Exhibit 10.1
EVERGREENBANCORP,
INC.
STOCK OPTION
AND EQUITY COMPENSATION
PLAN
Recitals
A. The EvergreenBank 2000 Stock
Option Plan was adopted by EvergreenBank’s board of directors
on February 17, 2000 and approved by its shareholders on
April 20, 2000. In connection with a holding company
reorganization, effective on June 20, 2001, pursuant to which
EvergreenBank became a wholly-owned subsidiary of EvergreenBancorp,
Inc. (“Company”), the Company adopted the plan and
changed the name of the plan to “EvergreenBancorp, Inc. 2000
Stock Option Plan.” An amendment to the plan was adopted by
the board of directors of the Company on March 23, 2003 and
was approved by its shareholders on April 17, 2003. A further
amendment of the plan was adopted by the board of directors of the
Company on March 16, 2006 and was approved by its shareholders
on April 20, 2006.
B. The Company now wishes to further
amend the plan to (i) change the name of the plan to
the “Stock Option and Equity Compensation Plan,”
(ii) increase the number of shares that may be made
subject to awards of different types granted under the plan,
(iii) extend the term of the plan, and (iv)
conform the plan to the requirements of Section 409A and
Section 162(m) of the U.S. Internal Revenue Code of 1986,
amended (“Code”). The plan, as so amended, is intended
to be a new plan for purposes of Code Section 422.
Plan
The EvergreenBancorp, Inc. 2000
Stock Option Plan shall henceforth be known as the “Stock
Option and Equity Compensation Plan” (the
“Plan”).
SECTION 1. Purpose . The
purpose of the Plan is to provide a means whereby the Company can
continue to attract, motivate and retain selected employees,
officers, and directors, and to encourage stock ownership in the
Company, by granting incentive stock options, nonqualified stock
options, restricted stock, stock appreciation rights and restricted
stock units (collectively “Awards”) with respect to the
Common Stock of the Company (as defined in Section 3), so that
such selected individuals will more closely identify their
interests with those of the Company and its
shareholders.
SECTION 2. Administration .
This Plan shall be administered by the board of directors of the
Company (the “Board”) or, in the event the Board shall
appoint or authorize a committee to administer this Plan, by such
committee, consisting of at least three Board members, each of whom
shall be a “non-employee director” within the meaning
of Rule 16b-3 promulgated under the Securities Exchange Act of
1934, as amended, and, if the Company is a “publicly held
corporation” within the meaning of Code Section 162(m),
an “outside director” within the meaning of Code
Section 162(m). The administrator of this Plan shall
hereinafter be referred to as the “Plan
Administrator.”
2.1 Procedures . The Board
may designate one of the members of the Plan Administrator as
chairperson. The Plan Administrator may hold meetings at such times
and places as it shall determine. The acts of a majority of the
members of the Plan Administrator present at meetings at which a
quorum exists, or acts reduced to and approved in writing by all
Plan Administrator members, shall be valid acts of the Plan
Administrator.
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2.2 Responsibilities . Except
for the terms and conditions explicitly required by this Plan, the
Plan Administrator shall have the authority, in its discretion, to
determine all matters relating to Awards, including selection of
the individuals to be granted an Award, the type of Award to be
granted, the number of shares subject to the Award, the exercise
price or other consideration required to be paid, if any, upon
exercise of the Award, and all other terms and conditions of the
Award. Grants under this Plan to either the same individual or to
different individuals need not be identical in any respect, even
when made at the same time. The interpretation and construction by
the Plan Administrator of any terms or provisions of this Plan or
any Awards, or of any rule or regulation promulgated in connection
with this Plan, shall be conclusive and binding on all interested
parties; provided, however, that in the case of incentive stock
options, such interpretation and construction must be consistent
with the requirements of Cod Section 422, as amended, and the
regulations thereunder.
2.3 Section 16(b) Compliance
and Bifurcation of Plan . It is the intention of the Company
that this Plan and Awards comply in all respects with Rule 16b-3
under the Exchange Act of 1934. If any Plan provision is later
found to be not in compliance with such rule, the provision shall
be deemed null and void. In all events this Plan shall be construed
in favor of its meeting the requirements of Rule 16b-3.
Notwithstanding anything in this Plan to the contrary, the Board,
in its absolute discretion, may bifurcate this Plan so as to
restrict, limit or condition the use of any provision of this Plan
to participants who are officers and directors subject to
Section 16(b) of the Exchange Act of 1934 without so
restricting, limiting or conditioning other Plan
participants.
SECTION 3. Stock Subject to This
Plan . The stock subject to this Plan shall be the
Company’s Common Stock (the “Common Stock”),
presently authorized but unissued or now held or subsequently
acquired by the Company as treasury shares. Subject to adjustment
as provided in Section 12 of this Plan, the maximum aggregate
number of shares that may be issued under, or made subject to,
Awards shall not exceed 360,000 shares of Common Stock, as
constituted on the effective date of this Plan. (Such number
includes 220,000 shares that are subject to Awards under the
EvergreenBancorp, Inc. 2000 Stock Option Plan on the date the Plan
is adopted that subsequently become available because the Awards
are forfeited or cancelled for any reason whatsoever.) Shares of
Common Stock that are or were made subject to Awards of any type
shall be counted against such number, unless and until the Award
recipient has forfeited rights in such Awards by failing to satisfy
any condition to vesting. The aggregate number of shares of Common
Stock that may be issued under incentive stock options shall equal
the maximum number of shares of Common Stock that may be subject to
Awards, as described in the foregoing provisions of this
Section 3, reduced by the number of shares of Common Stock
that have been made subject to other types of Awards. If any shares
of Common Stock subject to an Award are not issued (for example,
because the Award is forfeited or cancelled, or the Award is
settled in cash, or a portion of the Award is used to satisfy
applicable tax withholding obligations), then such shares shall
again be available to be made subject to Awards.
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SECTION 4. Eligibility . All
employees, officers, and directors of the Company or a related
corporation, and independent contractors who perform services for
the Company or a related corporation, are eligible to be selected
by the Plan Administrator to be granted Awards; provided, however,
that only an employee of the Company or a related corporation may
be selected to be granted an incentive stock option.
SECTION 5. Terms and Conditions
of Awards . Awards shall be evidenced by written agreements
that shall contain such terms, conditions, limitations and
restrictions as the Plan Administrator shall deem advisable and
that are not inconsistent with this Plan (“Award
Agreement”). Subject to Sections 6, 7, 8, 9 and 10, Awards
shall include or incorporate by reference the following terms and
conditions:
5.1 Number of Shares . The
maximum number of shares that may be subject to an Award shall be
that number established by the Plan Administrator.
5.2 Price of Shares . The
price per share, if any, that must be paid to purchase shares of
Common Stock under an Award shall the price established by the Plan
Administrator.
5.3 Vesting . The Plan
Administrator may impose any terms and conditions to the vesting of
an Award that it determines to be appropriate, including requiring
the Award recipient to continue to provide services to the Company
or a related corporation for a specified period of time or to meet
performance goals established by the Plan Administrator. Such terms
and conditions shall be set forth in the Award Agreement. The term
“vest” shall mean, in the case of an option, that the
option is exercisable and, if exercised, entitles the holder
thereof to purchase shares of Common Stock in accordance with the
terms of the Plan and the related Award Agreement; in the case of
restricted stock, that the restricted stock is free of any
obligation to forfeit or retransfer the same to the Company; and in
the case of a restricted stock unit or a stock appreciation right,
that the restricted stock unit or stock appreciation right is
exercisable and, if exercised, entitles the holder thereof to
receive payments in accordance with the terms of the Plan and the
related Award Agreement.
5.4 Exercise . Subject to any
vesting requirements imposed by an Award Agreement and to any
holding period required by applicable law, each Award may be
exercised in whole or in part; provided, however, that only whole
shares will be issued pursuant to the exercise of an Award. An
Award shall be exercised by delivering to the Company a notice of
the number of shares with respect to which the Award is exercised,
together with payment of the exercise price, if any.
5.5 Payment of Exercise Price
. Payment of the exercise price, if any, for shares acquired
pursuant to an Award shall be made in full at the time the notice
of exercise of the Award is delivered to the Company and shall be
in cash or by certified or cashier’s check or personal check
(unless at the time of exercise the Plan Administrator in a
particular case determines not to accept a personal check) for the
Common Stock being purchased. In addition, the Plan Administrator
may determine that other forms or methods of payment will be
permitted (including shares of Common Stock and installment
payments on such terms and over such period as the Plan
Administrator may determine in its discretion).
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5.6 Withholding Tax
Requirement . The Company or any related corporation shall have
the right to withhold or cause to be withheld from any form of
compensation or other amount due to an Award recipient the amount
of taxes required under applicable law to be so withheld or to be
otherwise deducted and paid with respect to an Award. In its
discretion, the Company may require an Award recipient to reimburse
the Company or the related corporation for any such taxes required
to be withheld and may withhold any distribution in whole or in
part until the Company or the related corporation is so reimbursed.
In lieu of such withholding or reimbursement, the Company or
related corporation shall have the right to retain and withhold a
number of shares that are otherwise required to be issued under an
Award and that has a market value not less than the amount of such
taxes required to be withheld and to cancel (in whole or in part)
the shares so retained and withheld.
5.7 Nontransferability of
Awards . Awards and the rights and privileges conferred by this
Plan may not be transferred, assigned, pledged or hypothecated in
any manner (whether by operation of law or otherwise) other than by
will or by applicable laws of descent and distribution; provided,
however, that shares of restricted stock may be transferred,
assigned, pledged or hypothecated after and as such shares vest.
Awards shall not be subject to execution, attachment or similar
process. Any attempt to transfer, assign, pledge, hypothecate or
otherwise dispose of any Award or of any right or privilege
conferred by this Plan, contrary to the Code or to the provisions
of this Plan, or the sale or levy, or execution, attachment or
similar process upon an Award or any right or privilege conferred
by this Plan, shall be null and void. Notwithstanding the
foregoing, an Award recipient may designate during his or her
lifetime a person who can exercise, subject to the terms of the
Plan, the Award after his or her death by giving written notice of
such designation to the Plan Administrator. The Award recipient may
change the designation from time to time by giving written notice
to the Plan Administrator revoking any earlier designation and
making a new designation.
5.8 Termination of
Relationship .
5.8.1 Unvested Awards . If an
Award recipient ceases to perform services for the Company or a
related corporation as an employee, director or independent
contractor for any reason whatsoever, the Award recipient shall
forfeit all rights in, to and under all Awards that have not vested
prior thereto. Such forfeiture shall occur without the need for
further action by any person.
5.8.2 Vested Awards - Termination
Other Than Termination For Cause, Death or Disability . If an
Award recipient ceases to perform services for the Company or a
related corporation as an employee, director or independent
contractor for any reason other than his or her termination for
cause, death or disability, and unless by its terms the Award
sooner terminates or expires, then the Award recipient may
exercise, for a three (3) month period after such cessation,
the portion of any Award held by the Award recipient that is vested
at the time of cessation. At the end of the three (3) month
period the Award shall terminate and may no longer be exercised,
unless this provision is waived in the Award Agreement or by the
Plan Administrator. In the case of an incentive stock option, if an
Award recipient changes from being an employee of the Company or a
related corporation to being another type of service provider to
the Company or related corporation (for example, an independent
contractor), then the incentive stock option shall be treated as a
nonqualified stock option at the end of the three (3) month period,
unless before such time it is exercised or it terminates or expires
in accordance with its terms. The Plan Administrator shall have
sole discretion in a particular circumstance to extend the exercise
period beyond that specified above.
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5.8.3 Vested Awards - Termination
For Cause . If an Award recipient ceases to perform services
for the Company or a related corporation as an employee, director
or independent contractor because of his or her termination for
cause, then any Award held by him or her that is vested at the time
of cessation shall automatically terminate and may no longer be
exercised as of the first discovery by the Company of any reason
for termination for cause. “Termination for cause”
shall mean dismissal for gross negligence, willful material
misconduct or failure to discharge duties, conviction or confession
of a crime punishable by law (except minor violations, as
determined by the Plan Administrator), the performance of an
illegal act involving moral turpitude while purporting to act on
the Company’s behalf, or engaging in activities directly in
competition or antithetical to the best interests of the Company.
If an Award recipient is suspended pending an investigation of
whether or not the Award recipient shall be terminated for cause,
all Award recipient’s rights under any Award shall likewise
be suspended during the period of investigation.
5.8.4 Vested Awards –
Termination Because of Death . If an Award recipient ceases to
perform services for the Company or a related corporation as an
employee, director or independent contractor because of his or her
death, or if he or she dies within three (3) months after
ceasing to perform such services (other than for cause or because
of death or disability) or within twelve (12) months after
ceasing to perform such services because of disability, then any
Award held by the Award recipient that is vested at the time of
such cessation, to the extent that the Award recipient would have
been entitled to exercise such Award immediately before death, may
be exercised within one year after his or her death by the personal
representative of his or her estate or by the person or persons to
whom the Award recipient’s rights under the Award shall pass
by will or by the applicable laws of descent and
distribution.
5.8.5 Vested Awards - Termination
Because of Disability . If an Award recipient ceases to perform
services for the Company or a related corporation as an employee,
director or independent contractor because of his or her
disability, then any Award held by him or her that is vested at the
time of such cessation shall not terminate (or, in the case of an
incentive stock option, cease to be treated as an incentive stock
option) until the end of the 12-month period following such
cessation (unless by its terms it sooner terminates and expires).
As used in this Plan, the term “disability” means that
the individual is unable to engage in any substantial gainful
activity by reason of any medically determinable physical or mental
impairment that can be expected to result in death or that has
lasted or can be expected to last for a continuous period of not
less than twelve (12) months. The determination of whether an
individual suffers a disability shall be determined by the Company
and two independent physicians, and after reasonable accommodation.
Disability shall be deemed to have occurred on the first day after
the Company and the two independent physicians have furnished their
opinion of disabi
