U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-KSB/A
[X] ANNUAL REPORT PURSUANT TO SECTION 13
OR 15(d) OF THE SECURITIES EXCHANGE ACT OF
1934 [FEE REQUIRED]
For the fiscal year ended April 30, 1996
[ ] TRANSITION REPORT UNDER SECTION 13 OR
15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
[NO FEE REQUIRED]
For the transition period from ______ to ______
Commission file number 0-25096
HORIZON BANCORP, INC.
(name of small business issuer specified in its charter)
Texas 74-2412835
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
5800 North MoPac, Austin Texas 78731
(Address of principal executive offices) (Zip Code)
Issuer's telephone number: (512) 371-0700.
Securities registered pursuant to Section 12(b) of the Act: None
Securities registered pursuant to Section 12(g) of the Act:
Common Stock, par value $0.01 per share
Check whether the issuer (1) filed all reports required to be
filed by Section 13 or 15(d) of the Securities Exchange Act of 1934
during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days. Yes [X]
No [ ]
Check if there is no disclosure of delinquent filers pursuant
to Item 405 of Regulation S-B is not contained in this form, and no
disclosure will be contained, to the best of registrant's
knowledge, in definitive proxy or information statements
incorporated by referenced in Part III of this Form 10-KSB or any
amendment to this Form 10-KSB. [X]
The issuer had $13,481,540 of gross income for the year ended
April 30, 1996.
The aggregate market value of the voting stock held by
non-affiliates of the registrant, computed by reference to the
average bid and ask prices of such stock on the NASDAQ System as of
July 24, 1996, was $8,730,063. (The exclusion from such amount of
the market value of the shares owned by any person shall not be
deemed an admission by the registrant that such person is an
affiliate of the registrant.)
The number of shares outstanding of the only class of common
stock as of July 25, 1996 was 1,386,757.
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the following document are incorporated by
reference into the indicated part or parts of this report: Proxy
Statement for the 1996 Annual Meeting of Shareholders scheduled to
be held on September 24, 1996 - Part III of this Form 10-KSB.
Transitional Small Business Disclosure Format. Yes [ ] No [X]
<PAGE>
PART IV
Item 13. Exhibits and Reports on Form 8-K.
Exhibits
Sequential Page Number
Regulation Where Exhibits are
S-B Exhibit Located in this
Number Document Form 10-KSB Report
3.1 Restated and Amended Articles of
Incorporation of Horizon. (1)
3.2 Bylaws of Horizon. (1)
3.3 Restated Articles of Incorporation of the Bank. (1)
3.4 Restated Bylaws of the Bank. (1)
4 Form of Stock Certificate of Horizon. (1)
10.1 Form of Bank Incentive Compensation Plan. (1)
10.2 Form of Employment Agreements. (1)
10.3 1993 Employee-Officer-Director Option Program. (1)
10.4 1994 Employee-Officer-Director Option Program. (1)
10.5 Redemption Agreement dated September 20, 1994
by and among Horizon, Clark, Thomas & Winters, A
Professional Corporation and Clark, Thomas,
Winters & Newton Professional Corporation 401(k)
Plan & Trust. (1)
10.6 Escrow and Custodian Agreement dated October 5,
1994 among Horizon, Clark, Thomas & Winters, A
Professional Corporation and Clark, Thomas,
Winters & Newton Professional Corporation 401(k)
Plan & Trust. (1)
10.7 Endorsement Letter Agreement dated August 8, 1994
by the Bank with the Texas Savings & Community
Bankers Association. (1)
10.8 Exclusive Option Contract and Assignment of Earnest
Money Contract between the Bank and Ronald P.
Brooks, Trustee. (1)
10.9 Subscription Escrow Agreement between Horizon and
Texas Commerce Bank, N.A. (1)
10.10 Form of Lock-Up Letter between Horizon and certain
officers, directors and shareholders. (1)
10.11 Release among Horizon, the Bank and Clark, Thomas
Winters & Newton dated March 31, 1992. (1)
10.12 1992 Employee-Officer-Director Option Program. (1)
10.13 Compensatory Stock Option Program. (1)
10.14 Real Estate Contract between the Bank and the
Estate of Georgia P. Lucas dated November 4, 1994.
(1)
10.15 Loan Agreement between Horizon and Liberty National
Bank dated November 16, 1994. (1)
10.16 Termination of Exclusive Option Contract between
the Bank and Ronald P. Brooks, Trustee. (2)
10.17 1996 Stock Option and Incentive Plan. (2)
10.18 Lease Agreement between the Bank and Parmer
Point (A), Ltd. dated April 14, 1995 and related
term letter dated December 28, 1995.
10.19 Real Estate Contract for purchase of office
building between the Bank and Lavaca Realty
Company dated January 25, 1996.
10.20 1997 Stock Option and Incentive Plan
21 Subsidiaries. (1)
23.2 Consent of BDO Seidman. (1)
24 Power of Attorney. (1)
99.1 Stock Order Form and Order Form Instructions, and
Certification. (1)
99.2 Question and Answer Brochure. (1)
99.3 Advertising, Training and Community Informational
Meeting Materials. (1)
99.4 Stock Election Form and cover letter. (1)
________________
(1) Filed as exhibits to the Company's Form SB-2 registration
statement filed on November 10, 1994 (File No. 33-85034), as
amended, pursuant to Section 5 of the Securities Act of 1933.
All of such previously filed documents are hereby incorporated
herein by reference in accordance with Item 601 of Regulation
S-K.
(2) Filed as exhibits to the Company's Form 10-KSB for the fiscal
year ended April 30, 1995.
(3) Filed as exhibits to the Company's Form 10-QSB for the period
ended January 31, 1996.
Reports on Form 8-K.
During the quarter ended April 30, 1996, the Registrant did
not file any report on Form 8-K.<PAGE>
SIGNATURES
In accordance with Section 13 or 15(d) of the Exchange Act,
the registrant caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
HORIZON BANCORP, INC.
By: /s/ Douglas B. Kadison
Douglas B. Kadison, President
Date: August 9, 1996.
In accordance with the Exchange Act, this report has been
signed below by the following persons on behalf of the Registrant
and in the capacities and on the dates indicated.
Signature Title Date
By:/s/ Douglas B. Kadison Chairman of the Board 8/9/96
Douglas B. Kadison and President (Princi-
pal Executive Officer
By:/s/ Paul A. Antrim Executive Vice 8/9/96
Paul A. Antrim President,Treasurer,
Secretary and Director
(Principal Financial
and Accounting Officer)
By:/s/ Charles S. Executive Vice 8/9/96
Nichols, Jr. President and Director
Charles S. Nichols, Jr.
By:/s/ Robert J. Ellis Director 8/9/96
Robert J. Ellis
By:/s/ Michael Rotman, MD Director 8/9/96
Michael Rotman, M.D.<PAGE>
EXHIBIT 10.20
1997 STOCK OPTION AND INCENTIVE PLAN
<PAGE>
EXHIBIT A
HORIZON BANCORP, INC.
1997 Stock Option and Incentive Plan
1. Plan Purpose. The purpose of the Plan is to promote the
long-term interests of the Corporation and its shareholders by
providing a means for attracting and retaining directors, advisory
directors, officers and employees of the Corporation and its
Affiliates. It is intended that designated Options granted
pursuant to the provisions of this Plan to persons employed by the
Corporation or its Affiliates will quality as Incentive Stock
Options. Options granted to persons who are not employees will be
Non-Qualified Stock Options.
2. Definitions. The following definitions are applicable to
the Plan:
"Affiliate" - means any "parent corporation" or
"subsidiary corporation" of the Corporation, as such terms are
defined in Section 424(e) and (f), respectively, of the Code.
"Award" - means the grant of an Incentive Stock Option,
a Non-Qualified Stock Option, a Stock Appreciation Right, a Limited
Stock Appreciation Right, or of Restricted Stock, or any
combination thereof, as provided in the Plan.
"Bank" - means Horizon Bank & Trust, SSB and any
successor entity.
"Code" - means the Internal Revenue Code of 1986, as
amended,
"Committee" - means the Committee referred to in Section
3 hereof.
"Continuous Service" - means the absence of any
interruption or termination of service as a director, advisory
director, officer or employee of the Corporation or an Affiliate,
except that when used with respect to persons granted an Incentive
Option means the absence of any interruption or termination of
service as an employee of the Corporation or an Affiliate. Service
shall not be considered interrupted in the case of sick leave,
military leave or any other leave of absence approved by the
Corporation or in the case of transfers between payroll locations
of the Corporation or between the Corporation, its parent, its
subsidiaries or its successor. With respect to any advisory
director, continuous service shall mean availability to perform
such functions as may be required of the Bank's advisory directors.
"Corporation" - means Horizon Bancorp, Inc., a Texas
corporation.
"Disinterested Person" - means any member of the Board of
Directors of the Corporation who (A) is an outside director as
defined under Section 162(m) of the Code and the regulations
thereunder and (B) a person who within the prior year has not been,
and is not being, granted any awards related to the Shares under
this Plan or any other plan of the Corporation or any of its
Affiliates except for awards which (i) are calculated in accordance
with a formula as contemplated in paragraph (c)(ii) of Rule 16b-3
("Rule 16b-3") under the Securities Exchange Act of 1934; (ii)
result from participation in an ongoing securities acquisition plan
meeting the conditions of paragraph (d)(2) of Rule 16b-3; or, (iii)
arise from an election by a director to receive all or part of his
board fees in securities. No recipient of a stock award granted
pursuant to Section 21 hereof shall be deemed not to be a
Disinterested Person solely by reason of such grant.
"Employee" - means any person, including an officer or
director, who is employed by the Corporation or any Affiliate.
"ERISA" - means the Employee Retirement Income Security
Act of 1974, as amended.
"Exercise Price" - means (i) in the case of an Option,
the price per Share at which the Shares subject to such Option may
be purchased upon exercise of such Option and (ii) in the case of
a Right, the price per Share (other than the Market Value per Share
on the date of exercise and the Offer Price per Share as defined in
Section 10 hereof) which, upon grant, the Committee determines
shall be utilized in calculating the aggregate value which a
Participant shall be entitled to receive pursuant to Sections 9, 10
or 13 hereof upon exercise of such Right.
"Incentive Stock Option" - means an option to purchase
Shares granted by the Committee pursuant to Section 6 hereof which
is subject to the limitations and restrictions of Section 8 hereof
and is intended to qualify under Section 422(b) of the Code.
"Limited Stock Appreciation Right" - means a stock
appreciation right with respect to Shares granted by the Committee
pursuant to Sections 6 and 10 hereof.
"Market Value" - means the average of the high and low
quoted sales price on the date in question (or, if there is no
reported sale on such date, on the last preceding date on which any
reported sale occurred) of a Share on the Composite Tape for the
New York Stock Exchange-Listed Stocks, or, if on such date the
Shares are not quoted on the Composite Tape, on the New York Stock
Exchange, or, if the Shares are not listed or admitted to trading
on such Exchange, on the principal United States securities
exchange registered under the Securities Exchange Act of 1934 on
which the Shares are listed or admitted to trading, or, if the
Shares are not listed or admitted to trading on any such exchange,
the mean between the closing high bid and low asked quotations with
respect to a Share on such date on the National Association of
Securities Dealers, Inc., Automated Quotations System, or any
similar system then in use, or, if no such quotations are
available, the fair market value on such date of a Share as the
Committee shall determine.
"Non-Qualified Stock Option" - means an option to
purchase Shares granted by the Committee pursuant to Section 6
hereof, which option is not intended to qualify under
Section 422(b) of the Code.
"Option" - means an Incentive Stock Option or a
Non-Qualified Stock Option.
"Participant" - means any officer, director, advisory
director or employee of the Corporation or any Affiliate who is
selected by the Committee to receive an Award.
"Plan" - means the 1997 Stock Option and Incentive Plan
of the Corporation.
"Related" - means (i) in the case of a Right, a Right
which is granted in connection with, and to the extent exercisable,
in whole or in part, in lieu of, an Option or another Right and
(ii) in the case of an Option, an Option with respect to which and
to the extent a Right is exercisable, in whole or in part, in lieu
thereof has been granted.
"Restricted Period" - means the period of time selected
by the Committee for the purpose of determining when restrictions
are in effect under Section 11 hereof with respect to Restricted
Stock awarded under the Plan.
"Restricted Stock" - means Shares which have been
contingently awarded to a Participant by the Committee subject to
the restrictions referred to in Section 11 hereof, so long as such
restrictions are in effect.
"Right" - means a Limited Stock Appreciation Right or a
Stock Appreciation Right.
"Shares" - means the shares of common stock of the
Corporation.
"Senior Officer" - means the Corporation's president,
principal financial officer, or principal accounting officer, any
vice president of the Corporation in charge of a principal business
unit, division or function (such as lending, administration or
finance), any other officer who performs a policy-making function,
or any other person who performs similar policy-making functions
for the Corporation. Officers of the Corporation's Affiliates
shall be deemed Senior Officers of the Corporation if they perform
such policy-making functions for the Corporation.
"Stock Appreciation Right" - means a stock appreciation
right with respect to Shares granted by the Committee pursuant to
Sections 6 and 9 hereof.
"Ten Percent Beneficial Owner" - means the beneficial
owner of more than ten percent of any class of the Corporation's
equity securities registered pursuant to Section 12 of the
Securities Exchange Act of 1934.
3. Administration. The Plan shall be administered by a
Committee consisting of two or more members, each of whom shall be
a Disinterested Person. The members of the Committee shall be
appointed by the Board of Directors of the Corporation. Except as
limited by the express provisions of the Plan, the Committee shall
have sole and complete authority and discretion to (i) select
Participants and grant Awards; (ii) determine the number of Shares
to be subject to types of Awards generally, as well as to
individual Awards granted under the Plan; (iii) determine the terms
and conditions upon which Awards shall be granted under the Plan;
(iv) prescribe the form and terms of instruments evidencing such
grants and (v) establish from time to time regulations for the
administration of the Plan, interpret the Plan, and make all
determinations deemed necessary or advisable for the administration
of the Plan. The Committee may maintain, and update from time to
time as appropriate, a list designating selected directors as
Disinterested Persons. The purpose of such list shall be to
evidence the status of such individuals as Disinterested Persons,
and the Board of Directors may appoint to the Committee any
individual actually qualifying as a Disinterested Person,
regardless of whether identified as such on said list.
A majority of the Committee shall constitute a quorum, and the
acts of a majority of the members present at any meeting at which
a quorum is present, or acts approved in writing by a majority of
the Committee without a meeting, shall be acts of the Committee.
4. Participation in Committee Awards. The Committee may
select from time to time Participants in the Plan from those
directors, advisory directors, officers and employees (other than
Disinterested Persons), of the Corporation or its Affiliates who,
in the opinion of the Committee, have the capacity for contributing
to the successful performance of the Corporation or its Affiliates.
5. Shares Subject to Plan. Subject to adjustment by the
operation of Section 12 hereof, the maximum number of Shares with
respect to which Awards may be made under the Plan is 65,000
shares. The Shares with respect to which Awards may be made under
the Plan may be either authorized and unissued shares or issued
shares heretofore or hereafter reacquired and held as treasury
shares. Shares which are subject to Related Rights and Related
Options shall be counted only once in determining whether the
maximum number of Shares with respect to which Awards may be
granted under the Plan has been exceeded. An Award shall not be
considered to have been made under the Plan with respect to any
Option or Right which terminates or with respect to Restricted
Stock which is forfeited, and new Awards may be granted under the
Plan with respect to the number of Shares as to which such
termination or forfeiture has occurred.
6. General Terms and Conditions of Options and Rights. The
Committee shall have full and complete authority and discretion,
except as expressly limited by the Plan, to grant Options and/or
Rights and to provide the terms and conditions (which need not be
identical among Participants) thereof. In particular, the
Committee shall prescribe the following terms and conditions: (i)
the Exercise Price of any Option or Right, which shall not be less
than the Market Value per Share at the date of grant of such Option
or Right, (ii) the number of Shares subject to, and the expiration
date of, any Option or Right, which expiration date shall not
exceed ten years from the date of grant, (iii) the manner, time and
rate (cumulative or otherwise) of exercise of such Option or Right,
and (iv) the restrictions, if any, to be placed upon such Option or
Right or upon Shares which may be issued upon exercise of such
Option or Right. The Committee may, as a condition of granting any
Option or Right, require that a Participant agree not to thereafter
exercise one or more Options or Rights previously granted to such
Participant.
7. Exercise of Options or Rights.
(a) Except as provided herein, an Option or Right
granted under the Plan shall be exercisable during the lifetime of
the Participant to whom such Option or Right was granted only by
such Participant and, except as provided in paragraphs (c) and (d)
of this Section 7, no such Option or Right may be exercised unless
at the time such Participant exercises such Option or Right, such
Participant has maintained Continuous Service since the date of
grant of such Option or Right. Cash settlements of Rights may be
made only in accordance with any applicable restrictions pursuant
to Rule 16b-3(e) under the Securities Exchange Act of 1934 or any
similar or successor provision.
(b) To exercise an Option or Right under the Plan, the
Participant to whom such Option or Right was granted shall give
written notice to the Corporation in form satisfactory to the
Committee (and, if partial exercises have been permitted by the
Committee, by specifying the number of Shares with respect to which
such Participant elects to exercise such Option or Right) together
with full payment of the Exercise Price, if any and to the extent
required. The date of exercise shall be the date on which such
notice is received by the Corporation. Payment, if any is
required, shall be made either (i) in cash (including check, bank
draft or money order) or (ii) if permitted by the Committee, by
delivering (A) Shares already owned by the Participant and having
a fair market value equal to the applicable exercise price, such
fair market value to be determined in such appropriate manner as
may be provided by the Committee or as may be required in order to
comply with or to conform to requirements of any applicable laws or
regulations, or (B) a combination of cash and such Shares.
(c) If a Participant to whom an Option or Right was
granted shall cease to maintain Continuous Service for any reason
(including total or partial disability and normal or early
retirement, but excluding death and termination of employment by
the Corporation or any Affiliate for cause), such Participant may,
but only within the period of three months immediately succeeding
such cessation of Continuous Service (or one year in the case of a
disability as defined in Section 22(e)(3) of the Code) and in no
event after the expiration date of such Option or Right, exercise
such Option or Right to the extent that such Participant was
entitled to exercise such Option or Right at the date of such
cessation, provided, however, that such right of exercise after
cessation of Continuous Service shall not be available to a
Participant if the Committee otherwise determines and so provides
in the applicable instrument or instruments evidencing the grant of
such Option or Right. Notwithstanding the foregoing, if a
Participant to whom an Option or Right was granted shall cease to
maintain Continuous Service due to normal retirement, and such
Participant has served the Corporation or the Bank for at least ten
years, the Option or Right granted to such Participant shall become
immediately exercisable, and the Participant may exercise such
Option or Right only during the shortest of the following periods
(i) the five year period immediately succeeding such cessation of
Continuous Service, or (ii) the period remaining until the
expiration of such Option or Right. If the Continuous Service of
a Participant to whom an Option or Right was granted by the
Corporation is terminated for cause, all rights under any Option or
Right of such Participant shall expire immediately upon the giving
to the Participant of notice of such termination.
(d) In the event of the death of a Participant while in
the Continuous Service of the Corporation or an Affiliate or within
the three month or five year periods referred to in paragraph (c)
of this Section 7, the person to whom any Option or Right held by
the Participant at the time of his death is transferred by will or
the laws of descent and distribution, or in the case of an Award
other than an Incentive Stock Option, pursuant to a qualified
domestic relations order, as defined in the Code or Title I of
ERISA or the rules thereunder may, but only to the extent such
Participant was entitled to exercise such Option or Right
immediately prior to his death, exercise such Option or Right at
any time within a period of one year succeeding the date of death
of such Participant, but in no event later than ten years from the
date of grant of such Option or Right. Following the death of any
Participant to whom an Option was granted under the Plan,
irrespective of whether any Related Right shall have theretofore
been granted to the Participant or whether the person entitled to
exercise such Related Right desires to do so, the Committee may, as
an alternative means of settlement of such Option, elect to pay to
the person to whom such Option is transferred by will or by the
laws of descent and distribution, or in the case of an Option other
than an Incentive Stock Option, pursuant to a qualified domestic
relations order, as defined in the Code or Title I of ERISA or the
rules thereunder, the amount by which the Market Value per Share on
the date of exercise of such Option shall exceed the Exercise Price
of such Option, multiplied by the number of Shares with respect to
which such Option is properly exercised. Any such settlement of an
Option shall be considered an exercise of such Option for all
purposes of the Plan.
(e) Notwithstanding the provisions of subparagraphs (c)
and (d) above, the Committee may, in its sole discretion, establish
different terms and conditions pertaining to the effect of
termination to the extent permitted by applicable federal and state
law.
8. Incentive Stock Options. Incentive Stock Options may be
granted only to Participants who are Employees. Any provision of
the Plan to the contrary notwithstanding, (i) no Incentive Stock
Option shall be granted more than ten years from the earlier of the
date the Plan is adopted by the Board of Directors of the
Corporation and the date the Plan is approved by the shareholders
and no Incentive Stock Option shall be exercisable more than ten
years from the date such Incentive Stock Option is granted, (ii)
the Exercise Price of any Incentive Stock Option shall not be less
than the Market Value per Share on the date such Incentive Stock
Option is granted, (iii) any Incentive Stock Option shall not be
transferable by the Participant to whom such Incentive Stock Option
is granted other than by will or the laws of descent and
distribution, and shall be exercisable during such Participant's
lifetime only by such Participant, (iv) no Incentive Stock Option
shall be granted to any individual who, at the time such Incentive
Stock Option is granted, owns stock possessing more than ten
percent of the total combined voting power of all classes of stock
of the Corporation or any Affiliate unless the Exercise Price of
such Incentive Stock Option is at least 110 percent of the Market
Value per Share at the date of grant and such Incentive Stock
Option is not exercisable after the expiration of five years from
the date such Incentive Stock Option is granted, and (v) the
aggregate Market Value (determined as of the time any Incentive
Stock Option is granted) of the Shares with respect to which
Incentive Stock Options are exercisable for the first time by a
Participant in any calendar year shall not exceed $100,000.
9. Stock Appreciation Rights. A Stock Appreciation Right
shall, upon its exercise, entitle the Participant to whom such
Stock Appreciation Right was granted to receive a number of Shares
or cash or combination thereof, as the Committee in its discretion
shall determine, the aggregate value of which (i.e., the sum of the
amount of cash and/or Market Value of such Shares on date of
exercise) shall equal (as nearly as possible, it being understood
that the Corporation shall not issue any fractional shares) the
amount by which the Market Value per Share on the date of such
exercise shall exceed the Exercise Price of such Stock Appreciation
Right, multiplied by the number of Shares with respect of which
such Stock Appreciation Right shall have been exercised. A Stock
Appreciation Right may be Related to an Option or may be granted
independently of any Option as the Committee shall from time to
time in each case determine. At the time of grant of an Option the
Committee shall determine whether and to what extent a Related
Stock Appreciation Right shall be granted with respect thereto;
provided, however, and notwithstanding any other provision of the
Plan, that if the Related Option is an Incentive Stock Option, the
Related Stock Appreciation Right shall satisfy all the restrictions
and limitations of Section 8 hereof as if such Related Stock
Appreciation Right were an Incentive Stock Option and as if other
rights which are Related to Incentive Stock Options were Incentive
Stock Options. In the case of a Related Option, such Related
Option shall cease to be exercisable to the extent of the Shares
with respect to which the Related Stock Appreciation Right was
exercised. Upon the exercise or termination of a Related Option,
any Related Stock Appreciation Right shall terminate to the extent
of the Shares with respect to which the Related Option was
exercised or terminated. Notwithstanding the foregoing, no Stock
Appreciation Right shall be exercisable by a director, Senior
Officer or Ten Percent Beneficial Owner of the Corporation within
six months of the date of its grant.
10. Limited Stock Appreciation Rights. At the time of grant
of an Option or Stock Appreciation Right to any Participant, the
Committee shall have full and complete authority and discretion to
also grant to such Participant a Limited Stock Appreciation Right
which is Related to such Option or Stock Appreciation Right;
provided, however and notwithstanding any other provision of the
Plan, that if the Related Option is an Incentive Stock Option, the
Related Limited Stock Appreciation Right shall satisfy all the
restrictions and limitations of Section 8 hereof as if such Related
Limited Stock Appreciation Right were an Incentive Stock Option and
as if all other Rights which are Related to Incentive Stock Options
were Incentive Stock Options. Notwithstanding any other provision
of the Plan, a Limited Stock Appreciation Right shall be
exercisable only during the period beginning on the first day
following the date of expiration of any "offer" (as such term is
hereinafter defined) and ending on the forty-fifth day following
such date, provided, however, that no Limited Stock Appreciation
Right shall be exercisable by a director, Senior Officer or Ten
Percent Beneficial Owner within six months of the date of its
grant.
A Limited Stock Appreciation Right shall, upon its exercise,
entitle the Participant to whom such Limited Stock Appreciation
Right was granted to receive an amount of cash equal to the amount
by which the "Offer Price per Share" (as such term is hereinafter
defined) or the Market Value on the date of such exercise, as shall
have been provided by the Committee in its discretion at the time
of grant, shall exceed the Exercise Price of such Limited Stock
Appreciation Right, multiplied by the number of Shares with respect
to which such Limited Stock Appreciation Right shall have been
exercised. Upon the exercise of a Limited Stock Appreciation
Right, any Related Option and/or Related Stock Appreciation Right
shall cease to be exercisable to the extent of the Shares with
respect to which such Limited Stock Appreciation Right was
exercised. Upon the exercise or termination of a Related Option or
Related Stock Appreciation Right, any Related Limited Stock
Appreciation Right shall terminate to the extent of the Shares with
respect to which such Related Option or Related Stock Appreciation
Right was exercised or terminated.
For the purposes of this Section 10, the term "Offer" shall
mean any tender offer or exchange offer for Shares other than one
made by the Corporation, provided that the corporation, person or
other entity making the offer acquires pursuant to such offer
either (i) 25% of the Shares outstanding immediately prior to the
commencement of such offer or (ii) a number of Shares which,
together with all other Shares acquired in any tender offer or
exchange offer (other than one made by the Corporation) which
expired within sixty days of the expiration date of the offer in
question, equals 25% of the Shares outstanding immediately prior to
the commencement of the offer in question. The term "Offer Price
per Share" as used in this Section 10 shall mean the highest price
per Share paid in any Offer which Offer is in effect any time
during the period beginning on the sixtieth day prior to the date
on which a Limited Stock Appreciation Right is exercised and ending
on the date on which such Limited Stock Appreciation Right is
exercised. Any securities or property which are part or all of the
consideration paid for Shares in the Offer shall be valued in
determining the Offer Price per Share at the higher of (A) the
valuation placed on such securities or property by the corporation,
person or other entity making such Offer or (B) the valuation
placed on such securities or property by the Committee.
11. Terms and Conditions of Restricted Stock. The Committee
shall have full and complete authority, subject to the limitations
of the Plan, to grant awards of Restricted Stock and, in addition
to the terms and conditions contained in paragraphs (a) through (f)
of this Section 11, to provide such other terms and conditions
(which need not be identical among Participants) in respect of such
Awards, and the vesting thereof, as the Committee shall determine
and provide in the agreement referred to in paragraph (d) of this
Section 11.
<PAGE>
(a) At the time of an award of Restricted Stock, the
Committee shall establish for each Participant a Restricted Period
of not less than six months during which or at the expiration of
which, as the Committee shall determine and provide in the
agreement referred to in paragraph (d) of this Section 11, the
Shares awarded as Restricted Stock shall vest. Subject to any such
other terms and conditions as the Committee shall provide, shares
of Restricted Stock may not be sold, assigned, transferred, pledged
or otherwise encumbered by the Participant, except as hereinafter
provided, during the Restricted Period. Except for such
restrictions, and subject to paragraphs (c), (d) and (e) of this
Section 11 and Section 12 hereof, the Participant as owner of such
shares shall have all the rights of a stockholder, including but
not limited to the right to receive all dividends paid on such
shares and the right to vote such shares. The Committee shall have
the authority, in its discretion, to accelerate the time at which
any or all of the restrictions shall lapse with respect to any
shares of Restricted Stock prior to the expiration of the
Restricted Period with respect thereto, or to remove any or all of
such restrictions, whenever it may determine that such action is
appropriate by reason of changes in applicable tax or other laws or
other changes in circumstances occurring after the commencement of
such Restricted Period.
(b) Except as provided in Section 14 hereof, if a
Participant ceases to maintain Continuous Service for any reason
(other than death, total or partial disability or normal or early
retirement) unless the Committee shall otherwise determine, all
shares of Restricted Stock theretofore awarded to such Participant
and which at the time of such termination of Continuous Service are
subject to the restrictions imposed by paragraph (a) of this
Section 11 shall upon such termination of Continuous Service be
forfeited and returned to the Corporation. Unless the Committee
shall have provided in the agreement referred to in paragraph (d)
of this Section 11 for a ratable lapse of restrictions with respect
to an award of shares of Restricted Stock during the Restricted
Period, if a Participant ceases to maintain Continuous Service by
reason of death, total or partial disability or normal or early
retirement, such portion of such shares of Restricted Stock awarded
to such Participant which at the time of such termination of
Continuous Service are subject to the restrictions imposed by
paragraph (a) of this Section 11 as shall be equal to the portion
of the Restricted Period with respect to such shares which shall
have elapsed at the time of such termination of Continuous Service
shall be free of restrictions and shall not be forfeited.
(c) Each certificate in respect of shares of Restricted
Stock awarded under the Plan shall be registered in the name of the
Participant and deposited by the Participant, together with a stock
power endorsed in blank, with the Corporation and shall bear the
following (or a similar) legend:
"The transferability of this certificate and the
shares of stock represented hereby are subject to the
terms and conditions (including forfeiture) contained in
the 1997 Stock Option and Incentive Plan of Horizon
Bancorp, Inc. and an Agreement entered into between the
registered owner and Horizon Bancorp, Inc. Copies of such
Plan and Agreement are on file in the offices of the
Secretary of Horizon Bancorp, Inc., 5800 North MoPac
Expressway, Austin, Texas 78731."
(d) At the time of an award of shares of Restricted
Stock, the Participant shall enter into an Agreement with the
Corporation in a form specified by the Committee, agreeing to the
terms and conditions of the award and such other matters as the
Committee shall in its sole discretion determine.
(e) At the time of an award of shares of Restricted
Stock, the Committee may, in its discretion, determine that the
payment to the Participant of dividends declared or paid on such
shares, or specified portion thereof, by the Corporation shall be
deferred until the earlier to occur of (i) the lapsing of the
restrictions imposed under paragraph (a) of this Section 11 or
(ii) the forfeiture of such shares under paragraph (b) of this
Section 11, and shall be held by the Corporation for the account of
the Participant until such time. In the event of such deferral,
there shall be credited at the end of each year (or portion
thereof) interest on the amount of the account at the beginning of
the year at a rate per annum as the Committee, in its discretion,
may determine. Payment of deferred dividends, together with
interest accrued thereon as aforesaid, shall be made upon the
earlier to occur of the events specified in (i) and (ii) of the
immediately preceding sentence.
(f) At the expiration or lapse of the restrictions
imposed by paragraph (a) of this Section 11, the Corporation shall
redeliver to the Participant (or where the relevant provision of
paragraph (b) of this Section 11 applies in the case of a deceased
Participant, to his legal representative, beneficiary or heir) the
certificate(s) and stock power deposited with it pursuant to
paragraph (c) of this Section 11 and the Shares represented by such
certificate(s) shall be free of the restrictions referred to in
paragraph (a) of this Section 11.
12. Adjustments Upon Changes in Capitalization. In the event
of any change in the outstanding Shares subsequent to the effective
date of the Plan by reason of any reorganization, recapitalization,
stock split, stock dividend, combination or exchange of shares,
merger, consolidation or any change in the corporate structure or
Shares of the Corporation, the maximum aggregate number and class
of shares as to which Awards may be granted under the Plan and the
number and class of shares with respect to which Awards theretofore
have been granted under the Plan shall be appropriately adjusted by
the Committee, whose determination shall be conclusive. Any shares
of stock or other securities received, as a result of any of the
foregoing, by a Participant with respect to Restricted Stock shall
be subject to the same restrictions and the certificate(s) or other
instruments representing or evidencing such shares or securities
shall be legended and deposited with the Corporation in the manner
provided in Section 11 hereof.
13. Effect of Merger. In the event of any merger,
consolidation or combination of the Corporation (other than a
merger, consolidation or combination in which the Corporation is
the continuing entity and which does not result in the outstanding
Shares being converted into or exchanged for different securities,
cash or other property, or any combination thereof) pursuant to a
plan or agreement the terms of which are binding upon all
shareholders of the Corporation (except to the extent that
dissenting shareholders may be entitled, under statutory provisions
or provisions contained in the certificate of incorporation, to
receive the appraised or fair value of their holdings), any
Participant to whom an Option or Right has been granted at least
six months prior to such event shall have the right (subject to the
provisions of the Plan and any limitation applicable to such Option
or Right), thereafter and during the term of each such Option or
Right, to receive upon exercise of any such Option or Right an
amount equal to the excess of the fair market value on the date of
such exercise of the securities, cash or other property, or
combination thereof, receivable upon such merger, consolidation or
combination in respect of a Share over the Exercise Price of such
Right or Option, multiplied by the number of Shares with respect to
which such Option or Right shall have been exercised. Such amount
may be payable fully in cash, fully in one or more of the kind or
kinds of property payable in such merger, consolidation or
combination, or partly in cash and partly in one or more of such
kind or kinds of property, all in the discretion of the Committee.
Unless the Committee shall have provided otherwise in the agreement
referred to in paragraph (d) of Section 11 hereof, in the event of
any such merger, consolidation or combination any Restricted Period
shall lapse with respect to Shares of Restricted Stock awarded at
least six months prior to such event, all such Shares shall be
fully vested in the Participants to whom such Shares were awarded,
and the holders of such Shares shall be eligible to receive in
respect thereof the full amount receivable per Share in such
merger, consolidation or combination.
14. Effect of Change in Control. Each of the events
specified in the following clauses (i) through (iii) of this
Section 14 shall be deemed a "change of control": (i) any third
person, including a "group" as defined in Section 13(d)(3) of the
Securities Exchange Act of 1934, shall become the beneficial owner
of shares of the Corporation with respect to which 25% or more of
the total number of votes for the election of the Board of
Directors of the Corporation may be cast, (ii) as a result of, or
in connection with, any cash tender offer, exchange offer, merger
or other business combination, sale of assets or contested
election, or combination of the foregoing, the persons who were
directors of the Corporation shall cease to constitute a majority
of the Board of Directors of the Corporation or (iii) the
shareholders of the Corporation shall approve an agreement
providing either for a transaction in which the Corporation will
cease to be an independent publicly owned entity or for a sale or
other disposition of all or substantially all the assets of the
Corporation provided, however, that the occurrence of any such
events shall not be deemed a "change in control" if, prior to such
occurrence, a resolution specifically approving such occurrence
shall have been adopted by at least a majority of the Board of
Directors of the Corporation. If the Continuous Service of any
Participant of the Corporation or any Affiliate is involuntarily
terminated for whatever reason, at any time within eighteen months
after a change in control, unless the Committee shall have
otherwise provided in the agreement referred to in paragraph (d) of
Section 11 hereof, any Restricted Period with respect to Restricted
Stock theretofore awarded to such Participant shall lapse upon such
termination and all Shares awarded as Restricted Stock shall become
fully vested in the Participant to whom such Shares were awarded.
If a tender offer or exchange offer for Shares (other than such an
offer by the Corporation) is commenced, or if the event specified
in clause (iii) above shall occur, unless the Committee shall have
otherwise provided in the instrument evidencing the grant of an
Option or Stock Appreciation Right, all Options and Stock
Appreciation Rights theretofore granted and not fully exercisable
shall become exercisable in full upon the happening of such event
and shall remain so exercisable for a period of sixty days
following such date, after which they shall revert to being
exercisable in accordance with their terms; provided, however, that
no Option or Stock Appreciation Right shall be exercisable by a
director, Senior Officer or Ten Percent Beneficial Owner of the
Corporation within six months of the date of grant of such Option
or Stock Appreciation Right and no Option or Stock Appreciation
Right which has previously been exercised or otherwise terminated
shall become exercisable.
15. Assignments and Transfers. No Award nor any right or
interest of a Participant under the Plan in any instrument
evidencing any Award under the Plan may be assigned, encumbered or
transferred except, in the event of the death of a Participant, by
will or the laws of descent and distribution or, in the case of
Awards other than Incentive Stock Options, pursuant to a qualified
domestic relations order, as defined in the Code or Title I of
ERISA or the rules thereunder.
16. Employee Rights Under the Plan. No director, officer or
employee shall have a right to be selected as a Participant nor,
having been so selected, to be selected again as a Participant and
no director, officer, employee or other person shall have any claim
or right to he granted an Award under the Plan or under any other
incentive or similar plan of the Corporation or any Affiliate.
Neither the Plan nor any action taken thereunder shall be construed
as giving any employee any right to be retained in the employ of
the Corporation or any Affiliate.
17. Delivery and Registration of Stock. The Corporation's
obligation to deliver Shares with respect to an Award shall, if the
Committee so requests, be conditioned upon the receipt of a
representation as to the investment intention of the Participant to
whom such Shares are to be delivered, in such form as the Committee
shall determine to be necessary or advisable to comply with the
provisions of the Securities Act of 1933, as amended, or any other
Federal, state or local securities legislation or regulation. It
may be provided that any representation requirement shall become
inoperative upon a registration of the Shares or other action
eliminating the necessity of such representation under such
securities act or other securities legislation. The Corporation
shall not be required to deliver any Shares under the Plan prior to
(i) the admission of such shares to listing on any stock exchange
on which Shares may then be listed, and (ii) the completion of such
registration or other qualification of such Shares under any state
or Federal law, rule or regulation, as the Committee shall
determine to be necessary or advisable.
This Plan is intended to comply with Rule 16b-3 under the
Securities Exchange Act of 1934. Any provision of the Plan which
is inconsistent with said Rule shall, to the extent of such
inconsistency, be inoperative and shall not affect the validity of
the remaining provisions of the Plan.
18. Withholding Tax. Upon the termination of the Restricted
Period with respect to any shares of Restricted Stock (or at any
such earlier time, if any, that an election is made by the
Participant under Section 83(b) of the Code, or any successor
provision thereto, to include the value of such shares in taxable
income), the Corporation shall retain a sufficient number of shares
held by it to cover the amount required to be withheld. The
Corporation shall have the right to deduct from all dividends paid
with respect to shares of Restricted Stock the amount of any taxes
which the Corporation is required to withhold with respect to such
dividend payments.
The Corporation shall have the right to deduct from all
amounts paid in cash with respect to the exercise of a Right under
the Plan any taxes required by law to be withheld with respect to
such cash payments. Where a Participant or other person is
entitled to receive Shares pursuant to the exercise of an Option or
Right pursuant to the Plan, the Corporation shall have the right to
require the Participant or such other person to pay the Corporation
the amount of any taxes which the Corporation is required to
withhold with respect to such Shares.
No discretion or choice shall be conferred upon any
Participant, or other Person entitled to receive Shares, with
respect to the form, timing or method of any such tax withholding.
19. Amendment or Termination. The Board of Directors of the
Corporation may amend, suspend or terminate the Plan or any portion
thereof at any time, but (except as provided in Section 12 hereof)
no amendment shall be made without approval of the shareholders of
the Corporation which shall (i) materially increase the aggregate
number of Shares with respect to which Awards may be made under the
Plan, (ii) materially increase the aggregate number of Shares which
may be subject to Awards to Participants who are not Employees or
(iii) change the class of persons eligible to participate in the
Plan; provided, however, that no such amendment, suspension or
termination shall impair the rights of any Participant, without his
consent, in any Award theretofore made pursuant to the Plan.
20. Effective Date and Term of Plan. The Plan shall become
effective upon its adoption by the Board of Directors of the
Corporation, subject to the approval of the Plan by stockholders of
the Corporation. It shall continue in effect for a term of ten
years from the earlier of the date of adoption of the Plan by the
Board of Directors or its approval by the shareholders, unless
sooner terminated under Section 19 hereof.
21. Formula Grant. If any options are granted under the
Plan, the following non-employee members of the Board of Directors
of the Corporation at the time of stockholder ratification of this
Plan are hereby granted ten-year, Non-Qualified Stock Option to the
following shares: Robert Ellis 7,309 shares and Michael Rotman
3,655 shares. The Exercise Price per share on such options shall
equal the Market Value per share of the Shares on the date of
grant. Each such Option shall be evidenced by a Non-Qualified
Stock Option Agreement in a form approved by the Board of Directors
and shall be subject in all respects to the terms and conditions of
this Plan, which are controlling.
22. Notwithstanding anything else in this Plan to the
contrary, to the extent that the Plan provides for formula awards,
as defined in Rule 16b-3(c)(2)(ii) under the Securities Exchange
Act of 1934, such provisions may not be amended more than once
every six months, other than to comport with changes in the Code,
ERISA or the rules thereunder.
