EXHIBIT
10.1
GRAND RIVER COMMERCE,
INC.
2009 STOCK INCENTIVE
PLAN
1.
PURPOSE
The 2009 Stock Incentive Plan
(“Plan”) is intended to promote shareholder value by
(a) enabling Grand River Commerce, Inc. (“Company”) and
its affiliates to attract and retain the best available individuals
for positions of substantial responsibility; (b) providing
additional incentive to such persons by affording them an equity
participation in the Company; (c) rewarding those directors,
executive officers, employees and other non-employee shareholders
for their contributions to the Company or Grand River Bank
(“Bank”); and (d) promoting the success of the
Company’s business by aligning the financial interests of
directors, executive officers and employees providing personal
services to the Company or its affiliates with long-term
shareholder value.
2.
DEFINITIONS
(A)
“Act” means the Securities Exchange Act of 1934,
as amended, or any successor provisions.
(B)
“Affiliate” means (i) any entity that, directly
or indirectly, is controlled by the Company, (ii) an entity in
which the Company has a significant equity interest, (iii) an
affiliate of the Company, as defined in Rule 12b-2 promulgated
under the Act, (iv) any Subsidiary and (v) any entity in which the
Company has at least twenty percent (20%) of the combined voting
power of the entity’s outstanding voting securities, in each
case as designated by the Board of Directors as being a participant
employer in the Plan. For purposes of this Plan and
without further designation by the Board of Directors, the Bank
shall be deemed an Affiliate.
(C)
“Bank” means Grand River Bank, a Michigan state
bank, and except as otherwise specified in this Plan in a
particular context, any successor thereto, whether by merger,
consolidation, purchase of all or substantially all of its assets
or otherwise.
(D) “Board
of Directors” means the board of directors of the
Company.
(E)
“Brokered Assisted Exercise” means a special sale
and remittance procedure pursuant to which the Participant shall
concurrently provide irrevocable written instructions to (a) an
administrator-designated brokerage firm to effect the immediate
sale of Stock owned by the Participant for at least six months and
remit to the Company, out of the sale proceeds available on the
settlement date, sufficient funds to cover the aggregate exercise
price plus all applicable federal, state and local income and
employment taxes required to be withheld by the Company, and (b)
the Company to deliver the certificates for the Stock issued upon
exercise of the Options directly to the Participant or such
brokerage firm in order to complete the sale.
(F)
“Change of Control” means:
(i) the
acquisition by any individual, entity or “group,”
within the meaning of section 13(d)(3) or section
14(d)(2) of the Act (other than the current members of the boards
of directors of the Company or the Bank or any of their
descendants, the Company, the Bank, or any savings, pension or
other benefit plan for the benefit of the employees of the Company
or the Bank or subsidiaries thereof)(a “Person”), of
beneficial ownership (within the meaning of Rule 13d-3 promulgated
under the Act) of voting securities of the Company or the Bank
where such acquisition causes any such Person to own fifty percent
(50%) or more of the combined voting power of the Company’s
or Bank’s then outstanding capital stock then entitled to
vote generally in the election of directors;
(ii) within any
twelve-month period, the persons who were directors of the Company
immediately before the beginning of the twelve-month period (the
“Incumbent Directors”) shall cease to constitute at
least a majority of the Board of Directors; provided that any
individual becoming a director subsequent to the beginning of such
twelve-month whose election, or nomination for election by the
Company’s shareholders, was approved by at least two-thirds
of the directors then comprising the Incumbent Directors shall be
considered as though such individual were an Incumbent Director
unless such individual’s initial assumption of office occurs
as a result of either an actual or threatened election contest (as
such terms are used in Rule 14a-11 of Regulation 14A promulgated
under the Act);
(iii) a
reorganization, merger, consolidation or other corporate
transaction involving the Company or the Bank, in each case, with
respect to which the shareholders of the Company or the Bank,
respectively, immediately prior to such transaction do not,
immediately after the transaction, own more than fifty percent
(50%) of the combined voting power of the reorganized, merged or
consolidated company’s then outstanding voting
securities;
(iv) the sale,
transfer or assignment of all or substantially all of the assets of
the Company or the Bank to any third party;
(v) a
dissolution or liquidation of the Company or the Bank;
or
(vi) any other
transactions or series of related transactions occurring which have
substantially the same effect as the transactions specified in
clauses (i) – (v), as determined by the Board of
Directors.
(G)
“Code” means the Internal Revenue Code of 1986,
as amended, or any successor provisions.
(H)
“Controlling Participant” means any person who,
immediately before an Option is granted to that particular person,
directly or indirectly (within the meaning of section 424 of the
Code and the regulations promulgated thereunder) possesses more
than ten percent (10%) of the total combined voting power of all
classes of stock of the Company or any Subsidiary. The
determination of whether an person is a Controlling Participant
shall be made in accordance with sections 422 and 424 of the Code,
or any successor provisions, and the regulations promulgated
thereunder.
(I)
“Committee” means the committee appointed by the
Board of Directors to administer the Plan pursuant to Section
4(A). If the Committee has not been appointed, the Board
of Directors in its entirety shall constitute the
Committee. The Board of Directors shall consider the
advisability of whether the members of the Committee shall consist
solely of two or more member of the Board of Directors who are each
“outside directors” as defined in Treas. Reg. section
1.162-27(e)(3) as promulgated by the Internal Revenue Service and
“non-employee directors” as defined in Rule 16b-3(b)(3)
as promulgated under the Act.
(J)
“Company” means Grand River Commerce, Inc., a
Michigan corporation and registered bank holding company, and
except as otherwise specified in this Plan in a particular context,
any successor thereto, whether by merger, consolidation, purchase
of all or substantially all of its assets or otherwise.
(K)
“Exercise Price” means the price at which a share
of Stock may be purchased by a Participant pursuant to the exercise
of an Option, as specified in the respective Stock Option
Agreement.
(L) “Fair
Market Value” on any date with respect to the Stock
means:
(i) if the Stock
is listed on a national securities exchange, the last reported sale
price of a share of the Stock on such exchange or, if no sale
occurs on that date, the average of the reported closing bid and
asked prices on that date,
(ii) if the Stock
is otherwise publicly traded, the last reported sale price of a
share of the Stock under the quotation system under which the sale
price is reported or, if no sale occurs on that date, the average
of the reported closing bid and asked prices on that date under the
quotation system under which the bid and asked prices are
reported,
(iii) if no such
last sales price or average of the reported closing bid and asked
prices are available on that date, the last reported sale price of
a share of the Stock, or if no sale takes place, the average of the
reported closing bid and asked prices as so reported for the
immediately preceding business day (a) on the national securities
exchange on which the Stock is listed or (b) if the Stock is
otherwise publicly traded, under the quotation system under which
such data are reported, or
(iv) if none of
the prices described above is available, the value of a share of
the Stock as reasonably determined in good faith by the Committee
in a manner that it believes to be in accordance with the
Code.
In determining the Fair Market Value of a share
of Stock in connection with the issuance of an ISO, the Fair Market
Value shall be determined without regard to any restriction, other
than a restriction that, by its terms, will never lapse.
(M)
“ISO” means an Option (or portion thereof)
intended to qualify as an “incentive stock option”
within the meaning of section 422 of the Code, or any successor
provision.
(N)
“NQSO” means an Option (or portion thereof) that
is not intended to, or does not, qualify as an “incentive
stock option” within the meaning of section 422 of the Code,
or any successor provision.
(O)
“Option” means the right of a Participant to
purchase shares of Stock in accordance with the terms of this Plan
and the Stock Option Agreement between such Participant and the
Company.
(P)
“Parent” means a parent corporation, if any, with
respect to the Company, as defined in section 424(e) of the Code
and regulations promulgated or rulings issued
thereunder.
(Q)
“Participant” means any person to whom an Option
has been granted pursuant to this Plan and who is a party to a
Stock Option Agreement.
(R)
“Stock” means the common stock of the Company,
$0.01 par value per share.
(S) “Stock
Option Agreement” means an agreement by and between a
Participant and the Company setting forth the specific terms and
conditions under which Stock may be purchased by such Participant
pursuant to the exercise of an Option. Such Stock Option
Agreement shall be subject to the provisions of this Plan (which
shall be incorporated by reference therein) and shall contain such
provisions as the Board of Directors, in its sole discretion, may
authorize.
(T)
“Subsidiary” means a subsidiary corporation of
the Company, as defined in section 424(f) of the Code and
regulations promulgated or rulings issued thereunder.
(U)
“Termination Date” means the date on which the
Participant ceased to be an employee of the Company or any
Affiliate; provided however, that with respect to an ISO, it means
the date on which the Participant ceased to be an employee of the
Company or any Parent or Subsidiary.
3. SHARES
AVAILABLE UNDER THE PLAN
(A) Shares
Subject to the Plan . Subject to adjustment in
accordance with the provisions of this Section 3, the total number
of shares of Stock as to which Options may be granted shall be
200,000 shares, all of which may be awardable as
ISOs. Stock issued under the Plan may be either
authorized but unissued shares or shares that have been reacquired
by the Company. Any shares issued by the Company in
connection with the assumption or substitution of outstanding
grants from any acquired corporation shall not reduce the shares of
Stock available for Options under the Plan.
(B)
Forfeited Awards . In the event that any
outstanding Option under the Plan for any reason expires
unexercised, is forfeited or is terminated prior to the end of the
period during which Options may be issued under the Plan, the
shares of Stock allocable to the unexercised portion of such Option
that has expired, been forfeited or been terminated shall become
available for future issuance under the Plan.
(C)
Adjustments on Changes in Stock . In the event of
any change in the outstanding shares of Stock by reason of any
merger, reorganization, consolidation, recapitalization, stock
dividend, stock split, reverse stock split, spinoff, combination or
exchange of shares or other corporate change, the Committee, in its
sole discretion, may make such substitution or adjustment, if any,
as it deems to be equitable or appropriate, as to: (i) the maximum
number of shares of Stock that may be issued under the Plan as set
forth in Section 3(A); (ii) the number or kind of shares subject to
an Option; (iii) subject to the limitation contained in Section
6(P), the Exercise Price applicable to an Option; (iv) any measure
of performance that relates to an Option in order to reflect such
change in the Stock and/or (v) any other affected terms of any
Option; provided however, that no adjustment shall occur with
respect to an ISO unless: (y) the excess of the aggregate Fair
Market Value of the shares of Stock subject to the ISO immediately
after any such adjustment over the aggregate Exercise Price of such
shares is not more than the excess of the aggregate Fair Market
Value of all shares subject to the ISO immediately prior to such
adjustment over the Exercise Price of all shares subject to the
ISO; and (z) the new or adjusted ISO does not grant the Participant
additional benefits that the Participant did not previously
have.
4.
ADMINISTRATION
(A)
Procedure . The Plan shall be administered,
construed and interpreted by the Committee, as such Committee is
from time to time constituted, or any successor committee the Board
of Directors may designate to administer the Plan. The
Committee may delegate any of its powers and duties to appropriate
officer(s) of the Company in accordance with guidelines established
by the Committee from time to time.
(B) Powers
of the Committee . Subject to the other provisions
of the Plan, the Committee shall have all powers vested in it by
the terms of the Plan as set forth herein, such powers to include
exclusive authority (except as may be delegated as permitted
herein): (i) to select those persons to be granted Options under
the Plan; (ii) to determine the type, size and terms of the Option
to be granted to each individual selected; (iii) to modify the
terms of any Option that has been granted; (iv) to determine the
time when Options will be granted; (v) to establish performance
objectives; (vi) to determine the Fair Market Value of the Stock
under Section 2(L)(iv); (vii) to interpret the Plan and decide any
questions and settle all controversies or disputes that may arise
in connection with the Plan; (viii) to adopt, amend and rescind
rules and regulations relating to the Plan; (ix) to prescribe the
form or forms of instruments evidencing Options and any other
instruments required under the Plan and to change such forms, in
its sole and absolute discretion, from time to time; (x) to
accelerate or defer (with the consent of the Participant) the
vesting period or exercise date of any Option; (xi) to authorize
any person to execute on behalf of the Company any instrument
required to effectuate the grant of an Option previously granted by
the Committee; and (xii) to make all other determinations and
perform all other acts necessary or advisable for the
administration of the Plan. The Committee (or its delegate as
permitted herein) may correct any defect, supply any omission or
reconcile any inconsistency in the Plan or in any Option in the
manner and to the extent that it shall deem desirable to carry the
Plan or any Option into effect.
(C) Effect
of Decision of the Committee and Board of Directors
. All decisions, determinations, actions and
interpretations of the Committee (or its delegate as permitted
herein) or the Board of Directors (or its delegate as permitted
herein) in the administration of the Plan shall lie with the
Committee and the Board of Directors, respectively, within its sole
and absolute discretion and shall be final, conclusive and binding
on all parties concerned; provided that the Committee or the Board
of Directors, as applicable, may, in its sole and absolute
discretion, overrule an action, decision, determination or
int
