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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 19, 1998
REGISTRATION NO. 333-46571
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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POST-EFFECTIVE AMENDMENT NO. 2
(ON FORM S-8)
TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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NATIONAL CITY CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
Delaware
(STATE OR OTHER JURISDICTION OF
INCORPORATION OR ORGANIZATION)
1900 East Ninth Street
Cleveland, Ohio
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
34-1111088
(I.R.S. EMPLOYER IDENTIFICATION NO.)
44114
(ZIP CODE)
The Restated First of America
Bank Corporation 1987 Stock
Option Plan
Amended and Restated First of America
Bank Corporation Stock Compensation Plan
First of America Bank Corporation
Director of Stock Compensation Plan
(FULL TITLE OF THE PLAN)
DAVID L. ZOELLER, Esq.
Senior Vice President,
General Counsel and Secretary
National City Corporation
1900 East Ninth Street
Cleveland, Ohio 44114
(NAME AND ADDRESS OF AGENT FOR SERVICE)
(216) 575-2978
(TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
National City Corporation ("National City") hereby incorporates in this
Registration Statement by reference its Annual Report on Form 10-K for the year
ended December 31, 1997 and its Current Reports on Form 8-K dated January 13,
1998 and March 9, 1998, the description of National City Common Stock
("National City Common") set forth in the Restated Certificate of Incorporation
of the Registrant, as amended (filed as Exhibit 3.1 to Registration Statement
No. 33-49823), each as filed with the Commission pursuant to the Exchange Act.
All documents filed by National City pursuant to Section 13(a), 13(c),
14 or 15(d) of the Exchange Act after the date of this Registration Statement
shall be deemed to be incorporated by reference in this Registration Statement
and to be a part hereof from the respective dates of filing of such documents.
Any statement contained in a 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by reference herein shall be deemed to be modified or superseded for purposes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 such statement is modified or
superseded by a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein. Any
such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Registration Statement.
THIS REGISTRATION STATEMENT INCORPORATES DOCUMENTS OF NATIONAL CITY BY
REFERENCE WHICH ARE NOT PRESENTED HEREIN OR DELIVERED HEREWITH. THE NATIONAL
CITY DOCUMENTS (OTHER THAN CERTAIN EXHIBITS TO ANY SUCH DOCUMENTS) ARE
AVAILABLE TO ANY PERSON TO WHOM A COPY OF THIS REGISTRATION STATEMENT HAS BEEN
DELIVERED UPON WRITTEN OR ORAL REQUEST TO NATIONAL CITY CORPORATION, 1900 EAST
NINTH STREET, CLEVELAND, OHIO 44114, ATTENTION: THOMAS A. RICHLOVSKY, SENIOR
VICE PRESIDENT AND TREASURER, TELEPHONE NUMBER (216) 575-2126, AND WILL BE
FURNISHED WITHOUT CHARGE.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The legality of the shares of National City Common have been passed
upon for National City by Carlton E. Langer, Vice President and Assistant
General Counsel of National City. Mr. Langer owns currently exercisable options
to purchase shares of National City Common.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
National City. Under Section 145 of the Delaware General Corporation
Law (the "DGCL"), directors, officers, employees and other individuals may be
indemnified against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement in connection with specified actions, suits or
proceedings, whether civil, criminal, administrative or investigative (other
than an action by or in the right of National City -- a "derivative action") if
they acted in good faith and in a manner they reasonably believed to be in, or
not opposed to, the best interests of National City, and, regarding any criminal
action or proceeding, had no reasonable cause to believe their conduct was
unlawful. A similar standard is applicable in the case of derivative actions,
except that indemnification only extends to expenses (including attorneys' fees)
incurred in connection with the defense or settlement of such actions. The DGCL
requires court approval before there can be any indemnification where the person
seeking indemnification has been found liable to National City. To the extent
that a person otherwise
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eligible to be indemnified is successful on the merits of any claim or defense
described above, indemnification for expenses (including attorneys' fees)
actually and reasonably incurred is mandated by the DGCL.
Article VI of National City's By-laws provides that National City must
indemnify, to the fullest extent authorized by the DGCL, each person who was or
is made party to, is threatened to be made a party to, or is involved in, any
action, suit or proceeding because he is or was a director, officer or employee
of National City or of any subsidiary (or was serving at the request of
National City as a director, trustee, officer, employee or agent of another
entity) while serving in such capacity against all expenses, liabilities or
loss incurred by such person in connection therewith. The amount of any
indemnification to which any person shall otherwise be entitled under Article
VI shall be reduced to the extent that such person shall otherwise be entitled
to valid and collectible indemnification provided by a subsidiary of National
City or any other source.
Article VI also provides that National City may pay expenses incurred in
defending the proceedings specified above in advance of their final
disposition. National City may advance expenses to any director, officer or
employee only upon delivery to National City of an undertaking by the
indemnified party stating that he has reasonably incurred or will reasonably
incur actual expenses in defending an actual civil or criminal suit, action or
proceeding in his capacity as such director, officer or employee, or arising
out of his status as such director, officer or employee, and that he undertakes
to repay all amounts so advanced if it is ultimately determined that the person
receiving such payments is not entitled to be indemnified.
Finally, Article VI provides that National City may maintain insurance, at
its expense, to protect itself and any of its directors, officers, employees or
agents against any expense, liability or loss, regardless of whether National
City has the power or obligation to indemnify that person against such expense,
liability or loss under the provisions of Article VI.
The right to indemnification is not exclusive of any other right which any
person may have or acquire under any statute, provision of National City's
Certificate or By-laws, or otherwise. Additionally, no amendment to National
City's Certificate can increase the liability of any director or officer for
any act or omission by him prior to such amendment.
ITEM 8. EXHIBITS
The following Exhibits are filed as part of this Registration Statement:
3.1 Restated Certificate of Incorporation of National City Corporation,
as amended, (filed as Exhibit 3.1 to National City Corporation's
Annual Report on Form 10-K for the fiscal year ended December 31,
1997 and incorporated herein by reference).
3.2 National City Corporation First Restatement of By-Laws adopted April
27, 1987 (As Amended through October 24, 1994) (filed as Exhibit 3.2
to Registrant's Form S-4 Registration Statement No. 33-56539 dated
November 18, 1994 and incorporated herein by reference).
4.1 Instruments defining the rights of holders of certain long-term debt
of National City and its consolidated subsidiaries are not filed as
exhibits because the amount of debt under such instruments is less
than 10% of the total consolidated assets of National City.
National City undertakes to file these instruments with the
Commission upon request.
4.2 Credit Agreement dated as of February 2, 1996, by and between
National City and the banks named therein (filed as Exhibit 4.2 to
Registrant's Form S-4 Registration Statement No. 333-01697 dated
March 13, 1996 and incorporated herein by reference).
4.3 Certificate of Stock Designation dated as of February 2, 1998
designating National City Corporation's 6% Cumulative Convertible
Preferred Stock, Series 1, without par value, and fixing the powers,
preferences, rights, qualifications, limitations and restrictions
thereof (filed as Appendix D to Registration Statement No. 333-45609
and incorporated herein by reference) in addition to those set forth
in National City Corporation's Restated Certificate of Incorporation,
as amended (filed as Exhibit 3.1 to National City Corporation's
Annual Report on Form 10K for the fiscal year ended December 31,
1997 and incorporated herein by reference).
4.4 Form of the Restated First of America Bank Corporation 1987 Stock
Option Plan (filed as Exhibit 4.4).
4.5 Form of Amended & Restated First of America Bank Corporation Stock
Compensation (filed as Exhibit 4.5)
4.6 Form of First of America Bank Corporation Directors Stock
Compensation Plan (filed as Exhibit 4.6)
5.1 Opinion of Carlton E. Langer as to the legality of the National
City Common being registered (filed as Exhibit 5.1).
23.1 Consent of Ernst & Young LLP, Independent Auditors for National City
Corporation (filed as Exhibit 23.1).
23.2 Consent of Carlton E. Langer (included in his opinion filed as
Exhibit 5.1 to this Registration Statement and incorporated herein
by reference).
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*24.1 Power of Attorney (Filed as Exhibit 24.1).
* Previously filed.
ITEM 9. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, 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 the
registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high and of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table
in the effective registration statement.
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement;
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment 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;
(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.
The undersigned registrant hereby undertakes that, for 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.
"The undersigned registrant hereby undertakes to deliver or cause to be
delivered with the prospectus, to each person to whom the prospectus is sent or
given, the latest annual report, to security holders that is incorporated by
reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of
1934; and, where interim financial information required to be presented by
Article 3 of Regulation S-X is not set forth in the prospectus, to deliver, or
cause to be delivered to each person to whom the prospectus is sent or given,
the latest quarterly report that is specifically incorporated by reference in
the prospectus to provide such interim financial information."
"Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers or persons controlling the
registrant pursuant to the forgoing provisions, the registrant has been
informed 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."
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SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, 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 POST-EFFECTIVE
AMENDMENT NO. 2 (ON FORM S-8) TO FORM S-4 REGISTRATION STATEMENT TO BE SIGNED ON
ITS BEHALF BY THE UNDERSIGNED, THERETO DULY AUTHORIZED, IN THE CITY OF
CLEVELAND, STATE OF OHIO, ON THE 19TH DAY OF MARCH, 1988.
NATIONAL CITY CORPORATION
By /s/ THOMAS A. RICHLOVSKY
Thomas A. Richlovsky
Senior Vice President and
Treasurer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
POST-EFFECTIVE AMENDMENT NO. 2 (ON FORM S-8) TO FORM S-4 REGISTRATION STATEMENT
HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE CAPACITIES AND ON THE DATE
INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ DAVID A. DABERKO* Chairman and Chief Executive March 19, 1998
David A. Daberko Officer, Director (Principal
Executive Officer)
/s/ SANDRA H. AUSTIN* Director March 19, 1998
Sandra H. Austin
/s/ CHARLES H. BOWMAN* Director March 19, 1998
Charles H. Bowman
/s/ EDWARD B. BRANDON* Director March 19, 1998
Edward B. Brandon
/s/ JOHN G. BREEN* Director March 19, 1998
John G. Breen
/s/ JAMES S. BROADHURST* Director March 19, 1998
James S. Broadhurst
/s/ DUANE E. COLLINS* Director March 19, 1998
Duane E. Collins
/s/ DANIEL E. EVANS* Director March 19, 1998
Daniel E. Evans
/s/ OTTO N. FRENZEL III* Director March 19, 1998
Otto N. Frenzel III
</TABLE>
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<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ BERNADINE P. HEALY, M.D.* Director March 19, 1998
Bernadine P. Healy, M.D.
/s/ JOSEPH H. LEMIEUX* Director March 19, 1998
Joseph H. Lemieux
/s/ W. BRUCE LUNSFORD* Director March 19, 1998
W. Bruce Lunsford
/s/ ROBERT A. PAUL* Director March 19, 1998
Robert A. Paul
/s/ WILLIAM R. ROBERTSON* Director March 19, 1998
William R. Robertson
/s/ WILLIAM F. ROEMER* Director March 19, 1998
William F. Roemer
/s/ MICHAEL A. SCHULER* Director March 19, 1998
Michael A. Schuler
/s/ STEPHEN A. STITLE* Director March 19, 1998
Stephen A. Stitle
/s/ MORRY WEISS* Director March 19, 1998
Morry Weiss
</TABLE>
*Carlton E. Langer, the undersigned attorney-in-fact, by signing his name
below, does hereby sign this Post-Effective Amendment No. 2 (on Form S-8) to
Form S-4 Registration Statement on behalf of each of the above-indicated
officers and directors of National City Corporation (constituting a majority of
the directors) pursuant to a power of attorney executed by such persons and
previously filed with the Securities and Exchange Commission.
By /s/ CARLTON E. LANGER
Carlton E. Langer,
Attorney-in-fact March 19, 1998
March 19, 1998
<PAGE> 1
EXHIBIT 4.4
THE RESTATED
FIRST OF AMERICA BANK CORPORATION
1987 STOCK OPTION PLAN
Plan Document
February 21, 1996
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Revised
2/21/96
THE RESTATED
FIRST OF AMERICA BANK CORPORATION
1987 STOCK OPTION PLAN
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1. PURPOSE OF PLAN. The purpose of the 1987 Stock Option Plan ("Plan") is
to attract and retain able and experienced key management employees and
to provide an incentive to, and encourage stock ownership in First of
America Bank Corporation ("Corporation") by the key management
employees of the Corporation and its subsidiaries.
2. ADMINISTRATION OF PLAN. This Plan shall be administered by the
Compensation Committee ("Committee") appointed by the Board of
Directors of the Corporation consisting of not less than three members
of the Board of Directors of the Corporation ("Board"), all of whom
shall be ineligible to participate in this Plan. A majority of the
Committee shall constitute a quorum and the acts of a majority of the
members present at any meeting at which a quorum is present, or actions
approved in writing by all the members of the Committee, shall
constitute the acts of the Committee. The Committee shall have full
authority and discretion to (a) determine, consistent with the
provisions of this Plan, the employees to be granted options, the times
at which options shall be granted, the number of shares subject to each
option, the period during which each option becomes exercisable
(subject to Section 7), and the form of and terms contained in each
option agreement evidencing the grant of an option to be entered into
between the Corporation and the optionees, and (b) adopt rules and
regulations and prescribe and approve the forms to carry out the
purposes and provisions of this Plan. The Committee's interpretation
and construction of any provisions of this Plan or any option granted
hereunder shall be binding and conclusive, unless otherwise determined
by the Board. Any power that may be exercised or action that may be
taken by the Committee under this Plan may also be exercised or taken
by the Board. No member of the Committee or the Board shall be liable
for any action taken or determination made in good faith with respect
to this Plan or any option granted hereunder.
3. ELIGIBILITY. The Committee shall from time to time determine the key
management employees of the Corporation and its subsidiaries (including
officers and directors of the Corporation and its subsidiaries who are
also employees) who shall be granted options under this Plan. An
employee who has been granted an option may be granted an additional
option or options under this Plan if the Committee shall so determine.
The granting of an option under this Plan shall not affect any
outstanding stock option previously granted to an optionee under this
Plan or any other plan of the Corporation.
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4. SHARES SUBJECT TO PLAN. Subject to adjustment as provided in Section
10, the aggregate number of shares which may be issued pursuant to
options granted by the Committee under this Plan shall not exceed
1,700,000 shares of Common Stock of the Corporation, par value $10.00
per share ("Shares"), which may be treasury shares reacquired by the
Corporation or authorized and unissued shares, or a combination of
both. Any Shares subject to an option under this Plan which shall
expire or be terminated for any reason shall be available for the
granting of other options during the term of this Plan.
5. OPTION PRICE. The option price per Share under each option granted by
the Committee shall be not less than 100% of the fair market value per
share on the date an option is granted but in no event less than the
par value thereof. The fair market value on the date an option is
granted shall be the average between the highest and lowest quoted
price per share for sales made and reported on the New York Stock
Exchange, or on a sales or quotation system maintained by the National
Association of Securities Dealers, or such other national stock
exchange on which such Common Stock may than be listed and which
constitutes the principal market for such Common Stock on the latest
trading day for which sales or quotations are reported preceding the
day the option is granted.
6. EXERCISE OF OPTIONS. Each option granted under this Plan shall be
exercisable at the time and for the number of Shares as shall be
provided in an option agreement between the Corporation and the
optionee evidencing the option granted by the Committee and the terms
thereof. Shares shall be issued to the optionee pursuant to the
exercise of an option only upon receipt of the Corporation from the
optionee of payment in full either in cash or by a single exchange of
shares of Common Stock of the Corporation previously owned by the
optionee for at least one year from the date of exercise, or a
combination of both, in an amount, or having a combined value equal to
the aggregate option price for the Shares subject to the option or
portion thereof being exercised. In determining the holding period of
Shares of Common Stock exchanged in payment which have been acquired by
the optionee in conversion of the preferred stock of the Corporation,
the period during which such preferred stock had been held by the
optionee shall be counted. The value of the previously owned shares of
Common Stock exchanged in full or partial payment for the Shares
purchased upon the exercise of an option shall be equal to the
aggregate fair market value, as defined in Section 5, of such shares on
the latest trading day for which sales or quotations are reported
preceding the day of the exercise of such options.
The Committee, in its discretion, may permit an Optionee to pay all or
a portion of the option price, and/or any tax withholding liability, if
applicable, with respect to the exercise of an Option by withholding
shares of stock to be issued pursuant to exercise of an option,
provided that the Committee determines that the fair market value of
such withheld stock is equal to the corresponding portion of such
option price and/or tax withholding liability, as the case may be, to
be paid for therewith.
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7. TERM OF OPTION. Subject to the provisions of Section 9, each option
granted hereunder shall expire and not be exercisable after the date
ten years from the date the option is granted. In circumstances deemed
to be extraordinary by the Committee with respect to an optionee whose
employment with the Corporation is involuntarily terminated or may be
involuntarily terminated prior to the date upon which all installments
of the options shall be exercisable, the Committee may authorize an
amendment to any option agreement between the Corporation and such
optionee, or authorize a future option agreement between the
Corporation and such optionee to provide that the options which are
unexercised on the date of the termination of employment of the
optionee with the Corporation shall become exercisable in their
entirety within the three month period after the date of such
termination and shall no longer be required to be exercised in
installments, as described above.
8. NON-TRANSFERABILITY OF OPTION. No option granted under this Plan shall
be transferable except by will or the laws of descent. Each such option
shall be exercisable during the optionee's lifetime only by the
optionee.
9. TERMINATION OF EMPLOYMENT AND DEATH OF OPTIONEE.
(a) In the event that during the term of an unexercised option the
employment of the optionee with the Corporation is terminated
for any reason other than retirement, death or disability (as
provided in subsections (b), (c) and (d) below), such option
may not be exercised after the last day of employment.
(b) Subject to subsection (f) of this Section 9, in the event that
during the term of an unexercised option the employment of the
optionee is terminated because the optionee is disabled within
the meaning of Section 22(e)(3) of the Internal Revenue Code
or its successor statute, the optionee may exercise the option
with respect to all Shares covered by the option during a
three year period following the date of termination of
employment or the date of the optionee's death, as the case
may be, in the latter instance by the legal representative of
the deceased optionee's estate.
(c) Subject to subsection (f) of this Section 9 in the event that
during the term of an unexercised option the employment of the
optionee with the Corporation is terminated by reason of
retirement, such option may be exercised only within a three
year period following the date of retirement with respect to
all Shares covered by the option.
(d) Subject to subsection (f) of this Section 9, in the event that
during the term of an unexercised option an optionee dies, his
option may be exercised only within the three year period
following the date of death by his personal representative or
person to whom the optionee's rights pass by the optionee's
will or the laws of descent and distribution with respect to
all
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Shares covered by the option.
(e) The unexercised portion of any option which has not been
exercised and as to which the option is no longer exercisable
shall lapse, and the Shares subject to such option shall
become available for the granting of other options under this
Plan.
(f) The Committee may, in its discretion, grant options providing
for, and amend outstanding options to permit, their exercise
during a period in excess of three years, but not more than
five years, following the circumstances described in
subsections (b), (c) and (d) of this Section 9, provided such
exercise period in excess of three years shall be set forth in
the option agreement evidencing the option granted or an
amendment to such option agreement.
10. ADJUSTMENT IN NUMBER OF SHARES AND OPTION PRICE. The Committee shall
make appropriate and equitable adjustments in the number of Shares
subject to the Plan and the number of Shares and the option price with
respect to which all outstanding options, or portions thereof then
unexercised, shall be exercisable in the event of any subdivision or
combination of the outstanding Shares of the Corporation by
reclassification or otherwise, or in the event of the payment of a
stock dividend, a stock split, a capital reorganization, a
reclassification of Shares, a consolidation or merger, or the sale,
lease or conveyance of substantially all the assets of the Corporation.
Any such adjustment made by the Committee shall be final and binding
upon all optionees, the Corporation and all other interested persons.
11. LIMITED STOCK APPRECIATION RIGHTS. Notwithstanding anything to the
contrary herein, on the effective date of a Change in Control or a
liquidation or dissolution of the Corporation, each option granted
under this Plan but not yet exercised will be immediately canceled and
in lieu of further rights under the option, the optionee will receive
from the Corporation in cash the difference between the fair market
value and the option price, multiplied by the number of shares to which
the option related. For purposes of this Section, the fair market value
of a Share of Common Stock of the Corporation shall be determined in
the same manner as provided in Section 5 on the latest trading day for
which sales or quotations are reported preceding such effective date
or, if greater, the price or value received by shareholders for a Share
of Common Stock of the Corporation with respect to the largest number
of such Shares the ownership of which is transferred in conjunction
with such Change in Control, liquidation or dissolution of the
Corporation.
12. CHANGE IN CONTROL DEFINED. A Change in Control of the Corporation shall
have occurred:
(a) on the fifth day preceding the scheduled expiration date of a
tender offer by, or exchange offer by any corporation, person,
other entity
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or group (other than the Corporation or any of its wholly
owned subsidiaries) to acquire Voting Stock of the Corporation
if:
(i) after giving effect to such offer such corporation,
person, other entity or group would own twenty-five
percent (25%) or more of the Voting Stock of the
Corporation;
(ii) there shall have been filed documents with the
Securities and Exchange Commission in connection
therewith (or, if no such filing is required, public
evidence that the offer has already commenced); and
(iii) such corporation, person, other entity or group has
secured all required regulatory approvals to own or
control twenty-five percent (25%) or more of the
Voting Stock of the Corporation;
(b) if the shareholders of the Corporation approve a definitive
agreement to merge or consolidate the Corporation with or into
another corporation in a transaction in which neither the
Corporation nor any of its wholly owned subsidiaries will be
the surviving corporation, or to sell or otherwise dispose of
all or substantially all of the Corporation's assets to any
corporation, person, other entity or group (other than the
Corporation or any of its wholly owned subsidiaries), and such
definitive agreement is consummated;
(c) if any corporation, person, other entity or group (other than
the Corporation or any of its wholly owned subsidiaries)
becomes the Beneficial Owner (as defined in the Corporation's
Articles of Incorporation) of stock representing twenty-five
percent (25 %) or more of the Voting Stock of the Corporation;
or
(d) if during any period of two (2) consecutive years Continuing
Directors cease to comprise a majority of the Corporation's
Board of Directors.
The term "Continuing Director" means:
(a) any member of the Board of Directors of the Corporation at the
beginning of any period of two (2) consecutive years; and
(b) any person who subsequently becomes a member of the Board of
Directors of the Corporation; if
(i) such person's nomination for election or election to
the Board of Directors of the Corporation is
recommended or
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approved by resolution of a majority of the
Continuing Directors; or
(ii) such person is included as a nominee in a proxy
statement of the Corporation distributed when a
majority of the Board of Directors of the Corporation
consists of Continuing Directors.
"Voting Stock" shall mean those shares of the Corporation entitled
to vote generally in the election of directors.
13. AMENDMENT AND DISCONTINUANCE. The Board of Directors of the Corporation
may amend, alter, suspend or terminate this Plan; provided, however,
that no such action shall increase the period within which options may
be granted, or the maximum term for which any option may be granted,
the term of any option previously granted, or reduce the minimum option
price per Share as provided in Section 5, or otherwise alter or impair
any option previously granted under this Plan without the consent of
the optionee. In addition, the Board of Directors of the Corporation
may not amend this Plan to increase the number of Shares available to
be optioned under the Plan (other than as provided in Section 10),
without the approval by the affirmative vote of the holders of a
majority of the Shares of the Corporation's Common Stock present or
represented and entitled to vote at a meeting of the holders of shares
of the Corporation's Common Stock.
14. REQUIREMENTS OF LAW. The granting of options and the issuance of Shares
upon the exercise of an option shall be subject to all applicable laws,
rules and regulations and to such approvals by governmental agencies as
may be required.
15. EFFECTIVE DATE AND TERMINATION OF PLAN. The effective date of this Plan
is December 9, 1987. Options may be granted under the Plan at any time
prior to December 9, 1997, on which date the Plan shall terminate,
except as to options then outstanding which shall remain in effect
until they have been fully exercised or have expired.
16. NO EMPLOYMENT RIGHTS. Neither the Plan nor any option agreement entered
into between an optionee and the Corporation shall give the optionee or
any other person any right to remain in employment with the Corporation
or any of its subsidiaries or provide to any optionee or any other
person any rights except the right to purchase Shares as provided in
the Plan and any option agreement to which he or she is a party.
7
<PAGE> 1
Exhibit 4.5
AMENDED AND RESTATED
FIRST OF AMERICA BANK CORPORATION
STOCK COMPENSATION PLAN
1. PURPOSE; EFFECTIVENESS OF THE PLAN.
(a) The purpose of this Plan is to advance the interests of the Company
and its stockholders by helping the Company attract and retain the services of
employees and officers, upon whose judgment, initiative and efforts the Company
is substantially dependent, and to provide those persons with further incentives
to advance the interests of the Company. The Plan is also established with the
objective of encouraging Stock ownership by such employees and officers and
aligning their interests with those of stockholders.
(b) This Plan will become effective on the date of its adoption by the
Board, provided the Plan is approved by the stockholders of the Company
(excluding holders of shares of Option Stock or Restricted Stock issued by the
Company under this Plan) within twelve months after that date. If the Plan is
not approved by the stockholders of the Company, any Options or shares of
Restricted Stock granted under this Plan will be rescinded and void. This Plan
will remain in effect until it is terminated by the Board under Section 11
hereof, except that no Incentive Stock Option will be granted after the tenth
anniversary of the date of this Plan's adoption by the Board.
2. DEFINITIONS. Unless the context otherwise requires, the following
defined terms (together with other capitalized terms defined elsewhere in this
Plan) will govern the construction of this Plan, and of any Stock Option
Agreements or Restricted Stock Agreements entered into pursuant to this Plan:
(a) "10% Stockholder" means a person who owns, either directly or
indirectly by virtue of the ownership attribution provisions set
forth in Section 424(d) of the Code at the time he or she is
granted an Option, Stock possessing more than ten percent (10%)
of the total combined voting power or value of all classes of
Stock of the Company and/or of its Subsidiaries.
(b) "1933 Act" means the federal Securities Act of 1933, as amended.
(c) "1934 Act" means the federal Securities Exchange Act of 1934, as
amended.
(d) "Board" means the Board of Directors of the Company.
(e) A "Change in Control" of the Company shall have occurred:
(i) on the fifth day preceding the scheduled expiration date
of a tender offer by, or exchange offer by any
corporation, person, other
<PAGE> 2
entity or group (other than the Company or any of its
wholly owned Subsidiaries), to acquire Voting Stock of
the Company if:
(1) after giving effect to such offer such
corporation, person, other entity or group would
own 25% or more of the Voting Stock of the
Company;
(2) there shall have been filed documents with the
Securities and Exchange Commission in connection
therewith (or, if no such filing is required,
public evidence that the offer has already
commenced); and
(3) such corporation, person, other entity or group
has secured all required regulatory approvals to
own or control 25% or more of the Voting Stock
of the Company;
(ii) if the shareholders of the Company approve a definitive
agreement to merge or consolidate the Company with or
into another corporation in a transaction in which
neither the Company nor any of its wholly owned
Subsidiaries will be the surviving corporation, or to
sell or otherwise dispose of all or substantially all of
the Company's assets to any corporation, person, other
entity or group (other than the Company or any of its
wholly owned Subsidiaries), and such definitive
agreement is consummated;
(iii) if any corporation, person, other entity or group (other
than the Company or any of its wholly owned
Subsidiaries) becomes the Beneficial Owner (as defined
in the Company's articles of incorporation) of Stock
representing 25% or more of the Voting Stock of the
Company; or
(iv) if during any period of two consecutive years Continuing
Directors cease to comprise a majority of the Company's
Board of Directors.
(f) "Code" means the Internal Revenue Code of 1986, as amended
(references herein to Sections of the Code are intended to refer
to Sections of the Code as enacted at the time of this Plan's
adoption by the Board and as subsequently amended, or to any
substantially similar successor provisions of the Code resulting
from recodification, renumbering or otherwise).
(g) "Committee" means the Nominating and Compensation Committee of
the Board; except that where there is no Nominating and
Compensation Committee, the term "Committee" shall refer to any
committee of disinterested members of the Board designated by
the Board.
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<PAGE> 3
(h) "Company" means the First of America Bank Corporation, a
Michigan corporation and its successor or successors.
(i) "Company Performance Criteria" means such financial
performance criteria of the Company or its Subsidiaries as the
Committee may designate including Stock price, return on assets,
return on equity, return on capital, earnings per share, net
income, net operating income, revenue, expenses, net interest
margin, burden ratio, efficiency ratio and total shareholder
return.
(j) "Continuing Director" means:
(i) any member of the Board of Directors of the Company at
the beginning of any period of two consecutive years;
and
(ii) any person who subsequently becomes a member of the
Board of Directors of the Company; if
(iii) such person's nomination for election or election to the
Board of Directors of the Company is recommended or
approved by resolution of a majority of the Continuing
Directors; or
(iv) such person is included as a nominee in a proxy
statement of the Company distributed when a majority of
the Board of Directors of the Company consists of
Continuing Directors.
(k) "Designated Performance Criteria" means any criteria, including
Company Performance Criteria, as the Committee may deem to be
appropriate.
(l) "Disability" has the same meaning as "permanent and total
disability," as defined in Section 22(e)(3) of the Code.
(m) "Disqualifying Disposition" means a disposition, as defined in
Section 424(c)(1) of the Code, of Option Stock acquired pursuant
to an ISO, which occurs either:
(i) within two years after the underlying Option is granted;
or
(ii) within one year after the underlying Option is
exercised.
Under Section 424(c)(1) of the Code, the term "disposition"
includes a sale, exchange, gift, or a transfer of legal title,
but does not include (A) a transfer from a decedent to an estate
or a transfer by bequest or inheritance, (B) an exchange to
which Section 354, 355, 356, or 1036 (or
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<PAGE> 4
so much of Section 1031 as relates to Section 1036) applies, or
(C) a mere pledge or hypothecation.
(n) "Eligible Participants" means persons who, at a particular time,
are employees or officers of the Company or its Subsidiaries,
and are paid on a salary or commission basis. With respect to
ISOs only, this definition does not include persons who have
been on leave of absence for greater than 90 days, unless
re-employment is guaranteed by law or contract.
(o) "Fair Market Value" means, with respect to Option Stock and as
of the date in question, the market price per share of such
Stock determined by the Committee, consistent with the
requirements of Section 422 of the Code and to the extent
consistent therewith:
(i) if the Stock was traded on a national stock exchange as
of the date in question, then the Fair Market Value will
be equal to the average of the high and low prices
reported by the applicable composite transactions report
for such date or, if no trading occurred on the
applicable exchange for that date, for the latest
trading date prior to such date.
(ii) if the Stock was traded on any other established market
as of the date in question, then the Fair Market Value
will be equal to the average of the high and low prices
reported for such date or, if no trading occurred on the
applicable exchange for that date, for the latest
trading date prior to such date; or
(iii) if neither of the foregoing provisions is applicable,
then the Fair Market Value will be determined by the
Committee on good faith on such basis as it deems
appropriate.
(p) "ISO" or "Incentive Stock Option" means an Option, which is
subject to certain holding requirements and tax benefits, and
which qualifies as an incentive stock option," as defined in
Section 422 of the Code.
(q) "NSO" means any Option granted under this Plan whether
designated by the Committee as a "non-qualified stock option," a
"non-statutory stock option" or otherwise, other than an Option
designated by the Committee as an ISO. The term "NSO" also
includes any Option designated by the Committee as an ISO but
which, for any reason, fails to qualify as an ISO pursuant to
Section 422 of the Code and the rules and regulations
thereunder.
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<PAGE> 5
(r) "Option" means a right granted pursuant to this Plan entitling
the Optionee to acquire shares of Stock issued by the Company.
(s) "Option Agreement" means an agreement between the Company and an
Eligible Participant to evidence the terms and conditions of the
issuance of Options hereunder.
(t) "Option Price" with respect to any particular Option means the
exercise price at which the Optionee may acquire each share of
the Option Stock called for under such Option.
(u) "Option Stock" means Stock issued or issuable by the Company
pursuant to the valid exercise of an Option.
(v) "Optionee" means an Eligible Participant to whom an Option is
granted hereunder, and any transferee of such Option received
pursuant to a Transfer authorized under this Plan.
(w) "Plan" means this First of America Bank Corporation Stock
Compensation Plan.
(x) "Restricted Stock" means Stock issued or issuable by the Company
which is subject to the restrictions imposed in Section 7 of
this Plan.
(y) "Restricted Stock Agreement" means an agreement between the
Company and an Eligible Participant to evidence the terms and
conditions of the issuance of Restricted Stock hereunder.
(z) "Restricted Stockholder" means an Eligible Participant to whom
any Restricted Stock is issued hereunder, and any transferee of
such Stock received pursuant to a Transfer required by law.
(aa) "Retirement" means termination of employment with the Company or
a Subsidiary on or after the date on which the employee would be
able to commence receiving a monthly benefit from the Company
Employees' Retirement Plan.
(ab) "Stock" means shares of the Company's common stock.
(ac) "Subsidiary" has the same meaning as "Subsidiary Corporation" as
defined in Section 424(f) of the Code.
(ad) "Transfer," with respect to Option Stock or Restricted Stock,
includes, without limitation, a voluntary or involuntary sale,
assignment, transfer,
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<PAGE> 6
conveyance, pledge, hypothecation, encumbrance, disposal, loan,
gift, attachment or levy of such Stock, including without
limitation an assignment for the benefit of creditors of the
Optionee or the Restricted Stockholder, a transfer by operation
of law, such as a transfer by will or under the laws of descent
and distribution, an execution of judgment against the Option
Stock or Restricted Stock or the acquisition of record or
beneficial ownership thereof by a lender or creditor, a transfer
pursuant to any decree of divorce, dissolution or separate
maintenance, any property settlement, any separation agreement
or any other agreement with a spouse (except for estate planning
purposes) under which a part or all of the shares of Option
Stock or Restricted Stock are transferred or awarded to the
spouse of the Optionee or Restricted Stockholder or are required
to be sold, or a transfer resulting from the filing by the
Optionee or Restricted Stockholder of a petition for relief, or
the filing of an involuntary petition against such Optionee or
Restricted Stockholder, under the bankruptcy laws of the United
States or of any other nation.
(ae) "Voting Stock" shall mean those shares of the Company Stock
entitled to vote generally in the election of directors.
3. ELIGIBILITY. Options may be granted and Restricted Stock may be
issued under this Plan only to persons who are Eligible Participants as of the
time of such grant.
4. ADMINISTRATION.
(a) Administration by the Committee. The Committee will administer this
Plan.
(b) Authority and Discretion of Committee. The Committee will have full
and final authority in its discretion, at any time subject only to the express
terms, conditions and other provisions of the Company's articles of
incorporation, bylaws and this Plan, and the specific limitations on such
discretion set forth herein:
(i) to select and approve the persons to whom Options will
be granted under this Plan from among the Eligible
Participants, including the number of Options and the
amount of Option Stock available for purchase under such
Options so granted to each person;
(ii) to select and approve the persons to whom Restricted
Stock will be issued under this Plan from among the
Eligible Participants, including the number of issuances
and shares of Restricted Stock so issued to each such
person;
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<PAGE> 7
(iii) to determine the period or periods of time during which
Options may be exercised or become exercisable, the
Designated Performance Criteria on which the Option
Price or exercisability may be dependent, the Option
Price and the duration of such Options, the date on
which Options are granted, and other matters to be
determined by the Committee in connection with specific
Option grants and Option Agreements as specified under
this Plan;
(iv) to determine the period or periods of time during which
the Restricted Stock may vest, the Designated
Performance Criteria on which vesting may be dependent,
the date on which shares of Restricted Stock are
awarded, and other matters to be determined by the
Committee in connection with specific issuances of
Restricted Stock and Restricted Stock Agreements as
provided in this Plan;
(v) to interpret this Plan, to prescribe, amend and rescind
rules and regulations relating to this Plan, and to make
all other determinations necessary or advisable for the
operation and administration of this Plan; and
(vi) to delegate all or a portion of its authority under
subsections 4.(b)(i), 4.(b)(ii), 4.(b)(iii) and
4.(b)(iv) of this Plan to one or more directors of the
Company who are also officers of the Company, but only
in connection with Options or Restricted Stock granted
to Eligible Participants who are not subject to the
reporting and liability provisions of Section 16 of the
1934 Act, as amended, and the rules and regulations
thereunder, and subject to such restrictions and
limitations (such as the aggregate number of shares of
Option Stock and Restricted Stock that may be granted)
as the Committee may decide to impose on such delegate
directors.
(c) Designation of Options. Except as otherwise provided herein, the
Committee will designate any Option granted hereunder either as an ISO or as an
NSO. To the extent that the Fair Market Value of Stock, determined at the time
the Option is granted, with respect to which all ISOs are exercisable for the
first time by any individual during any calendar year (pursuant to this Plan and
all other plans of the Company and/or its Subsidiaries) exceeds $100,000, such
Option will be treated as an NSO.
(d) Option Agreements. Options will be deemed granted hereunder only
upon the execution and delivery of an Option Agreement by the Optionee and a
duly authorized officer of the Company. Options will not be deemed granted
hereunder merely upon the authorization of such grant by the Committee.
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<PAGE> 8
(e) Restricted Stock Agreements. Restricted Stock will be issued
hereunder only upon the execution and delivery of a Restricted Stock Agreement
by the Restricted Stockholder and a duly authorized officer of the Company.
Restricted Stock will not be deemed issued merely upon the authorization of such
issuance by the Committee.
5. SHARES RESERVED FOR OPTIONS AND RESTRICTED STOCK. Subject to
Sections 8 and 11 of this Plan, the aggregate number of shares of Option Stock
and Restricted Stock that may be issued and outstanding pursuant to the exercise
of Options and granting of Restricted Stock under this Plan (the "Option and
Restricted Stock Pool") will not exceed 3,000,000 shares. The total number of
shares of Option Stock and Restricted Stock that may be granted to an Eligible
Participant over the term of this Plan will not exceed 750,000 shares. Shares of
Option Stock withheld as payment of an Option Price as described in subsection
6.(e) by the Company and shares of Restricted Stock that may be forfeited, as
described in subsection 7.(c) may be added back into the Option and Restricted
Stock Pool and reissued, provided, however, with respect to persons subject to
Section 16 of the 1934 Act, the total number of shares of Option Stock and
Restricted Stock that may be issued or reissued will be less than 3,300,000
shares. Shares of Option Stock that would have been issuable pursuant to
Options, but that are no longer issuable because all or part of those Options
have terminated or expired may also be added back into the Option and Restricted
Stock Pool to be available for issuance.
6. TERMS OF STOCK OPTION AGREEMENTS. Each Option granted pursuant to
this Plan will be evidenced by an Option Agreement between the Company and the
Eligible Participant to whom such Option is granted, in form and substance
satisfactory to the Committee in its sole discretion, consistent with this Plan.
Without limiting the foregoing, the following terms and conditions will be
considered a part of each Option Agreement (unless otherwise stated therein):
(a) Covenants of Optionee. Nothing contained in this Plan, any Option
Agreement or in any other agreement executed in connection with the granting of
an Option under this Plan will confer upon any Optionee any right with respect
to the continuation of his or her status as an employee or officer of the
Company or its Subsidiaries.
(b) Option Vesting Periods. Except as otherwise provided herein, each
Option Agreement will specify the period or periods of time within which each
Option or portion thereof will first become exercisable (the "Option Vesting
Period"). Such Option Vesting Periods will be determined by the Committee in its
discretion, and may be accelerated or shortened by the Committee in its
discretion.
(c) Exercise of the Option.
(i) Mechanics and Notice. Options may be exercised to the
extent exercisable by giving written notice to the
Company specifying the number of Options to be
exercised, the date of the grant of the Option or
Options to be exercised, the exercise price, the desired
effective date of the exercise, the number of full
shares of Option
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<PAGE> 9
Stock to be retained by the Optionee after exercise, and
the method of payment. Once written notice complying
with the requirements of this subsection is received,
the Committee or its designee shall promptly notify the
Optionee of the amount of the Option Price and
withholding taxes due, if either or both is applicable.
Payment of any amounts owing shall be due immediately
upon receipt of such notice.
(ii) Withholding Taxes. As a condition to the issuance of
shares of Option Stock upon exercise of an Option
granted under this Plan, the Optionee will pay to the
Company in cash, through cashless exercise as described
in subsection 6.(e), or in such other form as the
Committee may determine in its discretion, the amount of
the Company's tax withholding liability, if any,
associated with such exercise. The Committee may
prescribe a specific method of payment of such
withholding, in its discretion. For purposes of this
subsection 6.(c)(ii), "tax withholding liability" will
mean all federal and state income taxes, social security
tax, medicare tax and any other taxes applicable to the
income arising from the transaction required by
applicable law to be withheld by the Company.
(d) Payment of Option Price. Each Option Agreement will specify the
Option Price, with respect to the exercise of Option Stock granted thereunder,
which may be stated in terms of a fixed dollar amount, a percentage (not less
than 100%) of Fair Market Value at the time of the grant, a value based on a
market or peer group index or Designated Performance Criteria, or such other
method as determined by the Committee in its discretion. In no event will the
Option Price for an ISO or NSO granted hereunder be less than the Fair Market
Value (or, where an ISO Optionee is a 10% Stockholder, one hundred ten percent
(110%) of such Fair Market Value) of the Option Stock at the time such ISO or
NSO is granted. The Option Price will be payable to the Company in United States
dollars in cash or by check or, such other legal consideration as may be
approved by the Committee, in its discretion.
(e) Cashless Exercise. The Committee, in its discretion, may permit an
Optionee to pay all or a portion of the Option Price, and/or the tax withholding
liability set forth in subsection 6.(c)(ii) above, if applicable, with respect
to the exercise of an Option either by surrendering shares of Stock already
owned by such Optionee or by withholding shares of Option Stock, provided that
the Committee determines that the Fair Market Value of such surrendered Stock or
withheld Option Stock is equal to the corresponding portion of such Option Price
and/or tax withholding liability, as the case may be, to be paid for therewith.
To the extent that shares of Option Stock are withheld as payment of all or a
portion of the Option Price of an ISO, the withholding of such shares will be
treated as a Disqualifying Disposition, and subject to Section 421(b) of the
Code.
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<PAGE> 10
(f) Notice of Disqualifying Disposition. In the event of a Disqualifying
Disposition, the Optionee will promptly give written notice to the Company of
such disposition including information regarding the number of shares involved,
the exercise price of the underlying Option through which the shares were
acquired and the date of the Disqualifying Disposition.
(g) Termination of the Option. Except as otherwise provided herein, each
Option Agreement will specify the period of time, to be determined by the
Committee in its discretion, during which the Option granted therein will be
exercisable, not to exceed ten years from the date of grant in the case of an
ISO (the "Option Period"); provided that the Option Period will not exceed five
years from the date of grant in the case of an ISO granted to a 10% Stockholder.
(i) ISOs. To the extent not previously exercised, each ISO
will terminate upon the expiration of the Option Period
specified in the Option Agreement; provided, however,
that, subject to the discretion of the Committee, each
ISO will terminate, if earlier: (a) immediately after
the date that the Optionee ceases to be an Eligible
Participant for any reason other than death, disability,
or Retirement; (b) five years after the date that the
Optionee ceases to be an Eligible Participant by reason
of such person's death or disability; provided, however,
that the ISO will convert to an NSO if exercised more
than twelve months after death or disability; or (c)
five years after the Optionee ceases to be an Eligible
Participant by reason of such person's Retirement;
provided, however, that the ISO will convert to an NSO
if exercised more than three months after Retirement.
(ii) NSOs. To the extent not previously exercised, each NSO
will terminate upon the expiration of the Option Period
specified in the Option Agreement; provided, however,
that, subject to the discretion of the Committee, each
NSO will terminate, if earlier: (a) immediately after
the date that the Optionee ceases to be an Eligible
Participant for any reason, other than death,
disability, or Retirement; or (b) five years after the
date the Optionee ceases to be an Eligible Participant
by reason of such person's death, disability or
Retirement.
(iii) LIMITED STOCK APPRECIATION RIGHTS. Notwithstanding any
other provision of this Agreement, and except as
provided in subsection 6.(g)(iii)(2) below, each Option
will be cancelled on the effective date of a Change in
Control of the Company or a liquidation or dissolution
of the Company, and in lieu of further rights under the
Options, Optionees will receive from the Company in cash
the
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<PAGE> 11
difference between the Fair Market Value and the Option
Price, multiplied by the number of shares to which each
Option relates.
(1) For purposes of subsection 6.(g)(iii) only, the Fair
Market Value shall be the average between the highest
and lowest quoted price per share for sales made and
reported on the New York Stock Exchange, or on a sales
or quotation system maintained by the National
Association of Securities Dealers, or such other
national stock exchange on which such Stock of the
Company may then be listed and which constitutes the
principal market for such Stock on the latest trading
date for which sales or quotations are reported prior to
such effective date or, if greater, the price or value
received by stockholders for a share of Stock with
respect to the largest number of shares the ownership of
which is transferred in conjunction with such Change in
Control, liquidation or dissolution of the Company.
(2) The Committee shall receive an opinion, dated as of the
Change in Control, from the independent auditors of the
surviving company, that the limited stock appreciation
rights granted in subsection 6.(g)(iii) shall be
accounted for as a pooling of interests. If the
Committee does not receive the required opinion, it may
declare subsection 6.(g)(iii) to be nullified. In such
case, all Options shall become immediately and fully
exercisable upon the Change in Control.
(h) Transferability of Options. ISOs will be subject to Transfer by the
Optionee only by will or the laws of descent and distribution. NSOs will be
subject to Transfer by the Optionee only by will or the laws of descent and
distribution or, at the discretion of the Committee, by direct gift to a family
member, or gift to a family trust or family partnership. The terms "family
member," "family trust" and "family partnership" shall have meanings consistent
with Section 704 of the Code. Options will be exercisable only by the Optionee
during his or her lifetime, or, with respect to an NSO, by any of the recipients
of the Transfers specifically permitted by this subsection 6.(h).
(i) Compliance with Law. Notwithstanding any other provision of this
Plan, Options may be granted pursuant to this Plan, and Option Stock may be
issued pursuant to the exercise thereof by an Optionee, only after there has
been compliance with all applicable federal and state tax and securities laws.
The right to exercise an Option will be further subject to the requirement that
if at any time the Committee determines, in its discretion, that the listing,
registration or qualification of the shares of Option Stock called for by any
securities exchange or under any state or federal law, or the consent or
approval of any governmental regulatory
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<PAGE> 12
authority, is necessary or desirable as a condition of or in connection with the
granting of such Option or the purchase of shares of Option Stock, the Option
may not be exercised, in whole or in part, unless and until such listing,
registration, qualification, consent or approval is effected or obtained free of
any conditions not acceptable to the Committee, in its discretion.
(j) Stock Certificates. Certificates representing the Option Stock
issued pursuant to the exercise of Options will bear all legends required by law
and necessary to effectuate this Plan's provisions. The Company may place a
"stop transfer" order against shares of the Option Stock until all restrictions
and conditions set forth in this Plan and in the legends referred to in this
subsection 6.(j) have been complied with.
(k) Other Provisions. The Option Agreement may contain such other terms,
provisions and conditions, including such special forfeiture conditions, rights
of repurchase, rights of first refusal and other restrictions on Transfer of
Option Stock issued upon exercise of any Options granted hereunder, not
inconsistent with this Plan, as may be determined by the Committee in its sole
discretion.
7. TERMS OF RESTRICTED STOCK AGREEMENTS. Each issuance of Restricted
Stock pursuant to this Plan will be evidenced by a Restricted Stock Agreement
between the Company and the Eligible Participant to whom such Restricted Stock
is to be issued, in form and substance satisfactory to the Committee in its sole
discretion, consistent with this Plan. Each Restricted Stock Agreement (unless
otherwise stated therein) will be deemed to include the following terms and
conditions:
(a) Covenants of Restricted Stockholder. Nothing contained in this Plan,
any Restricted Stock Agreement or in any other agreement executed in connection
with the issuance of Restricted Stock under this Plan will confer upon any
Restricted Stockholder any right with respect to the continuation of his or her
status as an employee or officer of the Company or its Subsidiaries.
(b) Restricted Stock Vesting Periods. Except as otherwise provided
herein, each Restricted Stock Agreement may specify the period or periods of
time within which shares of Restricted Stock will no longer be subject to the
restrictions imposed under this Plan or any Restricted Stock Agreement (the
"Restricted Stock Vesting Period"), as set forth in this subsection 7.(b). A
Restricted Stock Agreement may also specify Designated Performance Criteria
which must be satisfied within the Restricted Stock Vesting Period. Restricted
Stock Vesting Periods shall be determined by the Committee in its discretion and
may be accelerated or shortened by the Committee in its discretion, but shall
not, provided all applicable Designated Performance Criteria have been
satisfied, exceed ten years for full vesting. All shares of Restricted Stock
shall become immediately and fully vested upon a Change in Control of the
Company.
(c) Forfeiture of Restricted Stock. To the extent that the applicable
Restricted Stock Vesting Period has not elapsed or the Designated Performance
Criteria have not been
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<PAGE> 13
satisfied, each share of Restricted Stock, subject to the discretion of the
Committee, shall be forfeited immediately as of the date the Restricted
Stockholder ceases to be an Eligible Participant for any reason.
(d) Restrictions on Transfer of Restricted Stock.
(i) General Rule on Transfers of Restricted Stock.
Restricted Stock may be transferred only if required by
law. All Transfers of Restricted Stock not meeting the
conditions set forth in this subsection 7.(d) are
expressly prohibited.
(ii) Effect of Prohibited Transfer. Any prohibited Transfer
of Restricted Stock is void and of no effect. Should
such a Transfer purport to occur, the Company may refuse
to carry out the Transfer on its books, attempt to set
aside the Transfer, enforce any undertaking or right
under this subsection 7.(d), or exercise any other legal
or equitable remedy.
(iii) Escrow. The Committee may, in its discretion, require
that the Restricted Stockholder deliver the
certificate(s) for the Restricted Stock with a stock
power executed in blank to the Secretary of the Company
or his or her designee to hold said certificate(s) and
stock power(s) in escrow and to take all such actions
and to effectuate all such Transfers and/or releases as
are in accordance with the terms of this Plan. The
certificate(s) may be held in escrow so long as the
shares of Restricted Stock are subject to any
restrictions under this Plan or under a Restricted Stock
Agreement. Each Restricted Stockholder acknowledges that
the Secretary of the Company (or his or her designee) is
so appointed as the escrow holder with the foregoing
authorities as a material inducement to the issuance of
shares of Restricted Stock under this Plan, that the
appointment is coupled with an interest, and that it
accordingly will be irrevocable. The escrow holder will
not be liable to any party to a Restricted Stock
Agreement (or to any other party) for any actions or
omissions unless the escrow holder is grossly negligent
relative thereto. The escrow holder may rely upon any
letter, notice or other document executed by any
signature purported to be genuine.
(e) Compliance with Law. Notwithstanding any other provision of this
Plan, Restricted Stock may be issued pursuant to this Plan only after there has
been compliance with all applicable federal and state tax and securities laws.
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<PAGE> 14
(f) Stock Certificates. Certificates representing the Restricted Stock
issued pursuant to this Plan will bear all legends required by law and necessary
to effectuate this Plan's provisions. The Company may place a "stop transfer"
order against shares of the Restricted Stock until all restrictions and
conditions set forth in this Plan and in the legends referred to in this
subsection 7.(f) have been complied with.
(g) Market Standoff. To the extent requested by the Company and any
underwriter of securities of the Company in connection with a firm commitment
underwriting, no Restricted Stockholder of any shares of Restricted Stock will
sell or otherwise Transfer any such shares not included in such underwriting, or
not previously registered pursuant to a registration statement filed under the
1933 Act, during the 120-day period following the effective date of the
registration statement filed with the Securities and Exchange Commission in
connection with such offering.
(h) Other Provisions. The Restricted Stock Agreement may contain such
other terms, provisions and conditions, including such special forfeiture
conditions, rights of repurchase, rights of first refusal and other restrictions
on Transfer of Restricted Stock issued hereunder, not inconsistent with this
Plan, as may be determined by the Committee in its sole discretion.
8. ADJUSTMENTS UPON CHANGES IN STOCK. In the event of any change in the
outstanding Stock of the Company as a result of a stock split, reverse stock
split, stock dividend, recapitalization, combination or reclassification,
appropriate proportionate adjustments will be made:
(a) in the aggregate number of shares of Option Stock and Restricted
Stock in the Option and Restricted Stock Pool;
(b)in the Option Price and the number of shares of Option Stock that may
be purchased pursuant to an outstanding Option granted hereunder;
(c) in the exercise price of any rights of repurchase or of first
refusal under this Plan; and
(d) with respect to other rights and matters determined on a per share
basis under this Plan or any associated Option Agreement or Restricted Stock
Agreement.
Any such adjustments will be made only by the Committee, and when so
made will be effective, conclusive and binding for all purposes with respect to
this Plan and all Options and Restricted Stock then outstanding. No such
adjustments will be required by reason of the issuance or sale by the Company
for cash or other consideration of additional shares of its Stock or securities
convertible into or exchangeable for shares of its Stock.
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<PAGE> 15
9. PROCEEDS FROM SALE OF OPTION STOCK. Cash proceeds from the sale of
shares of Option Stock issued from time to time upon the exercise of Options
granted pursuant to this Plan will be added to the general funds of the Company
and as such will be used from time to time for general corporate purposes.
10. MODIFICATION, EXTENSION AND RENEWAL OF OPTIONS. Subject to the terms
and conditions and within the limitations of this Plan, the Committee may
modify, extend or renew outstanding Options granted under this Plan, but in no
event may the Committee change the Option Price as stated in the Option
Agreement, if expressed as a fixed dollar amount, or the manner in which the
Option Price is to be calculated as stated in the Option Agreement, if expressed
as a percentage of Fair Market Value at the time of the grant, a market or peer
group index, Designated Performance Criteria or otherwise. Notwithstanding the
foregoing, no modification of any Option will, without the consent of the holder
of the Option, alter or impair any rights or obligations under any Option
previously granted under this Plan.
11. AMENDMENT AND DISCONTINUANCE. The Committee may amend, and the Board
may suspend or discontinue, this Plan at any time, provided that:
(a) No such action may, without the approval of the stockholders of the
Company, increase the maximum total number of shares of Option Stock and
Restricted Stock that may be granted to an individual over the term of this
Plan, change the definition of "Company Performance Criteria" as that term is
used in this Plan, materially increase (other than by reason of an adjustment
pursuant to Section 8 hereof) the aggregate number of shares of Option Stock and
Restricted Stock in the Option and Restricted Stock Pool that may be granted
pursuant to this Plan, materially increase the benefits accruing to Plan
participants or materially modify eligibility requirements for participation in
the Plan;
(b) No action of the Committee will cause ISOs granted under this Plan
not to comply with Section 422 of the Code unless the Committee specifically
declares such action to be made for that purpose;
(c) No action of the Committee shall alter or impair any Option or
Restricted Stock previously granted or awarded under this Plan without the
consent of such affected Optionee or Restricted Stockholder.
12. PLAN BINDING UPON SUCCESSORS. This Plan shall be binding upon and
inure to the benefit of the Company, its Subsidiaries, and their respective
successors and assigns, and Eligible Participants and their respective assigns,
personal representatives, heirs, legatees and beneficiaries.
13. PLAN COMPLIANCE WITH RULE 16b-3. With respect to persons subject to
Section 16 of the 1934 Act, transactions under this Plan are intended to comply
with all applicable conditions of Rule 16b-3 or its successors under the 1934
Act. To the extent any provision of
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<PAGE> 1
Exhibit 4.6
FIRST OF AMERICA BANK CORPORATION
DIRECTOR STOCK COMPENSATION PLAN
SECTION I - PLAN
1.1 PLAN. First of America Bank Corporation, a Michigan corporation,
established the Director Deferred Compensation Plan effective April 1,
1996 for the purpose of providing a means for Directors of the Company
and Participating Companies to accumulate savings through deferral of
the payment of their Director's Fees, and to defer the taxation of such
fees. The amended and restated Plan, renamed the First of America Bank
Corporation Director Stock Compensation Plan, will become effective on
the date of its adoption by the Board, provided that the Plan is
approved by shareholders of the Company (excluding holders of shares of
Stock, Restricted Stock or Stock Options issued by the Company under
this Plan) within twelve months after that date. If the Plan is not
approved by the shareholders of the Company, any Stock, Restricted Stock
or Stock Options granted under this Plan will be rescinded and void.
Deferrals made previously under the Director Deferred Compensation Plan,
as well as Phantom Stock credits made under this Plan, will, however,
continue to be valid in such event. This Plan will remain in effect
until it is terminated by the Board under Section 13.3 hereof.
1.2 PURPOSE. In addition to the original intent of the Director Deferred
Compensation Plan, the amended and restated Plan has the purpose of
advancing the interests of the Company and its shareholders by helping
the Company attract and retain the services of highly qualified
Directors, upon whose judgment, initiative and efforts the Company is
substantially dependent. The Plan also has the objective of paying a
portion of Director's Fees in Equity Compensation to encourage Stock
ownership by such Directors and to further align their interests with
those of other shareholders.
SECTION II - DEFINITIONS
2.1 The following words and phrases have the respective meanings stated
below unless a different meaning is plainly required by the context:
(a) "1934 Act" means the Securities Exchange Act of 1934, as
amended.
(b) "Beneficiary" means any person who is entitled to receive
Phantom Stock Account distributions, Stock Options or Restricted
Stock under this Plan after the death of a Director pursuant to
Section 11.1.
(c) "Board" or "Board of Directors" means the Board of Directors of
the Company, or any other entity authorized to act on its
behalf.
<PAGE> 2
(d) A "Change in Control" of the Company shall have occurred:
(i) on the fifth day preceding the scheduled expiration date
of a tender offer by, or exchange offer by any
corporation, person, other entity or group (other than
the Company or any of its wholly owned subsidiaries), to
acquire Voting Stock of the Company if:
a. after giving effect to such offer such
corporation, person, other entity or group would
own twenty-five percent (25%) or more of the
Voting Stock of the Company;
b. there shall have been filed documents with the
Securities and Exchange Commission ("SEC") in
connection therewith (or, if no such filing is
required, public evidence that the offer has
already commenced); and
c. such corporation, person, other entity or group
has secured all required regulatory approvals to
own or control twenty-five percent (25%) or more
of the Voting Stock of the Company;
(ii) if the shareholders of the Company approve a definitive
agreement to merge or consolidate the Company with or
into another corporation in a transaction in which
neither the Company nor any of its wholly owned
subsidiaries will be the surviving corporation, or to
sell or otherwise dispose of all or substantially all of
the Company's assets to any corporation, person, other
entity or group (other than the Company or any of its
wholly owned subsidiaries), and such definitive
agreement is consummated;
(iii) if any corporation, person, other entity or group (other
than the Company or any of its wholly owned
subsidiaries) becomes the beneficial Owner (as defined
in the Company's Articles of Incorporation) of stock
representing twenty-five percent (25%) or more of the
Voting Stock of the Company; or
(iv) if during any period of two (2) consecutive years
Continuing Directors cease to comprise a majority of the
Company's Board of Directors.
(e) "Code" means the Internal Revenue Code of 1986, as amended.
(f) "Committee" means the Nominating and Compensation Committee of
the Company's Board of Directors.
(g) "Company" means First of America Bank Corporation, a Michigan
corporation and its successor or successors.
<PAGE> 3
(h) "Continuing Director" means:
(i) any member of the Board of Directors of the Company at
the beginning of any period of two (2) consecutive
years; and
(ii) any person who subsequently becomes a member of the
Board of Directors of the Company; if
a. such person's nomination for election or
election to the Board of Directors of the
Company is recommended or approved by
resolution of a majority of the Continuing
Directors; or
b. such person is included as a nominee in a proxy
statement of the Company distributed when a
majority of the Board of Directors of the
Company consists of Continuing Directors.
(i) "Deferring Director" means a Director or former Director for
whom a Phantom Stock Account has been established under the
Plan.
(j) "Designated Committee" means the Company's Unified Audit
Committee, the Company's Unified Trust Committee and any other
committee or advisory board designated by the Committee to be
subject to the provisions of this Plan.
(k) "Designated Equity Compensation" means the percentage or amount
of Director's Fees established by the Committee, which will be
payable in a form of Equity Compensation.
(l) "Director" means a member of the Board of Directors or a member
of the board of directors of a Participating Company, who is
entitled to receive Director's Fees. Solely for purposes of this
Plan, the term "Director" shall also include any person serving
on a Designated Committee.
(m) "Director's Fees" means the board and committee meeting fees and
the board and committee retainer fees, including fees to serve
as a chairperson of a board or committee or any other fees,
payable to Directors for their service as Directors, as
established by the Company or a Participating Company.
(n) "Disability" has the same meaning as "permanent and total
disability," as defined in Section 22(e)(3) of the Code.
(o) "Entry Date" means the first day of each Plan Year or the first
day of service as a Director.
(p) "Equity Compensation" means compensation in the form of Stock,
Restricted Stock, Phantom Stock, or Stock Options.
<PAGE> 4
(q) "Fair Market Value" means as of the date in question, the market
price per share of Stock determined by the Committee and to the
extent consistent therewith.
(i) if the Stock was traded on a national stock exchange as
of the date in question, then the Fair Market Value will
be equal to the average of the high and low prices
reported by the applicable composite transactions report
for such date or, if no trading occurred on the
applicable exchange for that date, for the latest
trading date prior to such date;
(ii) if the Stock was traded on any other established market
as of the date in question, then the Fair Market Value
will be equal to the average of the high and low prices
reported for such date or, if no trading occurred on the
applicable exchange for that date, for the latest
trading date prior to such date; or
(iii) if neither of the foregoing provisions is applicable,
then the Fair Market Value will be determined by the
Committee on good faith on such basis as it deems
appropriate.
(r) "Optional Equity Compensation" means the percentage or amount of
Director's Fees other than the Designated Equity Compensation.
(s) "Option Price" with respect to any particular Stock Option means
the exercise price at which the Optionee may acquire a share of
Option Stock called for under such Stock Option.
(t) "Option Stock" means Stock issued or issuable by the Company
pursuant to the valid exercise of a Stock Option.
(u) "Optionee" means a Director to whom a Stock Option is granted
hereunder, and any transferee of such Stock Option received
pursuant to a transfer authorized under this Plan.
(v) "Participating Company" means any wholly owned subsidiary of the
Company, any wholly owned subsidiary of such a subsidiary, or
any other company designated by the Company.
(w) "Pension Plan" means the First of America Bank Corporation
Employees' Retirement Plan.
(x) "Phantom Stock" means a share equivalent the value of which is
based upon the value of one share of Stock.
(y) "Phantom Stock Account" means any bookkeeping account
established for maintaining Phantom Stock credits under this
Plan.
<PAGE> 5
(z) "Plan" means the First of America Bank Corporation Director
Stock Compensation Plan, formerly known as the First of America
Bank Corporation Director Deferred Compensation Plan, as herein
set forth.
(aa) "Plan Year" means the period commencing each year on the day of
that year's Annual Meeting of Shareholders of the Company and
ending the following year on the day prior to that year's Annual
Meeting of Shareholders.
(ab) "Restricted Stock" means Stock issued by the Company which is
subject to the restrictions imposed in Section 6.1 of this Plan.
(ac) "Restricted Stock Agreement" means an agreement between the
Company and a Director to evidence the terms and conditions of
the issuance of Restricted Stock hereunder.
(ad) "Restricted Stockholder" means a Director to whom any Restricted
Stock is issued hereunder, and any transferee of such Stock
received pursuant to a Transfer required by law.
(ae) "Retirement" means Separation from Service, as a Director on a
board or Designated Committee after attaining age 60.
(af) "Separation from Service" means the cessation of service as a
Director for any reason. If a Director serves on more than one
board or Designated Committee of the Company or Participating
Companies, a Separation from Service shall not be deemed to have
occurred until the cessation of service as a Director on all
such boards or Designated Committees.
(ag) "Stock" means the Company's common stock.
(ah) "Stock Option" means a right granted pursuant to this Plan
entitling the Optionee to acquire one share of Stock issued by
the Company.
(ai) "Stock Option Agreement" means an agreement between the Company
and a Director to evidence the terms and conditions of the
issuance of Stock Options hereunder.
(aj) "Transfer," with respect to Option Stock or Restricted Stock,
includes, without limitation, a voluntary or involuntary sale,
assignment, transfer, conveyance, pledge, hypothecation,
encumbrance, disposal, loan, gift, attachment or levy of such
Stock, including without limitation an assignment for the
benefit of creditors of the Optionee or the Restricted
Stockholder, a transfer by operation of law, such as a transfer
by will or under the laws of descent and distribution, an
execution of judgment against the Option Stock or Restricted
Stock or the acquisition of record or beneficial ownership
thereof by a lender or creditor, a transfer pursuant to any
decree of divorce, dissolution or separate maintenance,
<PAGE> 6
any property settlement, any separation agreement or any other
agreement with a spouse (except for estate planning purposes)
under which a part or all of the shares of Option Stock or
Restricted Stock are transferred or awarded to the spouse of the
Optionee or Restricted Stockholder or are required to be sold,
or a transfer resulting from the filing by the Optionee or
Restricted Stockholder of a petition for relief, or the filing
of an involuntary petition against such Optionee or Restricted
Stockholder, under the bankruptcy laws of the United States or
of any other nation.
(ak) "Valuation Date means June 30th, September 30th, December 31st,
March 31st of each Plan Year and such other dates as are
designated by the Committee to value the Phantom Stock Accounts
of Deferring Directors under this Plan.
(al) "Voting Stock" means those shares of the Company entitled to
vote generally in the election of directors.
SECTION III - PLAN FEATURES
3.1 DESIGNATED EQUITY COMPENSATION. At least 45 days prior to the
commencement of each Plan Year, the Committee may establish the
Designated Equity Compensation for all Director's Fees and the forms of
Equity Compensation which may be elected by Directors for payment of
such Designated Equity Compensation. In no event shall the Designated
Equity Compensation for the Board be less than 50% of Board retainer
fees. The Designated Equity Compensation determinations and forms of
available Equity Compensation approved by the Committee for previous
years remain in effect unless changed in accordance with this Section
3.1. Pursuant to Section 4.1, Directors will elect the desired form or
forms of available Equity Compensation payable. If the Board does not
establish Designated Equity Compensation for a type of Director's Fees,
the Designated Equity Compensation for such fees will be zero, except in
the case of Board retainer fees where the Designated Equity Compensation
will be 50% of such fees.
3.2 OPTIONAL EQUITY COMPENSATION. With respect to the Optional Equity
Compensation, unless the Committee determines otherwise at least 45 days
prior to the commencement of each Plan Year, Directors may elect to
receive Stock, Phantom Stock or Stock Options instead of cash, pursuant
to Section 5.2. The limitations on the forms of available Optional
Equity Compensation approved by the Committee for previous years remain
in effect unless changed in accordance with Section 3.2.
3.3 SHARES RESERVED UNDER THE PLAN. Subject to Sections 13.2 and 13.4 of
this Plan, the aggregate number of shares of Stock, including Option
Stock and Restricted Stock, that may be issued and outstanding pursuant
to the granting of Stock, the exercise of Stock Options and the granting
of Restricted Stock under this Plan (the "Stock Pool") will not exceed
100,000 shares. Also subject to Sections 13.2 and 13.4, the aggregate
number of shares of Stock, including Option Stock and Restricted Stock
that may be issued under this Plan to any individual will not exceed
10,000 shares. Shares of Restricted Stock that are forfeited, as
described in subsection 6.1(c) and shares of Option Stock withheld as
<PAGE> 7
payment of an Option Price and/or tax withholding liability as described
in subsection 7.1(d) may be added back into the Stock Pool and reissued.
Shares of Option Stock that would have been issuable pursuant to Stock
Options, but that are no longer issuable because all or part of those
Stock Options have terminated or expired may also be added back into the
Stock Pool to be available for issuance. The Company may purchase
shares on the open market or issue authorized shares but unissued
shares to satisfy its obligations under the Plan.
SECTION IV - DESIGNATED EQUITY COMPENSATION
4.1 TIMING OF DESIGNATED ELECTIONS. If an election is required for an
upcoming Plan Year, at least 30 days prior to the first day of such Plan
Year, a Director shall make a written election as to the form or forms
of available Equity Compensation desired for payment and/or deferral of
the Designated Equity Compensation (the "Designated Election"). If a
Director is elected or appointed after the first payment of Director's
Fees in a Plan Year, the Director's Designated Election must be made
prior to the effective date of such election or appointment.
4.2 METHOD OF DESIGNATED ELECTION. Except as the Committee may otherwise
provide, Directors may choose more than one form of available Equity
Compensation for payment and/or deferral of the Designated Equity
Compensation. As long as a Director's Designated Election is consistent
with the available forms of Equity Compensation, unless the Director
notifies the Committee of a change, the Director's Designated Election
shall remain in effect until Separation from Service. If a Director's
Designated Election is not consistent with the available forms of Equity
Compensation, the Director must make a new Designated Election in
accordance with Section 4.1. If a Director fails to make a necessary
Designated Election with respect to all or a portion of the Director's
Designated Equity Compensation, payment of such amount will be made in
Stock pursuant to Section 4.4, unless Stock is not an available form of
Designated Equity Compensation in the Plan Year, in which case the
Committee shall determine the form of payment. If a Director serves on
more than one board or Designated Committee of the Company or
Participating Companies, a separate election shall be required for the
Director's Fees for each such board or Designated Committee.
4.3 CHANGE IN DESIGNATED ELECTION. Any change in a Director's Designated
Election will not take effect until a subsequent Entry Date. All changes
must be made in accordance with Section 4.1. In the event of a change in
the Director's Fees, the amount of Stock, Restricted Stock, Phantom
Stock or Stock Options to be received will be adjusted proportionately
as soon as practicable with respect to such changed Director's Fees,
without action by the Director.
4.4 STOCK. If a Director receives or elects to receive Stock in payment of
the Designated Equity Compensation, the Company shall determine the
number of shares of Stock with a Fair Market Value equal to the
Designated Equity Compensation of the Director's Fees as of the date on
which any Director's Fees become payable. For a participant in the First
of America Shareholders Investment Plan, whole and fractional shares
will be added
<PAGE> 8
to the Director's account under that plan as soon as practicable after
such date. For any other Director, shares in an amount rounded to the
nearest whole share will be delivered to the Director or an account
designated by the Director.
4.5 RESTRICTED STOCK. If a Director receives or elects to receive Restricted
Stock in payment of the Designated Equity Compensation, as of any date
on which Director's Fees become payable to that Director, the Company
shall issue to the Director and hold in escrow pursuant to subsection.
6.1(d)(iii) a number of shares of Restricted Stock equal to the number
of shares of Stock, rounded to the nearest whole share, which would be
issuable to the Director under Section 4.4.
4.6 PHANTOM STOCK. If a Director receives or elects to receive Phantom Stock
for deferral of the Designated Equity Compensation, the Director's
Phantom Stock Account shall be credited with a number of whole and
fractional units of Phantom Stock equal to the number of whole and
fractional shares of Stock which would be issuable under Section 4.4, as
of any date on which Director's Fees become payable to that Director. In
addition, as actual dividends are paid on Stock, Phantom Stock Accounts
will be credited with a number of whole and fractional units of Phantom
Stock as if the same dividends were paid on Phantom Stock and
immediately reinvested in Phantom Stock. Dividend credits will be made
based on the number of units of Phantom Stock credited to a Phantom
Stock Account as of the dividend record date for Stock.
4.7 STOCK OPTIONS. If a Director receives or elects to receive Stock Options
in payment of the Designated Equity Compensation, as of any date on
which Director's Fees become payable to that Director, the Director
shall receive a number of Stock Options based on the following formula:
[Number of whole and fractional shares of Stock which would be
issuable under Section 4.4] multiplied by [Multiplier]
The "Multiplier" referred to above shall be established by the
Committee annually 45 days prior to the beginning of each Plan Year, but
may be changed as frequently as the Committee deems appropriate. The
value of the Multiplier shall be determined based on a reasonable option
valuation method such that the value of the Stock Options granted
reasonably approximates the equivalent value of the Director's Fees
payable in Stock Options, but shall in no event exceed ten (10).
SECTION V - OPTIONAL EQUITY COMPENSATION
5.1 PARTICIPATION. Unless a Director has made an election in accordance with
Section 5.2 to receive all or any portion of Optional Equity
Compensation in Stock, Phantom Stock and/or Stock Options (the "Optional
Election"), on any date on which Director's Fees become payable to a
Director, he or she will be paid in cash an amount equal to the Optional
Equity Compensation. Any Optional Election becomes effective as of the
first Entry Date coincident with or following the Director's appointment
or election as a Director. If the Director declines to make an Optional
Election at the initial Entry Date,
<PAGE> 9
the Director may make an Optional Election effective upon any
subsequent Entry Date.
5.2 TIMING OF OPTIONAL ELECTIONS. At least 30 days prior to the first day of
a Plan Year, unless the Committee determines otherwise pursuant to
Section 3.2, a Director may make an Optional Election by giving written
notice authorizing payment of Optional Equity Compensation in Stock,
Stock Options and/or deferral of Optional Equity Compensation through
receipt of Phantom Stock. If a Director is elected or appointed after
the first payment of Director's Fees in a Plan Year, the Director's
Optional Election must be made prior to the effective date of such
election or appointment.
5.3 METHOD OF OPTIONAL ELECTION. Except as the Committee may otherwise
provide, Directors may choose more than one form of Equity Compensation
for payment and/or deferral of the Optional Equity Compensation. Unless
the Director notifies the Committee of a change, the Director's Optional
Elections shall remain in effect until Separation from Service. If a
Director serves on more than one board or Designated Committee of the
Company or Participating Companies, a separate Optional Election shall
be required for the Director's Fees for each such board or Designated
Committee.
5.4 CHANGE IN OPTIONAL ELECTION. Any change in a Director's Optional
Election will not take effect until a subsequent Entry Date. All changes
must be made in accordance with Section 5.2. In the event of a change in
the Director's Fees, the amount of Stock, Stock Options or Phantom Stock
to be received will be adjusted proportionately as soon as practicable
with respect to such changed Director's Fees, without action by the
Director.
5.5 STOCK. If a Director elects to receive Stock in payment of the Optional
Equity Compensation of certain Director's Fees, the Company shall
determine the number of shares of Stock with a Fair Market Value equal
to the Optional Equity Compensation of such Director's Fees as of the
date on which any Director's Fees become payable. For a participant in
the First of America Shareholders Investment Plan, whole and fractional
shares will be added to the Director's account under that plan as soon
as practicable after such date. For any other Director, shares in an
amount rounded to the nearest whole share will be delivered to the
Director or an account designated by the Director.
5.6 PHANTOM STOCK. If a Director elects to receive Phantom Stock for
deferral of the Optional Equity Compensation, the Director's Phantom
Stock Account shall be credited with a number of whole and fractional
units of Phantom Stock equal to the number of whole and fractional
shares of Stock which would be issuable under Section 5.5, as of any
date on which Director's Fees become payable to that Director. In
addition, as actual dividends are paid on Stock, Phantom Stock Accounts
will be credited with a number of whole and fractional units of Phantom
Stock as if the same dividends were paid on Phantom Stock and
immediately reinvested in Phantom Stock. Dividend credits will be made
based on the number of units of Phantom Stock credited to a Phantom
Stock Account as of the dividend record date for Stock.
5.7 STOCK OPTIONS. If a Director elects to receive Stock Options in payment
of the Optional Equity Compensation, as of any date on which Director's
Fees become payable to that
<PAGE> 10
Director, the Director shall receive a number of Stock Options based on
the following formula:
[Number of whole and fractional shares of Stock which would be
issuable under Section 5.5] multiplied by [Multiplier]
The "Multiplier" referred to above shall be established by the
Committee annually 45 days prior to the beginning of each Plan Year, but
may be changed as frequently as the Committee deems appropriate. The
value of the Multiplier shall be determined based on a reasonable option
valuation method such that the value of the Stock Options granted
reasonably approximates the value of the Director's Fees to be paid in
the form of Stock Options, but shall in no event exceed ten (10).
SECTION VI - RESTRICTED STOCK
6.1 TERMS OF RESTRICTED STOCK AGREEMENTS. All issuances of Restricted Stock
made in a single Plan Year pursuant to this Plan will be evidenced by
one Restricted Stock Agreement between the Company and the Director to
whom such Restricted Stock is issued, in form and substance satisfactory
to the Committee in its sole discretion, consistent with this Plan. The
terms of a Restricted Stock Agreement shall apply equally to all
issuances of Restricted Stock made in the Plan Year to which the
Restricted Stock Agreement relates except that Restricted Stock Vesting
Periods will differ based on the timing of each issuance. Without
limiting the foregoing, the following terms and conditions will be
considered part of each Restricted Stock Agreement (unless otherwise
stated therein):
(a) COVENANTS OF RESTRICTED STOCKHOLDER. Nothing contained in this
Plan, any Restricted Stock Agreement or in any other agreement
executed in connection with the issuance of Restricted Stock
under this Plan will confer upon any Restricted Stockholder any
right with respect to the continuation of the Director's status
as a Director of the Company or a Participating Company or
member of a Designated Committee.
(b) RESTRICTED STOCK VESTING PERIODS. Except as otherwise provided
herein, the period or periods of time during which shares of
Restricted Stock will be subject to the restrictions imposed
under this Plan or any other restrictions (the "Restricted Stock
Vesting Period") shall be specified in the Restricted Stock
Agreement. Restricted Stock Vesting Periods shall be determined
by the Committee in its discretion, but shall not exceed ten
years for full vesting. All shares of Restricted Stock shall
become immediately and fully vested upon a Change in Control of
the Company.
(c) FORFEITURE OF RESTRICTED STOCK. To the extent that the
applicable Restricted Stock Vesting Period has not elapsed, each
share of Restricted Stock, subject to the discretion of the
Committee, shall be forfeited immediately as of the date the
Restricted Stockholder ceases to be a Director for any reason.
<PAGE> 11
(d) RESTRICTIONS ON TRANSFER OF RESTRICTED STOCK
(i) GENERAL RULE ON TRANSFERS OF RESTRICTED STOCK.
Restricted Stock may be transferred only if required by
law. All Transfers of Restricted Stock not meeting the
conditions set forth in this subsection are expressly
prohibited.
(ii) EFFECT OF PROHIBITED TRANSFER. Any prohibited Transfer
of Restricted Stock is void and of no effect. Should
such a Transfer purport to occur, the Company may refuse
to carry out the Transfer on its books, attempt to set
aside the Transfer, enforce any undertaking or right
under this subsection 6.1(d), or exercise any other
legal or equitable remedy.
(iii) ESCROW. All shares of Restricted Stock issued pursuant
to this Plan will be held in escrow by the Company so
long as the shares of Restricted Stock are subject to
any restrictions under this Plan or under a Restricted
Stock Agreement. Each Restricted Stockholder
acknowledges that the Secretary of the Company is
appointed as the escrow holder with the authority to
take all such actions and to effectuate all such
Transfers and/or releases as are in accordance with the
terms of this Plan as a material inducement to the
issuance of shares of Restricted Stock under this Plan,
that the appointment is coupled with an interest, and
that it accordingly will be irrevocable. The escrow
holder will not be liable to any party to a Restricted
Stock Agreement (or to any other party) for any actions
or omissions unless the escrow holder is grossly
negligent relative thereto. The escrow holder may rely
upon any letter, notice or other document executed by
any signature purported to be genuine.
(e) COMPLIANCE WITH LAW. Notwithstanding any other provision of this
Plan, Restricted Stock may be issued pursuant to this Plan only
after there has been compliance with all applicable federal and
state tax and securities laws.
(f) STOCK CERTIFICATES. Certificates representing the Restricted
Stock issued pursuant to this Plan will bear all legends
required by law and necessary to effectuate this Plan's
provisions. The Company may place a "stop transfer" order
against shares of the Restricted Stock until all restrictions
and conditions set forth in this Plan and in the legends
referred to in this subsection 6.1(f) have been complied with.
(g) MARKET STANDOFF. To the extent requested by the Company and any
underwriter of securities of the Company in connection with a
firm commitment underwriting, no Restricted Stockholder of any
shares of Restricted Stock will sell or otherwise Transfer any
such shares not included in such underwriting, or not previously
registered pursuant to a registration statement flied under the
Securities Act of 1933, as amended, during the 120-day period
following the effective date of the registration statement
filed with the Securities and Exchange Commission in connection
with such offering.
<PAGE> 12
(h) OTHER PROVISIONS. The Restricted Stock Agreement may contain
such other terms, provisions and conditions, including such
special forfeiture conditions, fights of repurchase, rights of
first refusal and other restrictions on Transfer of Restricted
Stock issued hereunder, not inconsistent with this Plan, as may
be determined by the Committee in its sole discretion.
SECTION VII - STOCK OPTIONS
7.1 TERMS OF STOCK OPTION AGREEMENTS. All Stock Options granted in a single
Plan Year pursuant to this Plan will be evidenced by one Stock Option
Agreement between the Company and the Director to whom such Stock
Options are granted, in form and substance satisfactory to the Committee
in its sole discretion, consistent with this Plan. The terms of a Stock
Option Agreement shall apply equally to all grants of Stock Options made
in the Plan Year to which the Stock Option Agreement relates, except
that Option Prices will differ based on the timing of each grant.
Without limiting the foregoing, the following terms and conditions will
be considered a part of each Stock Option Agreement (unless otherwise
stated therein):
(a) COVENANTS OF OPTIONEE. Nothing contained in this Plan, any Stock
Option Agreement or in any other agreement executed in
connection with the granting of a Stock Option under this Plan
will confer upon any Optionee any right with respect to the
continuation of the Director's status as a Director of the
Company or a Participating Company or member of a Designated
Committee.
(b) STOCK OPTION VESTING. Except as otherwise provided herein, the
Committee in its discretion may specify a period of time within
which each Stock Option will vest and first become exercisable.
All Stock Options granted without specific vesting provisions,
or as Optional Equity Compensation, shall be fully and
immediately vested and exercisable as of the date of the grant.
(c) EXERCISE OF THE STOCK OPTION
(i) MECHANICS AND NOTICE. Stock Options may be exercised to
the extent exercisable by giving written notice to the
Company specifying the number of Stock Options to be
exercised, the date of the grant of the Stock Option or
Stock Options to be exercised, the Option Price, the
desired effective date of the exercise, the number of
full shares of Option Stock to be retained by the
Optionee after exercise, and the method of payment. Once
written notice complying with the requirements of this
subsection is received, the Committee or its designee
shall promptly notify the Optionee of the amount of the
Option Price and withholding taxes due. Payment of any
amounts owing shall be due immediately upon receipt of
such notice.
(ii) WITHHOLDING TAXES. As a condition to the issuance of
shares of Option Stock upon exercise of a Stock Option
granted under this Plan, the
<PAGE> 13
Optionee will pay to the Company in cash, through share
netting as described in subsection 7.1(d), or in such
other form as the Committee may determine in its
discretion, the amount of the Company's tax withholding
liability, if any, associated with such exercise. The
Committee may prescribe a specific method of payment of
such withholding, in its discretion. For purposes of
this subsection 7.1(c)(ii), "tax withholding liability"
will mean all federal and state income taxes, social
security tax, medicare tax and any other taxes
applicable to the income arising from the transaction
required by applicable law to be withheld by the
Company.
(iii) PAYMENT OF OPTION PRICE. Each Stock Option Agreement
will specify the Option Price, with respect to the
exercise of Stock Options granted thereunder, which may
be stated in terms of a fixed dollar amount, a
percentage (not less than 100%) of Fair Market Value at
the time of the grant, or such other method as
determined by the Committee in its discretion. In no
event will the Option Price for a Stock Option granted
hereunder be less than the Fair Market Value of the
Stock at the time such Stock Option is granted. The
Option Price will be payable to the Company in United
States dollars in cash or by check or, such other legal
consideration as may be approved by the Committee, in
its discretion.
(d) SHARE NETTING. The Optionee may pay all or a portion of the
Option Price and/or the tax withholding liability, if
applicable, with respect to the exercise of a Stock Option by
withholding shares of Option Stock ("share netting"), provided
that the Committee determines that the Fair Market Value of such
netted Option Stock is equal to the corresponding portion of
such Option Price and/or tax withholding liability, as the case
may be, to be paid for therewith.
(e) TERMINATION OF THE STOCK OPTION. Except as otherwise provided
herein, each Stock Option Agreement will specify the period of
time, not to exceed ten years, to be determined by the Committee
in its discretion, during which the Stock Option granted therein
will be exercisable (the "Option Period"). To the extent not
previously exercised, each Stock Option will terminate upon the
expiration of the Option Period specified in the Stock Option
Agreement; provided, however, that, subject to the discretion of
the Committee, each Stock Option will terminate, if earlier: (a)
six months after the date of the Optionee's Separation from
Service for any reason, other than death, Disability, or
Retirement; or (b) five years after the date of the Optionee's
Separation from Service by reason of such person's death,
Disability or Retirement.
(j) LIMITED STOCK APPRECIATION RIGHTS. Notwithstanding any
other provision of this Agreement, and except as
provided in subsection 7.1(e)(i)b, below, each Stock
Option will be cancelled on the effective date of a
Change in Control of the Company or a liquidation or
dissolution of the Company, and in lieu of further
rights under the Stock
<PAGE> 14
Options, Optionees will receive from the Company in cash
the difference between the Fair Market Value and the
Option Price, multiplied by the number of shares to
which each Stock Option relates.
a. For purposes of subsection 7.1(e)(i) only, the
Fair Market Value shall be the average between
the highest and lowest quoted price per share
for sales made and reported on the New York
Stock Exchange, or on a sales or quotation
system maintained by the National Association of
Securities Dealers, or such other national stock
exchange on which such Stock of the Company may
then be listed and which constitutes the
principal market for such Stock on the latest
trading date for which sales or quotations are
reported prior to such effective date or, if
greater, the price or value received by
shareholders for a share of Stock with respect
to the largest number of shares the ownership of
which is transferred in conjunction with such
Change in Control, liquidation or dissolution of
the Company.
b. The Board shall receive an opinion, dated as of
the Change in Control, from the independent
auditors of the surviving company, that the
limited stock appreciation rights granted in
subsection 7.1(e)(i) do not prevent the Change
in Control from being accounted for as a pooling
of interests. If the Board does not receive the
required opinion, it may declare subsection
7.1(e)(i) to be nullified. In such case, all
previously vested Stock Options shall continue
to be fully exercisable, and all unvested Stock
Options shall become immediately and fully
exercisable, upon the Change in Control pursuant
to the terms of this Plan.
(f) MODIFICATION OF STOCK OPTIONS. Subject to the terms and
conditions and within the limitations of this Plan, the
Committee may modify outstanding Stock Options granted under
this Plan, but in no event may the Committee change the Option
Price as stated in the Stock Option Agreement, if expressed as a
fixed dollar amount, or the manner in which the Option Price is
to be calculated as stated in the Stock Option Agreement, if
expressed as a percentage of Fair Market Value, a market or peer
group index or otherwise. Notwithstanding the foregoing, no
modification of any Stock Option will, without the consent of
the holder of the Stock Option, alter or impair any rights or
obligations under any Stock Option previously granted under this
Plan.
(g) TRANSFERABILITY OF STOCK OPTIONS. Stock Options will be subject
to Transfer by the Optionee only by will or the laws of descent
and distribution or, at the discretion of the Committee, by
direct gift to a family member, or gift to a family trust or
family partnership. The terms "family member," "family trust"
and "family partnership" shall have meanings consistent with
Section 704 of the Code.
<PAGE> 15
Stock Options will be exercisable only by the Optionee during
the Director's lifetime, or, by any of the recipients of the
Transfers specifically permitted by this subsection 7.1(g).
(h) COMPLIANCE WITH LAW. Notwithstanding any other provision of this
Plan, Stock Options may be granted pursuant to this Plan, and
Option Stock may be issued pursuant to the exercise thereof by
an Optionee, only after there has been compliance with all
applicable federal and state tax and securities laws. The right
to exercise a Stock Option will be further subject to the
requirement that if at any time the Committee or legal counsel
of the Company determines, in its discretion, that the listing,
registration or qualification of the shares of Option Stock
called for by any securities exchange or under any state or
federal law, or the consent or approval of any governmental
regulatory authority, is necessary or desirable as a condition
of or in connection with the granting of such Stock Option or
the purchase of shares of Option Stock, the Stock Option may not
be exercised, in whole or in part, unless and until such
listing, registration, qualification, consent or approval is
effected or obtained free of any conditions not acceptable to
the Committee, in its discretion.
(i) STOCK CERTIFICATES. Certificates representing the Option Stock
issued pursuant to the exercise of Stock Options will bear all
legends required by law and necessary to effectuate this Plan's
provisions. The Company may place a "stop transfer" order
against shares of the Option Stock until all restrictions and
conditions set forth in this Plan and in the legends referred to
in this subsection 7.1(i) have been complied with.
(j) OTHER PROVISIONS. The Stock Option Agreement may contain such
other terms, provisions and conditions, including such special
forfeiture conditions, rights of repurchase, rights of first
refusal and other restrictions on Transfer of Option Stock
issued upon exercise of any Stock Options granted hereunder, not
inconsistent with this Plan, as may be determined by the
Committee in its sole discretion.
SECTION VIII - PHANTOM STOCK (DEFERRED COMPENSATION)
8.1 PHANTOM STOCK DEFERRALS. Pursuant to Section 4.6, each Director may
defer all or a part of the Designated Equity Compensation of one or more
types of Director's Fees by electing to receive Phantom Stock instead of
such fees, if Phantom Stock is an available form of Equity Compensation
for the Plan Year. Pursuant to Section 5.6, each Director may defer all
or a part of the Optional Equity Compensation of one or more types of
Director's Fees by electing to receive Phantom Stock instead of cash
payment of such fees.
8.2 EFFECT OF DEFERRAL. To the extent the Company is required to withhold
taxes or any other amounts from Phantom Stock Account credits or any
other deferrals pursuant to any federal, state or local law, the
Committee may provide for such withholding in any
<PAGE> 16
manner it deems appropriate.
8.3 PRE-EXISTING DIRECTOR DEFERRED COMPENSATION PLANS OR AGREEMENTS. For all
Phantom Stock Accounts established prior to February 19, 1997, the
effective date of this amended and restated Plan, in order to facilitate
record keeping which will be compatible with the operation of the Plan
as amended and restated, all such Phantom Stock Accounts will be valued
in terms of units of Phantom Stock. With Committee approval, a Deferring
Director may elect to consolidate any other accumulated deferrals or
Phantom Stock he or she may have under any other director deferred
compensation plan sponsored by a Participating Company with the
Director's Phantom Stock Account in this Plan. Such transferred amounts
will be governed by the provisions of this Plan for all purposes. No
cash payments, after-tax deferral accounts or qualified plan rollovers
or transfers will be accepted under this Plan.
8.4 NON-ALIENATION. No Phantom Stock Account under this Plan shall be
subject to anticipation, alienation, sale, assignment, pledge,
encumbrance or charge, and any attempt to anticipate, alienate, sell,
assign, pledge, encumber or charge the same shall be void. No Phantom
Stock Account under this Plan shall in any manner be liable for or
subject to the debts, contracts, liabilities or torts of the person
entitled to such Account except such claims as may be made by the
Company or any Participating Company.
8.5 UNSECURED CREDITORS. All amounts held in Phantom Stock Accounts under
this Plan will be unsecured liabilities of the Company. Nothing
contained herein, and no action taken pursuant to the provisions of this
Plan shall create or be construed to create a trust of any kind, or a
fiduciary relationship between the Company, Participating Companies,
Directors or any other person. To the extent that a Director or any
other person acquires a right to receive payments under the terms of
this Plan, such rights shall be no greater than the rights of an
unsecured general creditor of the Company or Participating Companies.
All payments made under the terms of this Plan shall be made from the
general funds of the Company, or Participating Companies, and no
segregation of assets shall be made for the payment of any Phantom Stock
Account distributions under the terms of this Plan to any Deferring
Director or beneficiary thereof. Notwithstanding the foregoing, the
Company may establish an irrevocable Rabbi Trust to provide funding of
Phantom Stock Accounts payable under the Plan. At all times, the assets
of such trust shall remain subject to the claims of the Company's
creditors and Deferring Directors' claims to such assets shall be no
greater than those of an unsecured, general creditor of the Company.
8.6 TAX TREATMENT OF PHANTOM STOCK. Any Phantom Stock or other compensation
deferred under this Plan shall not be deemed compensation and shall not
be included in a Director's taxable income nor deductible by the Company
under federal or state law until actually received by the Deferring
Director. In order to ensure that Phantom Stock or other deferred
compensation payable under this Plan is not deemed received until it is
distributed according to Section X, the Committee may require Deferring
Directors to make Designated Elections and Optional Elections earlier
than 30 days prior to the beginning of a Plan Year. Any other rights,
powers, privileges or duties in connection
<PAGE> 17
with the establishment and administration of Phantom Stock Accounts
under this Plan shall not be effective if and to the extent that the
same, if effective, would result in the compensation deferred under this
Plan being subject to taxation before actual receipt by the Deferring
Director. All provisions of this Plan relating to the Phantom Stock
Accounts shall be subordinate to this requirement and any
interpretations or constructions to be given to this Plan shall be made
in such a manner as to carry out this intention.
SECTION IX - MAINTENANCE AND VALUATION
OF PHANTOM STOCK ACCOUNTS
9.1 MAINTENANCE OF SEPARATE PHANTOM STOCK ACCOUNTS. For each Deferring
Director, the Company shall establish a separate Phantom Stock Account
according to generally accepted accounting principles, which shall
reflect all deferrals and Phantom Stock accumulations under this Plan
and adjustments to the value of Deferring Director's Phantom Stock
Accounts in accordance with Section 9.2. Each Deferring Director will be
furnished a statement of the Director's Phantom Stock Accounts not less
often than annually and following the complete distribution of such
Phantom Stock Accounts to the Deferring Director.
9.2 VALUATION OF PHANTOM STOCK ACCOUNTS. Phantom Stock Accounts will be
credited, as described in Sections 4.6 and 5.6, with units of Phantom
Stock and dividend credits on such Phantom Stock. No specific assets
will be invested under this Plan nor will shares be held on behalf of a
Deferring Director. The value of each of a Deferring Director's Phantom
Stock Accounts will be determined as if assets were invested in shares
of Company Stock.
The Committee shall have the authority to establish such
consistent and nondiscriminatory accounting procedures as it deems
appropriate to credit Phantom Stock and dividends and transfers from
other director deferred compensation plans to a Deferring Director's
Phantom Stock Accounts, and to specify the date as of which the value of
Company Stock shall be determined for purposes of valuing a Deferring
Director's Phantom Stock Accounts. Phantom Stock Accounts shall be
valued as of each Valuation Date.
Upon a partial or total distribution of the Deferring Director's
Phantom Stock Accounts, the Committee shall determine the value of the
Deferring Director's Phantom Stock Accounts by adding (i) the value of
such Phantom Stock Accounts as of the Valuation Date preceding the date
of distribution, and (ii) any additional Phantom Stock or dividend
credits to the Phantom Stock Account since the Valuation Date preceding
the date of distribution.
SECTION X - DISTRIBUTION OF PHANTOM STOCK ACCOUNT BALANCES
10.1 FORMS OF DISTRIBUTION. All distributions of Phantom Stock Account
balances will be paid in cash, Stock, or some combination of both, in
accordance with an election made by the Deferring Director prior to
receiving a distribution. If no election is made,
<PAGE> 18
distributions will be made in cash. In the event that fractional shares
of Stock become payable to a Deferring Director, in lieu of payment in
fractional shares, the Deferring Director will receive the value of such
shares in cash.
10.2 DISTRIBUTION UPON SEPARATION FROM SERVICE.
(a) GENERAL RULE. In the event of a Deferring Director's Separation
from Service, the Deferring Director shall receive a single
distribution of Phantom Stock Account balances as of the date of
Separation from Service as soon as practicable following the
Director's Separation from Service, unless the Deferring
Director has previously elected an alternative method of
distribution under Section 10.2(b).
(b) TUNING OF ALTERNATIVE DISTRIBUTION METHOD ELECTION. An election
of an alternative method of distribution of Phantom Stock
Account balances described in Sections 10.2(c) or 10.2(d) must
be made by the Deferring Director on a form supplied by the
Company and delivered to the Committee no later than the earlier
of:
(i) three months prior to the Director's Separation from
Service; or
(ii) the last day of the calendar year preceding the calendar
year in which the Director's Separation from Service
occurs.
(c) SINGLE DEFERRED DISTRIBUTION. A Deferring Director may elect to
receive a single deferred distribution of the Director's Phantom
Stock Account balances on the 5th or 10th anniversary of the
Deferring Director's Separation from Service. The distribution
will be made by the Company as soon as practicable following the
anniversary date elected by the Deferring Director. If a
Deferring Director makes an election under this Section 10.2(c),
and dies prior to receiving all amounts payable under the Plan,
the remaining amounts payable shall be distributed to the
Deferring Director's Beneficiary in accordance with the
Deferring Director's election.
(d) 5 OR 10 YEAR INSTALLMENTS. A Deferring Director may elect to
receive a deferred distribution of Phantom Stock Account
balances in 5 or 10 annual installments commencing as soon as
practicable following the first anniversary of the Deferring
Director's Separation from Service. The amount of each annual
distribution shall equal the total value of the Deferring
Director's Phantom Stock Account in the Plan as of the Valuation
Date immediately preceding the distribution divided by the
number of payments remaining to be made to the Deferring
Director. If a Deferring Director makes an election under this
Section 10.2(d), and dies prior to receiving all amounts payable
under the Plan, the remaining amounts payable shall be
distributed to the Deferring Director's Beneficiary in
accordance with the Deferring Director's election.
10.3 CESSATION OF DEFERRING DIRECTOR. A Deferring Director shall continue to
participate in
<PAGE> 19
the Plan until such time as the full value of the Director's Phantom
Stock Accounts has been distributed.
10.4 EFFECT OF A CHANGE IN CONTROL ON PHANTOM STOCK ACCOUNTS. Subject to
prior approval by the Committee of an alternative course of action,
including immediate distribution of all Phantom Stock Account balances,
in the event of a Change in Control of the Company, the Committee shall
make appropriate arrangements with and obtain such binding commitments
from the Company's successor as are necessary to provide for the
distribution of all Phantom Stock Accounts in accordance with the terms
of this Plan.
SECTION XI - BENEFICIARIES
11.1 BENEFICIARY DESIGNATION. A Director may designate, by written notice
delivered to the Committee or its designee prior to the Director's
death, a Beneficiary or Beneficiaries to receive, in the event of the
Director's death, all or part of the amount of the Director's Phantom
Stock Accounts, any of the Director's Stock Options granted pursuant to
the Plan or any of the Director's unvested shares of Restricted Stock
granted pursuant to the Plan. A designation of Beneficiary may be
replaced by a new designation or may be revoked by the Director at any
time by written notice delivered prior to the Director's death.
11.2 ABSENCE OF BENEFICIARY OR UNCERTAIN BENEFICIARY. If no beneficiary
designation is in effect at the time of a Director's death, or if no
designated beneficiary survives the Director, or such designation
conflicts with law, payment of the amount, if any, payable under the
Plan upon the Director's death shall be made to the Director's estate.
If the Committee is in doubt as to the right of any person to
receive such amount, the Committee may retain such amount without
liability for any interest thereon, until the rights to such amount are
determined or the Committee may pay such amount into any court of
appropriate jurisdiction and such payment shall be a complete discharge
of the liability of the Company, the Participating Companies, the Plan
and the Board. Every person receiving or claiming payment under this
Plan shall be presumed to be mentally competent and of full legal age
until the date on which the Committee receives a written notice, that
such person is incompetent or a minor for whom a guardian or other
person legally vested with the care of the Director's person or estate
has been appointed. However, if the Committee shall find that any person
to whom an amount is payable is unable to care for the Director's
affairs because of incompetency or the person is a minor, any payment
due (unless a prior claim shall have been made by a duly appointed legal
representative) may be paid to the spouse, child, parent, brother, or
sister of such person, or to any person or institution deemed by the
Committee to have incurred expense for such person otherwise entitled to
payment. To the extent permitted by law, any such payment so made shall
be a complete discharge of liability under this Plan.
In the event a guardian of the estate of any person receiving or
claiming payment under this Plan shall be appointed by a court of
competent jurisdiction, payments may be made to such guardian provided
that proper proof of appointment and continuing
<PAGE> 20
qualification is furnished to the Company. To the extent permitted by
law, any such payment so made shall be a complete discharge of any
liability under the Plan.
SECTION XII - ADMINISTRATION
12.1 ADMINISTRATION OF PLAN. This Plan will be administered by the Committee,
which may delegate such powers or duties to employees of the Company or
a Participating Company, as it deems appropriate, provided that such
delegation is consistent with maintaining an exemption from the
short-swing profit liability provisions of Section 16 of the 1934 Act.
12.2 POWER OF PLAN ADMINISTRATOR. Except as otherwise expressly provided in
this Plan, the Committee shall have full power and authority, within the
limits provided by this Plan:
(a) to interpret this Plan, resolve ambiguities that arise under the
Plan and make equitable adjustment for any mistakes or errors
made in the administration of this Plan;
(b) to determine all questions arising in the administration of this
Plan, including the power to determine the rights of Directors
and their Beneficiaries;
(c) to adopt such rules and regulations as it may deem reasonably
necessary for the proper and efficient administration of this
Plan consistent with its purposes;
(d) to enforce this Plan in accordance with its terms and any rules
and regulations adopted by the Committee;
(e) to determine the period or periods of time during which Stock
Options may be exercised or become exercisable, the Option Price
and the duration of such Stock Options, and other matters to be
determined by the Committee in connection with specific Stock
Option grants and Stock Option Agreements as specified under
this Plan;
(f) to determine the period or periods of time during which the
Restricted Stock may vest, and other matters to be determined by
the Committee in connection with specific issuances of
Restricted Stock and Restricted Stock Agreements as provided in
this Plan; and
(g) to do all other acts which in its judgment are necessary or
desirable for the proper and effective administration of this
Plan.
SECTION XIII - MISCELLANEOUS
13.1 EXPENSES. Expenses of administering the Plan, will be borne by the
Company and Participating Companies.
<PAGE> 21
13.2 AMENDMENTS. The Board may amend the Plan at any time in its sole
discretion, provided that:
(a) Any such amendment will be effective at such date as the Board
may determine;
(b) No amendment shall reduce the value of a Deferring Director's
Phantom Stock Accounts as of the date the Board adopts the
amendment, but an amendment may change the manner in which Plan
distributions or earnings or losses on Phantom Stock Accounts
are determined;
(c) No such action may, without the approval of the shareholders of
the Company, materially increase (other than by reason of an
adjustment pursuant to Section 13.4 hereof) the aggregate number
of shares of Stock, Option Stock and Restricted Stock in the
Stock Pool that may be granted pursuant to this Plan; and
(d) No action of the Board or Committee shall alter or impair any
Stock Option or Restricted Stock previously granted or awarded
under this Plan without the consent of such affected Optionee or
Restricted Stockholder.
13.3 PLAN TERMINATION. The Board may terminate this Plan at any time;
however, no termination shall alter or impair any Stock Option or
Restricted Stock previously granted or awarded under this Plan without
the consent of such affected Optionee or Restricted Shareholder, nor
shall any termination reduce the value of the Deferring Director's
Phantom Stock Accounts as of the date the Board terminates the Plan.
13.4 ADJUSTMENTS UPON CHANGES IN STOCK. In the event of any change in the
outstanding Stock of the Company as a result of a stock split, reverse
stock split, stock dividend, recapitalization, combination or
reclassification, appropriate proportionate adjustments will be made:
(a) in the aggregate number of shares of Stock, Option Stock and
Restricted Stock in the Stock Pool;
(b) in the Option Price and the number of shares of Option Stock
that may be purchased pursuant to an outstanding Stock Option
granted hereunder; and
(c) in the number of units of Phantom Stock held in Phantom Stock
Accounts maintained under this Plan; and
(d) with respect to other rights and matters determined on a per
share basis under this Plan or any associated Stock Option
Agreement or Restricted Stock Agreement.
(e) Any such adjustments will be made only by the Committee, and
when so made will be effective, conclusive and binding for all
purposes with respect to this Plan and all Stock Options,
Restricted Stock and Phantom Stock then outstanding. No such
adjustments will be required by reason of the issuance or sale
by the
<PAGE> 22
Company for cash or other consideration of additional shares of
its Stock or securities convertible into or exchangeable for
shares of its Stock.
13.5 NOTICES. Notices, reports and statements to be given, made or delivered
to a Director will be deemed duly given, made or delivered, when
addressed to the Director, and delivered by first class mail, to such
Director's last known residence or business address. All notices
required to be given by a Director will be given on a form provided for
the purpose and will be deemed received when delivered to the Committee,
care of the Company's Senior Vice President of Human Resources at 211 S.
Rose, Kalamazoo, MI, 49007.
13.6 APPLICABLE LAW. This Plan shall be governed by the law of the State of
Michigan, to the extent not preempted by federal law.
13.7 PLAN BINDING UPON SUCCESSORS. This Plan shall be binding upon and inure
to the benefit of the Company, the Participating Companies, Directors
and their respective successors, assigns, personal representatives,
heirs, legatees and beneficiaries.
Approved by the Board of Directors on February 21, 1996.
Amended and restated by the Board of Directors on February 19, 1997.
<PAGE> 1
Exhibit 5.1
March 19, 1998
National City Corporation
1900 East Ninth Street
Cleveland, OH 44114
Re: Shares of Common Stock, par value $4.00 per share, of National City
Corporation ("National City Common") to be Registered in connection
with the Post-Effective Amendment No. 2 (on Form S-8) to Form S-4
Registration Statement
Gentlemen:
The Law Department acts as counsel to National City Corporation
("National City") and we are delivering this opinion in connection with the
Merger (the "Merger") of First of America Bank Corporation ("FOA") with and into
National City in accordance with the Agreement and Plan of Merger, dated as of
November 30, 1997 (the "Merger Agreement"), by and between FOA and National
City.
We have examined such documents, records and matters of law as we have
deemed necessary for purposes of this opinion, and based thereon we are of the
opinion that the National City Common which may be issued will be, when
issued, validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as to the Post-Effective
Amendment No. 2 (on Form S-8) to Form S-4 Registration Statement by National
City to effect registration of the National City Common issued in connection
with various stock option plans.
Very truly yours,
/s/ Carlton E. Langer
National City Corporation
Carlton E. Langer
Vice President and Assistant
General Counsel
<PAGE> 1
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in
the Registration Statement (Form S-4) and related Prospectus and Joint Proxy
Statement of National City Corporation for the proposed merger of National City
Corporation and First of America Banc Corporation for the registration of
approximately 108 million shares of National City Corporation's common stock and
to the incorporation by reference therein of our reports dated January 21, 1998
and January 19, 1998, with respect to the consolidated financial statements of
National City Corporation and Fort Wayne National Corporation, respectively,
included in their respective Annual Reports on Form 10-K for the year ended
December 31, 1997, filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
Cleveland, Ohio
February 17, 1998
