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Exhibit 10.9 BANCTRUST FINANCIAL GROUP, INC.
AMENDED AND RESTATED
2001 INCENTIVE COMPENSATION PLAN
This Amended and Restated 2001
Incentive Compensation Plan (the "Plan") is executed by the
undersigned effective as of the date set forth below. R E C I T
A L S
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A.
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BancTrust Financial Group, Inc. (formerly South Alabama
Bancorporation, Inc.) (the "Company") has in place the Plan, which
was previously amended.
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B.
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Since the adoption of the Plan, Section 409A of the Code
(as defined below), and the regulations and guidance thereunder
("Section 409A"), has been enacted setting forth restrictions
and requirements for deferred compensation.
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C.
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The purpose of this amendment and restatement of the Plan is to
make appropriate changes to either exempt the Plan from the
application of, or to bring the Plan into compliance with,
Section 409A, all approved by the Directors of the
Company.
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Article I
Purpose, Scope and Administration of the Plan
Section 1.1 Purpose . The
purpose of the Plan is to promote the long-term success of the
Company and its Subsidiary Corporations (as defined below) by
providing financial incentives to key employees and directors who
are in positions to make significant contributions toward such
success. The Plan is designed to attract individuals of outstanding
ability to serve as directors with the Company or employment with
the Company and its Subsidiary Corporations and to encourage key
employees and directors to acquire a proprietary interest in the
Company, to continue in their positions with the Company or its
Subsidiary Corporations, and to render superior performance for the
benefit of the Company and its Subsidiary Corporations.
Section 1.2 Definitions .
Unless the context clearly indicates otherwise, for purposes of
this Plan, the following terms have the respective meanings as set
forth below:
(a)
"Board of Directors" means the Board of Directors of BancTrust
Financial Group, Inc. or any successor corporation.
(b)
"Code" means the Internal Revenue Code of 1986, as amended.
(c)
"Committee" means the Personnel/Compensation Committee of the Board
of Directors (or any successor thereto).
(d)
"Common Stock" means the common stock of BancTrust Financial Group,
Inc., or such other class of shares or other securities to which
the provisions of the Plan may be applicable by reason of the
operation of Section 5.1 hereof.
(e)
"Company" means BancTrust Financial Group, Inc. or any successor
corporation.
(f)
"Director" means any elected member of the Board of Directors of
the Company.
(g)
"Employee" means any person employed by the Company or any
Subsidiary Corporation.
(h)
"Fair Market Value" of a share of Common Stock on any particular
date means (i) if the Common Stock is readily tradable on an
"established securities market" (within the meaning of Treasury
Regulation 1.409A-1(b)(5)(iv)(A)) on the date in question,
then the Fair Market Value per share shall be the average of the
highest and lowest selling price on such market on such date, or if
there were no sales on such date, then the Fair Market Value shall
be the mean between the bid and asked price on such date; and
(ii) if the Common Stock is traded otherwise than on an
"established securities market" (within the meaning of Treasury
Regulation 1.409A-1(b)(5)(iv)(A)) on the date in question,
then the Fair Market Value per share shall be the mean between the
bid and asked price on such date, or, if there is no bid and asked
price on such date, the next prior business day on which there was
a bid and asked price. If no such bid and asked price is available,
then the Fair Market Value per Share shall be its fair market value
as determined by the Board of Directors, in its sole and absolute
discretion but in good faith, within the requirements of Code
Section 422(b)(4) (with respect to Incentive Stock Options) or
Code Section 409A (with respect to Supplemental Stock Options,
Stock Appreciation Rights and Restricted Stock Awards).
(i)
"Grant Date", as used with respect to a particular Option, Stock
Appreciation Right, or Restricted Stock Award, means the date as of
which such Option, Right, or Award is granted by the Board of
Directors pursuant to the Plan.
(j)
"Grantee" means the Employee or Director to whom an Option, Stock
Appreciation Right, or Restricted Stock Award is granted by the
Board of Directors pursuant to the Plan.
(k)
"Incentive Stock Option" means an Option that qualifies as an
incentive stock option as described in Section 422 of the
Code.
(l)
"Option" means an option granted by the Board of Directors pursuant
to Article II hereof to purchase shares of Common Stock, which
shall be designated at the time of grant as either an Incentive
Stock Option or a Supplemental Stock Option, as provided in
Section 2.1 hereof.
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(m)
"Option Agreement" means the agreement between the Company and a
Grantee under which the Grantee is granted an Option or an Option
and Stock Appreciation Right pursuant to the Plan.
(n)
"Option Period" means, (i) with respect to any Incentive Stock
Option granted hereunder, the period beginning on the Grant Date
and ending at such time not later than the tenth anniversary of the
Grant Date, as the Board of Directors, in its sole discretion,
shall determine, and (ii) with respect to any Supplemental Stock
Option or Stock Appreciation Right granted hereunder, the period
beginning on the Grant Date and ending at such time not later than
the tenth anniversary of the date on which the Supplemental Stock
Option or Stock Appreciation Right may first be exercised, as the
Board of Directors, in its sole discretion, shall determine.
(o)
"Permanent Disability", as applied to a Grantee, means that the
Grantee (1) has established to the satisfaction of the Board
of Directors that the Grantee is unable to engage in substantial
gainful activity by reason of any medically determinable physical
or mental impairment which can be expected to last for a continuous
period of not less than 12 months (all within the meaning of
Section 422(c)(6) and Section 22(e)(3) of the Code), and
(2) has satisfied any requirement imposed by the Board of
Directors in regard to evidence of such disability.
(p)
"Plan" means the 2001 Incentive Compensation Plan as set forth
herein and as amended from time to time.
(q)
"Restricted Stock Agreement" means the agreement between the
Company and a Grantee under which the Grantee is granted a
Restricted Stock Award pursuant to the Plan.
(r)
"Restricted Stock Award" means an award of Common Stock which is
granted by the Board of Directors pursuant to Article IV
hereof and which is restricted against sale or other transfer in a
manner and for a specific period of time determined by the Board of
Directors.
(s)
"Restriction Period" means, with respect to any Restricted Stock
Award granted hereunder, the period beginning on the Grant Date and
ending at such time, but not sooner than the first annual
anniversary of the Grant Date, as the Board of Directors in its
sole discretion, shall determine.
(t)
"Retirement", as applied to a Grantee (i) who is an employee,
means normal or early retirement as provided for in the applicable
qualified pension plan of the Company and/or one or more of its
Subsidiary Corporations; provided that a Grantee shall not be
deemed to have retired if his employment is terminated by the
Company because of negligence or malfeasance; and (ii) who is
a Director, means ceasing to serve as an elected member of the
Board of Directors, whether by resignation, removal or failure to
stand for reelection or to be reelected.
(u)
"Stock Appreciation Right" means a right granted pursuant to
Article III hereof by the Board of Directors, in conjunction
with an Option, to receive payment equal to any
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increase in the Fair Market Value of a share of Common Stock
from the Grant Date to the date of exercise of such right, in lieu
of exercise of the Option for such share.
(v)
"Subsidiary Corporation" of the Company means any present or future
corporation (other than the Company) which would be a "subsidiary
corporation" as defined in Section 424(f) and (g) of the Code
and which would qualify as an eligible issuer of service recipient
stock pursuant to Section 409A of the Code.
(w)
"Supplemental Stock Option" means any Option granted under this
Plan, other than an Incentive Stock Option.
Section 1.3 Aggregate
Limitation .
(a) The
aggregate number of shares of Common Stock with respect to which
Options, Stock Appreciation Rights, and Restricted Stock Awards may
be granted shall not exceed 500,000 shares of Common Stock, subject
to adjustment in accordance with Section 5.1.
(b) Any
shares of Common Stock to be delivered by the Company upon the
grant of Restricted Stock Awards or the exercise of Options or
Stock Appreciation Rights shall, at the discretion of the Board of
Directors, be issued from the Company’s authorized but
unissued shares of Common Stock or be transferred from any
available treasury stock or a grantor trust created by the Company.
(c) In
the event that any Option or Stock Appreciation Right expires or
otherwise terminates prior to being fully exercised, or any
Restricted Stock Award as to which the Grantee received no benefits
of ownership of the underlying Common Stock is forfeited, the Board
of Directors may grant a new Option, Stock Appreciation Right, or
Restricted Stock Award hereunder to any eligible Grantee for the
shares with respect to which the expired or terminated Option or
Stock Appreciation Right was not exercised or which were forfeited
when the terms and conditions of the Restricted Stock Award were
not satisfied. Section 1.4
Administration of the Plan
(a) The
Plan shall be administered by the Board of Directors, which shall
have the authority:
(1) To
determine those Directors and key Employees to whom, and the times
at which, Options, Stock Appreciation Rights, and/or Restricted
Stock Awards shall be granted and the number of shares of Common
Stock to be subject to each such Option, Right, and/or Award,
taking into consideration the nature of the services rendered by
the particular Employee or Director, the Employee’s or
Director’s potential contribution to the long-term success of
the Company and/or one or more of its Subsidiary Corporations and
such other factors as the Board of Directors in its discretion
shall deem relevant;
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(2) To
interpret and construe the provisions of the Plan and to establish
rules and regulations relating to it;
(3) To
prescribe the terms and conditions of the Option Agreements for the
grant of Options and Stock Appreciation Rights (which need not be
identical) in accordance and consistent with the requirements of
the Plan;
(4) To
prescribe the terms and conditions of the Restricted Stock
Agreements (which need not be identical to the terms and conditions
of any Option Agreements) in accordance and consistent with the
requirements of the Plan;
(5) To
make all other determinations necessary or advisable to administer
the Plan in a proper and effective manner; and
(6) To
determine whether the Supplemental Stock Options, Stock
Appreciation Rights and Restricted Stock Awards are exempt from the
application of Section 409A of the Code or are in compliance
with Section 409A of the Code.
(b) The
Board of Directors shall act only by vote or agreement of a
majority of its members. All decisions and determinations of the
Board of Directors in the administration of the Plan and in
response to questions or other matters concerning the Plan or any
Option, Stock Appreciation Right, or Restricted Stock Award shall
be final, conclusive, and binding on all persons, including,
without limitation, the Company, its Subsidiary Corporations, the
shareholders and directors of the Company, and any persons having
any interest in any Options, Stock Appreciation Rights, or
Restricted Stock Awards which may be granted under the Plan.
(c) The
authority and power of the Board of Directors hereunder is purely
discretionary and shall not be deemed to be mandatory. No Employee
or class or group of Employees and no Director shall have any right
or privilege to demand or require the granting of any Option, Stock
Appreciation Right, or Restricted Stock Award or the consideration
thereof, at any time. All Options, Stock Appreciation Rights, and
Restricted Stock Awards hereunder (if any) shall be granted in the
absolute and unrestricted discretion of the Board of Directors. All
decisions, determinations and interpretations of the Board of
Directors shall be final and conclusive on all persons affected
thereby.
(d) The
Board of Directors may delegate to the Committee such duties as it
shall in its sole discretion determine; provided, that the
Committee shall not be granted authority to grant Options, Stock
Appreciation Rights or Restricted Stock Awards unless it shall be
composed solely of two or more members of the Board of Directors
who are Non-Employee Directors within the meaning of
Section 16b-3(b)(3) promulgated under the Securities Exchange
Act of 1934. Without limiting the foregoing, the Committee may be
empowered to recommend grants and the specific terms of any Option,
Stock Appreciation Right or Restricted Stock Award within the terms
permitted under this Plan.
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(e) In
addition to such other rights of indemnification as they may have,
the members of the Board of Directors shall be indemnified by the
Company in connection with any claim, action, suit or proceeding
relating to any action taken or failure to act under or in
connection with the Plan or any Option, Stock Appreciation Right or
Restricted Stock Award granted hereunder to the full extent
provided for under the Company’s governing instruments with
respect to indemnification of Directors.
Section 1.5 Eligibility for
Awards .
The
Board of Directors shall designate from time to time the key
Employees of the Company and/or one or more of its Subsidiary
Corporations who are to be granted Options, Stock Appreciation
Rights, and/or Restricted Stock Awards. All Directors shall be
eligible for Options and Restricted Stock Awards, as determined by
the Board of Directors in its discretion.
Section 1.6 Effective Date
and Duration of Plan .
This
Plan became effective upon its adoption by the Board of Directors
in 2001; provided, that any grant of Options, Stock Appreciation
Rights, or Restricted Stock Awards under the Plan prior to approval
of the Plan by the shareholders of the Company was subject to such
shareholder approval within twelve months of adoption of the Plan
by the Board of Directors in 2001. Unless previously terminated by
the Board of Directors, the Plan (but not any then outstanding
Options, Stock Appreciation Rights, or Restricted Stock Awards
which have not yet expired or otherwise been terminated) shall
terminate on the tenth annual anniversary of its adoption by the
Board of Directors in 2001. Article II
Stock Options Section 2.1
Grant of Options .
(a) The
Board of Directors may from time to time, subject to the provisions
of the Plan, grant Options to key Employees and Directors under
appropriate Option Agreements to purchase shares of Common Stock up
to the aggregate number of shares of Common Stock set forth in
Section 1.3(a) hereof.
(b) The
Board of Directors may designate any Option granted hereunder which
satisfies the requirements of Sections 2.2 and 2.3 hereof as
an Incentive Stock Option and may designate any Option granted
hereunder as a Supplemental Stock Option, or the Board of Directors
may designate a portion of an Option as an Incentive Stock Option
(so long as the portion satisfies the requirements of
Sections 2.2 and 2.3 hereof) and the remaining portion as a
Supplemental Stock Option. Any portion of an Option that is not
designated as an Incentive Stock Option shall be a Supplemental
Stock Option. A Supplemental Stock Option must satisfy the
requirements of Section 2.2 hereof, but shall not be subject to the
requirements of Section 2.3.
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Section 2.2 Option
Requirements .
(a) An
Option shall be evidenced by an Option Agreement specifying the
number of shares of Common Stock that may be purchased by its
exercise and containing such other terms and conditions consistent
with the Plan as the Board of Directors shall determine to be
applicable to that particular Option.
(b) No
Options shall be granted under the Plan on or after the tenth
annual anniversary of the date upon which the Plan was adopted by
the Board of Directors in 2001.
(c) No
Option may be exercised prior to the expiration of one year after
its Grant Date.
(d) An
Option shall expire by its terms at the expiration of the Option
Period and shall n
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