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Exhibit 10.5(a)
AMENDED AND RESTATED
BANCORP RHODE ISLAND, INC.
1996 INCENTIVE AND NONQUALFIED STOCK OPTION PLAN
WHEREAS, pursuant to Section 2.5 of that certain Plan of Reorganization
and Merger dated as of February 15, 2000 (the "Merger Agreement") by and among
Bank Rhode Island ("Bank RI"), Bancorp Rhode Island, Inc. (the "Corporation")
and BKRI Interim Bank, each outstanding option to purchase the common stock of
Bank RI, including options to purchase such common stock granted to pursuant to
Bank RI's 1996 Incentive and Nonqualified Stock Option Plan, as amended (the
"1996 Plan"), became, by virtue of the effectiveness of the Merger Agreement and
Section 8.3 of the 1996 Plan, without any action on the part of the holders of
such options, options to purchase the Common Stock, par value $0.01 per share,
of the Corporation (the "Common Stock"); and
WHEREAS, the Corporation desires to amend and restate the 1996 Plan to
reflect the existence of the Corporation as the holding company for Bank RI, and
to effect the changes to the 1996 Plan necessary to implement the purposes of
the 1996 Plan under the new holding company structure; and
WHEREAS, pursuant to Section 10 of the 1996 Plan, the Board of Directors of
Bank RI has consented to the amendment and restatement of the 1996 Plan as
hereinafter set forth; and
WHEREAS, the Board of Directors of the Corporation has consented to the
adoption of the 1996 Plan as hereby amended and restated;
NOW, THEREFORE, the 1996 Plan is amended and restated as follows:
SECTION 1. PURPOSE
This Amended and Restated 1996 Incentive and Nonqualified Stock Option Plan
(the "Plan") of the Corporation, is designed to provide additional incentive to
executives and other key employees of the Corporation and its subsidiaries and
for certain other individuals providing services to or acting as directors of
the Corporation and its subsidiaries. The Corporation intends that this purpose
will be effected by the granting of incentive stock options ("Incentive Stock
Options") as defined in Section 422 of the Internal Revenue Code of 1986, as
amended (the "Code"), and nonqualified stock options ("Nonqualified Options")
under the Plan which afford such executives, key employees, directors and other
eligible individuals an opportunity to acquire or increase their proprietary
interest in the Corporation through the acquisition of shares of its Common
Stock. The Corporation intends that Incentive Stock Options issued under the
Plan will qualify as "incentive stock options" as defined in Section 422 of the
Code and the terms of the Plan shall be interpreted in accordance with this
intention; provided, however, that no option granted hereunder will qualify as
an "incentive stock option" unless the Plan is approved by the stockholders of
the Corporation- within twelve months prior to or following the adoption of the
Plan by the
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Board. The terms "parent" and "subsidiary" as used herein shall have the
respective meanings set forth in Section 424 of the Code.
SECTION 2. ADMINISTRATION
2.1 BOARD OF DIRECTORS/ COMMITTEE.
(a) Except as otherwise provided in section 2.1(b) below, the Plan shall be
administered by the Board of Directors (the "Board") of the Corporation.
(b) At such time and so long as the Corporation has a class of securities
registered pursuant to Section 12 of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), the Plan shall be administered by a Committee (the
"Committee") consisting of at least two members of the Board of Directors
appointed by the Board of Directors of the Corporation. None of the members of
the Committee shall be an officer or other employee of the Corporation. It is
the intention of the Corporation that, so long as the Corporation has a class of
securities registered pursuant to the Exchange Act, the Plan shall be
administered, in accordance with the provisions of Section 4 hereof, by
"disinterested persons" within the meaning of Rule l6b-3 under the Exchange Act,
but the authority and validity of any act taken or not taken by the Committee
shall not be affected if any person administering the Plan is not a
disinterested person. Except as specifically reserved to the Board under the
terms of the Plan, the Committee shall have full and final authority to the
Board under the operate, manage, and administer the Plan on behalf of the
Corporation. Action by the Committee shall require the affirmative vote of a
majority of all members thereof.
2.2 POWERS OF THE BOARD/COMMITTEE. Subject to the terms and conditions of
the Plan, the Board or the Committee, as the case may be, shall have the power:
(a) To determine from time to time the persons eligible to receive
options and the options to be granted to such persons under the Plan and to
prescribe the terms, conditions, restrictions, if any, and provisions
(which need not be identical) of each option granted under the Plan to such
persons;
(b) To construe and interpret the Plan and options granted thereunder
and to establish, amend, and revoke rules and regulations for
administration of the Plan. In this connection, the Board or the Committee,
as the case may be, may correct any defect or supply any omission, or
reconcile any inconsistency in the Plan, or in any option agreement, in the
manner and to the extent it shall deem necessary or expedient to make the
Plan fully effective. All decisions and determinations by the Board or the
Committee, as the case may be, in the exercise of this power shall be final
and binding upon the Corporation and optionees;
(c) To make, in its sole discretion, changes to any outstanding option
granted under the Plan, including: (i) to reduce the exercise price, (ii)
to accelerate the vesting schedule or (iii) to extend the expiration date;
and
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(d) Generally, to exercise such powers and to perform such acts as are
deemed necessary or expedient to promote the best interests of the
Corporation with respect to the Plan.
SECTION 3. STOCK
3.1 STOCK TO BE ISSUED. The stock subject to the options granted under the
Plan shall be shares of the Corporation's authorized but unissued common stock,
$1.00 par value (the "Common Stock"), or shares of the Corporation's Common
Stock held in treasury. The total number of shares that may be issued pursuant
to options - ranted under the Plan shall not exceed an aggregate of three
hundred eighty-five thousand (385,000) shares of Common Stock; provided,
however, that the class and aggregate number of shares which may be subject to
options granted under the Plan shall be subject to adjustment as provided in
Section 8 hereof.
3.2 EXPIRATION. CANCELLATION OR TERMINATION OF OPTION. Whenever any
outstanding option under the Plan expires, is cancelled or is otherwise
terminated (other than by exercise), the shares of Common Stock allocable to the
unexercised portion of such option may again be the subject of options under the
Plan.
SECTION 4. ELIGIBILITY
4.1 PERSONS ELIGIBLE. Incentive Stock Options under the Plan may be
granted only to officers and other employees of the Corporation, or its
subsidiaries. Nonqualified Options may be granted to officers or other employees
of the Corporation or its subsidiaries, to members of the Board of Directors of
the Corporation or its subsidiaries, and to consultants or other persons who
render services to the Corporation or its subsidiaries (regardless of whether
they are also employees), provided, however, that no such option may be granted
to a person who is a member of the Committee, if any, at the time of grant.
4.2 GREATER-THAN-TEN-PERCENT STOCKHOLDERS. Except as may otherwise be
permitted by the Code or other applicable law or regulation, no Incentive Stock
Option shall be granted to an individual who, at the time the option is granted,
owns (including ownership attributed pursuant to Section 424 of the Code) more
than ten percent of the total combined voting power of all classes of stock of
the Corporation or any parent or subsidiary (a "greater-than-ten-percent
stockholder"), unless such Incentive Stock Option provides that (i) the purchase
price per share shall not be less than one hundred ten percent of the fair
market value of the Common Stock at the time such option is granted, and (ii)
that such option shall not be exercisable to any extent after the expiration of
five years from the date it is granted.
4.3 MAXIMUM AGGREGATE FAIR MARKET VALUE. The aggregate fair market value
(determined at the time the option is granted in the manner specified in Section
6.3) of the Common Stock with respect to which Incentive Stock Options are
exercisable for the first time by any optionee during any calendar year (under
the Plan and any other plans of the Corporation or any parent or subsidiary for
the issuance of incentive stock options) shall not exceed $100,000 (or such
greater amount as may from time to time be permitted with respect to incentive
stock options by the Code or any other applicable law or regulation).
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SECTION 5. TERMINATION OF EMPLOYMENT OR DEATH OF OPTIONEE
5.1 TERMINATION OF EMPLOYMENT. Except as may be otherwise expressly
provided herein, options shall terminate on the earlier of:
(a) the date of expiration thereof,
(b) the date of termination of the optionee's employment with or
services to the Corporation by it for cause (as determined by the
Corporation);
(c) 30 days after the date of termination of the optionee's employment
with or services to the Corporation voluntarily by the optionee; or
(d) 90 days after the date of termination of the optionee's employment
with or services to the Corporation by it without cause; PROVIDED, that
Nonqualified Options granted to persons who are not employees of the
Corporation need not, unless the Board or the Committee, as the case may
be, determines otherwise, be subject to the provisions set forth in clauses
(b), (c) and (d) above.
An employment relationship between the Corporation and the optionee shall be
deemed to exist during any period in which the optionee is employed by the
Corporation, or any parent or subsidiary. Whether authorized leave of absence,
or absence on military or government service, shall constitute termination of
the employment relationship between the Corporation and the optionee shall be
determined by the Board or the Committee, as the case may be, at the time
thereof.
As used herein, "cause" shall mean (x) any material breach by the optionee of
any agreement to which the optionee and the Corporation are both parties, (y)
any act or omission to act by the optionee which may have a material and adverse
effect on the Corporation's business or on the optionee's ability to perform
services for the Corporation, including, without limitation, the commission of
any crime (other than ordinary traffic violations), or (z) any material
misconduct or material neglect of duties by the optionee in connection with the
business or affairs of the Corporation or any affiliate of the Corporation.
5.2 DEATH OR PERMANENT DISABILITY OF OPTIONEE. In the event of the death
or permanent and total disability of the holder of an option that is subject to
clause (b) or (c) of Section 5.1 above prior to termination of the optionee's
employment with or services to the Corporation and before the date of expiration
of such option, such option shall terminate on the earlier of such date of
expiration or one year following the date of such death or disability. After the
death of the optionee, his/her executors, administrators or any person or
persons to whom his/her option may be transferred by will or by the laws of
descent and distribution, shall have ,the right, at any time prior to such
termination, to exercise the option to the extent the optionee was entitled to
exercise such option immediately prior to his/her death. An optionee is
permanently and totally disabled if he/she is unable to engage in any
substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to last for a continuous period of not
less than 12 months; permanent and total disability shall be determined in
accordance with Section 22(e)(3) of the Code and the regulations issued
thereunder.
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SECTION 6. TERMS OF THE OPTION AGREEMENTS
Each option agreement shall be in writing and shall contain such terms,
conditions, restrictions, if any, and provisions as the Board or the Committee,
as the case may be, shall from time to time deem appropriate. Such provisions or
conditions may include without limitation restrictions on transfer, repurchase
rights, or such other provisions as shall be determined by the Board or the
Committee, as the case may be, PROVIDED that such additional provisions shall
not be inconsistent with any other term or condition of the Plan and such
additional provisions shall not cause any Incentive Stock Option granted under
the Plan to fail to qualify as an incentive option within the meaning of Section
422 of the Code. At such time as the Corporation has a class of securities
registered pursuant to Section 12 of the Exchange Act, the shares of stock
issuable upon exercise of an option by any executive officer, director or
beneficial owner of more than ten percent of the Common Stock of the Corporation
may not be sold or transferred (except that such shares may be issued upon
exercise of such option) by such officer, director or beneficial owner for a
period of six months following the grant of such option.
Option agreements need not be identical, but each option agreement by
appropriate language shall include the substance of all of the following
provisions:
6.1 EXPIRATION OF OPTION. Notwithstanding any other provision of the Plan
or of any option agreement, each option shall expire on the date specified in
the option agreement, which date shall hot, in the case of an Incentive Stock
Option, be later than the tenth anniversary (fifth anniversary in the case of a
greater-than-ten-percent stockholder) of the date on which the option was
granted, or as specified in Section 5 of this Plan.
6.2 EXERCISE. Each option may be exercised, so long as it is valid and
outstanding from time to time in part or as a whole, subject to any limitations
with respect to the number of shares for which the option may be exercised at a
particular time and to such other conditions as the Board or the Committee, as
the case may be, in its discretion may specify upon granting the option.
6.3 PURCHASE PRICE. The purchase price per share under each option shall
be determined by the Board or the Committee, as the case may be, at the time the
option is granted; provided, however, that the option price of any Incentive
Stock Option shall not, unless otherwise permitted by the Code or other
applicable law or regulation, be less than the fair market value of the Common
Stock on the date the option is granted (110 % of the fair market value in the
case of a greater-than-ten-percent stockholder). For the purpose of the Plan the
fair market value of the Common Stock shall be the closing price per share on
the date of grant of the option as reported on the Nasdaq Stock Market or by a
nationally recognized stock exchange, or, if the Common Stock is not listed on
the Nasdaq Stock Market or such an exchange, the fair market value as determined
by the Board or the Committee, as the case may be.
6.4 TRANSFERABILITY OF OPTIONS. Options shall not be transferable by the
optionee otherwise than by will or under the laws of descent and distribution,
and shall be exercisable, during his or her lifetime, only by him or her.
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6.5 RIGHTS OF OPTIONEES. No optionee shall be deemed for any purpose to be
the owner of any shares of Common Stock subject to any option unless and until
the option shall have been exercised pursuant to the terms thereof, and the
Corporation shall have issued and delivered the shares to the optionee.
SECTION 7. METHOD OF EXERCISE, PAYMENT OF PURCHASE PRICE
7.1 METHOD OF EXERCISE. Any option granted under the Plan may be exercised
by the optionee by delivering to the Corporation, on any business day a written
notice specifying the number of shares of Common Stock the optionee then desires
to purchase and specifying the address to which the certificates for such shares
are to be mailed (the "Notice"), accompanied by payment for such shares.
7.2 PAYMENT OF PURCHASE PRICE. Payment for the shares of Common Stock
purchased pursuant to the exercise of an option shall be made either by (i)
cash, certified check, bank draft or postal or express money order equal to the
option price for the number of shares specified in the Notice, or (ii) with the
consent of the Board or the Committee, as the case may be, shares of Common
Stock of the Corporation having a fair market value equal to the option price of
such shares, or (iii) with the consent of the Board or the Committee, as the
case may be, such other consideration which is acceptable to said Board or
Committee, as the case may be, and which has a fair market value equal to the
option price of such shares, or (iv) with the consent of the Board or the
Committee as the case may be, a combination of (i), (ii) and/or (iii). For the
purpose of the preceding sentence, the fair market value per share of Common
Stock so delivered to the Corporation shall be determined in the manner
specified in Section 6.3. As promptly as practicable after receipt of the Notice
and accompanying payment, the Corporation shall deliver to the optionee
certificates for the number of shares with respect to which such option has been
so exercised, issued in the optionee's name; provided, however, that such
delivery shall be deemed effected for all purposes when the Corporation or a
stock transfer agent of the Corporation shall have deposited such certificates
in the United States mail, addressed to the optionee, at the address specified
in the Notice.
SECTION 8. CHANGES IN THE CORPORATION'S CAPITAL STRUCTURE
8.1 RIGHTS OF THE CORPORATION. The existence of outstanding options shall
not affect in any way the right or power of the Corporation or its stockholders
to make or authorize, without limitation, any or all adjustments,
recapitalizations, reorganizations or other changes in the Corporation's capital
structure or its business, or any merger or consolidation of the Corporation, or
any issue of Common Stock, or any issue of bonds, debentures, preferred or prior
preference stock or other capital stock ahead of or affecting the Common Stock
or the rights thereof, or the dissolution or liquidation of the Corporation, or
any sale or transfer of all or any part of its assets or business, or any other
corporate act or proceeding, whether of a similar character or otherwise.
8.2 RECAPITALIZATION, STOCK SPLITS AND DIVIDENDS. If the Corporation shall
effect a subdivision or consolidation of shares or other capital readjustment,
the payment of a stock dividend, or other increase or reduction of the number of
shares of the Common Stock outstanding, in any such case without receiving
compensation therefor in money, services or
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property, then (i) the number, class, and price per share of shares of stock
subject to outstanding options hereunder shall be appropriately adjusted by the
Corporation in such a manner as to entitle an optionee to receive upon exercise
of an option, for the same aggregate cash consideration, the same total number
and class of shares as he or she would have received as a result of the event
requiring the adjustment had he or she exercised his or her option in full
immediately prior to such event; and (ii) the number and class of shares with
respect to which options may be granted under the Plan shall be adjusted by
substituting for the total number of shares of Common Stock then reserved for
issuance under the Plan that number and class of shares of stock that the owner
of an equal number of outstanding shares of Common Stock would own as the result
of the event requiring the adjustment.
8.3 MERGER WITHOUT CHANGE OF CONTROL. After a merger of one or more
corporations into the Corporation, or after a consolidation of the Corporation
and one or more corporations in each case as a result of which (i) the
Corporation shall be the surviving corporation, and (ii) the stockholders of the
Corporation immediately prior to such merger or consolidation own after such
merger or consolidation shares representing at least fifty percent of the voting
power of the Corporation, each holder of an outstanding option shall, at no
additional cost, be entitled upon exercise of such option to receive in lieu of
the number of shares as to which such option shall then be so exercisable, the
number and class of shares of stock or other securities to which such holder
would have been entitled pursuant to the terms of the agreement of merger,
consolidation or reorganization if, immediately prior to such merger,
consolidation or reorganization, such holder had been the holder of record of a
number of shares of, Common Stock equal to the number of shares for which such
option was exercisable.
8.4 SALE OR MERGER WITH CHANGE OF CONTROL. If the Corporation is merged
into or consolidated with another corporation under circumstances where the
Corporation is not the surviving corporation, or if there is a merger or
consolidation where the Corporation is the surviving corporation but the
stockholders of the Corporation immediately prior to such merger or
consolidation do not own after such merger or consolidation shares representing
at least fifty percent of the voting power of the Corporation, or if the
Corporation is liquidated, or sells or otherwise disposes of substantially. all
of its assets to another corporation while unexercised options remain
outstanding under the Plan (i) subject to the provisions of clause (iii) below,
after the effective date of such merger, consolidation, reorganization,
liquidation; sale or disposition, as the case may be, each holder of an
outstanding option shall be entitled, upon exercise of such option, to receive,
in lieu of shares of Common Stock, shares of such stock or other securities,
cash or property as the holders of shares of Common Stock received pursuant to
the terms of the merger, consolidation, reorganization, liquidation, sale or
disposition; (ii) the Board or the Committee, as the case may be, may accelerate
the time for exercise of all unexercised and unexpired options to and after a
date prior to the effective date of such merger, consolidation, reorganization,
liquidation, sale or disposition, as the case may be, specified by said Board or
Committee; or (iii) all outstanding options may be cancelled by the Board or the
Committee, as the case may be, as of the effective date of any such merger,
consolidation, reorganization, liquidation, sale or disposition provided that
(x) notice of such cancellation shall be given to each holder of an option and
(y) each holder of an option shall have the right to exercise such option to the
extent that the same is then exercisable or, if said Board or Committee shall
have accelerated the time for exercise of all unexercised and unexpired options,
in full during, the 30-day period preceding the effective date of such merger,
consolidation, reorganization, liquidation, sale or disposition.
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8.5 ADJUSTMENTS TO COMMON STOCK SUBJECT TO OPTION. Except as hereinbefore
expressly provided, the issue by the Corporation of shares of stock of any
class, or securities convertible into shares of stock of any class, for cash or
property, or for labor or services, either upon direct sale or upon the exercise
of rights or warrants to subscribe therefor, or upon conversion of shares or
obligations of the Corporation convertible into such shares or other securities,
shall not affect, and no adjustment by reason thereof shall be made with respect
to, the number or price of shares of Common Stock then subject to outstanding
options.
8.6 MISCELLANEOUS. Adjustments under this Section 8 shall be determined by
the Board or the Committee, as the case may be, and such determinations shall be
conclusive. No fractional shares of Common Stock shall be issued under the Plan
on account of any adjustment specified above.
SECTION 9. GENERAL RESTRICTIONS
9.1 INVESTMENT REPRESENTATIONS. The Corporation may require any person to
whom an option is granted, as a condition of exercising such option, to give
written assurances in substance and form satisfactory to the Corporation to the
effect that such person is acquiring the Common Stock subject to the option for
his or her own account for investment and not with any present intention of
selling or otherwise distributing the same, and to such other effects as the
Corporation deems necessary or appropriate in order to comply with federal and
applicable state securities laws.
9.2 COMPLIANCE WITH SECURITIES LAWS. The Corporation shall not be required
to sell or issue any shares under any option if the issuance of such shares
shall constitute a violation by the optionee or by the Corporation of any
provisions of any law or regulation of any governmental authority. In addition,
in connection with the Securities Act of 1933, as now in effect or hereafter
amended (the "Securities Act"), upon exercise of any option, the Corporation
shall not be required to issue such shares unless the Board or the. Committee,
as the case may be, has received evidence satisfactory to it to the effect that
the bolder of such option will not transfer such shares except pursuant to a
registration statement in effect under such Act or unless an opinion of counsel
satisfactory to the Corporation has been received by the Corporation to the
effect that such registration is not required. Any determination in this
connection by the Board or the Committee, as the case may be, shall be final,
binding and conclusive. In the event the shares issuable on exercise of an
option are not registered under the Securities Act, the Corporation may imprint
upon any certificate representing shares so issued the following legend or any
other legend which counsel for the Corporation considers necessary or advisable
to comply with the Securities Act and with applicable state securities laws:
The shares of stock represented by this certificate have not been registered
under the Securities Act of 1933 or under the securities laws of any State and
may not be sold or transferred except upon such registration or upon receipt by
the Corporation of an opinion counsel satisfactory to the Corporation, in form
and substance satisfactory to the Corporation, that registration is not required
for such sale or transfer.
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The Corporation may, but shall in no event be obligated to, register any
securities covered hereby pursuant to the Securities Act; and in the event any
shares are so registered the Corporation may remove any legend on certificates
representing such shares. The Corporation shall not be obligated to take any
other affirmative action in order to cause the exercise of an option or the
issuance of shares pursuant thereto to comply with any law or regulation of any
governmental authority.
9.3 EMPLOYMENT OBLIGATION. The granting of any option shall not impose
upon the Corporation any obligation to employ or continue to employ any
optionee; and the right of the Corporation to terminate the employment of any
officer or other employee shall not be diminished or affected by reason of the
fact that an option has been granted to him or her.
SECTION 10. AMENDMENT OR TERMINATION OF THE PLAN
The Board of Directors may modify, revise or terminate this Plan at any time and
from time to time, except that the class of persons eligible to receive options
and the aggregate number of shares issuable pursuant to this Plan shall not be
changed or increased, other than by operation of Section 8 hereof, without the
consent of the stockholders of the Corporation.
SECTION 11. NONEXCLUSIVITY OF THE PLAN
Neither the adoption of the Plan by the Board of Directors nor the submission of
the Plan to the stockholders of the Corporation for approval shall be construed
as creating any limitations on the power of the Board of Directors to adopt such
other incentive arrangements as it may deem desirable, including, without
limitation, the granting of stock options otherwise than under the Plan, and
such arrangements may be either applicable generally or only in specific cases.
SECTION 12. EFFECTIVE DATE AND DURATION OF PLAN
The Plan shall become effective upon the date of opening of the Corporation for
business, provided, however, that the Plan shall be subject to the approval of
the Corporation's stockholders in accordance with applicable laws and
regulations at an annual or special meeting held within twelve months of such
effective date. No options granted under the Plan prior to such regulatory and
stockholder approvals may be exercised until such approvals have been obtained.
No option may be granted under the Plan after the tenth anniversary of the
effective date. The Plan shall terminate (x) when the total amount of the Stock
with respect to which options may be granted shall have been issued upon the
exercise of options or (y) by action of the Board of Directors pursuant to
Section 10 hereof, whichever shall first occur.
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IN WITNESS WHEREOF, the Corporation has caused this Amended and Restated
1996 Incentive and Nonqualified Stock Option Plan to be executed by its duly
authorized officer as of the 19th day of September, 2000.
BANCORP RHODE ISLAND, INC.
By:
----------------------------
Name: Merrill W. Sherman
Title: President
Attest:
--------------------------------
Margaret D. Farrell
Secretary
