EXHIBIT 10.1
Amended Performance Share
Plan
THIRD AMENDMENT AND RESTATEMENT
OF THE
ALABAMA NATIONAL
BANCORPORATION
PERFORMANCE SHARE
PLAN
1. Purpose . The purpose of the Alabama
National BanCorporation Performance Share Plan (the
“Plan”) is to further the long-term growth in
profitability of Alabama National BanCorporation (the
“Company”) by offering long-term incentives in addition
to current compensation to those key executives who will be largely
responsible for such growth.
2. Certain Definitions .
(a) “Award” means the
award of Performance Shares to a Participant pursuant to the terms
of the Plan.
(b) “Award Period” means
the period of calendar years (but no more than five years) fixed by
the Committee with respect to all Awards with the same Date of
Grant, commencing with each Date of Grant, except that (i) the
Award Period for an Employee whose normal retirement date (as
determined under the Company’s corporate policy covering
retirement of salaried employees) is less than the period otherwise
fixed by the Committee from the applicable Date of Grant shall be
the period beginning with such Date of Grant and ending on the
December 31st immediately preceding such normal retirement date and
(ii) the Award Period for a recently hired Employee may be for such
lesser period as determined by the Committee.
(c) “Committee” means
the committee of the Board of Directors of the Company which shall
administer the Plan in accordance with Section 3.
(d) “Common Stock” means
the common stock, par value $1.00 per share, of the
Company.
(e) “Company” means
Alabama National BanCorporation, a Delaware corporation.
(f) “Date of Grant”
means as of January 1 of any year in which an Award is made, or
such other date as the Committee shall otherwise
determine.
(g) “Employee” means any
person (including any officer) employed by the Company or any
subsidiary of the Company on a full-time salaried basis.
(h) “Fair Market Value”
of the Common Stock means the average of the daily closing prices
for a share of the Common Stock for the twenty (20) trading days
ending on the fifth business day prior to the date of payment of
Performance Shares for an Award Period or an Interim Period, as the
case may be, on the Composite Tape for New York Stock Exchange -
Listed Stocks, or, if the Common Stock is not listed on such
Exchange, on the principal United States securities exchange
registered under the Securities Exchange Act of 1934, as amended
(the “Exchange Act”), on which the Common Stock is
listed, or, if the Common Stock is not listed on any such Exchange,
the average of the daily closing bid quotations with respect to a
share of the Common Stock for such twenty (20) trading days on the
National Association of Securities Dealers, Inc., Automated
Quotations System or any system then in use.
(i) “Interim Period”
means a period of at least one calendar year chosen by the
Committee commencing with any Date of Grant, which period is less
than the Award Period commencing on the Date of Grant.
Page 1 of 6
(j) “Net Income Per
Share” for the Company, or any other corporation, means net
income for the year divided by average common shares outstanding
during the year, computed in accordance with generally accepted
accounting principles as reported in the Company’s Annual
Report to Stockholders or its equivalent.
(k) “Participant” means
an Employee who is selected by the Committee to receive an Award
under the Plan.
(l) “Performance Share”
means the equivalent of one share of Common Stock.
(m) “Return on Average
Equity” for the Company, or any other corporation, for a
period is obtained by dividing (i) Net Income Per Share of Common
Stock for the year, by (ii) average Stockholders’ Equity Per
Share at the beginning of the year and at the end of the year,
computed in accordance with generally accepted accounting
principles as reported in the Company’s Annual Report to
Stockholders or its equivalent.
(n) “Section 162(m)”
means Section 162(m) of the Internal Revenue Code of 1986, as
amended, and any regulations promulgated thereunder.
(o) “Stockholders’
Equity Per Share” for the Company, or any other corporation,
for a particular point in time is obtained by dividing (i)
stockholders’ equity by (ii) outstanding common shares,
computed in accordance with generally accepted accounting
principles as reported in the Company’s Annual Report to
Stockholders or its equivalent.
3. Administration of the Plan . The Plan
shall be administered by a Committee designated by the Board of
Directors, which shall be composed of not less than three members
of the Board of Directors. No member of the Committee shall be
eligible to participate in the Plan while serving as a member of
the Committee. Initially, the Committee shall be the Compensation
Committee. Subject to the provisions of the Plan, the Committee
shall have the authority to select the Employees who are to
participate in the Plan, to determine the Award to be made to each
Employee selected to participate in the Plan, and to determine the
conditions subject to which Awards will become payable under the
Plan.
The Committee shall have full power
to administer and interpret the Plan and to adopt such rules and
regulations consistent with the terms of the Plan as the Committee
deems necessary or advisable in order to carry out the provisions
of the Plan. Except as otherwise provided in the Plan, the
Committee’s interpretation and construction of the Plan and
its determination of any conditions applicable to Performance Share
Awards or the reasons for any terminations of Participants shall be
conclusive and binding on all Participants.
In connection with its determination
as to the payment of Performance Shares, the Committee has full
discretion to adjust Net Income Per Share, Return on Average Equity
or other established measures to recognize special or nonrecurring
situations or circumstances for the Company, or any other
corporation, for any year. The Committee shall also have the
discretion to modify established measures or criteria prior to the
end of an Award Period to recognize special or non-recurring
situations or circumstances. For Awards expressly intended for
compliance with Section 162(m), discretion used by the Committee
pursuant to this paragraph may only be used if permissible under
Section 162(m).
The Plan shall be unfunded. Benefits
under the Plan shall be paid from the general assets of the
Company.
4. Participation . Participants in the
Plan shall be selected by the Committee from those Employees who,
in the estimation of the Committee, have a substantial opportunity
to influence the long-term profitability of the Company.
5. Performance Share Awards .
(a) After appropriate approval of
the Plan, and thereafter from time to time, the Committee shall
select Employees to receive Awards in any year as of the Date of
Grant. Any Employee may be granted more than one Award under the
Plan, but no Employee may be granted, in the aggregate, more than
25% of the Performance Shares which are the subject of this Plan.
Awards of Performance Shares hereunder shall not be made unless any
such Award is in compliance with all applicable laws.
Page 2 of 6
(b) No Participant shall be entitled
to receive any dividends or dividend equivalents on Performance
Shares; with respect to any Performance Shares, no Participant
shall have any voting or any other rights of a Company stockholder;
and no Participant shall have any interest in or right to receive
any shares of Common Stock prior to the time when the Committee
determines the form of payment of Performance Shares pursuant to
Section 6.
(c) Payment of the Award to any
Participant shall be made in accordance with Section 6 and shall be
subject to such conditions for payment as the Committee may
prescribe at the time the Award is made. The Committee may
prescribe different conditions for different Participants. Such
conditions may be expressed in terms of: (i) the growth in Net
Income Per Share during the Award Period, or (ii) Return on Average
Equity in comparison with other banks and bank holding companies
during the Award Period, or (iii) other reasonable bases; provided
that, to the extent the Committee determines that it is necessary
to qualify compensation under Section 162(m), the performance
criteria shall be based on one or more of the criteria listed in
(i) or (ii) above. Any provision of the Plan to the contrary
notwithstanding, Performance Shares that are intended to qualify as
performance-based compensation under Section 162(m) shall be
granted and administered in accordance with the applicable
requirements of Section 162(m) and be subject to such other terms
and conditions as the Committee may impose. Subject to the terms of
the Plan, each of the measures described in (i) or (ii) above may
include or exclude discontinued operations, unusual items,
non-recurring items, and extraordinary items, as determined by the
Company’s auditors, and the effects of changes in accounting
standards. In addition, in the event that the Committee determines
that it is advisable to grant Awards which shall not qualify for
the performance-based exception under Section 162(m), the Committee
may make such grants without satisfying the requirements of Section
162(m).
(d) Each Award shall be made in
writing and shall set forth the terms and conditions set by the
Committee for payment of such Award including, without limitation,
the length of the Award Period and whether there will be an Interim
Period or Periods with respect to the Award and if so, the length
of the Interim Period.
6. Payment of Performance Share Awards
.
(a) Subject to the right of certain
management or highly compensated employees to defer payment of an
Award as discussed in this Section 6(b) below, payment of
Performance Share Awards shall be as follows:
Each Participant granted an Award
shall be entitled to payment of the Award as of the close of the
Award Period applicable to such Award, but only if and after the
Committee has determined that the conditions for payment of the
Award set by the Committee have been satisfied. At the time of
grant of each Award, the Committee shall decide whether there will
be an Interim Period or Periods. If the Committee determines that
there shall be one or more Interim Periods for the Award to
an
