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Exhibit 4.12
NATIONAL COMMERCE BANCORPORATION
1994 STOCK PLAN
AS AMENDED AND RESTATED
EFFECTIVE AS OF NOVEMBER 1, 1996
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S>
<C>
Section 1. BACKGROUND AND PURPOSE
........................
1
Section 2. DEFINITIONS
...................................
1
2.1 Bank
Director ..........................
1
2.2 Board
..................................
2
2.3 Change
in Control ......................
2
2.4 Code
...................................
2
2.5
Committee ..............................
2
2.6
Director ...............................
3
2.7 Fair
Market Value ......................
3
2.8
Insider ................................
3
2.9 ISO
....................................
3
2.10 Key
Employee ...........................
4
2.11 NCBC
...................................
4
2.12 NQO
....................................
4
2.13 Option
.................................
4
2.14 Option
Agreement .......................
4
2.15 Option
Price ...........................
4
2.16 Parent
Corporation .....................
4
2.17 Plan
...................................
4
2.18 Restricted
Stock .......................
4
2.19 Restricted
Stock Agreement .............
4
2.20 Rule 16b-3
.............................
5
2.21 Stock
..................................
5
2.22 Subsidiary
.............................
5
2.23 Surrendered
Shares .....................
5
2.24 Ten Percent
Shareholder ................
5
Section 3. SHARES RESERVED UNDER PLAN
....................
5
Section 4. EFFECTIVE DATE
................................
6
Section 5. COMMITTEE
.....................................
6
Section 6. ELIGIBILITY
...................................
7
Section 7. OPTIONS
.......................................
7
7.1
Committee Action .......................
7
7.2
$100,000 Limit .........................
8
7.3 Share
NCBC Program .....................
8
Section 8. OPTION PRICE
..................................
8
Section 9. EXERCISE PERIOD
...............................
9
Section 10. NONTRANSFERABILITY
............................ 10
Section 11. SURRENDER OF OPTIONS
.......................... 10
11.1 General
Rule ........................... 11
11.2 Procedure
.............................. 11
11.3 Payment
................................ 11
11.4
Restrictions ........................... 11
Section 12. RESTRICTED STOCK
.............................. 12
12.1 Committee
Action ....................... 12
12.2 Effective
Date ......................... 12
12.3
Conditions
............................. 12
12.4 Dividends
and Voting Rights ............ 13
12.5
Satisfaction of Forfeiture Conditions
Provision for Income and Excise Taxes .. 14
Section 13. STOCK FOR ATTENDANCE AT
MEETINGS............... 15
Section 14. SECURITIES REGISTRATION
....................... 15
Section 15. LIFE OF PLAN
.................................. 16
Section 16. ADJUSTMENT
.................................... 17
Section 17. SALE, MERGER OR CHANGE IN
CONTROL.............. 18
Section 18. AMENDMENT OR TERMINATION
...................... 19
Section 19. MISCELLANEOUS
................................. 19
19.1 Shareholder
Rights ..................... 19
19.2 No Contract
of Employment .............. 20
19.3 Withholding
............................ 20
19.4
Construction ........................... 20
19.5 Other
Conditions ....................... 21
</TABLE>
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(S) 1.
BACKGROUND AND PURPOSE
The primary purpose of this
Plan is to promote the interest of NCBC through
grants to Key Employees of Options to
purchase Stock and grants to Key Employees
of Restricted Stock and the payment of
certain compensation to Directors and
Bank Directors in Stock (instead of in
cash) in order (1) to attract Key
Employees, Directors and Bank Directors,
(2) to provide an additional incentive
to each Key Employee, Director and Bank
Director to work to increase the value
of Stock and (3) to provide each Key
Employee, Director and Bank Director with a
stake in the future of NCBC which
corresponds to the stake of each of NCBC's
stockholders.
(S) 2.
DEFINITIONS
Each term set forth in this
(S) 2 shall have the meaning set forth opposite
such term for purposes of this Plan and,
for purposes of such definitions, the
singular shall include the plural and the
plural shall include the singular.
2.1 Bank Director--means an
individual who is a member of the Board of
Directors of National Bank of Commerce (or
any successor to such bank),
Nashville Bank of Commerce (or any
successor to such bank), NBC Knoxville Bank
(or any successor to such bank), NBC Bank,
F.S.B. (or any successor to such
bank) or a member of the Board of Directors
of any other bank Subsidiary of NCBC
or affiliate (as such term is defined in
Rule 405 of the Securities Act of 1933,
as amended) of NCBC which the Board
designates as a Board of Directors eligible
to participate in this Plan and who is not
an employee of NCBC or any Subsidiary
or affiliate (as such term is defined in
Rule 405 of the Securities Act of 1933,
as amended) of NCBC.
2.2 Board--means the Board
of Directors of NCBC.
2.3 Change in Control--means
(1) the acquisition of the power to direct, or
cause the direction of, the management and
policies of NCBC by a person (not
previously possessing such power), acting
alone or in conjunction with others,
whether through the ownership of Stock, by
contract or otherwise, or (2) the
acquisition, directly or indirectly, of the
power to vote 20% or more of the
outstanding Stock by any person or by two
or more persons acting together,
except an acquisition from NCBC or by NCBC,
NCBC's management or a NCBC
sponsored employee benefit plan, where (3)
the term "person" means a natural
person, corporation, partnership, joint
venture, trust, government or
instrumentality of a government and (4)
customary agreements with or between
underwriters and selling group members with
respect to a bona fide public
offering of Stock shall be disregarded for
purposes of this definition.
2.4 Code--means the Internal
Revenue Code of 1986, as amended.
2.5 Committee--means the
Stock Option and Management Compensation Committee
of the Board or, if the Stock Option and
Management Compensation Committee at
any time has less than 3 members or has a
member who (in NCBC's judgment) fails
to come within the definition of a
"non-employee director" under Rule 16b-3 or
(in NCBC's judgment) fails to come within
the definition of an "outside
director" under Code (S) 162(m), a
committee which shall have at least 3
members, each of
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whom shall be appointed by and shall serve
at the pleasure of the Board and
shall come within (in NCBC's judgment) the
definition of a "non-employee
director" under Rule 16b-3 and within (in
NCBC's judgment) the definition of an
"outside director" under Code (S)
162(m).
2.6 Director--means a member
of the Board who is not an employee of NCBC or
any Subsidiary or affiliate (as such term
is defined in Rule 405 of the
Securities Act of 1933, as amended) of
NCBC.
2.7 Fair Market Value--means
(1) the midpoint between the closing bid and
asked prices as reported by the Memphis,
Tennessee, Commercial Appeal or, if the
Commercial Appeal no longer reports such
bid and asked prices, (2) such bid and
ask prices as reported by a newspaper or
trade journal or as quoted on a stock
price quotation system selected by the
Committee or, if no such prices are
available on such date, (3) such bid and
ask prices as so reported or so quoted
in accordance with (S) 2.7(1) or (S) 2.7(2)
for the immediately preceding
business day, or, if no newspaper or trade
journal reports such bid and ask
prices or if no such price quotations are
available on a stock price quotation
system, (4) the price which the Committee
acting in good faith determines
through any reasonable valuation method
that a share of Stock might change hands
between a willing buyer and a willing
seller, neither being under any compulsion
to buy or to sell and both having
reasonable knowledge of the relevant facts.
2.8 Insider--means any
individual who is subject to Section 16(a) of the
Securities Exchange Act of 1934, as
amended.
2.9 ISO--means an option
granted under this Plan to purchase Stock which is
intended to satisfy the requirements of (S)
422 of the Code.
2.10 Key Employee--means a
full time, salaried employee of NCBC or any
Subsidiary or any affiliate of NCBC
designated by the Committee who, in the
judgment of the Committee acting in its
absolute discretion, is key directly or
indirectly to the success of NCBC.
2.11 NCBC--means National
Commerce Bancorporation, a Tennessee corporation,
and any successor to such corporation.
2.12 NQO--means an option
granted under this Plan to purchase Stock which is
intended to fail to satisfy the
requirements of (S) 422 of the Code.
2.13 Option--means an ISO or
a NQO.
2.14 Option Agreement--means
the written agreement which sets forth the terms
of an Option granted to a Key Employee
under (S) 7 of this Plan.
2.15 Option Price--means the
price which shall be paid to purchase one share
of Stock upon the exercise of an Option
granted under this Plan.
2.16 Parent
Corporation--means any corporation which is a parent of NCBC
within the meaning of (S) 424(e) of the
Code.
2.17 Plan--means this NCBC
1994 Stock Plan, as amended and restated effective
as of November 1, 1996 and thereafter
amended from time to time, or, where
appropriate, this NCBC 1994 Stock Plan as
in effect before November 1, 1996.
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2.18 Restricted Stock--means
Stock granted to a Key Employee under (S) 12 of
this Plan.
2.19 Restricted Stock
Agreement--means the written agreement which sets forth
the terms of a Restricted Stock grant to a
Key Employee under (S) 12 of this
Plan.
2.20 Rule 16b-3--means Rule
16b-3 to Section 16(b) of the Securities Exchange
Act of 1934, as amended, as in effect for
any relevant period, or any successor
to such rule.
2.21 Stock--means $2.00 par
value common stock of NCBC.
2.22 Subsidiary--means a
corporation which is a subsidiary corporation
(within the meaning of (S) 424(f) of the
Code) of NCBC.
2.23 Surrendered
Shares--means the shares of Stock described in (S) 11 which
(in lieu of being purchased) are
surrendered for cash or Stock, or for a
combination of cash and Stock, in
accordance with (S) 11.
2.24 Ten Percent
Shareholder--means a person who owns (after taking into
account the attribution rules of (S) 424(d)
of the Code) more than ten percent
of the total combined voting power of all
classes of stock of either NCBC, a
Subsidiary or a Parent Corporation.
(S) 3.
SHARES RESERVED UNDER PLAN
There shall be 1,000,000
shares of Stock reserved for use under this Plan
plus the shares which remain available as
of October 31, 1996 from the 1,050,000
shares originally reserved under this Plan.
All such shares of Stock shall be
reserved to the extent that NCBC deems
appropriate from authorized but unissued
shares of Stock and from shares of Stock
which have been reacquired by NCBC.
Furthermore, any shares of Stock subject to
an Option which remain unissued
after the cancellation, expiration or
exchange of such Option and any Restricted
Shares which are forfeited thereafter shall
again become available for use under
this Plan, but any Surrendered Shares which
remain unissued after the surrender
of an Option under (S) 11 and any shares of
Stock used to satisfy a withholding
obligation under (S) 19.3 shall not again
become available for use under this
Plan.
(S) 4.
EFFECTIVE DATE
The effective date of this
amended and restated Plan shall be November 1,
1996, provided the shareholders of NCBC
(acting at a duly called meeting of such
shareholders) approve such adoption within
twelve months of such date and such
approval satisfies the requirements for
shareholder approval under (S) 422(b)(1)
of the Code. Any Restricted Stock granted
under this Plan from the additional
1,000,000 shares of Stock reserved as of
November 1, 1996 automatically shall be
granted subject to such approval and,
further, any Option granted under this
Plan from the additional 1,000,000 shares
of Stock reserved as of November 1,
1996 shall be granted subject to such
approval.
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(S) 5.
COMMITTEE
This Plan shall be
administered by the Committee. The Committee acting in its
absolute discretion shall exercise such
powers and take such action as expressly
called for under this Plan and, further,
the Committee shall have the power to
interpret this Plan and (subject to (S) 16,
(S) 17 and (S) 18 and Rule 16b-3) to
take such other action in the
administration and operation of this Plan as the
Committee deems equitable under the
circumstances, which action shall be binding
on NCBC, on each affected Key Employee,
Director or Bank Director and on each
other person directly or indirectly
affected by such action.
(S) 6.
ELIGIBILITY
Eligibility for the grant of
NQOs shall be limited to Key Employees. Only Key
Employees who are employed by NCBC or a
Subsidiary shall be eligible for the
grant of ISOs, and only Key Employees shall
be eligible for the grant of
Restricted Stock under this Plan.
(S)
7.
OPTIONS
7.1 Committee Action. The
Committee acting in its absolute discretion shall
have the right to grant Options to Key
Employees under this Plan from time to
time to purchase shares of Stock; provided,
however, that (1) no grants of ISOs
shall be made to Key Employees who are not
employed by NCBC or a Subsidiary and
(2) the number of shares of Stock subject
to Options granted to a Key Employee
during any calendar year shall not exceed
60,000 shares each calendar year
unless the Key Employee is NCBC's Chief
Executive Officer in which event such
number shall not exceed 100,000 shares each
calendar year. Each grant of an
Option to a Key Employee shall be evidenced
by an Option Agreement, and each
Option Agreement shall set forth whether
the Option is an ISO or a NQO and shall
set forth such other terms and conditions
of such grant as the Committee acting
in its absolute discretion deems consistent
with the terms of this Plan;
however, if the Committee grants an ISO and
a NQO to a Key Employee on the same
date, the right of the Key Employee to
exercise or surrender one such Option
shall not be conditioned on his or her
failure to exercise or surrender the
other such Option. The Committee shall have
the right to grant a NQO and
Restricted Stock to a Key Employee at the
same time and to condition the
exercise of the NQO on the forfeiture of
the Restricted Stock grant.
7.2 $100,000 Limit. No
Option shall be treated as an ISO to the extent that
the aggregate Fair Market Value of Stock
(determined as of the date such Option
is granted) which first become exercisable
in any calendar year exceeds
$100,000, and any such Option to the extent
of such excess shall be treated as
an NQO. The Fair Market Value of Stock
subject to any other option (determined
as the date such option was granted) which
(1) satisfies the requirements of (S)
422 of the Code and (2) is granted to a Key
Employee under a plan maintained by
NCBC, a Subsidiary or a Parent Corporation
shall be treated (for purposes of
this $100,000 limitation) as if granted
under this Plan. The Committee shall
interpret and administer the limitation set
forth in this (S) 7.2 in accordance
with (S) 422(d) of the Code.
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7.3 Share NCBC Program. The
Committee as part of this Plan shall continue to
maintain a program under which the
Committee shall have the right (where the
Committee deems appropriate) to condition
the grant of an Option to a Key
Employee in whole or in part on the
purchase of Stock by such Key Employee, and
the Committee shall establish such rules
and procedures for the purchase of
Stock and the related grant of any Option
under such program as the Committee
deems appropriate under the circumstances;
provided, however, (1) all Stock
purchases under such program shall be made
in the open market and (2) the
Committee shall grant any related Option at
an Option Price equal to the
purchase price paid by a Key Employee in
purchasing such Stock in the open
market.
(S) 8.
OPTION PRICE
The Option Price for each
share of Stock subject to an Option which is
granted to a Key Employee shall (subject to
(S) 7.3) be no less than the Fair
Market Value of a share of Stock on the
date the Option is granted; provided,
however, if the Option is an ISO granted to
a Key Employee who is a Ten Percent
Shareholder, the Option Price for each
share of Stock subject to such ISO shall
be no less than 110% of the Fair Market
Value of a share of Stock on the date
such ISO is granted. The Option Price shall
be payable in full upon the exercise
of any Option, and at the discretion of the
Committee an Option Agreement can
provide for the payment of the Option Price
either in cash, by check or in Stock
which the Key Employee has held for at
least 90 days and which is otherwise
acceptable to the Committee or in any
combination of cash, check and such Stock.
Any payment made in Stock shall be treated
as equal to the Fair Market Value of
such Stock on the date the properly
endorsed certificate for such Stock is
delivered to the Committee or its
delegate.
(S) 9.
EXERCISE PERIOD
Each Option granted under
this Plan to a Key Employee shall be exercisable in
whole or in part at such time or times as
set forth in the related Option
Agreement, but no Option Agreement shall
make an Option granted to a Key
Employee exercisable before the end of the
six consecutive month period
beginning on the date as of which the
Option is granted or on or after the
earlier of
(1) the date such Option is
exercised in full, or
(2) the date which is the
fifth anniversary of the date the Option is
granted,
if the Option is an ISO and the Key Employee is a Ten Percent
Shareholder on the date the Option is granted, or
(3) the date which is the
tenth anniversary of the date the Option is
granted,
if the Option is (a) an NQO or (b) an ISO which is granted to a
Key
Employee who is not a Ten Percent Shareholder on the date the
Option
is
granted.
An Option Agreement may provide for the
exercise of an Option after the
employment of a Key Employee has terminated
for any reason whatsoever, including
death or disability.
(S) 10.
NONTRANSFERABILITY
Neither an Option granted
under this Plan nor any related s
