Exhibit 4.1
THE COLONIAL BANCGROUP,
INC.
STOCK INCENTIVE
PLAN
Amended and Restated
January 21, 2009
WHEREAS, The Colonial BancGroup, Inc. (the
“Company”) established The Colonial BancGroup, Inc.
2001 Long-Term Incentive Plan (the “Plan”), effective
July 1, 2001, and amended the Plan on April 19, 2006 and
January 15, 2008;
WHEREAS, the Company desires to amend and restate the
Plan to: (i) increase the number of shares available for
awards under the Plan, (ii) modify the share sub-limits that
apply to certain types of awards authorized under the Plan,
(iii) change the name of the Plan to The Colonial BancGroup,
Inc. Stock Incentive Plan, (iv) eliminate the automatic
termination date so that the Plan will continue until terminated by
the Company’s board of directors, and (v) modify certain
administrative procedures;
WHEREAS, the Company intends that the Plan be continued
through this restatement, that outstanding awards will continue to
be subject to the terms of this Plan and that common stock that is
available for awards under the Plan continue to be available for
future awards; and
WHEREAS, the Company intends to participate in the
Capital Purchase Program that is authorized under the Emergency
Economic Stabilization Act of 2008 and will enter into compensation
limitation agreements with its senior officers that may supersede
the terms of certain awards that are granted under this
Plan;
NOW, THEREFORE,
this amendment and restatement of
the Plan is adopted by Company on this 21st day of January,
2009:
ARTICLE 1
PURPOSE
1.1. General
. The purpose of the Plan is to:
(i) attract and retain persons eligible to participate in the
Plan; (ii) motivate Participants by means of appropriate
equity-based incentives to achieve long-range goals;
(iii) provide incentive compensation opportunities that are
competitive with those of similar companies; and (iv) align
Participants’ interests with those of the Company’s
shareholders; and thereby promote the long-term financial interest
of the Company and its Subsidiaries, including the growth in value
of the Company’s common stock and enhancement of long-term
shareholder return.
ARTICLE 2
EFFECTIVE DATE
2.1. Effective Date
. The Plan was originally effective
on July 1, 2001. This amendment and restatement of the Plan is
effective on January 21, 2009, provided that Awards based on
shares of Stock that are added to the Plan as described Article V
shall not be effective until this amendment and restatement has
been approved by the shareholders of the Company.
ARTICLE 3
DEFINITIONS
3.1. Definitions
. When a word or phrase appears in
this Plan with the initial letter capitalized, and the word or
phrase does not commence a sentence, the word or phrase shall
generally be given the meaning ascribed to it in this Section
unless a clearly different meaning is required by the context. The
following words and phrases shall have the following
meanings:
(a) “Award” means
any Option, Stock Appreciation Right, Restricted Stock Award,
Performance Unit Award, or Other Stock-Based Award, or any other
right or interest relating to Stock or cash, granted to a
Participant under the Plan.
(b) “Award
Agreement” means any written agreement, contract, or
other instrument or document evidencing an Award.
(c) “Board” means
the Board of Directors of the Company.
(d) “Change in
Control” means (i) the occurrence of a transaction
with respect to which either a notice or application must be filed
with the Federal Reserve Board under the provisions of 12 C.F.R.
§ 225.41, Code of Federal Regulations, or any successor
thereto (concerning the acquisition of control of a bank or bank
holding company), or approval must be obtained under 12 C.F.R.
§ 225.11, Code of Federal Regulations, or any successor
thereto (concerning acquisition by a bank holding company of a bank
or bank holding company), and as a result of which more than 50% of
the outstanding shares of the Company, or any successor thereof,
are owned or controlled by any person or entity, or group acting in
concert, which, prior to such transaction, owned or controlled less
than 50% of the shares of the Company, (ii) individuals who
were directors of the Company immediately prior to a Control
Transaction (as defined below) shall cease within one year of such
Control Transaction, to constitute a majority of the Board of
Directors of the Company, or (iii) the Company is merged or
consolidated with another corporation and the Company is not the
surviving corporation or survives as a subsidiary of another
corporation, or the Company sells or otherwise disposes of
substantially all its assets. “Control Transaction”
shall be (i) any tender offer for or acquisition of shares of
the Company, (ii) any merger, consolidation, or sale of
substantially all the assets of the Company, (iii) any
contested election of directors of the Company, or (iv) any
combination of the foregoing which results in a change in voting
power sufficient to elect a majority of the Board of Directors of
the Company.
(e) “Code” means
the Internal Revenue Code of 1986, as amended from time to
time.
(f) “Committee”
means the committee of the Board described in Article 4.
(g) “Company”
means The Colonial BancGroup, Inc., a Delaware
corporation.
(h) “Covered
Employee” means a covered employee as defined in Code
Section 162(m)(3) or the regulations thereunder.
(i) “Date of
Grant” means the date the Committee takes action that is
sufficient to grant an Award or, if later, the grant date that is
specified in the Award.
(j) “Disability”
shall mean any illness or other physical or mental condition of a
Participant that renders the Participant incapable of performing
his customary and usual duties for the Company, or any medically
determinable illness or other physical or mental condition
resulting from a bodily injury, disease or mental disorder which,
in the judgment of the Committee, is permanent and continuous in
nature. The Committee may require such medical or other evidence as
it deems necessary to judge the nature and permanency of the
Participant’s condition. Notwithstanding the above, with
respect to an Incentive Stock Option, Disability shall mean
Permanent and Total Disability as defined in Section 22(e)(3)
of the Code.
(k) “Fair Market
Value” means, on any given date, the applicable
description below (unless the Committee determines in good faith
the fair market value of the Stock to be otherwise):
(1) If the Stock is traded on a
trading exchange (e.g., the New York Stock Exchange) or is reported
on the Nasdaq National Market System, another Nasdaq automated
quotation system or the OTC Bulletin Board System, Fair Market
Value shall be determined by reference to the price of the Stock on
such exchange or system with respect to the date for which Fair
Market Value is being determined and, to the extent applicable, in
a manner consistent with Code Sections 409A and 422.
(2) If the Stock is not traded on a
recognized exchange or automated trading system, Fair Market Value
shall be the value determined in good faith by the Committee or the
Board and, to the extent applicable, in a manner consistent with
Code Sections 409A and 422.
(l) “Incentive Stock
Option” means an Option that is intended to meet the
requirements of Section 422 of the Code or any successor
provision thereto.
(m) “Non-Qualified Stock
Option” means an Option that is not an Incentive Stock
Option.
(n) “Option”
means a right granted to a Participant under Article 7 of the Plan
to purchase Stock at a specified price during specified time
periods. An Option may be either an Incentive Stock Option or a
Non-Qualified Stock Option.
(o) “Other Stock-Based
Award” means a right, granted to a Participant under
Article 11, that relates to or is valued by reference to Stock or
other Awards relating to Stock.
(p) “Participant”
means a person described in Article VI who has been granted an
Award under the Plan.
(q) “Performance
Unit” means a right granted to a Participant under
Article 9, to receive cash, Stock, or other Awards, the payment of
which is contingent upon achieving certain performance goals
established by the Committee.
(r) “Plan” means
The Colonial BancGroup, Inc. Stock Incentive Plan, as embodied
herein and as amended from time to time.
(s) “Restricted
Stock” means Stock that the Committee is authorized to
grant under Article 10 that is subject to certain restrictions and
to risk of forfeiture.
(t) “Restricted Stock
Award” means an Award of Restricted Stock.
(u) “Stock” means
the $2.50 par value Common Stock of the Company, and such other
securities of the Company as may be substituted for Stock pursuant
to Article 13.
(v) “Stock Appreciation
Right” or “SAR” means a right granted to a
Participant under Article 8 to receive a payment equal to the
difference between the Fair Market Value of a share of Stock as of
the date of exercise of the SAR over the grant price of the SAR,
all as determined pursuant to Article 8.
(w) “Subsidiary”
means any corporation, limited liability company, partnership or
other entity of which a majority of the outstanding voting stock or
voting power is beneficially owned directly or indirectly by the
Company. For Incentive Stock Options, the term shall have the
meaning set forth in Code Section 424(f).
(x) “1933 Act”
means the Securities Act of 1933, as amended from time to
time.
(y) “1934 Act”
means the Securities Exchange Act of 1934, as amended from time to
time.
ARTICLE 4
ADMINISTRATION
4.1. Committee
. The Plan shall be administered and
interpreted by the Compensation Committee of the Board (the
“Committee”), such other committee as the Board may
designate, or, at the discretion of the Board from time to time, by
the Board. The Committee shall consist of two or more members of
the Board. The Committee shall be composed of at least two
individuals or such number that satisfies the minimum requirements
of section 162(m)(4)(C) of the Code, Rule 16b-3 of the 1934 Act,
and the member rules of any trading exchange ( e.g. , the
New York Stock Exchange) or reporting system ( e.g. , the
Nasdaq National Market System, the OTC Bulletin Board System) upon
which Stock is traded, whose members are not employees of the
Company or an Affiliate. The members of the Committee shall be
appointed by, and may be changed at any time and from time to time
in the discretion of, the Board. During any time that the Board is
acting as administrator of the Plan, it shall have all the powers
of the Committee hereunder, and any reference herein to the
Committee (other than in this Section 4.1) shall include the
Board.
4.2. Action by the
Committee . For purposes
of administering the Plan, the following rules of procedure shall
govern the Committee. A majority of the Committee shall constitute
a quorum. The acts of a majority of the members present at any
meeting at which a quorum is present, and acts approved unanimously
in writing by the members of the Committee in lieu of a meeting,
shall be deemed the acts of the Committee. Each member of the
Committee is entitled to, in good faith, rely or act upon any
report or other information furnished to that member by any officer
or other employee of the Company or any Subsidiary, the
Company’s independent certified public accountants, or any
executive compensation consultant or other professional retained by
the Company to assist in the administration of the Plan.
4.3. Authority of
Committee . The Committee
has the power, authority and discretion to:
(a) Designate
Participants;
(b) Determine the type or types of
Awards to be granted to each Participant;
(c) Determine the number of Awards
to be granted and the number of shares of Stock to which an Award
will relate;
(d) Determine the terms and
conditions of any Award granted under the Plan, including but not
limited to, the Date of Grant, the exercise price, grant price, or
purchase price, any restrictions or limitations on the Award, any
schedule for lapse of forfeiture restrictions or restrictions on
the exercisability of an Award, and accelerations or waivers
thereof, based in each case on such considerations as the Committee
in its sole discretion determines;
(e) Accelerate the vesting or lapse
of restrictions of any outstanding Award, based in each case on
such considerations as the Committee in its sole discretion
determines;
(f) Determine whether, to what
extent, and under what circumstances an Award may be settled in, or
the exercise price of an Award may be paid in, cash, Stock, other
Awards, or other property, or an Award may be canceled, forfeited,
or surrendered;
(g) Prescribe the form of each Award
Agreement, which need not be identical for each Participant;
and
(h) Decide all other matters that
must be determined in connection with an Award.
(i) Amend the Plan, pursuant to
Article XIV.
4.4. Decisions Binding
. The Committee’s
interpretation of the Plan, any Awards granted under the Plan, any
Award Agreement, and all decisions and determinations by the
Committee with respect to the Plan are final, binding, and
conclusive on all parties.
ARTICLE 5
SHARES SUBJECT TO THE
PLAN
5.1. Number of Shares
. Subject to adjustment as provided
in Section 13.1, the aggregate number of shares of Stock
reserved and available for Awards or which may be used to provide a
basis of measurement for or to determine the value of an Award
(such as with a Stock Appreciation Right or Performance Unit Award)
shall be twenty five million (25,000,000) shares.
5.2. Lapsed Awards
. To the extent that an Award is
canceled, terminates, expires or lapses for any reason, including
Awards granted prior to this amendment and restatement of the Plan,
any shares of Stock subject to the Award will again be available
for the grant of an Award under the Plan and shares subject to SARs
or other Awards settled in cash will be available for the grant of
an Award under the Plan.
5.3. Stock Distributed
. Any Stock distributed pursuant to
an Award may consist, in whole or in part, of authorized and
unissued Stock, treasury Stock or Stock purchased on the open
market.
5.4. Limitation on
Awards . Notwithstanding
any provision in the Plan to the contrary (but subject to
adjustment as provided in Section 13.1), the maximum number of
shares of Stock with respect to one or more Stock-based Awards that
may be granted during any one calendar year under the Plan to any
one Covered Employee shall be 500,000. The maximum value of any
cash-based Performance Unit or other cash-based Award (less any
consideration paid by the Participant for such Award) during any
one calendar year under the Plan shall be $4,000,000.
ARTICLE 6
ELIGIBILITY
6.1. General
. Awards may be granted to
individuals who employees, officers, directors, consultants or
advisors of the Company, including any regional or advisory
directors, of the Company or a Subsidiary.
ARTICLE 7
STOCK OPTIONS
7.1. General
. The Committee is authorized to
grant Options to Participants on the following terms and
conditions:
(a) Exercise Price. The exercise
price per share of Stock under an Option shall be determined by the
Committee but shall not be less than the Stock’s Fair Market
Value as of the Date of Grant.
(b) Time and Conditions of Exercise.
The Committee shall determine the time or times at which an Option
may be exercised in whole or in part; provided, however, that in no
event may any Incentive Stock Option be exercisable for more than
ten years from the Date of Grant. The Committee also shall
determine the performance or other conditions, if any, that must be
satisfied before all or part of an Option may be exercised. The
Committee may waive any exercise provisions at any time in whole or
in part based upon factors as the Committee may determine in its
sole discretion so that the Option becomes exercisable at an
earlier date.
(c) Payment. The Committee shall
determine the methods by which the exercise price of an Option may
be paid, the form of payment, including, without limitation, cash,
shares of Stock, or other property (including “cashless
exercise” arrangements), and the methods by which shares of
Stock shall be delivered or deemed to be delivered to Participants;
provided that if shares of Stock surrendered in payment of the
exercise price were themselves acquired otherwise than on the open
market, such shares shall have been held by the Participant for at
least six months.
(d) Evidence of Grant. All Options
shall be evidenced by a written Award Agreement between the Company
and the Participant. The Award Agreement shall include such
provisions, not inconsistent with the Plan, as may be specified by
the Committee.
7.2. Incentive Stock
Options . The terms of
any Incentive Stock Options granted under the Plan must comply with
the following additional rules:
(a) Exercise. In no event may any
Incentive Stock Option be exercisable for more than ten years from
the Date of Grant.
(b) Lapse of Option. An Incentive
Stock Option shall lapse under the earliest of the following
circumstances; provided, however, that
