Exhibit 10.1
PLAINSCAPITAL
CORPORATION
2009 LONG-TERM INCENTIVE
PLAN
The PlainsCapital Corporation 2009
Long-Term Incentive Plan (the “ Plan ”)
was adopted by the Board of Directors of Plains Capital
Corporation, a Texas corporation (the “ Company
”), effective as of July 16, 2009, subject to approval
by the Company’s shareholders and redemption of all preferred
stock and warrants held by the U.S. Department of the Treasury
through the Troubled Asset Relief Program Capital Purchase Program
in accordance with sections 4.8 and 4.9 of the Securities Purchase
Agreement between the Company and the U.S. Department of the
Treasury dated December 19, 2008 (“ TARP
Redemption ”).
ARTICLE 1
PURPOSE
The purpose of the Plan is to
attract and retain the services of key employees and Outside
Directors of the Company and its Subsidiaries and to provide such
persons with a proprietary interest in the Company through the
granting of incentive stock options, nonqualified stock options,
stock appreciation rights, restricted stock, restricted stock
units, performance awards, dividend equivalent rights, and other
awards, whether granted singly, or in combination, or in tandem,
that will
(a) increase the interest of such
persons in the Company’s welfare;
(b) furnish an incentive to such
persons to continue their services for the Company or its
Subsidiaries; and
(c) provide a means through which
the Company may attract able persons as Employees and Outside
Directors.
With respect to Reporting
Participants, the Plan and all transactions under the Plan are
intended to comply with all applicable conditions of Rule 16b-3
promulgated under the Securities Exchange Act of 1934 (the “
1934 Act ”). To the extent any provision of the
Plan or action by the Committee fails to so comply, such provision
or action shall be deemed null and void ab initio , to the
extent permitted by law and deemed advisable by the
Committee.
ARTICLE 2
DEFINITIONS
For the purpose of the Plan, unless
the context requires otherwise, the following terms shall have the
meanings indicated:
2.1 “ Award
” means the grant of any Incentive Stock Option, Nonqualified
Stock Option, Reload Option, Restricted Stock, SAR, Restricted
Stock Units, Performance Award, Dividend Equivalent Right or Other
Award, whether granted singly or in combination or in tandem (each
individually referred to herein as an “
Incentive ”).
2.2 “ Award
Agreement ” means a written agreement between a
Participant and the Company which sets out the terms of the grant
of an Award.
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2.3 “ Award
Period ” means the period set forth in the Award
Agreement during which one or more Incentives granted under an
Award may be exercised.
2.4 “ Board
” means the board of directors of the Company.
2.5 “ Change in
Control ” means any of the following, except as
otherwise provided herein: (i) any consolidation, merger or
share exchange of the Company in which the Company is not the
continuing or surviving corporation or pursuant to which shares of
the Company’s Common Stock would be converted into cash,
securities or other property, other than a consolidation, merger or
share exchange of the Company in which the holders of the
Company’s Common Stock immediately prior to such transaction
have the same proportionate ownership of Common Stock of the
surviving corporation immediately after such transaction;
(ii) any sale, lease, exchange or other transfer (excluding
transfer by way of pledge or hypothecation) in one transaction or a
series of related transactions, of all or substantially all of the
assets of the Company; (iii) the shareholders of the Company
approve any plan or proposal for the liquidation or dissolution of
the Company; (iv) the cessation of control (by virtue of their
not constituting a majority of directors) of the Board by the
individuals (the “ Continuing Directors
”) who (x) at the date of this Plan were directors or
(y) become directors after the date of this Plan and whose
election or nomination for election by the Company’s
shareholders was approved by a vote of at least two-thirds of the
directors then in office who were directors at the date of this
Plan or whose election or nomination for election was previously so
approved; (v) the acquisition of beneficial ownership (within
the meaning of Rule 13d-3 under the 1934 Act) of a majority of the
voting power of the Company’s outstanding voting securities
by any person or group (as such term is used in Rule 13d-5 under
the 1934 Act) who beneficially owned less than a majority of the
voting power of the Company’s outstanding voting securities
on the date of this Plan; provided , however , that
notwithstanding the foregoing, an acquisition shall not constitute
a Change in Control hereunder if the acquirer is (x) a trustee
or other fiduciary holding securities under an employee benefit
plan of the Company and acting in such capacity, (y) a
Subsidiary of the Company or a corporation owned, directly or
indirectly, by the shareholders of the Company in substantially the
same proportions as their ownership of voting securities of the
Company or (z) any other person whose acquisition of shares of
voting securities is approved in advance by a majority of the
Continuing Directors; or (vi) in a Title 11 bankruptcy
proceeding, the appointment of a trustee or the conversion of a
case involving the Company to a case under
Chapter 7.
Notwithstanding the foregoing
provisions of this Section 2.5 , in the event an Award
issued under the Plan is subject to Section 409A of the Code,
then, in lieu of the foregoing definition and to the extent
necessary to comply with the requirements of Section 409A of
the Code, the definition of “Change in Control” for
purposes of such Award shall be as follows:
“Change in
Control” of the
Company occurs upon a change in the Company’s ownership, its
effective control or the ownership of a substantial portion of its
assets, as follows:
(a) Change in Ownership . A
change in ownership of the Company occurs on the date that any
“Person” (as defined in Section 2.5(d)
below), other than (i) the Company or any of its subsidiaries,
(ii) a trustee or other fiduciary holding securities under an
employee benefit plan of the Company or any of its Affiliates,
(iii) an underwriter temporarily holding stock pursuant to an
offering of such stock, or (iv) a corporation owned, directly
or indirectly, by the shareholders of the Company in substantially
the same proportions as their ownership of the Company’s
stock, acquires ownership of the Company’s stock that,
together with stock held by such Person, constitutes more than 50%
of the total fair market value or total voting power of the
Company’s stock. However, if any Person is considered to own
already more than 50% of the total fair market value or total
voting power of the Company’s stock, the acquisition of
additional stock by the same Person is not considered to be a
Change of Control. In addition, if any Person has
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effective control of the Company
through ownership of 30% or more of the total voting power of the
Company’s stock, as discussed in paragraph (b) below,
the acquisition of additional control of the Company by the same
Person is not considered to cause a Change in Control pursuant to
this paragraph (a); or
(b) Change in Effective
Control . Even though the Company may not have undergone a
change in ownership under paragraph (a) above, a change in the
effective control of the Company occurs on either of the following
dates:
(i) the date that any Person
acquires (or has acquired during the 12-month period ending on the
date of the most recent acquisition by such Person) ownership of
the Company’s stock possessing 30% or more of the total
voting power of the Company’s stock. However, if any Person
owns 30% or more of the total voting power of the Company’s
stock, the acquisition of additional control of the Company by the
same Person is not considered to cause a Change in Control pursuant
to this subparagraph (b)(i); or
(ii) the date during any 12-month
period when a majority of members of the Board is replaced by
directors whose appointment or election is not endorsed by a
majority of the Board before the date of the appointment or
election; provided, however, that any such director shall not be
considered to be endorsed by the Board if his or her initial
assumption of office occurs as a result of an actual or threatened
solicitation of proxies or consents by or on behalf of a Person
other than the Board; or
(c) Change in Ownership of
Substantial Portion of Assets . A change in the ownership of a
substantial portion of the Company’s assets occurs on the
date that a Person acquires (or has acquired during the 12-month
period ending on the date of the most recent acquisition by such
Person) assets of the Company, that have a total gross fair market
value equal to at least 40% of the total gross fair market value of
all of the Company’s assets immediately before such
acquisition or acquisitions. However, there is no Change in Control
when there is such a transfer to (i) a shareholder of the
Company (immediately before the asset transfer) in exchange for or
with respect to the Company’s stock; (ii) an entity, at
least 50% of the total value or voting power of the stock of which
is owned, directly or indirectly, by the Company; (iii) a
Person that owns directly or indirectly, at least 50% of the total
value or voting power of the Company’s outstanding stock; or
(iv) an entity, at least 50% of the total value or voting
power of the stock of which is owned by a Person that owns,
directly or indirectly, at least 50% of the total value or voting
power of the Company’s outstanding stock.
(d) Definitions . For
purposes of subparagraphs (a), (b) and
(c) above:
(i) “Person” shall have
the meaning given in Section 7701(a)(1) of the Internal
Revenue Code of 1986, as amended (the “ Code
”). Person shall include more than one Person acting as a
group as defined by the Final Treasury Regulations issued under
Section 409A of the Code.
(ii) “Affiliate” shall
have the meaning set forth in Rule 12b-2 promulgated under
Section 12 of the Securities Exchange Act of 1934, as
amended.
(e) Interpretation . The
provisions of this Section 2.5 shall be interpreted in
accordance with the requirements of the Final Treasury Regulations
under Code Section 409A, it being the intent of the parties
that this Section 2.5 shall be in compliance with the
requirements of said Code Section and said Regulations.
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2.6 “ Code
” means the Internal Revenue Code of 1986, as
amended.
2.7 “ Committee
” means the committee appointed or designated by the Board to
administer the Plan in accordance with Article 3 of
this Plan.
2.8 “ Common
Stock ” means the “Common Stock”, par
value $0.001 per share, as identified in the Company’s
Articles of Incorporation, which the Company is currently
authorized to issue or may in the future be authorized to issue, or
any securities into which or for which the common stock of the
Company may be converted or exchanged, as the case may be, pursuant
to the terms of this Plan.
2.9 “ Company
” means Plains Capital Corporation, a Texas corporation, and
any successor entity.
2.10 “
Corporation ” means any entity that (i) is
defined as a corporation under Section 7701 of the Code and
(ii) is the Company or is in an unbroken chain of corporations
(other than the Company) beginning with the Company, if each of the
corporations other than the last corporation in the unbroken chain
owns stock possessing a majority of the total combined voting power
of all classes of stock in one of the other corporations in the
chain. For purposes of clause (ii) hereof, an entity shall be
treated as a “corporation” if it satisfies the
definition of a corporation under Section 7701 of the
Code.
2.11 “ Date of
Grant ” means the effective date on which an Award is
made to a Participant as set forth in the applicable Award
Agreement; provided, however, that solely for purposes of
Section 16 of the 1934 Act and the rules and regulations
promulgated thereunder, the Date of Grant of an Award shall be the
later of the date of (i) shareholder approval of the Plan or
(ii) TARP Redemption, if such date is later than the effective
date of such Award as set forth in the Award Agreement.
2.12 “ Dividend
Equivalent Right ” means the right of the holder
thereof to receive credits based on the cash dividends that would
have been paid on the shares of Common Stock specified in the Award
if such shares were held by the Participant to whom the Award is
made.
2.13 “ Employee
” means common law employee (as defined in accordance with
the Regulations and Revenue Rulings then applicable under
Section 3401(c) of the Code) of the Company or any Subsidiary
of the Company.
2.14 “ Executive
Officer ” means an officer of the Company or a
Subsidiary subject to Section 16 of the 1934 Act or a
“covered employee” as defined in Section 162(m)(3)
of the Code.
2.15 “ Fair Market
Value ” means, as of a particular date, (a) if
the shares of Common Stock are listed on any established national
securities exchange, the closing sales price per share of Common
Stock on the consolidated transaction reporting system for the
principal securities exchange for the Common Stock on that date,
or, if there shall have been no such sale so reported on that date,
on the last preceding date on which such a sale was so reported,
(b) if the shares of Common Stock are not so listed but are
quoted on the Nasdaq National Market System, the closing sales
price per share of Common Stock on the Nasdaq National Market
System on that date, or, if there shall have been no such sale so
reported on that date, on the last preceding date on which such a
sale was so reported, (c) if the Common Stock is not so listed
or quoted, the mean between the closing bid and asked price on that
date, or, if there are no quotations available for such date, on
the last preceding date on which such quotations shall be
available, as reported by Nasdaq, or, if not reported by Nasdaq, by
the National Quotation Bureau, Inc., or (d) if none of the
above is applicable, such amount as may be determined by the
Committee (acting on the advice of an Independent Third Party,
should the Committee elect in its sole discretion to utilize an
Independent Third Party for this purpose), in good faith, to be the
fair market value per share of Common
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Stock. The determination of Fair Market Value
shall, where applicable, be in compliance with Section 409A of
the Code.
2.16 “ Independent Third
Party ” means an individual or entity independent of
the Company having experience in providing investment banking or
similar appraisal or valuation services and with expertise
generally in the valuation of securities or other property for
purposes of this Plan. The Committee may utilize one or more
Independent Third Parties.
2.17 “ Incentive
” is defined in Section 2.1 hereof.
2.18 “ Incentive Stock
Option ” means an incentive stock option within the
meaning of Section 422 of the Code, granted pursuant to this
Plan.
2.19 “ Nonqualified
Stock Option ” means a nonqualified stock option,
granted pursuant to this Plan, which is not an Incentive Stock
Option.
2.20 “ Option
Price ” means the price which must be paid by a
Participant upon exercise of a Stock Option to purchase a share of
Common Stock.
2.21 “ Other
Award ” means an Award issued pursuant to
Section 6.9 hereof.
2.22 “ Outside
Director ” means a director of the Company who is not
an Employee.
2.23 “
Participant ” means an Employee or Outside
Director of the Company or a Subsidiary to whom an Award is granted
under this Plan.
2.24 “ Plan
” means this PlainsCapital Corporation 2009 Long-Term
Incentive Plan, as amended from time to time.
2.25 “ Performance
Award ” means an Award hereunder of cash, shares of
Common Stock, units or rights based upon, payable in, or otherwise
related to, Common Stock pursuant to Section 6.7
hereof.
2.26 “ Performance
Goal ” means any of the goals set forth in
Section 6.10 hereof.
2.27 “ Reload Stock
Option ” means a Nonqualified Stock Option or an
Incentive Stock Option granted pursuant to
Section 9.3(c) hereof.
2.28 “ Reporting
Participant ” means a Participant who is subject to
the reporting requirements of Section 16 of the 1934
Act.
2.29 “ Restricted
Stock ” means shares of Common Stock issued or
transferred to a Participant pursuant to Section 6.4 of
this Plan which are subject to restrictions or limitations set
forth in this Plan and in the related Award Agreement.
2.30 “ Restricted Stock
Units ” means units awarded to Participants pursuant
to Section 6.6 hereof, which are convertible into
Common Stock at such time as such units are no longer subject to
restrictions as established by the Committee.
2.31 “
Retirement ” means any Termination of Service
solely due to retirement upon or after attainment of age sixty-five
(65), or permitted early retirement as determined by the
Committee.
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2.32 “ SAR
” or “ stock appreciation right ”
means the right to receive an amount, in cash and/or Common Stock,
equal to the excess of the Fair Market Value of a specified number
of shares of Common Stock as of the date the SAR is exercised (or,
as provided in the Award Agreement, converted) over the SAR Price
for such shares.
2.33 “ SAR Price
” means the exercise price or conversion price of each share
of Common Stock covered by a SAR, determined on the Date of Grant
of the SAR.
2.34 “ Stock
Option ” means a Nonqualified Stock Option, a Reload
Stock Option or an Incentive Stock Option.
2.35 “
Subsidiary ” means (i) any corporation in
an unbroken chain of corporations beginning with the Company, if
each of the corporations other than the last corporation in the
unbroken chain owns stock possessing a majority of the total
combined voting power of all classes of stock in one of the other
corporations in the chain, (ii) any limited partnership, if
the Company or any corporation described in item (i) above
owns a majority of the general partnership interest and a majority
of the limited partnership interests entitled to vote on the
removal and replacement of the general partner, and (iii) any
partnership or limited liability company, if the partners or
members thereof are composed only of the Company, any corporation
listed in item (i) above or any limited partnership listed in
item (ii) above. “Subsidiaries” means more than
one of any such corporations, limited partnerships, partnerships or
limited liability companies.
2.36 “ Termination of
Service ” occurs when a Participant who is
(i) an Employee of the Company or any Subsidiary ceases to
serve as an Employee of the Company and its Subsidiaries, for any
reason; or (ii) an Outside Director of the Company or a
Subsidiary ceases to serve as a director of the Company and its
Subsidiaries for any reason. Except as may be necessary or
desirable to comply with applicable federal or state law, a
“Termination of Service” shall not be deemed to have
occurred when a Participant who is an Employee becomes an Outside
Director or vice versa. If, however, a Participant who is an
Employee and who has an Incentive Stock Option ceases to be an
Employee but does not suffer a Termination of Service, and if that
Participant does not exercise the Incentive Stock Option within the
time required under Section 422 of the Code upon ceasing to be
an Employee, the Incentive Stock Option shall thereafter become a
Nonqualified Stock Option. Notwithstanding the foregoing provisions
of this Section 2.36 , in the event an Award issued
under the Plan is subject to Section 409A of the Code, then,
in lieu of the foregoing definition and to the extent necessary to
comply with the requirements of Section 409A of the Code, the
definition of “Termination of Service” for purposes of
such Award shall be the definition of “separation from
service” provided for under Section 409A of the Code and
the regulations or other guidance issued thereunder.
2.37 “ Total and
Permanent Disability ” means a Participant is
qualified for long-term disability benefits under the
Company’s or Subsidiary’s disability plan or insurance
policy; or, if no such plan or policy is then in existence or if
the Participant is not eligible to participate in such plan or
policy, that the Participant, because of a physical or mental
condition resulting from bodily injury, disease, or mental
disorder, is unable to perform his or her duties of employment for
a period of six (6) continuous months, as determined in good
faith by the Committee, based upon medical reports or other
evidence satisfactory to the Committee; provided that , with
respect to any Incentive Stock Option, Total and Permanent
Disability shall have the meaning given it under the rules
governing Incentive Stock Options under the Code. Notwithstanding
the foregoing provisions of this Section 2.37 , in the
event an Award issued under the Plan is subject to
Section 409A of the Code, then, in lieu of the foregoing
definition and to the extent necessary to comply with the
requirements of Section 409A of the Code, the definition of
“Total and Permanent Disability” for purposes of such
Award shall be the definition of “disability” provided
for under Section 409A of the Code and the regulations or
other guidance issued thereunder.
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ARTICLE 3
ADMINISTRATION
3.1 General Administration;
Establishment of Committee . Subject to the terms of this
Article 3 , the Plan shall be administered by the Board
or such committee of the Board as is designated by the Board to
administer the Plan (the “ Committee ”).
The Committee shall consist of not fewer than two persons. Any
member of the Committee may be removed at any time, with or without
cause, by resolution of the Board. Any vacancy occurring in the
membership of the Committee may be filled by appointment by the
Board. At any time there is no Committee to administer the Plan,
any references in this Plan to the Committee shall be deemed to
refer to the Board.
Membership on the Committee shall be
limited to those members of the Board who are “outside
directors” under Section 162(m) of the Code and
“non-employee directors” as defined in Rule 16b-3
promulgated under the 1934 Act. The Committee shall select one of
its members to act as its Chairman. A majority of the Committee
shall constitute a quorum, and the act of a majority of the members
of the Committee present at a meeting at which a quorum is present
shall be the act of the Committee.
3.2 Designation of Participants
and Awards.
(a) The Committee or the Board shall
determine and designate from time to time the eligible persons to
whom Awards will be granted and shall set forth in each related
Award Agreement, where applicable, the Award Period, the Date of
Grant, and such other terms, provisions, limitations, and
performance requirements, as are approved by the Committee, but not
inconsistent with the Plan. The Committee shall determine whether
an Award shall include one type of Incentive or two or more
Incentives granted in combination or two or more Incentives granted
in tandem (that is, a joint grant where exercise of one Incentive
results in cancellation of all or a portion of the other
Incentive). Although the members of the Committee shall be eligible
to receive Awards, all decisions with respect to any Award, and the
terms and conditions thereof, to be granted under the Plan to any
member of the Committee shall be made solely and exclusively by the
other members of the Committee, or if such member is the only
member of the Committee, by the Board.
(b) Notwithstanding
Section 3.2(a) , to the extent permitted by applicable
law, the Board may, in its discretion and by a resolution adopted
by the Board, authorize one or more officers of the Company (an
“ Authorized Officer ”) to
(i) designate one or more Employees as eligible persons to
whom Awards will be granted under the Plan and (ii) determine
the number of shares of Common Stock that will be subject to such
Awards; provided, however, that the resolution of the Board
granting such authority shall (x) specify the total number of
shares of Common Stock that may be made subject to the Awards,
(y) set forth the price or prices (or a formula by which such
price or prices may be determined) to be paid for the purchase of
the Common Stock subject to such Awards, and (z) not authorize
an officer to designate himself as a recipient of any
Award.
3.3 Authority of the
Committee. The Committee,
in its discretion, shall (i) interpret the Plan,
(ii) prescribe, amend, and rescind any rules and regulations
necessary or appropriate for the administration of the Plan,
(iii) establish performance goals for an Award and certify the
extent of their achievement, and (iv) make such other
determinations or certifications and take such other action as it
deems necessary or advisable in the administration of the Plan. Any
interpretation, determination, or other action made or taken by the
Committee shall be final, binding, and conclusive on all interested
parties. The Committee’s discretion set forth herein shall
not be limited by any provision of the Plan, including any
provision which by its terms is applicable notwithstanding any
other provision of the Plan to the contrary.
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The Committee may delegate to
officers of the Company, pursuant to a written delegation, the
authority to perform specified functions under the Plan. Any
actions taken by any officers of the Company pursuant to such
written delegation of authority shall be deemed to have been taken
by the Committee.
With respect to restrictions in the
Plan that are based on the requirements of Rule 16b-3 promulgated
under the 1934 Act, Section 422 of the Code,
Section 162(m) of the Code, the rules of any exchange or
inter-dealer quotation system upon which the Company’s
securities are listed or quoted, or any other applicable law, rule
or restriction (collectively, “ applicable law
”), to the extent that any such restrictions are no longer
required by applicable law, the Committee shall have the sole
discretion and authority to grant Awards that are not subject to
such mandated restrictions and/or to waive any such mandated
restrictions with respect to outstanding Awards.
ARTICLE 4
ELIGIBILITY
Any Employee (including an Employee
who is also a director or an officer) or Outside Director of the
Company whose judgment, initiative, and efforts contributed or may
be expected to contribute to the successful performance of the
Company is eligible to participate in the Plan; provided that only
Employees of a corporation shall be eligible to receive Incentive
Stock Options. The Committee, upon its own action, may grant, but
shall not be required to grant, an Award to any Employee or Outside
Director of the Company or any Subsidiary. Awards may be granted by
the Committee at any time and from time to time to new
Participants, or to then Participants, or to a greater or lesser
number of Participants, and may include or exclude previous
Participants, as the Committee shall determine. Except as required
by this Plan, Awards granted at different times need not contain
similar provisions. The Committee’s determinations under the
Plan (including without limitation determinations of which
Employees or Outside Directors, if any, are to receive Awards, the
form, amount and timing of such Awards, the terms and provisions of
such Awards and the agreements evidencing same) need not be uniform
and may be made by it selectively among Participants who receive,
or are eligible to receive, Awards under the Plan.
ARTICLE 5
SHARES SUBJECT TO
PLAN
5.1 Number Available for
Awards . Subject to
adjustment as provided in Articles 12 and 13 , the maximum
number of shares of Common Stock that may be delivered pursuant to
Awards granted under the Plan is Four Million
(4,000,000) shares, of which 100% may be delivered pursuant to
Incentive Stock Options. Subject to adjustment pursuant to
Articles 12 and 13 , the maximum number of shares of Common
Stock with respect to which Stock Options or SARs may be granted to
an Executive Officer during any calendar year is One Hundred
Thousand (100,000) shares of Common Stock. Shares to be issued
may be made available from authorized but unissued Common Stock,
Common Stock held by the Company in its treasury, or Common Stock
purchased by the Company on the open market or otherwise. During
the term of this Plan, the Company will at all times reserve and
keep available the number of shares of Common Stock that shall be
sufficient to satisfy the requirements of this Plan.
5.2 Reuse of Shares
. To the extent that any Award under
this Plan shall be forfeited, shall expire or be canceled, in whole
or in part, then the number of shares of Common Stock covered by
the Award or stock option so forfeited, expired or canceled may
again be awarded pursuant to the provisions of this Plan. In the
event that previously acquired shares of Common Stock are delivered
to the Company in full or partial payment of the exercise price for
the exercise of a Stock Option granted under this Plan, the number
of shares of Common Stock available for future Awards under this
Plan shall be reduced only
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by the net number of shares of Common Stock
issued upon the exercise of the Stock Option. Awards that may be
satisfied either by the issuance of shares of Common Stock or by
cash or other consideration shall be counted against the maximum
number of shares of Common Stock that may be issued under this Plan
only during the period that the Award is outstanding or to the
extent the Award is ultimately satisfied by the issuance of shares
of Common Stock. Awards will not reduce the number of shares of
Common Stock that may be issued pursuant to this Plan if the
settlement of the Award will not require the issuance of shares of
Common Stock, as, for example, a SAR that can be satisfied only by
the payment of /cash. Notwithstanding any provisions of the Plan to
the contrary, only shares forfeited back to the Company, shares
canceled on account of termination, expiration or lapse of an
Award, shares surrendered in payment of the exercise price of an
option or shares withheld for payment of applicable employment
taxes and/or withholding obligations resulting from the exercise of
an option shall again be available for grant of Incentive Stock
Options under the Plan, but shall not increase the maximum number
of shares described in Section 5.1 above as the maximum
number of shares of Common Stock that may be delivered pursuant to
Incentive Stock Options.
ARTICLE 6
GRANT OF AWARDS
6.1 In General.
(a) The grant of an Award shall be
authorized by the Committee and shall be evidenced by an Award
Agreement setting forth the Incentive or Incentives being granted,
the total number of shares of Common Stock subject to the
Incentive(s), the Option Price (if applicable), the Award Period,
the Date of Grant, and such other terms, provisions, limitations,
and performance objectives, as are approved by the Committee, but
(i) not inconsistent with the Plan, (ii) to the extent an
Award issued under the Plan is subject to Section 409A of the
Code, in compliance with the applicable requirements of
Section 409A of the Code and the regulations or other guidance
issued thereunder, and (iii) to the extent the Committee
determines that an Award shall comply with the requirements of
Section 162(m) of the Code, in compliance with the applicable
requirements of Section 162(m) of the Code and the regulations
and other guidance issued thereunder. The Company shall execute an
Award Agreement with a Participant after the Committee approves the
issuance of an Award. Any Award granted pursuant to this Plan must
be granted within ten (10) years of the date of adoption of
this Plan. The Plan shall be submitted to the Company’s
shareholders for approval; however, the Committee may grant Awards
under the Plan prior to the time of shareholder approval or TARP
Redemption. Any such Award granted prior to such shareholder
approval or TARP Redemption shall be made subject to such
shareholder approval and TARP Redemption. The grant of an Award to
a Participant shall not be deemed either to entitle the Participant
to, or to disqualify the Participant from, receipt of any other
Award under the Plan.
(b) If the Committee establishes a
purchase price for an Award, the Participant must accept such Award
within a period of thirty (30) days (or such shorter period as
the Committee may specify) after the Date of Grant by executing the
applicable Award Agreement and paying such purchase
price.
(c) Any Award under this Plan that
is settled in whole or in part in cash on a deferred basis may
provide for interest equivalents to be credited with respect to
such cash payment. Interest equivalents may be compounded and shall
be paid upon such terms and conditions as may be specified by the
grant.
C-9
6.2 Option Price.
The Option Price for any share of
Common Stock which may be purchased under a Nonqualified Stock
Option for any share of Common Stock may be equal to or greater
than the Fair Market Value of the share on the Date of Grant. The
Option Price for any share of Common Stock which may be purchased
under an Incentive Stock Option must be at least equal to the Fair
Market Value of the share on the Date of Grant; if an Incentive
Stock Option is granted to an Employee who owns or is deemed to own
(by reason of the attribution rules of Section 424(d) of the
Code) more than 10% of the combined voting power of all classes of
stock of the Company (or any parent or Subsidiary), the Option
Price shall be at least 110% of the Fair Market Value of the Common
Stock on the Date of Grant.
6.3 Maximum ISO
Grants. The Committee may
not grant Incentive Stock Options under the Plan to any Employee
which would permit the aggregate Fair Market Value (determined on
the Date of Grant) of the Common Stock with respect to which
Incentive Stock Options (under this and any other plan of the
Company and its Subsidiaries) are exercisable for the first time by
such Employee during any calendar year to exceed $100,000. To the
extent any Stock Option granted under this Plan which is designated
as an Incentive Stock Option exceeds this limit or otherwise fails
to qualify as an Incentive Stock Option, such Stock Option (or any
such portion thereof) shall be a Nonqualified Stock Option. In such
case, the Committee shall designate which stock will be treated as
Incentive Stock Option stock by causing the issuance of a separate
stock certificate and identifying such stock as Incentive Stock
Option stock on the Company’s stock transfer
records.
6.4 Restricted Stock.
If Restricted Stock is granted to or
received by a Participant under an Award (including a Stock
Option), the Committee shall set forth in the related Award
Agreement: (i) the number of shares of Common Stock awarded,
(ii) the price, if any, to be paid by the Participant for such
Restricted Stock and the method of payment of the price,
(iii) the time or times within which such Award may be subject
to forfeiture, (iv) specified Performance Goals of the
Company, a Subsidiary, any division thereof or any group of
Employees of the Company, or other criteria, which the Committee
determines must be met in order to remove any restrictions
(including vesting) on such Award, and (v) all other terms,
limitations, restrictions, and conditions of the Restricted Stock,
which shall be consistent with this Plan, to the extent applicable
and in the event the Committee determines that an Award shall
comply with the requirements of Section 162(m) of the Code, in
compliance with the requirements of Section 162(m) of
the
