any determination in
this connection by the Board shall be final, binding, and conclusive. The Company may, but shall in no event be obligated to, register any securities
covered hereby pursuant to the Securities Act. The Company shall not be obligated to take any affirmative action in order to cause the exercise of an
Option or the issuance of shares of Stock pursuant to the Plan to comply with any law or regulation of any governmental authority. As to any
jurisdiction that expressly imposes the requirement that an Option shall not be exercisable until the shares of Stock covered by such
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Option are registered or are exempt from
registration, the exercise of such Option (under circumstances in which the laws of such jurisdiction apply) shall be deemed conditioned upon the
effectiveness of such registration or the availability of such an exemption.
14. 2 Rule 16b-3.
During any time when the Company has a class of
equity security registered under Section 12 of the Exchange Act, it is the intent of the Company that Grants pursuant to the Plan and the exercise of
Options granted hereunder will qualify for the exemption provided by Rule 16b-3 under the Exchange Act. To the extent that any provision of the Plan or
action by the Board does not comply with the requirements of Rule 16b-3, it shall be deemed inoperative to the extent permitted by law and deemed
advisable by the Board, and shall not affect the validity of the Plan. In the event that Rule 16b-3 is revised or replaced, the Board may exercise its
discretion to modify this Plan in any respect necessary to satisfy the requirements of, or to take advantage of any features of, the revised exemption
or its replacement.
15. AMENDMENT AND TERMINATION OF THE PLAN
The Board may, at any time and from time to time,
amend, suspend, or terminate the Plan as to any shares of Stock as to which Grants have not been made; provided, however, that the Board shall not,
without approval of the Company’s shareholders, amend the Plan such that it does not comply with the Code. The Company may retain the right in an
Award Agreement to cause a forfeiture of the gain realized by a Grantee on account of the Grantee taking actions in “competition with the
Company,” as defined in the applicable Award Agreement. Furthermore, the Company may annul a Grant if the Grantee is an employee of the Company or
an affiliate and is terminated “for cause” as defined in the applicable Award Agreement. Except as permitted under this Section 15 or Section
16 hereof, no amendment, suspension, or termination of the Plan shall, without the consent of the Grantee, alter or impair rights or obligations under
any Grant theretofore awarded under the Plan.
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EFFECT OF CHANGES IN CAPITALIZATION |
16.1 Changes in Stock.
If the number of outstanding shares of Stock is
increased or decreased or the shares of Stock are changed into or exchanged for a different number or kind of shares or other securities of the Company
on account of any recapitalization, reclassification, stock split, reverse split, combination of shares, exchange of shares, stock dividend or other
distribution payable in capital stock, or other increase or decrease in such shares effected without receipt of consideration by the Company occurring
after the Effective Date, the number and kinds of shares for which Grants of Options, Restricted Stock and Restricted Stock Units may be made under the
Plan shall be adjusted proportionately and accordingly by the Company. In addition, the number and kind of shares for which Grants are outstanding
shall be adjusted proportionately and accordingly so that the proportionate interest of the Grantee immediately following such event shall, to the
extent practicable, be the same as immediately before such event. Any such adjustment in outstanding Options shall not change the aggregate Option
Price payable with respect to shares that are subject to the unexercised portion of an Option outstanding but shall include a corresponding
proportionate adjustment in the Option Price per share. The conversion of any convertible securities of the Company shall not be treated as an increase
in shares effected without receipt of consideration.
16.2 Reorganization in Which the Company Is the
Surviving Entity and in Which No Change of Control Occurs.
Subject to Section 16.3 hereof, if the Company shall
be the surviving entity in any reorganization, merger, or consolidation of the Company with one or more other entities in which no Change in Control
occurs, any Option theretofore granted pursuant to the Plan shall pertain to and apply to the securities to which a holder of the number of shares of
Stock subject to such Option would have been entitled immediately following such reorganization, merger, or consolidation, with a corresponding
proportionate adjustment of the
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Option Price per share so that the aggregate
Option Price thereafter shall be the same as the aggregate Option Price of the shares remaining subject to the Option immediately prior to such
reorganization, merger, or consolidation. Subject to any contrary language in an Award Agreement evidencing a Grant of Restricted Stock, any
restrictions applicable to such Restricted Stock shall apply as well to any replacement shares received by the Grantee as a result of the
reorganization, merger or consolidation.
16.3 Reorganization, Sale of Assets or Sale of Stock
Which Involves a Change of Control
Subject to the exceptions set forth in the last
sentence of this Section 16.3, (i) upon the occurrence of a Change of Control, all outstanding shares of Restricted Stock and Restricted Stock Units
shall be deemed to have vested, and all restrictions and conditions applicable to such shares of Restricted Stock and Restricted Stock Units shall be
deemed to have lapsed, immediately prior to the occurrence of such Change of Control, and (ii) fifteen days prior to the scheduled consummation of the
Change of Control, all Options outstanding hereunder shall become immediately exercisable and shall remain exercisable for a period of fifteen days.
Any exercise of an Option during such fifteen-day period shall be conditioned upon the consummation of the event and shall be effective only
immediately before the consummation of the event. Upon consummation of any Change of Control, the Plan and all outstanding but unexercised Options
shall terminate. The Board shall send written notice of an event that will result in such a termination to all individuals who hold Options not later
than the time at which the Company gives notice thereof to its shareholders. This Section 16.3 shall not apply to any Change of Control to the extent
that (A) provision is made in writing in connection with such Change of Control for the continuation of the Plan or the assumption of the Options,
Restricted Stock and Restricted Stock Units theretofore granted, or for the substitution for such Options, Restricted Stock and Restricted Stock Units
of new options, restricted stock and restricted stock units covering the stock of a successor entity, or a parent or subsidiary thereof, with
appropriate adjustments as to the number and kinds of shares or units and exercise prices, in which event the Plan and Options, Restricted Stock and
Restricted Stock Units theretofore granted shall continue in the manner and under the terms so provided or (B) a majority of the full Board determines
that such Change of Control shall not trigger application of the provisions of this Section 16.3 subject to Section 24
16.4 Adjustments.
Adjustments under this Section 16 related to shares
of Stock or securities of the Company shall be made by the Board, whose determination in that respect shall be final, binding and conclusive. No
fractional shares or other securities shall be issued pursuant to any such adjustment, and any fractions resulting from any such adjustment shall be
eliminated in each case by rounding downward to the nearest whole share.
16.5 No Limitations on Company.
The making of Grants pursuant to the Plan shall not
affect or limit in any way the right or power of the Company to make adjustments, reclassifications, reorganizations, or changes of its capital or
business structure or to merge, consolidate, dissolve, or liquidate, or to sell or transfer all or any part of its business or assets.
No provision in the Plan or in any Grant or Award
Agreement shall be construed to confer upon any individual the right to remain in the employ or service of the Company or any affiliate, or to
interfere in any way with any contractual or other right or authority of the Company or a Service Provider either to increase or decrease the
compensation or other payments to any individual at any time, or to terminate any employment or other relationship between any individual and the
Company. In addition, notwithstanding anything contained in the Plan to the contrary, unless otherwise stated in the applicable Award Agreement, no
Grant awarded under the Plan shall be affected by any change of duties or position of the Optionee, so long as such Grantee continues to be a director,
officer, consultant or employee of the Company. The obligation of the Company to pay any benefits pursuant to this Plan shall be interpreted as a
contractual obligation to pay only those amounts described herein, in the manner and under the conditions prescribed herein. The Plan shall in no way
be interpreted to require the Company to transfer any amounts to a third party trustee or otherwise
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hold any amounts in trust or escrow for payment
to any participant or beneficiary under the terms of the Plan. No Grantee shall have any of the rights of a shareholder with respect to the shares of
Stock subject to an Option except to the extent the certificates for such shares of Stock shall have been issued upon the exercise of the
Option.
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NONEXCLUSIVITY OF THE PLAN |
Neither the adoption of the Plan nor the submission
of the Plan to the shareholders of the Company for approval shall be construed as creating any limitations upon the right and authority of the Board to
adopt such other incentive compensation arrangements (which arrangements may be applicable either generally to a class or classes of individuals or
specifically to a particular individual or particular individuals) as the Board in its discretion determines desirable, including, without limitation,
the granting of stock options otherwise than under the Plan.
The Company or a Subsidiary, as the case may be,
shall have the right to deduct from payments of any kind otherwise due to a Grantee any Federal, state, or local taxes of any kind required by law to
be withheld with respect to the vesting of or other lapse of restrictions applicable to Restricted Stock or Restricted Stock Units or upon the issuance
of any shares of Stock upon the exercise of an Option. At the time of such vesting, lapse, or exercise, the Grantee shall pay to the Company or the
Subsidiary, as the case may be, any amount that the Company or the Subsidiary may reasonably determine to be necessary to satisfy such withholding
obligation. Subject to the prior approval of the Company or the Subsidiary, which may be withheld by the Company or the Subsidiary, as the case may be,
in its sole discretion, the Grantee may elect to satisfy such obligations, in whole or in part, (i) by causing the Company or the Subsidiary to
withhold shares of Stock otherwise issuable to the Grantee or (ii) by delivering to the Company or the Subsidiary shares of Stock already owned by the
Grantee. The shares of Stock so delivered or withheld shall have an aggregate Fair Market Value equal to such withholding obligations. The Fair Market
Value of the shares of Stock used to satisfy such withholding obligation shall be determined by the Company or the Subsidiary as of the date that the
amount of tax to be withheld is to be determined. A Grantee who has made an election pursuant to this Section 19 may satisfy his or her withholding
obligation only with shares of Stock that are not subject to any repurchase, forfeiture, unfulfilled vesting, or other similar
requirements.
The use of captions in this Plan or any Award
Agreement is for the convenience of reference only and shall not affect the meaning of any provision of the Plan or such Award
Agreement.
Each Grant awarded under the Plan may contain such
other terms and conditions not inconsistent with the Plan as may be determined by the Board, in its sole discretion.
With respect to words used in this Plan, the
singular form shall include the plural form, the masculine gender shall include the feminine gender, etc., as the context requires.
If any provision of the Plan or any Award Agreement
shall be determined to be illegal or unenforceable by any court of law in any jurisdiction, the remaining provisions hereof and thereof shall be
severable and enforceable in accordance with their terms, and all provisions shall remain enforceable in any other jurisdiction.
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Notwithstanding anything in the Plan to the
contrary, if any right under or feature of the Plan would cause to be ineligible for pooling of interest accounting a transaction that would, but for
the right or feature hereunder, be eligible for such accounting treatment, the Board may modify or adjust the right or feature so that the transaction
will be eligible for pooling of interest accounting. Such modification or adjustment may include payment of cash or issuance to a Grantee of Stock
having a Fair Market Value equal to the cash value of such right or feature.
The validity and construction of this Plan and the
instruments evidencing the Grants awarded hereunder shall be governed by the laws of the State of Florida.
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![(ANSWERTHINK LOGO)](a001.gif)
1001 BRICKELL BAY DRIVE
SUITE 3000
MIAMI, FL 33131
Your vote is important!
VOTE BY INTERNET - www.proxyvote.com
Use the Internet to transmit your voting instructions and for electronic
delivery of information up until 11:59 P.M. Eastern Time the day
before the cut-off date or meeting date. Have your proxy card in hand
when you access the web site and follow the instructions to obtain
your records and to create an electronic voting instruction form.
ELECTRONIC DELIVERY OF FUTURE SHAREHOLDER
COMMUNICATIONS
If you would like to reduce the costs incurred by Answerthink, Inc., in mailing proxy materials, you can consent to receiving all future
proxy statements, proxy cards and annual reports electronically via
e-mail or the Internet. To sign up for electronic delivery, please
follow the instructions above to vote using the Internet and, when
prompted, indicate that you agree to receive or access shareholder
communications electronically in future years.
VOTE BY PHONE - 1-800-690-6903
Use any touch-tone telephone to transmit your voting instructions
up until 11:59 P.M. Eastern Time the day before the cut-off date or
meeting date. Have your proxy card in hand when you call and
then follow the simple instructions the Vote Voice provides you.
VOTE BY MAIL
Mark, sign and date your proxy card and return it in the postagepaid
envelope we have provided or return it to Answerthink, Inc.,
c/o ADP, 51 Mercedes Way, Edgewood, NY 11717.
Do not return your Proxy Card if you are voting by
Telephone or Internet
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KEEP THIS PORTION FOR YOUR RECORDS |
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DETACH AND RETURN THIS PORTION ONLY |
THIS PROXY CARD IS VALID ONLY WHEN SIGNED AND DATED. |
ANSWERTHINK, INC.
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Vote On Directors |
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Election of Directors
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For All
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Withhold All
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For All Except
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To withhold authority to vote, mark “For All Except”
and write the nominee’s number on the line below.
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Nominees: |
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(01) Edwin A. Huston
(02) Jeffrey E. Keisling |
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Vote On Proposal |
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To approve amendments to the Company’s 1998 Stock Option and Incentive Plan (i) to raise the sublimit for restricted stock and
restricted stock unit issuances thereunder from 5,000,000 shares to 8,500,000 shares and (ii) to re-approve the performance
goals for purposes of Section 162(m) of the Internal Revenue Code; and |
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To transact such other business as may properly come before the meeting or any postponement or adjournment thereof. |
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(Please sign exactly as name appears on share certificate. When shares are registered jointly, all owners must
sign. Corporate owners should sign full corporate name by an authorized person. Executors, administrators,
trustees or guardians should indicate their status when signing.) |
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For comments, please check this box and write them
on the back where indicated |
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Please indicate if you plan to attend this meeting |
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Signature [PLEASE SIGN WITHIN BOX] |
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PROXY
ANSWERTHINK, INC.
1001 Brickell Bay Drive, Suite 3000
Miami, Florida 33131
NOTICE OF ANNUAL MEETING OF SHAREHOLDERS TO BE HELD ON WEDNESDAY, MAY 11, 2005
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
The undersigned hereby appoints Ted A. Fernandez and John F. Brennan, jointly and individually, as proxies, each with full power of substitution, and hereby authorizes them to represent and to vote, as directed on the reverse side, all shares of Common Stock, par value $.001 per share, of Answerthink, Inc., a Florida corporation (the “Company”), that the undersigned would be entitled to vote if personally present at the Annual Meeting of Shareholders (the “Annual Meeting”) of the Company to be held on May 11, 2005, at 11:00 a.m. (local time) at the JW Marriott Hotel Miami, 1109 Brickell Avenue, Miami, Florida, or any postponement or adjournment thereof, as follows on the reverse side.
When properly executed, this proxy will be voted in the manner directed by the undersigned shareholder. IF NO DIRECTION IS MADE, THIS PROXY WILL BE VOTED FOR ALL NOMINEES AND THE PROPOSAL SET FORTH HEREIN.
(If you noted any Comments above, please mark corresponding box on reverse side.)
PLEASE MARK, SIGN, DATE AND RETURN THE PROXY CARD PROMPTLY USING THE ENCLOSED ENVELOPE.
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SEE REVERSE SIDE |
CONTINUED AND TO BE SIGNED ON REVERSE SIDE |
SEE REVERSE SIDE |