UNITED STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM 8-K
CURRENT
REPORT
Pursuant to
Section 13 or 15(d) of the
Securities
Exchange Act of 1934
Date of Report (Date of earliest event reported): April 21, 2005
BROWN
BROWN, INC.
__________________________________________________
(Exact name of registrant as specified in its
charter)
| Florida | 0-7201 | 59-0864469 | ||
| ________________________________________ (State or other jurisdiction of incorporation) |
________________________ (Commission File Number) |
____________________________ (IRS Employer Identification No.) |
220 South Ridgewood Avenue, Daytona Beach, Florida 32114
__________________________________________________
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (386) 252-9601
N/A
__________________________________________________
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
|_| Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
|_| Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
|_| Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
|_| Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Item 1.01 Entry into Material Definitive Agreement.
On April 21, 2005, the shareholders of Brown & Brown, Inc. (the “Company”) amended the Company’s Stock Performance Plan (the “Performance Plan”), which extends the term of the Performance Plan for ten years, until the twentieth anniversary of the effective date of the Performance Plan. The amendment also modifies the Performance Plan to provide that awards granted under the Performance Plan generally will not be subject to the tax deduction limits of Section 162(m) of the Internal Revenue Code of 1986, as amended.
A more detailed summary of the material features of the Performance Plan is set forth in the Company’s proxy statement for the 2005 Annual Meeting of Stockholders filed with the Securities and Exchange Commission on March 24, 2005 (the “2005 Proxy Statement”). The summary in the 2005 Proxy Statement and the description of the Performance Plan contained therein are qualified in their entirety by reference to the complete text of the Performance Plan, which is included as part of the 2005 Proxy Statement and filed as Exhibit 10.1 to this Form 8-K.
Item 9.01 Financial Statements and Exhibits.
| (c) Exhibits. |
|||
| EXHIBIT | DESCRIPTION | ||
10.1 |
Stock Performance Plan, as amended. |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this Report to be signed on its behalf by the undersigned hereunto duly authorized.
| Brown
& Brown, Inc. (Registrant) |
|
| Date: May 2, 2005 | By: /s/
Cory T. Walker ________________________________ Cory T. Walker, Chief Financial Officer |
# 2813846_v1
EXHIBIT TO FORM 8-K
BROWN
& BROWN, INC.
STOCK
PERFORMANCE PLAN, AS AMENDED
Brown
& Brown, Inc., a corporation organized under the laws of the State of
Florida, establishes this Stock Performance Plan for the purposes of attracting
and retaining Key Employees, providing an incentive for Key Employees to achieve
long-range performance goals, and enabling Key Employees to share in the
successful performance of the stock of Brown & Brown, Inc., as measured
against pre-established performance goals.
ARTICLE
I - DEFINITIONS
1.01 Award
Effective Date means,
with respect to each share of Performance Stock, the date on which the award of
the share of Performance Stock to a Key Employee is effective. An award of
Performance Stock shall be effective (i) as of the date set by the Committee
when the award is made or, (ii) if the award is made subject to one, or more
than one, condition under Section 6.02 of this Plan, as of the date the
Committee in its sole and absolute discretion determines that such condition or
conditions have been satisfied.
1.02 Board means
the Board of Directors of Brown & Brown, Inc.
1.03 Change
in Control means
(i) the acquisition of the power to direct, or cause the direction of, the
management and policies of the Company by a person not previously possessing
such power, acting alone or in conjunction with others, whether through
ownership of Stock, by contract or otherwise, or (ii) the acquisition, directly
or indirectly, of the power to vote twenty percent or more of the outstanding
Stock by a person or persons. For purposes of this Section 1.03, the term
"person" means a natural person, corporation, partnership, joint venture, trust,
government or instrumentality of a government. Also for purposes of this Section
1.03, customary agreements with or among underwriters and selling group members
with respect to a bona fide public offering of Stock shall be
disregarded.
1.04 Code means
the Internal Revenue Code of 1986, as amended.
1.05 Committee means
the Compensation Committee of the Board or, if the Compensation Committee at any
time has less than three members, a committee that shall have at least three
members, each of whom shall be appointed by and shall serve at the pleasure of
the Board.
1.06 Company means
Brown & Brown, Inc., a corporation organized under the laws of the State of
Florida.
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1.07 Disability means a
physical or mental condition of a Key Employee resulting from bodily injury,
disease or mental disorder that renders him or her incapable of engaging in any
occupation or employment for wage or profit. Disability does not include any
physical or mental condition resulting from the Key Employee's engagement in a
felonious act, self-infliction of an injury, or performance of military service.
Disability of a Key Employee shall be determined by a licensed physician
selected by the Committee in its sole and absolute discretion.
1.08 Key
Employee means a
full time, salaried employee of the Company who, in the judgment of the
Committee acting in its sole and absolute discretion, is a key to the successful
operation of the Company.
1.09 Performance
Stock means
Stock awarded to a Key Employee under this Plan.
1.10 Performance
Stock Agreement means
the written agreement between the Company and a Key Employee to whom an award of
Performance Stock is made under this Plan.
1.11 Plan means
this Brown & Brown, Inc. Stock Performance Plan.
1.12 Stock means
the common stock, $0.10 par value, of the Company.
1.13 Year
of Vesting Service means,
with respect to each share of Performance Stock, a twelve consecutive month
period measured from the grant date of the Performance Stock and each successive
twelve consecutive month period measured from each anniversary of such grant
date for that share of Performance Stock.
ARTICLE
II - ELIGIBILITY
Only Key
Employees shall be eligible to receive awards of Performance Stock under this
Plan. The Committee, in its sole and absolute discretion, shall determine the
Key Employees to whom Performance Stock shall be awarded. A member of the
Committee is not eligible to receive grants of Performance Stock during the
period he or she serves on the Committee.
ARTICLE
III - STOCK AVAILABLE FOR AWARDS
The
Company shall reserve 7,200,000 shares of Stock for use under this Plan. All
such shares of Stock shall be reserved to the extent that the Company deems
appropriate from authorized but unissued shares of Stock and from shares of
Stock that have been reacquired by the Company. Furthermore, any shares of
Performance Stock that are forfeited under Section 6.03 of this Plan shall again
become available for use under this Plan.
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ARTICLE
IV - EFFECTIVE DATE
This Plan
shall be effective on the date it is adopted by the Board, subject to the
approval of the shareholders of the Company within twelve months after the date
of adoption of this Plan by the Board. Any Performance Stock awarded under this
Plan before the date of such shareholder approval shall be awarded expressly
subject to such approval.
ARTICLE
V - ADMINISTRATION
This Plan
shall be administered by the Committee. The Committee, acting in its sole and
absolute discretion, shall exercise such powers and take such action as
expressly called for under this Plan. Furthermore, the Committee shall have the
power to interpret this Plan and to take such other action in the administration
and operation of this Plan as the Committee deems equitable under the
circumstances, which action shall be binding on the Company with respect to each
affected Key Employee and each other person directly or indirectly affected by
such action. Nothing in this Article V shall affect or impair the Board's power
to take the actions reserved to it in this Plan.
ARTICLE
VI - PERFORMANCE STOCK AWARDS
6.01 Committee
Action. The
Committee shall have the right to award shares of Performance Stock to Key
Employees under this Plan. Each award of Performance Stock shall be evidenced by
a Performance Stock Agreement, and each Performance Stock Agreement shall set
forth the conditions, under which the award will be effective and the conditions
under which the Key Employee's interest in the Performance Stock shall become
fully vested and nonforfeitable.
6.02 Conditions
for Awards. The
Committee shall make the award of Performance Stock to Key Employees effective
only upon the satisfaction of one, or more than one, objective performance
targets. The
Committee shall determine the performance targets which will be applied with
respect to each grant of Performance Stock at the time of award, but in no event
later than ninety (90) days after the commencement of the period of service to
which the performance targets relate. The performance criteria applicable to
Performance Stock awards will be one or more of the following criteria:
(1) Stock
price;
(2) average
annual growth in earnings per share;
(3) increase
in shareholder value;
(4) earnings
per share;
(5) net
income;
(6) return on
assets;
(7) return on
shareholders’ equity;
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(8) increase
in cash flow;
(9) operating
profit or operating margins;
(10) revenue
growth of the Company; and
(11) operating
expenses.
The
related Performance Stock Agreement shall set forth each such target and the
deadline for satisfying each such target. The Committee must certify in writing
that each such target has been satisfied before the award of Performance Stock
becomes effective. The shares of Stock underlying an award of Performance Stock
shall be unavailable under Article III of this Plan as of the date on which such
award is made. If an award of Performance Stock fails to become effective under
Section 6.01 of this Plan, the underlying shares of Stock subject to such award
shall be treated under Article III of this Plan as forfeited and shall again
become available under Article III of this Plan as of the date of such failure
to become effective. No more
than 20,000 shares of Performance Stock may be granted to a Key Employee in any
calendar year.
6.03 Conditions
for Nonforfeitability of Performance Stock. Subject
to the provisions of Article IX of this Plan, a Key Employee's interest in the
shares of Performance Stock awarded to him or her shall become fully vested and
nonforfeitable upon the satisfaction of any conditions for the grant specified
by the Committee pursuant to Section 6.02 and upon the Key Employee's completion
of fifteen Years of Vesting Service for the Company. Subject to the provisions
of Article IX of this Plan, if the Key Employee's employment with the Company
terminates before his or her completion of fifteen Years of Vesting Service for
the Company, the Key Employee's interest in the awarded shares of Performance
Stock shall be forfeited unless:
(a) the Key
Employee has attained age sixty-four;
(b) the Key
Employee's employment with the Company terminates as a result of his or her
death or Disability; or
(c) the
Committee, in its sole and absolute discretion, waives the conditions described
in this Section 6.03.
If a
grant of Performance Stock is made to a Key Employee after the Key Employee
attains age sixty-four, but before his or her employment with the Company
terminates, the Key Employee's interest in the granted shares of Performance
Stock shall become fully vested and nonforfeitable upon the Key Employee’s
retirement from employment with the Company provided
that any
conditions for the award of such shares, or portion thereof, specified by the
Committee pursuant to Section 6.02 have been satisfied.
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6.04 Dividends
and Voting Rights. If a
cash dividend is declared on a share of Performance Stock after the Award
Effective Date, but before the Key Employee's interest in the Performance Stock
is forfeited or becomes fully vested and nonforfeitable, the Company shall pay
the cash dividend directly to the Key Employee. If a Stock dividend is declared
on a share of Performance Stock after the Award Effective Date, but before the
Key Employee's interest in the Performance Stock is forfeited or becomes fully
vested and nonforfeitable, the Stock dividend shall be treated as part of the
award of the related Performance Stock, and the Key Employee's interest in such
Stock dividend shall be forfeited or become nonforfeitable at the same time as
the Performance Stock with respect to which the Stock dividend was paid is
forfeited or becomes nonforfeitable. The disposition of each other form of
dividend which is declared on a share of Performance Stock shall be made in
accordance with such rules as the Committee shall adopt with respect to each
such dividend.
A Key
Employee shall be allowed to exercise voting rights with respect to a share of
Performance Stock after the Award Effective Date, but before the Key Employee's
interest in the Performance Stock is forfeited or becomes fully vested and
nonforfeitable.
6.05 Satisfaction
of Nonforfeitability Conditions; Provision for Income and Excise
Taxes. A share
of Stock shall cease to be Performance Stock at such time as a Key Employee's
interest in such share of Stock becomes fully vested and nonforfeitable under
Section 6.03 or Article IX of this Plan, and the certificate representing such
share of Stock shall be transferred to the Key Employee as soon as practicable
thereafter.
ARTICLE
VII - SECURITIES REGISTRATION
Each
Performance Stock Agreement shall provide that, upon the receipt of shares of
Stock as a result of the satisfaction of the conditions described in Section
6.03 of this Plan for nonforfeitability of Performance Stock, the Key Employee
shall, if so requested by the Company, hold such shares of Stock for investment
and not with a view of resale or distribution to the public and, if so requested
by the Company, shall deliver to the Company a written statement signed by the
Key Employee satisfactory to the Company to that effect. With respect to Stock
issued pursuant to this Plan, the Company at its expense shall take such action
as it deems necessary or appropriate to register the original issuance of such
Stock to a Key Employee under the Securities Act of 1933 or under any other
applicable securities laws or to qualify such Stock for an exemption under any
such laws prior to the issuance of such Stock to a Key Employee. Notwithstanding
the foregoing, the Company shall have no obligation whatsoever to take any such
action in connection with the transfer, resale or other disposition of such
Stock by a Key Employee.
ARTICLE
VIII - ADJUSTMENT
The
Board, in its sole and absolute discretion, may, but shall not be required to,
adjust the number of shares of Stock reserved under Article III of this Plan,
the annual grant limit set forth in Section 6.02 of this Plan (to the extent
permitted by the rules relating to the qualified performance-based compensation
exemption
from the limit on tax deductibility of compensation under Section 162(m) of the
Internal Revenue Code of 1986, as amended (the "Code")), and
shares of Performance Stock theretofore granted in an equitable manner to
reflect any change in the
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capitalization
of the Company, including, but not limited to, such changes as Stock dividends
or Stock splits. If any adjustment under this Article VIII would create a
fractional share of Stock, such fractional share shall be disregarded and the
number of shares of Stock reserved or granted under this Plan shall be the next
lower number of shares of Stock, rounding all fractions downward. An adjustment
made under this Article VIII by the Board shall be conclusive and binding on all
affected persons and, further, shall not constitute an increase in the number of
shares reserved under Article III within the meaning of Article X(a) of this
Plan.
ARTICLE
IX - SALE OR MERGER OF COMPANY; CHANGE IN CONTROL
9.01 Sale
or Merger. If the
Company agrees to sell all or substantially all of its assets for cash or
property or for a combination of cash and property or agrees to any merger,
consolidation, reorganization, division or other corporate transaction in which
Stock is converted into another security or into the right to receive securities
or property and such agreement does not provide for the assumption or
substitution of Performance Stock granted under this Plan, all shares of
Performance Stock shall become fully vested and nonforfeitable.
9.02 Change
in Control. In the
event of a Change in Control, the Board thereafter shall have the right to take
such action with respect to any shares of Performance Stock that are
forfeitable, or all such shares of Performance Stock, as the Board in its sole
and absolute discretion deems appropriate under the circumstances to protect the
interests of the Company in maintaining the integrity of the awards under this
Plan. Furthermore, the Board shall have the right to take different action under
this Section 9.02 with respect to different Key Employees or different groups of
Key Employees, as the Board in its sole and absolute discretion deems
appropriate under the circumstances.
Notwithstanding
the foregoing provisions of this Article IX, all shares of Performance Stock
shall become fully vested and nonforfeitable in the event of (i) any tender or
exchange offer for Stock accepted by a majority of the shareholders of the
Company; or (ii) the death of J. Hyatt Brown and the subsequent sale by his
estate, his wife, his parents, his lineal descendants, any trust created for his
benefit during his lifetime, or any combination of the foregoing, of the Stock
owned by J. Hyatt Brown prior to his death. If any shares of Performance Stock
become fully vested and nonforfeitable because of the occurrence of the events
described in (i) or (ii) of this paragraph, the Company shall pay to the holders
of such shares, within 60 days of the occurrence of such event, the full amount
of any federal and state income tax liability incurred by such holder as a
result of such vesting, including, without limitation, any excise tax with
respect to such vesting (e.g., I.R.C. § 4999 and any successor provision). The
Company will also pay to such holders the amount of any tax liability with
respect to the “gross-up” payment described in the preceding
sentence.
ARTICLE
X - AMENDMENT OR TERMINATION
This Plan
may be amended by the Board from time to time to the extent that the Board in
its sole and absolute discretion deems necessary or appropriate. Notwithstanding
the foregoing, no amendment of this Plan shall be made absent the approval of
the shareholders of the Company if the effect of the amendment is:
(a) to
increase the number of shares of Stock reserved under Article III of this
Plan;
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(b) to change
the class of employees of the Company eligible for awards of Performance Stock
or to otherwise materially modify the requirements as to eligibility for
participation in this Plan; or
(c) to modify
the material terms of this Plan that must be approved by shareholders of the
Company under the
rules
relating to the qualified performance-based compensation exemption
from the limit on tax deductibility of compensation under Section 162(m) of the
Code.
The Board
in its sole and absolute discretion may suspend the awarding of Performance
Stock under this Plan at any time and may terminate this Plan at any time.
Notwithstanding the foregoing, the Board shall not have the right to modify,
amend or cancel any share of Performance Stock granted before such suspension or
termination unless the Key Employee to whom the Performance Stock is awarded
consents in writing to such modification, amendment or cancellation, or there is
a dissolution or liquidation of the Company or a transaction described in
Article VIII or IX of this Plan.
ARTICLE
XI - TERM OF PLAN
No
Performance Stock shall be awarded under this Plan on or after the earlier
of:
(a) the
twentieth anniversary of the effective date of this Plan, as determined under
Article IV of this Plan, in which event this Plan otherwise thereafter shall
continue in effect until all Performance Stock awarded under this Plan has been
forfeited or the conditions described in Section 6.03 of this Plan for
nonforfeitability of all Performance Stock awarded under this Plan have been
completely satisfied; or
(b) the date
on which all of the Stock reserved under Article III of this Plan has, as a
result of the satisfaction of the conditions described in Section 6.03 of this
Plan for nonforfeitability of Performance Stock awarded under this Plan, been
issued or no longer is available for use under this Plan, in which event this
Plan also shall terminate on such date.
ARTICLE
XII - MISCELLANEOUS
12.01 Shareholder
Rights. Subject
to Section 6.04 of this Plan, a Key Employee's rights as a shareholder in the
shares of Performance Stock awarded to him or her shall be set forth in the
related Performance Stock Agreement.
12.02 No
Contract of Employment. The
award of Performance Stock to a Key Employee under this Plan shall not
constitute a contract of employment and shall not confer on a Key Employee any
rights upon his or her termination of employment with the Company in addition to
those rights, if any, expressly set forth in the Performance Stock Agreement
related to his or her Performance Stock.
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12.03 Withholding. The
acceptance of an award of Performance Stock shall constitute a Key Employee's
full and complete consent to whatever action the Committee deems necessary to
satisfy the federal and state tax withholding requirements, if any, that the
Committee in its sole and absolute discretion deems applicable to such
Performance Stock. The Committee also shall have the right to provide in a
Performance Stock Agreement that a Key Employee may elect to satisfy federal and
state tax withholding requirements through a reduction in the number of shares
of Stock actually transferred to him or her under this Plan.
12.04 Governing
Law. The
provisions of this Plan shall be governed by and interpreted in accordance with
the laws of the State of Florida.
Approved
by the Board of Directors: October 31, 1995
Approved
by Shareholders: April 30,
1996
As
amended, effective February 27, 1998; April 29, 1998; August 23, 2000; January
24, 2001; November 21, 2001; April 24, 2003; April 21, 2005
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