EXHIBIT 10.1
FIRST CHARTER CORPORATION 2000
OMNIBUS STOCK OPTION AND AWARD PLAN
ARTICLE I -- PREAMBLE
1.1. The First Charter Corporation
2000 Omnibus Stock Option and Award Plan is intended to secure for
the Corporation, its Subsidiaries and its shareholders the benefits
arising from ownership of the Corporation's Common Stock by the
employees of the Corporation and its Subsidiaries and by the
directors of the Corporation, all of whom are and will be
responsible for the Corporation's future growth. The Plan is
designed to (i) help attract and retain for the Corporation and its
Subsidiaries personnel of superior ability for positions of
exceptional responsibility, (ii) closely associate the interest of
Participants with the shareholders by reinforcing the relationship
between Participants' rewards and shareholder gains, (iii) provide
Eligible Persons with an equity interest in the Corporation, and
(iv) to reward employees and directors for past services and
motivate such individuals through added incentives to further
contribute to the success of the Corporation. With respect to
persons subject to Section 16 of the Act, transactions under this
Plan are intended to satisfy the requirements of Rule 16b-3 of the
Act.
1.2. Awards under the Plan may be
made to Eligible Persons in the form of (i) Incentive Stock Options
(to Eligible Employees only); (ii) Nonqualified Stock Options;
(iii) Stock Appreciation Rights; (iv) Restricted Stock; (v) Stock
Awards; (vi) Performance Shares; or (vii) any combination of the
foregoing.
1.3. The Plan shall be effective
April 19, 2000 (the "Effective Date"), subject to approval by the
shareholders of the Corporation to the extent necessary to satisfy
the requirements of the Code, the New York Stock Exchange, Inc., or
other applicable federal or state law.
ARTICLE II -- DEFINITIONS
Definitions . Except where the context otherwise
indicates, the following definitions apply:
2.1. "Act" means the Securities
Exchange Act of 1934, as now in effect or as hereafter amended.
2.2. "Award" means an award granted
to a Participant in accordance with the provisions of the Plan,
including, but not limited to, Stock Options, Stock Appreciation
Rights, Restricted Stock, Stock Awards, Performance Shares, or any
combination of the foregoing.
2.3. "Award Agreement" means the
separate written agreement evidencing each Award granted to a
Participant under the Plan. In the event a Participant fails
to sign or return an
Award Agreement to the Committee or its designee within the lesser
or (i) the time specified by the Committee or (ii) sixty (60) days
from the Grant Date, the Award shall be void and of no affect ab
initio.
2.4. "Board of Directors" means the
Board of Directors of the Corporation.
2.5. "Change of Control" means (i)
the effective date of the adoption of a plan of merger or
consolidation of the Corporation with any other corporation or
association as a result of which the holders of the voting capital
stock of the Corporation as a group would receive less than 50% of
the voting capital stock of the surviving or resulting corporation;
(ii) the effective date of the approval by the Board of Directors
of an agreement providing for the sale or transfer (other than as
security for obligations of the Corporation) of substantially all
the assets of the Corporation; or (iii) in the absence of a prior
expression of approval by the Board of Directors, the acquisition
of more than 20% of the Corporation's voting capital stock by any
person within the meaning of Section 13(d)(3) of the Act, other
than a person, or group including a person, who beneficially owned,
as of the Effective Date, more than 5.0% of the Corporation's
voting capital stock.
2.6. "Code" means the Internal
Revenue Code of 1986, as now in effect or as hereafter
amended. (All citations to sections of the Code are to such
sections as they may from time to time be amended or
renumbered.)
2.7. "Committee" means a committee of
the Board of Directors established for the administration of the
Plan pursuant to Article III and consisting of two or more
Directors. To the extent necessary to comply with Rule 16b-3
under the Act, the Committee shall consist solely of two or more
Non-Employee Directors.
2.8. "Common Stock" means the common
stock of the Corporation to be issued pursuant to the Plan.
2.9. "Corporation" means First
Charter Corporation, a North Carolina corporation, and its
successors and assigns.
2.10. "Director" means a member of the Board of
Directors of the Corporation, or of any Subsidiary.
2.11. "Disability" means the inability of a
Participant to engage in his or her profession by reason of any
medically determinable physical or mental impairment which can be
expected to result in death or which is to last or can be expected
to last for a continuous period of not less than twelve months, as
determined by the Committee in its sole discretion upon
certification thereof by qualified physicians selected by the
Committee after such physician examines the Participant.
2.12. "Effective Date" shall be the date set
forth in Section 1.3 of the Plan.
2.13. "Eligible Employee" means an Eligible
Person who is an employee of the Corporation or any Subsidiary.
2.14. "Eligible Person" means any employee of the
Corporation or any Subsidiary or any Director, as well as any other
person whose participation the Committee determines is in the best
interest of the Corporation, subject to limitations as may be
provided by the Code, the Act or the Committee.
2.15. "ERISA" means the Employee Retirement
Income Security Act of 1974, as now in effect or as hereafter
amended.
2.16. "Fair Market Value" means the average of
the closing bid and asked prices for the Common Stock in the
over-the-counter market as reported by the National Association of
Securities Dealers Automated Quotation ("NASDAQ") System if the
Common Stock is not listed on a national securities exchange or the
NASDAQ National Market System; or the closing price of the Common
Stock if the Common Stock is listed on a national securities
exchange or traded on the NASDAQ National Market System; or the
fair value thereof determined in good faith by the Board of
Directors if the Common Stock is not listed on a national
securities exchange or quoted on the NASDAQ National Market System
or the over-the-counter market.
2.17. "Grant Date" means, as to any Award, the
latest of:
(a) the date on which the
Committee authorizes the grant of the Award; or
(b) the date the
Participant receiving the Award becomes an employee or a director
of the Corporation or its Subsidiaries, to the extent employment
status is a condition of the grant or a requirement of the Code or
the Act; or
(c) such other date
(later than the dates described in (a) and (b) above) as the
Committee may designate and as set forth in the Participant's Award
Agreement.
2.18. "Immediate Family" means any child,
stepchild, grandchild, parent, stepparent, grandparent, spouse,
sibling, mother-in-law, father-in-law, son-in-law, daughter-in-law,
brother-in-law or sister-in-law and shall include adoptive
relationships.
2.19. "Incentive Stock Option" means a Stock
Option that meets the requirements of Section 422 of the Code and
is granted under Article IV of the Plan and designated as an
Incentive Stock Option in a Participant's Award Agreement.
2.20. "Non-Employee Director" shall have the
meaning set forth in Rule 16b-3 under the Act.
2.21. "Nonqualified Stock Option" means a Stock
Option that does not meet the requirements of Section 422 of the
Code and is granted under Article V of the Plan, or, even if
meeting the requirements of Section 422 of the Code, is not
intended to be an Incentive Stock Option and is not so designated
in the Participant's Award Agreement.
2.22. "Option Period" means the period during
which a Stock Option may be exercised from time to time, as
established by the Committee and set forth in the Award Agreement
for each Participant who is granted a Stock Option.
2.23. "Option Price" means the purchase price for
a share of Common Stock subject to purchase pursuant to a Stock
Option, as established by the Committee and set forth in the Award
Agreement for each Participant who is granted a Stock Option.
2.24. "Participant" means an Eligible Person to
whom an Award has been granted and who has entered into an Award
Agreement evidencing the Award. Under circumstances where the
provision should be construed to apply to the estate, personal
representative or beneficiary to whom an Award may be transferred
by will or by the laws of descent and distribution, it shall be
deemed to include such person.
2.25. "Performance Objectives" shall have the
meaning set forth in Article X of the Plan.
2.26. "Performance Period" shall have the meaning
set forth in Article X of the Plan.
2.27. "Performance Share" means an Award under
Article X of the Plan of a unit valued by reference to the Common
Stock, the payout of which is subject to achievement of such
Performance Objectives, measured during one or more Performance
Periods, as the Committee, in its sole discretion, shall establish
at the time of such Award and set forth in a Participant's Award
Agreement.
2.28. "Plan" means the First Charter Corporation
2000 Omnibus Stock Option and Award Plan, as amended from time to
time.
2.29. "Restricted Stock" means an Award under
Article VIII of the Plan of shares of Common Stock that are at the
time of the Award subject to restrictions or limitations as to the
Participant's ability to sell, transfer, pledge or assign such
shares, which restrictions or limitations may lapse separately or
in combination at such time or times, in installments or otherwise,
as the Committee, in its sole discretion, shall determine at the
time of such Award and set forth in a Participant's Award
Agreement.
2.30. "Restriction Period" means the period
commencing on the Grant Date with respect to such shares of
Restricted Stock and ending on such date as the Committee, in its
sole discretion, shall establish and set forth in a Participant's
Award Agreement.
2.31. "Retirement" means retirement as determined
under procedures established by the Committee or in any Award, as
set forth in a Participant's Award Agreement.
2.32 "Stock Appreciation Right" means an
Award under Article VI of the Plan which provides for an amount
payable in Common Stock and/or cash, as determined by the
Committee, equal to the excess of the Fair Market Value of a share
of Common Stock on the day the Stock Appreciation Right is
exercised over the price at which a Participant could exercise a
related Stock Option to purchase the share of Common Stock.
2.33. "Stock Award" means an Award of shares of
Common Stock under Article IX of the Plan.
2.34. "Stock Option" means an Award under Article
IV or Article V of the Plan of an option to purchase Common
Stock. A Stock Option may be either an Incentive Stock Option
or a Nonqualified Stock Option.
2.35. "Subsidiary" means a subsidiary corporation
of the Corporation as that term is defined in Code section
424(f). "Subsidiaries" means more than one Subsidiary.
2.36. "Termination of Service" means (i) in the
case of an Eligible Employee, the discontinuance of employment of
such Participant with the Corporation or its Subsidiaries for any
reason other than a transfer to another member of the group
consisting of the Corporation and its Subsidiaries and (ii) in the
case of a Director or other Eligible Person who is not an employee
of the Corporation or any Subsidiary, the date such Participant
ceases to serve as a Director or otherwise ceases to provide
valuable service to the Corporation. The determination of
whether a Participant has discontinued service shall be made by the
Committee in its sole discretion. In determining whether a
Termination of Service has occurred, the Committee may, in its sole
discretion, provide that service as a consultant or service with a
business enterprise in which the Corporation has a significant
ownership interest shall be treated as employment with the
Corporation.
ARTICLE III -- ADMINISTRATION
3.1. The Committee shall administer
the Plan. Except as otherwise required by Rule 16b-3 under
the Act, the Committee, in its discretion, may delegate to one or
more of its members such of its powers as it deems
appropriate. The Committee also may limit the power of any
member to the extent necessary to comply with Rule 16b-3 under the
Act or any other law, rule or regulation. The Board of
Directors may serve as the Committee, if by the terms of the Plan
all members of the Board of Directors are otherwise eligible to
serve on the Committee.
3.2. The Committee shall meet at such
times and places as it determines. The Committee shall at all
times operate and be governed, and Committee meetings shall be
conducted and action taken, in accordance with the provisions of
the Corporation's Bylaws or resolutions or policies adopted by the
Board of Directors from time to time regarding the operation of
committees of the Corporation.
3.3. Except as set forth in Section
3.15 regarding grants of Awards by the Board of Directors, the
Committee shall have the exclusive right (i) to construe and
interpret the Plan, (ii) to define the terms used herein, (iii) to
prescribe, amend and rescind rules and regulations relating to the
Plan, (iv) to determine the Eligible Persons to whom Awards shall
be granted, (v) to determine the time or times when Awards shall be
granted, (vi) to determine the price or prices of which Options
shall be granted, (vii) to determine the Option Period and/or
Restriction Period for each Award, (viii) to determine the number
of shares subject to each Award, and the forms, terms and
conditions of each Award, and any amendment thereof, and the
provisions of the related Award Agreement evidencing the
Award, (ix) to determine whether any Option or other Award granted
shall be vested over a period of time and when such Option or Award
shall be fully vested, (x) to determine whether an Option to an
Eligible Employee shall be an Incentive Stock Options, (xii) to
determine whether an Eligible Person has a Disability, and (xiii)
to make
any other determinations necessary or advisable for the
administration of the Plan and to do everything necessary or
appropriate to administer the Plan. The Committee's
determinations under this Section 3.3 need not be uniform and may
be made by the Committee selectively among the persons who receive
or eligible to receive, any Award under the Plan, whether or not
such persons are similarly situated. The records of the
Corporation or Subsidiary as to a Participant's employment (or
other provision of services), termination of employment (or
cessation of the provision of services), leave of absence,
compensation and related information shall be conclusive on all
persons unless determined to be incorrect. All acts,
determinations and decisions of the Committee made or taken
pursuant to the Plan or with respect to any questions arising in
connection with the administration and interpretation of the Plan
or any Award Agreement, including the severability of any and all
of the provisions thereof, shall be conclusive, final and binding
upon all Participants, Eligible Persons and their
beneficiaries.
3.4. The Committee may adopt and
change such rules, regulations and procedures of general
application for the administration of this Plan, as it deems
appropriate.
3.5. Without limiting the provisions
of this Article III, and subject to the provisions of Article XI,
the Committee is authorized to take such action as it determines to
be necessary or advisable, and fair and equitable to Participants
and to the Corporation, with respect to an outstanding Award in the
event of a Change of Control as described in Article XI or other
similar event. Such action may include, but shall not be
limited to, establishing, amending or waiving the form, terms,
conditions and duration of an Award and the related Award
Agreement, so as to provide for earlier, later, extended or
additional times for exercise or payments, differing methods for
calculating payments, alternate forms and amounts of payment, an
accelerated release of restrictions or other modifications.
The Committee may take such actions pursuant to this Section 3.5 by
adopting rules and regulations of general applicability to all
Participants or to certain categories of Participants, by
including, amending or waiving terms and conditions in an Award and
the related Award Agreement, or by taking action with respect to
individual Participants from time to time.
3.6. Subject to the provisions of
Section 3.11, the aggregate number of shares of Common Stock that
may be issued pursuant to Awards under the Plan shall be Three
Million Five Hundred Thousand (3,500,000) shares. Such shares
of Common Stock shall be made available from authorized and
unissued shares of the Corporation.
(a) For all purposes
under the Plan, each Performance Share awarded shall be counted as
one share of Common Stock subject to an Award.
(b) If, for any reason,
any shares of Common Stock (including shares of Common Stock
subject to Performance Shares) that have been awarded or are
subject to issuance or purchase pursuant to Awards outstanding
under the Plan are not delivered or purchased, or are reacquired by
the Corporation, for any reason, including but not limited to a
forfeiture of Restricted Stock or failure to earn Performance
Shares or the termination, expiration or cancellation of a Stock
Option, or any other termination of an Award without payment being
made in the form of shares of Common Stock (whether or not
Restricted Stock), such shares of Common Stock shall not be charged
against the aggregate number of shares of Common Stock available
for Award under the Plan and
shall again be available for Awards under the Plan. In no
event, however, may Common Stock that is surrendered or withheld to
pay the exercise price of a Stock Option or to satisfy tax
withholding requirements be available for future grants under the
Plan.
(c) To the extent a Stock
Appreciation Right granted in connection with a Stock Option is
exercised without payment being made in the form of Common Stock
(whether or not Restricted Stock) the shares of Common Stock which
otherwise would have been issued upon the exercise of the related
Stock Option shall not be charged against the aggregate number of
shares of Common Stock subject to an Award under the Plan, and
shall again be available for Awards under the Plan.
(d) The foregoing
subsections (a) and (b) of this Section 3.6 shall be subject to any
limitations provided by the Code or by Rule 16b-3 under the Act or
by any other applicable law, rule or regulation.
3.7. Each Award granted under the
Plan shall be evidenced by a written Award Agreement, which shall
be subject to and shall incorporate (by reference or otherwise) the
applicable terms and conditions of the Plan and shall include any
other terms and conditions (not inconsistent with the Plan)
required by the Committee.
3.8. The Corporation shall not be
required to issue or deliver any certificates for shares of Common
Stock under the Plan prior to:
(a) any required approval
of the Plan by the shareholders of the Corporation; and
(b) the completion of any
registration or qualification of such shares of Common Stock under
any state or federal law, or the consent or approval of any
governmental regulatory body that the Corporation shall, its sole
discretion, determine to be necessary or desirable as a condition
of, or in connection with, the Award. In such circumstances,
the Award may not be exercised in whole or in part unless such
listing, registration, qualification, consent or approval shall
have been effected or obtained free of any conditions that are not
acceptable to the Corporation.
3.9. The Committee may require any
Participant acquiring shares of Common Stock pursuant to any Award
under the Plan to represent to and agree with the Corporation in
writing that such person is acquiring the shares of Common Stock
for investment purposes and without a view to resale or
distribution thereof. Shares of Common Stock issued and
delivered under the Plan shall also be subject to such
stop-transfer orders and other restrictions as the Committee may
deem advisable under the rules, regulations and other requirements
of the Securities and Exchange Commission, any stock exchange upon
which the Common Stock is then listed and any applicable federal or
state laws, and the Committee may cause a legend or legends to be
placed on the certificate or certificates representing any such
shares to make appropriate reference to any such
restrictions. In making such determination, the Committee may
rely upon an opinion of counsel for the Corporation.
3.10. Except as otherwise expressly provided in
the Plan or in an Award Agreement with respect to an Award, no
Participant shall have any right as a shareholder of the
Corporation
with respect to any shares of Common Stock subject to such
Participant's Award except to the extent that, and until, one or
more certificates representing such shares of Common Stock shall
have been delivered to the Participant. No shares shall be
required to be issued, and no certificates shall be required to be
delivered, under the Plan unless and until all of the terms and
conditions applicable to such Award shall have, in the sole
discretion of the Committee, been satisfied in full and any
restrictions shall have lapsed in full, and unless and until all of
the requirements of law and of all regulatory bodies having
jurisdiction over the offer and sale, or issuance and delivery, of
the shares shall have been fully complied with.
3.11. The total amount of shares with respect to
which Awards may be granted under the Plan and rights of
outstanding Awards (both as to the number of shares subject to the
outstanding Awards and the Option Price(s) or other purchase
price(s) of such shares, as applicable) shall be appropriately
adjusted for any increase or decrease in the number of outstanding
shares of Common Stock of the Corporation resulting from payment of
a stock dividend on the Common Stock, a stock split or subdivision
or combination of shares of the Common Stock, or a reorganization
or reclassification of the Common Stock, or any other change in the
structure of shares of the Common Stock. The Committee in its
sole discretion shall determine the foregoing adjustments and the
manner of application of the foregoing provisions. Any such
adjustment may provide for the elimination of any fractional shares
that might otherwise become subject to an Award. All
adjustments made as the result of the foregoing in respect of each
Incentive Stock Option shall be made so that such Incentive Stock
Option shall continue to be an Incentive Stock Option, as defined
in Section 422 of the Code.
3.12. The members of the Committee shall be
entitled to indemnification by the Corporation in the manner and to
the extent set forth in the Corporation's Bylaws or as otherwise
provided from time to time regarding indemnification of
Directors.
3.13. The Committee shall be authorized to make
adjustments in any performance based criterium or in the other
terms and conditions of outstanding Awards in recognition of
unusual or nonrecurring events affecting the Corporation (or any
Subsidiary, if applicable) or its financial statements or changes
in applicable laws, regulations or accounting principles. The
Committee may correct any defect, supply any omission or reconcile
any inconsistency in the Plan or any Award Agreement in the manner
and to the extent it shall deem necessary or desirable to reflect
any such adjustment. In the event the Corporation (or any
Subsidiary, if applicable) shall assume outstanding employee
benefit awards or the right or obligation to make future such
awards in connection with the acquisition of another corporation or
business entity, the Committee may, in its sole discretion, make
such adjustments in the terms of outstanding Awards under the Plan
as it shall deem appropriate.
3.14. Subject to the express provisions of the
Plan, the Committee shall have full power and authority to
determine whether, to what extent and under what circumstances any
outstanding Award shall be terminated, canceled, forfeited or
suspended. Notwithstanding the foregoing or any other
provision of the Plan or an Award Agreement, all Awards to any
Participant that are subject to any restriction or have not been
earned or exercised in full by the Participant shall be terminated
and canceled if the Participant is terminated for cause, as
determined by the Committee in its sole discretion.
3.15. In addition to, and not in limitation of,
the right of the Committee to grant Awards to Eligible Persons
under this Plan, the full Board of Directors may from time to time
grant Awards to Eligible Persons pursuant to the terms and
conditions of this Plan, subject to the requirements of the Code,
Rule 16b-3 under the Act or any other applicable law, rule or
regulation. In connection with any such grants, the Board of
Directors shall have all of the power and authority of the
Committee to determine the Eligible Persons to whom such Awards
shall be granted and the other terms and conditions of such
Awards.
ARTICLE IV -- INCENTIVE STOCK OPTIONS
4.1. The Committee, in its sole
discretion, may from time to time on or after the Effective Date
grant Incentive Stock Options to Eligible Employees, subject to the
provisions of this Article IV and Articles III and VII and subject
to the following conditions:
(a) Incentive Stock
Options shall be granted only to Eligible Employees, each of whom
may be granted one or more of such Incentive Stock Options at such
time or times determined by the Committee; provided, however, that
Incentive Stock Options shall be granted only to an Eligible
Employee who, at the time of the Grant Date, does not own stock
possessing more than ten percent (10%) of the total combined voting
power of all classes of stock of the Corporation.
(b) The Option Price per
share of Common Stock for an Incentive Stock Option shall be set in
the Award Agreement, but shall not be less than one hundred p
