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Registration No. 333-16189
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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POST - EFFECTIVE AMENDMENT NO. 1
ON
FORM S-8
TO
REGISTRATION STATEMENT ON FORM S-4
UNDER
THE SECURITIES ACT OF 1933
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NationsBank Corporation
(Exact Name of Registrant as Specified in Its Charter)
North Carolina NationsBank Corporate Center 28255 56-0906609
(State or Other 100 North Tryon Street (Zip Code) (I.R.S.Employer)
Jurisdiction of Charlotte, North Carolina Identification No.)
Incorporation or (Address of Principal
Organization) Executive Offices)
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Boatmen's Bancshares, Inc. Amended 1981 Incentive Stock Option Plan
Boatmen's Bancshares, Inc. 1987 Non-Qualified Stock Option Plan
Boatmen's Bancshares, Inc. 1991 Incentive Stock Option Plan
Centerre Bancorporation 1987 Stock Incentive Plan
First Interstate of Iowa, Inc. 1991 Stock Incentive Plan
Sunwest Financial Services, Inc. 1987 Incentive Stock Option Plan
First Amarillo Bancorporation, Inc. and Subsidiaries Incentive Stock Option
Plan (Number 1)
First Amarillo Bancorporation, Inc. and Subsidiaries Incentive Stock Option
Plan (Number 2)
Westside Bancshares, Incorporated Incentive Stock Option Plan
Amended and Restated Fourth Financial Corporation 1981 Incentive Stock
Option Plan
Amended and Restated Fourth Financial Corporation 1986 Incentive Stock
Option Plan
Fourth Financial Corporation 1993 Incentive Stock Option Plan
Fourth Financial Corporation 1993 Non-Employee Directors Stock Option Plan
Worthen Banking Corporation 1984 Amended and Substituted Stock Option Plan
Worthen Banking Corporation 1993 Stock Option Plan
First New Mexico Bancshare Corporation 1983 Stock Option Plan
(Full Title of the Plans)
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PAUL J. POLKING, ESQ.
Executive Vice President
and General Counsel
NationsBank Corporation
NationsBank Corporate Center
100 North Tryon Street
Charlotte, North Carolina 28255
(Name and Address of Agent for Service)
(704) 386-5000
(Telephone Number, Including Area Code, of Agent for Service)
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This Post-Effective Amendment No. 1 covers shares of the Registrant's
Common Stock originally registered on the Registration Statement on Form
S-4 to which this is an amendment. The registration fees in respect of
such shares of Common Stock were paid at the time of the original filing
of the Registration Statement on Form S-4 relating thereto.
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<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents constituting a Prospectus (a "Prospectus") with respect
to this Post-Effective Amendment No. 1 on Form S-8 to the Registration Statement
on Form S-4 of NationsBank Corporation (the "Registrant") are kept on file at
the offices of the Registrant in accordance with Rule 428 promulgated pursuant
to the Securities Act of 1933, as amended (the "Securities Act"). The Registrant
will provide without charge to participants in the Boatmen's Bancshares, Inc.
Amended 1981 Incentive Stock Option Plan, Boatmen's Bancshares, Inc. 1987
Non-Qualified Stock Option Plan, Boatmen's Bancshares, Inc. 1991 Incentive
Stock Option Plan, Centerre Bancorporation 1987 Stock Incentive Plan, First
Interstate of Iowa, Inc. 1991 Stock Incentive Plan, Sunwest Financial
Services, Inc. 1987 Incentive Stock Option Plan, First Amarillo
Bancorporation, Inc. and Subsidiaries Incentive Stock Option Plan (Number 1),
First Amarillo Bancorporation, Inc. and Subsidiaries Incentive Stock Option
Plan (Number 2), Westside Bancshares, Incorporated Incentive Stock Option
Plan, Amended and Restated Fourth Financial Corporation 1981 Incentive Stock
Option Plan, Amended and Restated Fourth Financial Corporation 1986 Incentive
Stock Option Plan, Fourth Financial Corporation 1993 Incentive Stock Option
Plan, Fourth Financial Corporation 1993 Non-Employee Directors Stock Option
Plan, Worthen Banking Corporation 1984 Amended and Substituted Stock Option
Plan, Worthen Banking Corporation 1993 Stock Option Plan, and First New Mexico
Bancshares Corporation 1983 Stock Option Plan (collectively the "Plans"), on
the written or oral request of any such person, a copy of any or all of the
documents constituting a Prospectus. Written requests for such copies should
be directed to Charles J. Cooley, Principal Corporate Personnel Officer,
NationsBank Corporation, NationsBank Corporate Center, 100 North Tryon Street,
Charlotte, North Carolina 28255. Telephone requests may be directed to
(704) 386-5000.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, which have been heretofore filed by the
Registrant with the Securities and Exchange Commission (the "Commission")
pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), are incorporated by reference herein:
(a) The Registrant's Annual Report on Form 10-K for the
year ended December 31, 1995;
(b) The Registrant's Quarterly Reports on Form 10-Q for the
quarters ended March 31, 1996, June 30, 1996 and September 30, 1996 and Current
Reports on Form 8-K filed January 12, 1996, February 1, 1996, March 8, 1996,
April 17, 1996, May 16, 1996, July 5, 1996, July 31, 1996, September 6, 1996 (as
amended by Form 8-K/A-1 filed September 11, 1996 and by Form 8-K/A-2 filed
November 13, 1996), September 20, 1996 (as amended by Form 8-K/A-1 filed
September 23, 1996), October 25, 1996, November 14, 1996, December 4, 1996 and
December 17, 1996; and
(c) The description of the Registrant's Common Stock contained
in its registration statement filed pursuant to Section 12 of the Exchange Act,
and any amendment or report filed for the purpose of updating such description.
All documents filed by the Registrant with the Commission pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the
effectiveness of this Registration Statement and prior to the filing of a
post-effective amendment hereto that either indicates that all securities
offered hereby have been sold or register all securities then remaining unsold
shall be deemed to be incorporated by reference in this Registration Statement
and to be a part hereof from the date of filing of such documents. Any statement
contained in a document
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<PAGE>
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this Registration Statement to the
extent that a statement contained herein or in any other subsequently filed
document that also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
The Registrant will provide without charge to each person to whom a
Prospectus constituting a part of this Registration Statement is delivered, on
the written or oral request of any such person, a copy of any or all of the
documents incorporated herein by reference (other than exhibits to such
documents which are not specifically incorporated by reference in such
documents). Written requests for such copies should be directed to Charles J.
Cooley, Principal Corporate Personnel Officer, NationsBank Corporation,
NationsBank Corporate Center, 100 North Tryon Street, Charlotte, North Carolina
28255. Telephone requests may be directed to (704) 386-5000.
Item 5. Interests of Named Experts and Counsel.
The legality of the Registrant's Common Stock to be issued in
connection with the Plans has been passed upon by Paul J. Polking, Esq.,
Executive Vice President and General Counsel of the Registrant. As of the date
of this Post-Effective Amendment No. 1 on Form S-8, Mr. Polking beneficially
owned an aggregate of approximately 35,986 shares of the Registrant's Common
Stock.
Item 6. Indemnification of Directors and Officers.
There are no provisions in the Registrant's Restated Articles of
Incorporation, and no contracts between the Registrant and its directors and
officers, relating to indemnification. The Registrant's Restated Articles of
Incorporation prevent the recovery by the Registrant of monetary damages against
its directors. However, in accordance with the provisions of the North Carolina
Business Corporation Act (the "Act"), the Registrant's Amended and Restated
Bylaws provide that, in addition to the indemnification of directors and
officers otherwise provided by the Act, the Registrant shall, under certain
circumstances, indemnify its directors, executive officers and certain other
designated officers against any and all liability and litigation expense,
including reasonable attorneys' fees, arising out of their status or activities
as directors and officers, except for liability or litigation expense incurred
on account of activities that were at the time known or reasonably should have
been known by such director or officer to be clearly in conflict with the best
interests of the Registrant. Pursuant to such Bylaws and as authorized by
statute, the Registrant maintains insurance on behalf of its directors and
officers against liability asserted against such persons in such capacity
whether or not such directors or officers have the right to indemnification
pursuant to the Bylaws or otherwise.
In addition to the above-described provisions, Sections 55-8-50 through
55-8-58 of the Act contain provisions prescribing the extent to which directors
and officers shall or may be indemnified. Section 55-8-51 of the Act permits a
corporation, with certain exceptions, to indemnify a current or former director
against liability if (i) he conducted himself in good faith, (ii) he reasonably
believed (x) that his conduct in his official capacity with the corporation was
in its best interests and (y) in all other cases his conduct was at least not
opposed to the corporation's best interests, and (iii) in the case of any
criminal proceeding, he had no reasonable cause to believe his conduct was
unlawful. A corporation may not indemnify a current or former director in
connection with a proceeding by or in the right of the corporation in which the
director was adjudged liable to the corporation or in connection with a
proceeding charging improper personal benefit to him in which he was adjudged
liable on such basis. The above standard of conduct is determined by the Board
of Directors or a committee thereof, special legal counsel or the shareholders
as prescribed in Section 55-8-55 of the Act.
Sections 55-8-52 and 55-8-56 of the Act require a corporation to
indemnify a director or officer in the defense of any proceeding to which he was
a party because of his capacity as a director or officer against reasonable
expenses when he is wholly successful in his defense, unless the articles of
incorporation provide otherwise. Upon application, the court may order
indemnification of the director or officer if he is adjudged fairly and
reasonably so entitled under Section 55-8-54. Section 55-8-56 of the Act allows
a corporation to indemnify
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and advance to an officer, employee or agent who is
not a director to the same extent as a director or as otherwise set forth in the
corporation's articles of incorporation or bylaws or by a resolution of the
board of directors.
In addition, Section 55-8-57 of the Act permits a corporation to
provide for indemnification of directors, officers, employees or agents, in its
articles of incorporation or bylaws or by contract or resolution, against
liability in various proceedings and to purchase and maintain insurance policies
on behalf of these individuals.
The foregoing is only a general summary of certain aspects of North
Carolina law dealing with indemnification of directors and officers and does not
purport to be complete. It is qualified in its entirety by reference to the
relevant statutes which contain detailed specific provisions regarding the
circumstances under which and the person for whose benefit indemnification shall
or may be made and accordingly are incorporated herein by reference.
Item 8. Exhibits.
The following exhibits are filed with or incorporated by reference in
this Registration Statement.
<TABLE>
<CAPTION>
Exhibit No. Description of Exhibit
<S> <C>
5.1 Opinion of Paul J. Polking, Esq. as to the legality of the securities *
23.1 Consent of Price Waterhouse LLP
23.2 Consent of Paul J. Polking, Esq. (included in Exhibit 5.1) *
24.1 Power of Attorney and Certified Resolutions *
99.1 Boatmen's Bancshares, Inc. Amended 1981 Incentive Stock Option Plan
99.2 Boatmen's Bancshares, Inc. 1987 Non-Qualified Stock Option Plan
99.3 Boatmen's Bancshares, Inc. 1991 Incentive Stock Option Plan
99.4 Centerre Bancorporation 1987 Stock Incentive Plan
99.5 First Interstate of Iowa, Inc. 1991 Stock Incentive Plan
99.6 Sunwest Financial Services, Inc. 1987 Incentive Stock Option Plan
99.7 First Amarillo Bancorporation, Inc. and Subsidiaries Incentive Stock Option Plan
(Number 1)
99.8 First Amarillo Bancorporation, Inc. and Subsidiaries Incentive Stock Option Plan
(Number 2)
99.9 Westside Bancshares, Incorporated Incentive Stock Option Plan
99.10 Amended and Restated Fourth Financial Corporation 1981 Incentive Stock Option Plan
99.11 Amended and Restated Fourth Financial Corporation 1986 Incentive Stock Option Plan
II-3
<PAGE>
99.12 Fourth Financial Corporation 1993 Incentive Stock Option Plan
99.13 Fourth Financial Corporation 1993 Non-Employee Directors Stock Option Plan
99.14 Worthen Banking Corporation 1984 Amended and Substituted Stock Option Plan
99.15 Worthen Banking Corporation 1993 Stock Option Plan
99.16 First New Mexico Bancshare Corporation 1983 Stock Option Plan
99.17 Provisions of North Carolina Business Corporation Act, as amended, relating to
indemnification of directors and officers (incorporated herein by reference to Exhibit
99.1 of the NationsBank Corporation Registration Statement on Form S-3, Registration
No. 33-63097)
</TABLE>
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* Previously filed as an exhibit to the Registrant's Registration Statement
on Form S-4 to which this is Post-Effective Amendment No. 1
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to the Registration Statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act;
(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 end 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 a 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;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
Registration Statement is on Form S-3 or Form S-8, and the information required
to be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d)
of the Exchange Act that are incorporated by reference in the Registration
Statement.
(2) That, for the purpose of determining any liability under
the Securities Act, 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.
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(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
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<PAGE>
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. 1 to the Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Charlotte,
State of North Carolina, on January 9, 1997.
NATIONSBANK CORPORATION
By: *
Hugh L. McColl, Jr.
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Post-Effective Amendment No. 1 to the Registration Statement has been signed by
the following persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
* Chief Executive Officer and Director January 9, 1997
Hugh L. McColl, Jr. (Principal Executive Officer)
* Vice Chairman and January 9, 1997
James H. Hance, Jr. Chief Financial Officer
(Principal Financial Officer)
* Executive Vice President and January 9, 1997
Marc D. Oken Chief Accounting Officer
(Principal Accounting Officer)
Chairman of the Board January __, 1997
Andrew B. Craig, III and Director
* Director January 9, 1997
Ronald W. Allen
* Director January 9, 1997
Ray C. Anderson
* Director January 9, 1997
William M. Barnhardt
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<PAGE>
Director January __, 1997
B. A. Bridgewater, Jr.
Director January __, 1997
Thomas E. Capps
* Director January 9, 1997
Charles W. Coker
* Director January 9, 1997
Thomas G. Cousins
* Director January 9, 1997
Alan T. Dickson
Director January __, 1997
W. Frank Dowd, Jr.
* Director January 9, 1997
Paul Fulton
* Director January 9, 1997
Timothy L. Guzzle
Director January __, 1997
C. Ray Holman
* Director January 9, 1997
W. W. Johnson
Director January __, 1997
Russell W. Meyer, Jr.
* Director January 9, 1997
John J. Murphy
Director January __, 1997
Richard B. Priory
* Director January 9, 1997
John C. Slane
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<PAGE>
Director January __, 1997
O. Temple Sloan, Jr.
* Director January 9, 1997
John W. Snow
* Director January 9, 1997
Meredith R. Spangler
* Director January 9, 1997
Robert H. Spilman
Director January __, 1997
Albert E. Suter
* Director January 9, 1997
Ronald Townsend
* Director January 9, 1997
E. Craig Wall, Jr.
* Director January 9, 1997
Jackie M. Ward
* Director January 9, 1997
Virgil R. Williams
*By: /s/ Charles M. Berger
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Charles M. Berger
Attorney-in-Fact
</TABLE>
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<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit No. Description of Exhibit
<S> <C>
5.1 Opinion of Paul J. Polking, Esq. as to the legality of the securities *
23.1 Consent of Price Waterhouse LLP
23.2 Consent of Paul J. Polking, Esq. (included in Exhibit 5.1.) *
24.1 Power of Attorney and Certified Resolutions *
99.1 Boatmen's Bancshares, Inc. Amended 1981 Incentive Stock Option Plan
99.2 Boatmen's Bancshares, Inc. 1987 Non-Qualified Stock Option Plan
99.3 Boatmen's Bancshares, Inc. 1991 Incentive Stock Option Plan
99.4 Centerre Bancorporation 1987 Stock Incentive Plan
99.5 First Interstate of Iowa, Inc. 1991 Stock Incentive Plan
99.6 Sunwest Financial Services, Inc. 1987 Incentive Stock Option Plan
99.7 First Amarillo Bancorporation, Inc. and Subsidiaries Incentive Stock Option Plan
(Number 1)
99.8 First Amarillo Bancorporation, Inc. and Subsidiaries Incentive Stock Option Plan
(Number 2)
99.9 Westside Bancshares, Incorporated Incentive Stock Option Plan
99.10 Amended and Restated Fourth Financial Corporation 1981 Incentive Stock Option Plan
99.11 Amended and Restated Fourth Financial Corporation 1986 Incentive Stock Option Plan
99.12 Fourth Financial Corporation 1993 Incentive Stock Option Plan
99.13 Fourth Financial Corporation 1993 Non-Employee Directors Stock Option Plan
99.14 Worthen Banking Corporation 1984 Amended and Substituted Stock Option Plan
99.15 Worthen Banking Corporation 1993 Stock Option Plan
99.16 First New Mexico Bancshare Corporation 1983 Stock Option Plan
99.17 Provisions of North Carolina Business Corporation Act, as amended, relating to
indemnification of directors and officers (incorporated herein by reference to Exhibit
99.1 of the Registrant's Registration Statement on Form S-3, Registration No. 33-63097)
</TABLE>
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* Previously filed as an exhibit to the Registrant's Registration
Statement on Form S-4 to which this is Post-Effective Amendment No. 1
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Post-Effective
Amendment No. 1 on Form S-8 to the Registration Statement on Form S-4
(Registration No. 333-16189) of NationsBank Corporation of our report dated
January 12, 1996, which appears on page 46 of NationsBank Corporation's 1995
Annual Report to Shareholders, which is incorporated by reference in NationsBank
Corporation's Annual Report on Form 10-K for the year ended December 31, 1995.
/s/ Price Waterhouse LLP
PRICE WATERHOUSE LLP
Charlotte, North Carolina
January , 1997
<PAGE>
EXHIBIT 99.1
BOATMEN'S BANCSHARES, INC.
AMENDED 1981 INCENTIVE STOCK OPTION PLAN
1. Purpose
The purpose of the 1981 Incentive Stock Option Plan (the "Plan") of
Boatmen's Bancshares, Inc. (the "Corporation") is to provide increased incentive
for certain key employees of the Corporation and its subsidiaries and to
encourage them to acquire a proprietary interest in the Corporation.
2. Shares
The shares which may be issued under the Plan shall be limited to 600,000
(subject to adjustment as provided in Section 12) of the $10.00 par value common
shares of the Corporation. Such shares may be either authorized but unissued
shares or treasury shares.
3. Administration
The Plan shall be administered by the Compensation and Stock Option
Committee (the "Committee"), composed of three or more directors of the
Corporation who are not officers or employees thereof. Members of the Committee
shall be appointed by and shall serve at the pleasure of the Board of Directors.
Subject to the express provisions of the Plan, the Committee shall have complete
authority to determine the individuals to whom and the time or times when
options shall be granted and when they may be
<PAGE>
exercised, to specify the terms and provisions of the options, to interpret the
Plan, to prescribe, amend and rescind rules and regulations relating to it and
to the conduct of the Committee's affairs, and to make all other determinations
necessary or advisable for the administration of the Plan. All determinations by
the Committee shall be conclusive.
4. Eligibility
Options may be granted only to key employees of the Corporation or its
subsidiaries, including but not limited to officers, whether or not they are
directors of the Corporation or its subsidiaries. An option may not be granted
to any person who, at the time the option is granted, owns, within the meaning
of ss.425(d) of the Internal Revenue Code, more than 10% of the total combined
voting power of all classes of stock of the Corporation or any of its
subsidiaries, unless, at the time such option is granted, the option price is at
least 110 percent of the fair market value of the shares subject to the option
and such option by its terms is not exercisable after the expiration of five
years from the date such option is granted.
5. Option Price
The price per share for shares to be sold pursuant to an option shall be
not less than the fair market value thereof on the date on which the option is
granted, as determined by the Committee.
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<PAGE>
6. Limitations on Grants per Employee
With respect to options granted after December 31, 1986, the aggregate fair
market value, determined at the time the option is granted, of the shares with
respect to which options are exercisable for the first time by an employee
during any calendar year (under all stock option plans of the Corporation and
its subsidiaries to which the provisions of ss.422A of the Internal Revenue Code
apply) shall not exceed $100,000.
7. Option Period and Limitations on Right to Exercise
An option by its terms may be exercised only during an option period
commencing on the date on which the option is granted and ending ten years
thereafter, provided, however, that the Committee may specify a period or
periods within such option period during which one or more portions or all of
the total number of shares to which such option relates may not be purchased
and, except as set forth in Sections 10 and 11 hereof, no option may be
exercised unless the optionee is then in the employ of the Corporation or of one
of its subsidiaries and shall have been continuously so employed since the date
of the grant of his option. With respect to options granted prior to January 1,
1987, each option may not be exercised while such employee holds any outstanding
previously granted incentive stock option to purchase shares in the Corporation
or in a corporation which is a
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<PAGE>
subsidiary of the Corporation or in a predecessor of any such corporations.
8. Payment for Shares
Full payment for shares purchased shall be made at the time of exercise of
the option. Such payment shall be made in cash or, if authorized by the
Committee in the option grant, in whole or in part in common shares of the
Corporation valued at fair market value, as determined by the Committee. Options
may be exercised in whole or in part. No shares will be issued until full
payment therefore has been made and the optionee shall have none of the rights
of a stockholder until such payment is made.
9. Non-transferability of Options
An option granted under the Plan by its terms shall not be transferable
otherwise than by will or by the laws of descent and distribution and shall be
exercisable, during the lifetime of the optionee, only by him.
10. Termination of Employment
If the employment of an optionee is terminated other than by reason of his
death, he may exercise his option, to the extent that he was entitled to
exercise it at the date of such termination of employment, at any time within
three months after such termination or, in case of an optionee who is disabled
(within
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<PAGE>
the meaning of ss.105(d)(4) of the Internal Revenue Code) within one year after
such termination, provided that an optionee whose employment is terminated by
reason of conduct which the Committee determines to have been knowingly
fraudulent, deliberately dishonest or willful misconduct shall forfeit all
rights hereunder and provided further that no exercise of any option may take
place later than ten years from the date of grant of such option. No change in
the duties of an optionee, while in the employ of the Corporation or of one of
its subsidiaries, or any transfer among them shall constitute termination of
employment by the Corporation and its subsidiaries. Nothing in the Plan or in
any option shall be deemed to create any limitation or restriction on such
rights as the Corporation and its subsidiaries otherwise would have to terminate
the employment of any person at any time for any reason.
11. Death of Optionee
In the event of the death of an optionee, either while employed by the
Corporation or within three months after termination of his employment, his
option may be exercised, to the extent that he was entitled to exercise it at
the date of his death, by his estate, or by any person who acquired the right to
exercise such option by bequest or inheritance or by reason of the death of the
optionee, at any time, but in no event after ten years from the date of the
grant of the option.
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12. Effect of Change in Shares
If there is any change in the shares of the Corporation by reason of stock
dividends, split-ups or consolidations of shares, recapitalizations, mergers,
consolidations, reorganizations, combinations or exchange of shares, the number
and class of shares available for options and the number of shares subject to
any outstanding option, and the price thereof, shall be appropriately adjusted
by the Committee, provided, however, that if the Corporation shall issue
additional capital stock of any class for consideration, there shall be no
adjustment.
13. Amendment or Termination
Unless the Plan shall theretofore have been terminated as hereinafter
provided, the Plan shall terminate on, and no option shall be granted hereunder
after December 7, 1991, (ten years from the date of its adoption by the Board of
Directors of the Corporation). The Board of Directors of the Corporation may, at
any time prior to that date, terminate the Plan or make such modifications of
the Plan as it may deem advisable; provided, however, that neither the Board nor
the Committee may, without further approval by the holders of the voting shares
of the Corporation, (a) increase the maximum number of share for which options
may be granted (subject to the provisions of Section 12 hereof), (b) change the
class of employees to whom options may be
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<PAGE>
granted, (c) decrease the minimum option price provided in the Plan or (d)
extend the period during which options may be granted or exercised.
14. Regulatory Authority
It is intended that options granted under the Plan shall be incentive stock
options within the meaning of the provisions of ss.421-425 of the Internal
Revenue Code and the regulations issued thereunder and shall be entitled to the
benefits afforded thereby. (References in the Plan to such provisions and
regulations shall be deemed to refer as well to any enacted or issued in lieu
thereof.) The Plan shall be administered in such a manner as to effectuate such
intention and shall be construed and interpreted in accordance with such
provisions and regulations. Each option grant shall be subject to, and no
exercise of any option shall be effective unless and until there shall have
been, compliance, to the extent the Committee shall deem advisable, with the
requirements of all applicable federal, state and other pertinent regulatory
authority.
15. Effective Date of Plan
The Plan shall be effective as of February 10, 1987, only if it shall be
approved within twelve months thereafter by the shareholders of the Corporation
as required by the Internal Revenue Code and the regulations issued thereunder
and
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<PAGE>
no option granted hereunder, if any, after such effective date but prior to such
approval may be exercised unless and until such approval shall have been
granted.
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EXHIBIT 99.2
BOATMAN'S BANCSHARES, INC.
100 North Broadway, St. Louis Missouri 63102
(314) 425-7525
1987 NON-QUALIFIED STOCK OPTION PLAN
General Information
This Prospectus is intended to furnish to eligible employees of the
Corporation and subsidiaries of the Corporation information regarding the 1987
Non-Qualified Stock Option Plan (the "Plan"). The Plan was adopted by the Board
of Directors of the Corporation on February 10, 1987, was amended by the Board
on March 10, 1987, and approved by the shareholders on April 28, 1987.
Key employees of the Corporation and its subsidiaries are eligible to
participate in the Plan. Under the Plan, such eligible employees may receive
options to purchase shares of the Corporation's common stock ("Common Stock").
The Plan is not a qualified plan under Section 401(a) of the Internal
Revenue Code of 1986 ("the Code"), and is not subject to any of the provisions
of the Employee Retirement Income Security Act of 1974. No person has a right
under the Plan, or pursuant to any contract entered into in connection
therewith, to create a lien on any Plan assets.
On February 24, 1987, options to purchase 96,900 shares of Common Stock at
a per share price of $40.25 were granted under the Plan to nine key employees of
the Corporation and its subsidiaries. Such options become exercisable as to all
or portions of the shares subject to each option on various dates within the
next five calendar years and remain exercisable for various periods ending no
later than February 24, 1997.
Description of the 1987 Non-Qualified Stock Option Plan
The following is a summary of the Plan. This summary does not purport to be
complete. Reference is made to the Plan for a complete statement of the terms
and provisions thereof.
Purpose. The purpose of the Plan is to provide increased incentive for
certain key employees of the Corporation and its subsidiaries and to encourage
them to acquire a proprietary interest in the Corporation.
Number of Shares. The number of shares of Common Stock which may be issued
under the Plan is limited to 500,000, subject to adjustment in the event of
certain changes affecting the shares. See "Changes in Shares."
Limitations on Grants per Employee. Under the Plan, there is no specified
maximum or minimum on the number or aggregate dollar value of shares which
employees may be granted options to purchase within any given period of time.
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<PAGE>
Administration. The Plan is administered by the Corporation's Compensation
and Stock Option Committee (the "Committee"), which is composed of three or
more directors of the Corporation who are not officers or employees of the
Corporation and who are appointed by and serve at the pleasure of the Board of
Directors of the Corporation. The present members of the Committee are Ellis L.
Brown, Chairman, Ronald L. Aylward, George H. Capps, Ilus W. Davis, John E.
Hayes, Jr., and Lee M. Liberman and their address is 100 North Broadway, St.
Louis, Missouri 63102. Subject to the terms of the Plan, the Committee
determines when and to whom options will be granted, the option price for each
such option and when such option may be exercised. The Committee has full
authority to interpret and regulate the Plan and the options granted thereunder.
All determinations by the Committee are conclusive.
Option Price. The per share price at which shares may be purchased pursuant
to any option granted under the plan shall not be less than the fair market
value of Common Stock on the date on which the option is granted, as determined
by the Committee. Once determined by the Committee in the option grant, the
option price may not subsequently be modified, subject to adjustment by the
Committee in the event of certain changes affecting the shares. See "Changes in
Shares."
Participation. Options may be granted to any person who, at the time of the
grant, is a key employee of the Corporation or its subsidiaries, including but
not limited to officers, whether or not they are directors.
Stock Appreciation Rights. Any option to purchase Common Stock of the
Corporation granted under the Plan may be accompanied by a related stock
appreciation right ("SAR"), at the discretion of the Committee. An optionee
holding an option accompanied by a SAR may elect to exercise the SAR instead of
the option itself, with respect to all or a portion of the shares subject to
exercise under the option, in which event the optionee is not required to
advance any payment and receives, in lieu of shares of Common Stock, an amount
in cash equal to the excess of the total fair market value of shares as to which
the SAR is being exercised on the date of exercise over the aggregate option
price of such shares. SAR's are granted subject to the same terms and conditions
as the related options, are exercisable only to the extent the related options
are exercisable and terminate when the options terminate. Exercise of a SAR by
any director or officer of the Corporation must be effected in conformity with
certain rules and regulations promulgated by the Securities and Exchange
Commission, which, among other things, permit such exercise only during "window
periods" following the release by the Corporation of quarterly or annual
financial information. Specifically, exercise of a SAR by an officer or director
of the Corporation may be effected only during the period beginning on the third
business day following the date the Corporation releases its quarterly or annual
financial information and ending on the twelfth business day following the date
of release. Exercise of a SAR becomes effective upon receipt by the Committee of
a written notice of election to exercise or, if all conditions to exercise are
not then satisfied, on the first subsequent date when such conditions are
satisfied. Exercise of a SAR will reduce the number of shares subject to
exercise under the related option as though the option itself had been
exercised.
Time of Exercise. An option granted under the Plan by its terms may be
exercised only during an option period which is determined by the Committee and
set forth in the grant but which may not extend beyond ten years form the date
of grant. Also see
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<PAGE>
"Termination of Employment." The Committee is authorized under the Plan to
impose further restrictions upon the right to exercise within the option period.
Any exercise during the option period is subject to satisfaction of all required
conditions to exercise. See "Other Conditions to Exercise."
Other Conditions to Exercise. No option may be exercised unless all
requirements of applicable Federal, state or other pertinent regulatory
authority have been complied with to the extent the Committee deems advisable.
Method of Exercise of Options; Payment. An option granted under the Plan is
exercised in whole or in part by payment in full for the number of shares as to
which it is being exercised. Such payment may be made in cash or, if authorized
by the Corporation in the grant, in whole or in part in Common Stock valued at
fair market value, as determined by the Committee. Upon such payment, a
certificate or certificates for the full number of shares then being purchased
will be issued and delivered to the optionee. The optionee will have no rights
as a shareholder with respect to the shares as to which the option is being
exercised until full payment for those shares has been received by the
Corporation and the shares have been issued.
Non-Transferability. No option granted under the Plan is transferable
otherwise than by will or by the laws of descent and distribution and each such
option is exercisable, during the lifetime of optionee, only by the optionee.
Termination of Employment. If the employment of an optionee by the
Corporation or any subsidiary of the Corporation is terminated other than by
reason of death, disability (within the meaning of section 105(d)(4) of the
Internal Revenue Code) or retirement, the right of the optionee to exercise any
option then exercisable by him will terminate at the earlier of one year after
the date of termination of employment or the date the option otherwise
terminates. Notwithstanding the foregoing, an optionee whose employment is
terminated by reason of conduct which the Committee determines to have been
knowingly fraudulent, deliberately dishonest or willful misconduct shall forfeit
all rights under the Plan. No change in the duties of an optionee or any
transfer of the optionee among the Corporation and its subsidiaries shall
constitute termination of employment. Death, disability or retirement will not
affect the term of an option.
Death of Optionee. In the event of the death of an optionee prior to the
exercise or termination of exercisability of an option granted him under the
Plan, the optionee's estate, or any person who acquires the right to exercise
the option by bequest or inheritance or by reason of the death of the optionee,
may, at any time prior to the normal end of the option period, exercise the
option to the same extent the optionee would be entitled to exercise such option
were optionee alive.
Changes in Shares. If there is any change in the shares of the
Corporation's stock by reason of stock dividends, stock splits or other changes
in capitalization, the number and class of shares subject to options and the
price thereof and the number of SAR's shall be appropriately adjusted by the
Committee. If the Corporation issues additional capital stock of any class for
a consideration, no adjustment will be made.
Amendment or Termination of the Plan. The Board of Directors of the
Corporation may modify, amend or terminate the Plan at any time, except that, if
not earlier termi-
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<PAGE>
nated by action of the Board, the Plan shall terminate on, and no option shall
be granted under the Plan after February 10, 1997. Termination of the Plan will
not affect nor terminate the exercisability of options previously granted under
the Plan and then outstanding.
Federal Income Tax Consequences
It is intended that options granted under the Plan will NOT be "incentive
stock options" within the meaning of Section 422A of the Code. No income will be
recognized by an optionee when an option is granted to him under the Plan nor
will the Corporation receive any tax deduction at the time of grant. Upon
exercise of an option, the difference between the fair market value of the
shares acquired at the time of exercise and the option price of such shares will
be treated for Federal income tax purposes as ordinary income received as
additional compensation, subject to Federal income tax withholding and
employment tax provisions, and the Corporation will receive a corresponding tax
deduction.
In the case of persons subject to Section 16(b) of the Exchange Act
(including directors, officers and 10% shareholders of the Corporation), the
amount of ordinary income is determined on the basis of the fair market value of
the shares on the date six months after the date of exercise (or on the date the
Section 16(b) restriction lapses, if earlier), unless the optionee files an
election under Section 83(b) of the Code with the Internal Revenue Service
within 30 days after the date the option is exercised, in which case the general
rule set forth in the preceding paragraph applies.
The optionees' basis in shares received upon exercise of an option will
equal the fair market value thereof on the date of exercise (or, if Section
16(b) of the Exchange Act applies, the later-date fair market value used to
determine the amount of ordinary income.) Generally, subsequent sales of such
shares will result in recognition of capital gain or loss, which may be
long-term or short-term, depending on how long the shares were held before
the disposition.
Upon exercise of a SAR, cash amounts received will be treated for Federal
income tax purposes as ordinary income received as additional compensation,
subject o Federal income tax withholding and employment tax provisions, and the
Corporation will receive a corresponding tax deduction.
All optionees are urged to consult their own tax advisers to determine the
particular tax consequences to them of their receipt or exercise of options or
SAR's under the Plan and any subsequent disposition by them of shares received
upon exercise of options.
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<PAGE>
Resales of Shares Received Through the Plan
Normally, optionees who receive shares of Common Stock upon exercise of
options granted to them under the Plan may resell such shares immediately
following receipt without registration under applicable securities laws.
Nevertheless, persons who are "affiliates" of the Corporation within the meaning
of the Securities Act of 1933 (the "Act") by virtue of their direct or indirect
control over the Corporation may reoffer or resell such shares following receipt
thereof only if such reoffers and resales are separately registered under the
Act or and exemption form registration is available. An exemption often relied
upon for such resales is that contained in Rule 144 under the Act for resales by
affiliates that meet specified conditions. Affiliates may not use this
Prospectus to reoffer or resell such shares. Under usual circumstances,
directors and executive officers of the Corporation would likely be deemed to be
"affiliates" of the Corporation under the Act.
Legal Matters
The legality of the issues of shares of Common Stock offered hereunder has
been passed upon for the Corporation by Lewis & Rice, 611 Olive Street, St.
Louis, Missouri 63101. As of June 19, 1987, partners of, and attorneys employed
by Lewis & Rice owned directly or indirectly an aggregate of 8,830 shares of
Common Stock.
Commission Position on Indemnification
Article XIII of the Corporation's Restate Articles of Incorporation
provides that it shall indemnify its directors and certain of its executive
offices to the full extent specified in Section 351.355 of the Revised Statutes
of Missouri (the "Indemnification Statute") and, in addition, shall indemnify
such persons against all expenses (including attorneys' fees, judgments, fines
and amounts paid in settlement) incurred by them in connection with may claim
(including one by or in the right of a corporation) by reason or arising out of
their serving in any of the various capacities set forth in the Indemnification
Statute, except that such indemnification shall not apply to conduct finally
adjudged to have been knowingly fraudulent, deliberately dishonest or willful
misconduct. Article XIII also provides that the Corporation may indemnify other
officers, employees and agents to the full extent specified in the
Indemnification Statute and may extend to them such additional indemnification.
Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers or persons controlling the Corporation pursuant
to the foregoing provisions, the Corporation has been informed that in the
opinion of the Commission such indemnification is against public policy as
expressed in the Act and is therefore unenforceable.
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EXHIBIT 99.3
BOATMEN'S BANCSHARES, INC.
1991 INCENTIVE STOCK OPTION PLAN
1. Purpose
The purpose of the 1991 Incentive Stock Option Plan (the "Plan") of
Boatmen's Bancshares, Inc. (the "Corporation") is to provide increased incentive
for certain key employees of the Corporation and its subsidiaries and to
encourage them to acquire a proprietary interest in the Corporation.
2. Shares
The shares which may be issued under the Plan shall be limited to 1,000,000
(subject to adjustment as provided in Section 12) of the $1.00 par value common
shares of the Corporation. Such shares may be either authorized but unissued
shares or treasury shares.
3. Administration
The Plan shall be administered by the Compensation Committee of the
Corporation (the "Committee"), composed of three or more directors of the
Corporation who are not officers or employees thereof. Members of the Committee
shall be appointed by and shall serve at the pleasure of the Board of Directors.
Subject to the express provisions of the Plan, the Committee shall have complete
authority to determine the individuals to whom and the time or times when
options shall be granted and when they may be exercised, to specify the terms
and provisions of the options, to interpret the Plan, to prescribe, amend and
rescind rules and regulations relating to it and to the conduct of the
Committee's affairs, and to make all other determinations necessary or advisable
for the administration of the Plan. All determinations by the Committee shall be
conclusive.
4. Eligibility
Options may be granted only to key employees of the Corporation or its
subsidiaries, including but not limited to officers, whether or not they are
directors of the Corporation or its subsidiaries. An option may not be granted
to any person who, at the time the option is granted, owns, within the meaning
of ss.424(d) of the Internal Revenue Code, more than 10% of the total combined
voting power of all classes of stock of the Corporation or any of its
subsidiaries, unless, at the time such option is granted, the option price is at
least 110% of the fair market value of the shares subject to the option and such
option by its terms is not exercisable after the expiration of five years from
the date such option is granted.
5. Option Price
The price per share for shares to be sold pursuant to an option shall be
not less than the fair market value thereof on the date on which the option is
granted, as determined by the Committee.
6. Limitations on Grants per Employee
The aggregate fair market value, determined at the time the option is
granted, of the shares with respect to which options are exercisable for the
first time by an employee during any calendar year (under all stock option plans
of the Corporation and its subsidiaries to which the provisions of ss.422 of the
Internal Revenue Code apply) shall not exceed $100,000.
<PAGE>
7. Option Period and Limitations on Right to Exercise
An option by its terms may be exercised only during an option period
commencing on the date on which the option is granted and ending ten years
thereafter, provided, however, that the Committee may specify a period or
periods within such option period during which one or more portions or all of
the total number of shares to which such option relates may not be purchased;
and except as set forth in Sections 10 and 11 hereof, no option may be exercised
unless the optionee is then in the employ of the Corporation or of one of its
subsidiaries and shall have been continuously so employed since the date of the
grant of his option.
8. Payment for Shares
Full payment for shares purchased shall be made at the time of exercise of
the option. Such payment shall be made in cash or, if authorized by the
Committee in the option grant, in whole or in part in common shares of the
Corporation valued at fair market value, as determined by the Committee. Options
may be exercised in whole or in part. No shares will be issued until full
payment therefore has been made and the optionee shall have none of the rights
of a stockholder until such payment is made.
9. Non-transferability of Options
An option granted under the Plan by its terms shall not be transferable
otherwise than by will or by the laws of descent and distribution and shall be
exercisable, during the lifetime of the optionee, only by the optionee, or the
optionee's guardian or legal representative.
10. Termination of Employment
If the employment of an optionee is terminated other than by reason of his
death, he may exercise his option, to the extent that he was entitled to
exercise it at the date of such termination of employment, at any time within
three months after such termination or, in case of an optionee who is disabled
(within the meaning of ss.22(e)(3) of the Internal Revenue Code) within one year
after such termination, provided that an optionee whose employment is terminated
by reason of conduct which the Committee determines to have been knowingly
fraudulent, deliberately dishonest or willful misconduct shall forfeit all
rights hereunder and provided further that no exercise of any option may take
place later than ten years from the date of grant of such option. No change in
the duties of an optionee, while in the employ of the Corporation or of one of
its subsidiaries, or any transfer among then shall constitute termination of
employment by the Corporation and its subsidiaries. Nothing in the Plan or in
any option shall be deemed to create any limitation or restriction on such
rights as the Corporation and its subsidiaries otherwise would have to terminate
the employment of any person at any time for any reason.
11. Death of Optionee
In the event of the death of an optionee, either while employed by the
Corporation or within three months after termination of his employment, his
option may be exercised, to the extent that he was entitled to exercise it at
the date of his death, by his estate, or by any person who acquired the right to
exercise such option by bequest or inheritance or by reason of the death of the
optionee, at any time, but in no event after ten years from the date of the
grant of the option.
2
<PAGE>
12. Effect of Change in Shares
If there is any change in the shares of the Corporation by reason of stock
dividends, split-ups or consolidations of shares, recapitalizations, mergers,
consolidations, reorganizations, combinations or exchange of shares, the number
and class of shares available for options and the number of shares subject to
any outstanding option, and the price thereof, shall be appropriately adjusted
by the Committee, provided, however, that if the Corporation shall issue
additional capital stock of any class for consideration, there shall be no
adjustment.
13. Amendment or Termination
Unless the Plan shall theretofore have been terminated as hereinafter
provided, the Plan shall terminate on, and no option shall be granted hereunder
after January 22, 2001 (ten years from the date of its adoption by the Board of
Directors of the Corporation). The Board of Directors of the Corporation may, at
any time prior to that date, terminate the Plan or make such modifications of
the Plan as it may deem advisable.
14. Regulatory Authority
It is intended that options granted under the Plan shall be incentive stock
options within the meaning of the provisions of ss.421-425 of the Internal
Revenue Code and the regulations issued thereunder and shall be entitled to the
benefits afforded thereby. (References in the Plan to such provisions and
regulations shall be deemed to refer as well to any enacted or issued in lieu
thereof.) The Plan shall be administered in such a manner as to effectuate such
intention and shall be construed and interpreted in accordance with such
provisions and regulations. Each option grant shall be subject to, and no
exercise of any option shall be effective unless and until there shall have
been, compliance, to the extent the Committee shall deem advisable, with the
requirements of all applicable federal, state and other pertinent regulatory
authority.
15. Effective Date of Plan
The Plan shall be effective as of January 22, 1991, only if it shall be
approved within twelve months thereafter by the shareholders of the Corporation
as required by the Internal Revenue Code and the regulations issued thereunder
and no option granted hereunder, if any, after such effective date but prior to
such approval may be exercised unless and until such approval shall have been
granted.
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4 EXHIBIT 99.4
CENTERRE BANCORPORATION
1987 STOCK INCENTIVE PLAN
1. Purpose of the Plan
The Centerre Bancorporation 1987 Stock Incentive Plan is intended as an
incentive to, and to encourage ownership of Centerre Bancorporation's
("Centerre") stock by, certain key Executive Employees (as herein defined) of
Centerre and its Subsidiaries.
2. Definitions
A. "Board" means the Board of Directors of Centerre.
B. "Centerre" means Centerre Bancorporation, a Missouri
corporation.
C. "Committee" means the committee designated in paragraph 5
hereof.
D. "Common Stock" means shares of the authorized but unissued
Common Stock, par value Ten Dollars ($10.00) per share, of Centerre or
such stock which has previously been issued but is held in the
treasury of Centerre.
E. "Disability" means the inability to engage in any substantial
gainful activity by reason of any medically determined physical or
mental impairment which can be expected to result in death or which
has lasted or can be expected to last
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for a continuous period of not less than twelve (12) months. An
individual shall not be considered to have suffered a Disability
unless he furnishes to the Committee proof of the existence thereof in
such form and manner and at such times as required by the Secretary of
the Treasury of the United States.
F. "Incentive Stock Option" ("ISO") means an option which meets
the requirements of Section 422A(b) of the Internal Revenue Code of
1986, as amended from time to time.
G. "Key Executive Employee" means a person who is employed in a
position of administrative or managerial responsibility by Centerre or
a Subsidiary.
H. "Non-Qualified Stock Option" (NQO") means an option which is
not an ISO.
I. "Parent" means any corporation (other than Centerre or a
Subsidiary) in an unbroken chain of corporations ending with Centerre
if, at the time of the granting of an ISO, NQO or Performance Share,
each of the corporations, other than Centerre or a Subsidiary, owns
stock possessing fifty percent (50%) or more of all classes of stock
in one of the other corporations in such chain.
J. "Participant" means a Key Executive Employee who is selected
by the Committee to receive a grant under the Plan.
K. "Performance Cycle" means the period of years designated by
the Committee during which the performance of Centerre is measured for
the purpose of determining the extent to which a grant of Performance
Shares has been earned.
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<PAGE>
L. "Performance Share" means a phantom share equivalent to one
share of Common Stock.
M. "Plan" means the Centerre Bancorporation 1987 Stock Incentive
Plan.
N. "Subsidiary" means any corporation, other than Centerre, in an
unbroken chain of corporations beginning with Centerre, is at the time
of grant of an ISO, NQO or Performance Share hereunder each of the
corporations, other than the last corporation in the unbroken chain,
owns stock possessing fifty percent (50%) or more of the total
combined voting power of all classes of stock in one of the other
corporations in such chain.
O. "Vesting Formula" means the formula established by the
Committee for a Performance Cycle to determine the timing and extent
to which Performance Shares granted for such Performance Cycle are
earned.
3. Stock Subject to the Plan
There has been allocated to the Plan and reserved for issue upon the
exercise of ISO's or NQO's granted under the Plan or for grant of Performance
Shares an aggregate of four hundred eighty-five thousand (485,000) shares of
Common Stock; provided, however, that no more than seventy-five thousand
(75,000) shares of such Common Stock may be granted as Performance Shares. If
any such options shall expire or terminate for any reason without having been
exercised in full, or a Performance Share is forfeited for any reason prior to
the end of the applicable Performance Cycle, the shares subject thereto shall
again be available for the purpose of the Plan. To the extent Performance Shares
are unearned at the end of the applicable
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<PAGE>
Performance Cycle, such shares shall not thereafter be available for new grants
under the Plan.
4. Administration
The Plan shall be administered by the Committee. Subject to the express
provisions of the Plan, the Committee shall have complete authority to:
(a) interpret the Plan;
(b) prescribe, amend and rescind rules and regulations relating to the
Plan;
(c) determine the individuals to whom, and the time or times at which,
ISO's, NQO's and Performance Shares shall be granted;
(d) determine the number of shares to be subject to each ISO, NQO and
Performance Share grant and the terms and provisions of each ISO, NQO and
Performance Share agreement;
(e) determine the duration of each Performance Cycle, which may vary in
length from and overlap with preceding Performance Cycles;
(f) determine the vesting Formula for each Performance Cycle which shall
reflect key financial and strategic objectives. During any Performance Cycle,
the Committee may adjust the vesting formula for such Performance Cycle as it
deems equit-
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able in recognition of unusual or non-recurring events affecting Centerre; and
(g) make all determinations not specifically set forth in (a) through (f)
above which it considers necessary or desirable for the administration of the
Plan.
The determination of the Committee with respect to (a) through (g) above
shall be final.
5. The Committee
The Committee shall be the Human Resources Committee of Centerre or such
other committee as is designated by the Board. It shall consist of three (3) or
more members of the Board who qualify as "disinterested persons," as defined in
Rule 16b-3 under the Securities Exchange Act of 1934, as in effect from time to
time. The Committee shall be appointed by the Board, which may from time to time
appoint members of the Committee in substitution for members previously
appointed and may fill vacancies, however caused, in the Committee. The
Committee may select on of its members as its Chairman and shall hold its
meetings at such time and places as it may determine. A majority of its members
shall constitute a quorum. All determinations of the Committee shall be made by
a majority of its members. Any decision or determination reduced to writing and
signed by a majority of the members shall be fully as effective as if it had
been made by a majority vote at a meeting duly called and held. The Committee
may appoint a Secretary, shall keep minutes of its
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<PAGE>
meetings and shall make such rules and regulations for the conduct of its
business as it shall deem advisable.
6. Eligibility
ISO's, NQO's and Performance Shares may be granted under the Plan only to
Key Executive Employees of Centerre or its Subsidiaries.
7. Stock Options
A. Option Price. The purchase price of the Common Stock under each ISO
issued hereunder shall not be less than one hundred percent (100%) of the fair
market value of the Common Stock at the time of the grant of the ISO. The
purchase price of the Common Stock under each NQO issued hereunder shall not be
less than eighty-five percent (85%) of the fair market value of the Common Stock
at the time of the grant of the NQO. The fair market value shall generally be
considered to be the mean between the high and low selling prices of the Common
Stock as reported on the NASDAQ system at the close of business on the day the
ISO or NQO is granted; provided, however, that the Committee may adopt any other
criterion for the determination of such fair market value as it may in good
faith determine to be appropriate. It is the intent of Centerre that all ISO's
granted under the Plan shall be exercisable at the fair market value of the
Common Stock on the date of grant as determined in good faith and that all NQO's
granted under the Plan shall be exercisable at no less than eighty-five percent
(85%) of the fair market value
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<PAGE>
of the Common Stock on the date of grant as determined in good faith.
B. Payment of Option Price. The purchase price is to be paid in full upon
the exercise of an ISO or NQO, either (1) in cash, or (2) in the discretion of
the Committee, by the tender to Centerre of shares of the Common Stock owned by
the optionee and registered in his name having a fair market value equal to the
cash exercise price of the option being exercised, with the fair market value of
such stock to be determined in such appropriate manner as may be provided for by
the Committee or as may be required in order to comply with, or to conform to
the requirements of, any applicable law or regulation, or (3) in the discretion
of the Committee, by any combination of the payment methods specified in clauses
(1) and (2) hereof; provided, however, that no shares of Common Stock may be
tendered in exercise of an option if such shares were acquired by the optionee
through the exercise of an ISO unless (i) such shares have been held by the
optionee for at least one year, and (ii) at least two years have elapsed since
such ISO was granted. The Proceeds of sale of stock subject to ISO's or NQO's
are to be added to the general funds of Centerre or to the shares of the Common
Stock held in treasury and used for the corporate purposes of Centerre as the
Board shall determine.
C. Limitation on Exercise of ISO's. The maximum aggregate fair market value
(determined as of the time an ISO is
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granted) of Common Stock with respect to which ISO's are first exercisable by an
optioneee in any calendar year (under all plans of Centerre and its Parent and
Subsidiaries) shall not exceed an aggregate fair market value of one hundred
thousand dollars ($100,000.00).
D. Term and Exercise of Options. The term of each ISO or NQO granted
hereunder shall not be more than ten (10) years from the date of granting
thereof. Within such limit, each ISO or NQO will be exercisable at such time or
times, and subject to such restrictions and conditions, as the Committee shall,
in each instance, approve, which need not be uniform for all optionees;
provided, however, that, notwithstanding the term of an option except as
provided in subparagraphs E and F following, no ISO or NQO may be exercised at
any time unless the optionee is then an employee of Centerre or a Subsidiary and
has been so employed continuously since the granting of the ISO or NQO.
E. Termination of Employment. In the event that any optionee shall cease to
be employed either by Centerre or any of its Subsidiaries other than by reason
of death or Disability, such optionee may (unless otherwise provided in his
option agreement) exercise an option, if it has not been canceled, to the extent
he was entitled to exercise it at the time of such termination of employment, at
any time during the period beginning thirty-one (31) days after such termination
and ending ninety (90) days after such termination, but not after ten (10) Years
-8-
<PAGE>
from the date of the granting thereof. Notwithstanding the foregoing, the
Committee, in accordance with paragraph 4 of the Plan, may, within the thirty
(30) day period beginning with the termination of employment of the optionee, in
its sole discretion, with or without cause, cancel the option. ISO's and NQO's
granted under the Plan shall not be affected by any change of employment so long
as the holder continues to be an employee of Centerre or any of its
Subsidiaries.
F. Death or Disability of Holder of Option. In the event of the death of an
optionee while he is employed by Centerre or any of its Subsidiaries, or within
three (3) months after termination of his employment, the option theretofore
granted to him may be exercised by the executor or administrator of his estate
or by the person or persons by whom his rights under such option shall pass by
his will or the laws of descent and distribution at any time within twelve (12)
months after his death, but not after ten (10) years from the date of granting
thereof, or such shorter period as shall be prescribed in such option, and only
if and to the extent he was entitled to exercise the option at the date of his
death. If the optionee terminates employment on account of Disability he may
exercise such option to the extent he was entitled to exercise it at the date of
such termination of employment at anytime within twelve (12) months after the
termination of employment but not after ten (10) years from the date of granting
thereof.
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<PAGE>
8. Performance Shares
A. Payment of Performance Shares. Performance Shares earned by applying the
Vesting Formula for a Performance Cycle shall be paid in cash and/or shares of
Common Stock, in such proportions as the Committee shall determine. Prior to
vesting, Participants may irrevocably defer receipt of payment of earned
Performance Shares under terms established by the Committee.
B. Termination of Employment. In the event that a Participant shall cease
to be an Employee other than by reason of death, Disability or retirement prior
to the end of a Performance Cylce, unless otherwise provided by the Committee
all unearned Performance Shares shall be immediately forfeited.
C. Death, Disability or Retirement of a Participant. In the event of the
death, Disaibility or retirement of a Participant during a Performance Cycle,
unless otherwise provided by the Committee, (1) the Participant shall earn such
number of Performance Shares at the end of Centerre's fiscal Year in which his
death, Disability or retirement occurred as if he had remained an Employee until
such time, prorated based upon the period during such fiscal year which the
Participant was an Employee; and (2) all remaining unearned Performance Shares
shall be forefeited. Payment shall be made to the Participant or to the executor
or administrator of his estate or to the person or persons to whom his rights to
such Performance Shares shall pass by his will or the laws of descent and
distribution, as the case may be.
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<PAGE>
9. Non-Transferability of Options and Performance Shares
Each ISQ, NQO or Performance Share granted under the Plan shall, by its
terms, be non-transferable otherwise than by will or the laws of descent and
distribution and an ISO or NQO may be exercised, during the lifetime of the
holder thereof, only by him.
10. Amendment and Termination of the Plan
The Board may at any time terminate the Plan or make such modifications of
the Plan as it shall deem advisable; provided, however, that the Board may not,
without further approval by the stockholders of Centerre, increase the maximum
number of shares as to which ISO's, NQO's or Performance Shares may be granted
under the Plan (except under the antidilution provisions in subparagraph 12F),
change the class of Employees to whom options may be granted, withdraw the
authority to administer the Plan from a committee whose members meet the
requirements of paragraph 5 hereof, of materially increase the benefits accruing
to Participants under the Plan.
11. Term of Plan
This Plan shall terminate five (5) Years after the date on which it is
approved and adopted by the Board, and no ISO, NQO or Performance Share shall be
granted hereunder after the expiration of such five (5) year period. ISO's,
NQO's and Performance Shares outstanding at the termination of the Plan shall
continue in full force and effect and shall not be affected thereby.
-11-
<PAGE>
12. Miscellaneous
A. Rights as Stockholder. The holder of an ISO, NQO or Performance Share
shall have none of the rights of a stockholder with respect to shares of Common
Stock subject to an ISO, NQO or Performance Share grant until shares are
actually issued to him.
B. Rights to Continued Employment. Nothing in the Plan or in any grant
pursuant to the Plan shall confer on any individual any right to continue in the
employ of Centerre or a Subsidiary or interfere with the right or Centerre or a
Subsidiary to terminate his employment at any time.
C. Leaves of Absence. This ISO, NQO and Performance Share agreements issued
pursuant to the Plan may contain such provisions as the Committee shall
determine with respect to the effect of approved leaves of absence.
D. Agreement to Serve. Each individual granted an ISO, NQO or Performance
Share shall agree that he will remain in the service of Centerre or a Subsidiary
for a Period of at least one (1) Year from the date of the grant, at the
pleasure of the Board and at such compensation as the Board or any committee
thereof shall reasonably determine from time to time.
E. Investment Purpose. Each ISO or NQO under the Plan shall be granted only
on the condition that all purchases of stock thereunder shall be for investment
Purposes, and not with a view to resale or distribution, except that the
Committee may
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<PAGE>
make such provision in ISO's and NQO's granted under the Plan as it deems
necessary or advisable for the release of such condition upon the registration
under the Securities Act of 1933, as amended, of Common Stock subject to the
option, or upon the happening of any other contingency warranting the release of
such condition.
F. Adjustments Upon Changes in Capitalization. Notwithstanding any other
provision in the Plan, the agreements entered into hereunder may contain such
provisions as the Committee shall determine to be appropriate for the adjustment
of the number, price and class of shares subject to each outstanding IS, NQO and
Performance Share in the event of changes in the outstanding Common Stock by
reason of stock dividends, recapitalization, mergers, consolidations, splitups,
combinations or exchanges or shares and the like, and, in the event of any such
change in the outstanding Common Stock, the aggregate number of shares as to
which grants may be made under the Plan shall be appropriately adjusted by the
Committee.
G. Adverse Effect on Optionee of Amendment or Terminations of Plan. No
amendment or termination of the Plan may, without the consent of an employee to
whom any IS, NQO or Performance Share shall have been granted, adversely affect
the rights of such employee under such IS, NQO or Performance Share grant.
-13-
<PAGE>
H. Time of Granting of Option or Performance Share. A grant of an IS, NQO
or a Performance Share under the Plan shall be deemed to be made on the date on
which the Committee, by formal action of its members, duly recorded in the
records thereof, makes a grant of an IS, NQO or Performance Share to an eligible
employee of Centerre or a Subsidiary.
13. Discretionary Payment in Lieu of Purchase
In lieu of exercise of his ISO, NQO or any portion thereof, an optionee may
request that the Committee authorize cancellation of that portion of the option
covered by the request and payment to him of an amount equal to the difference
between the purchase price and the fair market value of the Common Stock on the
date of the request. Such request may, in the sole discretion of the Committee,
be approved or denied in whole or in part. The Committee may, if it shall
approve any such request either in whole or in part, at its sole discretion,
authorize such payment to be made in shares of Common Stock of Centerre valued
at fair market value on the date of the request, or in cash, or partly in such
shares and partly in cash. Denial or approval of any such request shall not
require a subsequent request to be similarly treated by the Committee.
14. Tax-Offset Bonus Rights
The Committee, in its sole discretion, may grant tax-offset bonus rights
("TOBR's") with respect to NQO's. Such TOBR's may be granted to an optionee at
the time of the grant of the related
-14-
<PAGE>
NQO or subsequent thereto, but only with respect to the related NQO. A TOBR
shall entitle the optionee to receive from Centerre or a Subsidiary upon
exercise of the related NQO or six months thereafter, whichever is appropriate
as hereinafter indicated, or upon payment in cancellation of an NQO, an amount
in cash equal to (1) the excess, if any, of the aggregate market price of the
shares subject to a cancelled NQO or acquired by the exercise of an NQO on the
date of exercise (or, if the optionee is subject to the restrictions of Section
16 of the Securities Exchange Act of 1934 and does not make an election under
Section 83(b) of the Internal Revenue Code of 1986, as amended from time to
time, the aggregate market price six months after the date of exercise) over the
aggregate purchase price of the shares cancelled or acquired by such exercise,
multiplied by (2) a percentage (either fixed or by formula) determined solely by
the Committee. The Committee shall determine all other terms and provisions of
any TOBR, including but not limited to the date of grant, the term, the effect
of employment termination and death and the formula to determine the amount
payable upon exercise or cancellation of the related NQO. No TOBR shall be
assignable or transferable except to the extent the Committee permits such TOBR
to the assigned by will or through the laws of descent and distribution.
15. Change of Control
In order to maintain the Participant's rights in the event of a Change of
Control of Centerre, as hereinafter defined, the
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<PAGE>
Board, in its sole discretion, may, subject to the provisions of subparagraph
7C, either at the time a grant is made hereunder or at the time of a Change of
Control (1) provide for the acceleration of any time periods relating to the
exercise or realization of such grants so that such grants may be exercised or
realized in full on or before a date fixed by the Board; or (2) provide for the
purchase of such grants, upon the Participant's request, for an amount of cash
equal to the amount which would have been payable if such grants were currently
exercisable (and the underlying shares of stock immediately sold) or payable; or
(3) make such adjustment to the grants then outstanding as the Board deems
appropriate to reflect such transaction or change; or (4) cause the grants then
outstanding to be assumed, or new grants substituted therefor, by the surviving
corporation in such Change of Control. The Board may, at its discretion, include
such further provisions and limitations in any agreements executed hereunder as
it may deem equitable and in the best interests of Centerre.
"Change of Control" means a change of control of a nature that would be
required to be reported in response to Item 1(a) of the Current Report on Form
8-K, as in effect on the date hereof, pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934, or any comparable successor provision (the
"Exchange Act"). Without limiting the foregoing a Change of Control shall be
deemed to have occurred for the purposes of this Agreement, regardless of the
provisions of the Exchange Act, if (i) any
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<PAGE>
"person", including any "group" of persons, (as such terms are used in Sections
13(d) or 14(d)(2) of the Exchange Act), is or becomes the beneficial owner (as
determined in accordance with Rule 13d-3 promulgated under the Exchange Act),
directly or indirectly of securities of Centerre which, when combined with all
securities of Centerre theretofore directly or indirectly beneficially owned by
such person, represent 20% or more of the combined voting power of Centerre's
then outstanding securities; (ii) at any time persons who are directors of
Centerre at the date hereof, together with persons becoming directors of
Centerre subsequent to the date hereof whose election, or nomination for
election, was approved by a vote of at lease three-quarters of (or if less, all
but one of) the persons then comprising the Board of Directors of Centerre,
("Continuing Directors") cease for any reason to constitute at lease two-thirds
of the directors of Centerre; (iii) Centerre is a party to a merger or
consolidation (other than with a wholly owned subsidiary of Centerre) in which
Centerre is not the surviving parent corporation; (iv) Centerre is the surviving
parent corporation in a merger or consolidation which results in Continuing
Directors Prior to such merger or consolidation ceasing to constitute at least
two-thirds of the directors of Centerre.
16. Effectiveness of the Plan
The Plan shall become effective upon adoption by the Board, subject,
however to its further approval by the stockholders of
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<PAGE>
Centerre given within twelve (12) months after the date the Plan is adopted by
the Board, at a regular meeting of the stockholders, at a special meeting duly
called and held for such Purpose, or by any other method permitted by the law of
Missouri. Grants of ISO's, NQO's and Performance Shares may be made prior to
such stockholders' approval, but all grants made prior to such stockholders'
approval shall be subject to the obtaining of such approval and, if such
approval is not obtained, such grants and the options and Performance Shares
related thereto shall not be effective for any Purpose.
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<PAGE>
EXHIBIT 99.5
BOATMEN'S BANCSHARES, INC.
FIRST INTERSTATE OF IOWA
1991 STOCK INCENTIVE PLAN
NON-QUALIFIED STOCK OPTION AWARD
-- Schedule of Terms --
Non-Qualified Stock Option Award
- --------------------------------
This Schedule of Terms and the attached Award Certificate constitute the
award by Boatmen's Bancshares, Inc. (the "Company") of the right (the "Option")
to purchase, at a future date, a specified number of shares of Company $1 par
value common stock ("Shares") at a specified price, subject to the terms set
forth herein and in the First Interstate of Iowa Stock Incentive Plan ("Plan").
The recipient of the Option (the "Participant"), the number of shares for which
the Option is awarded and the Option price per share are set forth in the
attached Award Certificate issued to the Participant.
Exercise and Payment
- --------------------
Options may be exercised on and after the "Vesting Date" through the
"Termination Date". The Vesting Date, no more than five years after the date of
grant of the Option, and the Termination Date, no more than ten years after the
date of the grant of the Option, are each set forth in the Award Certificate. At
the Vesting Date, the Option may be exercised by the Participant provided he is
still employed by the Company.
The Option to purchase Shares will expire without value with respect to any
Shares that are not purchased on or before the Termination Date. It is the sole
responsibility of the Participant, or his representative, to exercise the Option
in a timely manner. The Company assumes no responsibility for, and will make no
adjustments with respect to, Options that expire without value. The Participant
may exercise his Option by notifying Human Resources, Boatmen's Bancshares,
Inc., One Boatmen's Plaza, 800 Market Street, St. Louis, Missouri 63101
(telephone number (314) 466-6205), in writing, of the number of Shares he wishes
to purchase, the Option price and the date of the Award and by paying the
required Option price. The date of exercise will be the date of the Company's
receipt of the notice (accompanied by the payment of the Option price) to the
Company's Human Resources Department.
The Participant may pay the Option price in cash or by exchange of Shares
of the Company, or by a combination thereof. If payment is made by Shares, the
Participant may deliver a number of Shares with total fair market value on the
date of exercise equal to the Option price (with any fractional shares required
to equal such price to be paid in cash) for the total number of Shares to be
purchased. The Company shall deliver the requisite number of Shares to the
Participant as soon as administratively practicable following the date of
exercise.
Vesting
- -------
A Participant's right to exercise an Option shall vest on the Vesting Date
specified in the Award Certificate. Once all or part of an Option is vested,
that portion which is vested may be exercised anytime thereafter until the
earlier of: (i) the Termination Date specified in the Award Certificate, at
<PAGE>
which time the Option and all associated rights lapse without value; or (ii)
termination of employment with the Company or any of its subsidiaries in which
case the right to exercise may be for a specified period of time, as described
below, following the date of termination. Termination of employment means
termination from the Company and any subsidiary of the Company.
Termination of Employment
- -------------------------
The treatment of outstanding Options upon the Participant's termination of
employment shall be as follows:
Period Following
Termination Vested
Reason For Portion of Option Options May Be
Termination Deemed Vested Exercised
----------- ------------- ---------
Voluntary quit or N/A Unexercised portion of
involuntary termination Option immediately canceled
Death or Permanent Portion actually vested One year (but not beyond
Disability the Termination Date of the
Option)
Retirement at normal Same as for death or Three years (but not beyond
retirement age or early disability the Termination Date of the
retirement with Committee Option)
approval
The Committee may, in its sole discretion, permit a Participant to
exercise, subject to the time periods specified above, that portion of the
Option which is not yet vested or deemed to be vested as of the date of
termination.
A Participant who stops rendering services to the Company as a result of an
authorized leave of absence shall not be considered to have terminated
employment. If a Participant does not resume employment at the conclusion of an
authorized leave of absence, he shall be deemed to have terminated employment as
of the last day of such leave of absence.
Non-assignability
- -----------------
No assignment or transfer of any interest of the Participant in any of the
rights presented by the Option or other participation in the Plan, whether
voluntary or involuntary, by operation of law or otherwise shall be permitted
except by will or by the laws of descent and distribution.
Adjustments
- -----------
In the event of a recapitalization, stock split, reorganization, or other
restructuring of the Company, the terms of the Option may be equitably adjusted
in accordance with the Plan and as deemed appropriate by the Committee, in its
discretion.
2
<PAGE>
Change of Control
- -----------------
Notwithstanding anything herein to the contrary, in the event of a
Participant's voluntary termination of employment for "Good Reason" or
involuntary termination for any reason within two years upon or after a "Change
of Control" of the Company, or the Company's subsidiary which employs
Participant (except for termination after attaining age 65 or due to Cause or
due to death or Permanent Disability of Participant), an Option that is vested
as of the date of the Participant's termination will continue to be exercisable
for a period of one year following termination of employment with the Company
and any subsidiary of the Company. The portion of the Option that may be
exercised shall be the portion actually vested upon termination. In addition,
the Committee may, in its discretion, recommend that the Board of Directors take
certain actions with respect to outstanding Options to assure fair and equitable
treatment of Plan Participants. Such actions may include acceleration of the
Vesting Date, offering to purchase an outstanding Option from the holder for its
equivalent cash value (as determined by the Committee), or providing for other
adjustments or modifications to outstanding Options as the Committee may deem
appropriate.
For purposes of the Plan and this Schedule of Terms:
(a) "Change of Control" means any of the following events:
(i) The acquisition by any person acting directly or indirectly or
through or in concert with one or more persons (other than
Company or any of its subsidiaries) of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the
Securities Exchange Act of 1934 (the "Act")) of 25% or more of
the combined voting power of the then outstanding voting
securities of Company or of a subsidiary which employs the
Participant; or
(ii) The first purchase under a tender offer or exchange offer (other
then an offer by Company or any of its subsidiaries) pursuant to
which shares of Company or of a subsidiary which employs the
Participant have been purchased; or
(iii) During any period of two consecutive years, individuals who at
the beginning of such period constitute the Board of Directors of
Company or of a subsidiary which employs the Participant cease
for any reason (other than an uncontested election) to constitute
at least a majority thereof; or
(iv) Approval by stockholders of Company of a merger, consolidation,
liquidation, or dissolution of Company, or of the sale of all or
substantially all of the assets of Company to any person acting
directly or indirectly or through or in concert with one or more
persons; or
(v) Approval by the Board of Directors of Company of a merger,
consolidation, liquidation or dissolution of a subsidiary which
employs the Participant or of the sale of all or substantially
all of the assets of a subsidiary which employs the Participant
to any person (other than Company or any of its subsidiaries)
acting directly or indirectly or through or in concert with one
or more persons.
3
<PAGE>
For the purpose of this definition, the term "person" shall mean an
individual or a corporation, partnership, trust, association, joint
venture, pool, syndicate, sole proprietorship, unincorporated
organization, or any other form of entity not listed.
(b) "Good Reason" means:
(i) Participant, without his consent, is not elected or re-elected to
or is removed from an office or position at least equal to that
which Participant held in connection with his employment
immediately prior to the Change of Control; or
(ii) A material change in nature or scope of the authorities, powers,
functions, duties, titles or responsibilities attached to
Participant's position of employment without Participant's
express written consent as a result of which change Participant's
position shall be or become of less dignity, responsibility,
importance or scope; or
(iii) A reduction in Participant's base compensation; or
(iv) A failure to continue in effect any thrift, incentive or
compensation plan, or any employee pension or welfare benefit
plan in which Participant is participating at the time of a
Change of Control (or plans providing substantially similar
benefits), the taking of any action by Company or a subsidiary
which employs the Participant or a successor to either which
would adversely affect Participant's participation in or
materially reduce participant's benefits under any such plans or
deprive Participant of any material fringe benefit enjoyed by
Participant at the time of the Change of Control.
(c) "Permanent Disability" means that Participant is determined to be
unable, for an indefinite period of time expected to be of
long-continued duration, to perform his normal duties on a
substantially full time basis by reason of a medically determinable
physical or mental impairment reasonably attributable to sickness or
accident.
(d) "Termination Due to Cause" means involuntary termination of
Participant's employment by Company or subsidiary which employs the
Participant because of Participant's gross misconduct including but
not limited to commission of an act that constitutes a felony under
applicable federal or state law; acts that result or are intended to
result in the improper personal enrichment of the Participant at the
expense of the Company or its shareholders; embezzlement of funds or
misappropriation of other property; or breach of any material term of
any employment contract.
Awards Not to Affect or be Affected by Certain Transactions
Options shall not affect in any way the right or power of the Company or
its shareholders to make or authorize (a) any or all adjustments,
recapitalizations or other changes in the Company's capital structure or its
business; (b) any merger or consolidation of the Company; (c) any issue of
bonds, debentures, preferred or prior preference stock holding any priority or
preferred to, or otherwise affecting in any respect the common stock of the
Company or rights of the holders of such common stock; (d) the dissolution or
liquidation of the Company of the Company; (e) any sale or transfer of all or
any part of its assets or business; or (f) any other corporate act or
proceeding.
4
<PAGE>
Notices
Every notice or other communication relating to the Plan, any Option and
this schedule of Terms shall be in writing, and shall be mailed or delivered to
the party for whom it is intended at such address as may from time to time be
designated by such party. Unless and until some other address has been
designated, all notices by the Participant to the Company shall be mailed to or
delivered to the Company at its office at One Boatman's Plaza, 800 Market
Street, St. Louis, Missouri 63101, Attention: Human Resources. All notices by
the Company to the Participant shall be given to the Participant personally or
be mailed to the Participant at his address as shown on the records of the
company.
Administration
Option granted pursuant to the Plan shall be interpreted and administered
by the nonemployee members of the Compensation Committee of the Company's Board
of Directors (the "Committee"). The Committee shall establish such procedures as
it deems necessary and appropriate to administer the Options in a manner that is
consistent with the terms of the Plan.
Pursuant to the Plan, the Committee may delegate to employees of the
Company, to the extent permitted by various regulatory bodies, its authority and
responsibility to grant, administer and interpret Options.
Taxes/Withholding
The Participants shall be responsible for any income or any other tax
liability attributable to the exercise of any Option. The Company shall take
such steps as are appropriate to assure compliance with applicable federal,
state and local tax withholding requirements by the Company. The Company shall,
to the extent permitted by law, have the right to deduct directly from any
payment or delivery of Shares due the Participant or from the Participant's
regular compensation, all federal state and local taxes of any kind required by
law to be withheld with respect to the exercise of any Option.
Right of Discharge Reserved
Nothing in the Plan or in any Option granted pursuant thereto shall confer
upon any Participant the right to continue in the employment or service of the
Company or any affiliate thereof for any period of time or affect any right that
the Company or any subsidiary or division may have to terminate the employment
or service of such Participant at any time for any reason.
Nature of Payments
All Options made pursuant to the Plan are in consideration of services
performed for he Company or the affiliate employing the Participant. Any gains
realized pursuant to such Options constitute a special incentive payment to the
Participant and shall not be taken into account as compensation for purposes of
any of the employee benefit plans of the Company or any affiliate.
Interpretations
This schedule of Terms and each Award Certificate are subject in all
respects to the terms of the Plan. In the event that nay provision of this
Schedule of Terms or any Award Certificate is inconsistent
5
<PAGE>
with the terms of the Plan, the terms of the Plan shall govern. Any
question of administration or interpretation arising under this Schedule of
Terms or any Award Certificate shall be determined by the Committee or its
delegate. Such determination shall be final and conclusive upon all parties in
interest.
Governing Law
The Plan, this Schedule of Terms, and the Award Certificate shall be
governed by and construed in accordance with the laws of the State of Iowa.
6
<PAGE>
EXHIBIT 99.6
1987 INCENTIVE STOCK OPTION PLAN
FOR
SUNWEST FINANCIAL SERVICES, INC.
ARTICLE 1
PURPOSE OF PLAN
This Incentive Stock Option Plan (the "Plan") is intended as an incentive
and to encourage stock ownership by certain officers and key executive employees
of Sunwest Financial Services, Inc. (the "Corporation") and its subsidiary
corporations so that they may acquire or increase their proprietary interest in
the success of the Corporation and subsidiaries, and to encourage them to remain
in the employ of the Corporation or the subsidiaries. It is intended that this
purpose be achieved through grants under the plan of options to purchase shares
of the Corporation's Capital Stock (as defined below) and related stock
appreciation rights ("SARs") and limited SARs (such options, SARs and Limited
SARs sometimes herein collectively referred to as "Rights"). It is further
intended that options issued pursuant to this Plan shall constitute incentive
stock options within the meaning of Section 422A of the Internal Revenue Code of
1954, as amended.
Participating subsidiaries ("Participating Companies") shall be the
subsidiaries of the company that both qualify as a "subsidiary corporation" as
defined in Section 425(f) of the Internal Revenue Code of 1954, as amended, and
are designated from time to time by the Board of Directors as Participating
Companies. Currently, Sunwest Financial Services, Inc.; Sunwest Bank of
Albuquerque, N.A.; Sunwest Bank of Las Cruces, N.A.; Sunwest Bank of Raton,
N.A.; Sunwest Bank of Rio Arriba, N.A.; Sunwest Bank of Grant County, N.A.;
Sunwest Bank of Hobbs, N.A.; Sunwest Bank of Roswell, N.A.; Sunwest Bank of
Santa Fe; Sunwest Bank of Clovis, N.A.; Sunwest Bank of Gallup; Sunwest Bank of
Farmington; Sunwest Bank of Andoval County, N.A., and SFSI Insurance Company are
Participating Companies under the Plan.
ARTICLE II
ADMINISTRATION
The plan shall be administered by the Incentive Compensation and Employee
Benefits Committee (the "Committee") appointed by the Board of Directors of the
Corporation. The Committee shall consist of not less than three (3) members of
the Corporation's Board of Directors. The Board of Directors may from time to
time remove members from, or add members to, the Committee. Vacancies on the
Committee, howsoever caused, shall be filled by the Board of Directors. The
Committee shall hold meetings at such times and places as it may determine. Acts
of majority of the Committee at meetings at which a quorum is present, or acts
reduced to or approved in writing by a majority of the members of the Committee,
shall be the valid acts of the Committee. The Committee shall from time to time
at its discretion make recommendations to the Board of Directors with respect to
the key executive employees who shall be granted Rights and the amount of Rights
to be granted to each.
No Directors shall be designated as or continue to be a member of the
Committee unless he shall at the time of designation and throughout his service
be a "disinterested person". A "disinterested person" is one who is not at the
time he exercises discretion in administering the Plan eligible and has not at
any time within one year prior thereto been eligible for selection as a person
to whom Rights may be granted pursuant to the Plan or any other plan of the
Corporation or any of its affiliates entitling the participants therein to
acquire stock, stock options or stock appreciation rights of the Corporation or
any of its affiliates, or one who otherwise satisfies the definition of
"disinterested person" under SEC Rule 16b-3 under the Securities Exchange Act of
1934, as amended. The Board of Directors of the Corporation shall not act upon
matters affecting or relating to the Plan unless a majority of the Board and a
majority of those acting in the matter are disinterested persons.
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The interpretation and construction by the Committee of any provisions of
the Plan or of any option granted under it shall be final unless otherwise
determined by the Board of Directors. No member of the Board of Directors or the
Committee shall be liable for any action or determination made in good faith
with respect to the Plan or any option granted under it.
ARTICLE III
ELIGIBILITY
The persons who shall be eligible to receive options shall be such key
executive employees (including officers, whether or not they are Directors) of
the Corporation or Participating Companies as the Board of Directors shall
select from time to time from among those nominated by the Committee. An
optionee may hold more than one option, but only on there terms and subject to
the restrictions hereafter set forth. No person shall be eligible to receive an
option for a larger number of shares than is recommended for him by the
Committee.
ARTICLE IV
STOCK
The stock subject to the options shall be shares of the Corporation's
authorized but unissued or reacquired common stock hereafter sometimes called
"Capital Stock". The aggregate number of shares which may be issued under
options under this plan shall not exceed Two Hundred Thousand (200,000) shares
of Capital Stock. The maximum number of shares which may be optioned in any one
calendar year shall not exceed Fifty Thousand (50,000); provided, however, that
any shares not optioned may be carried over and optioned in the following
calendar year(s) in addition to the shares available in that calendar year. The
number of shares with respect to which options may be granted to any individual
under any and all options under this plan which are issued to him by the
Corporation shall not exceed Twenty Thousand (20,000) shares. The limitations
established by this paragraph shall be subject to adjustment as provided in
Article V(i) of the Plan.
In the event that any outstanding options under the Plan for any reason
expires or is terminated, the shares of Capital Stock allocable to the
unexercised portion of such option may again be subjected to an option under the
Plan.
ARTICLE V
TERMS AND CONDITIONS OF OPTIONS
Stock options granted pursuant to the Plan shall be authorized by the Board
of Directors and shall be evidenced by agreements in such form as the Committee
shall from time to time recommend and the Board of Directors shall from time to
time approve, which agreements shall comply with and be subject to the following
terms and conditions.
(a) Number of Shares
Each option shall state the number of shares to which it pertains.
(b) Option Price
Each option shall state the option price, which shall not be less than
one hundred percent (100%) of the fair market value of the shares of
Capital Stock on the date of the granting of the option. If an individual
owns stock possessing more than ten percent (10%) of the total combined
voting power of all classes of stock of the Corporation or any of its
parent or subsidiary corporations (hereinafter referred to as a "10 percent
employee-stockholder"), the option price must be at least one hundred and
ten percent (110%) of the fair market value of the Capital Stock on the
date of the grant.
During such time as such Capital Stock is not listed upon as
established stock exchange the fair market value per share shall be the
mean between representative dealer "bid" and "ask" prices of the
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Capital Stock in the over-the-counter market on the day the option is
granted, as quoted on the NATIONAL ASSOCIATION OF SECURITIES DEALERS
AUTOMATED QUOTATIONS SERVICE (NASDAQ). If the Capital Stock is listed upon
an established stock exchange or exchanges such fair market value shall be
deemed to be the highest closing price of the Capital Stock on such stock
exchange or exchanges on the date the option is granted or if no sales of
the Capital Stock shall have been made on any stock exchange that day, on
the next preceding day on which there was a sale of such Capital Stock.
Subject to the foregoing the Board of Directors and the Committee in fixing
the option price shall have full authority and discretion and be fully
protected in doing so.
(c) Medium and Time of Payment
The option price shall be payable in United States dollars upon the
exercise of the option and may be paid in cash or by check. Payment with
previously acquired Capital Stock or with a combination of Capital Stock
and cash is also allowable. Capital Stock used to satisfy the exercise
price of an option shall be valued at the fair market value of such stock
determined as of the date of the exercise in the manner specified in
Article V(b) above.
(d) Term and Exercise of Option
No option shall be exercisable either in whole or in part prior to
twenty-four (24) months from the date it is granted. Subject to the right
of cumulation provided in this paragraph each option shall be exercisable
as to not more than one-half of the total number of shares covered thereby
during each twelve (12) month period commencing twenty-four (24) months
from the date of the granting of the option until all shares covered by the
option shall become purchasable. The Committee may provide, however, for
the exercise of options after the initial twenty-four (24) month period,
either as to an increased percentage of shares per year or as to all
remaining shares, if the employee shall, with the approval of the
Corporation, retire. No option shall be exercisable after the expiration of
ten (10) years from the date it is granted, but if it is granted to a 10
percent employee-stockholder, then the maximum exercise period is reduced
to five years. Not less than one hundred (100) shares may be purchased at
any one time unless the number purchased is the total number at the time
purchasable under the option. During the lifetime of the optionee, the
option shall be exercisable only by him and shall not be assignable or
transferable by him and no other person shall acquire any rights therein.
To the extent not exercised, installments shall accumulate and be
exercisable, in whole or in part, in any subsequent period but not later
than ten (10) years from the date the option is granted, or five (5) years
in the case of a 10 percent employee-stockholder.
Notwithstanding the above provisions of this Article V(d), however,
the aggregate fair market value (determined at the time the option is
granted) of the Capital Stock with respect to which incentive stock options
are exercisable for the first time (the year in which the option vests) by
an employee during any calendar year shall not exceed One Hundred Thousand
Dollars ($100,000). This paragraph shall include within its meaning all
incentive stock options issued after December 31, 1986 under all Incentive
Stock Option Plans of the Corporation and, if applicable, its parent and
subsidiary corporations. To the extent such fair market value exceeds One
Hundred Thousand Dollars ($100,000) limitation; provided, however, that in
no event shall any Rights be exercisable more than ten (10) years from the
date of the initial grant, or five (5) years in the case of a 10 percent
employee-shareholder.
(e) Stock Appreciation Rights
(1) In General. A Stock Appreciation Right (SAR) is a right to surrender in
whole or in part a stock option granted under this Plan (the "Related Option")
in exchange for the payment of an amount equal to the number of shares of
Capital Stock covered by the surrendered portion of the Related Option times the
per share difference between the option price and the fair market value of the
Capital Stock subject to the Related Option on the date of exercise of the SAR.
The payment may be made in cash, in shares of Capital Stock or in a combination
of the two. If shares of Capital Stock are used for payment, they will be valued
at the fair market value of the Capital Stock at the date of the exercise of the
SAR, determined as provided in Article V(b).
(2) Discretionary SAR's. The Board of Directors shall have the authority,
upon the recommendation of the Committee, to grant SAR's in connection with a
grant of any stock option under this Plan upon such terms and conditions
consistent with the provisions of this Plan as it may deem appropriate, subject
to the following further limitations.
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(a) Unless the Board of Directors otherwise specifies, an SAR may only
be granted with respect to an option at the time of the grant of the
Related Option.
(b) SAR's may only be exercised to the extent that the underlying
option is exercisable, and only when the market price of the Capital Stock
subject to the Related Option exceeds the exercise price of the Related
Option.
(c) Upon the exercise of an SAR, the Related Option shall be deemed to
have been exercised to the extent of the shares of Capital Stock with
respect to which the SAR is exercised so that such number of shares shall
no longer be available for issuance pursuant to the Plan.
(d) No SAR shall be transferable except by will or by the laws of
descent and distribution. During the life of a holder of a SAR, the SAR
shall be exercisable only by him.
(e) To exercise an SAR, the holder shall (i) give written notice
thereof to the Corporation in form satisfactory to the Committee addressed
to the Secretary of the Corporation specifying the number of shares of
Capital Stock with respect to which he is exercising the SAR, and (ii) if
requested by the Corporation, deliver the agreements evidencing the rights
being exercised to the Secretary of the Corporation who shall endorse
thereon a notation of such exercise and return the agreements to the holder
thereof. The date of exercising of a SAR which is validly exercised shall
be deemed to be the date on which the Corporation shall have received the
instrument referred to in the immediately preceding sentence.
(f) SAR's granted or held by Officers and Directors of the Corporation
shall contain such further limitations as may be necessary to satisfy SEC
Rule 16b-3 under the Securities Exchange Act of 1934, as amended.
(g) Any terms of the SAR not specifically described herein shall be
set forth in the Option Agreement for the Related Option.
(3) Limited SAR's. Every holder of a Related Option who may be restricted
from exercising the option and reselling the Capital Stock acquired thereunder
within six (6) months due to his being an "officer" or "director" of the
Corporation within the meaning of Section 16(b) of the Securities Exchange Act
of 1934 shall be deemed to have been granted at the date of the grant of the
Related Option a limited SAR upon the following terms and conditions:
a. Such limited SAR shall be subject to all of the limitations
specified in the Article V.(e)2.a through Article V.(e)2.f. above.
b. The limited SAR may be exercised only during the period beginning
on the first day following the date of expiration of any tender offer or
exchange offer for shares of Capital Stock (other than one made by the
Corporation), provided that shares of Capital Stock are acquired pursuant
to such offer (the "Offer"), and ending on the thirtieth (30th) day
following such date.
c. The limited SAR may only be exercised for cash.
d. The amount of the payment to be made upon the exercise of the
limited SAR shall be an amount in cash equal to the product obtained by
multiplying (i) the excess of (A) the "offer price per share of Capital
Stock" (as hereinafter defined) over (B) the Option Price per share of
Capital Stock under the Related Option by (ii) the number of shares of
Capital Stock with respect to which such limited SAR is being exercised.
The phrase "Offer Price per share of Capital Stock" shall mean with respect
to the exercise of any limited SAR, the highest price per share of Capital
Stock paid in any Offer which Offer is in effect at any time during the
period beginning on the sixtieth (60th) day prior to the date on which such
limited SAR is exercised. Any securities or property which are a part or
all of the consideration paid for shares of Capital Stock in the Offer
shall be valued in determining the Offer Price per share of Capital Stock
at the higher of (A) the valuation placed on such securities or property by
the Company, person or other entity making such Offer, or (8) the valuation
placed on such securities or property by the Committee.
(f) Prior Outstanding Option
There is no requirement under the terms of the Plan that options be
exercised in sequential order where more then one option exists.
(g) Termination of Employment Except Death
In the event that an optionee shall cease to be employed by the
Corporation or Subsidiaries for any reason other than his death and shall
be no longer in the employ of any of them, subject to the condition that no
option shall be exercised after the expiration of ten (10) years from the
date it is granted, and five (5) years in the case of a 10 percent
employee-shareholder, such optionee shall have the right to exercise the
Rights at any time within three (3) months after such termination of
employment or twelve (12) months if
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disabled, to the extent that his right to exercise such Rights had accrued
pursuant to Article V(d) and (e) of the Plan and had not previously been
exercised at the date of such termination. Whether authorized leave of
absence or absence for military or governmental service shall constitute
termination of employment, for the purpose of the Plan, shall be determined
by the Committee, which determination, unless overruled by the Board of
Directors, shall be final and conclusive.
(h) Death of Optionee and Transfer of Option
If the Optionee shall die while in the employ of the Corporation or a
subsidiary or within a period of three (3) months after the termination of
his employment with the Corporation and all subsidiaries and shall not have
fully exercised the option, the Rights may be exercised subject to the
condition that no option shall be exercisable after the expiration of ten
(10) years from the date it is granted and five (5) years in the case of a
10 percent employee-shareholder, to the extent that the optionee's right to
exercise such Rights had accrued pursuant to Article V(d) and (e) of the
Plan at the time of his death and had not previously been exercised, at any
time within one year after the optionee's death, by the executors or
administrators of the optionee or by an person or persons who shall have
acquired the option directly from the optionee by bequest or inheritance.
No option or right shall be transferable by the optionee otherwise than by
will or the laws of descent and distribution.
(i) Recapitalization
If the Corporation shall at any time increase or decrease the number
of its outstanding shares of Capital Stock or change in any way the rights
and privileges of such shares by means of the payment of a stock dividend,
or the making of any other distribution upon such shares payable in Capital
Stock, or through a Capital Stock split or subdivision of shares, or a
consolidation or combination of shares, or through a reclassification or
recapitalization involving the Capital Stock, then the numbers, rights and
privileges of the following shall be increased, decreased or changed in
like manner as if they had been issued and outstanding, fully paid and
nonasessable at the time of such occurrence:
(a) The shares of Capital Stock on which Rights may be granted under
the Plan:
(b) The maximum number of shares of Capital Stock with respect to
which an employee may receive a Right hereunder; and
(c) The shares of Capital Stock then included in each outstanding
Right granted hereunder.
Subject to any required action by the stockholders, if the Corporation
shall be the surviving corporation in any merger or consolidation, each
outstanding Right shall pertain to and apply to the securities to which a
holder of the number of shares of Capital Stock subject to the Right would
have been entitled.
A dissolution or liquidation of the Corporation or a merger or
consolidation in which the Corporation is not the surviving corporation,
shall cause each outstanding Right to terminate, provided that each
optionee shall, in such event, have the right immediately prior to such
dissolution or liquidation, or merger or consolidation in which the
Corporation is not the surviving corporation, to exercise his Rights in
whole or in part without regard to the installment provisions contained in
Article V(d) of the Plan. Each holder of Rights shall have the right (a)
during the term of a "Tender Offer", as to an option or SAR other than a
limited SAR, or (b) during the thirty (30) days following a "Tender Offer",
as to a limited SAR, to exercise such rights in whole or in part without
regard to the installment provisions contained in Article V(d) of the Plan.
For the purposes of this paragraph, a "Tender Offer" means a tender offer
or exchange offer for shares of Capital Stock made by a person other than
the Corporation.
To the extent that the foregoing adjustments relate to stock or
securities or the Corporation, such adjustments shall be made by the
Committee, whose determination in that respect shall be final, binding and
conclusive, provided that each Right granted pursuant to the Plan shall not
be adjusted in a manner which causes the option to fail to continue to
qualify as an incentive stock option within the meaning of Section 422A of
the 1954 Internal Revenue Code.
Except as hereinbefore expressly provided in this Article V(i), the
optionee shall have no rights by reason of any subdivision or consolidation
of shares of stock of any class or the payment of any stock dividend or any
other increase or decrease in the number of shares of stock of any class or
by any reason of any dissolution, liquidation, merger or consolidation or
spin-off of assets or stock of another corporation, and any issue by the
Corporation of shares of stock of any class, or securities convertible into
shares of stock of any class, shall not affect, and no adjustment by reason
thereof shall be made with respect to the number or price of shares of
Capital Stock subject to the Right.
The grant of any Right pursuant to the Plan shall not affect in any
way the right or power of the
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Corporation to make adjustments, reclassifications, reorganizations or
changes of its capital or business structure or to merge or to consolidate
or to dissolve, liquidate or sell or transfer all or any part of its
business or assets.
(j) Rights as a Stockholder
An optionee or a transferee of an option shall have no rights as an
owner of Capital stock of the Corporation ("stockholder") with respect to
any shares covered by his option until the date of the issuance of a stock
certificate to him for such shares. No adjustment shall be made for
dividends (ordinary or extraordinary, whether in cash, securities or other
property) or distributions or other rights for which the record date is
prior to the date such stock certificate is issued, except as provided in
Article V(i) hereof.
(k) Modification, Extension and Renewal of Rights
Subject to the terms and conditions and within the limitations of the
Plan, the Board of Directors may modify, extend or renew outstanding Rights
granted under the plan, or accept the surrender of such outstanding Rights
(to the extent not theretofore exercised) and authorize the granting of new
Rights in substitution therefor )to the extent not theretofore exercised).
The Board of Directors shall not, however, modify any outstanding Rights as
so to specify a lower price or accept the surrender of outstanding options
or rights and authorize the granting of new Rights in substitution therefor
specifying a lower price. Notwithstanding the foregoing, however, no
modification of any Rights shall, without the consent of the optionee,
alter or impair any rights or obligations under any Rights theretofore
granted under the Plan.
(l) Investment Purpose
Each option under the Plan shall be granted on the condition that the
purchases of Capital Stock thereunder shall be for investment purposes, and
not with a view to resale or distribution except that in the event the
Capital Stock subject to such option is registered under the Securities Act
of 1933, as amended, or in the event a resale of such Capital Stock without
such registration would otherwise be permissible, such condition shall be
inoperative if in the opinion of counsel for the Corporation such condition
is not required under the Securities Act of 1933 or any other applicable
law, regulation, or rule of any governmental agency.
(m) Other Provisions
The option agreements authorized under the Plan shall contain such
other provisions, including, without limitation, restrictions upon the
exercise of the Rights, as the Committee and Board of Directors of the
Corporation shall deem advisable. Any such option agreement shall contain
such limitations and restrictions upon the exercise of the option as shall
be necessary in order that such option will be an "incentive stock option"
as defined in Section 422A of the Internal Revenue Code of 1954 or to
conform to any change in the law.
ARTICLE VI
TERM OF PLAN
Rights may be granted pursuant to the Plan from time to time within a
period of ten (10) years from the date the Plan is adopted, or the date the Plan
is approved by the Stockholders, whichever is earlier.
ARTICLE VII
INDEMNIFICATION OF COMMITTEE
In addition to such other rights of indemnification as they may have as
Directors or members of the Committee, the members of the Committee shall be
indemnified by the Corporation against the reasonable expenses, including
attorneys' fees actually and necessarily incurred in connection with the defense
of any action, suit or proceeding, or in connection with any appeal therein, to
which they or any of them may be a party by reason of any action taken or
failure to act under or in connection with the Plan or of any option granted
thereunder, and against all amounts paid by them in settlement thereof (provided
such settlement is approved by independent legal counsel selected by the
Corporation) or paid by them in satisfaction of a judgment in any such action,
suit or proceeding, except in relation to matters as to which it shall be
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adjudged in such action, suit or proceeding that such Committee member is liable
for negligence or misconduct in the performance of his duties; provided that
within sixty (60) days after institution of any such action, suit or
proceedings, the Committee member shall in writing offer the Corporation the
opportunity, as its own expense, to handle and defend the same.
ARTICLE VIII
AMENDMENT OF THE PLAN
The Board of Directors of the Corporation may, insofar as permitted by law,
suspend or discontinue the Plan or revise or amend it in any respect whatsoever
except that no amendment or discontinuance of the Plan by the Board of Directors
or stockholders shall adversely affect, without the consent of the holder
thereof, any outstanding Rights theretofore granted; and except that without 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 duly held,
no revision or amendment shall change the number of shares subject to the Plan,
change the designation of the class of employees eligible to receive options,
decrease the price at which options may be granted, remove the administration of
the Plan from the Committee, or render any member of the Committee eligible to
receive an option under the Plan while serving thereon. In addition, any
amendment to the Plan which would materially increase the benefits accruing to
participants, or which could materially increase the number of securities which
may be issued under the Plan, or which could materially modify the requirements
as to eligibility for participation in the Plan, must also be approved by the
holders of a majority of the shares of the Corporation's Common Stock.
Furthermore, the Plan may not, without the approval of a majority of the
stockholders, be amended in any manner that will cause options issued under it
to fail to meet the requirements of incentive stock options as defined in
Section 422A of the Internal Revenue Code of 1954, as amended.
ARTICLE IX
APPLICATION OF FUNDS
The proceeds received by the Corporation from the sale of Capital Stock
pursuant to options will be used for general corporate purposes.
ARTICLE X
NO OBLIGATION TO EXERCISE OPTION
The granting of an option shall impose no obligation upon the optionee to
exercise such option.
ARTICLE XI
APPROVAL OF STOCKHOLDERS
The Plan shall become effective when it has received the approval of a
majority of the shares of the Corporation's Common Stock present or represented
and entitled to vote at a duly called stockholders' meeting, which approval must
occur within the period beginning twelve (12) months before and ending twelve
(12) months after the date the Plan is adopted by the Board of Directors.
Date Plan adopted by Board of Directors: January 28, 1987
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EXHIBIT 99.7
FIRST AMARILLO BANCORPORATION, INC.
INCENTIVE STOCK OPTION PLAN (NUMBER 1)
********************************************
1. PURPOSE.
The purpose of this Incentive Stock Option Plan (the "Plan") is to provide
a means whereby certain officers and employees of FIRST AMARILLO BANCORPORATION,
INC. (the "Holding Company") and of its subsidiaries, may be given an
opportunity to purchase common stock of the Holding Company under options which,
with respect to individual optionees, will qualify as "incentive stock options"
under the Internal Revenue Code. The Plan is intended to advance the interest of
the Holding Company by offering an opportunity to key employees ("Eligible
Employee") of the Holding Company and of its subsidiaries to purchase an
interest in the Holding Company's common stock.
2. STOCK SUBJECT TO OPTION.
Subject to adjustment as provided in Section 4(i) hereof, options may be
granted by the Holding Company from time to time to purchase an aggregate of
200,000 shares of the Holding Company's authorized but unissued common stock,
provided that the total number of shares of common stock on which options may be
granted under the Plan to any one Eligible Employee participating under the Plan
shall not exceed in the aggregate a number shares equal to ten percent (10%) of
the 200,000 shares of common stock (subject to adjustment as provided in Section
4[i]) on which options may be granted under this Plan.
Shares of common stock applicable to options which have terminated may
again be optioned under the Plan if at such time options may still be granted
under the Plan.
3. ELIGIBLE EMPLOYEES.
Persons eligble to be granted options under the Plan shall be limited to
such salaried key employees of the Holding Company or its subsidiaries
(including officers and directors who are also employees) who have substantial
responsibility in the direction and management of the Holding Company or its
subsidiaries, as determined by the Committee which administers this Plan.
No individual shall be granted an option under the Plan after the end of
the calendar month in which he attained the age of sixty-three (63) years.
4. TERMS AND CONDITIONS OF OPTIONS.
Options granted pursuant to the Plan shall be evidenced by agreements in
such form, not inconsistent with the Plan, as the Committee shall from time to
time approve, provided that the substance of the following terms and conditions
be included therein, subject thereafter to modification or adjustment as
provided in Section 4(i):
a. Option Price. The option price per share shall not be less
than one hundred percent (100%) of the fair market value of the common stock on
the date the option is granted. Fair
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market value shall be determined by the Committee, taking into consideration
recent representative sales, book value, offiers to buy and sell, and any other
factors which the Committee deems relevant in determining the fair market value
of the stock.
b. Term of Option. Each option granted under the Plan
shall expire not more than five (5) years from the date the option is granted.
c. Exercise of Option. No option may be exercised during the
first year (twelve months) following the date on which it is granted, but may be
exercised in each of the following years up to the fifth year with respect to
twenty percent (20%) of the aggregate number of shares to which it pertains (on
a cumulative basis) and in the fifth year with respect to the balance of such
shares. Subject to the foregoing sentence, any option granted hereunder may be
exercised in whole or in part at any time, or from time to time thereafter,
until the expiration of the option. The Committee may grant options to eligible
employees who have attained the age of sixty-one (61) years, but have not
attained the age of sixty-three (63) years, for a period of less than five (5)
years, exercisable in each of the years after the first year with respect to
ratably larger percentages of the aggregate number of shares to which they
pertain.
d. Manner of Exercise. Shares of common stock purchased under
options shall, at the time of purchase, be paid for in full. To the extent that
the right to purchase shares has accrued thereunder, otpions may be exercised
from time to time by written notice to the Holding Company stating the number of
shares with respect to which the option is being exercised, and the time of
delivery thereof, which shall be at least fifteen (15) days after the giving of
such notice unless an earlier date shall have been mutually agreed upon. At such
time the Holding Company shall, without transfer or issue tax to the Eligible
Employee (or other person entitled to exercise the option), deliver to the
Eligible Employee (or other person entitled to exercise the option) at the
principal office of the Holding Company, or such other place as shall be
mutually acceptable, a certificate or certificates for such shares against
payment of the option price in full for the number of shares to be delivered by
certified or official bank check; provided, however, that the time of such
delivery may be postponed by the Holding Company for such period as may be
required for it with reasonable diligence to comply with any requirements of
law. If the Eligible Employee (or other person entitled to exercise the option)
fails to accept delivery of and pay for all or any part of the number of shares
specified in such notice upon tender of delivery thereof, his right to exercise
the option with respect to such undelivered shares may be terminated.
e. No Option in Certain Cases. In no event shall an option be
granted to any person who, at the time the option is granted, beneficially,
directly, or indirectly owns stock possessing more than ten percent (10%) of the
total combined voting power or value of all classes of stock of the Holding
Company or of its parent or subsidiary corporations.
f. Nonassignability of Option Right. No option shall be
assignable or transferable otherwise than by will or the laws of descent and
distribution. During the life of an Eligible Employee, the option shall be
exercisable only by him.
g. Termination of Employment. In the event that an Eligible
Employee's employment by the Holding Company or its subsidiaries shall
terminate, his option shall terminate immediately, except as provided in this
Section 4(g) and in Section
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4(h). If any termination of employment is due to retirement with the consent of
the Holding Company or its subsidiaries, as the case may be, the Eligible
Employee shall have the right, subject to the provisions of Section 4(b) hereof,
to exercise his option, at any time within the three (3) months after such
retirement, to the extent that he was entitled to exercise the same immediately
prior to his retirement; provided, further, that if the Eligible Employee shall
die while in the employment of the Holding Company or its subsidiaries, or
within three (3) months after retirement, with the consent of the Holding
Company or its subsidiaries, his estate, personal representative, or beneficiary
shall have the right, subject to the provisions of Section 4(b) hereof , to
exercise his option at any time within twelve (12) months from the date of his
death, to the extent that he was entitled to exercise the same immediately prior
to his death. Whether any other termination of employment is to be considered a
retirement with the consent of the Holding Company or its subsidiaries and
whether an authorized leave of absence or absence on military or government
service or for any other reasons shall constitute a termination of employment
for the purposes of the Plan shall be determined by the Committee, which
determination shall be final and conclusive, unless otherwise determined by the
Board of Directors, and in such event such determination by the Board of
Directors shall be final and conclusive.
h. Termination of Employment due to Disability. If any
termination of an Eligible Employee's employment by the Holding Company or its
subsidiaries is due to permanent and total disability, the Eligible Employee
shall have the right, subject to the provisions of Section 4(b) hereof and with
the consent of the Committee, to exercise his option, at any time within the
twelve (12) months after such termination, to the extent that he was entitled to
exercise the same immediately prior to such termination; provided, further, if
the Eligible Employee shall die within twelve (12) months after termination of
employment due to a permanent and total disability, then, with the consent of
the committee, his estate, personal representative, or beneficiary shall have
the right, subject to the provisions of Section 4(b), hereof, to exercise his
option at any time within twelve (12) months from the date of his death, to the
extent that he was entitled to exercise the same immediately prior to his death.
For purposes of this section, an individual is permanently and totally disabled
if he is unable to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for a continuous
period of not less than twelve (12) months. An Eligible Employee shall furnish
proof of the existence of a permanent and total disability in such form and
manner as the Committee shall require. The Committee's determination regarding
the existence of a permanent and total disability shall be final and conclusive,
unless otherwise determined by the Board of Directors, and in such event such
determination of the Board of Directors shall be final and conclusive.
i. Adjustments and Changes in Stock. The aggregate number of
shares of common stock on which options may be granted to persons participating
under the Plan, the aggregate number of shares of common stock on which options
may be granted to any one such person, the number of shares thereof covered by
each outstanding option, and the price per share thereof, in each such option,
shall be proportionately adjusted for any increase or decrease in the number of
issued shares of common stock of the Holding Company resulting from the
subdivision or consolidation of shares or other capital adjustment, or the
payment of a stock dividend after July 1983, or other increase or decrease in
such shares, effected without receipt of consideration by the Holding Company;
provided, however, that no such adjustment shall be made
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unless the aggregate effect of all such increases and decreases accruing in
any one-year period after the effective date of the Plan will increase or
decrease the number of issued shares of common stock of the Holding Company
by five Percent (5%) or more; and provided, further, that any fractional
shares resulting from any such adjustment shall eliminated. Subject to any
required action by the Shareholders, if the Holding Company shall be the
surviving or resulting corporation in any merger or consolidation, any
option granted hereunder shall pertain to and apply to the securities to
which a holder of the number of shares of common stock subject to the
option would have been entitled; but a dissolution or liquidation of the
Holding Company or a merger or consolidation in which the Holding Company
is not the surviving or resulting corporation, shall cause every option
outstanding hereunder to terminate as of the effective date of the
dissolution, liquidation, merger or consolidation , except that the
surviving or resulting corporation may , in its absolute and uncontrolled
discretion, tender an option or options to purchase its shares on its terms
and conditions, both as to the number of shares and otherwise.
j. Rights as a Shareholder. The Eligible Employee shall have
no rights as a shareholder with respect to any shares of common stock of the
Holding Company until the date of issuance of a stock certificate to him for
such shares. No adjustment shall be made for dividends or other rights for which
the record date is prior to the date of such issuance.
k. Successive Options. Any option granted hereunder to an
Eligible Employee shall not be exercisable while there is outstanding any stock
option theretofore granted to such Eligible Employee to purchase stock in the
Holding Company or in a corporation which (at the time of the granting of such
option hereunder) is a parent or subsidiary corporation of the Holding company,
or in a predecessor corporation of any such corporations. For purposes of this
section, any option shall be treated as outstanding until such option is
exercised in full or expires by reason of lapse of time.
l. Acceleration of Time When Option May be Exercised. Anything
herein to the contrary notwithstanding, the Committee may authorize the earlier
exercise of an option after the initial one-year period, either as to an
increased percentage of shares per year or as to all remaining shares if the
Eligible Employee also holds a later option which could be exercised in whole or
in part except for the existence for the existence of the prior unexercised
option. If the Committee authorizes the early exercise of any option granted
under this Plan or under any similar plan previously adopted by the Holding
Company, such accelerated option and that portion of any later option which
becomes exercisable upon the exercise of the accelerated option shall be deemed,
for the purposes of subparagraphs "g" and "h" above, to have been exercisable by
the Eligible Employee immediately prior to his retirement, death, or disability.
m. Limitation on Options. The aggregate fair market value, as
of the date the option is granted, of the stock for which any Eligible Employee
may be granted Incentive Stock Options in any calendar year (under all plans of
the Holding Company and its parent and subsidiary corporations) shall not exceed
$100,000 plus any "unused limit carryover" to such year. The "unused limit
carryover" shall be calculated in accordance with Section 422A(c)(4) of the
Internal Revenue Code of 1954.
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5. ADMINISTRATION.
The plan shall be administered by a Committee appointed by the Board of
Directors of the Holding Company to consist of members of the Board of Directors
who are not officers of the Holding Company. No member of the committee shall be
entitled to participate in the Plan. The Committee shall make recommendations
periodically to the Board of Directors with respect to the persons who shall
participate in the Plan and the extent of their participation.
The interpretation and construction by the Committee of any provisions of
the Plan or any option granted under it and any determination by the Committee
pursuant to any provision of the Plan or any such option shall be final, and
conclusive, except as otherwise provided in this Plan. No member of the Board of
Directors or the Committee shall be liable for any action or determination made
in good faith, and the members shall be entitled to indemnification and
reimbursement in the manner provided in the Holding Company's Articles of
Incorporation.
6. EFFECTIVE DATE AND TERMINATION OF PLAN.
a. The plan shall become effective upon approval by the Board of Directors
of the Holding Company.
b. This plan shall be submitted at the next annual meeting of shareholders
of the Holding Company to be held in March, 1984, for a vote by the shareholders
of the Holding Company. Prior to that annual meeting the Committee may grant
options under this Plan to Eligible Employees. These options will be conditioned
upon the adoption of the Plan and related matters by the holders of two-thirds
(2/3) of the outstanding shares of common stock of the Holding Company at said
annual meeting or any adjournment thereof. If the Plan is not approved by the
holders of two-thirds (2/3) of the Holding Company, all options previously
granted under this Plan shall be null and void.
c. The Plan shall terminate ten (10) years after the date on which it is
adopted by the Board of Directors; however, the Board of Directors may terminate
the plan at any time prior to ten (10) years form the date on which it is
adopted. No stock options shall in any event be granted pursuant to the Plan
after July 7, 1993, Termination of the Plan shall not alter or impair any of the
rights or obligations under any option theretofore granted under the Plan
without the consent of the Eligible Employee to whom the option was granted.
7. AMENDMENTS.
The Board of Directors may from time to time alter, amend, suspend, or
discontinue the Plan or alter or amend any and all option agreements granted
thereunder; provided, however, that no such action of the Board of Directors
may, without the approval of the shareholders, alter the provisions of the Plan
so as to (a) increase the maximum number of shares as to which options may be
granted under the Plan either to all persons participating in the Plan or to any
such person; (b) decrease the minimum option price; (c) extend the term of the
Plan or the maximum term of options granted thereunder beyond ten (10) years;
(d) decrease, directly or indirectly (by cancellation and substitution of
options or otherwise) the option price applicable to any option granted under
the plan; provided, however, that the provisions of this clause (d) shall not
prevent the granting, to any person holding an
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FIRST AMARILLO BANCORPORATION, INC.
INCENTIVE STOCK OPTION PLAN (NUMBER 1)
AMENDMENT 2
*************************
1. PURPOSE OF AMENDMENT
The purpose of this Amendment No. 2 to the Incentive Stock Option Plan
(Number 1) (the "Plan") is to change paragraph 4.2 (entitled "Term of Option")
to extend the term of any option granted under the Plan from a maximum of five
years to a maximum of ten years expiration from the date of the grant of the
option.
2. AMENDMENT
Incentive Stock Option Plan (Number 1) is hereby amended by changing the
expiration date or term of each option from five years to ten years.
Section 4.2 is amended so that henceforth it shall read as follows:
"4.2 Term of Option. Each option granted under the Plan shall expire not
more than ten (10) years from the date the option is granted."
ADOPTED by the Board of Directors this 23rd day of July, 1987.
-------------------------------------
Secretary
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AMENDMENT NO. ONE
TO THE
FIRST AMARILLO BANCORPORATION, INC.
INCENTIVE STOCK OPTION PLAN (NUMBER 1)
This Amendment to the First Amarillo Bancorporation, Inc. Incentive Stock
Option Plan (Number 1) is hereby made effective as of the 24th day of May, 1984,
as follows:
I.
The name of the Plan is hereby changed to First Amarillo Bancorporation,
Inc., and Subsidiaries Incentive Stock Option Plan (Number 1).
II.
Section 5 of the Plan is hereby deleted in its entirety and a new Section 5
is entered in its place:
5. ADMINISTRATION.
a. The general administration of the Plan shall be vested in a
Committee of three (3) or more members. The members of such Committee shall
be designated and appointed from time to time by, and shall serve at the
pleasure of, the Board of Directors of the Holding Company. The members of
the Committee may be, but need not be, directors, officers, or employees of
the Holding Company; provided, however, no member of the Committee may be a
Participant under the Plan. Any member of the Committee may resign by
delivering a written resignation to the Board of Directors of the Holding
Company and to the other members of the Committee, and any member of the
Committee may be removed by a majority vote of the Board of Directors of
the Holding Company, with or without cause, by delivering written
notification of such removal to the member and to the other members of the
Committee. The Board of Directors of the Holding Company shall appoint new
members to the Committee as necessary to fill any vacancy which arises by
reason of the death, resignation or removal of any Committee member.
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b. The Committee shall designate one of its members as Chairman, and
shall appoint a Secretary, who need not be a member of the Committee. The
Secretary shall keep written minutes of the Committee's proceedings and all
data, records, and documents relating to the Committee's administration of
the Plan. The Committee may appoint from its members such subcommittees
with such powers as the Committee shall determine and may authorize one or
more members of the Committee, or any agent or agents, to execute or
deliver any instrument, make any payment, or perform ministerial acts of
its behalf.
c. A majority of the members of the Committee shall constitute a
quorum for the transaction of business and shall have full power to act
hereunder. Action by the Committee shall be official if approved by a vote
of a majority of the members present at any meeting. The Committee may,
without a meeting, authorize or approve any action by written instrument
signed by a majority of the members. Any written memorandum signed by the
Chairman, by any member of the Committee, by the Secretary or by any other
person, if such Chairman, member, Secretary or other person is authorized
by the Committee to act in respect of the subject matter of the memorandum,
shall have the same force and effect as a formal resolution adopted by the
Committee at a meeting.
d. The members of the Committee shall serve without bond, and without
compensation for the their service as such, unless the Holding Company and
the members of the Committee agree otherwise. All reasonable and necessary
costs, expenses and liabilities incurred by the Committee in the
supervision and administration of the Plan shall be paid by the Holding
Company.
e. From time to time, the Committee shall make recommendations to the
Board of Directors of the Holding Company with respect to the persons who
shall participate in the Plan and the extent of their participation.
Additionally, subject to the Plan, the Committee shall from time to time
establish rules, forms, and procedures for the administration of the Plan.
Except as herein otherwise expressly provided, the Committee shall have the
exclusive power to administer the Plan, to interpret the Plan, and to
decide any and all matters arising under the Plan and in connection with
the administration of the Plan. The Committee shall have the exclusive
right to determine (a) disability in respect to an Eligible Employee, and
(b) the degree thereof, either or both determinations to be made on the
basis of such medical and/or other evidence as the Committee, in its sole
discretion, may require. Such interpretations, decisions, actions, and
records of the Committee shall be conclusive and binding upon any
subsidiary of the Holding Company and on persons
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having or claiming to have any rights or interests under the Plan. The
Committee may employ such agents, counsel, actuaries and accountants as may
reasonably be required for the purpose of administering the Plan.
f. No member of the Committee may vote upon any matter relating solely
to himself, or vote on any matter in which his individual rights or claims
to any benefit direct or indirect under the Plan are specifically involved.
If, in any matter in which a member of the Committee is so disqualified
from voting, the remaining members of the Committee then present cannot
reach a final conclusion based on a majority vote, then the Board of
Directors of the Holding Company shall appoint a temporary substitute
member to exercise all of the powers of a full-time member concerning the
matter in which the disqualified member is not qualified to vote.
g. The Committee shall submit to the Board of Directors of the Holding
Company, within ninety (90) days after the end of each year, a report
showing the number of options granted under the Plan in such year, the
number of options exercised in such year and the number of options which
expired or lapsed during such year. The Committee shall make available to
any Eligible Employee for examination during regular business hours such
records as pertain exclusively to the examining Eligible Employee.
h. It is the obligation of the employers of the Eligible Employees to
comply with all applicable federal laws in connection with furnishing
information to Eligible Employees. It is the obligation of the Employers of
the Eligible Employees to comply with all applicable federal laws in
connection with the filing of forms with the Internal Revenue Service and
the Department of Labor.
i. Each member of the Committee shall use ordinary care and diligence
in the performance of his duties and shall not be liable for any action or
inaction unless such action or inaction results from his own individual
gross negligence, fraud, or willful misconduct. No member shall be
personally liable upon or with respect to any agreement, act, transaction,
or omission executed, committed, or suffered to be committed by himself as
a member of the Committee or by any other member, agent, representative, or
employee of the Committee; moreover, the Committee and each member and
agent thereof shall be fully protected in relying upon the advice of any
attorney employed by the Holding Company or any subsidiary of the Holding
Company or by the Committee insofar as legal matters are concerned and any
accountant employed by the
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Holding Company or any subsidiary of the Holding Company or by the
Committee insofar as accounting matters are concerned. The Holding Company
shall indemnify each member of the Committee against any and all claims,
losses, damages, expenses, including counsel fees approved by the
Committee, and liability, including any amounts paid in settlement with the
Committee's approval, arising from any action or failure to act, except
when the same is judicially determined to be due to the gross negligence,
fraud, or willful misconduct of such member. Any fiduciary (including, but
not limited to, the Holding Company, the employers of an Eligible Employee,
and the Committee may rely upon any direction, information, or action of
another fiduciary in the exercise of the latter's respective powers,
duties, responsibilities, and obligations hereunder as being proper under
this Plan and shall not be required to inquire into the propriety of any
such direction , information, or action. No fiduciary shall be liable for
the actions of any other fiduciary unless such fiduciary knowingly
participates, approves, acquiesces, or conceals a breach of obligations or
responsibilities committed by the other.
j. To enable the Committee to perform its functions, the Employer
shall supply full and timely information to the Committee on all matters
relating to Eligible Employees, their retirement, death, or other cause of
termination of employment, and such other pertinent facts as the Committee
may request.
k. Any notice or information which, according to the terms of the Plan
or the rules of the Committee, must be filed with the Committee, shall be
deemed so filed if addressed and either delivered in person or mailed,
postage fully prepaid, to the Committee. Any such notice or information
shall be addressed as follows:
Compensation Committee
c/o Personnel Department
The First National Bank of Amarillo
P.O. Box 1331
Amarillo, Texas 79180
Whenever a provision herein requires that an Eligible Employee (or his
personal representative or beneficiary) give notice to the Committee within
a specified number of days or by a certain date, and the last day of such
period, or such date, falls on a Saturday, Sunday, or Holding Company
holiday, the Eligible Employee (or his personal representative or
beneficiary) will be deemed in compliance with such provision if notice is
delivered in person to the Committee or is mailed, properly addressed,
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postage fully prepaid, and postmarked on or before the business day next
following such Saturday, Sunday, or Holding Company holiday. The Committee
may, in its sole discretion, modify or waive any specified requirement of
notice; provided, however, that such modification or waiver must be
administratively feasible, must be in the best interest of the Eligible
Employee, and must be made on the basis of rules of the Committee which are
applied uniformly to all applicants.
l. Each Eligible Employee shall file with the Committee from time to
time in writing his post office address and any change of post office
address. Any communication addressed to an Eligible Employee, his personal
representative or beneficiary, at his last address filed with the
Committee, or if no such address has been filed, then at his last address
as indicated on the records of the Employer, shall be deemed to have been
delivered to such person on the date on which the communication is
deposited, postage fully prepaid, in the United States mail.
m. The Holding Company shall at all times provide each subsidiary of
the Holding Company with a current list of the names of the members of the
Committee.
EXECUTED this 24th day of May, 1984.
EMPLOYER: FIRST AMARILLO BANCORPORATION, INC.
By ____________________________
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EXHIBIT 99.8
FIRST AMARILLO BANCORPORATION, INC.
INCENTIVE STOCK OPTION PLAN
(NUMBER 2)
1. PURPOSE.
The purpose of this Incentive Stock Option Plan (the "Plan") is to provide
a means whereby certain officers and employees of FIRST AMARILLO BANCORPORATION,
INC. (the "Holding Company") and of its subsidiaries, may be given an
opportunity to purchase common stock of the Holding Company under options which,
with respect to individual optionees, will qualify as "incentive stock options"
under the Internal Revenue Code. The Plan is intended to advance the interest of
the Holding Company by offering an opportunity to key employees ("Eligible
Employee") of the Holding Company and of its subsidiaries to purchase an
interest in the Holding Company's common stock.
2. STOCK SUBJECT TO OPTION.
Subject to adjustment as provided in Section 4.9, options may be granted by
the Holding Company from time to time to purchase an aggregate of 350,000 shares
of the Holding Company's authorized but unissued common stock, provided that the
total number of shares of common stock on which options may be granted under the
Plan to any one Eligible Employee participating under the Plan shall not exceed
in the aggregate a number of shares equal to ten percent (10%) of the 350,000
shares of common stock (subject to adjustment as provided in Section 4.9) on
which options may be granted under this Plan.
Shares of common stock applicable to options which have terminated may
again be optioned under the Plan if at such time options may still be granted
under the Plan.
3. ELIGIBLE EMPLOYEES.
Persons eligible to be granted options under the Plan shall be limited to
such salaried key employees of the Holding Company or its subsidiaries
(including officers and directors who are also employees) who have substantial
responsibility in the direction and management of the Holding Company or its
subsidiaries, as determined by the Committee created by paragraph 5, below,
which administers this Plan.
No individual shall be granted an option under the Plan after the end of
the calendar month in which he attained the age of sixty-three (63) years.
4. TERMS AND CONDITIONS OF OPTIONS.
Options granted pursuant to the Plan shall be evidenced by agreements in
such form, not inconsistent with the Plan, as the Committee shall from time to
time approve, provided that the substance of the following terms and conditions
be included therein subject thereafter to modification or adjustment as provided
in Section 4.9:
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4.1 Option Price. The option price per share shall not be less than one
hundred percent (100%) of the fair market value of the common stock on the date
the option is granted. Fair market value shall be determined by the Committee,
taking into consideration recent representative sales, book value, offers to buy
and sell, and any other factors which the Committee deems relevant in
determining the fair market value of the stock.
4.2 Term of Option. Each option granted under the Plan shall expire not
more than five (5) years from the date the option is granted.
4.3 Exercise of Option. No option may be exercised during the first year
(twelve months) following the date on which it is granted, but may be exercised
in each of the following years through the fifth year with respect to twenty
percent (20%) of the aggregate number of shares to which it pertains (on a
cumulative basis) and in the fifth year with respect to the balance of such
shares. Subject to the foregoing sentence, any option granted hereunder may be
exercised in whole or in part at any time, or from time to time thereafter,
until the expiration of the option. If the Committee grants options to eligible
employees who have attained the age of sixty-one (61) years, but have not
attained the age of sixty-three (63) years, the option may be granted for a
period of less than five (5) years, exercisable in each of the years after the
first year with respect to ratably larger percentages of the aggregate number of
shares to which they pertain.
4.4 Manner of Exercise. Shares of common stock purchased under options
shall, at the time of purchase, be paid for in full. To the extent that the
right to purchase shares has accrued thereunder, options may be exercised from
time to time by written notice to the Holding Company stating the number of
shares with respect to which the option is being exercised, and the time of
delivery thereof, which shall be at least fifteen (15) days after the giving of
such notice unless an earlier date shall have been mutually agreed upon. At such
time the Holding Company shall, without transfer or issue tax to the Eligible
Employee (or other person entitled to exercise the option), deliver to the
Eligible Employee (or other person entitled to exercise the option) at the
principal office of the Holding Company, or such other place as shall be
mutually acceptable, a certificate or certificates for such shares against
payment of the option price in full for the number of shares to be delivered by
certified or official bank check; provided, however, that the time of such
delivery may be postponed by the Holding Company for such period as may be
required for it with reasonable diligence to comply with any requirements of
law. If the Eligible Employee (or other person entitled to exercise the option)
fails to accept delivery of and pay for all or any part of the number of shares
specified in such notice upon tender of delivery thereof, his right to exercise
the option with respect to such undelivered shares may be terminated by the
Committee.
4.5 No Option in Certain Cases. In no event shall an option be granted to
any person who, at the time the option is granted, beneficially, directly, or
indirectly owns stock possessing more than the ten percent (10%) of the total
combined voting power or value of all classes of stock of the Holding Company or
of its parent or subsidiary corporations.
4.6 Nonassignability of Option Right. No option shall be assignable or
transferable otherwise than by will or the laws of descent and distribution.
During the life of an Eligible Employee, the option shall be exercisable only by
him.
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4.7 Termination of Employment. In the event that an Eligible Employee's
employment by the Holding Company or its subsidiaries shall terminate, his
option shall terminate immediately, except as provided in this Section 4.7 and
in Section 4.8. If any termination of employment is due to retirement with the
consent of the Holding Company or its subsidiaries, the Eligible Employee shall
have the right, subject to the provisions of Section 4.2 hereof, to exercise his
option, at any time within the three (3) months after such retirement, to the
extent that he was entitled to exercise the same immediately prior to his
retirement; provided, further, that if the Eligible Employee shall die while in
the employment of the Holding Company or its subsidiaries, or within three (3)
months after retirement, with the consent of the Holding Company or its
subsidiaries, his estate, personal representative, or beneficiary shall have the
right, subject to the provisions of Section 4.2 hereof, to exercise his option
at any time within twelve (12) months from the date of his death to the extent
that he was entitled to exercise the same immediately prior to his death.
Whether any other termination of employment is to be considered a retirement
with the consent of the Holding Company or its subsidiaries and whether an
authorized leaves of absence or absence on military or government service or for
any other reasons shall constitute a termination of employment for the purposes
of the Plan shall be determined by the Committee. The Committee's determination
shall be final and conclusive, unless otherwise determined by the Board of
Directors, and in such event, such determination of the Board of Directors shall
be final and conclusive.
4.8 Termination of Employment Due to Disability. If any termination of an
Eligible Employee's employment by the Holding Company or its subsidiaries is due
to permanent and total disability, the Eligible Employee shall have the right,
subject to the provisions of Section 4.2 hereof and with the consent of the
Committee, to exercise his option at any time within the twelve (12) months
after such termination to the extent that he was entitled to exercise the same
immediately prior to such termination; provided, further, if the Eligible
Employee shall die within twelve (12) months after termination of employment due
to a permanent and total disability, then, with the consent of the Committee,
his estate, personal representative or beneficiary shall have the right, subject
to the provisions of Section 4.2 hereof, to exercise his option at any time
within twelve (12) months from the date of his death, to the extent that he was
entitled to exercise the same immediately prior to his death. For purposes of
his section, an individual is permanently and totally disabled if he is unable
to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in
death or which has lasted or can be expected to last for a continuous period of
not less than twelve (12) months. An Eligible Employee shall furnish proof of
the existence of a permanent and total disability in such form and manner as the
Committee shall require. The Committee's determination regarding the existence
of a permanent and total disability shall be final and conclusive, unless
otherwise determined by the Board of Directors, and in such event, such
determination of the Board of Directors shall be final and conclusive.
4.9 Adjustments and Changes in Stock. The aggregate number of shares of
common stock on which options may be granted to persons participating under the
Plan, the aggregate number of shares of common stock on which options may be
granted to any one such person, the number of shares thereof covered by each
outstanding option, and the price per share thereof in each such option, shall
be proportionately adjusted for any increase or decrease in the number of issued
shares of common stock of the Holding Company resulting from the subdivision or
consolidation of shares or other
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capital adjustment, or the payment of a stock dividend after February _____,
1987, or other increase or decrease in such shares, effected without receipt of
consideration by the Holding Company; provided, however, that no such adjustment
shall be made unless the aggregate effect of all such increases and decreases
accruing in any one-year period after the effective date of the Plan will
increase or decrease the number of issued shares of common stock of the Holding
Company by five percent (5%) or more; and provided, further, that any fractional
shares resulting from any such adjustment shall be eliminated. Subject to any
required action by the shareholders, if the Holding Company shall be the
surviving or resulting corporation in any merger or consolidation, any option
granted hereunder shall pertain to and apply to the securities to which a holder
of the number of shares of common stock subject to the option would have been
entitled; but a dissolution or liquidation of the Holding Company or a merger or
consolidation in which the Holding Company is not the surviving or resulting
corporation, shall cause every option outstanding herewith to terminate as of
the effective date of the dissolution, liquidation, merger, or consolidation,
except that the surviving or resulting corporation may, in its absolute and
uncontrolled discretion, tender an option or options to purchase its shares on
its terms and conditions, both as to the number of shares and otherwise.
4.10 Rights as a Shareholder. The Eligible Employee shall have no rights as
a shareholder with respect to any shares of common stock of the Holding Company
until the date of issuance of a stock certificate to him for such shares. No
adjustment shall be made for dividends or other rights for which the record date
is prior to the date of such issuance.
4.11 Acceleration of Time When Option May be Exercised. Anything herein to
the contrary notwithstanding, the Committee may authorize the earlier exercise
of an option after the initial one-year period, either as to an increased
percentage of shares per year or as to all remaining shares.
4.12 Limitation on Options. The aggregate fair market value (determined as
of the date the option is granted) of the stock with respect to which Incentive
Stock Options are exercisable for the first time by any Eligible Employee during
any calendar year (under all plans of the Holding Company and its parent and
subsidiary corporations) shall not exceed $100,000.00.
5. ADMINISTRATION.
5.1 The general administration of the Plan shall be vested in a Committee
of three (3) or more members. The members of such Committee shall be designated
and appointed from time to time by, and shall serve at the pleasure of, the
Board of Directors of the Holding Company. The members of the Committee may be,
but need not be, directors, officers, or employees of the Holding Company.
Additionally, the members of the Committee may be, but need not be, Participants
under the Plan. Any member of the Committee may resign by delivering a written
resignation to the Board of Directors of the Holding Company and to the other
members of the Committee, and any member of the Committee may be removed by a
majority vote of the Board of Directors of the Holding Company, with or without
cause, by delivering written notification of such removal to the member and to
the other members of the Committee. The Board of Directors of the Holding
Committee shall appoint new members to the Committee as necessary to fill any
vacancy which arises by reason of the death, resignation, or removal of any
Committee member.
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5.2 The Committee shall designate one of its members as Chairman and shall
appoint a Secretary, who need not be a member of the Committee. The Secretary
shall keep written minutes of the Committee's proceedings and all data, records
and documents relating to the Committee's administration of the Plan. The
Committee may appoint from its members such subcommittees with such powers as
the Committee shall determine and may authorize one or more members of the
Committee, or any agent or agents, to execute or deliver any instrument, make
any payment, or perform ministerial acts on its behalf.
5.3 A majority of the members of the Committee shall constitute a quorum
for the transaction of business and shall have full power to act hereunder.
Action by the Committee shall be official if approved by a vote of a majority of
the members present at any meeting. The Committee may, without a meeting,
authorize or approve any action by written instrument signed by a majority of
the members. Any written memorandum signed by the Chairman, by any member of the
Committee, by the Secretary, or by any other person, if such Chairman, member,
Secretary, or other person is authorized by the Committee to act in respect of
the subject matter of the memorandum, shall have the same force and effect as a
formal resolution adopted by the Committee at a meeting.
5.4 The members of the Committee shall serve without bond and without
compensation for their services as such unless the Holding Company and the
members of the Committee agree otherwise. All reasonable and necessary costs,
expenses, and liabilities incurred by the Committee in the supervision and
administration of the Plan shall be paid by the Holding Company.
5.5 From time to time, the Committee shall make recommendations to the
Board of Directors of the Holding Company with respect to the persons who shall
participate in the Plan and the extent of their participation. Additionally,
subject to the Plan, the Committee shall from time to time establish rules,
forms, and procedures for the administration of the Plan. Except as herein
otherwise expressly provided, the Committee shall have the exclusive power to
administer the Plan to interpret the Plan, and to decide any and all matters
arising under the Plan, and in connection with the administration of the Plan.
The Committee shall have the exclusive right to determine (a) disability in
respect to an Eligible Employee and (b) the degree thereof, either or both
determinations to be made on the basis of such medical or other evidence as the
Committee, in its sole discretion, may require. Such interpretations, decisions,
actions, and records of the Committee shall be conclusive and binding upon the
Holding Company and its subsidiaries and on persons having or claiming to have
any rights or interests under the Plan. The Committee may employ such agents,
counsel, actuaries, and accountants as may reasonably be required for the
purpose of administering the Plan.
5.6 No matter of the Committee may vote upon any matter relating solely to
himself, or vote on any matter in which his individual rights or claims to any
benefit, director indirect, under the Plan are specifically involved. If, in any
matter in which a member of the Committee is so disqualified from voting, the
remaining members of the Committee then present cannot reach a final conclusion
based on a majority vote, then the Board of Directors of the Holding Company
shall appoint a temporary substitute member to exercise all of the powers of a
full-time member concerning the matter in which the disqualified member is not
qualified to vote.
5.7 The Committee shall submit to the Board of Directors of the Holding
Company, within ninety (90) days after the end of each
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<PAGE>
year, a report showing the number of options granted under the Plan in such
year, the number of options exercised in such year and the number of options
which expired or lapsed during such year. The Committee shall make available to
any Eligible Employee for examination during regular business hours such records
as pertain exclusively to the examining Eligible Employee.
5.8 Each member of the Committee shall use ordinary care and diligence in
the performance of his duties and shall not be liable for any action or inaction
unless such action or inaction results from his own individual gross negligence,
fraud, or willful misconduct. No member shall be personally liable upon or with
respect to any agreement, act, transaction,, or omission executed, committed, or
suffered to be committed by himself as a member of the Committee or by any other
member, agent, representative, or employee of the Committee. The Committee and
each member and agent thereof shall be fully protected in relying upon the
advice of any attorney employed by the Holding Company or any subsidiary of the
Holding Company or by the Committee insofar as legal matters are concerned any
accountant employed by the Holding Company or any subsidiary of the Holding
Company or by the Committee insofar as accounting matters are concerned. The
Holding Company shall indemnify each member of the Committee against any and all
claims, losses, damages, expenses, including counsel fees approved by the
Committee, and liability, including any amounts paid in settlement with the
Committee's approval, arising from any action or failure to act, except when the
same is judicially determined to be due to gross negligence, fraud, or willful
misconduct of such member. Any fiduciary (including, but not limited to, the
Holding Company and its subsidiaries and the Committee may relay upon any
direction, information, or action of another fiduciary in the exercise of the
latter's respective powers, duties, responsibilities, and obligations hereunder
as being proper under this Plan and shall not be required to inquire into the
proprietary of any such direction, information, or action. No fiduciary shall be
liable for the actions of any other fiduciary unless such fiduciary knowingly
participates, approves, acquiesces, or conceals a breach of obligations or
responsibilities committed by the other.
5.9 To enable the Committee to perform its functions, the Employer shall
supply full and timely information to the Committee on all matters relating to
Eligible Employees, their retirement, death, or other cause of termination of
employment, and such other pertinent facts as the Committee may request.
5.10 Any notice or information which, according to the terms of the Plan or
the rules of the Committee, must be filed with the Committee, shall be deemed so
filed if addressed and either delivered in person or mailed, postage fully
prepaid, to the Committee. Any such notice or information shall be addressed as
follows:
Compensation Committee
c/o Department of Human Resources
The First National Bank of Amarillo
P.O. Box 1331
Amarillo, Texas 79180
Whenever a provision herein requires that an Eligible Employee (or his personal
representative or beneficiary) give notice to the Committee within a specified
number of days or by a certain date, and the last day of such period, or such
date, falls on a Saturday, Sunday, or Holding Company holiday, the Eligible
Employee (or his personal representative or beneficiary) will be deemed in
compliance with such provision if notice is delivered in person to the Committee
or is mailed, properly addressed, postage fully prepaid, and postmarked on or
before the business day next following such
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<PAGE>
Saturday, Sunday, or Holding Company holiday, the Committee may, in its sole
discretion, modify or waive any specified requirement of notice; provided,
however, that such modification or waiver must be administratively feasible,
must be in the best interest of the Eligible Employee, and must be made on the
basis of rules of the Committee which are applied uniformly to all Participants.
5.11 Each Eligible Employee shall file with the Committee from time to time
in writing his post office address and any change of post office address. Any
communication addressed to an Eligible Employee, his personal representative or
beneficiary, at his last address filed with the Committee (or if no such address
has been filed, then at his last address as indicated on the records of the
Employer) shall be deemed to have been delivered to such person on the date on
which the communication is deposited, postage fully prepaid, in the United
States mail.
5.12 The Holding Company shall at all times provide each subsidiary of the
Holding Company with a current list of the names of the members of the
Committee.
6. EFFECTIVE DATE AND TERMINATION OF PLAN.
6.1 The Plan shall become effective upon approval by the Board of Directors
of the Holding Company.
6.2 This Plan shall be submitted at the next annual meeting of shareholders
of the Holding Company to be held in March, 1987, for a vote by the shareholders
of the Holding Company. Prior to that annual meeting the Committee may grant
options under this Plan to Eligible Employees. These options will be conditioned
upon the adoption of the Plan and related matters by the holders of two-thirds
(2/3) of the outstanding shares of common stock of the Holding Company at said
annual meeting or any adjournment thereof. If the Plan is not approved by the
holders of two-thirds (2/3) of the outstanding shares of common stock of the
Holding Company, all options previously granted under this Plan shall be null
and void.
6.3 The Plan shall terminate ten (10) years after the date on which it is
adopted by the Board of Directors; however, the Board of Directors may terminate
the Plan at any time prior to ten (10) years from the date on which it is
adopted. No stock options shall in any event be granted pursuant to the Plan
after February _____, 1997. Termination of the Plan shall not alter or impair
any of the rights or obligations under any option theretofore granted under the
Plan without the consent of the Eligible Employee to whom the option was
granted.
7. AMENDMENTS.
The Board of Directors may from time to time alter, amend, suspend, or
discontinue the Plan or alter or amend any and all option agreements granted
thereunder; provided, however, that no such action of the Board of the Directors
may, without the approval of the shareholders, alter the provisions of the Plan
so as to (a) increase the maximum number of shares as to which options may be
granted under the Plan either to all persons participating in the Plan or to any
one such person; (b) decrease the minimum option price; (C) extend the term of
the Plan or the maximum term of options granted thereunder beyond ten (10)
years; (d) decrease, directly or indirectly (by cancellation and substitution of
options or otherwise), the option price applicable to any option granted under
the Plan; provided, however, that the provisions of this clause (d) shall not
prevent the granting to any person holding an
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<PAGE>
option under the Plan of an additional option under the Plan exercisable at a
lower option price; (e) withdraw the administration of the Plan from the
Committee; (f) permit any member of this Committee to be eligible to receive or
to hold an option under the Plan; and (g) alter any outstanding option agreement
to the detriment of the Eligible Employee without his consent.
8. USE OF PROCEEDS.
The proceeds from the sale of common stock pursuant to the exercise of
options will be used for the Holding Company's general corporate purposes.
ADOPTED by the Board of Directors on February ____, 1987.
------------------------------------
Secretary
ADOPTED by the shareholders on March _____, 1987.
------------------------------------
Secretary
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<PAGE>
FIRST AMARILLO BANCORPORATION, INC.
INCENTIVE STOCK OPTION PLAN (NUMBER 2)
AMENDMENT NO. 1
* * * * * * * * * * * * * *
1. PURPOSE OF AMENDMENT .
The purpose of this Amendment No. 1 to the Incentive Stock Option Plan
(Number 2) (the "Plan") is to change paragraph 4.2 (entitled "Term of Option")
to extend the term of any option granted under the Plan from a maximum of five
years to a maximum of ten years expiration from the date of the grant of the
option.
2. AMENDMENT.
Incentive Stock Option Plan (Number 2) is hereby amended by changing the
expiration date or term of each option from five years to ten years.
Section 4.2 is amended so that henceforth it shall read as follows:
"4.2 Term of Option. Each option granted under the Plan shall expire
not more than ten (10) years from the date the option is
granted."
ADOPTED by the Board of Directors this 25th day of June, 1987.
/s/____________________________________
Secretary
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<PAGE>
EXHIBIT 99.9
WESTSIDE BANCSHARES, INCORPORATED
INCENTIVE STOCK OPTION PLAN
1. Grant of Options. The Board of Directors of WESTSIDE BANCSHARES,
INCORPORATED, is hereby authorized by majority vote of its members to issue
stock options from time to time on the corporation's behalf to any one or more
persons who at the date of such grant are officers of the corporation. Any
option granted under this Plan shall be granted within ten (10) years from the
date hereof.
2. Amount of Stock. The aggregate amount of stock which may be purchased
pursuant to options granted under this Plan shall be 50,000 shares of the
corporation's capital stock.
3. Limitation. The amount of aggregate fair market value of the stock
(determined at the time of the grant of the option) for which any employee may
be granted options hereunder in any calendar year shall not exceed the sum of
(i) $100,000 plus (ii) a carry-over amount for any year after 1980, but prior to
the calendar year under consideration, which is determined as one-half of the
amount by which $100,000 exceeds the value (at the time of grant) of the stock
for which options were granted in any such prior year, but carried over for not
more than three (3) years. For this purpose, options granted in any year shall
be deemed to first use up the $100,000 current year limitation, and then the
carry-over amount from the earliest available year.
4. Exercise. Any option granted pursuant to this Plan shall contain
provisions, established by the corporation's Board of Directors, setting forth
the manner of exercise of such option. In no event, however, shall any option
granted to a person then owning more than 10% of the voting power of all classes
of the corporation's stock be exercisable by it terms after the expiration five
(5) years from the date of the grant thereof, nor shall any other option granted
hereunder be exercisable by its terms after the expiration of ten (10) years
from the date of the grant thereof.
5. Nontransferability. The terms of any option granted under this Plan
shall include a provision making such option nontransferable by the optionee,
except upon death, and exercisable during the optionee's lifetime only by the
optionee.
6. Purchase Price. The purchase price for a share of the stock subject to
any option granted hereunder shall be not less than the fair market value of the
stock on the date of grant of the option, said fair market value to be
determined in good faith at the time of grant of such option by decision of the
corporation's Board of Directors; provided, however, that in the case of an
option granted to any person then owning more than 10% of the voting power of
all classes of the corporation's stock, the purchase price per share of the
stock subject to option shall be not less than 110% of the fair market value of
the stock on the date of grant of the option, determined in good faith as
aforesaid.
7. Stockholder Approval: Effective Date. At the next regular meeting of the
stockholders of the corporation, which has been scheduled and will occur within
the period of 12 months following January 20, 1984 being the date of adoption of
this Plan by the corporation's Board of Directors, the Plan will be presented
for consideration and approval by the stockholders. The effective date of this
Plan is December 16, 1983.
8. Stock Reserve. The corporation shall at all times during the term of
this Plan reserve and keep available such number of shares of its capital stock
as will be sufficient to satisfy the requirements of this Plan, and shall pay
all fees and expenses necessarily incurred by the corporation in connection with
the exercise of options granted hereunder.
9. Other Terms. Any option granted hereunder shall contain such other and
additional terms, not inconsistent with the terms of this Plan, which are
deemed necessary or desirable by the Board of Directors, or by legal counsel
to the corporation, and such other terms shall include those which, together
with the terms of this Plan, shall constitute such option as an "Incentive
Stock Option" within the meaning of Section 422A of the Internal Revenue Code.
<PAGE>
EXHIBIT 99.10
AMENDED AND RESTATED
FOURTH FINANCIAL CORPORATION
1981 INCENTIVE STOCK OPTION PLAN
November 17, 1989
1. Purpose. The purpose of this 1981 Incentive Stock Option Plan (the
"Plan") is to encourage ownership in the Common Stock of Fourth Financial
Corporation (the "Company") by key personnel of the Company and its subsidiaries
and to provide additional incentive for them to continue in the employ of the
Company and its subsidiaries and to promote the success of the Company's
business.
2. Stock Subject to the Plan. The maximum number of shares which may be
issued upon exercise of Options granted under the Plan ("Options") shall be
200,000 shares of Common Stock, par value $5.00 per share, of the Company
("Common Stock"). Such shares may be either issued shares of Common Stock which
shall have been reacquired by the Company or authorized but unissued shares of
Common Stock as the Board of Directors of the Company (the "Board") shall from
time to time determine. If any outstanding Option under the Plan for any reason
expires or is terminated without having been exercised in full, the shares
allocable to the unexercised portion of such Option shall again become available
for option pursuant to the Plan.
3. Participation in the Plan.
(a) Options may be granted only to regular employees (including
officers) of the Company or of any subsidiary of the Company who shall be
selected as provided in Paragraph 11 hereof. A director of the Company or
of a subsidiary who shall not at the time also be an employee of the
Company or of a subsidiary thereof shall not be eligible to receive an
Option under the Plan. An employee who shall have been granted an option
under the Plan may be granted one or more additional Options. The term
"subsidiary" as used in this Plan means a corporation more than 50% of the
voting stock of which shall at the time be owned directly or indirectly by
the Company.
(b) No option shall be granted to an individual who owns Common Stock
possessing more than ten percent of the total combined voting power of all
classes of common stock of the Company or of its parent or subsidiary
corporations.
<PAGE>
(c) The aggregate fair market value (determined as of the time the
Option is granted) of the Common Stock for which any employee may be
granted Options before January 1, 1987, in any calendar year under the Plan
and any other "Incentive Stock Option Plan" within the meaning of Section
422A of the Internal Revenue Code of 1954, as amended, of the Company and
its parent and subsidiary corporations shall not exceed $100,000 plus any
"unused limit carryover" to such year. Effective for Options granted after
December 31, 1986, to the extent the aggregate fair market value
(determined as of the time of the Option is granted) of the Common Stock
for which any employee may be granted Options under the Plan which are
exercisable for the first time by such employee during any calendar year
under the Plan and any other "Incentive Stock Option Plan" within the
meaning of Section 422A of the Internal Revenue Code of 1986, as amended
(the "Code"), of the Company and its parent and subsidiary corporations
exceeds $100,000, such Options shall be treated as Options which are not
incentive stock options. Nothing in this Plan shall be construed to give
anyone the right to be granted an Option, and neither the Plan nor the
granting of an Option or the taking of any other action under the Plan
shall constitute or be any evidence of any agreement or understanding,
express or implied, that the Company or any of its subsidiaries will employ
an Option holder for any period of time or in any position or at any
particular rate of compensation.
4. Option Prices. The purchase price of the Common Stock covered by each
Option shall be not less than 100% of the fair market value of the Common Stock
at the time of granting the Option. Such fair market value shall be determined
by the Board (or any committee to which the Board shall have delegated pursuant
to Paragraph 11 hereof power in that regard) but shall not be less than the mean
between the reported bid and asked prices of the Common Stock on the date the
Option is granted as reported by the NASDAQ quotation system. Notwithstanding
the foregoing, the price at which Options may be exercised shall in all events
be determined in a manner consistent with any regulations that may hereafter be
promulgated from time to time by the Internal Revenue Service with respect to
Section 422A of the Code.
5. Term of Options. The term of each Option shall be not more than ten
years from the date of granting thereof and may be less than ten years. Each
Option shall be subject to earlier termination as herein provided.
6. Exercise of Options. An Option may be exercised in accordance with its
terms at any time or from time to time after the granting thereof and the
approval of this Plan by the stockholder of the Company in accordance with
Paragraph 12 of the Plan. The purchase price of the shares purchased upon
exercise of an Option shall be paid in full in cash at the time of the
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<PAGE>
exercise, but the Board of Directors may (but shall not be required to)
determine that shares may be purchased in whole or in part upon the exercise of
Options with Common Stock of the Company. The Board of Directors may (but shall
not be required to) permit the payment for Common Stock purchased under the Plan
by means of a loan from the Company or from one of its subsidiaries for all or a
portion of the purchase price, upon such terms and conditions as the Board may
from time to time determine. Except as provided in Paragraph 8 hereof, an Option
may not be exercised in whole or in part unless the holder thereof shall then be
an employee of the Company or of a subsidiary of the Company. The holder of an
Option shall not have any of the rights of a stockholder with respect to the
shares covered by his Option until and except to the extent that the Option
shall have been duly exercised. No Option granted before January 1, 1987 may be
exercised by any individual while there is outstanding (within the meaning of
subsection (c) (7) of Section 422A of the Code) any incentive stock option which
was granted before the granting of such Option, to such individual to purchase
stock in his employer corporation or in any corporation which (at the time of
the granting of such Option) is a parent or subsidiary corporation of the
employer corporation or is a predecessor corporation of any such corporations.
7. Nontransferability of Options. An option shall not be transferable
otherwise than by will or the laws of descent and distribution, and an Option
may be exercised during the lifetime of the employee only by him. No Option or
interest therein may be transferred, assigned, pledged, or hypothecated by the
Optionee during his lifetime, by operation of law or otherwise, or be made
subject to execution, attachment, or similar process.
8. Termination of Employment. All rights of an employee in an Option, to
the extent it has not been exercised, shall terminate upon the death of the
employee (except as hereinafter provided) or the termination of his employment
for any reason other than disability or retirement because of age. In the case
of termination by reason of disability, such rights shall terminate twelve
months from the date of termination of employment and, in the case of
retirement, three months from the date thereof. an Option shall not be affected
by any temporary change of duties or position of the holder or any temporary
leave of absence granted to him by the employing corporation. In the event of
the death of the holder of an Option prior to termination of employment for any
other reason, the unexercised portion of such Option may be exercised at any
time within twelve months from the date of the holder's death by his executor,
administrator, personal representative, or other person who has acquired the
right to exercise the Option by bequest or inheritance, but in no event may any
Option be exercised after the expiration of the terms of the Option as set forth
in Paragraph 5 of the Plan.
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<PAGE>
9. Adjustments Upon Changes in Capitalization. Notwithstanding any other
provisions of this Plan, in the event of any change in the outstanding Common
Stock of the Company by reason of a stock dividend, stock split, merger,
consolidation, split-up, combination or exchange of shares, reorganization,
liquidation, or the like, the aggregate number and class of shares of Common
Stock available under the Plan and the number and class of shares subject to
each outstanding Option and the option prices shall be appropriately adjusted by
the Board, whose determination shall be conclusive.
10. Termination and Amendment of the Plan. Unless the Plan shall be
previously terminated as hereinafter provided, no Option shall be granted under
the plan after ten years from the date the Plan is adopted by the Board of
Directors. The Board of Directors may at any time prior to that date suspend or
terminate the Plan and shall have the right to alter or amend the Plan or any
part thereof at any time and from time to time as it may deem proper and in the
best interest of the Company and to alter or amend the Plan in order that
Options granted under the Plan shall qualify as "Incentive Stock Options" under
Section 422A of the Code or qualify under similar or successor provisions of the
Code as amended from time to time, or conform with any change in applicable law
or regulations or rulings of administrative agencies. Any termination,
suspension. alteration or amendment of the Plan effected pursuant to this
Paragraph 10 may be made by the Board of Directors without further action on the
part of the stockholders of the Company; provided, that no such termination,
suspension, alteration, or amendment shall (a) impair, without the consent of
the Option holder, any Option theretofore granted to him under the Plan or
deprive him of any Common Stock which he may have acquired under the Plan, or
(b) unless approved by the stockholders of the Company, (i) increase the total
number of shares of Common Stock which may be purchased under the Plan, except
as provided in Paragraph 9 hereof, (ii) extend the time during which options may
be granted under the Plan, (iii) change the class of employees eligible to
receive Options under the Plan, or (iv) change the manner of determining the
Option price except to change the manner of determining the fair market value of
the Common Stock. Any Option outstanding at the time of termination of the Plan
shall remain in effect subject to the provisions of this Plan until the Option
shall have been exercised or shall have expired.
11. Administration of Plan.
(a) The plan shall be administered under the general direction and
control of the Board of Directors which may from time to time issue orders
or adopt resolutions not inconsistent with provisions of the Plan, to
interpret the provisions and supervise the administration of the Plan.
Subject to the provisions of the Plan, the Board of Directors shall have
the plenary authority, in its discretion, to determine the time or times at
which, and the
4
<PAGE>
employees of the Company and its subsidiaries to whom, Options shall be
granted, the purchase price, and the number of shares of Common Stock to be
covered by each Option, and when each Option may be exercised.
(b) The Board of Directors shall appoint a Stock Option and Stock
Purchase Committee (the Committee") consisting of not fewer than three
Directors, none of whom shall be officers of the Company or eligible to
participate in the Plan while members of the Committee, and who shall serve
at the pleasure of the Board. The Board of Directors may, from time to
time, remove members from or add members to the Committee and shall fill
all vacancies on the Committee. The Board of Directors may delegate to the
Committee full power and authority to take any action required or permitted
to be taken by the Board of Directors under the Plan, except that the
Committee shall not have the power to terminate, suspend, alter, or amend
the Plan. The Options granted by such Committee may contain such terms and
provisions as the Committee, in its discretion, deems desirable and
appropriate, provided, however, that such additional terms shall not be
inconsistent with any provision of the Plan or cause the Plan or the
Options granted thereunder not to be classified as an Incentive Stock
Option Plan and/or an Incentive Stock Option.
(c) A majority of the Committee shall constitute a quorum, and the
action of a majority of the members present at any meeting at which a
quorum is present, or action authorized or approved in writing by a
majority of the Committee, shall be deemed the action of the Committee.
12. Effective Date of the Plan. The Plan shall be effective from the date
of its adoption by the Board of Directors, and Options may be granted
immediately after such adoption, but no Option may be exercised under the Plan
unless and until the Plan has been approved by the stockholders of the Company
at a meeting held within twelve months after the date of such adoption. The Plan
shall terminate if it is not approved by the stockholders of the Company within
twelve months from the date of its adoption by the Board of Directors.
13. Government and Other Regulations. The obligations of the Company to
sell and deliver shares of Common Stock shall be subject to all applicable laws,
rules and regulations and such approvals by any governmental agencies as may be
required, including, without limitation, the effectiveness of a registration
statement under the Securities Act of 1933, as deemed necessary or appropriate
by counsel for the Company.
14. Nonexclusivity of the Plan. Neither the adoption of the Plan by the
Board of Directors nor the submission of the Plan for approval of the
stockholders of the company shall be construed as creating any limitations on
the power of the Board of Directors to
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<PAGE>
adopt such other incentive arrangements as it may deem desirable, including,
without limitation, the granting of stock options otherwise than under the Plan.
15. Merger; Change of Control.
(a) If the Company shall be the surviving or resulting corporation in any
merger or consolidation, each then outstanding Option granted hereunder shall
pertain to and apply to the same number and type of shares of stock which a
holder of the same number of shares of Common Stock subject to such Option was
entitled to receive by reason of such merger or consolidation.
(b) The holder of an Option granted hereunder shall have the right to
exercise such Option, in whole or in part, (I) during the period beginning with
the commencement of a tender offer or exchange offer (other than a tender offer
or exchange offer by the Company) which by its terms could result in a Change of
Control of the Company and ending ten days after the first purchase of stock
pursuant to such tender offer or exchange offer, (ii) during the 30-day period
following a Change of Control of the Company, and (iii) during the 30-day period
commencing on the date of approval by the stockholders of the Company of an
agreement of merger or reorganization of the Company in which the Company will
not survive as an independent, publicly-owned corporation, or of a plan of
dissolution or disposition of substantially all of the assets of the Company.
(c) At any time after the occurrence of a Change of Control, the Company
shall have the right to cancel all outstanding Options granted hereunder by
making cash payment to each holder of a then outstanding Option, with respect to
each share of Common Stock covered by such Option, of the difference between the
greatest per share amount of cash (and the fair market value of any other form
of consideration) paid to the public stockholders of the Company in the
transaction or transactions resulting in the Change of Control and the amount of
cash that would have been paid by the Option holder to exercise such Option. The
Company may not exercise any rights under this subparagraph (c) if the effect of
such exercise would be to subject an Option holder to any liability under
Section 16 of the Securities Exchange Act of 1934, as amended.
(d) "Change of Control" means the acquisition by any person, entity, or
group (as such term is defined in the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Securities and Exchange Commission
adopted thereunder) of Common Stock in a transaction or series of transactions
that results in such person, entity, or group owning beneficially 50% or more of
the outstanding Common Stock; provided; that a merger or consolidation of the
Company with or into another corporation shall not be deemed to be a Change of
Control if, by reason of such
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<PAGE>
merger or consolidation, the holders of Common Stock receive in exchange for
their shares of Common Stock voting common stock of the surviving or resulting
corporation that is registered under the Securities Exchange Act of 1934, as
amended, and is either a security listed for trading on a national securities
exchange or a security for which bid and asked quotations are reported in an
automated quotations system operated by a national securities association.
<PAGE>
EXHIBIT 99.11
AMENDED AND RESTATED
FOURTH FINANCIAL CORPORATION
1986 INCENTIVE STOCK OPTION PLAN
(as amended effective April 20, 1990)
1. Purpose. The purpose of this 1986 Incentive Stock Option Plan (the
"Plan") is to encourage ownership in the Common Stock of Fourth Financial
Corporation (the "Company") by key personnel of the Company and its subsidiaries
and to provide additional incentive for them to continue in the employ of the
Company and its subsidiaries and to promote the success of the Company's
business.
2. Stock Subject to the Plan. The maximum number of shares which may be
issued upon exercise of Options granted under the Plan ("Options") shall be
1,300,000 shares of Common Stock, par value $5.00 per share, of the Company
("Common Stock"). Such shares may be either issued shares of Common Stock which
shall have been reacquired by the Company or authorized but unissued shares of
Common Stock as the Board of Directors of the Company (the "Board") shall from
time to time determine. If any outstanding option under the Plan for any reason
expires or is terminated without having been exercised in full, the shares
allocable to the unexercised portion of such Option shall again become available
for option pursuant to the Plan.
3. Participation in the Plan. (a) Options may be granted only to
regular employees (including officers) of the Company or of any subsidiary of
the Company who shall be selected as provided in Section 11 hereof. A director
of the Company or of a subsidiary who shall not at the time also be an employee
of the Company or of a subsidiary thereof shall not be eligible to receive an
Option under the Plan. An employee who shall have been granted an Option under
the Plan may be granted one or more additional Options. The term "subsidiary" as
used in the Plan means a corporation more than 50% of the voting stock of which
shall at the time be owned directly or indirectly by the Company.
(b) No Option shall be granted to an individual who owns Common Stock
possessing more than ten percent of the total combined voting power of all
classes of common stock of the Company or of its parent or subsidiary
corporations.
(c) To the extent the aggregate fair market value (determined as of the
time the Option is granted) of the Common Stock for which any employee may be
granted Options which are
<PAGE>
exercisable for the first time by such employee during any calendar year under
the Plan and any other "Incentive Stock Option Plan" within the meaning of
Section 422A of the Internal Revenue Code of 1986, as amended (the "Code"), of
the Company and its parent and subsidiary corporations exceeds $100,000, such
Options shall be treated as Options which are not incentive stock options.
Nothing in this Plan shall be construed to give anyone the right to be granted
an Option, and neither the Plan nor the granting of an Option or the taking of
any other action under the Plan shall constitute or be any evidence of any
agreement or understanding, express or implied, that the Company or any of its
subsidiaries will employ an Option holder for any period of time or in any
position or at any particular rate of compensation.
4. Option Prices. The purchase price of the Common Stock covered by each
Option shall be not less than 100% of the fair market value of the Common Stock
at the time of granting the Option. Such fair market value shall be determined
by the Board (or any committee to which the Board shall have delegated pursuant
to Section 11 hereof power in that regard) but shall not be less than the mean
between the reported bid and asked prices of the Common Stock on the date the
Option is granted as reported by the NASDAQ quotation system. Notwithstanding
the foregoing, the price at which Options may be exercised shall in all events
be determined in a manner consistent with any regulations that may hereafter be
promulgated from time to time by the Internal Revenue Service with respect to
section 422A of the Code.
5. Term of Options. The term of each Option shall be not more than ten
years from the date of granting thereof and may be less than ten years. Each
Option shall be subject to earlier termination as herein provided.
6. Exercise of Options. An Option may be exercised in accordance with its
terms at any time or from time to time after the granting thereof and the
approval of this Plan by the stockholders of the Company in accordance with
Paragraph 12 of the Plan. The purchase price of the shares purchased upon
exercise of an Option shall be paid in full in cash at the time of the exercise,
but the Board of Directors may (but shall not be required to) determine that
shares may be purchased in whole or in part upon the exercise of Options with
Common Stock of the Company. The Board of Directors may (but shall not be
required to) permit the payment, for Common Stock purchased under the Plan by
means of a loan from the Company or from one of its subsidiaries for all or a
portion of the purchase price, upon such terms and conditions as the Board may
from time to time determine. Except as provided in Paragraph 8 hereof, an Option
may not be exercised in whole or in part unless the holder thereof shall then be
an employee of the
2
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Company or of a subsidiary of the Company. The holder of an Option shall not
have any of the rights of a stockholder with respect to the shares covered by
his Option until and except to the extent that the Option shall have been duly
exercised.
7. Nontransferability of Options. An Option shall not be transferable
otherwise than by will or the laws of descent and distribution, and an Option
may be exercised during the lifetime of the employee only by him. No Option or
interest therein may be transferred, assigned, pledged, or hypothecated by the
Optionee during his lifetime, by operation of law or otherwise, or be made
subject to execution, attachment, or similar process.
8. Termination of Employment. All rights of an employee in an Option, to
the extent it has not been exercised, shall terminate upon the death of the
employee (except as hereinafter provided) or the termination of his employment
for any reason other than disability or retirement because of age. In the case
of termination by reason or disability, such rights shall terminate twelve
months from the date of termination of employment and, in the case of
retirement, three months from the date thereof. An Option shall not be affected
by any temporary change of duties or position of the holder or any temporary
leave of absence granted to him by the employing corporation. In the event of
the death of the holder of an Option prior to the termination of employment for
any other reason, the unexercised portion of such Option may be exercised at any
time within twelve months from the date of the holder's death, by his executor,
administrator, personal representative, or other person who has acquired the
right to exercise the Option by bequest or inheritance, but in no event may any
Option be exercised after the expiration of the terms of the Option as set forth
in Paragraph 5 of this Plan.
9. Adjustments Upon Changes in Capitalization. Notwithstanding in any other
provisions of this Plan, in the event of any change in the outstanding Common
Stock of the Company by reason of a stock dividend, stock split, merger,
consolidation, splitup, combination or exchange of shares, reorganization,
liquidation, or the like, the aggregate number and class of shares of Common
Stock available under the Plan and the number and class of shares subject to
each outstanding Option and the option prices shall be appropriately adjusted by
the Board, whose determination shall be conclusive.
10. Termination and Amendment of the Plan. Unless the Plan shall be
previously terminated as hereinafter provided, no Option shall be granted under
the Plan after ten years from the date the Plan is adopted by the Board of
Directors. The Board of Directors
3
<PAGE>
may at any time prior to that date suspend or terminate the Plan and shall have
the right to alter or amend the Plan or any part thereof at any time and from
time to time as it may deem proper and in the best interest of the Company and
to alter or amend the Plan in order that Options granted under the Plan shall
qualify as "Incentive Stock Options" under Section 422A of the Code or qualify
under similar or successor provisions of the Code as amended from time to time,
or conform with any change in applicable law or regulations or rulings of
administrative agencies. Any termination, suspension, alteration or amendment of
the Plan effected pursuant to this Paragraph 10 may be made by the Board of
Directors without further action on the part of the stockholders of the Company;
provided, that no such termination, suspension, alteration, or amendment shall
(a) impair, without the consent of the Option holder, any Option theretofore
granted to him under the Plan or deprive him of any Common Stock which he may
have acquired under the Plan, or (b) unless approved by the stockholder of the
Company, (i) increase the total number of shares of Common Stock which may be
purchased under the Plan except as provided in Paragraph 9 hereof, (ii) extend
the time during which Options may be granted under the Plan, (iii) change the
class of employees eligible to receive Options under the Plan or (iv) change the
manner of determining the Option price except to change the manner of
determining the fair market value of the Common Stock. Any Option outstanding at
the time of termination of the Plan shall remain in effect subject to the
provisions of this Plan until the Option shall have been exercised or shall have
expired.
11. Administration of Plan. (a) The Plan shall be administered under the
general direction and control of the Board of Directors which may from time to
time issue orders or adopt resolutions not inconsistent with the provisions of
the Plan, to interpret the provisions and supervise the administration of the
Plan. Subject to the provisions of the Plan, the Board of Directors shall have
the plenary authority, in its discretion, to determine the time or times at
which , and the employees of the Company and its subsidiaries to whom, Options
shall be granted, the purchase price and the number of shares of Common Stock to
be covered by each Option, and when each Option may be exercised.
(b) The Board of Directors shall appoint a Stock Option and Stock Purchase
Committee (the "Committee") consisting of not fewer than three directors, none
of whom shall be officers of the Company or eligible to participate in the Plan
while members of the Committee, and who shall serve at the pleasure of the
Board. The Board of Directors may, from time to time, remove members from or add
members to the Committee and shall fill all vacancies on the Committee. The
Board of Directors may delegate to the Committee full power and authority to
take any action required, or permitted to be taken by the Board of Directors
under the Plan, except that
4
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the Committee shall not have the power to terminate, suspend, alter, or amend
the Plan. The Options granted by such Committee may contain such terms and
provisions as the Committee, in its discretion, deems desirable and appropriate,
provided, however, that such additional terms shall not be inconsistent with any
provision of the Plan or cause the Plan or the Options granted thereunder not to
be classified as an Incentive Stock Option Plan and/or an Incentive Stock
Option.
(C) A majority of the Committee shall constitute a quorum, and the action
of a majority of the members present at any meeting at which a quorum is
present, or action authorized or approved in writing by a majority of the
Committee, shall be deemed the action of the Committee.
12. Effective Date of the Plan. The Plan shall be effective from the date
of its adoption by the Board of Directors, and Options may be granted
immediately after such adoption, but no Option may be exercised under the Plan
unless and until the Plan has been approved by the stockholders of the Company
at a meeting held within twelve months after the date of such adoption. The Plan
shall terminate if it is note approved by the stockholders of the Company within
twelve months from the date of its adoption by the Board of Directors.
13. Government and Other Regulations. The obligations of the Company to
sell and deliver shares of Common Stock shall be subject to all applicable laws,
rules and regulations and such approvals by any governmental agencies as may be
required, including, without limitation, the effectiveness of a registration
statement under the Securities Act of 1933, as deemed necessary or appropriate
by counsel for the Company.
14. Nonexclusivity of the Plan. Neither the adoption of the Plan by the
Board of Directors nor the submission of the Plan for approval of the
stockholders of the Company shall be construed as creating any limitations on
the power of the Board of Directors to adopt such other incentive arrangements
as it may deem desirable, including without limitation, the granting of stock
options otherwise than under the Plan.
15. Merger; Change of Control. (a) If the Company shall be the surviving or
resulting corporation in any merger or consolidation, each then outstanding
Option granted hereunder shall pertain to and apply to the same number and type
of shares of stock which a holder of the same number of shares of Common Stock
subject to such Option was entitled to receive by reason of such merger or
consolidation.
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<PAGE>
(b) The holder of an Option granted hereunder shall have the right to
exercise such Option, in whole or in part, (I) during the period beginning with
the commencement of a tender offer or exchange offer (other than a tender offer
or exchange offer by the Company) which by its terms could result in a Change of
Control of the Company and ending ten days after the first purchase of stock
pursuant to such tender offer or exchange offer, (ii) during the 30-day period
following a Change of Control of the Company and (iii) during the 30-day period
commencing on the date of approval by the stockholders of the Company of an
agreement of merger or reorganization of the Company in which the Company will
not survive as an independent, publicly-owned corporation, or of a plan of
dissolution or disposition of substantially all of the assets of the Company.
(c) At any time after the occurrence of a Change of Control, the Company
shall have the right to cancel all outstanding Options granted hereunder by
making cash payment to each holder of a then outstanding Option, with respect to
each share of Common Stock covered by such Option, of the difference between the
greatest per share amount of cash (and the fair market value of any other form
of consideration) paid to the public stockholders of the Company in the
transaction or transaction resulting in the Change of Control and the amount of
cash that would have been paid by the Option holder to exercise such Option. The
Company may not exercise any rights under this subparagraph (C) if the effect of
such exercise would be to subject an Option holder to any liability under
Section 16 of the Securities Exchange Act of 1934, as amended.
(d) "Change of Control" means the acquisition by any person, entity, or
group (as such term is defined in the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Securities and Exchange Commission
adopted thereunder) of Common Stock in a transaction or series of transaction
that results in such person, entity, or group owning beneficially 50% of more of
the outstanding Common Stock; provided, that a merger or consolidation of the
Company with or into another corporation shall not be deemed to be a Change of
Control if, by reason of such merger or consolidation, the holders of Common
Stock receive in exchange for their shares of Common Stock voting common stock
of the surviving or resulting corporation that is registered under the
Securities Exchange Act of 1934, as amended, and is either a security listed for
trading on a national securities exchange or a security for which bid and asked
quotations are reported in an automated quotations system operated by a national
securities association.
6
<PAGE>
EXHIBIT 99.12
FOURTH FINANCIAL CORPORATION
1993 INCENTIVE STOCK OPTION PLAN
(as amended effective October 20, 1994)
1. Purpose. The purpose of this 1993 Incentive Stock Option Plan (the
"Plan") is to encourage ownership in the Common Stock of Fourth Financial
Corporation (the "Company") by key personnel of the Company and its subsidiaries
and to provide an additional incentive for them to continue in the employ of the
Company and its subsidiaries and to promote the success of the Company's
business.
2. Stock subject to the Plan. The maximum number of shares which may be
issued upon exercise of Options granted under the Plan ("Options") shall be
1,000,000 shares of Common Stock, par value $5.00 per share, of the Company
("Common Stock"). Such shares may be either issued shares of Common Stock which
shall have been reacquired by the Company or authorized but unissued shares of
Common Stock as the Board of Directors of the Company (the "Board") shall from
time to time determine. If any outstanding Option under the Plan for any reason
expires or is terminated without having been exercised in full, the shares
allocable to the unexercised portion of such Option shall again become available
for option pursuant to the Plan.
3. Participation in the Plan. (a) Options may be granted only to employees
(including officers) of the Company or of any subsidiary of the Company who
shall be selected as provided in Section 11 hereof. A director of the Company or
of a subsidiary who shall not at the time also be an employee of the Company or
of a subsidiary thereof shall not be eligible to receive an Option under the
Plan. An employee who shall have been granted an Option under the Plan may be
granted one or more additional Options. The term "subsidiary" as used in this
Plan means a bank or other corporation more than 50% of the voting stock of
which shall at the time be owned directly or indirectly by the Company.
(b) No Option shall be granted to an individual who owns
Common Stock possessing more than ten percent of the total combined voting power
of all classes of common stock of the Company or its parent or subsidiary
corporations.
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<PAGE>
(c) To the extend the aggregate fair market value (determined
as of the time the Option is granted) of the Common Stock for which any employee
may be granted Options which are exercisable for the first time by such employee
during any calendar year under the Plan and any other "Incentive Stock Option
Plan" within the meaning of Section 422 of the Internal Revenue Code of 1986, as
amended (the "Code"), of the Company and its parent and subsidiary corporations
exceeds $100,000, such Options shall be treated as Options which are not
incentive stock options. Nothing in this Plan shall be construed to give anyone
the right to be granted an Option, and neither the Plan nor the granting of an
Option or the taking of any other action under the Plan shall constitute or be
any evidence of any agreement or understanding, express or implied, that the
Company or any of its subsidiaries will employ an Option holder for any period
of time or in any position or at any particular rate of compensation.
4. Option Prices. The purchase price of the Common Stock covered by each
Option shall be not less than 100% of the fair market value of the Common Stock
at the time of granting the Option. Such fair market value shall be determined
by the Board (or any committee to which the Board shall have delegated pursuant
to Section 11 hereof power in that regard) but shall not be less than the mean
between the reported bid and asked prices of the Common Stock on the date the
Option is granted as reported by the NASDAQ quotation system. Notwithstanding
the foregoing, the price at which Options may be exercised shall in all events
be determined in a manner consistent with any regulations that may hereafter be
promulgated from time to time by the Internal Revenue Service with respect to
Section 422 of the Code.
5. Term of Options. The term of each Option shall be not more than ten
years from the fate of granting thereof and may be less than ten years. Each
Option shall be subject to earlier termination as herein provided.
6. Exercise of Options. An Option may be exercised in accordance with its
terms at any time or from time to time after the granting thereof and the
approval of this Plan by the stockholders of the Company in accordance with
Paragraph 12 of the Plan. The purchase price of the shares purchased upon
exercise of an Option shall be paid in full in cash at the time of the exercise,
but the Board of Directors may (but shall not be required to ) determine that
shares may be purchased in whole or in part upon the exercise of Options with
Common Stock of the Company. The
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<PAGE>
Board of Directors may (but shall not be required to) permit the payment for
Common Stock purchased under the Plan by means of a loan from the Company or
from one of its subsidiaries for all or a portion of the purchase price, upon
such terms and conditions as the Board may from time to time determine. Except
as provided in Paragraph 8 hereof, an Option may not be exercised in whole or in
part unless the holder thereof shall then be an employee of the Company or of a
subsidiary of the Company. The holder of an Option shall not have any of the
rights of a stockholder with respect to the shares covered by his Option until
and except to the extent that the Option shall have been duly exercised.
7. Nontranferability of Options. An Option shall not be transferable
otherwise than by will or the laws of descent and distribution, and an Option
may be exercised during the lifetime of the employee only by him. No Option or
interest therein may be transferred, assigned, pledged, or hypothecated by the
Optionee during his lifetime, by operation of law or otherwise, or be made
subject to execution, attachment, or similar process.
8. Termination of Employment. All rights of an employee in an Option, to
the extent it has not been exercised, shall terminate upon the death of the
employee (except as hereinafter provided) or the termination of his employment
for any reason other than disability or retirement because of age. In the case
of termination by reason of disability, such rights shall terminate twelve
months from the date of termination of employment and, in the case of
retirement, three months from the date thereof. An Option shall not be affected
by any temporary change of duties or position of the holder or any temporary
leave of absence granted to him by the employing corporation. In the event of
the death of the holder of an Option prior to termination of employment for any
other reason, the unexercised portion of such Option may be exercised at any
time within twelve months from the date of the holder's death, by his executor,
administrator, personal representative, or other person who has acquired the
right to exercise the Option by bequest or inheritance, but in no event may any
Option be exercised after the expiration of the terms of the Option as set forth
in Paragraph 5 of this Plan.
9. Adjustments Upon Changes in Capitalization. Notwithstanding any other
provisions of this Plan, in the event of any change in the outstanding Common
Stock of the Company be reason of a stock dividend, stock split, merger,
consolidation, split-up, combination or exchange of shares, reorganization,
liquidation, or the like, the aggregate number and class of shares of Common
Stock
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<PAGE>
available under the Plan and the number and class of shares subject to each
outstanding Option and the option prices shall be appropriately adjusted by the
Board, whose determination shall be conclusive.
10. Termination and Amendment of the Plan. Unless the Plan shall be
previously terminated as hereinafter provided, no Option shall be granted under
the Plan after ten years from the date the Plan is adopted by the Board of
Directors. The Board of Directors may at any time prior to that date suspend or
terminate the Plan and shall have the right to alter or amend the Plan or any
part thereof at any time and from time to time as it may deem proper and in the
best interest of the Company and to alter or amend the Plan in order that
Options granted under the Plan shall qualify as "Incentive Stock Options" under
Section 422 of the Code or qualify under similar or successor provisions of the
Code as amended from time to time, or conform with any change in applicable law
or regulations or rulings of administrative agencies. Any termination,
suspension, alteration or amendment of the Plan effected pursuant to this
Paragraph 10 may be made by the Board of Directors without further action on the
part of the stockholders of the Company, provided, that no such termination,
suspension, alteration, or amendment shall (a) impair, without the consent of
the Option holder, and Option theretofore granted to him under the Plan or
deprive him of any Common Stock which he may have acquired under the Plan, or
(b) unless approved by the stockholders of the Company, (i) increase the total
number of shares of Common Stock which may be purchase under the Plan except as
provided in Paragraph 9 hereof, (ii) extend the time during which Options may be
granted under the Plan, (iii) change the class of employees eligible to receive
Options under the Plan, or (iv) change the manner of determining the Option
price except to change the manner of determining the fair market value of the
Common Stock. Any Option outstanding at the time of termination of the Plan
shall remain in effect subject to the provisions of this Plan until the Option
shall have been exercised or shall have expired.
11. Administration of Plan. (a) The Plan shall be administered under the
general direction and control of the Board of Directors which may from time to
time issue orders or adopt resolutions not inconsistent with the provisions of
the Plan, to interpret the provisions and supervise the administration of the
Plan. Subject to the provisions of the Plan, the Board of Directors shall have
the plenary authority, in its discretion, to determine the time or times at
which, and the employees of the Company and its subsidiaries to whom, Options
shall be granted, the
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<PAGE>
purchase price, and the number of shares of Common Stock to be covered by each
Option, and when each Option may be exercised.
(b) The Board of Directors shall appoint a committee (the
"Committee") consisting of not fewer than three directors, none of whom shall be
officers of the Company or eligible to participate in the Plan while members of
the Committee, and who shall service at the pleasure of the Board. The Board of
Directors may, from time to time, remove members from or add members to the
Committee and shall fill all vacancies on the Committee. The Board of Directors
may delegate to the Committee full power and authority to take any action
required or permitted to be taken by the Board of Directors under the Plan,
except that the Committee shall not have the power to terminate, suspend, alter,
or amend the Plan. The Options granted by such Committee may contain such terms
and provisions as the Committee, in its discretion, deems desirable and
appropriate, provided, however, that such additional terms shall not be
inconsistent with any provision of the Plan or cause the Plan or the Options
granted thereunder not to be classified as an Incentive Stock Option Plan and/or
an Incentive Stock Option.
(c) A majority of the Committee shall constitute a quorum, and
the action of a majority of the members present at any meeting at which a quorum
is present, or action authorized or approved in writing by a majority of the
Committee, shall be deemed the action of the Committee.
12. Effective Date of the Plan. The Plan shall be effective from the date
of its adoption by the Board of Directors, and Options may be granted
immediately after such adoption, but no Option may be exercised under the Plan
unless and until the Plan has been approved by the stockholders of the Company
at a meeting held within twelve months after the date of such adoption. The Plan
shall terminate if it is not approved by the stockholders of the Company within
twelve months from the date of its adoption by the Board of Directors.
13. Government and Other Regulations. The obligations of the Company to
sell and deliver shares of Common Stock shall be subject to all applicable laws,
rules and regulations and such approvals by any governmental agencies as may be
required, including, without limitation, the effectiveness of a registration
statement under the Securities Act of 1933, as deemed necessary or appropriate
by counsel for the Company.
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<PAGE>
14. Nonexclusivity of the Plan. Neither the adoption of the Plan by the
Board of Directors nor the submission of the Plan for approval of the
stockholders of the Company shall be construed as creating any limitations on
the power of the Board of Directors to adopt such other incentive arrangements
as it may deem desirable, including without limitation, the granting of stock
options otherwise than under the Plan.
15. Merger; Change of Control. (a) If the Company shall be the surviving or
resulting corporation in any merger or consolidation, each then outstanding
Option granted hereunder shall pertain to and apply to the same number and type
of shares of stock which a holder of the same number of shares of Common Stock
subject to such Option was entitled to receive by reason of such merger or
consolidation.
(b) Notwithstanding any other provisions of this Plan to the
contrary, in the event of a Change of Control the following provisions shall
apply: (i) all outstanding options on the date of the Change of Control shall
become fully vested and immediately exercisable on the date of such Change of
Control, except as provided by Subparagraph (c), below. (ii) the Board of
Directors shall not, at any time following a Change of Control, impose any
conditions upon the exercise of an option that have not been previously imposed
as of the fate of such Change of Control, unless, in the written opinion of
independent counsel to the Company, such condition is necessary to comply with
any federal, state or local securities or other law of regulation, or the rules
of any applicable securities exchange, and, in the good faith opinion of the
Board of Directors of the Company, compliance with such law, regulation or rule
without the imposition of such condition would be impracticable. (iii)
Notwithstanding the provisions of Paragraph 10 hereof, the provisions of this
Paragraph 15 may not be amended in any respect following a Change of Control.
(c) At any time after the occurrence of a Change of Control,
the Company shall have the right to cancel all outstanding Options granted
hereunder by making cash payment to each holder of a ten outstanding Option,
with respect to each share of Common Stock covered by such Option, of the
difference between the greatest per share amount of cash (and the fair market
value of any other form of consideration) paid to the public stockholders of the
Company in the transaction or transactions resulting in the Change of Control
and the amount of cash that would have been paid by the Option holder to
exercise such Option. The Company may not
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<PAGE>
exercise any rights under this subparagraph (c) if the effect of such exercise
would be to subject an Option holder to any liability under Section 16 of the
Securities Exchange Act of 1934, as amended.
(d) A "Change of Control" of the Company shall be deemed to
occur if (i) any "person" (as such term is defined in Section 3(a)(9) and as
used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act")), excluding the Company or any of its subsidiaries,
a trustee or any fiduciary holding securities under an employee benefit plan of
the Company or any or its subsidiaries, an underwriter temporarily holding
securities pursuant to an offering of such securities or a corporation owned,
directly or indirectly, by stockholders of the Company in substantially the same
proportion as their ownership of the Company, is or becomes the "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Company representing 25% or more of the
combined voting power of the Company's then outstanding securities ("Voting
Securities"); or (ii) during any period of not more than two years, individuals
who constitute the Board as of the beginning of the period and any new director
(other than a director designated by a person who has entered into an agreement
with the Company to effect a transaction described in clause (i) or (iii) of
this sentence) whose election by the Board or nomination for election by the
Company's shareholders was approved by a vote of at least two-thirds (2/3) of
the directors then still in office who either were directors at such time or
whose election or nomination for election was previously so approved, cease for
any reason to constitute a majority thereof; or (iii) the shareholders of the
Company approve a merger, consolidation or share exchange of or by the Company
with any other corporation, other than a merger, consolidation or share exchange
which would result in the Voting Securities of the Company outstanding
immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into voting securities of the surviving
entity) at least 60% of the combined voting power of the voting securities of
the Company or such surviving entity outstanding immediately after such merger,
consolidation or share exchange or the shareholders of the Company approve a
plan of complete liquidation of the Company or any agreement for the sale or
disposition by the Company or all or substantially all of the Company's assets.
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<PAGE>
EXHIBIT 99.13
FOURTH FINANCIAL CORPORATION
1993 NON-EMPLOYEE DIRECTORS STOCK OPTION PLAN
1. Purpose. The purposes of this 1993 Non-Employee Directors Stock Option
Plan ("the Plan") are: (1) to provide for the fair compensation of non-employee
Directors of the Company and its subsidiaries, (2) to encourage ownership in the
Common Stock of Fourth Financial Corporation (the "Company") by non-employee
Directors of the Company and its subsidiaries, (3) to provide an additional
incentive for them to continue in the service of the Company and its
subsidiaries, so as to promote the success of the Company's business. It is
anticipated that the Plan will assist the Company in attracting and retaining
non-employee Directors who are capable of making valuable contributions to the
long-term success of the Company and its subsidiaries.
2. Stock Subject to the Plan. The maximum number of shares which may be
issued upon exercise of Options granted under the Plan ("Options") shall be
500,000 shares of the Company's Common Stock, par value $5.00 per share ("Common
Stock"). Such shares may be either issued shares of Common Stock which shall
have been reacquired by the Company or authorized but unissued shares of common
Stock as the Board of Directors of the Company (the "Board") shall from time to
time determine. If any outstanding Option under the Plan for any reason expires
or is terminated without having been exercised in full, the shares allocable to
the unexercised portion of such Option shall again become available for option
pursuant to the Plan.
3. Participation in the Plan. All non-employee Directors of the Company and
its subsidiaries ("Non-Employee Directors") are eligible for, and shall
automatically participate in, the Plan. A Director of the Company who is an
employee of the Company, or of a subsidiary thereof, shall not be eligible to
receive an Option under the Plan nor shall advisory directors be eligible to
participate in the Plan. A Non-Employee Director who shall have been granted an
Option under the Plan may be granted one or more additional Options if such
Director continues to be eligible to receive Options. The term "subsidiary" as
used in this Plan means a bank or other corporation more than 50% of the voting
stock of which shall at the time be owned directly or indirectly by the Company.
4. Annual Grant of Options and Option Prices.
(a) Each year on the first Monday following the Company's Annual
Meeting of Stockholders, every Non-Employee Director of the Company who is
eligible to receive options under the Plan shall automatically be granted
an option to purchase 2,000 shares of the Company's Common Stock and each
Non-Employee Director of a subsidiary who is eligible to receive options
under the Plan shall automatically be granted an option to purchase 1,000
shares of the Company's Common Stock.
<PAGE>
(b) The purchase price of the Common Stock covered by each Option
shall be the higher of (i) the mean between the reported bid and asked
prices of the Common Stock on the date the Option is granted as reported on
the NASDAQ National Market quotation system or (ii) the price of the last
sale of Common Stock on such date as so reported.
(c) If, on what would otherwise be a day on which Options would be
granted, the General Counsel of the Company, in his or her sole discretion,
determines that the Company is in possession of material, undisclosed
information about the Company which would prohibit the Company from issuing
securities without naming a disclosure thereof, then the annual grant of
Options shall be deferred until the second day after public dissemination
of such information, and the price and option period shall be determined by
reference to such later date.
(d) If Common Stock is not publicly traded on any date a grant would
otherwise be awarded, then the grant shall be made the next day thereafter
on which Common Stock is so traded.
5. Term of Options. Except as is otherwise provided in Section 8 hereof, an
option shall expire at 5:00 P.M., Central time on the date which is ten years
after the date such Option is granted.
6. Term of Options. An Option may be exercised in accordance with its terms
at any time or from time to time after the granting thereof and the approval of
this Plan by the stockholders of the Company. The purchase price of the shares
purchased upon exercise of an Option shall be paid in full in cash at the time
of the exercise. The Company shall have the right to require, prior to the
issuance or delivery of any stock certificates, payment by an optionee of any
taxes or other moneys required by law with respect to the issuance or delivery
of shares of Common Stock. The holder of an option shall not have any of the
rights of a stockholder with respect to the shares covered by his or her Option
until and except to the extent that the Option shall have been duly exercised.
7. Nontransferability of Options. An Option shall not be transferable
otherwise that by will or the laws of descent and distribution, and an Option
may be exercised during the lifetime of the optionee only by the optionee. No
Option or interest therein may be transferred, assigned, pledged, or
hypothecated, by an optionee during his or her lifetime, by operation of law or
otherwise, or be made subject to execution, attachment, or similar process.
2
<PAGE>
8. Termination of Service. All rights of a Non-Employee Director in an
Option, to the extent it has not been exercised, shall terminate three months
after the date that such Non-Employee Director ceases to be a Non-Employee
Director, except in the case of the Non-Employee Director's termination of
service on account of death or disability. In the case of termination by reason
of disability, such rights shall terminate twelve months from the date of
termination of service. In the event of the death of the optionee, the
unexercised portion of such option may be exercised at any time within twelve
months. In no event may any Option be exercised after the expiration of the
terms of the Option as set forth in Paragraph 5 of this Plan.
9. Adjustments Upon Changes in Capitalization. Notwithstanding any other
provisions of this Plan, in the event of any change in the outstanding Common
Stock of the Company by reason of a stock dividend, stock split, merger,
consolidation, splitup, combination or exchange of shares, reorganization,
liquidation, or the like, the aggregate number and class of shares of Common
Stock available under the Plan and the number and class of shares subject to
each outstanding option and the option prices shall be appropriately adjusted by
the Board, whose determination shall be conclusive.
10. Termination and Amendment of the Plan. Unless the Plan shall be
previously terminated as hereinafter provided, no Option shall be granted under
the Plan after ten years from the date the Plan is adopted by the Board of
Directors. The Board of Directors may at any time prior to that date suspend or
terminate the Plan and shall have the right to alter or amend the Plan or any
part thereof at any time and from time to time as it may deem proper and in the
best interest of the Company. Any termination, suspension, alteration, or
amendment of the Plan effected pursuant to this Paragraph 10 may be made by the
Board of Directors without further action on the part of the stockholders of the
Company; provided, that no such termination, suspension, alteration, or
amendment shall (a) impair, without the consent of the Option holder, any Option
theretofore granted to him under the Plan or deprive him of any Common Stock
which he may have acquired under the Plan, or (b) unless approved by the
stockholders of the company, (i) increase the total number of shares of Common
Stock which may be purchased under the Plan except as provided in Paragraph 9
hereof, (ii) extend the time during which Options may be granted under the Plan,
(iii) change the class of Directors eligible to receive Options under the Plan,
or (iv) change the manner of determining the Option price except to change the
manner of determining the fair market value of the Common Stock. An amendment
revising the price, date of exercise, option period, or number of shares which
are the subject of an Option shall not be made more frequently than every six
months unless necessary to comply with the Internal Revenue Code of 1986, as
amended, or with
3
<PAGE>
the Employer Retirement Income Security Act of 1974, as amended. Any Option
outstanding at the time of termination of the Plan shall remain in effect
subject to the provisions of this Plan until the Option shall have been
exercised or shall have expired.
11. Administration of Plan. The Plan shall be administered under the
general direction and control of the Board of Directors which may from time to
time issue orders or adopt resolutions not inconsistent with the provisions of
the Plan, to interpret the provisions and supervise the administration of the
Plan.
12. Effective Date of the Plan. The Plan shall be effective from the date
of its approval by the stockholders of the Company.
13. Government and Other Regulations. The obligations of the Company to
sell and deliver shares of Common Stock shall be subject to all applicable laws,
rules, and regulations, and such approvals by any governmental agencies as may
be required, including, without limitation, the effectiveness of a registration
statement under the Securities Act of 1933, as deemed necessary or appropriate
by counsel for the Company.
14. Nonexclusivity of the Plan. Neither the adoption of the Plan by the
Board of Directors nor the submission of the Plan for approval of the
stockholders of the Company shall be construed as creating any limitations on
the power of the Board of Directors to adopt such other incentive arrangements
as it may deem desirable, including without limitation, the granting of stock
options otherwise than under the Plan.
15. Compliance with SEC Regulations. It is the Company's intent that this
Plan comply in all respects with Rule 16b-3 of the Securities Exchange Act of
1934, as amended, and any successor thereto. If any provision of this Plan is
found not to be in compliance with such Rule, the provisions thereof shall be
null and void. All grants and exercises of Options under this Plan shall be made
and executed in compliance with the provisions of Section 16 of the Securities
Exchange Act of 1934, as amended, and any regulations promulgated thereunder.
16. No Right to Continued Service. Nothing in the Plan or in any agreement
entered into pursuant to the Plan shall confer upon any Non-Employee Director
any right to continued service as director of the Company or any subsidiary or
affect any right of the Company or a subsidiary, acting through their Boards of
Directors or stockholders to remove any Non-Employee Director.
17. Kansas Law Governs. To the extent not otherwise preempted, the laws of
Kansas shall govern the resolution of all questions and disputes which arise
with respect to this Plan.
4
<PAGE>
EXHIBIT 99.14
WORTHEN BANKING CORPORATION AMENDED AND SUBSTITUTED
STOCK OPTION PLAN
I. PURPOSE
The Worthen Banking Corporation Amended and Substituted Stock Option Plan (
the "Plan"), which was originally adopted by the shareholders of Worthen Banking
Corporation (the "Company") on October 23, 1984, affords certain key employees
of the Company, or its subsidiaries, an opportunity to acquire a proprietary
interest in the Company, thereby creating in such key employees an increased
interest in and greater concern for the welfare of the Company. The Plan
provides a means whereby key employees of the Company or its subsidiaries may be
given the opportunity to purchase shares of the Company's Common Stock (the
"Shares") pursuant to options (the "Options") which are either (i) intended to
qualify as "Incentive Stock Options" ("Incentive Options") under Section 422 of
the Internal Revenue Code of 1986, as amended (the "Code"), or (ii)
"Nonqualified Stock Options" ("Nonqualified Options") that do not meet the
requirements for Incentive Options. In addition, the Plan provides that certain
key employees may be awarded Stock Appreciation Rights ("Rights") payable in
Shares or cash, or any combination thereof.
II. ELIGIBLE EMPLOYEES
The Plan provides that key salaried employees of the Company or its subsidiaries
("Eligible Employees") are eligible to participate in the Plan. Key employees
are those employees, including officers, whether or not they are directors, who
render services which tend to contribute or which may reasonably be anticipated
to materially contribute to the continued growth and success of the Company.
Directors who are not employed as regular salaried officers or employees of the
Company or any subsidiary may not participate in the Plan. Except as may apply
to all Plan participants, or specifically to Incentive Options, the Plan does
not provide for a maximum or minimum number of Options or Rights which may be
granted to any executive officer, any other officer or any employee. The amount
of options or Rights granted to any such person is determined by the Worthen
Human Resources and Compensation Committee (the "Committee"). In determining the
key employees to whom Options or Rights shall be granted, the Committee
considers, among other things, the length of service, the amount of earnings and
the responsibilities and duties of such employees.
III. OPTIONS
The Plan provides that the total number of Shares which may either be purchased
pursuant to the exercise of Options or acquired pursuant to the exercise of
Rights and the number of shares outstanding pursuant to the exercise of Options
or Rights shall not exceed, in the aggregate, 750,000 Shares, As of March 1,
1992 approximately 184,448 Shares were available for grant and future
<PAGE>
issuance under the Plan. Except for certain extraordinary corporate transactions
and stock splits, the maximum number of Shares to be offered pursuant to the
Plan cannot be changed without the consent of the shareholders of the Company.
Under the Plan, there are two types of Options that may be granted to
participants, Incentive Options and Nonqualified Options.
A. Incentive Options: Under the Internal Revenue Code, employers are
allowed to grant options with special tax treatments to their
employees as long as certain limitations are followed. The special
options are called Incentive Stock Options with the primary attribute
of such options being that the optionee is not subject to ordinary
income tax upon the grant or exercise of the option. (See discussion
of "Tax Treatment" below.) The primary limitation for qualifications
as Incentive options is that the fair market value of Shares with
respect to which Incentive Options are exercisable by an optionee
during any calendar year may not exceed $100, 000 at the date of
grant.
B. Nonqualified Options: In addition, the Company may grant Nonqualified
Option to employees which are not subject to the limitations of the
Code. These Nonqualified options, however, do not qualify for the
special tax treatment afforded Incentive Options. (See discussion of
"Tax Treatment" below.)
IV. EXERCISE OF OPTIONS
A. Time Limit: There are restrictions with respect to the time limit
within which an Option must be exercised. These restrictions include
that the individual's employment must not terminate, that the option
must be vested, and that the life span of the Option not have lapsed.
Each stock option grant document states the date after which the
Option may be exercised (the "vesting date") and the date after which
the option may not be exercised ( the "termination date"). The
Committee in its discretion establishes vesting dates and termination
dates, except that the latest date for exercise of any Incentive
Option shall not exceed 10 years.
B. Procedure: An Option may be exercised, subject to the provisions
relating to its termination and limitations on its exercise, by
sending a written notice to the Plan Administrator of the optionee's
intent to exercise options which specifies the number of shares to be
exercised and the mode of payment.
C. Price/Payment: The price of shares covered by Options cannot be less
than the fair market value of the Company's Common Stock on the date
the Option is granted.
<PAGE>
An optionee currently has three payment alternatives with respect to
1992 and post-1992 Options. The first two (2) alternatives may be
applied to the exercise of pre-1992 options as well. Each of these
payment alternatives requires prior approval by the Committee.
1. The optionee may pay cash equal to the Option price multiplied by
the number of shares to be exercised (the "exercise price").
2. The optionee may relinquish shares of the Company's Common Stock
already owned which have a fair market value equal to the
"exercise price."
3. Cashless Exercise. This feature, only allowable for 1992 and
subsequent Option grants, works as follows: The optionee
exercises his/her option, but permits the Company to retain from
the option being exercised a number of shares which have a fair
market value on the date of exercise equal to the "exercise
price." (Please refer to the attached example of how this feature
can be utilized.)
V. FEDERAL INCOME TAX CONSEQUENCES
A. Incentive Options: Under the Code, an optionee is not subject to
ordinary income tax upon the grant or exercise of an Incentive Option.
The taxable event for such Options does not occur until the recipient
sells the stock acquired subsequent to exercise of the Option.
The character of the gain will be "capital" if the employee does
not dispose of the shares within either two tears of the date of the
Option's grant or one year from the receipt of the shares. However,
the amount by which the fair market value of a share at the time of
exercise exceeds the exercise price of an Incentive Option will be a
tax preference item for purposes of the alternative minimum tax.
B. Nonqualified Options and Rights: An employee who receives a
Nonqualified Option or a Right will not recognize any taxable income
upon the grant of such Option or Right. In general, upon exercise of a
Nonqualified Option or Right, an employee will be treated as having
received ordinary income in an amount equal to the excess of the fair
market value of the Shares at the time of exercise price.
The tax discussion set forth above is included herein for general
information only. All optionees are advised to consult their own tax
advisors.
<PAGE>
VI. COST
When the Company grants an Option or a Right under the plan to one of its
employees, it costs the employee nothing to receive it, and there is no income,
for tax purposes, to the employee. See "Tax Treatment" below.
VII. TRANSFERABILITY
The Options and Rights granted under the Plan are not transferable by the
optionee except at death.
VIII. TERMINATION OF EMPLOYMENT
The Plan provides the each individual stock option grant may contain provisions
regarding termination of employment as determined by the discretion of the
Committee.
A. Termination for Any Reason (other than death or disability): The form
of stock option grant currently utilized by the Company provided the
upon termination of employment with the Company, or its subsidiaries,
for any reason, other than death or disability, any outstanding
Option, to the extent not previously vested, shall terminate and
become immediately null and void. To the extent such Option is vested,
the holder thereof shall have a period of three additional months from
the date of termination of employment to exercise the Option.
Following the expiration of this three-month period the Option shall
terminate. This Plan feature applies only to the 1992 Grants.
B. Death or Disability: Upon termination as a result of an optionee's
death or disability, all outstanding options shall continue normal
vesting, shall remain exercisable for a period of one year following
the occurrence of such death or disability. Following the expiration
of the one year period, each Option whether or not vested shall
terminate and become null and void.
C. Pre-1992 Grants: For grants occurring prior to January 1992, the form
of stock option grant provides that any portion of an Option not
exercised prior to the termination of employment (for any reason
including death of disability) shall become null and void whether or
not such Option if vested.
In addition to the foregoing, the Committee as a condition to the grant of an
Option or Right, may in its discretion, require that each employee participant
agree promptly following the grant of such Option or right, that in the event of
termination of employment of such employee, other than as a result of dismissal
without cause, such employee will not, for a period fixed at the
<PAGE>
time of grant of the Option or Right, enter into any other employment, or
participate directly or indirectly in any other business or enterprise, which is
competitive with the business of the Company or any subsidiary or parent
corporation of the Company or enter into any employment in which such employee
will be called upon to utilize special knowledge and information obtained
through employment with the Company or any subsidiary or parent corporation
thereof.
IX. STOCK APPRECIATION RIGHTS.
A Right entitles the holders upon exercise of such Right to receive from the
Company, Shares, an amount of cash, or any combination of Shares and cash, upon
the terms and conditions set forth in the Plan. Rights may be granted (I) alone,
(ii) simultaneously with the grant of an Option (either incentive or
nonqualified) and in conjunction with or as an alternative to such Option, or
(iii) subsequent to the grant of a Non qualified Option and in conjunction with
or in the alternative to such Option. A holder may exercise a Right in the same
manner provided for exercising Options (see Section IV above).
Upon exercise of a Right, the holder is entitled to receive a number of shares,
an amount of cash, or any combination of the two as specified in the exercise
request (but subject to the approval of the Committee in its sole discretion as
to any cash payment) having an aggregate value equal to the product of (i) the
excess of the fair market value of one share on the day the request by the
holder is made over the exercise price per share of the Shares specified in such
Right or its related Option, multiplied by (ii) the number of shares for which
such Right is to exercised; provided however that the Committee, in its
discretion, may impose a maximum limitation on the amount of cash, the fair
market value of Shares, or a combination thereof, which may be received by a
holder upon the exercise of a Right.
Stock Appreciation Rights have other special rules relating to the exercise that
are described more thoroughly in the terms of the individual documents relating
to such Rights.
X. ADJUSTMENTS TO EXERCISE PRICE: MERGERS AND REORGANIZATIONS
The exercise price of any Option or Right established by the Committee may not
be modified except as necessary to make adjustments for any change in the Shares
subject to any Option or Right granted under the Plan through merger,
consolidation, reorganization, recapitalization, reincorporation, stock split,
stock dividend or other change in he corporate structure of the Company.
If the Board of Directors of the Company approves (I) a consolidation or merger
of the Company with another corporation and a change of control is effected in
connection therewith or )ii) a sale of all or substantially all of the property
or assets of the
<PAGE>
Company, or if more than 51% of the total combined voting power of all classes
of stock of the company normally entitled to vote the election of directors is
acquired by another person, firm or group, then all outstanding Options and
Rights shall become immediately exercisable. Additionally, the Committee in its
discretion, and subject to certain limitations, may determine that upon the
occurrence of one of the above transactions all outstanding Options and Rights
shall be canceled and the holders thereof shall receive, in cash or in one or
more kinds of property payable in such transaction, an amount equal to the
excess of the fair market value of the shares immediately prior to the
occurrence of the transaction over the exercise price of the Option or Right.
XI. WITHHOLDING TAXES
The Company is required to withhold federal and state income taxes at the time
that an Option or Right is exercised if its a taxable event to the employee.
A. ISO's: If the employee tenders either cash or previously owned shares
of the Company's Common Stock to exercise his/her Option, no
withholding is requires because, as previously stated, there is not a
taxable event when an ISO is exercised. IF the employee utilizes the
cashless exercise payment alternative, a taxable event will occur and
withholding is required. It may seem off that a taxable event occurs
at the date of cashless exercise, but when the employee tenders the
amount owed to the Company through the withholding of share of stock
just acquired, he/she is in effect selling those shares to the
Company, which is a taxable event.
B. Nonqualified Options: The Company is required to withhold federal and
state income taxes on the exercise date of the Nonqualified Options
because the exercise of the Options is the taxable event.
C. Stock Appreciation Rights: The Company is required to withhold for
Rights to the extend that is taxable to the recipient. Compliance with
tax withholding requirements may be accomplished through payroll
deduction, or via check. The federal tax withholding is a minimum of
20% of the next taxable gain.
XII. AMENDMENT, SUSPENSION OR TERMINATION OF THE PLAN
The Board may at any time suspend or terminate the Plan and may, subject to
applicable law, amend the Plan (as well as outstanding Options) from time to
time as it deems advisable. Except with respect to changes resulting form
mergers or other extraordinary corporate transactions, for from stock splits or
dividends, the Board cannot amend the Plan to (I) increase the maximum number of
Shares subject thereto; (ii) reduce the exercise price of any
<PAGE>
Option or Right below the fair market value of the Shares on the date of grant;
(iii) change to the class of employees eligible to receive Options or Rights
under the Plan; or (iv) materially increase the benefits accruing to
participants under the Plan without the prior consent of the shareholder of the
Company then sufficient to approve the Plan to the extend necessary to qualify
any or all Options under the Plan for favorable federal income tax treatment
under Section 422 of the Internal Revenue Code as amended.
XIII. ADMINISTRATION OF THE PLAN
The Plan is administered by the Committee, consisting of not less than three
directors to be appointed by the Board of Directors.
The members of the
Committee receive no compensation from the Company, except for general
compensation paid to all members of the Board of Directors. The Company will
reimburse the Committee for all necessary and proper expenses incurred in
carrying out its duties.
XIV. PAYMENT OF PLAN EXPENSES: USE OF PROCEEDS
The Company will pay the expenses incident to the work of the Committee and to
the administration of the Plan and all expenses related thereto. Proceeds
realized form the exercise of Options will constitute general funds of the
Company.
There are no charges or deductions which maybe made against employees who
receive Options or Rights under the Plan at any time. There are no liens which
may be created on any Options, Rights or Shares issued upon the exercise of
Options and Rights pursuant to the Plan or pursuant to the Stock Option
Agreement.
<PAGE>
EXHIBIT 99.15
WORTHEN STOCK OPTION PLAN
ARTICLE PAGE
- ------- ----
I. Purposes ........................................................... 1
II. Shares Subject to the Plan.......................................... 2
III. Administration ..................................................... 3
IV. Eligibility ........................................................ 6
V. Maximum Allotment of Incentive Options.............................. 7
VI. Option Price and Payment............................................ 7
VII. Fair Market Value................................................... 9
VIII. Use of Proceeds..................................................... 10
IX. Term of Options and Limitations on the Right of Exercise............ 10
X. Exercise of Options................................................. 11
XI. Stock Appreciation Rights........................................... 12
XII. Nontransferability of Options and Stock Appreciation Rights......... 15
XIII. Termination of Employment........................................... 15
XIV. Adjustment of Shares; Effect of Certain Transactions................ 17
XV. Change of Control................................................... 17
XVI. Loans or Guarantee of Loans......................................... 18
XVII. Reload Options...................................................... 19
XVIII. Right to Terminate Employment....................................... 19
XIX. Purchase for Investment............................................. 19
XX. Issuance of Certificates; Legends; Payment of Expenses.............. 20
XXI. Withholding Taxes................................................... 22
-i-
<PAGE>
ARTICLE PAGE
- ------- ----
XXII. Listing of Shares and Related Matters......... 22
XXIII. Amendment of the Plan......................... 22
XXIV. Termination or Suspension of the Plan......... 23
XXV. Governing Law................................. 24
XXVI. Effective Date................................ 24
<PAGE>
WORTHEN STOCK OPTION PLAN
I. PURPOSE
----------
Worthen Banking Corporation ("Worthen"), desires to afford certain of its
key employees and key employees of any subsidiary corporation or parent
corporation now existing or hereafter formed or acquired who are responsible for
the continued growth of Worthen an opportunity to acquire a proprietary interest
in Worthen, and thus to create in such key employees an increased interest in
and a greater concern for the welfare of Worthen.
The stock options ("Options") and stock appreciation rights ("Rights")
offered pursuant to this Worthen 1993 Stock Option Plan (the "Plan") are a
matter of separate inducement and are not in lieu of any salary or other
compensation for the services of any key employee.
Worthen, by means of the Plan, seeks to retain the services of persons now
holding key positions and to secure the services of persons capable of filling
such positions.
The Options granted under the Plan are intended to be either incentive
stock options ("Incentive Options") within the meaning of Section 422 of the
Internal Revenue Code of 1986, as it may from time to time be amended (the
"Code"), or options that do not meet the requirements for Incentive Options
("Nonqualified Options"), but Worthen makes no warranty as to the qualification
of any Option as an Incentive Option.
<PAGE>
II. SHARES SUBJECT TO THE PLAN
-------------------------------
The total number of common shares of Worthen which either may be purchased
pursuant to the exercise of Options granted under the Plan or acquired pursuant
to the exercise of Rights granted under the Plan shall not exceed, in the
aggregate, five hundred thousand (500,000) of the presently authorized common
shares, $1.00 par value per share, of Worthen (the "Shares"). Accordingly, the
sum of (a) the number of Shares subject at any one time to Options or Rights
granted under the Plan and (b) the number of Shares then outstanding pursuant to
exercises of Options or Rights granted under the Plan, shall not exceed five
hundred thousand (500,00) Shares. The term "Shares" shall include any
securities, cash or other property into which Shares may be changed through
merger, consolidation, reorganization, recapitalization, stock dividend, stock
split, split-up, split-off, spin-off, combination of Shares, exchange of Shares,
issuances of rights to subscribe or change in capital structure. Shares which
are subject to Rights and related Options shall be counted only once in
determining whether the maximum number of Shares which may be purchased or
acquired under the Plan has been exceeded.
Shares which may be acquired under the Plan may be either authorized but
unissued Shares, Shares of issued stock held in Worthen's treasury, or both, at
the discretion of Worthen. If and to the extent that Options granted under the
Plan expire or terminate without having been exercised, new Options or Rights
may be granted with respect to the shares covered by such expired or terminated
Options or Rights, provided that the grant and the terms
<PAGE>
of such new Options or Rights shall in all respects comply with the
provisions of the Plan.
Except as provided in Article XXII, Worthen may, from time to time during
the period beginning April 27, 1993 (the "Effective Date") and ending April 26,
2003 (the "Termination Date"), grant to certain key employees of Worthen, or of
any subsidiary corporation or parent corporation of Worthen now existing or
hereafter formed or acquired, Options, Rights or both Options and Rights, under
the terms hereinafter set forth.
Provisions of the Plan which pertain to Options or Rights granted to an
employee shall apply to Options, Rights or a combination thereof.
As used in the Plan, the terms "subsidiary corporation" and "parent
corporation" shall mean, respectively, a corporation coming within the
definition of such terms contained in Sections 424(f) and 424(e) of the Code.
III. ADMINISTRATION
---------------------
The Board of Directors of Worthen (the "Board of Directors") hereby
designates the Worthen Human Resources and Compensation Committee (the
"Committee") as the Committee of the Board of Directors authorized to administer
the Plan. The Committee shall consist of no fewer than three members of the
Board of Directors, each of whom shall be a "disinterested person" within the
meaning of Rule 16b-3 (or any successor rule or regulations) promulgated under
the Securities Exchange Act of 1934, as amended (the "Exchange Act"). A majority
of the members of the Committee shall constitute a quorum, and the act of a
majority of the members of
<PAGE>
the Committee shall be the act of the Committee. Any member of the Committee may
be removed at any time either with or without cause by resolution adopted by the
Board of Directors, and any vacancy on the Committee may at any time be filled
by resolution adopted by the Board of Directors.
Subject to the express provisions of the Plan, the Committee shall have
authority, in its discretion, to determine the employees to whom Options or
Rights shall be granted, the time when such Options or Rights shall be granted
to employees, the number of Shares which shall be subject to each Option or
Right, the purchase price of each share which shall be subject to each Option or
Right, the period(s) during which such options or Rights shall be exercisable
(whether in whole or in part), and such other terms and provisions thereof;
including, but not limited to, any provisions relating to the effect upon
exercisability of the death or termination of employment of the employee, the
extension of any loan to the employee to finance the exercise of the Option
under Article XVI, any change in the vesting of options on a change of control
under Article XV and any provision for an automatic regrant of options under
Article XVII. In determining the employees to whom Options or Rights shall be
granted, the Committee shall consider the length of service, the amount of
earnings and the responsibilities and duties of such employees.
Subject to the express provisions of the Plan, the Committee also shall
have authority to construe the Plan and Options and Rights granted thereunder,
to amend the Plan and Options and Rights granted thereunder, to prescribe, amend
and rescind rules and
<PAGE>
regulations relating to the Plan, to determine the terms and provisions of the
respective Options and Rights (which need not be identical) and to make all
other determinations necessary or advisable for administering the Plan. The
Committee also shall have the authority to require, in its discretion, that the
employee agree, promptly after the grant of an Option or Rights, (i) not to sell
or otherwise dispose of Shares acquired pursuant to the exercise of an Option or
Right granted under the Plan for a period of six (6) months following the date
of acquisition; and (ii) that in the event of termination or employment of such
employee, such employee will not, for a period to be fixed at the time of the
grant of the Option or Right, enter into any other employment, or participate
directly or indirectly in any other business or enterprise, which is competitive
with the business of Worthen or any subsidiary corporation or parent corporation
of Worthen, or enter into any employment in which such employee will be called
upon to utilize special knowledge and information obtained through employment
with Worthen or any subsidiary corporation or parent corporation thereof. The
determination of the Committee on matters referred to in this Article III shall
be conclusive.
Whether or not a Committee is separately designated by the Board of
Directors, any or all powers and functions of the Committee may at any time and
from time to time be exercised by the Board of Directors; provided, however,
that such powers and functions of the Committee may be exercised by the Board of
Directors only if, at the time of such exercise, each of the members of the
Board of Directors are "disinterested persons"
<PAGE>
within the meaning of Rule 16b-3 (or any successor rule or regulation)
promulgated under the Exchange Act.
The Committee may employ such legal counsel, consultants and agents as it
may deem desirable for the administration of the Plan and may rely upon any
opinion received from any such counsel or consultant and any computation
received from any such consultant or agent. Expenses incurred by the Board of
Directors or the Committee in the engagement of such counsel, consultant or
agent shall be paid by Worthen. No member or former member of the Committee or
of the Board of Directors shall be liable for any action or determination made
in good faith with respect to the Plan or any Option or Right granted hereunder.
IV. ELIGIBILITY
-------------------
Options and Rights may be granted only to salaried key employees of Worthen
or of any subsidiary corporation or parent corporation of Worthen, except
members of the Committee and except as hereinafter provided, and shall not be
granted to any officer or director who is not also a salaried key employee. Any
person who shall have retired from the active employment by Worthen, although
such person shall have entered into a consulting contract with Worthen, shall
not be eligible to receive an Option or a Right.
An Incentive Option shall not be granted to any person who, at the time
such Option is granted, owns shares of Worthen or any subsidiary corporation or
parent corporation of Worthen who possesses more than ten percent (10%) of the
total combined voting power of all classes of shares of Worthen or of any
subsidiary corporation or parent corporation of Worthen, unless (i) the
<PAGE>
exercise price per share is not less than one hundred and ten percent (110%) of
the fair market value per share on the date such Option is granted and (ii) such
option by its terms is not exercisable after the expiration of five (5) years
from the date such Option is granted. In determining share ownership of an
employee, the rules of Section 424(d) of the Code shall be applied, and the
Committee may rely on representations of fact made to it by the employee and
believed by it to be true.
V. MAXIMUM ALLOTMENT OF INCENTIVE OPTIONS
-------------------------------------------
To the extent that the aggregate fair market value of shares as to which
Incentive Options (determined without regard to this Article V) are exercisable
for the first time by an employee during any calendar year exceeds $100,00, such
options shall be treated as Nonqualified Options.
VI. OPTIONS PRICE AND PAYMENT
-------------------------------
The price for each Share purchasable under any Option granted hereunder shall
not be less than (i) one hundred percent (100%) of the fair market value per
Share with respect to Incentive Options, and (ii) one hundred percent (100%)of
the fair market value per Share with respect to Nonqualified Options, at the
date any such Option is granted; provided, however, that, in the case of an
incentive Option granted to a person who, at the time such Option is granted,
owns shares of Worthen who possesses more than ten percent (10%) of the total
combined voting power of all classes of shares of Worthen, the purchase price
for each share shall be such amount as the Committee, in its best judgment,
shall determine to
<PAGE>
be not less than one hundred and ten percent (110%) of the fair market value per
Share at the date the Option is granted.
Worthen shall cause such Share certificates to be issued only when it shall
have received the full purchase price for the Shares in cash; provided, however,
that in lieu of cash, the holder of an Option may, if the terms of such Option
so provide in the discretion of the Committee and to the extent permitted by
applicable law, exercise his Option, in whole or in part (i) by delivering to
Worthen common shares of Worthen (in proper form for transfer and accompanied by
all requisite stock transfer tax stamps or cash in lieu thereof) owned by such
holder having a fair market value equal to the cash exercise price applicable to
that portion of the Option being exercised by the delivery of such shares, or
(ii) permitting Worthen to retain from the Option being exercised a number of
shares that have a fair market value equal to the total exercise price for all
the shares of the Option being exercised; the fair market value of the shares so
delivered or retained to be determined on the exercise date in the same manner
as provided for the determination of the fair market value on the date of grant,
or as may be required in order to comply with or to conform to the requirements
of any applicable laws or regulations. For this provision, the exercise date is
the date on which shares are received pursuant to the Option and payment is made
therefor.
By way of example of the exercise of options under clause (ii) above:
Assume Employee has an option to purchase 1000 shares at $10.00 per share (the
"Option"). Assume that Employee gives proper notice and elects to exercise the
Option on January 5, 1995, at
<PAGE>
which date the fair market value of the shares is $20.00 per share. Assuming
that Employee's grant permits Employee to use clause (ii) for the payment of
shares, and that the Stock Option Committee, in its discretion, approves of that
method, then, on January 5, 1996, Worthen will retain 500 shares of the Option
being exercised (i.e., shares having an aggregate fair market value of $10,000,
which is the total exercise price of the 1,000 shares of the Option being
exercised) and Employee will receive 500 shares. Employee will have no further
shares available under the Option.
VII. FAIR MARKET VALUE
-----------------------
For the purpose of this Plan, fair market value shall be defined as
follows:
If the shares of Worthen are listed on a national securities exchange in the
United States, the fair market value per Share shall be deemed to be the average
of the high and low sale prices per share of such Shares of Worthen on such
national securities exchange in the United States on such date, but if the
Shares of Worthen are not traded on such date or such national securities
exchange is not open for business on such date, the fair market value per Share
shall be the average of such high and low sale prices on the last preceding date
on which such exchange shall have been open for business and the Shares of
Worthen were traded. If the Shares of Worthen are listed on more than one
national securities exchange in the United States on the date any such Option is
granted, the Committee shall determine which national securities exchange shall
be used for the purpose of determining the fair market value per Share.
<PAGE>
If at the date any Option is granted a public market exists for the Shares of
Worthen but such Shares are not listed on a national securities exchange in the
United States, the fair market value per Share shall be deemed to be the mean
between the closing bid and asked quotations in the over-the-counter market for
such Shares of Worthen in the United States on the date such Option is granted.
If there are not bid and asked quotations for such Shares on such date, the fair
market value per Share shall be deemed to be the mean between the closing bid
and asked quotations in the over-the-counter market in the United States for
such Shares of Worthen on the closest date preceding the date such Option is
granted for which such quotations are available.
VIII. USE OF PROCEEDS
Any cash proceeds of the sale of Shares subject to the Options granted
hereunder are to be added to the general funds of Worthen and used for its
general corporate purposes as the Board of Directors shall determine. Shares
received or retained by Worthen as payment, in whole or in part, for the
exercise of any Option may, in the discretion of the Board of Directors, be
retained as treasury shares or returned and cancelled.
IX. TERM OF OPTIONS AND LIMITATIONS ON THE RIGHT OF EXERCISE
Unless the Committee shall determine otherwise (in which event, the
instrument evidencing the Option granted hereunder shall so specify), and
subject to the provisions of Article IV, any Incentive Option granted hereunder
shall be exercisable during a period of not more than ten (10) years from the
date of grant of such
-10-
<PAGE>
Option at such times and in such amounts as the Committee shall determine at
such date of grant.
Any Nonqualified Option granted hereunder shall be exercisable at such times,
in such amounts and during such period or periods as the Committee, with the
Board of Directors approval, shall determine at the date of the grant of such
Option.
The Committee shall have the right to accelerate, in whole or in part, form
time to time, conditionally or unconditionally, rights to exercise any Option
granted hereunder.
To the extent that an Option is not exercised within the period of
exercisability specified therein, it shall expire as to the then unexercised
part. If any Option granted hereunder shall terminate prior to the Termination
Date, the Committee shall have the right to use the Shares as to which such
?Option shall not have been exercised to grant one or more additional Options to
any eligible employees, but any such grant of an additional Option shall be made
prior to the close of business on the Termination Date.
In no event shall an Option granted hereunder be exercised for a fraction of
a share.
X. EXERCISE OF OPTIONS
Options granted under the Plan shall be exercised by the optionee as to all
or part of the Shares covered thereby by the giving of written notice of the
exercise thereof to the Corporate Secretary of Worthen at the principal business
office of Worthen, specifying the number of Shares to be purchased and
accompanied by payment of the purchase price.
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<PAGE>
XI. STOCK APPRECIATION RIGHTS
In the discretion of the Committee and subject to the Board of Directors
approval, a Right may be granted (I) alone, (ii) simultaneously with the grant
of an Option (either Incentive or Nonqualified) and in conjunction therewith or
in the alternative thereto or (iii) subsequent to the grant of a Nonqualified
Option and in conjunction therewith or in the alternative thereto.
The exercise price of a Right granted alone shall be determined by the
Committee, but shall not be less than one hundred percent (100%) of the fair
market value of one Share on the date of grant of such Right. A Right granted
simultaneously with or subsequent to the grant of an Option and in conjunction
therewith or in the alternative thereto shall have the same exercise price as
the related Option, shall be transferable only upon the same terms and
conditions as the related Option, and shall be exercisable only to the same
extent as the related Option; provided, however, that a Right, by its terms,
shall be exercisable only when the fair market value of the Shares subject to
the Right and related Option exceeds the exercise price thereof.
Upon exercise of a Right granted simultaneously with or subsequent to an
Option and in the alternative thereto, the number of Shares for which the
related Option shall be exercisable shall be reduced by the number of Shares for
which the Right shall have been exercised. The number of Shares for which a
Right shall be exercisable shall be reduced upon any exercise of the related
Option by the number Shares for which such Option shall have been exercised.
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<PAGE>
Any Right shall be exercisable upon such additional terms and conditions as
may from time to time be prescribed the Committee.
A Right shall entitle the holder to receive from Worthen, upon a written
request filed with the Corporate Secretary of Worthen at its principal offices
(the "Request"), a number of Shares as specified in the Request (with or without
restrictions as to substantial risk of forfeiture and transferability, as
determined by the Committee in its sole discretion), an amount of cash, or any
combination of Shares and cash, as set forth in the Request (but subject to the
approval of the Committee, in its sole discretion, at any time up to and
including the time of payment, as to the making of any cash payment), having an
aggregate value equal to the product of (I) the excess of the fair market value
on the day of such Request of one Share over the exercise price per Share
specified in such Right or its related Option, multiplied by (ii) the number of
Shares for which such Right shall be exercised; provided, however, that the
Committee, in its discretion, may impose a maximum limitation on the amount of
cash, the fair market value of Shares, or a combination thereof, which may be
received by a holder upon exercise of a Right.
Any election by a holder of a Right to receive cash in full or partial
settlement of such Right, any exercise of such Right for cash, maybe made only
by a Request filed with the Corporate Secretary of Worthen during the period
beginning on the third business day following the date of release for
publication by Worthen of quarterly or annual summary statements of earnings and
profits and ending on the twelfth business day following such date.
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<PAGE>
Within sixty (60) days of the receipt by Worthen of a Request to receive cash in
full or partial settlement of a Right or to exercise such Right for cash, the
Committee shall, in its sole discretion, either consent to or disapprove, in
whole or in part, such Request.
If the Committee disapproves in whole or in part any election by a holder to
receive cash in full or partial settlement of a Right or to exercise such Right
for cash, such disapproval shall not affect such holder's right to exercise such
Right at a later date, to the extent that such Right shall be otherwise
exercisable, or to elect the form of payment at a later date, provided that an
election to receive cash upon such later exercise shall be subject to the
approval of the Committee. Additionally, such disapproval shall not affect such
holder's right to exercise any related Option or Options granted to such holder
under the Plan.
A holder of a Right shall not receive cash or Shares of Worthen Banking
Corporation stock in full or partial settlement of such Right, or upon the full
or partial exercise of such Right, if such Right or the related Option shall
have been exercised during the first six (6) months of its respective term;
provided, however, that such prohibition shall not applying the holder of such
Right dies or become disabled (within the meaning of Section 105(d)(4) of the
Code) prior to the expiration of such six-month period, or if such holder is not
a director, officer or a beneficial owner of the more than 10% of any class of
equity security of Worthen as described in Section 16(b) of the Exchange Act.
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<PAGE>
A right shall be deemed exercised on the last day of its term, if not
otherwise exercised by the holder thereof, provided that the fair market value
of the Shares subject to the Right exceeds the exercise price thereof on such
date.
XII. NONTRANSFERABILITY OF OPTIONS
AND STOCK APPRECIATION RIGHTS
Neither an Option nor a Right granted hereunder shall be transferable
otherwise than by will or the laws of descent and distribution, and any Option
or Right granted hereunder shall be exercisable, during the lifetime of the
holder, only by such holder.
XIII. TERMINATION OF EMPLOYMENT
Upon termination of employment of any employee with Worthen and all
subsidiary corporations and parent corporations, any Option or Right previously
granted to the employee, unless otherwise specified by the Committee in the
Option or Right, shall, to the extent not theretofore exercised, terminate and
become null and void.
In no event, however, shall any person be entitled to exercise any
Option or Right after the expiration of the period of exercisability of such
Option or Right as specified therein.
If applicable to an Option or Right granted hereunder, whenever such Option
or Right shall be exercised by the legal representative of a deceased employee
or former employee, or by a person who acquired an Option or Right granted
hereunder by bequest or inheritance or by reason of the death of any employee or
former employee, written notice of such exercise shall be accompanied by
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<PAGE>
a certified copy of letters testamentary or equivalent proof of the right of
such legal representative or other person to exercise such Option or Right.
For the purpose of the Plan, an employment relationship shall be deemed to
exist between an individual and a corporation if, at the time of the
termination, the individual was an "employee" of such corporation for purposes
of Section 422(a) of the Code. If an individual is on leave of absence taken
with the consent of the corporation by which such individual was employed, or is
on active military service, and is determined to be an "employee" for purposes
of the exercise of an Option or Right, such individual shall not be entitled to
exercise such Option or Right during such period and while the employment
relationship is treated as continuing intact unless such individual shall have
obtained the prior written consent of such corporation, which consent shall be
signed by the Chairman of the Board, the President, a Senior Vice-President or
other duly authorized officer of such corporation.
A termination of employment shall not be deemed to occur by reason of (i)
the transfer of an employee from employment by Worthen to employment by a
subsidiary corporation or a parent corporation of Worthen or (ii) the transfer
of an employee from employment by a subsidiary corporation or a parent
corporation of Worthen to employment by Worthen or by another subsidiary
corporation or parent corporation of Worthen.
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<PAGE>
XIV. ADJUSTMENT OF SHARES; EFFECT
OF CERTAIN TRANSACTIONS
Notwithstanding any other provision contained herein, in the event of any
change in the Shares subject to the Plan or to any Option or Right granted under
the Plan (through merger, consolidation, reorganization, recapitalization, stock
dividend, stock split, split-up, split-off, spin-off, combination of shares,
exchange of shares, issuance of rights to subscribe, or change in capital
structure) appropriate adjustments shall be made by the Committee as to the
maximum number of Shares subject to the Plan, the maximum number of Shares for
which Options or Rights may be granted to any one employee and the number of
Shares and price per Share subject to outstanding Options or Rights as shall be
equitable to prevent dilution or enlargement of rights under Options or Rights,
and the determination of the Committee as to these matters shall be conclusive;
provided, however, that (i) any such adjustment with respect to an Incentive
Option and any related Right shall comply with the rules of Section 424(a) of
the Code, and (ii) in no event shall any adjustment be made which would render
any Incentive Option granted hereunder other than an Incentive Option for
purposes of Section 422 of the Code.
XV. CHANGE OF CONTROL
In the discretion of the Committee, the Option or Right may contain a
provision to accelerate the exercisability of any Option or Right on a change of
control as may be defined by the Committee.
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<PAGE>
In addition, the Committee, in its discretion, may determine that, upon the
occurrence of a change of control as defined, each Option or Right outstanding
hereunder shall terminate within a specified number of days after notice to the
holder, and such holder shall receive, with respect to each Share subject to
such Option or Right, an amount equal to the excess of the fair market value of
the Shares immediately prior to the occurrence of such transaction over the
exercise price of such Option or Right; such amount shall be payable in cash, in
one or more of the kinds of property payable in such transaction, or in a
combination thereof, as the Committee in its discretion shall determine. The
provisions contained in the preceding sentence shall be inapplicable to any
Option or Right granted within six (6) months before the occurrence of a
transaction described above if the holder of such Option or Right is a director,
officer, or a beneficial owner of more than 10% of any class of equity security
of Worthen as described in Section 16(a) of the Exchange Act, unless such holder
dies or becomes disabled (within the meaning of Section 105(d)(4) of the Code)
prior to the expiration of such six-month period.
XVI. LOANS OR GUARANTEE OF LOANS
The Committee may authorize the extension of a loan to an employee by
Worthen (or the guarantee by Worthen of a loan obtained by an employee from a
third party) in order to assist an employee to exercise an Option under the
Plan. The terms of any loans or guarantees, including the interest rate, if any,
and terms of repayment, will be subject to the discretion of the Committee.
Loans and guarantees may be granted with or without security, the
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<PAGE>
maximum credit available being the exercise price of the Option sought to be
exercised plus any tax liability incurred upon exercise of the Option.
XVII. RELOAD OPTIONS
The Committee may provide in any Option for the automatic regrant of any
option for all or a portion of the number of shares which were acquired by the
exercise of the Option; provided, however, that no such reload option shall be
effective unless separately ratified by the Committee within ninety (90) days of
the exercise of the Option and no Option shall provide for more than two
regrants of options upon its exercise. Any such regrant shall be in accordance
with the provisions of the Option except the purchase price of the Shares shall
be the fair market value as of the date of ratification by the Committee.
XVIII. RIGHT TO TERMINATE EMPLOYEMENT
The Plan shall not impose any obligation on Worthen or on any subsidiary
corporation or parent corporation thereof to continue the employment of any
holder of an Option or Right; it shall not impose any obligation on the part of
any holder of an Option or Right to remain in the employ of Worthen or of any
subsidiary corporation or parent corporation thereof.
XIX. PURCHASE FOR INVESTMENT
Except as hereafter provided, the holder of an Option or Right granted
hereunder shall, upon any exercise hereof, execute and deliver to Worthen a
written statement, in form satisfactory to Worthen, in which such holder
represents and warrants that such
-19-
<PAGE>
holder is purchasing or acquiring the Shares acquired thereunder for such
holder's own account, for investment only and not with a view to the resale or
distribution of any of such Shares. Any resale or distribution of such Shares
shall be made only pursuant to either (a) a Registration Statement on an
appropriate form under the Securities Act of 1933, as amended (the "Securities
Act"), which Registration Statement shall have become effective and is then
current with regard to the Shares being sold, or (b) a specific exemption from
the registration requirements of the Securities Act, but in claiming such
exemption the holder shall, prior to any offer of sale or sale of such Shares,
obtain a prior favorable written opinion, in form and substance satisfactory to
Worthen, from counsel for or approved by Worthen, as to the application of such
exemption thereto. The foregoing restriction shall not apply to (i) issuances by
Worthen so long as the Shares being issued are registered under the Securities
Act and a prospectus in respect thereof is current or (ii) reofferings of Shares
by affiliates of Worthen (as defined in Rule 405 or any successor rule or
regulation promulgated under the Securities Act) if the Shares being reoffered
are registered under the Securities Act and a prospectus in respect thereof is
current.
XX. ISSUANCE OF CERTIFICATES;
LEGENDS; PAYMENTS OF EXPENSES
Upon any exercise of an Option or Right which may be granted hereunder
and, in the case of an Option, payment of the purchase price, a certificate or
certificates for the Shares as to which the Option or Right has been exercised
shall be issued by Worthen in
-20-
<PAGE>
the name of the person exercising the Option or Right and shall be delivered to
or upon the order of such person or persons, as permitted by state or federal
securities law.
Worthen may place such legend or legends upon the certificates for
Shares issued upon exercise of an Option or Right granted hereunder, and the
Committee may issue such "stop transfer" instructions to its transfer agent in
respect of such Shares, as the Committee, in its discretion, determines to be
necessary or appropriate to (i) prevent a violation of, or to perfect an
exemption from, the registration requirements of the Securities Act, (ii)
implement the provision of any agreement between Worthen and the optionee or
grantee with respect to such Shares, or (iii) permit Worthen to determine the
occurrence of a disqualifying disposition, as described in Section 421(b) of the
Code, of Shares transferred upon exercise of an Incentive Option granted under
the Plan.
Worthen shall pay all issue or transfer taxes with respect to the
issuance of transfer of shares, as well as all fees and expenses necessarily
incurred by Worthen in connection with such issuance or transfer, except fees
and expenses which may be necessitated by the filing or amending of a
Registration Statement under the Securities Act, which fees and expenses shall
be borne by the recipient of the Shares unless such Registration Statement has
been filed by Worthen for its own corporate purposes (and Worthen so states) in
which event the recipient of the Shares shall bear only such fees and expenses
as are attributable solely to the inclusion of such Shares in the Registration
Statement.
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<PAGE>
All Shares issued as provided herein shall be fully paid and
non-assessable to the extent permitted by law.
XXI. WITHHOLDING TAXES
Worthen may require an employee exercising a Right or a Nonqualified
Option granted hereunder to reimburse the corporation which employs such
employee for any taxes required by any government to be withheld or otherwise
deducted and paid by such corporation in respect of the issuance of Shares. In
lieu thereof, the corporation which employs such employee shall have the right
to withhold the amount of such taxes from any other sums due or to become due
from such corporation to the employee upon such terms and conditions as the
Committee shall prescribe.
XII. LISTING OF SHARES AND RELATED MATTERS
If at any time the Board of Directors shall determine in its discretion
that the listing, registration or qualification of the Shares covered by the
Plan upon any national securities exchange or under any state or federal law, or
the consent or approval of any governmental regulatory body, is necessary or
desirable as a condition of, or in connection with, the sale or purchase of
Shares under the Plan, no Shares shall be delivered unless and until such
listing, registration, qualification, consent or approval shall have been
effected or obtained, or otherwise provided for, free of any conditions not
acceptable to the Board of Directors.
XXIII. AMENDMENT OF THE PLAN
The Board of Directors may, from time to time, amend the Plan, provided
that no amendment shall be made, without the approval of
<PAGE>
the stockholders of Worthen, of such approval is necessary to (i) maintain
qualification of the Plan under Rule 16b-3 (or any successor rule or regulation)
of the Securities Exchange Act of 1934, (ii) comply with the provisions of the
Code, or (iii) comply with the rules and negotiations of any applicable stock
exchange or self-regulatory organization. The Committee shall be authorized to
amend the Plan and the Options granted thereunder to permit the Options granted
thereunder to qualify as incentive stock options under Section 422 of the Code
and the Treasury regulations promulgated thereunder and, to the extent permitted
under applicable laws, rules, and regulations, to include the cashless exercise
provision of Article VI. The rights and obligations under any Option or Right
granted before amendment of the Plan or any unexercised portion of such Option
or Right shall not be adversely affected by amendment of the Plan or the Option
or Right without the consent of the holder of the Option or Right.
XXIV. TERMINATION OR SUSPENSION OF THE PLAN
The Board of Directors may at any time suspend or terminate the Plan.
The Plan, unless sooner terminated under Article XXII or by action of the Board
of Directors, shall terminate at the close of business on the Termination Date.
An Option or Right may not be granted while the Plan is suspended or after it is
terminated; provided, however, that options or rights previously issued and
unexpired shall continue to exist and may be validly exercised, pursuant to the
provisions of the Plan, until each option and/or right individually expires.
Rights and obligations under any Option or Right granted while the Plan is in
effect shall not be
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<PAGE>
altered or impaired by suspension or termination of the Plan, except upon the
consent of the person to whom the Option or Right was granted. The power of the
Committee to construe and administer any Options or Rights granted prior to the
termination or suspension of the Plan under Article III shall nevertheless
continue after such termination or during such suspension.
XXV. GOVERNING LAW
The Plan, such Options and Rights as may be granted thereunder and all
related matters shall be governed by, and construed and enforced in accordance
with, the laws of the State of Arkansas from time to time obtaining.
XXVI. EFFECTIVE DATE
The Plan shall become effective at 2:00 p.m., Central Standard Time, on
the Effective Date, the date on which the Plan was adopted by the Board of
Directors.
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<PAGE>
CERTIFICATE
I, William B. Keisler, Secretary of Worthen Banking Corporation, certify that
the foregoing is a true and correct copy of the Worthen banking Corporation 1993
Stock Option Plan as adopted by the board of directors of the corporation April
27, 1993, and authorized by its shareholders June 22, 1993.
/s/ William B. Keisler
- ----------------------
William B. Keisler
Secretary
EXHIBIT 99.16
1983 INCENTIVE STOCK OPTION PLAN
FOR
FIRST NEW MEXICO BANKSHARE CORPORATION
ARTICLE 1
PURPOSE OF PLAN
This Incentive Stock Option Plan (the "Plan") is intended as an incentive
and to encourage stock ownership by certain officers and key executive employees
of First New Mexico Bankshare Corporation (the "Corporation") and its subsidiary
corporations so that they may acquire or increase their proprietary interest in
the success of the Corporation and Subsidiaries, and to encourage them to remain
in the employ of the Corporation or the Subsidiaries. It is intended that this
purpose be achieved through grants under the plan of options to purchase shares
of the Corporation's Capital Stock and related stock appreciation Rights
("SARs") and limited SARs (such options, SARs and Limited SARs sometimes herein
collectively referred to as "Rights"). It is further intended that options
issued pursuant to this Plan shall constitute incentive stock options within the
meaning of Section 422A of the Internal Revenue Code of 1954, as amended.
Participating subsidiaries shall be the subsidiaries of the Corporation
that both qualify as a "subsidiary corporation" as defined in Section 425(f) of
the Internal Revenue Code of 1954, as amended, and are designated from time to
time by the Board of Directors as Participating Companies. Currently, Bankshare;
Albuquerque National Bank; First National Bank in Raton; The Merchants Bank; The
First National Bank of Rio Arriba; Security National Bank of Roswell; The
Capital Bank; The Clovis National Bank; Grant County Bank; Valley Bank; Bank of
Las Cruces, N.A.; and Southwest National Bank are participating companies under
the Plan.
ARTICLE II
ADMINSTRATION
The Plan shall be administered by the Incentive Compensation Committee (the
"Committee") appointed by the Board of Directors of the Corporation. The
Committee shall consist of not less than three members of the Corporation's
Board of Directors. The Board of Directors may from time to time remove members
from, or add members to, the Committee. Vacancies on the Committee, howsoever
caused, shall be filled by the Board of Directors. The Committee shall select
one of its members as Chairman, and shall hold meeting at such times and places
as it may determine. A majority of the Committee at which a quorum is present,
or acts reduced to or approved in writing by a majority of the members of the
Committee, shall be the valid acts of the Committee. The Committee shall from
time to time at its discretion make recommendations to the Board of Directors
with respect to the key executive employees who shall be granted Rights and the
amount of Rights to be granted to each.
No director shall be designated as or continue to be a member of the
Committee unless he shall at the time of designation and throughout his service
be a "disinterested person". A "disinterested person" is one who is not at the
time he exercises discretion in administering the Plan eligible and has not at
any time within
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one year prior thereto been eligible for selection as a person to whom rights
may be granted pursuant to the Plan or any other plan of the Corporation or any
of its affiliates entitling the participants therein to acquire stock, stock
options or stock appreciation rights of the Corporation or any of its
affiliates, or one who otherwise satisfies the definition of "disinterested
person" under SEC Rule 16b-3 under the Securities Exchange Act of 1934, as the
same may be now or hereafter amended. The Board of Directors of the Corporation
shall not act upon matters affecting or relating to the Plan unless a majority
of the Board and a majority of those acting in the matter are disinterested
persons.
The interpretation and construction by the Committee of any provisions of
the Plan or of any option granted under it shall be final unless otherwise
determined by the Board of Directors. No member of the Board of Directors or the
Committee shall be liable for any action or determination made in good faith
with respect to the Plan or any option granted under it.
ARTICLE III
ELIGIBILITY
The persons who shall be eligible to receive options shall be such key
executive employees (including officers, whether or not they are Directors) of
the Corporation or its Subsidiaries existing from time to time as the Board of
Directors shall select from time to time from among those nominated by the
Committee. An optionee may hold more than one option, but only on the terms and
subject to the restrictions hereafter set forth. No person shall be eligible to
receive an option for a larger number of shares than is recommended for him by
the Committee.
ARTICLE IV
STOCK
The stock subject to the options shall be shares of the Corporation's
authorized but unissued or reacquired common stock hereafter sometimes called
Capital Stock. The aggregate number of shares which may be issued under options
under this plan shall not exceed 100,000 shares of Capital Stock. The maximum
number of shares which may be optioned in any one calendar year shall not exceed
25,000; provided, however, that any shares not optioned may be carried over and
optioned in the following calendar year(s) in addition to the shares available
in that calendar year. The number of shares with respect to which options may be
granted to any individual under any and all options under this plan which are
issued to him by the Corporation shall not exceed 10,000 shares. The aggregate
fair market value (determined as of the time the option is granted) of the
Capital Stock for which any employee may be granted Incentive Stock Options in
any calendar year under the Plan and all such other plans of the Corporation and
its Subsidiaries shall not exceed $100,000 plus any unused limit carry-over to
such year as defined under Section 422A of the Internal Revenue Code of 1954, as
amended. The limitations established by this paragraph shall be subject to
adjustment as provided in Article V(i) of the Plan.
In the event that any outstanding options under the Plan for any reason
expires or is terminated, the shares of Capital Stock allocable to the
unexercised portion of such option may again be subjected to an option under the
Plan.
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ARTICLE V
TERMS AND CONDITIONS OF OPTIONS
Stock options granted pursuant to the Plan shall be authorized by the Board
of Directors and shall be evidenced by agreements in such form as the Committee
shall from time to time recommend and the Board of Directors shall from time to
time approve, which agreements shall comply with and be subject to the following
terms and conditions.
(a) Number of Shares
Each option shall state the number of shares to which it pertains.
(b) Option Price
Each option shall state the option price, which shall not be less than
100% of the fair market value of the shares of Capital Stock of the
Corporation on the date of the granting of the option. If an individual
owns stock possessing more than ten percent of the total combined voting
power of all classes of stock of the Corporation or any of its parent or
subsidiary corporations (hereinafter referred to as a "10 percent
employee-stockholder"), the option price must be at least 110 percent of
the fair market value of the stock on the date of the grant.
During such time as such stock is not listed upon an established stock
exchange the fair market value per share shall be the mean between
representative dealer "bid" and "ask" prices of the Capital Stock in the
over-the-counter market on the day the option is granted, as quoted on the
NATIONAL ASSOCIATION OF SECURITIES DEALERS AUTOMATED QUOTATIONS SERVICE
(NASDAQ). If the stock is listed upon an established stock exchange or
exchanges such fair market value shall be deemed to be the highest closing
price of the Capital Stock on such stock exchange or exchanges on the date
the option is granted or if no sales of the Corporation's Capital Stock
shall have been made on any stock exchange on that day, on the next
preceding day on which there was a sale of such stock. Subject to the
foregoing the Board of Directors and the Committee in fixing the option
price shall have full authority and discretion and be fully protected in
doing so.
(c) Medium and Time of Payment
The option price shall be payable in United States dollars upon the
exercise of the option and may be paid in cash or by check. Payment with
previously acquired Capital Stock or with a combination of Capital Stock
and cash is also allowable. Capital Stock used to satisfy the exercise
price of an option shall be valued at the fair market value of such stock
determined as of the date of the exercise in the manner specified in
Article V(b) above.
(d) Term and Exercise of Option
No option shall be exercisable either in whole or in part prior to
twenty-four months from the date it is granted. Subject to the right of
cumulation provided in the last sentence of this subdivision each option
shall be exercisable as to not more than one-half of the total number of
shares covered thereby during each twelve month period commencing
twenty-four months from the date of the granting of the option until all
shares covered by the option shall become purchasable. The Committee may
provide, however, for the exercise of options after the initial twenty-four
month period, either as to an increased percentage of shares per year or as
to all remaining shares, if the employee shall, with the approval of the
Corporation, retire. No option shall be exercisable after the expiration of
ten years from the date it is granted, but if it is granted to a more than
10 percent employee-shareholder, then the exercise
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period is reduced to 5 years. Not less than one hundred shares may be
purchased at any one time unless the number purchased is the total number
at the time purchasable under the option. During the lifetime of the
optionee, the option shall be exercisable only by him and shall not be
assignable or transferable by him and no other persons shall acquire any
rights therein. To the extent not exercised, installments shall accumulate
and be exercisable, in whole or in part, in any subsequent period but not
later than ten years from the date the option is granted, or five years in
the case of a 10 percent employee-shareholder.
(e) Stock-Appreciation Rights
(1) In General. A Stock Appreciation Right (SAR) is a right to
surrender in whole or in part a stock option granted under this Plan
(the "Related Option") in exchange for the payment of an amount equal
to the number of shares of Capital Stock covered by the surrendered
portion of the Related Option times the per share difference between
the option price and the (fair market value of the Capital Stock)
subject to the Related Option on the date of exercise of the SAR. The
"payment" may be made in cash, in shares of Capital Stock or in a
combination of the two. If shares of Capital Stock are used for
payment, they will be valued at the fair market value of the Capital
Stock at the date of the exercise of the SAR.
(2) Discretionary SAR's. The Board of Directors shall have the
authority, upon the recommendation of the Committee, to grant SAR's in
connection with a grant of any stock option under this plan upon such
terms and conditions consistent with the provisions of this Plan as it
may deem appropriate, subject to the following further limitations.
a. Unless the Board of Directors otherwise specifies, an SAR
may only be granted with respect to an option at the time of the
grant of the Related Option.
b. SAR's may only be exercised to the extent that the
underlying option is exercisable, and only when the market price
of the Capital Stock subject to the Related Option exceeds the
exercise price of the related option.
c. Upon the exercise of a SAR, the Related Option shall be
deemed to have been exercised to the extent of the shares of
Capital Stock with respect to which the SAR is exercised so that
such number of shares shall no longer be available for issuance
pursuant to the Plan.
d. No SAR shall be transferable except by will or by the
laws of descent and distribution. During the life of a holder of
a SAR, the SAR shall be exercisable only by him.
e. To exercise an SAR, the holder shall (i) give written
notice thereof to the Corporation in form satisfactory to the
Committee addressed to the Secretary of the Corporation
specifying the number of shares of Capital Stock with respect to
which he is exercising the SAR, and (ii) if requested by the
Corporation, deliver the agreements evidencing the rights being
exercised to the Secretary of the Corporation who shall endorse
thereon a notation of such exercise and return the agreements to
the holder thereof. The date of exercise of a SAR which is
validly exercised shall be deemed to be the date on which the
Corporation shall have received the instruments referred to in
the immediately preceding sentence.
f. SAR's granted or held by Officers and Directors of the
Corporation shall contain such further limitations as may be
necessary to satisfy SEC Rule 16b-3 under the Securities Exchange
Act of 1934, as nor or hereafter amended.
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g. Any terms of the SAR not specifically described herein
shall be set forth in the Option Agreement for the Related
Option.
(3) Limited SAR's. Every holder of a stock option granted hereunder
("Related Option") who may be restricted from exercising the option and
reselling the Capital Stock acquired thereunder within 6 months due to his being
an "officer" or "director" of the Corporation within the meaning of Section
16(b) of the Securities Exchange Act of 1934 shall be deemed to have been
granted at the date of the grant of the Related Option a limited SAR upon the
following terms and conditions:
a. Such limited SAR shall be subject to all of the limitations
specified in the Article V.(e)2.a. through Article V.(e)2.f. above.
b. The limited SAR may be exercised only during the period beginning
on the first day following the date of expiration of any tender offer or
exchange offer for shares of Capital Stock (other than one made by the
Corporation), provided that shares of Capital Stock are acquired pursuant
to such offer (the "Offer"), and ending on the 30th day following such
date.
c. The limited SAR may only be exercised for cash.
d. The amount of the payment to be made upon the exercise of the
limited SAR shall be an amount in cash equal to the product obtained by
multiplying (i) the excess of (A) the "offer price per share of Capital
Stock" (as hereinafter defined) over (B) the Option Price per share of
Capital Stock under the Related Option by (ii) the number of shares of
Capital Stock with respect to which such limited SAR is being exercised.
The phrase "Offer Price per share of Capital Stock" shall mean with respect
to the exercise of any limited SAR, the highest price per share of Capital
Stock paid in any Offer which Offer is in effect at any time during the
period beginning on the 60th day prior to the date on which such limited
SAR is exercised. Any securities or property which are a part or all of the
consideration paid for shares of Capital Stock in the Offer shall be valued
in determining the Offer Price per share of Capital Stock at the higher of
(A) the valuation placed on such securities or property by the Company,
person or other entity making such Offer, or (B) the valuation placed on
such securities or property by the Committee.
(f) Prior Outstanding Option.
No option (for purposes of this Article V(f) called New Option) shall
be exercisable while there is outstanding any incentive stock option (as
defined in Section 422A of the 1954 Internal Revenue Code, as amended,
which incentive stock option was granted, before the granting of the New
Option, to the person to whom the New Option is granted, to purchase stock
in the Corporation or in a corporation which, at the time the New Option is
granted, is a parent or subsidiary corporation (as those terms are defined
in Section 425 of the 1954 Internal Revenue Code, as amended) of the
Corporation, or is a predecessor corporation of the Corporation or such
parent of subsidiary corporation.
(g) Termination of Employment Except Death
In the event that an optionee shall cease to be employed by the
Corporation or Subsidiaries for any reason other than his death and shall
be no longer in the employ of any of them, subject to the condition that no
option shall be exercised after the expiration of ten years from the date
it is granted, and five years in the case of a ten percent
employee-shareholder, such optionee shall have the right to exercise the
Rights at any time within three months after such termination of employment
or twelve months if disabled, to the extent that his right to exercise such
Rights had accrued pursuant to Article V(d) and (e) of the Plan and had not
previously been
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exercised at the date of such termination. Whether authorized leave of
absence or absence for military or governmental service shall constitute
termination of employment, for the purposes of the Plan, shall be
determined by the Committee, which determination, unless overruled by the
Board of Directors, shall be final and conclusive.
(h) Death of Optionee and Transfer of Option. If the optionee shall
die while in the employ of the Corporation or a Subsidiary or within a
period of three months after the termination of his employment with the
Corporation and all Subsidiaries and shall not have fully exercised the
option, the Rights may be exercised subject to the condition that no option
shall be exercisable after the expiration of ten years from the date it is
granted and five years in the case of a ten percent employee-shareholder,
to the extent that the optionee's right to exercise such Rights had accrued
pursuant to Article V(d) and (e) of the Plan at the time of his death and
had not previously been exercised, at any time within one year after the
optionee's death, by the executors or administrators of the optionee or by
any person or persons who shall have acquired the option directly from the
optionee by bequest or inheritance.
No option or right shall be transferable by the optionee otherwise
than by will or the laws of descent and distribution.
(i) Recapitalization.
If the Corporation shall at any time increase or decrease the number
of its outstanding shares of Capital Stock or change in any way the rights
and privileges of such shares by means of the payment of a stock dividend,
or the making of any other distribution upon such shares payable in Capital
Stock, or through a Capital Stock split or subdivision of shares, or a
consolidation or combination of shares, or through a reclassification or
recapitalization involving the Capital Stock, then the numbers, rights and
privileges of the following shall be increased, decreased or changed in
like manner as if they had been issued and outstanding, fully paid and
nonassessable at the time of such occurrence:
(a) The shares of Capital Stock on which Rights may be granted
under the Plan:
(b) The maximum number of shares of Capital Stock with respect to
which an employee may receive a Right hereunder; and
(c) The shares of Capital Stock then included in each outstanding
Right granted hereunder.
Subject to any required action by the stockholders, if the Corporation
shall be the surviving corporation in any merger or consolidation, each
outstanding Right shall pertain to and apply to the securities to which a
holder of the number of shares of Capital Stock subject to the Right would
have been entitled.
A dissolution or liquidation of the Corporation or a merger or
consolidation in which the Corporation is not the surviving corporation,
shall cause each outstanding Right to terminate, provided that each
optionee shall, in such event, have the right immediately prior to such
dissolution or liquidation, or merger or consolidation in which the
Corporation is not the surviving corporation, to exercise his Rights, in
whole or in part without regard to the installment provisions contained in
the first three (3) sentences of Article V(d) of the Plan. Each holder of
Rights shall have the right (a) during the terms of a "Tender Offer", as to
an option or SAR other than a limited SAR, or (b) during the thirty (30)
days following a "Tender Offer", as to a
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limited SAR, to exercise such Rights in whole or in part without regard to
the installment provisions contained in the first three sentences of
Article V(d) of the Plan. For the purposes of this paragraph, a "Tender
Offer" means a tender offer or exchange offer for shares of Capital Stock
made by a person other than the Corporation.
To the extent that the foregoing adjustments relate to stock or
securities of the Corporation, such adjustments shall be made by the
Committee, whose determination in that respect shall be final, binding and
conclusive, provided that each Right granted pursuant to the Plan shall not
be adjusted in a manner which causes the option to fail to continue to
qualify as an incentive stock option within the meaning of section 422A of
the 1954 Internal Revenue Code.
Except as hereinbefore expressly provided in this Article V(i), the
optionee shall have no rights by reason of any subdivision or consolidation
of shares of stock of any class or the payment of any stock dividend or any
other increase or decrease in the number of shares of stock of any class or
by any reason of any dissolution, liquidation, merger or consolidation or
spin-off of assets or stock of another corporation, and any issue by the
Corporation of shares of stock of any class, or securities convertible into
shares of stock of any class, shall not affect, and no adjustment by reason
thereof shall be made with respect to the number or price of shares of
Capital Stock subject to the Right.
The grant of any Right pursuant to the Plan shall not affect in any
way the right or power of the Corporation to make adjustments,
reclassifications, reorganizations or changes of its capital or business
structure or to merge or to consolidate or to dissolve, liquidate or sell
or transfer all or any part of its business or assets.
(j) Rights as a Stockholder.
An optionee or a transferee of an option shall have no rights as a
stockholder with respect to any shares covered by his option until the date
of the issuance of a stock certificate to him for such shares. No
adjustment shall be made for dividends (ordinary or extraordinary, whether
in cash, securities or other property) or distributions or other rights for
which the record date is prior to the date such stock certificate is
issued, except as provided in Article V(i) hereof.
(k) Modification, Extension and Renewal of Rights.
Subject to the terms and conditions and within the limitations of the
Plan, the Board of Directors may modify, extend or renew outstanding Rights
granted under the Plan, or accept the surrender of such outstanding Rights
(to the extent not theretofore exercised) and authorize the granting of new
Rights in substitution therefor (to the extent not theretofore exercised).
The Board of Directors shall not, however, modify any outstanding Rights so
as to specify a lower price or accept the surrender of outstanding options
or rights and authorize the granting of new Rights in substitution therefor
specifying a lower price. Notwithstanding the foregoing, however, no
modification of any Rights shall, without the consent of the optionee,
alter or impair any rights or obligations under any Rights theretofore
granted under the Plan.
(l) Investment Purpose
Each option under the Plan shall be granted on the condition that he
purchases of stock thereunder shall be for investment purposes, and not
with a view to resale or distribution except that in the event the stock
subject to such option is registered under the Securities Act of 1933, as
amended, or in the event a resale of such stock without such registration
would otherwise be permissible, such condition
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shall be inoperative if in the opinion of counsel for the Corporation such
condition is not required under the Securities Act of 1933 or any other
applicable law, regulation, or rule of any governmental agency.
(m) Other Provisions.
The option agreements authorized under the Plan shall contain such
other provisions, including, without limitation, restrictions upon the
exercise of the Rights, as the Committee and Board of Directors of the
Corporation shall deem advisable. Any such option agreement shall contain
such limitations and restrictions upon the exercise of the option as shall
be necessary in order that such option will be an "incentive stock option"
as defined in Section 422A of the Internal Revenue Code of 1954 or to
conform to any change in the law.
ARTICLE VI
TERM OF PLAN
Rights may be granted pursuant to the Plan from time to time within a
period of ten years from the date the Plan is adopted, or the date the Plan is
approved by the Stockholders, whichever is earlier.
ARTICLE VII
INDEMNIFICATION OF COMMITTEE
In addition to such other rights of indemnification as they may have as
distributors or members of the Committee, the members of the Committee shall be
indemnified by the Corporation against the reasonable expenses, including
attorneys' fees actually and necessarily incurred in connection with the defense
of any action, suit or proceeding, or in connection with any appeal therein, to
which they or any of them may be a party by reason of any action taken or
failure to act under or in connection with the Plan or of any option granted
thereunder, and against all amounts paid by them in settlement thereof (provided
such settlement is approved by independent legal counsel selected by the
Corporation) or paid by them in satisfaction of a judgment in any such action,
suit or proceeding, except in relation to matters as to which it shall be
adjudged in such action, suit or proceeding that such Committee member is liable
of negligence or misconduct in the performance of his duties; provided that
within 60 days after institution of any such action, suit or proceedings,
Committee member shall in writing offer, the Corporation the opportunity, at its
own expense, to handle and defend the same.
ARTICLE VIII
AMENDMENT OF THE PLAN
The Board of Directors of the Corporation may, insofar as permitted by law,
suspend or discontinue the Plan or revise or amend it in any respect whatsoever
except that no amendment or discontinuance of the Plan by the Board of Directors
of shareholders shall adversely affect, without the consent of the holder
thereof, any outstanding stock option or right theretofore granted; and except
that without 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 duly held, no revision or amendment shall change the number of shares
subject to the Plan, change the designation of the class of employees eligible
to receive options, decrease the price at which options may be granted, remove
the administration of the Plan from the Committee, or render any member of the
Committee eligible to receive an option under the Plan while
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serving thereon. Furthermore, the Plan may not, without the approval of the
stockholders, be amended in any manner that will cause options issued under it
to fail to meet the requirements of incentive stock options as defined in
Section 422A of the Internal Revenue Code of 1954, as amended.
ARTICLE IX
APPLICATION OF FUNDS
The proceeds received by the Corporation from the sale of Common Stock
pursuant to options will be used for general corporate purposes.
ARTICLE X
NO OBLIGATION TO EXERCISE OPTION
The granting of an option shall impose no obligation upon the optionee to
exercise such option.
ARTICLE XI
APPROVAL OF STOCKHOLDERS
The Plan shall become effective when it has received the approval of the
holders of a majority of the Corporation's Common Stock present or represented,
and entitled to vote at a duly called stockholders' meeting, which approval must
occur within the period beginning twelve months before and ending twelve months
after the date the Plan is adopted by the Board of Directors.
Date Plan adopted by Board of Directors: August 25, 1982
Date Plan approved by Stockholders: March 23, 1983
As amended by Board of Directors and
approved by Stockholders: March 26, 1986
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