<PAGE> 1
As filed with the Securities and Exchange Commission on March 12, 1998
Registration No. 333-_________
================================================================================
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
--------------------
PRIME BANCSHARES, INC.
(Exact name of registrant as specified in its charter)
TEXAS 76-0088973
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
--------------------
12200 NORTHWEST FREEWAY
HOUSTON, TEXAS 77092
(713) 209-6000
(Address of Principal Executive Offices Including Zip Code)
--------------------
PRIME BANCSHARES, INC. 1997 STOCK INCENTIVE PLAN
1993 INCENTIVE STOCK OPTION PLAN
1984 INCENTIVE STOCK PLAN
(Full title of the Plans)
--------------------
STUART D. SAUNDERS WITH A COPY TO:
GENERAL COUNSEL MARGARET B. SYMONDS
12200 NORTHWEST FREEWAY BRACEWELL & PATTERSON, L.L.P.
HOUSTON, TEXAS 77092 711 LOUISIANA STREET, SUITE 2900
(713) 209-6000 HOUSTON, TEXAS 77002-2781
(Name, address and telephone (713) 223-2900
number of agent for service)
--------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=============================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED PER SHARE(1) PRICE(1) FEE
- -------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 1,564,000 shares $22.25 $34,799,000 $10,266
$0.25 par value
=============================================================================================================
</TABLE>
(1) The proposed maximum offering price per share and the proposed maximum
aggregate offering price are (a) calculated, pursuant to Rule
457(h)(1), by multiplying the number of shares to be registered by the
average of the high and low prices of a share of Common Stock, as
reported on The Nasdaq Stock Market, Inc., on March 5, 1998,
which was $22.25, and (b) provided herein for the sole purpose of
determining the registration fee.
(2) This Registration Statement shall also include any additional shares
of Common Stock issuable pursuant to the antidilution provisions of
the Plan.
================================================================================
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
* The information required by Items 1 and 2 of Part I of Form S-8 is
omitted from this Registration Statement in accordance with the Note
to Part 1 of Form S-8 and Rule 428 promulgated under the Securities
Act of 1933, as amended (the "Securities Act").
<PAGE> 3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by Prime Bancshares, Inc., a Texas
corporation (the "Company"), (Commission File No. 000-23113) with the
Securities and Exchange Commission (the "Commission") are incorporated by
reference into this Registration Statement as of their respective dates:
1. The Company's Prospectus, filed pursuant to Rule
424(b) under the Securities Act, as filed with the Commission on
September 26, 1997;
2. The Company's Quarterly Report on Form 10-Q for the
quarter ended September 30, 1997;
3. The Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1997; and
4. The description of the common stock, par value $.25
per share, contained in the Company's Registration Statement on Form
8-A, dated September 19, 1997.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), after the date of this Registration Statement and prior to the filing of
a post-effective amendment hereto which indicates that all securities offered
have been sold or which deregisters all such securities then remaining unsold,
shall be deemed to be incorporated herein by reference and to be a part hereof
from the date of filing such documents. Any statement contained herein or in
any document incorporated or deemed to be incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this Registration
Statement to the extent that a statement contained in any other subsequently
filed document which also is or is deemed to be incorporated by reference
herein modifies or supersedes such statement. Any such statement so modified
or superseded shall not be deemed to constitute a part of this Registration
Statement, except as so modified or superseded.
Item 6. Indemnification of Directors and Officers.
The Registrant's Amended and Restated Articles of Incorporation (the
"Articles of Incorporation") and Amended and Restated Bylaws ("Bylaws")
require the Registrant to indemnify officers and directors of the Registrant to
the fullest extent permitted by Article 2.02-1 of the Texas Business
Corporation Act ("TBCA") of the State of Texas. Generally, Article 2.02-1 of
the TBCA permits a corporation to indemnify a person who was, is, or is
threatened to be a named defendant or respondent in a proceeding because the
person was or is a director or officer if it is determined that such person (i)
conducted himself in good faith, (ii) reasonably believed (a) in the case of
conduct in his official capacity as a director or officer of the corporation,
that his conduct was in the corporation's best interests, or (b) in the case of
other situations, that his conduct was at least not opposed to the
corporation's best interests, and (iii) in the case of any criminal proceeding,
had no reasonable cause to believe that his conduct was unlawful. In addition,
the TBCA requires a corporation to indemnify a director or officer for any
action that such director or officer is wholly successful in defending on the
merits.
II-1
<PAGE> 4
The Registrant's Articles of Incorporation provide that a director of
the Registrant will not be liable to the corporation for monetary damages for
an act or omission in the director's capacity as a director, except to the
extent not permitted by law. Texas law does not permit exculpation of
liability in the case of (i) a breach of the director's duty of loyalty to the
corporation or its shareholders, (ii) an act or omission not in good faith that
involves intentional misconduct or a knowing violation of the law, (iii) a
transaction from which a director received an improper benefit, whether or not
the benefit resulted from an action taken within the scope of the director's
office, (iv) an act or omission for which the liability of the director is
expressly provided by statute, or (v) an act related to an unlawful stock
repurchase or dividend.
The Registrant may provide liability insurance for each director and
officer for certain losses arising from claims or changes made against them
while acting in their capabilities as directors or officers of the Registrant,
whether or not the Registrant would have the power to indemnify such person
against such liability, as permitted by law.
Item 8. Exhibits.
4.1 Amended and Restated Articles of Incorporation of the Company
(incorporated by reference from Exhibit 3.1 to the Company's
Registration Statement on Form S-1, Registration No. 333-33001).
4.2 Amended and Restated Bylaws of the Company (incorporated by reference
from Exhibit 3.2 to the Company's Registration Statement on Form S-1,
Registration No. 333-33001).
4.3* Prime Bancshares, Inc. 1997 Stock Incentive Plan
4.4* 1993 Incentive Stock Option Plan
4.5* 1984 Incentive Stock Option Plan
5* Opinion and Consent of Bracewell & Patterson, L.L.P. as to the
validity of the Common Stock registered hereunder.
23.1* Consent of Grant Thornton LLP.
23.2* Consent of Bracewell & Patterson, L.L.P. (included in the opinion
filed as Exhibit 5 hereto).
24* Powers of Attorney (included on page II-6).
- -------------
* Filed herewith.
II-2
<PAGE> 5
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made of the securities registered hereby, a post-effective
amendment to this registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the registration
statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in this
registration statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed
in this registration statement or any material change to such
information in this registration statement;
provided, however, that the undertakings set forth in
paragraphs (1)(i) and (1)(ii) above do not apply if the
information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports
filed by the registrant pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective amendment
should be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
(b) That, for the purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant's annual report pursuant
to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that
is incorporated by reference in the registration statement shall be deemed to
be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
II-3
<PAGE> 6
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS
AMENDED, THE REGISTRANT CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE
THAT IT MEETS ALL OF THE REQUIREMENTS FOR FILING ON FORM S-8 AND HAS DULY
CAUSED THIS REGISTRATION STATEMENT OR AMENDMENT TO BE SIGNED ON ITS BEHALF BY
THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF HOUSTON, STATE OF
TEXAS ON THE 12TH DAY OF MARCH, 1998.
PRIME BANCSHARES, INC.
(Registrant)
By: /s/ E.J. Guzzo
--------------------------------
E.J. Guzzo
President
II-4
<PAGE> 7
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and
appoints Fredric M. Saunders and E.J. Guzzo, with full power to each of them to
act without the other, the undersigned's true and lawful attorney-in-fact and
agent, with full power of substitution and resubstitution, for the undersigned
and in the undersigned's name, place and stead, in any and all capacities
(until revoked in writing), to sign this Registration Statement and any and all
amendments (including post-effective amendments) thereto, to file the same,
together with all exhibits thereto and documents in connection therewith, with
the Securities and Exchange Commission, to sign any and all applications,
registration statements, notices and other documents necessary or advisable to
comply with the applicable state securities authorities, granting unto said
attorney-in-fact and agent, or his or their substitute or substitutes, full
power and authority to do and perform each and every act and thing requisite
and necessary to be done in and about the premises in order to effectuate the
same as fully to all intents and purposes as the undersigned might or could do
if personally present, thereby ratifying and confirming all that said
attorneys-in-fact and agents, or his or their substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT OR AMENDMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN
THE CAPACITIES INDICATED AND ON THE 12TH DAY OF MARCH, 1998.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
/s/ Fredric M. Saunders Chairman of the Board
- ---------------------------------- (Principal Executive Officer)
Fredric M. Saunders
/s/ E.J. Guzzo President and Director
- ----------------------------------
E.J. Guzzo
/s/ L. Anderson Creel Treasurer
- ---------------------------------- (Principal Financial Officer and
L. Anderson Creel Principal Accounting Officer)
/s/ David Pasternak Director
- ----------------------------------
David Pasternak
/s/ Stuart D. Saunders Director
- ----------------------------------
Stuart D. Saunders
/s/ James B. Wesley Director
- ----------------------------------
James B. Wesley
/s/ Jerry S. Dominy Director
- ----------------------------------
Jerry S. Dominy
</TABLE>
II-5
<PAGE> 8
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------
<S> <C>
4.1 Amended and Restated Articles of Incorporation of the Company (incorporated by reference from
Exhibit 3.1 to the Company's Registration Statement on Form S-1, Registration No. 333-33001).
4.2 Amended and Restated Bylaws of the Company (incorporated by reference from Exhibit 3.2 to the Company's
Registration Statement on Form S-1, Registration No. 333-33001).
4.3* Prime Bancshares, Inc. 1997 Stock Incentive Plan
4.4* 1993 Incentive Stock Option Plan
4.5* 1984 Incentive Stock Option Plan
5* Opinion and Consent of Bracewell & Patterson, L.L.P. as to the validity of the Common Stock registered
hereunder.
23.1* Consent of Grant Thornton LLP.
23.2* Consent of Bracewell & Patterson, L.L.P. (included in the opinion filed as Exhibit 5 hereto).
24* Powers of Attorney (included on page II-6).
</TABLE>
<PAGE> 1
EXHIBIT 4.3
PRIME BANCSHARES, INC.
1997 STOCK INCENTIVE PLAN
I. PURPOSE
The purpose of the PRIME BANCSHARES, INC. 1997 STOCK INCENTIVE PLAN
(the "Plan") is to provide a means through which PRIME BANCSHARES, INC., a
Texas corporation (the "Company"), and its subsidiaries, may attract able
persons to enter the employ of the Company and to provide a means whereby those
key employees upon whom the responsibilities of the successful administration
and management of the Company rest, and whose present and potential
contributions to the welfare of the Company are of importance, can acquire and
maintain stock ownership, thereby strengthening their concern for the welfare
of the Company and their desire to remain in its employ. A further purpose of
the Plan is to provide such key employees with additional incentive and reward
opportunities designed to enhance the profitable growth of the Company.
Accordingly, the Plan provides for granting Incentive Stock Options, options
which do not constitute Incentive Stock Options, Stock Appreciation Rights,
Restricted Stock Awards, Performance Awards, Phantom Stock Awards, or any
combination of the foregoing, as is best suited to the circumstances of the
particular employee as provided herein.
II. DEFINITIONS
The following definitions shall be applicable throughout the Plan
unless specifically modified by any paragraph:
(a) "Affiliates" means any "parent corporation" of the Company and any
"subsidiary" of the Company within the meaning of Code Sections 424(e) and (f),
respectively.
(b) "Award" means, individually or collectively, any Option, Restricted
Stock Award, Phantom Stock Award, Performance Award or Stock Appreciation
Right.
(c) "Board" means the Board of Directors of the Company.
(d) "Change of Control" means the occurrence of any of the following
events: (i) the Company shall not be the surviving entity in any merger,
consolidation or other reorganization (or survives only as a subsidiary of an
entity other than a previously wholly-owned subsidiary of the Company), (ii)
the Company sells, leases or exchanges all or substantially all of its assets
to any other person or entity (other than a wholly-owned subsidiary of the
Company), (iii) the Company is to be dissolved and liquidated, (iv) any person
or entity, including a "group" as contemplated by
<PAGE> 2
Section 13(d)(3) of the 1934 Act, acquires or gains ownership or control
(including, without limitation, power to vote) of more than 50% of the
outstanding shares of the Company's voting stock (based upon voting power), or
(v) as a result of or in connection with a contested election of directors, the
persons who were directors of the Company before such election shall cease to
constitute a majority of the Board.
(e) "Change of Control Value" shall mean (i) the per share price
offered to stockholders of the Company in any such merger, consolidation,
reorganization, sale of assets or dissolution transaction, (ii) the price per
share offered to stockholders of the Company in any tender offer or exchange
offer whereby a Change of Control takes place, or (iii) if such Change of
Control occurs other than pursuant to a tender or exchange offer, the Fair
Market Value per share of the shares into which Awards are exercisable, as
determined by the Committee, whichever is applicable. In the event that the
consideration offered to stockholders of the Company consists of anything other
than cash, the Committee shall determine the fair cash equivalent of the
portion of the consideration offered which is other than cash.
(f) "Code" means the Internal Revenue Code of 1986, as amended.
Reference in the Plan to any section of the Code shall be deemed to include any
amendments or successor provisions to any section and any regulations under
such section.
(g) "Committee" means the Compensation Committee of the Board which
shall be (i) constituted so as to permit the Plan to comply with Rule 16b-3 and
(ii) constituted solely of "outside directors," within the meaning of section
162(m) of the Code and applicable interpretive authority thereunder.
(h) "Company" means Prime Bancshares, Inc. and any of its Affiliates.
(i) "Director" means an individual elected to the Board by the
stockholders of the Company or by the Board under applicable corporate law who
is serving on the Board on the date the Plan is adopted by the Board or is
elected to the Board after such date.
(j) An "employee" means any person (including an officer or a
Director) in an employment relationship with the Company or any parent or
subsidiary corporation (as defined in section 424 of the Code).
(k) "1934 Act" means the Securities Exchange Act of 1934, as amended.
(l) "Fair Market Value" means, as of any specified date, the mean of
the high and low sales prices of the Stock (i) reported by the any interdealer
quotation system on which the Stock is
-2-
<PAGE> 3
quoted on that date or (ii) if the Stock is listed on a national stock
exchange, reported on the stock exchange composite tape on that date; or, in
either case, if no prices are reported on that date, on the last preceding date
on which such prices of the Stock are so reported. If the Stock is traded over
the counter at the time a determination of its fair market value is required to
be made hereunder, its fair market value shall be deemed to be equal to the
average between the reported high and low or closing bid and asked prices of
Stock on the most recent date on which Stock was publicly traded. In the event
Stock is not publicly traded at the time a determination of its value is
required to be made hereunder, the determination of its fair market value shall
be made by the Committee in such manner as it deems appropriate.
(m) "Holder" means an employee who has been granted an Award.
(n) "Incentive Stock Option" means an incentive stock option within the
meaning of section 422(b) of the Code.
(o) "Nonqualified Stock Option" means an option granted under
Paragraph VII of the Plan to purchase Stock which does not constitute an
Incentive Stock Option.
(p) "Option" means an Award granted under Paragraph VII of the Plan
and includes both Incentive Stock Options to purchase Stock and Nonqualified
Stock Options to purchase Stock.
(q) "Option Agreement" means a written agreement between the Company
and a Holder with respect to an Option.
(r) "Performance Award" means an Award granted under Paragraph X of
the Plan.
(s) "Performance Award Agreement" means a written agreement between
the Company and a Holder with respect to a Performance Award.
(t) "Phantom Stock Award" means an Award granted under Paragraph XI
of the Plan.
(u) "Phantom Stock Award Agreement" means a written agreement between
the Company and a Holder with respect to a Phantom Stock Award.
(v) "Plan" means the Prime Bancshares, Inc. 1997 Stock Incentive Plan,
as amended from time to time.
(w) "Restricted Stock Agreement" means a written agreement between the
Company and a Holder with respect to a Restricted Stock Award.
-3-
<PAGE> 4
(x) "Restricted Stock Award" means an Award granted under Paragraph IX
of the Plan.
(y) "Rule 16b-3" means SEC Rule 16b-3 promulgated under the 1934 Act,
as such may be amended from time to time, and any successor rule, regulation or
statute fulfilling the same or a similar function.
(z) "Spread" means, in the case of a Stock Appreciation Right, an
amount equal to the excess, if any, of the Fair Market Value of a share of
Stock on the date such right is exercised over the exercise price of such Stock
Appreciation Right.
(aa) "Stock" means the common stock, $0.25 par value, of the Company.
(bb) "Stock Appreciation Right" means an Award granted under Paragraph
VIII of the Plan.
(cc) "Stock Appreciation Rights Agreement" means a written agreement
between the Company and a Holder with respect to an Award of Stock Appreciation
Rights.
III. EFFECTIVE DATE AND DURATION OF THE PLAN
The Plan shall be effective upon the date of its adoption by the
Board, provided that the Plan is approved by the stockholders of the Company
within twelve months thereafter. No further Awards may be granted under the
Plan after the expiration of ten years from the date of its adoption by the
Board. The Plan shall remain in effect until all Awards granted under the Plan
have been satisfied or expired.
IV. ADMINISTRATION
(a) Committee. The Plan shall be administered by the Committee.
(b) Powers. Subject to the provisions of the Plan, the Committee shall
have sole authority, in its discretion, to determine which employees shall
receive an Award, the time or times when such Award shall be made, whether an
Incentive Stock Option, Nonqualified Option or Stock Appreciation Right shall
be granted, the number of shares of Stock which may be issued under each
Option, Stock Appreciation Right or Restricted Stock Award, and the value of
each Performance Award and Phantom Stock Award. In making such determinations
the Committee may take into account the nature of the services rendered by the
respective employees, their present and potential contributions to the
Company's success and such other factors as the Committee in its discretion
shall deem relevant.
-4-
<PAGE> 5
(c) Additional Powers. The Committee shall have such additional powers
as are delegated to it by the other provisions of the Plan. Subject to the
express provisions of the Plan, the Committee is authorized to construe the
Plan and the respective agreements executed thereunder, to prescribe such rules
and regulations relating to the Plan as it may deem advisable to carry out the
Plan, and to determine the terms, restrictions and provisions of each Award,
including such terms, restrictions and provisions as shall be requisite in the
judgment of the Committee to cause designated Options to qualify as Incentive
Stock Options, and to make all other determinations necessary or advisable for
administering the Plan. The Committee may correct any defect or supply any
omission or reconcile any inconsistency in any agreement relating to an Award
in the manner and to the extent it shall deem expedient to carry it into
effect. The determinations of the Committee on the matters referred to in this
Article IV shall be conclusive.
V. GRANT OF OPTIONS, STOCK APPRECIATION RIGHTS,
RESTRICTED STOCK AWARDS, PERFORMANCE AWARDS
AND PHANTOM STOCK AWARDS; SHARES SUBJECT TO THE PLAN
(a) Stock Grant and Award Limits. The Committee may from time to time
grant Awards to one or more employees determined by it to be eligible for
participation in the Plan in accordance with the provisions of Paragraph VI.
Subject to Paragraph XII, the aggregate number of shares of Stock that may be
issued under the Plan shall not exceed 1,000,000 shares. Shares of Stock shall
be deemed to have been issued under the Plan only to the extent actually issued
and delivered pursuant to an Award. To the extent that an Award lapses or the
rights of its Holder terminate or the Award is paid in cash, any shares of
Stock subject to such Award shall again be available for the grant of an Award.
To the extent that an Award lapses or the rights of its Holder terminate, any
shares of Stock subject to such Award shall again be available for the grant of
an Award. Separate stock certificates shall be issued by the Company for those
shares acquired pursuant the exercise of an Incentive Stock Option and for
those shares acquired pursuant to the exercise of a Nonqualified Stock Option.
(b) Stock Offered. The stock to be offered pursuant to the grant of an
Award may be authorized but unissued Stock or Stock previously issued and
outstanding and reacquired by the Company.
VI. ELIGIBILITY
Awards may be granted only to persons who, at the time of grant, are
key employees. Awards may not be granted to any Director who is not an
employee. An Award may be granted on more than one occasion to the same person,
and, subject to the limitations set forth in the Plan, such Award may include
an Incentive Stock Option or a Nonqualified Stock Option, a Stock Appreciation
-5-
<PAGE> 6
Right, a Restricted Stock Award, a Performance Award, a Phantom Stock Award or
any combination thereof.
VII. STOCK OPTIONS
(a) Option Period. The term of each Option shall be as specified by
the Committee at the date of grant.
(b) Limitations on Exercise of Option. An Option shall be exercisable
in whole or in such installments and at such times as determined by the
Committee.
(c) Special Limitations on Incentive Stock Options. To the extent that
the aggregate Fair Market Value (determined at the time the respective
Incentive Stock Option is granted) of Stock with respect to which Incentive
Stock Options are exercisable for the first time by an individual during any
calendar year under all incentive stock option plans of the Company and its
parent and subsidiary corporations exceeds $100,000, such Incentive Stock
Options shall be treated as Nonqualified Stock Options as determined by the
Committee. The Committee shall determine, in accordance with applicable
provisions of the Code, Treasury Regulations and other administrative
pronouncements, which of an optionee's Incentive Stock Options will not
constitute Incentive Stock Options because of such limitation and shall notify
the optionee of such determination as soon as practicable after such
determination. No Incentive Stock Option shall be granted to an individual if,
at the time the Option is granted, such individual owns stock possessing more
than 10% of the total combined voting power of all classes of stock of the
Company or of its parent or subsidiary corporation, within the meaning of
section 422(b)(6) of the Code, unless (i) at the time such Option is granted
the option price is at least 110% of the Fair Market Value of the Stock subject
to the Option and (ii) such Option by its terms is not exercisable after the
expiration of five years from the date of grant.
(d) Option Agreement. Each Option shall be evidenced by an Option
Agreement in such form and containing such provisions not inconsistent with the
provisions of the Plan as the Committee from time to time shall approve,
including, without limitation, provisions to qualify an Incentive Stock Option
under section 422 of the Code. An Option Agreement may provide for the payment
of the option price, in whole or in part, by the delivery of a number of shares
of Stock (plus cash if necessary) having a Fair Market Value equal to such
option price. Each Option Agreement shall provide that the Option may not be
exercised earlier than six months from the date of grant and shall specify the
effect of termination of employment on the exercisability of the Option.
Moreover, an Option Agreement may provide for a "cashless exercise" of the
Option by establishing procedures whereby the Holder, by a properly-executed
written notice, directs (i) an immediate market sale or margin loan respecting
all or a part of the shares of Stock to which he is entitled upon exercise
-6-
<PAGE> 7
pursuant to an extension of credit by the Company to the Holder of the option
price, (ii) the delivery of the shares of Stock from the Company directly to a
brokerage firm and (iii) the delivery of the option price from the sale or
margin loan proceeds from the brokerage firm directly to the Company. Such
Option Agreement may also include, without limitation, provisions relating to
(i) vesting of Options, subject to the provisions hereof accelerating such
vesting on a Change of Control, (ii) tax matters (including provisions (y)
permitting the delivery of additional shares of Stock or the withholding of
shares of Stock from those acquired upon exercise to satisfy federal or state
income tax withholding requirements and (z) dealing with any other applicable
employee wage withholding requirements), and (iii) any other matters not
inconsistent with the terms and provisions of this Plan that the Committee
shall in its sole discretion determine. The terms and conditions of the
respective Option Agreements need not be identical.
(e) Option Price and Payment. The price at which a share of Stock may
be purchased upon exercise of an Option shall be determined by the Committee,
but (i) such purchase price shall not be less than the Fair Market Value of
Stock subject to an Incentive Stock Option on the date the Incentive Stock
Option is granted and (ii) such purchase price shall be subject to adjustment
as provided in Paragraph XII. The Option or portion thereof may be exercised by
delivery of an irrevocable notice of exercise to the Company. The purchase
price of the Option or portion thereof shall be paid in full in the manner
prescribed by the Committee.
(f) Stockholder Rights and Privileges. The Holder shall be entitled to
all the privileges and rights of a stockholder only with respect to such shares
of Stock as have been purchased under the Option and for which certificates of
stock have been registered in the Holder's name.
(g) Options and Rights in Substitution for Stock Options Granted by
Other Corporations. Options and Stock Appreciation Rights may be granted under
the Plan from time to time in substitution for stock options held by
individuals employed by corporations who become employees as a result of a
merger or consolidation of the employing corporation with the Company or any
subsidiary, or the acquisition by the Company or a subsidiary of the assets of
the employing corporation, or the acquisition by the Company or a subsidiary of
stock of the employing corporation with the result that such employing
corporation becomes a subsidiary.
VIII. STOCK APPRECIATION RIGHTS
(a) Stock Appreciation Rights. A Stock Appreciation Right is the right
to receive an amount equal to the Spread with respect to a share of Stock upon
the exercise of such Stock Appreciation Right. Stock Appreciation Rights may be
granted in connection with the grant of an Option, in which case the Option
Agreement will provide that exercise of Stock Appreciation Rights will result
in the surrender of the right to purchase the shares under the Option as to
which the Stock
-7-
<PAGE> 8
Appreciation Rights were exercised. Alternatively, Stock Appreciation Rights
may be granted independently of Options in which case each Award of Stock
Appreciation Rights shall be evidenced by a Stock Appreciation Rights Agreement
which shall contain such terms and conditions as may be approved by the
Committee. The Spread with respect to a Stock Appreciation Right may be payable
either in cash, shares of Stock with a Fair Market Value equal to the Spread or
in a combination of cash and shares of Stock. With respect to Stock
Appreciation Rights that are subject to Section 16 of the 1934 Act, however,
the Committee shall, except as provided in Paragraph XII(c), retain sole
discretion (i) to determine the form in which payment of the Stock Appreciation
Right will be made (i.e., cash, securities or any combination thereof) or (ii)
to approve an election by a Holder to receive cash in full or partial
settlement of Stock Appreciation Rights. Each Stock Appreciation Rights
Agreement shall provide that the Stock Appreciation Rights may not be exercised
earlier than six months from the date of grant and shall specify the effect of
termination of employment on the exercisability of the Stock Appreciation
Rights.
(b) Other Terms and Conditions. At the time of such Award, the
Committee, may in its sole discretion, prescribe additional terms, conditions
or restrictions relating to Stock Appreciation Rights, including, but not
limited to rules pertaining to termination of employment (by retirement,
disability, death or otherwise) of a Holder prior to the expiration of such
Stock Appreciation Rights. Such additional terms, conditions or restrictions
shall be set forth in the Stock Appreciation Rights Agreement made in
conjunction with the Award. Such Stock Appreciation Rights Agreements may also
include, without limitation, provisions relating to (i) vesting of Awards,
subject to the provisions hereof accelerating vesting on a Change of
Control,(ii) tax matters (including provisions covering applicable wage
withholding requirements), and (iii) any other matters not inconsistent with
the terms and provisions of this Plan, that the Committee shall in its sole
discretion determine. The terms and conditions of the respective Appreciation
Rights Agreements need not be identical.
(c) Exercise Price. The exercise price of each Stock Appreciation
Right shall be determined by the Committee, but such exercise price (i) shall
not be less than the Fair Market Value of a share of Stock on the date the
Stock Appreciation Right is granted (or such greater exercise price as may be
required if such Stock Appreciation Right is granted in connection with an
Incentive Stock Option that must have an exercise price equal to 110% of the
Fair Market Value of the Stock on the date of grant pursuant to Paragraph
VII(c)), and (ii) shall be subject to adjustment as provided in Paragraph XII.
(d) Exercise Period. The term of each Stock Appreciation Right shall
be as specified by the Committee at the date of grant.
-8-
<PAGE> 9
(e) Limitations on Exercise of Stock Appreciation Right. A Stock
Appreciation Right shall be exercisable in whole or in such installments and at
such times as determined by the Committee.
IX. RESTRICTED STOCK AWARDS
(a) Forfeiture Restrictions to be Established by the Committee. Shares
of Stock that are the subject of a Restricted Stock Award shall be subject to
restrictions on disposition by the Holder and an obligation of the Holder to
forfeit and surrender the shares to the Company under certain circumstances
(the "Forfeiture Restrictions"). The Forfeiture Restrictions shall be
determined by the Committee in its sole discretion, and the Committee may
provide that the Forfeiture Restrictions shall lapse upon (i) the attainment of
targets established by the Committee that are based on (1) the price of a share
of Stock, (2) the Company's earnings per share, (3) the Company's revenue, (4)
the revenue of a business unit of the Company designated by the Committee, (5)
the return on stockholders' equity achieved by the Company, or (6) the
Company's pre-tax cash flow from operations, (ii) the Holder's continued
employment with the Company for a specified period of time, or (iii) a
combination of any two or more of the factors listed in clauses (i) and (ii) of
this sentence. Each Restricted Stock Award may have different Forfeiture
Restrictions, in the discretion of the Committee. The Forfeiture Restrictions
applicable to a particular Restricted Stock Award shall not be changed except
as permitted by Paragraph IX(b) or Paragraph XII.
(b) Other Terms and Conditions. Stock awarded pursuant to a Restricted
Stock Award shall be represented by a stock certificate registered in the name
of the Holder of such Restricted Stock Award. The Holder shall have the right
to receive dividends with respect to Stock subject to a Restricted Stock Award,
to vote Stock subject thereto and to enjoy all other stockholder rights, except
that (i) the Holder shall not be entitled to delivery of the stock certificate
until the Forfeiture Restrictions shall have expired, (ii) the Company shall
retain custody of the Stock until the Forfeiture Restrictions shall have
expired, (iii) the Holder may not sell, transfer, pledge, exchange, hypothecate
or otherwise dispose of the Stock until the Forfeiture Restrictions shall have
expired, and (iv) a breach of the terms and conditions established by the
Committee pursuant to the Restricted Stock Agreement, shall cause a forfeiture
of the Restricted Stock Award. At the time of such Award, the Committee may, in
its sole discretion, prescribe additional terms, conditions or restrictions
relating to Restricted Stock Awards, including, but not limited to, rules
pertaining to the termination of employment (by retirement, disability, death
or otherwise) of a Holder prior to expiration of the Forfeiture Restrictions.
Such additional terms, conditions or restrictions shall be set forth in a
Restricted Stock Agreement made in conjunction with the Award. Such Restricted
Stock Agreement may also include, without limitation, provisions relating to
(i) subject to the provisions hereof accelerating vesting on a Change of
Control, vesting of Awards, (ii) tax matters (including provisions (y) covering
any applicable employee wage withholding requirements and (z) prohibiting
-9-
<PAGE> 10
an election by the Holder under section 83(b) of the Code), and (iii) any other
matters not inconsistent with the terms and provisions of this Plan that the
Committee shall in its sole discretion determine. The terms and conditions of
the respective Restricted Stock Agreements need not be identical.
(c) Payment for Restricted Stock. The Committee shall determine the
amount and form of any payment for Stock received pursuant to a Restricted
Stock Award, provided that in the absence of such a determination, a Holder
shall not be required to make any payment for Stock received pursuant to a
Restricted Stock Award, except to the extent otherwise required by law.
(d) Agreements. At the time any Award is made under this Paragraph IX,
the Company and the Holder shall enter into a Restricted Stock Agreement
setting forth each of the matters as the Committee may determine to be
appropriate. The terms and provisions of the respective Restricted Stock
Agreements need not be identical.
X. PERFORMANCE AWARDS
(a) Performance Period. The Committee shall establish, with respect to
and at the time of each Performance Award, a performance period over which the
performance of the Holder shall be measured.
(b) Performance Awards. Each Performance Award shall have a maximum
value established by the Committee at the time of such Award.
(c) Performance Measures. A Performance Award shall be awarded to an
employee contingent upon future performance of the employee, the Company or any
subsidiary, division or department thereof by or in which is he employed during
the performance period. The Committee shall establish the performance measures
applicable to such performance prior to the beginning of the performance period
but subject to such later revisions as the Committee shall deem appropriate to
reflect significant, unforeseen events or changes.
(d) Awards Criteria. In determining the value of Performance Awards,
the Committee shall take into account an employee's responsibility level,
performance, potential, other Awards and such other considerations as it deems
appropriate.
(e) Payment. Following the end of the performance period, the Holder
of a Performance Award shall be entitled to receive payment of an amount, not
exceeding the maximum value of the Performance Award, based on the achievement
of the performance measures for such performance period, as determined by the
Committee. Payment of a Performance Award may be made in cash,
-10-
<PAGE> 11
Stock or a combination thereof, as determined by the Committee. Payment shall
be made in a lump sum or in installments as prescribed by the Committee. Any
payment to be made in Stock shall be based on the Fair Market Value of the
Stock on the payment date. If a payment of cash is to be made on a deferred
basis, the Committee shall establish whether interest shall be credited, the
rate thereof and any other terms and conditions applicable thereto.
(f) Termination of Employment. A Performance Award shall terminate if
the Holder does not remain continuously in the employ of the Company at all
times during the applicable performance period, except as may be determined by
the Committee or as may otherwise be provided in the Award at the time granted.
(g) Agreements. At the time any Award is made under this Paragraph X,
the Company and the Holder shall enter into a Performance Award Agreement
setting forth each of the matters contemplated hereby, and, in addition such
matters are set forth in Paragraph IX(b) as the Committee may determine to be
appropriate. The terms and provisions of the respective agreements need not be
identical.
XI. PHANTOM STOCK AWARDS
(a) Phantom Stock Awards. Phantom Stock Awards are rights to receive
shares of Stock (or cash in an amount equal to the Fair Market Value thereof),
or rights to receive an amount equal to any appreciation in the Fair Market
Value of Stock (or portion thereof) over a specified period of time, which vest
over a period of time or upon the occurrence of an event (including without
limitation a Change of Control) as established by the Committee, without
payment of any amounts by the Holder thereof (except to the extent otherwise
required by law) or satisfaction of any performance criteria or objectives.
Each Phantom Stock Award shall have a maximum value established by the
Committee at the time of such Award.
(b) Award Period. The Committee shall establish, with respect to and
at the time of each Phantom Stock Award, a period over which or the event upon
which the Award shall vest with respect to the Holder.
(c) Awards Criteria. In determining the value of Phantom Stock Awards,
the Committee shall take into account an employee's responsibility level,
performance, potential, other Awards and such other considerations as it deems
appropriate.
(d) Payment. Following the end of the vesting period for a Phantom
Stock Award, the Holder of a Phantom Stock Award shall be entitled to receive
payment of an amount, not exceeding the maximum value of the Phantom Stock
Award, based on the then vested value of the Award.
-11-
<PAGE> 12
Payment of a Phantom Stock Award may be made in cash, Stock or a combination
thereof as determine by the Committee. Payment shall be made in a lump sum or
in installments as prescribed by the Committee in its sole discretion. Any
payment to be made in Stock shall be based on the Fair Market Value of the
Stock on the payment date. Cash dividend equivalents may be paid during or
after the vesting period with respect to a Phantom Stock Award, as determined
by the Committee. If a payment of cash is to be made on a deferred basis, the
Committee shall establish whether interest shall be credited, the rate thereof
and any other terms and conditions applicable thereto.
(e) Termination of Employment. A Phantom Stock Award shall terminate
if the Holder does not remain continuously in the employ of the Company at all
times during the applicable vesting period, except as may be otherwise
determined by the Committee or as set forth in the Award at the time of grant.
(f) Agreements. At the time any Award is made under this Paragraph XI,
the Company and the Holder shall enter into a Phantom Stock Award Agreement
setting forth each of the matters contemplated hereby and, in addition such
matters as are set forth in Paragraph IX(b) as the Committee may determine to
be appropriate. The terms and provisions of the respective agreements need not
be identical.
XII. RECAPITALIZATION OR REORGANIZATION
(a) The shares with respect to which Awards may be granted are shares
of Stock as presently constituted, but if, and whenever, prior to the
expiration of an Award theretofore granted, the Company shall effect a
subdivision or consolidation by the Company, the number of shares of Stock with
respect to which such Award may thereafter be exercised or satisfied, as
applicable, (i) in the event of an increase in the number of outstanding shares
shall be proportionately increased, and the purchase price per share shall be
proportionately reduced, and (ii) in the event of a reduction in the number of
outstanding shares shall be proportionately reduced, and the purchase price per
share shall be proportionately increased.
(b) If the Company recapitalizes or otherwise changes its capital
structure, thereafter upon any exercise or satisfaction, as applicable, of an
Award theretofore granted the Holder shall be entitled to (or entitled to
purchase, if applicable) under such Award, in lieu of the number of shares of
Stock then covered by such Award, the number and class of shares of stock and
securities to which the Holder would have been entitled pursuant to the terms
of the recapitalization if, immediately prior to such recapitalization, the
Holder had been the holder of record of the number of shares of Stock then
covered by such Award.
-12-
<PAGE> 13
(c) In the event of a Change of Control, all outstanding Awards shall
immediately vest and become exercisable or satisfiable, as applicable. The
Committee, in its discretion, may determine that upon the occurrence of a
Change of Control, each Award other than an Option outstanding hereunder shall
terminate within a specified number of days after notice to the Holder, and
such Holder shall receive, with respect to each share of Stock subject to such
Award, cash in an amount equal to the excess, if any, of the Change of Control
Value. Further, in the event of a Change of Control, the Committee, in its
discretion shall act to effect one or more of the following alternatives with
respect to outstanding Options, which may vary among individual Holders and
which may vary among Options held by any individual Holder: (i) determine a
limited period of time on or before a specified date (before or after such
Change of Control) after which specified date all unexercised Options and all
rights of Holders thereunder shall terminate, (2) require the mandatory
surrender to the Company by selected Holders of some or all of the outstanding
Options held by such Holders (irrespective of whether such Options are then
exercisable under the provisions of the Plan) as of a date, before or after
such Change of Control, specified by the Committee, in which event the
Committee shall thereupon cancel such Options and the Company shall pay to each
Holder an amount of cash per share equal to the excess, if any, of the Change
of Control Value of the shares subject to such Option over the exercise
price(s) under such Options for such shares, (3) make such adjustments to
Options then outstanding as the Committee deems appropriate to reflect such
Change of Control (provided, however, that the Committee may determine in its
sole discretion that no adjustment is necessary to Options then outstanding) or
(4) provide that thereafter upon any exercise of an Option theretofore granted
the Holder shall be entitled to purchase under such Option, in lieu of the
number of shares of Stock then covered by such Option the number and class of
shares of stock or other securities or property (including, without limitation,
cash) to which the Holder would have been entitled pursuant to the terms of the
agreement of merger, consolidation or sale of assets and dissolution if,
immediately prior to such merger, consolidation or sale of assets and
dissolution the Holder has been the holder of record of the number of shares of
Stock then covered by such Option. The provisions contained in this paragraph
shall be inapplicable to an Award granted within six (6) months before the
occurrence of a Change of Control if the Holder of such Award is subject to the
reporting requirements of Section 16(a) of the 1934 Act. The provisions
contained in this paragraph shall not terminate any rights of the Holder to
further payments pursuant to any other agreement with the Company following a
Change of Control.
(d) In the event of changes in the outstanding Stock by reason of
recapitalization, reorganizations, mergers, consolidations, combinations,
exchanges or other relevant changes in capitalization occurring after the date
of the grant of any Award and not otherwise provided for by this Paragraph XII,
any outstanding Awards and any agreements evidencing such Awards shall be
subject to adjustment by the Committee at its discretion as to the number and
price of shares of Stock or other consideration subject to such Awards. In the
event of any such change in the outstanding
-13-
<PAGE> 14
Stock, the aggregate number of shares available under the Plan may be
appropriately adjusted by the Committee, whose determination shall be
conclusive.
(e) The existence of the Plan and the Awards granted hereunder shall
not affect in any way the right or power of the Board or the stockholders of
the Company to make or authorize any adjustment, recapitalization,
reorganization or other change in the Company's capital structure or its
business, any merger or consolidation of the Company, any issue of debt or
equity securities ahead of or affecting Stock or the rights thereof, the
dissolution or liquidation of the Company or any sale, lease, exchange or other
disposition of all or any part of its assets or business or any other corporate
act or proceeding.
(f) Any adjustment provided for in Subparagraphs (a), (b), (c) or (d)
above shall be subject to any required stockholder action.
(g) Except as hereinbefore expressly provided, the issuance by the
Company of shares of stock of any class or securities convertible into shares
of stock of any class, for cash, property, labor or services, upon direct sale,
upon the exercise of rights or warrants to subscribe therefor, or upon
conversion of shares of obligations of the Company convertible into such shares
or other securities, and in any case whether or not for fair value, shall not
affect, and no adjustment by reason thereof shall be made with respect to, the
number of shares of Stock subject to Awards theretofore granted or the purchase
price per share, if applicable.
XIII. AMENDMENT AND TERMINATION OF THE PLAN
The Board in its discretion may terminate the Plan at any time with
respect to any shares for which Awards have not theretofore been granted. The
Board shall have the right to alter or amend the Plan or any part thereof from
time to time; provided that no change in any Award theretofore granted may be
made which would impair the rights of the Holder without the consent of the
Holder (unless such change is required in order to cause the benefits under the
Plan to qualify as performance-based compensation within the meaning of section
162(m) of the Code and applicable interpretive authority thereunder), and
provided, further, that the Board may not, without approval of the
stockholders, amend the Plan:
(a) to increase the maximum number of shares which may be issued on
exercise or surrender of an Award, except as provided in Paragraph XII;
(b) to change the Option price;
-14-
<PAGE> 15
(c) to change the class of employees eligible to receive Awards or
materially increase the benefits accruing to employees under the Plan;
(d) to extend the maximum period during which Awards may be granted
under the Plan;
(e) to modify materially the requirements as to eligibility for
participation in the Plan; or
(f) to decrease any authority granted to the Committee hereunder in
contravention of Rule 16b-3.
XIV. MISCELLANEOUS
(a) No Right to An Award. Neither the adoption of the Plan by the
Company nor any action of the Board or the Committee shall be deemed to give an
employee any right to be granted an Award to purchase Stock, a right to a Stock
Appreciation Right, a Restricted Stock Award, a Performance Award or a Phantom
Stock Award or any of the rights hereunder except as may be evidenced by an
Award or by an Option Agreement, Stock Appreciation Rights Agreement,
Restricted Stock Agreement, Performance Award Agreement or Phantom Stock Award
Agreement on behalf of the Company, and then only to the extent and on the
terms and conditions expressly set forth therein. The Plan shall be unfunded.
The Company shall not be required to establish any special or separate fund or
to make any other segregation of funds or assets to assure the payment of any
Award.
(b) No Employment Rights Conferred. Nothing contained in the Plan
shall (i) confer upon any employee any right with respect to continuation of
employment with the Company or any subsidiary or (ii) interfere in any way with
the right of the Company or any subsidiary to terminate his or her employment
at any time.
(c) Other Laws; Withholding. The Company shall not be obligated to
issue any Stock pursuant to any Award granted under the Plan at any time when
the shares covered by such Award have not been registered under the Securities
Act of 1933 and such other state and federal laws, rules or regulations as the
Company or the Committee deems applicable and, in the opinion of legal counsel
for the Company, there is no exemption from the registration requirements of
such laws, rules or regulations available for the issuance and sale of such
shares. No fractional shares of Stock shall be delivered, nor shall any cash in
lieu of fractional shares be paid. The Company shall have the right to deduct
in connection with all Awards any taxes required by law to be withheld and to
require any payments required to enable it to satisfy its withholding
obligations.
-15-
<PAGE> 16
(d) No Restriction on Corporate Action. Nothing contained in the Plan
shall be construed to prevent the Company or any subsidiary from taking any
corporate action which is deemed by the Company or such subsidiary to be
appropriate or in its best interest, whether or not such action would have an
adverse effect on the Plan or any Award made under the Plan. No employee,
beneficiary or other person shall have any claim against the Company or any
subsidiary as a result of any such action.
(e) Restrictions on Transfer. An Award shall not be transferable
otherwise than by will or the laws of descent and distribution or pursuant to a
"qualified domestic relations order" as defined by the Code or Title I of the
Employee Retirement Income Security Act of 1974, as amended, or the rules
thereunder, and shall be exercisable during the Holder's lifetime only by such
Holder or the Holder's guardian or legal representative.
(f) Rule 16b-3. It is intended that the Plan and any grant of an Award
made to a person subject to Section 16 of the 1934 Act meet all of the
requirements of Rule 16b-3. If any provision of the Plan or any such Award
would disqualify the Plan or such Award under, or would otherwise not comply
with, Rule 16b-3, such provision or Award shall be construed or deemed amended
to conform to Rule 16b-3.
(g) Section 162(m). If the plan is subject to 162(m) of the Code, it
is intended that the Plan comply fully with and meet all the requirements of
Section 162(m) of the Code so that Options and Stock Appreciation Rights
granted hereunder and, if determined by the Committee, Restricted Stock Awards,
shall constitute "performance-based" compensation within the meaning of such
section. If any provision of the Plan would disqualify the Plan or would not
otherwise permit the Plan to comply with Section 162(m) as so intended, such
provision shall be construed or deemed amended to conform to the requirements
or provisions of Section 162(m); provided that no such construction or
amendment shall have an adverse effect on the economic value to a Holder of any
Award previously granted hereunder.
(h) Governing Law. This Plan shall be construed in accordance with the
laws of the State of Texas.
<PAGE> 1
EXHIBIT 4.4
1993
INCENTIVE STOCK OPTION PLAN
OF
INDEPENDENT BANCORP, INC.
<PAGE> 2
INDEX
1993 INCENTIVE STOCK OPTION PLAN
OF
INDEPENDENT BANCORP, INC.
<TABLE>
<S> <C> <C>
1. PURPOSE OF PLAN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
---------------
2. ADMINISTRATION OF 1993 PLAN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
---------------------------
3. DESIGNATION OF PARTICIPANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
---------------------------
4. STOCK RESERVED FOR 1993 PLAN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
----------------------------
5. OPTION PRICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
------------
6. OPTION PERIOD
-------------
A. Termination Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
----------------
B. Reorganization, Merger, or Consolidation of Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
---------------------------------------------------
C. Definition of "Employment" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
--------------------------
7. EXERCISE OF OPTIONS
-------------------
A. Committee's Discretion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
----------------------
B. Who May Exercise . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
----------------
C. Exercise After Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
--------------------------
D. Acceleration on Death of Employee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
---------------------------------
E. Effect of Retirement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
--------------------
F. Payment of Purchase Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
-------------------------
G. Withholding with Respect to Certain Sales . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
-----------------------------------------
8. ASSIGNABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
-------------
9. CAPITAL CHANGE OF COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
-------------------------
10. PURCHASE FOR INVESTMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
-----------------------
11. TAXES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
-----
12. EFFECTIVE DATE OF 1993 PLAN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
---------------------------
13. AMENDMENTS OR TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
-------------------------
14. GOVERNMENT REGULATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
----------------------
</TABLE>
2
<PAGE> 3
1993 INCENTIVE STOCK OPTION PLAN
OF
INDEPENDENT BANCORP, INC.
1. PURPOSE OF PLAN
The purpose of this 1993 Incentive Stock Option Plan ("1993 PLAN") is
to provide incentive stock options as a means of attracting,
retaining, and motivating existing and future selected employees of
Independent Bancorp, Inc. ("Company") and any Parent or Subsidiary of
the Company (within the meaning of Section 425 (e) or (f) of the
Internal Revenue Code of 1986, as amended ("Code") ; thereby
benefiting the Company. It is further intended that options issued
pursuant to this 1993 Plan shall constitute incentive stock options
within the meaning of Section 422A of the Code.
2. ADMINISTRATION OF 1993 PLAN
The Board of Directors shall appoint and maintain as administrator of
the 1993 Plan the Stock Option Committee (the "Committee") which shall
consist of at least three members of the Board of Directors who shall
not have been eligible to participate in the 1993 Plan or any other
plan of the Company or its affiliates which entitles participants to
acquire stock, stock appreciation rights or stock options of the
Company or its affiliates at any time within one year prior to
appointment and who shall serve at the pleasure of the Board of
Directors. No member of such Committee shall be eligible to receive
stock options under the 1993 Plan ("Options") or any other plan of the
Company or its affiliates which entitles participants to acquire
stock, stock appreciation rights or stock options of the Company or
its affiliates while serving on the Committee. The Committee shall
have full power and authority to designate participants, to determine
the terms and provisions of respective option agreements (which need
not be identical) and to interpret the provisions and supervise the
administration of the 1993 Plan. All decisions and selections made by
the Committee pursuant to the provisions of the 1993 Plan shall be
made by a majority of its members. Any decision reduced to writing
and signed by all members shall be fully effective as if it had been
made by a majority at a meeting duly held. The Committee shall have
the authority, subject to shareholder approval, to grant in its
discretion to the holder of an outstanding Option in exchange for the
surrender and cancellation of such Option, a new Option having a
purchase price lower than provided in the Option so surrendered and
cancelled and containing such other terms and conditions as the
Committee pay prescribe in accordance with the provisions of the 1993
Plan. All Options granted under this 1993 Plan are subject to, and
may not be exercised before, the approval of the 1993 Plan by the
Company's shareholders at the 1993 Annual Meeting of Shareholders and
if such approval is not forthcoming all Options previously granted
shall be void.
3
<PAGE> 4
3. DESIGNATION OF PARTICIPANTS
The persons eligible for participation in the 1993 Plan as recipients
of Options shall include only key employees of the Company or of any
Parent or Subsidiary of the Company ("employee" or "employees"). The
Directors of the Company shall not be eligible to participate in the
1993 Plan as directors, but Directors otherwise qualified shall be
eligible to participate. An employee who has been granted an Option
hereunder may be granted an additional Option or Options, if the
Committee shall so determine. The aggregate fair market value
(determined at the time the Option is granted in accordance with
Paragraph 5 of the 1993 Plan) of the stock (within the meaning of
Section 422A(b)(8) of the Code) with respect to which Options are
exercisable for the first time by such optionee during any calendar
year (under all such plans of the Company; its Parent and
Subsidiaries) shall not exceed $100,000.
4. STOCK RESERVED FOR 1993 PLAN
Subject to adjustment as provided in Paragraph 9 hereof, a total of
ten thousand (10,000) shares of Common Stock, $10.00 par value
("Stock") of the Company shall be subject to the 1993 Plan. The
Shares subject to the 1993 Plan shall consist of unissued shares or
previously issued shares reacquired and held by the Company, or any
Parent or Subsidiary of the Company, and no Option shall be granted
unless the Company has previously reserved sufficient shares for sale
so as to provide for the to exercise of the Option. Any of such
shares which may remain unsold and which are not subject to
outstanding Options at the termination of the 1993 Plan shall cease to
be reserved for the purpose of the 1993 Plan, but until termination of
the 1993 Plan the Company shall at all times reserve a sufficient
number of shares to meet the requirements of the 1993 Plan. Should
any Option expire or be cancelled prior to its exercise in full, the
shares theretofore subject to such Option may again be subjected to an
Option under the 1993 Plan.
5. OPTION PRICE
The purchase price of each share placed under Option shall be 100% of
the fair market value of such share on the date the Option is granted.
6. OPTION PERIOD
A. Termination Date
Options granted under this 1993 Plan shall terminate and be of no
force and effect with respect to any shares not previously taken up by
the optionee upon the first to occur of:
(1) the expiration of ten years from the date of granting of each
Option; or
(2) the expiration of three months after the termination of service of
the optionee for
4
<PAGE> 5
reasons other than death, disability, retirement under a retirement
plan of the Company or any Parent or Subsidiary of the Company, or
other reasons approved in writing by the Committee.
B. Reorganization, Merger, or Consolidation of Company
If the Company is reorganized, or merged or consolidated with another
corporation while unexercised Options remain outstanding under the
1993 Plan, there shall be substituted for the shares subject to the
unexercised portions of such outstanding Options an appropriate number
of shares of each class of stock or other securities of the
reorganized or merged or consolidated corporation which were
distributed to the shareholders of the Company in respect of such
shares (such number of shares to be determined in accordance with the
provisions of Section 425 of the Code or other applicable provisions
of the Code or regulations issued hereafter which may from time to
time govern the treatment of incentive options in such a transaction);
provided, however, that all such Options may be cancelled by the
Company as of the effective date of any such reorganization, merger or
consolidation or of any dissolution or liquidation of the Company by
giving notice to each holder thereof or his personal representative of
its intention to do so and by permitting the purchase during the
thirty-day period next preceding such effective date of all of the
shares subject to such outstanding Options.
C. Definition of "Employment"
"Employment with the Company" as used in this 1993 Plan shall include
employment with the Company and any Parent or Subsidiary of the
Company and Options granted under this 1993 Plan shall not be affected
by an employee's transfer of employment from the Company to a Parent
or Subsidiary of the Company, from a Parent or Subsidiary of the
Company to the Company, or between a Parent or Subsidiary of the
Company.
7. EXERCISE OF OPTIONS
A. Committee's Discretion
The Committee, in granting Options hereunder, shall have discretion to
determine the terms upon which such Options shall be exercisable,
subject to the applicable provisions of the 1993 Plan.
B. Who May Exercise
Options may be exercised solely by the optionee during his lifetime;
or:
(1) after an optionee's death by the person or persons designated in
writing by the
5
<PAGE> 6
optionee in such form as the Committee may prescribe or in the absence
of such designation by such person or persons entitled thereto under
the optionee's will or the laws of descent and distribution;
(2) by the legally appointed Guardian, Attorney in Fact, or by the
person or persons designated in writing by the optionee in such form
as the Committee may prescribe in the event an optionee is disabled as
defined pursuant to Section 22(e)(3) of the Code.
C. Exercise After Termination
In the event of termination of employment for any reason other than
death, disability, or retirement, Options may be exercised only with
respect to the number of shares which the optionee had the right to
purchase at the time of such termination.
D. Acceleration on Death of Employee
In the event of the death of the optionee following the date of grant
and while in the employment of the Company or any Parent or Subsidiary
of the Company, and while Options granted hereunder are still in force
and unexpired under the terms of Paragraph 6 hereof, any unmatured
installments of the Options shall be accelerated. Such acceleration
shall be effective as of the date of death. The Options outstanding
in the name of a deceased optionee shall thereupon be exercisable in
full.
E. Effect of Retirement
In the event the optionee terminates his employment because of
retirement under any retirement plan of the Company or of any Parent
or Subsidiary of the Company while Options granted hereunder are still
in force and unexpired under the terms of Paragraph 6 hereof, the
Committee shall have discretion to permit any unmatured installments
of the Options to be accelerated as of the date of retirement and the
Options shall thereupon be exercisable in full.
F. Payment of Purchase Price
The purchase price of shares as to which an Option is exercised shall
be paid in full at the time of the exercise. Such purchase price
shall be payable in cash, or, if the Option Agreement so provides, at
the option of the holder of such Option, in the Stock then owned by
such holder or any combination of cash and such Stock. For purposes
of determining the amount, if any, of the purchase price satisfied by
payment in Stock, such Stock shall be valued at its fair market value
on the date of
6
<PAGE> 7
exercise. Any Stock delivered in satisfaction of all or a portion of
the purchase price shall be appropriately endorsed for transfer and
assignment to the Company. No holder of an Option shall be, or have
any of the rights or privileges of, a shareholder of the Company in
respect of any shares purchasable upon the exercise of any part of an
Option unless and until certificates representing such shares shall
have been issued by the Company to such holders.
G. Withholding with Respect to Certain Sales
The option agreement evidencing any Options granted under this 1993
Plan shall provide that if the optionee makes a disposition, within
the meaning of Section 425(c) of the Code, and regulations
promulgated thereunder, of any share or shares of Stock issued to him
pursuant to his exercise of an Option granted under the 1993 Plan
within a two-year period commencing on the day after the date of the
grant of such Option or within a one-year period commencing on the day
after the date of transfer of the share or shares to him pursuant to
the exercise of such Option, he shall, within ten (10) days of such
disposition, notify the Company thereof and immediately deliver to the
Company any amount of federal income tax withholding required by law.
8. ASSIGNABILITY
No Option shall be assignable or otherwise transferable except by will
or the laws of descent and distribution.
9. CAPITAL CHANGE OF COMPANY
If the outstanding shares of Stock shall at any time be changed or
exchanged by declaration of a stock dividend, split-up, combination of
shares, or recapitalization, the number and kind of shares subject to
this 1993 Plan or subject to any Options theretofore granted, and the
Option Prices, shall be appropriately and equitably adjusted so as to
maintain the proportionate number of shares without changing the
aggregate Option Price; provided, however, no adjustment shall be made
by reason of the distribution of subscription rights on outstanding
stock.
10. PURCHASE FOR INVESTMENT
Unless the Options and shares covered by the 1993 Plan have been
registered under the Securities Act of 1933, as amended, or the
Company has determined that such registration is unnecessary under
regulations promulgated thereunder by any banking regulatory agency,
each person exercising an Option under the 1993 Plan may be required
by the Company to give a representation in writing that he is
acquiring such shares for his own account for investment and not with
a view to, or
7
<PAGE> 8
for sale in connection with, the distribution of any part thereof.
11. TAXES
The Company may make such provisions as it may deem appropriate for
the withholding of any taxes which it determines is required in
connection with any Options granted under the 1993 Plan.
12. EFFECTIVE DATE OF 1993 PLAN
The 1993 Plan, shall be effective as of April 15, 1993.
13. AMENDMENTS OR TERMINATION
The Board of Directors may amend, alter or discontinue the 1993 Plan,
except that no amendment or alteration shall be made which would
impair the rights of any participant under any Option theretofore
granted, without his consent, and except that no amendment or
alteration shall be made which, without the approval of the
shareholders, would:
A. Increase the total number of shares reserved for the purposes
of the 1993 Plan, except as is provided in Paragraph 9, or
decrease the Option Price provided for in Paragraph 5, or
change the class of employees eligible to participate in the
1993 Plan as provided in Paragraph 3; or
B. Extend the Option Period provided for in Paragraph 6; or
C. Materially increase the benefits accruing to participants
under the 1993 Plan; or
D. Materially modify the requirements as to eligibility for
participation in the 1993 Plan.
14. GOVERNMENT REGULATIONS
The 1993 Plan, and the granting and exercise of Options thereunder,
and the obligation of the Company to sell and deliver shares such
Options, shall be subject to all applicable laws, rules and
regulations, and to such approvals by any governmental agencies or
national securities exchanges as may be required.
8
<PAGE> 1
EXHIBIT 4.5
1984 INCENTIVE STOCK OPTION PLAN
OF
INDEPENDENT BANCORP, INC.
1. Purpose of the Plan.
This Incentive Stock Option Plan (the "Plan") of Independent
Bancorp, Inc. (the "Company") is intended as an employment incentive, to retain
in the employ of the Company and any Parent or Subsidiary of the Company
(within the meaning of Section 425 (e) or (f) of the Internal Revenue Code of
1954, as amended ("Code"), persons of training, experience and ability, to
attract new employees whose services are considered unusually valuable, to
encourage the sense of proprietorship of such persons, and to stimulate the
active interest of such persons in the development and financial success of the
Company. It is further intended that options issued pursuant to this Plan
shall constitute incentive stock options within the meaning of Section 422A of
the Code.
2. Administration of the Plan.
The Board of Directors shall appoint and maintain as
administrator of the Plan the Stock Option Committee (the "Committee") which
shall consist of at least three members of the Board of Directors who shall not
have been eligible to participate in the Plan or any other plan of the Company
or its affiliates which entitles participants to acquire stock, stock
appreciation rights or stock options of the Company or its affiliates at any
time within one year prior to appointment and who shall serve at the pleasure
of the Board. No member of such Committee shall be eligible to receive stock
options under the Plan ("Options") or any other plan of the Company or its
affiliates which entitles participants to acquire stock, stock appreciation
rights or stock options of the Company or its affiliates while serving on the
Committee. The Committee shall have full power and authority to designate
participants, to determine the terms and provisions of respective option
agreements (which need not be identical) and to interpret the provisions and
supervise the administration of the Plan. All decisions and selections made by
the Committee pursuant to the provisions of the Plan shall be made by a
majority of its members. Any decision reduced to writing and signed by all of
the members shall be fully effective as if it had been made by a majority at a
meeting duly held. The Committee shall have the authority, subject to
shareholder approval, to grant in its discretion to the holder of an
outstanding Option in exchange for the surrender and cancellation of such
Option, a new Option having a purchase price lower than provided in the Option
so surrendered and canceled and containing such other terms and conditions as
the Committee may prescribe in accordance with the provisions of the Plan. All
Options granted under this Plan are subject to, and may not be exercised
before, the approval of the Plan by the Company's shareholders at the 1985
Annual
1
<PAGE> 2
Meeting of Shareholders and if such approval is not forthcoming, all Options
previously granted shall be void.
3. Designations of Participants.
The persons eligible for participation in the Plan as
recipients of Options shall include only key employees of the Company or of any
Parent or Subsidiary of the Company. The Directors of the Company shall not be
eligible to participate in the Plan as directors, but Directors otherwise
qualified shall be eligible to participate. An employee who has been granted
an Option hereunder may be granted an additional Option or Options, if the
Committee shall so determine. The aggregate fair market value (determined in
accordance with Paragraph 5 of the Plan as of the time the Option is granted)
of the stock (within the meaning of Section 422A(b) (8) of the Code) for which
any optionee may be granted incentive Options in any calendar year (under all
such plans of the Company and any Parent or Subsidiary of the Company) shall
not exceed $100,000 plus any unused limit carryover to such year applicable to
such optionee. For purposes of this Plan, an "unused limit carryover" shall be
determined under Section 422A(c) (4) of the Code.
4. Stock Reserved for the Plan.
Subject to adjustment as provided in Paragraph 9 hereof, a
total of ten thousand (10,000) shares of Common Stock, $10.00 par value
("Stock") of the Company shall be subject to the Plan. The shares subject to
the Plan shall consist of unissued shares or previously issued shares
reacquired and held by the Company, or any Parent or Subsidiary of the Company,
and no option shall be granted unless the Company has previously reserved
sufficient shares for sale pursuant to exercise of the option. Any of such
shares which may remain unsold and which are not subject to outstanding options
at the termination of the Plan shall cease to be reserved for the purpose of
the Plan, but until termination of the Plan the Company shall at all times
reserve a sufficient number of shares to meet the requirements of the Plan.
Should any Option expire or be canceled prior to its exercise in full, the
shares theretofore subject to such Option may again be subjected to an Option
under the Plan.
5. Option Price.
The purchase price of each share placed under Option shall be
l00% of the fair market value of such share on the date the Option is granted.
6. Option Period.
(a) Options granted under this Plan shall terminate and be of no
force and effect with respect to any shares not previously taken up by the
optionee upon the first
2
<PAGE> 3
to occur of (i) the expiration of ten years from the date of granting of each
Option or (ii) the expiration of three months after the termination of service
of the optionee for reasons other than death, disability, retirement under a
retirement plan of the Company or any Parent or Subsidiary of the Company, or
other reasons approved in writing by the Committee.
(b) If the Company is reorganized, or merged or consolidated with
another corporation while unexercised Options remain outstanding under the
Plan, there shall be substituted for the shares subject to the unexercised
portions of such outstanding Options an appropriate number of shares of each
class of stock or other securities of the reorganized or merged or consolidated
corporation which were distributed to the shareholders of the Company in
respect of such shares such number of shares to be determined in accordance
with the provisions of Section 425 of the Code (or other applicable provisions
of the Code or regulations issued thereunder which may from time to time govern
the treatment of incentive options in such a transaction); provided, however,
that all such Options may be canceled by the Company as of the effective date
of any such reorganization, merger or consolidation or of any dissolution or
liquidation of the Company by giving notice to each holder thereof or his
personal representative of its intention to do so and by permitting the
purchase during the thirty-day period next preceding such effective date of all
of the shares subject to such outstanding Options.
(c) "Employment with the Company" as used in this Plan shall
include employment with any Parent or Subsidiary of the Company and Options
granted under this Plan shall not be affected by an employee's transfer of
employment from the Company to a Parent or Subsidiary of the Company, from a
Parent or Subsidiary of the Company to the Company, or between a Parent or
Subsidiary of the Company.
7. Exercise of Options.
(a) The Committee, in granting Options hereunder, shall have
discretion to determine the terms upon which such Options shall be exercisable,
subject to the applicable provisions of the Plan.
(b) Options may be exercised solely by the optionee during his
lifetime or after his death by the person or persons entitled thereto under his
will or the laws of descent and distribution.
(c) In the event of termination of employment for any reason other
than death or retirement, Options may be exercised only with respect to the
number of shares purchasable at the time of such termination.
(d) In the event of the death of the optionee following the date
of grant and
3
<PAGE> 4
while in the employment of the Company or any Parent or Subsidiary of the
Company, and while Options granted hereunder are still in force and unexpired
under the terms of Paragraph 6 hereof, any unmatured installments of the
Options shall be accelerated. Such acceleration shall be effective as of the
date of death. The Options outstanding in the name of a deceased optionee
shall thereupon be exercisable in full.
(e) In the event the optionee terminates his employment because of
retirement under any retirement plan of the Company or of any Parent or
Subsidiary of the Company while Options granted hereunder are still in force
and unexpired under the terms of Paragraph 6 hereof, the Committee shall have
discretion to permit any unmatured installments of the Options to be
accelerated as of the date of retirement and the Options shall thereupon be
exercisable in full.
(f) The purchase price of the shares as to which an Option is
exercised shall be paid in full at the time of the exercise. Such purchase
price shall be payable in cash, or, if the Option Agreement so provides, at the
option of the holder of such Option, in Stock theretofore owned by such holder
(or any combination of cash and such Stock). For purposes of determining the
amount, if any, of the purchase price satisfied by payment in Stock, such Stock
shall be valued at its fair market value on the date of exercise. Any Stock
delivered in satisfaction of all or a portion of the purchase price shall be
appropriately endorsed for transfer and assignment to the Company. No holder
of an Option shall be, or have any of the rights or privileges of, a
shareholder of the Company in respect of any shares purchasable upon the
exercise of any part of an Option unless and until certificates representing
such shares shall have been issued by the Company to such holders.
(g) No incentive Option (for purposes of this Paragraph 7 (g)
called New Option) shall be exercisable while there is outstanding any
incentive stock option (as defined in Section 422A of the Code) which incentive
stock option was granted, before the granting of the New Option to the optionee
to whom the New Option is granted, to purchase stock (within the meaning of
Section 422A (b) (7) of the Code), in the Company or a Parent or Subsidiary of
the Company, determined at the time the New Option is granted, or is a
predecessor corporation of the Company or such Parent or Subsidiary of the
Company. For purposes of this Paragraph 7 (g) an incentive stock option shall
be treated as outstanding until it has been exercised in full or expires by
reason of the lapse of time.
(h) The option agreement evidencing any Options granted under this
Plan shall provide that if the Optionee makes a disposition, within the meaning
of Section 425 (c) of the Code, and regulations promulgated thereunder, of any
share or shares of stock issued to him pursuant to his exercise of an Option
granted under the Plan within the two-year period commencing on the day after
the date of the grant of such Option or within a one-year period commencing on
the day after the date of transfer of the
4
<PAGE> 5
share or shares to him pursuant to the exercise of such option, he shall,
within ten (10) days of such disposition, notify the Company thereof and
immediately deliver to the Company any amount of federal income tax withholding
required by law.
8. Assignability.
No Option shall be assignable or otherwise transferable except
by will or the laws of descent and distribution.
9. Capital Change of the Company.
If the outstanding shares of Stock shall at any time be
changed or exchanged by declaration of a stock dividend, split-up, combination
of shares, or recapitalization, the number and kind of shares subject to this
Plan or subject to any Options theretofore granted, and the Option Prices,
shall be appropriately and equitably adjusted so as to maintain the
proportionate number of shares without changing the aggregate Option Price;
provided, however, no adjustment shall be made by reason of the distribution of
subscription rights on outstanding stock.
10. Purchase for Investment.
Unless the options and shares covered by the Plan have been
registered under the Securities Act of 1933, as amended, or the Company has
determined that such registration is unnecessary under regulations promulgated
thereunder by any banking regulatory agency, each person exercising an Option
under the Plan may be required by the Company to give a representation in
writing that he is acquiring such shares for his own account for investment and
not with a view to, or for sale in connection with, the distribution of any
part thereof.
11. Taxes.
The Company may make such provisions as it may deem
appropriate for the withholding of any taxes which it determines is required in
connection with any Options granted under the Plan.
12. Effective Date of Plan.
The Plan, shall be effective as of August 1, 1984.
13. Amendments or Termination.
The Board of Directors may amend, alter or discontinue the
Plan, except that no amendment or alteration shall be made which would impair
the rights of any
5
<PAGE> 6
participant under any Option theretofore granted, without his consent, and
except that no amendment or alteration shall be made which, without the
approval of the shareholders, would:
(a) Increase the total number of shares reserved for the
purposes of the Plan, except as is provided in Paragraph 9, or decrease the
Option Price provided for in Paragraph 5, or change the class of employees
eligible to participate in the Plan as provided in Paragraph 3; or
(b) Extend the option period provided for in Paragraph 6; or
(c) Materially increase the benefits accruing to participants
under the Plan; or
(d) Materially modify the requirements as to eligibility for
participation in the Plan.
14. Government Regulations.
The Plan, and the granting and exercise of Options thereunder,
and the obligation of the Company to sell and deliver shares under such
Options, shall be subject to all applicable laws, rules and regulations, and to
such approvals by any governmental agencies or national securities exchanges as
may be required.
6
<PAGE> 1
Exhibit 5
March 11, 1998
Prime Bancshares, Inc.
12200 Northwest Freeway
Houston, Texas 77092
Ladies and Gentlemen:
We have acted as counsel to Prime Bancshares, Inc., a Texas corporation (the
"Company"), in connection with the registration and proposed issuance of up to
1,564,000 shares (the "Shares") of its common stock, par value $.25 per share
(the "Common Stock") in connection with the (i) Prime Bancshares, Inc. 1997
Stock Incentive Plan; (ii) 1993 Incentive Stock Option Plan of Prime Bancshares,
Inc. (formerly Independent Bancorp, Inc.); and (iii) 1984 Incentive Stock Option
Plan of Prime Bancshares, Inc. (collectively, the "Plans"). The Company is
filing with the Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended, a Registration Statement on Form S-8
relating to the Shares (the "Registration Statement").
We have examined originals or copies of (i) the Amended and Restated Articles of
Incorporation of the Company, (ii) the Amended and Restated Bylaws of the
Company, (iii) the Plans, (iv) certain resolutions of the Board of Directors of
the Company and (v) such other documents and records as we have deemed necessary
and relevant for purposes hereof. In addition, we have relied on certificates of
officers of the Company as to certain matters of fact relating to this opinion
and have made such investigations of law as we have deemed necessary and
relevant as a basis hereof. In such examination, we have assumed the genuineness
of all signatures, the authenticity of all documents, certificates and records
submitted to us as originals, the conformity to original documents, certificates
and records of all documents, certificates and records submitted to us as
copies, and the truthfulness of all statements of fact contained therein.
Based upon the foregoing and subject to the limitations and assumptions set
forth herein and having due regard for such legal considerations as we deem
relevant, we are of the opinion
<PAGE> 2
Prime Bancshares, Inc.
March 11, 1998
Page 2
that the Shares have been duly and validly authorized and when issued and paid
for in accordance with the terms of each of the Plans, for a consideration at
least equal to the par value thereof, the Shares will be validly issued, fully
paid and nonassessable.
We hereby consent to the filing of this opinion with the Securities and Exchange
Commission as an exhibit to the Registration Statement and to the use of our
name therein. By giving such consent, we do not admit that we are experts with
respect to any part of the Registration Statement, including this Exhibit within
the meaning of the term "expert" as used in the Securities Act of 1933, as
amended, or the rules and regulations thereunder.
Very truly yours,
Bracewell & Patterson, L.L.P.
<PAGE> 1
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We have issued our report dated January 20, 1998, accompanying the
consolidated financial statements included in the Annual Report of Prime
Bancshares, Inc. and Subsidiaries on Form 10-K for the year ended December 31,
1997. We hereby consent to the incorporation by reference of said report in the
Registration Statement on Form S-8.
GRANT THORNTON LLP.
Houston, Texas
March 12, 1998
