APPENDIX C

 

AMSOUTH BANCORPORATION 2006 LONG TERM INCENTIVE COMPENSATION PLAN

 

 

 

 

 

 

 

  

 

  

PAGE


Article 1.

  

Establishment, Objectives, and Duration

  

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Article 2.

  

Definitions

  

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Article 3.

  

Administration; Minimum Service Requirement

  

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Article 4.

  

Shares Subject to the Plan and Maximum Awards; Share Counting

  

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Article 5.

  

Eligibility and Participation

  

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Article 6.

  

Stock Options

  

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Article 7.

  

Stock Appreciation Rights

  

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Article 8.

  

Restricted Stock

  

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Article 9.

  

Stock Units

  

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Article 10.

  

Performance Shares

  

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Article 11.

  

Performance Units

  

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Article 12.

  

Performance Measures

  

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Article 13.

  

Beneficiary Designation

  

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Article 14.

  

Deferrals

  

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Article 15.

  

Rights of Employees

  

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Article 16.

  

Change in Control

  

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Article 17.

  

Amendment, Modification, and Termination

  

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Article 18.

  

Withholding

  

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Article 19.

  

Indemnification

  

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Article 20.

  

Successors

  

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Article 21.

  

Legal Construction; General Provisions

  

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ARTICLE 1. ESTABLISHMENT, OBJECTIVES, AND DURATION

 

1.1

 

EFFECTIVE DATE OF THE PLAN.    Effective upon the approval of the stockholders of AmSouth Bancorporation, a Delaware corporation (hereinafter referred to as the Corporation), as provided below in this Section 1.1, the Corporation hereby establishes an incentive compensation plan to be known as the AmSouth Bancorporation 2006 Long Term Incentive Compensation Plan, as set forth in this document. The Plan permits the grant of Nonqualified Stock Options, Incentive Stock Options, Stock Appreciation Rights, Restricted Stock, Stock Units, Performance Shares and Performance Units. The Plan shall become effective upon its approval by the stockholders of the Corporation in accordance with Delaware law (the “Effective Date”), and it shall remain in effect as provided in Section 1.3 hereof. If the Plan is not approved by shareholders of the Corporation, the Plan shall be null, void and of no force or effect.

 

1.2

 

OBJECTIVES OF THE PLAN.    The objectives of the Plan are to optimize the profitability and growth of the Company through incentives which are consistent with the Company’s objectives and which link the interests of Participants to those of the Corporation’s stockholders; to provide Participants with an incentive for excellence in individual performance; and to promote teamwork among Participants. The Plan is further intended to provide flexibility to the Company in its ability to motivate, attract, and retain the services of Participants who make significant contributions to the Company’s success and to allow Participants to share in the success of the Company.

 

1.3

 

DURATION OF THE PLAN.    If the Plan is approved by the Corporation’s stockholders as provided in Section 1.1 hereof, it shall remain in effect until (a) all Shares subject to it shall have been purchased or acquired according to the Plan’s provisions, or (b) it is sooner terminated by the Board of Directors as provided in Article 17 hereof, and it shall remain in effect thereafter with respect to any Awards that are then outstanding. In no event may an Award be granted under the Plan after April 19, 2016, and in no event may an Incentive Stock Option be granted under the Plan more than ten (10) years from the date the Plan is adopted by the Board, or the date the Plan is approved by the shareholders of the Corporation, whichever is earlier.

 

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ARTICLE 2. DEFINITIONS

 

Whenever used in the Plan, the following terms shall have the meanings set forth below, and when the meaning is intended, the initial letter of the word shall be capitalized:

 

2.1

 

“AWARD” means, individually or collectively, a grant under this Plan of Nonqualified Stock Options, Incentive Stock Options, Stock Appreciation Rights, Restricted Stock, Stock Units, Performance Shares or Performance Units.

 

2.2

 

“AWARD AGREEMENT” means an agreement entered into by the Corporation and each Participant setting forth the terms and provisions applicable to Awards granted under this Plan.

 

2.3

 

“BENEFICIAL OWNER” or “BENEFICIAL OWNERSHIP” shall have the meaning ascribed to such term in Rule 13d-3 of the General Rules and Regulations under the Exchange Act.

 

2.4

 

“BOARD” or “BOARD OF DIRECTORS” means the Board of Directors of the Corporation.

 

2.5

 

“CAUSE” shall be determined by the Committee, in exercise of good faith and reasonable judgment, and, unless the Award Agreement provides otherwise, means the occurrence of any one or more of the following:

 

 

(i)

 

The willful and continued failure by the Participant to substantially perform his duties (other than any such failure resulting from a medical condition that prevents the Participant, even with a reasonable accommodation by the Company, from substantially performing his duties), after a written demand for substantial performance is delivered by the Committee to the Participant that specifically identifies the manner in which the Committee believes that the Participant has not substantially performed his duties, and the Participant has failed to remedy the situation within thirty (30) calendar days of receiving such notice; or

 

 

(ii)

 

The Participant’s conviction for committing an act of fraud, embezzlement, theft, or another act constituting a felony; or

 

 

(iii)

 

The willful engaging by the Participant in gross misconduct materially and demonstrably injurious to the Company, as determined by the Committee. However, no act or failure to act, on the Participant’s part shall be considered willful unless done, or omitted to be done, by the Participant not in good faith and without reasonable belief that his action or omission was in the best interest of the Company.

 

2.6

 

“CHANGE IN CONTROL” shall be deemed to have occurred as of the first day that any one or more of the following conditions shall have been satisfied:

 

 

(a)

 

Any Person (other than those Persons in control of the Corporation as of the Effective Date, or other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company, or a corporation or other entity owned directly or indirectly by the stockholders of the Corporation in substantially the same proportions as their ownership of stock of the Corporation) becomes the Beneficial Owner, directly or indirectly, of securities of the Corporation representing twenty percent (20%) or more of the combined voting power of the Corporation’s then outstanding securities; or

 

 

(b)

 

During any period of two (2) consecutive years or less ending after the Effective Date (whether or not including any period prior to the Effective Date), individuals who at the beginning of such period constitute the Board (and any new Director, whose election by the Corporation’s stockholders was approved by a vote of at least two-thirds (2/3) of the Directors then still in office who either were Directors at the beginning of the period or whose election or nomination for election was so approved), cease for any reason to constitute at least sixty percent (60%) thereof; or

 

 

(c)

 

The stockholders of the Corporation approve: (i) a plan of complete liquidation of the Corporation; or (ii) an agreement for the sale or disposition of all or substantially all the Corporation’s assets; or

 

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(iii) a merger, consolidation, or reorganization of the Corporation or any Subsidiary with or involving any other corporation, other than a merger, consolidation, or reorganization that would result in the voting securities of the Corporation outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity), at least sixty percent (60%) of the combined voting power of the voting securities of the Corporation (or such surviving entity) outstanding immediately after such merger, consolidation, or reorganization.

 

However, in no event shall a Change in Control be deemed to have occurred, with respect to the Participant, if the Participant is part of a purchasing group which consummates the Change in Control transaction. The Participant shall be deemed part of a purchasing group for purposes of the preceding sentence if the Participant is an equity participant in the purchasing company or group (except for: (i) passive ownership of less than three percent (3%) of the stock of the purchasing company; or (ii) ownership of equity participation in the purchasing company or group which is otherwise not significant, as determined prior to the Change in Control by a majority of the Nonemployee Directors who were Directors prior to the transaction, and who continue as Directors following the transaction).

 

Notwithstanding the foregoing provisions of this Section 2.6, with respect to any Award (or portion of an Award) that provides for a deferral of compensation that is subject to Code Section 409A, to the extent necessary to prevent such compensation from being includible in gross income pursuant to subparagraph (a)(1)(A) of that Code Section (and only to that extent), a “Change in Control” shall be deemed to have occurred only if and when (i) any one or more of the conditions set forth in paragraph (a), (b) and (c) above of this Section 2.6 shall have been satisfied, and (ii) as to the Participant to whom the Award was granted, the event in question also constitutes a “change in the ownership or effective control of the corporation, or in the ownership of a substantial portion of the assets of the corporation” within the meaning of subparagraph (a)(2)(A) of Code Section 409A.

 

2.7

 

“CODE” means the Internal Revenue Code of 1986, as amended from time to time. References to a particular section of the Code shall include references to any related proposed and final Treasury Regulations and any other related, officially published guidance from the IRS (including without limitation, with respect to Code Section 409A, Notice 2005-1) and to successor provisions of the Code.

 

2.8

 

“COMMITTEE” means the Human Resources Committee of the Board, as specified in Article 3 herein, or such other committee or person as may administer the Plan or grants of Awards under the Plan in accordance with Article 3 hereof.

 

2.9

 

“COMPANY” means AmSouth Bancorporation, and also means any Subsidiary and any corporation of which a majority of the voting capital stock is owned directly or indirectly by AmSouth Bancorporation or by any of its Subsidiaries, and any other corporation designated by the Committee as being a Company hereunder (but only during the period of such ownership or designation).

 

2.10

 

“CORPORATION” means AmSouth Bancorporation, a Delaware corporation.

 

2.11

 

“COVERED EMPLOYEE” means an Employee who the Committee anticipates at the time an Award is granted to such Employee will be, as of the last day of the Company’s taxable year in which a taxable event with respect to such Award may occur, a “covered employee”, as defined in the regulations promulgated under Code Section 162(m), or any successor statute.

 

2.12

 

“DIRECTOR” means any individual who is a member of the Board of Directors of the Corporation.

 

2.13

 

“DISABILITY” means, unless the applicable Award Agreement provides otherwise, that the Participant (i) has established to the satisfaction of the Committee that the Participant is unable to engage in any

 

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substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to last for a continuous period of not less than 12 months (all within the meaning of Section 22(e)(3) of the Code), and (ii) has satisfied any requirement imposed by the Committee in regard to evidence of such disability. Notwithstanding the foregoing provisions of this Section 2.13, with respect to any Award (or portion of an Award) that provides for a deferral of compensation that is subject to Code Section 409A, to the extent necessary to prevent such compensation from being includible in gross income pursuant to subparagraph (a)(1)(A) of that Code Section (and only to that extent), “Disability” means a Disability as defined above that also qualifies the Participant as “Disabled” within the meaning of subparagraph (a)(2)(C) of Code Section 409A.

 

2.14

 

“EFFECTIVE DATE” shall have the meaning ascribed to such term in Section 1.1 hereof.

 

2.15

 

“EMPLOYEE” means any key officer or employee of the Company as determined by the Committee. The grant of an Award to an officer or employee of the Company shall be deemed to constitute a determination by the Committee that such individual is a key officer or employee of the Company for purposes of this Plan. Directors who are not employed by the Company shall not be considered Employees under this Plan.

 

2.16

 

“EXCHANGE ACT” means the Securities Exchange Act of 1934, as amended from time to time, or any successor act thereto.

 

2.17

 

“FAIR MARKET VALUE” shall be determined on the basis of the closing sale price of Shares on the date in question as reported by the principal consolidated transactions reporting system for securities listed on the principal securities exchange on which the Shares are traded or, if there is no such sale on the relevant date, then on the last previous day on which a sale was reported.

 

2.18

 

“FREESTANDING SAR” means an SAR that is granted independently of any Option, as described in Article 7 herein.

 

2.19

 

“INCENTIVE STOCK OPTION” or “ISO” means an option to purchase Shares granted under Article 6 herein which is designated as an Incentive Stock Option and which is intended to receive the tax treatment applicable to incentive stock options under Code Section 422 if it is exercised during a period in which option exercises are eligible for incentive stock option tax treatment pursuant to Code Section 422(a)(2), 422(c)(6) or 421(c)(1)(A).

 

2.20

 

“INSIDER” shall mean an individual who is, on the relevant date, an officer, director or ten percent (10%) beneficial owner of any class of the Corporation’s equity securities that is registered pursuant to Section 12 of the Exchange Act, all as defined under Section 16 of the Exchange Act.

 

2.21

 

“NONEMPLOYEE DIRECTOR” means an individual who is a member of the Board of Directors of the Corporation but who is not an employee of the Company.

 

2.22

 

“NONQUALIFIED STOCK OPTION” or “NQSO” means an option to purchase Shares granted under Article 6 herein which is not intended to receive the tax treatment applicable to incentive stock options under Code Section 422 if it is exercised during a period in which option exercises are eligible for incentive stock option tax treatment pursuant to Code Section 422(a)(2), 422(c)(6) or 421(c)(1)(A).

 

2.23

 

“OPTION” means an Incentive Stock Option or a Nonqualified Stock Option, as described in Article 6 herein.

 

2.24

 

“OPTION PRICE” means the price at which a Share may be purchased by a Participant pursuant to an Option.

 

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2.25

 

“PARTICIPANT” means an Employee who has outstanding an Award granted under the Plan. The term Participant shall not include Nonemployee Directors.

 

2.26

 

“PERFORMANCE-BASED EXCEPTION” means the performance-based compensation exception set forth in Code Section 162(m)(4)(C) from the tax deductibility limitations of Code Section 162(m).

 

2.27

 

“PERFORMANCE SHARE” means a right granted pursuant to Article 10 to receive a specified number of Shares, and/or an amount of money determined by reference to the Fair Market Value of a specified number of Shares, at a future time or times if a specified performance goal is attained and any other terms and conditions specified by the Committee and set forth in the Award Agreement documenting the Performance Share are satisfied.

 

2.28

 

“PERFORMANCE UNIT” means a right granted pursuant to Article 11 to receive a specified amount of money (other than an amount of money determined by reference to the Fair Market Value of a specified number of Shares), and/or Shares having a Fair Market Value equal to such specified amount of money, at a future time or times if a specified performance goal is attained and any other terms and conditions specified by the Committee and set forth in the Award Agreement documenting the Performance Unit are satisfied.

 

2.29

 

“PERIOD OF RESTRICTION” means the period during which the right of the Participant to transfer Shares of Restricted Stock is limited in some way (based on the passage of time, the achievement of performance objectives, or upon the occurrence of other events as determined by the Committee, at its discretion), and during all or part of which the Shares of Restricted Stock may (but need not) also be subject to a substantial risk of forfeiture, as provided in Article 8 herein. With respect to Stock Units, the “Period of Restriction” means any period during which the Employee’s right to receive or transfer the Shares subject to the Stock Units is limited in some way (based on the passage of time, the achievement of performance objectives, or upon the occurrence of other events as determined by the Committee, at its discretion), and during all or part of which the Employee’s right to receive or retain the Shares may (but need not) also be subject to a substantial risk of forfeiture, as provided in Article 9 herein.

 

2.30

 

“PERSON” shall have the meaning ascribed to such term in Section 3(a)(9) of the Exchange Act and used in Sections 13(d) and 14(d) thereof, including a group as defined in Section 13(d) thereof.

 

2.31

 

“PLAN” means the AmSouth Bancorporation 2006 Long Term Incentive Compensation Plan set forth in these pages, as amended and in effect from time to time on or after the Effective Date.

 

2.32

 

“RESTRICTED STOCK” means an Award granted to a Participant pursuant to Article 8 herein.

 

2.33

 

“RETIREMENT” means, unless the applicable Award Agreement provides otherwise, that the Participant’s employment terminates (other than for Cause) at a time when the Participant’s age and years of service makes the Participant eligible to receive immediately payable retirement benefits under the AmSouth Bancorporation Retirement Plan, under the successor or replacement of such Retirement Plan if it is then no longer in effect, or under any other retirement plan maintained or adopted by the Company which is determined by the Committee to be the functional equivalent of such Retirement Plan.

 

2.34

 

“SHARE POOL” means the aggregate number of Shares that may be issued under the Plan, as provided in Section 4.1(a) below.

 

2.35

 

“SHARES” means shares of common stock of AmSouth Bancorporation, par value $1.00 per share.

 

2.36

 

“STOCK APPRECIATION RIGHT” or “SAR” means an Award granted alone or in connection with a related Option pursuant to the terms of Article 7 herein.

 

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2.37

 

“STOCK UNIT” means a right to receive a Share either at the time the right is granted or at a later time or times, granted in accordance with Article 9 herein.

 

2.38

 

“SUBSIDIARY” means any corporation, partnership, joint venture or other entity in which the Company directly or indirectly has a majority voting interest; provided, however, that in the case of an Incentive Stock Option, the term “Subsidiary” means a Subsidiary (as defined by the preceding clause) which is also a “subsidiary corporation” as defined in Section 424(f) of the Code. For purposes of establishing that Options, SARs and other Awards granted under the Plan relate to “service recipient stock” and “stock of the service recipient” within the meaning of Proposed Treasury Regulation 1.409A-1(b)(5), in applying Code Section 1563(a)(1), (2) and (3) for purposes of determining a controlled group of corporations under Code Section 414(b), the language “at least 50 percent” is to be used instead of “at least 80 percent” each place it appears in Code Section 1563(a)(1), (2) and (3), and in applying Treasury Regulation Section 1.414(c)-(2) for purposes of determining trades or businesses (whether or not incorporated) that are under common control for purposes of Code Section 414(c), the language “at least 50 percent” is to be used instead of “at least 80 percent” each place it appears in Treasury Regulation Section 1.414(c)-(2).

 

2.39

 

“TANDEM SAR” means a SAR granted pursuant to Article 7 herein that has an exercise price that is equal to the Option Price of a related Option, and that may be exercised only when the related Option is exercisable and only upon the surrender by the Participant of the right to purchase a Share under the related Option (and which is likewise surrendered when the related Option is exercised).

 

ARTICLE 3. ADMINISTRATION; MINIMUM SERVICE REQUIREMENT

 

3.1

 

THE COMMITTEE.    The Plan shall be administered by the Human Resources Committee of the Board, or by any other committee appointed by the Board to administer the Plan. Unless the Board determines otherwise, each member of the Committee shall be a “non-employee director” within the meaning of Rule 16b-3 under the Exchange Act, or any successor provision, and an “outside director” within the meaning of Section 162(m)(4)(C)(i) of the Code, and shall satisfy any applicable independence requirements of the principal stock exchange (or absent such an exchange, the principal electronic trading network) on which Shares may be listed from time to time. The members of the Committee shall be appointed from time to time by, and shall serve at the discretion of, the Board of Directors.

 

3.2

 

AUTHORITY OF THE COMMITTEE.    Except as limited by law or by the Certificate of Incorporation or Bylaws of the Corporation, and subject to the provisions herein, including Section 3.4, the Committee shall have full power and discretion to select Employees who shall participate in the Plan; determine the sizes and types of Awards; determine the terms and conditions of Awards in a manner consistent with the Plan; define undefined terms used in the Plan and any agreement or instrument entered into under the Plan; construe and interpret the Plan and any agreement or instrument entered into under the Plan; establish, amend, or waive rules and regulations for the Plan’s administration; and (subject to the provisions of Article 17 herein) amend the terms and conditions of any outstanding Award to the extent such terms and conditions are within the discretion of the Committee as provided in the Plan. Without limiting the generality of the foregoing, the Committee shall have the authority to establish and administer performance goals applicable to Awards under the Plan, and the authority to certify that such performance goals are attained, within the meaning of Treasury Regulation Section 1.162-27(c)(4). Further, the Committee shall make all other determinations which may be necessary or advisable for the administration of the Plan. To the extent permitted by law, the Committee may delegate its authority in accordance with Section 3.4 below.

 

3.3

 

DECISIONS BINDING.    All determinations and decisions made by the Committee or the Chief Executive Officer of the Corporation pursuant to the provisions of the Plan and all related orders and resolutions of the Board shall be final, conclusive and binding on all persons, including the Company, its stockholders, Employees, Participants, and their estates and beneficiaries.

 

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3.4

 

GRANTS TO NON-INSIDERS BY CHIEF EXECUTIVE OFFICER.    To the extent permissible under governing law, rules and regulations, and, in particular, Sections 141(c) and 157(c) of the General Corporation Law of Delaware and applicable rules or listing standards of the principal stock exchange (or absent such an exchange, the principal electronic trading network) on which Shares may be listed from time to time, the Chief Executive Officer of the Corporation shall have the authority to make and administer grants of Awards under this Plan to non-Insiders upon such terms and conditions as the Chief Executive Officer shall determine; provided, however, that the total number of Awards granted by the Chief Executive Officer each year shall be subject to approval by the Committee. The Chief Executive Officer shall not have authority to make or administer grants of Awards to Covered Employees. The provisions of this Section 3.4 shall be in addition to and not in limitation of any other power to delegate its authority with respect to the Plan that the Committee may have, whether under the Certificate of Incorporation or Bylaws of the Corporation or otherwise.

 

3.5

 

GRANT DATE OF AWARDS.    For purposes of the Plan, the date on which an Award is granted shall be the date on which the Committee intends the grant of the Award to be effective, which may be the date on which the Committee takes the action granting the Award or any later date the Committee may specify.

 

3.6

 

MINIMUM SERVICE REQUIREMENT.    Subject to Article 16, and notwithstanding any provision of the Plan (other than Article 16) to the contrary, if the exercisability of Options or Freestanding SARs or the non-forfeitability of Restricted Stock or Stock Units is to be contingent only on the recipient’s future services, and not on the attainment of a performance goal, then the Options or Freestanding SARs may not become exercisable and the Restricted Stock or Stock Units may not become non-forfeitable more rapidly than in equal monthly installments over the three years after the date on which the Award is granted; provided that the Committee may but need not provide for Options or Freestanding SARs to become exercisable and Restricted Stock or Stock Units to become non-forfeitable in whole or in part before the end of such three year period if the recipient’s death, Disability or Retirement or another extraordinary circumstance or event occurs, or if the Award is being granted as an inducement for the recipient to enter into the employ of the Company, and, provided further, that dividends payable on Restricted Stock and dividend equivalents credited in respect of Options, Freestanding SARs and Stock Units may (if the Committee so provides) be non-forfeitable without regard to such three year period. This Section 3.6 shall not apply to Awards which are granted in full or partial satisfaction of payments due under other compensation programs of the Company unless the applicable Award Agreement provides otherwise.

 

ARTICLE 4. SHARES SUBJECT TO THE PLAN AND MAXIMUM AWARDS; SHARE COUNTING

 

4.1

 

NUMBER OF SHARES AVAILABLE FOR GRANTS; MAXIMUM AWARDS.    Subject to adjustment as provided in Section 4.5 herein, and subject to the other provisions of this Article 4,

 

 

(a)

 

the aggregate number of Shares that may be issued under the Plan (the “Share Pool”) is twenty-three million (23,000,000) Shares. The maximum aggregate number of Shares that may (but need not) be issued pursuant to the exercise of Incentive Stock Options under the Plan is equal to the Share Pool.

 

 

(b)

 

The number of Shares of Restricted Stock that may be issued from the Share Pool pursuant to Article 8 herein plus the number of Shares that may be issued from the Share Pool pursuant to Stock Units, Performance Shares and Performance Units shall not exceed five million five hundred thousand (5,500,000) Shares.

 

If, in connection with an acquisition of another company or all or part of the assets of another company by the Corporation or another Company, or in connection with a merger or other combination of another company with the Corporation or another Company, the Corporation or another Company either (A) assumes stock options or other stock incentive obligations of such other company, or (B) grants stock options or other stock incentives in substitution for stock options or other stock incentive obligations of such other company, then none of the Shares that are issued or issuable pursuant to such assumed or substituted stock options or other stock incentives shall be charged against the limitations set forth in Section 4.1(a) or (b) above.

 

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(c)

 

The maximum number of Shares with respect to which Options or SARs may be granted during any one calendar year to any Employee, and the maximum aggregate number of Shares with respect to which any and all Awards (other than Options or SARs or Performance Units) may be granted in any one calendar year to any one Covered Employee, shall each be nine hundred fifty thousand (950,000) Shares (prior to any adjustments for changes in capitalization pursuant to Section 4.5 below) or, in the case of Awards other than Options or SARs or Performance Units, their equivalent in cash.

 

 

(d)

 

No Employee may receive more than four million dollars ($4,000,000) (or the equivalent thereof in Shares) in payment of Performance Units that are granted in any one calendar year.

 

If, after Stock Units, Performance Shares or Performance Units are earned, the delivery of Shares or cash is deferred, any additional Shares or amounts attributable to dividends or earnings during the deferral period shall be disregarded in applying the per Employee limitations set forth in paragraphs (c) and (d) above of this Section 4.1.

 

4.2

 

SHARE COUNTING—IN GENERAL.    Subject to Section 4.4 below, the Share Pool, and the maximum aggregate number of Shares that may be issued pursuant to the exercise of Incentive Stock Options set forth in Section 4.1(a), and the number of Shares that may be issued pursuant to Restricted Stock, Stock Units, Performance Shares and Performance Units set forth in Section 4.1(b) above, shall be charged only for the number of Shares which are actually issued under the Plan; if any Shares subject to an Award shall not be issued and shall cease to be issuable pursuant to the Award because of the termination, expiration, forfeiture, cancellation or surrender, in whole or in part, of such Award, or because such Award is settled in cash, or for any other reason, or if any such Shares shall, after issuance, be reacquired by the Corporation because of the Participant’s failure to comply with the terms and conditions of the Award or for any other reason, the Shares not so issued, or the Shares so reacquired by the Corporation, as the case may be, shall no longer be charged against the limitations provided for in Section 4.1(a) and (b) above and may again be made subject to Awards. For the avoidance of doubt, with respect to Stock Appreciation Rights, the Share Pool shall be charged only for the number of Shares which are actually issued in settlement of Stock Appreciation Rights. In the case of an exercise of Tandem Stock Appreciation Rights, if the number of Shares previously charged against the Share Pool and (if applicable) against the maximum aggregate number of Shares that may be issued pursuant to the exercise of Incentive Stock Options on account of the surrendered portion of the tandem Option exceeds the number of Shares (if any) actually issued in connection with the surrender of such portion of the Option and exercise of the Tandem SARs, the excess shall be added back to the Share Pool and, if applicable, the maximum aggregate number of Shares that may be issued pursuant to the exercise of Incentive Stock Options.

 

4.3

 

COUNTING FOR STOCK SURRENDERED OR WITHHELD.    Subject to Section 4.4 below, if a Participant pays the Option Price of an Option by tendering Shares in accordance with Section 6.7(b) below, or if the Company withholds Shares (including without limitation Shares that are issued or issuable pursuant to an Award such as Shares that are issued or issuable pursuant to the exercise of an Option) in accordance with Section 18.2 below in full or partial satisfaction of withholding taxes due in respect of an Award or in respect of the grant, exercise, vesting, distribution or payment of an Award, the number of Shares tendered in payment of the Option Price of the Option, or the number of Shares that the Company withholds in satisfaction of such withholding taxes, shall be added to the Share Pool and (if applicable) the maximum aggregate number of Shares that may be issued pursuant to the exercise of Incentive Stock Options, so that the Share Pool and (if applicable) the maximum aggregate number of Shares that may be issued pursuant to the exercise of Incentive Stock Options set forth in Section 4.1(a) above shall have been charged only for the net number of Shares that were issued by the Corporation pursuant to the Option exercise or the Award.

 

4.4

 

FAIL SAFE PROVISION.    If and to the extent that Section 4.2 or Section 4.3 above would cause the Corporation or the Plan to fail to satisfy the rules or listing standards of the principal stock exchange (or absent such an exchange, the principal electronic trading network) on which Shares may be listed from

 

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time to time, or would prevent Incentive Stock Options granted under the Plan from being treated as Incentive Stock Options under Code Section 422, then to that extent (and only to that extent) Section 4.2 and Section 4.3 shall be disregarded. For example, if one or more of the aforementioned Sections of the Plan will prevent Incentive Stock Options granted under the Plan from being treated as Incentive Stock Options under Code Section 422 if such Sections of the Plan are applied in determining the number of Shares that are available from time to time to be issued pursuant to Incentive Stock Options, and such Sections of the Plan will not prevent Incentive Stock Options granted under the Plan from being treated as Incentive Stock Options under Code Section 422 if such Sections of the Plan are applied in determining the number of Shares that are available from time to time to be issued pursuant to Nonqualified Stock Options or other Awards that are not Incentive Stock Options, then such Sections of the Plan shall be disregarded for purposes of determining the number of Shares that are available from time to time to be issued pursuant to Incentive Stock Options, but not for purposes of determining the number of Shares that are available from time to time to be issued pursuant to Nonqualified Stock Options or other Awards that are not Incentive Stock Options.

 

4.5

 

ADJUSTMENTS IN AUTHORIZED SHARES.    In the event of any change in corporate capitalization, such as a stock split or stock dividend, or a corporate transaction, such as any merger, consolidation, separation, including a spin-off, or other distribution of stock or property of the Company, any reorganization (whether or not such reorganization comes within the definition of such term in Code Section 368) or any partial or complete liquidation of the Company, such adjustment shall be made in the aggregate number and class of Shares which may be issued under the Plan in accordance with Section 4.1(a), in the number and class of and/or purchase price of Shares subject to outstanding Awards and the number and class of and/or exercise price of outstanding Options and SARs, and in the limits set forth in Section 4.1(b),(c) and (d), as may be determined to be appropriate and equitable by the Committee, in its sole discretion, to prevent dilution or enlargement of rights or to otherwise reflect the change in corporate capitalization or the transaction; provided, however, that (a) the number of Shares subject to any Award shall always be a whole number, and (b) with respect to Incentive Stock Options any such adjustments shall comply with Sections 422 and 424 of the Code, and (c) any adjustments with respect to Options and SARs shall never permit the exercise price of such Options and SARs to be less than the fair market value of the underlying stock (disregarding lapse restrictions as defined in Treasury Regulation Section 1.83-3(i)) on the date the Options and SARs were granted, within the meaning of Proposed Treasury Regulation Section 1.409A-1(b)(5) or a successor thereto.

 

ARTICLE 5. ELIGIBILITY AND PARTICIPATION

 

5.1

 

ELIGIBILITY.    Persons eligible to participate in this Plan include all Employees of the Company, including Employees who are members of the Board.

 

5.2

 

ACTUAL PARTICIPATION.    Subject to the provisions of the Plan, the Committee may, from time to time, select from all eligible Employees, those to whom Awards shall be granted and shall determine the nature and amount and terms and conditions of each Award. No Employee shall acquire any rights in or to or with respect to an Award unless and until a written Award Agreement signed by an officer of the Corporation and setting forth the terms and conditions of such Award is delivered to him. Any such Award Agreement shall be consistent with the Plan and incorporate it by reference. The Committee may rescind the grant of any Award, provided that after a written Award Agreement documenting the grant of such Award has been issued and delivered to the Employee the Committee may rescind the grant of such Award only with the written consent of such Employee.

 

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ARTICLE 6. STOCK OPTIONS

 

6.1

 

GRANT OF OPTIONS.    Subject to the terms and provisions of the Plan, Options may be granted to Employees in such number, and upon such terms, and at any time and from time to time as shall be determined by the Committee. Subject to Section 3.6, Options may be granted for such lawful consideration, including but not limited to money or other property, tangible or intangible, or labor or services received or to be received by the Company, as the Committee may determine when the Option is granted. Property for purposes of the preceding sentence shall include an obligation of the Company unless prohibited by applicable law. Subject to the foregoing and the other provisions of this Article 6, each Option may be exercisable in full at the time of grant or may become exercisable in one or more installments and at such time or times and subject to such terms and conditions, as the Committee may determine. Without limiting the foregoing, an Option may (but need not) provide by its terms that it will become exercisable in whole or in part upon the completion of specified periods of service or earlier achievement of one or more performance objectives specified therein, or that it will become exercisable only if one or more performance goals specified therein are achieved. The Committee may at any time accelerate the date on which an Option becomes exercisable, and no additional consideration need be received by the Company in exchange for such acceleration.

 

6.2

 

AWARD AGREEMENT.    Each Option grant shall be evidenced by an Award Agreement that shall specify the Option Price, the duration of the Option, the number of Shares to which the Option pertains, and such other provisions as the Committee shall determine. The Award Agreement also shall specify whether the Option is intended to be eligible for the tax treatment applicable to an ISO or a NQSO. No such designation of an Option as an ISO shall be deemed to constitute a representation or warranty that the Option will in fact receive the tax treatment of an ISO or any other tax treatment.

 

6.3

 

OPTION PRICE.    The Option Price of each Option granted under this Plan shall be at least equal to 100% of the Fair Market Value of a Share on the date the Option is granted (or in the case of any optionee who, at the time such Incentive Stock Option is granted, owns stock possessing more than 10 percent of the total combined voting power of all classes of stock of his employer corporation or of its parent or subsidiary corporation, not less than 110% of the Fair Market Value of a Share on the date the Incentive Stock Option is granted). The Option Price may, if the Committee so provides at the time of grant of an Option, be indexed to the increase or decrease in an index specified by the Committee or in stock prices of one or more other specified companies, provided that the Option Price may never be less than 100% of the Fair Market Value of a Share on the date the Option is granted.

 

6.4

 

DURATION OF OPTIONS.    Each Option granted to an Employee shall expire at such time as the Committee shall determine at the time of grant; provided, however, that (a) no Option shall be exercisable later than the tenth (10th) anniversary date of its grant, and (b) no Incentive Stock Option which is granted to any optionee who, at the time such Option is granted, owns stock possessing more than 10 percent of the total combined voting power of all classes of stock of his employer corporation or of its parent or subsidiary corporation, shall be exercisable after the expiration of five (5) years from the date such Option is granted.

 

6.5

 

DIVIDEND EQUIVALENTS.    The Committee may grant dividend equivalents in connection with Options granted under this Plan. Such dividend equivalents may be payable in cash or in Shares, upon such terms as the Committee, in its sole discretion, deems appropriate. The right to any such dividend equivalents shall be explicitly set forth as a separate arrangement within the meaning of Proposed Treasury Regulation Section 1.409A-1(b)(5)(i)(E) or any successor thereto.

 

6.6

 

EXERCISE OF OPTIONS.    Options granted under this Article 6 shall be exercisable at such times and be subject to such restrictions and conditions as the Committee shall in each instance approve, which need not be the same for each Option or for each Participant.

 

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6.7

 

PAYMENT.    Options granted under this Article 6 shall be exercised by the delivery of a written notice of exercise to the Corporation, setting forth the number of Shares with respect to which the Option is being exercised, accompanied by full payment for the Shares. The Option Price upon exercise of any Option shall be payable to the Corporation in full either: (a) in cash or its equivalent, or (b) if permitted in the governing Award Agreement and subject to such terms and conditions as the Committee may impose, by tendering previously acquired Shares having an aggregate Fair Market Value at the time of exercise equal to the total Option Price, or (c) if permitted in the governing Award Agreement, by a combination of (a) and (b). The Committee also may allow cashless exercise as permitted under the Federal Reserve Board’s Regulation T, subject to applicable securities law restrictions, including without limitation Section 402 of the Sarbanes-Oxley Act of 2002, or by any other means which the Committee determines to be consistent with the Plan’s purpose and applicable law. As soon as practicable after receipt of a written notification of exercise and full payment, the Company shall deliver to the Participant, in the Participant’s name, Share certificates for the number of Shares purchased under the Option(s) or shall credit such number of Shares to a book entry account in the name of the Participant.

 

6.8

 

RESTRICTIONS ON SHARE TRANSFERABILITY.    The Committee may impose such restrictions on any Shares acquired pursuant to the exercise of an Option granted under this Article 6 as it may deem advisable, including, without limitation, restrictions under applicable federal securities laws, under the requirements of any stock exchange or market upon which such Shares are then listed and/or traded, and under any blue sky or state securities laws applicable to such Shares.

 

6.9

 

TERMINATION OF EMPLOYMENT.    Each Option Award Agreement shall set forth the extent to which the Participant shall have the right to exercise the Option following termination of the Participant’s employment with the Company. Subject to Section 6.4 above, such provisions shall be determined in the sole discretion of the Committee, shall be included in the Award Agreement entered into with Participants, need not be uniform among all Options issued pursuant to the Plan or among all Participants, and may reflect distinctions based on the reasons for termination of employment. In the event of a termination of employment after a Change in Control, Options shall be treated in the manner set forth in Article 16.

 

6.10

 

NONTRANSFERABILITY OF OPTIONS.

 

 

(a)

 

INCENTIVE STOCK OPTIONS.    No ISO granted under the Plan may be sold, transferred, pledged, assigned, or otherwise alienated or hypothecated, other than by will or by the laws of descent and distribution. However, a Participant may designate a person who may exercise the ISO after his death in accordance with Article 13 below and Treasury Regulation Section 1.421-1(b)(2). Further, all ISOs granted to a Participant under the Plan shall be exercisable during his or her lifetime only by such Participant.

 

 

(b)

 

NONQUALIFIED STOCK OPTIONS.    Except as otherwise provided in a Participant’s Award Agreement, no NQSO granted under this Article 6 may be sold, transferred, pledged, assigned, or otherwise alienated or hypothecated, other than by will or by the laws of descent and distribution. However, a Participant may designate a person who may exercise the NQSO after his death in accordance with Article 13 below. Further, except as otherwise provided in a Participant’s Award Agreement, all NQSOs granted to a Participant under this Article 6 shall be exercisable during his or her lifetime only by such Participant.

 

6.11

 

REPRICING.    Without the prior approval by the requisite vote of the stockholders of the Company entitled to vote thereon, and except as permitted by Section 4.5 above or Section 16.1 below, no Options issued under the Plan will be repriced at a lower price, either by lowering the Option Price or by canceling the Option and re-granting it at at a lower price. If the Committee grants an Option the Option Price of which is indexed to the increase or decrease in a specified index or in stock prices of one or more other specified companies in accordance with Section 6.3 above, a reduction in the Option Price resulting from a decrease in the index or in the specified stock prices shall not be deemed to violate the first sentence of this Section 6.11.

 

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6.12

 

HARDSHIP LIMITATION.    No Employee shall make any elective contribution or employee contribution to the Plan (within the meaning of Treasury Regulation Section 1.401(k)-1(d)(2)(iv)(B)(4) or a successor thereto) during the six months after the Employee’s receipt of a hardship distribution from a plan of the Corporation or a related party within the provisions of Code Sections 414(b), (c), (m) or (o) containing a cash or deferred arrangement under Section 401(k) of the Code. The preceding sentence shall not apply if and to the extent that the Committee or its delegate determines that it is not necessary to qualify any such plan as a cash or deferred arrangement under Section 401(k) of the Code.

 

ARTICLE 7. STOCK APPRECIATION RIGHTS

 

7.1

 

GRANT OF SARS.    Subject to the terms and conditions of the Plan, SARs may be granted to Employees at any time and from time to time as shall be determined by the Committee. The Committee may grant Freestanding SARs, Tandem SARs, or any combination of these forms of SAR. The Committee shall have complete discretion in determining the number of SARs granted to each Participant (subject to Article 4 herein) and, consistent with the provisions of the Plan, in determining the terms and conditions pertaining to such SARs. The exercise price of a Freestanding SAR shall equal the Fair Market Value of a Share on the date of grant of the SAR. The exercise price of Tandem SARs shall equal the Option Price of the related Option. The exercise price of SARs may, if the Committee so provides at the time of grant of the SARs, be indexed to the increase or decrease in an index specified by the Committee or in stock prices of one or more other specified companies, provided that the exercise price may never be less than 100% of the Fair Market Value of a Share on the date the SARs are granted or, in the case of Tandem SARs, on the date the related Option is granted. Subject to Section 3.6, SARs may be granted for such lawful consideration, including but not limited to money or other property, tangible or intangible, or labor or services received or to be received by the Company, as the Committee may determine when the SARs are granted. Property for purposes of the preceding sentence shall include an obligation of the Company unless prohibited by applicable law. Subject to the foregoing and the other provisions of this Article 7, SARs may be exercisable in full at the time of grant or may become exercisable in one or more installments and at such time or times and subject to such terms and conditions, as the Committee may determine. Without limiting the foregoing, SARs may (but need not) provide by their terms that they will become exercisable in whole or in part upon the completion of specified periods of service or earlier achievement of one or more performance objectives specified therein, or that they will become exercisable only if one or more performance goals specified in the SAR Award Agreement are achieved. The Committee may at any time accelerate the date on which SARs become exercisable, and no additional consideration need be received by the Company in exchange for such acceleration.

 

7.2

 

EXERCISE OF TANDEM SARS.    Tandem SARs may be exercised with respect to all or part of the Shares subject to the related Option upon the surrender of the right to exercise the related Option with respect to the same number of Shares. Tandem SARs may be exercised only with respect to the Shares for which the related Option is then exercisable. Notwithstanding any other provision of this Plan to the contrary, with respect to Tandem SARs granted in connection with ISOs: (i) the Tandem SARs will expire no later than the expiration of the related ISOs; (ii) the payment with respect to an exercise of the Tandem SARs may not exceed the difference between the Fair Market Value of the Shares subject to the surrendered portion of the ISO at the time the Tandem SARs are exercised and the Option Price of such Shares under the ISO; and (iii) the Tandem SARs may be exercised only when the Fair Market Value of the Shares subject to the ISOs exceeds the Option Price of the ISOs.

 

7.3

 

EXERCISE OF FREESTANDING SARS.    Freestanding SARs may be exercised upon whatever terms and conditions the Committee, in its sole discretion, imposes upon them consistent with the provisions of the Plan (including without limitation Section 7.1 above).

 

7.4

 

SAR AGREEMENT.    Each grant of SARs shall be evidenced by an Award Agreement that shall specify the number of Shares with respect to which the SARs are granted, the exercise price, the term of the SARs, and such other provisions as the Committee shall determine.

 

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7.5

 

TERM OF SARS.    Subject to Section 7.2 above, the term of SARs granted under the Plan shall be determined by the Committee, in its sole discretion; provided, however, that such term shall not exceed ten (10) years.

 

7.6

 

PAYMENT OF SAR AMOUNT.    Upon exercise of SARs, a Participant shall be entitled to receive payment from the Corporation in an amount determined by multiplying: (a) The difference between the Fair Market Value of a Share on the date of exercise over the exercise price of the SARs; by (b) The number of Shares with respect to which the SARs are exercised. At the discretion of the Committee, the payment upon exercise of SARs may be in cash, in Shares of equivalent Fair Market Value, or in some combination thereof, as set forth in the SAR Award Agreement.

 

7.7

 

RULE 16B-3 REQUIREMENTS.    Notwithstanding any other provision of the Plan, the Committee may impose such conditions on exercise of SARs (including, without limitation, the right of the Committee to limit the time of exercise to specified periods) as may be required to satisfy the requirements of Section 16 of the Exchange Act (or any successor rule).

 

7.8

 

TERMINATION OF EMPLOYMENT.    Each SAR Award Agreement shall set forth the extent to which the Participant shall have the right to exercise the SARs following termination of the Participant’s employment with the Company. Subject to Sections 7.2 and 7.5 above, such provisions shall be determined in the sole discretion of the Committee, shall be included in the Award Agreement entered into with Participants, need not be uniform among all SARs issued pursuant to the Plan or among all Participants, and may reflect distinctions based on the reasons for termination of employment. In the event of a termination of employment after a Change in Control, SARs shall be treated in the manner set forth in Article 16.

 

7.9

 

NONTRANSFERABILITY OF SARS.    Except as otherwise provided in a Participant’s Award Agreement, no SARs granted under the Plan may be sold, transferred, pledged, assigned, or otherwise alienated or hypothecated, other than by will or by the laws of descent and distribution. However, a Participant may designate a person who may exercise the SARs after his death in accordance with Article 13 below and, in the case of SARs that are tandem to ISOs, Treasury Regulation Section 1.421-1(b)(2). Further, except as otherwise provided in a Participant’s Award Agreement, all SARs granted to a Participant under the Plan shall be exercisable during his or her lifetime only by such Participant. For the avoidance of doubt, SARs that are tandem to ISOs shall be transferable only when the ISOs are transferable, and only on the same terms and subject to the same conditions on which the related ISOs are transferable in accordance with Section 6.10(a) above.

 

7.10

 

DIVIDEND EQUIVALENTS.    The Committee may grant dividend equivalents in connection with SARs granted under this Plan. Such dividend equivalents may be payable in cash or in Shares, upon such terms as the Committee, in its sole discretion, deems appropriate. The right to any such dividend equivalents shall be explicitly set forth as a separate arrangement within the meaning of Proposed Treasury Regulation Section 1.409A-1(b)(5)(i)(E) or any successor thereto.

 

7.11

 

REPRICING.    Without the prior approval by the requisite vote of the stockholders of the Company entitled to vote thereon, and except as permitted by Section 4.5 above or Section 16.1 below, no SARs issued under the Plan will be repriced at a lower price, either by lowering the exercise price or by canceling the SARs and re-granting them at at a lower price. If the Committee grants a SAR the exercise price of which is indexed to the increase or decrease in a specified index or in stock prices of one or more other specified companies in accordance with Section 7.1 above, a reduction in the exercise price resulting from a decrease in the index or in the specified stock prices shall not be deemed to violate the first sentence of this Section 7.11.

 

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ARTICLE 8. RESTRICTED STOCK

 

8.1

 

GRANT OF RESTRICTED STOCK.    Subject to the terms and provisions of the Plan, the Committee, at any time and from time to time, may grant Shares of Restricted Stock to Employees in such amounts as the Committee shall determine. Without limiting the generality of the foregoing, Restricted Shares may be granted in full or partial satisfaction of payments due under other compensation programs of the Company.

 

8.2

 

RESTRICTED STOCK AGREEMENT.    Each Restricted Stock grant shall be evidenced by a Restricted Stock Award Agreement that shall specify the Period of Restriction, the nature and duration of the restriction(s) to which the Shares of Restricted Stock will be subject during all or part of the Period of Restriction, the number of Shares of Restricted Stock granted, and such other provisions as the Committee shall determine.

 

8.3

 

TRANSFERABILITY.    Except as provided in this Article 8 or in the applicable Award Agreement, Shares of Restricted Stock may not be sold, transferred, pledged, assigned, or otherwise alienated or hypothecated until the end of the applicable Period of Restriction established by the Committee and specified in the Restricted Stock Award Agreement, or upon earlier satisfaction of any other conditions, as specified by the Committee in its sole discretion and set forth in the Restricted Stock Award Agreement. All rights with respect to the Restricted Stock granted to a Participant under the Plan shall be available during his or her lifetime only to such Participant.

 

8.4

 

OTHER RESTRICTIONS.    Subject to Section 3.6 and Article 12 herein, the Committee shall impose such other conditions and/or restrictions on any Shares of Restricted Stock granted pursuant to the Plan as it may deem advisable including, without limitation, a requirement that Participants pay a stipulated purchase price for each Share of Restricted Stock, restrictions based upon the achievement of specific performance objectives (Company-wide, business unit, and/or individual), time-based restrictions on vesting following the attainment of the performance objectives, restrictions constituting a substantial risk of forfeiture within the meaning of Code Section 83, and/or restrictions under applicable federal or state securities laws. At the discretion of the Committee, the Company may retain the certificates representing Shares of Restricted Stock in the Company’s possession until such time as all conditions and/or restrictions applicable to such Shares have been satisfied. Except as otherwise provided in this Article 8 or the applicable Award Agreement, Shares of Restricted Stock granted under the Plan shall become freely transferable by the Participant after the last day of the applicable Period of Restriction.

 

8.5

 

VOTING RIGHTS.    During the Period of Restriction, Participants holding Shares of Restricted Stock may exercise full voting rights with respect to those Shares unless the Award Agreement provides otherwise.

 

8.6

 

DIVIDENDS AND OTHER DISTRIBUTIONS.    Unless the Restricted Stock Award Agreement provides otherwise, during the Period of Restriction, Participants holding Shares of Restricted Stock shall be credited with regular cash dividends paid with respect to the underlying Shares while they are so held. Such dividends may be paid currently, accrued as contingent cash obligations, or converted into additional shares of Restricted Stock, upon such terms as the Committee establishes. The Committee may apply any restrictions to the dividends that the Committee deems appropriate. Without limiting the generality of the preceding sentence, if the grant or vesting of Restricted Shares granted to a Covered Employee is designed to comply with the requirements of the Performance-Based Exception, the Committee may apply any restrictions it deems appropriate to the payment of dividends declared with respect to such Restricted Shares, such that the dividends and/or the Restricted Shares maintain eligibility for the Performance-Based Exception.

 

8.7

 

TERMINATION OF EMPLOYMENT.    Each Restricted Stock Award Agreement shall set forth the extent to which the Participant shall have the right to retain unvested Restricted Shares following termination of the Participant’s employment with the Company. Such provisions shall be determined in the sole discretion of the Committee, shall be included in the Award Agreement entered into with each Participant, need not be uniform among all Shares of Restricted Stock issued pursuant to the Plan or among all Participants, and may reflect distinctions based on the reasons for termination of employment.

 

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ARTICLE 9. STOCK UNITS

 

9.1

 

GRANT OF STOCK UNITS.    Subject to the terms and provisions of the Plan, the Committee, at any time and from time to time, may grant Stock Units to Employees in such amounts as the Committee shall determine. Without limiting the generality of the foregoing, Stock Units may be granted in full or partial satisfaction of payments due under other compensation programs of the Company.

 

9.2

 

STOCK UNIT AGREEMENT.    The Committee may (but need not) provide that the Shares subject to Stock Units are to be issued promptly after the grant of such Stock Units and that neither the Stock Units nor the Shares subject to the Stock Units are to be subject to any Period of Restriction. If the Stock Units or the Shares subject to the Stock Units are to be subject to a Period of Restriction, the Stock Units shall be evidenced by a Stock Unit Award Agreement that shall specify the Period(s) of Restriction, the nature and duration of the restriction(s) to which the Stock Units or the Shares subject to the Stock Units will be subject during all or part of the Period of Restriction, the number of Stock Units granted, and such other provisions as the Committee shall determine.

 

9.3

 

TRANSFERABILITY.    Except as provided in this Article 9, the Shares subject to Stock Units granted herein shall be issued to and become transferable by the Participant at the time or times specified by the Committee when it grants such Stock Units. Without limiting the generality of the foregoing, the Committee may provide for the Shares subject to Stock Units to be transferable by the Participant when the Shares are issued to the Participant, or to become transferable by the Participant at a later time or time, subject to such terms and conditions as the Committee may impose in accordance with the Plan including, if applicable, Section 3.6. All rights with respect to the Stock Units granted to a Participant under the Plan shall be available during his or her lifetime only to such Participant, and shall not be transferable by the Participant other than by will or the laws of descent and distribution or to a beneficiary designated in accordance with Article 13 herein.

 

9.4

 

ELECTIONS.    The Committee may (but need not) give Participants an election as to the time at which the Shares subject to Stock Units are to be issued. Any such election shall be subject to such terms and conditions as the Committee may provide, including without limitation terms and conditions intended to comply with Code Section 409A or to qualify the Stock Units for an exception from the provisions of Code Section 409A.

 

9.5

 

VOTING RIGHTS.    Until such time, if any, as the Shares subject to Stock Units have been issued to the Participant, Participants who have been granted Stock Units hereunder may not exercise voting rights with respect to those Shares. After the Shares subject to Stock Units are issued to the Participant, the Participant may exercise voting rights with respect to those Shares unless the Participant’s Stock Unit Award Agreement provides otherwise.

 

9.6

 

DIVIDENDS AND OTHER DISTRIBUTIONS.    The Committee may (but need not) provide that until such time, if any, as the Shares subject to Stock Units have been issued to the Participant, Participants who have been granted Stock Units hereunder may be credited with amounts equivalent to regular cash dividends paid with respect to the Shares underlying the Stock Units. Such amounts equivalent to dividends may be paid currently, accrued as contingent cash obligations, or converted into additional Stock Units, upon such terms as the Committee establishes. The Committee may apply any restrictions to the amounts equivalent to dividends that the Committee deems appropriate. Without limiting the generality of the preceding sentence, if the grant or vesting of Stock Units granted to a Covered Employee is designed to comply with the requirements of the Performance-Based Exception, the Committee may apply any restrictions it deems appropriate to the payment of amounts equivalent to dividends declared with respect to the Shares underlying such Stock Units, such that the amounts equivalent to dividends and/or the Stock Units maintain eligibility for the Performance-Based Exception. After the Shares subject to Stock Units are issued, the Participant shall be entitled to receive and retain dividends declared with respect to those Shares unless the Participant’s Stock Unit Award Agreement provides otherwise.

 

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9.7

 

TERMINATION OF EMPLOYMENT.    Each Stock Unit Award Agreement shall set forth the extent to which the Participant shall have the right to retain unvested Stock Units (or Shares subject to Stock Units) following termination of the Participant’s employment with the Company. Such provisions shall be determined in the sole discretion of the Committee, shall be included in the Stock Unit Award Agreement entered into with each Participant, need not be uniform among all Stock Units granted pursuant to the Plan or among all Participants, and may reflect distinctions based on the reasons for termination of employment.

 

9.8

 

CASH SETTLEMENT OF STOCK UNITS.    In the discretion of the Committee, the Corporation may settle any Stock Unit by paying the Participant cash in lieu of issuing Shares. The amount of cash to be paid in such event shall be equal to the Fair Market Value of the Shares that would otherwise be issued, on the date on which they would otherwise be issued. Any such amount shall be paid on such date or as soon as administratively practicable thereafter.

 

ARTICLE 10. PERFORMANCE SHARES

 

10.1

 

PERFORMANCE SHARE AWARDS.    Subject to the terms and conditions of the Plan, the Committee may award any Employee Performance Shares. The Committee may but need not provide that some but not all of the Performance Shares will be earned if the performance goal is partially attained.

 

10.2

 

PERFORMANCE GOALS AND RELATED MATTERS.    The specified performance goal applicable to an award of Performance Shares may be any performance goal the Committee determines to be appropriate and may but need not consist, without limitation, of achievement of one or more financial or operational goals, and/or the occurrence of one or more specified circumstances or events; but, subject to Section 10.4 below, the performance period shall in all cases be a period of one year or longer. Any provision of the Plan (other than Section 10.4 below) to the contrary notwithstanding, Performance Shares that are intended to qualify for the Performance-Based Exception shall (a) “be paid solely on account of the attainment of one or more preestablished, objective performance goals” (within the meaning of Treasury Regulation 1.162-27(e)(2)) over a period of one year or longer, which performance goals shall be based upon one or more of the performance measures set forth in Article 12, (b) otherwise be granted and administered in accordance with the applicable requirements of Code Section 162(m)(4)(C), and (c) be subject to such other terms and conditions as the Committee may impose. The performance goal applicable to awards of Performance Shares, and the other terms and conditions of such awards, need not be the same for each award or each Participant.

 

10.3

 

FORM AND TIME OF SETTLEMENT.    Performance Shares may be settled in the form of Shares or cash equal to the Fair Market Value of the Shares that would otherwise be delivered or a combination of both Shares and such cash, as the Committee may provide. Shares (or their cash equivalent) that are earned pursuant to a Performance Share Award may be delivered when the Shares are earned or at such other time or times as the Committee may provide, and may accrue amounts equivalent to dividends (which may but need not be deemed reinvested in Shares and settled in the form of Shares or cash, as the Committee may provide) prior to being delivered.

 

10.4

 

ACCELERATION.    The Committee may but need not provide that, if the Participant’s death, Disability or Retirement, a Change in Control, or another extraordinary circumstance or event occurs before the performance goal applicable to an award of Performance Shares is attained, and irrespective of whether the performance goal is thereafter attained, the Performance Shares will be earned in whole or in part (as the Committee may specify); provided that, with respect to Performance Shares that are intended to qualify for the Performance-Based Exception, the foregoing provisions of this Section 10.4 shall apply only if and to the extent that they will not prevent such Performance Shares from qualifying for the Performance-Based Exception if the performance goal applicable to such Performance Shares is attained and the Participant’s death, Disability or Retirement, a Change in Control, or such other extraordinary circumstance or event does not occur.

 

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10.5

 

TERMINATION OF EMPLOYMENT.    The Committee may but need not provide for a Participant’s Performance Shares to be forfeited in whole or in part if such Participant’s employment by the Company terminates for any reason before Shares (or cash) are delivered in full settlement of such Performance Shares.

 

10.6

 

NON-TRANSFERABILITY.    Except as otherwise provided in a Participant’s Performance Share Agreement, Performance Shares may not be sold, transferred, pledged, assigned, or otherwise alienated or hypothecated, other than by will or by the laws of descent and distribution or to a beneficiary designated in accordance with Article 13 below.

 

10.7

 

PERFORMANCE SHARE AGREEMENT.    The terms and conditions of each award of Performance Shares shall be set forth in a written agreement signed by an officer of the Corporation authorized to do so.

 

ARTICLE 11. PERFORMANCE UNITS

 

11.1

 

PERFORMANCE UNIT AWARDS.    Subject to the terms and conditions of the Plan, the Committee may award any Employee Performance Units. The Committee may but need not provide that some but not all of the Performance Units will be earned if the performance goal is partially attained.

 

11.2

 

PERFORMANCE GOALS.    The specified performance goal applicable to an award of Performance Units may be any performance goal the Committee determines to be appropriate and may but need not consist, without limitation, of achievement of one or more financial or operational goals, and/or the occurrence of one or more specified circumstances or events; but, subject to Section 11.4 below, the performance period shall in all cases be a period of one year or longer. Any provision of the Plan (other than Section 11.4 below) to the contrary notwithstanding, Performance Units that are intended to qualify for the Performance-Based Exception shall (a) “be paid solely on account of the attainment of one or more preestablished, objective performance goals” (within the meaning of Treasury Regulation 1.162-27(e)(2)) over a period of one year or longer, which performance goals shall be based upon one or more of the performance measures set forth in Article 12, (b) otherwise be granted and administered in accordance with the applicable requirements of Code Section 162(m)(4)(C), and (c) be subject to such other terms and conditions as the Committee may impose. The performance goal applicable to awards of Performance Units, and the other terms and conditions of such awards, need not be the same for each award or each Participant.

 

11.3

 

FORM AND TIME OF SETTLEMENT.    Performance Units may be settled in the form of cash or Shares of equivalent Fair Market Value on the date on which cash would otherwise be paid or a combination of both cash and such Shares, as the Committee may provide. Cash (or the Share equivalent) that is earned pursuant to a Performance Unit Award may be paid when it is earned or at such other time or times as the Committee may provide, and may accrue amounts equivalent to interest or dividends (which may but need not be deemed reinvested in Shares and settled in the form of Shares or cash, as the Committee may provide) or another investment return specified by the Committee prior to being paid.

 

11.4

 

ACCELERATION.    The Committee may but need not provide that, if the Participant’s death, Disability or Retirement, a Change in Control, or another extraordinary circumstance or event occurs before the performance goal applicable to an award of Performance Units is attained, and irrespective of whether the performance goal is thereafter attained, the Performance Units will be earned in whole or in part (as the Committee may specify); provided that, with respect to Performance Units that are intended to qualify for the Performance-Based Exception, the foregoing provisions of this Section 11.4 shall apply only if and to the extent that they will not prevent such Performance Units from qualifying for the Performance-Based Exception if the performance goal applicable to such Performance Units is attained and the Participant’s death, Disability or Retirement, a Change in Control, or such other extraordinary circumstance or event does not occur.

 

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11.5

 

TERMINATION OF EMPLOYMENT.    The Committee may but need not provide for a Participant’s Performance Units to be forfeited in whole or in part if such Participant’s employment by the Company terminates for any reason before cash (or Shares) are delivered in full settlement of such Performance Units.

 

11.6

 

NON-TRANSFERABILITY.    Except as otherwise provided in a Participant’s Performance Unit Agreement, Performance Units may not be sold, transferred, pledged, assigned, or otherwise alienated or hypothecated, other than by will or by the laws of descent and distribution or to a beneficiary designated in accordance with Article 13 below.

 

11.7

 

PERFORMANCE UNIT AGREEMENT.    The terms and conditions of each award of Performance Units shall be set forth in a written agreement signed by an officer of the Corporation authorized to do so.

 

ARTICLE 12. PERFORMANCE MEASURES

 

Unless and until the Committee proposes for stockholder vote and stockholders approve a change in the general performance measures set forth in this Article 12, the attainment of which may determine the degree of payout and/or vesting with respect to Awards to Covered Employees which are designed to qualify for the Performance-Based Exception, the performance measure(s) to be used for purposes of such grants shall be one or more of the following alternatives:

 

(a) net income;

 

(b) return on equity;

 

(c) earnings per share;

 

(d) return on assets;

 

(e) total shareholder return;

 

(f) Share price;

 

(g) return on investment;

 

(h) internal rate of return;

 

(i) operating income;

 

(j) operating margin;

 

(k) core non-interest income;

 

(l) revenue;

 

(m) expenses;

 

(n) assets;

 

(o) deposits;

 

(p) loans;

 

(q) investments;

 

(r) market share;

 

(s) non-performing assets;

 

(t) charge-offs;

 

(u) loan loss reserves;

 

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(v) asset quality levels;

 

(w) improvement of financial ratings; and

 

(x) interest-sensitivity gap levels.

 

Subject to the terms of the Plan, each of these measures may be defined by the Committee on a consolidated, Corporation, subsidiary or business unit basis, may but need not be in comparison with peer group performance or the performance of a market index or more than one market index, may but need not be based upon a change or an increase or positive result, and may include or exclude discontinued operations, unusual items, non-recurring items, and extraordinary items, as determined by the Company’s auditors, and the effects of changes in accounting standards, acquisitions, divestitures and restructuring expenses. The Committee shall have the discretion to adjust the determinations of the degree of attainment of the preestablished performance objectives; provided, however, that Awards which are designed to qualify for the Performance-Based Exception, and which are held by Covered Employees, may not be adjusted upward (the Committee may retain the discretion to adjust such Awards downward). In the event that applicable tax and/or securities laws change to permit Committee discretion to alter the governing performance measures without obtaining stockholder approval of such changes, the Committee shall have sole discretion to make such changes without obtaining stockholder approval. In addition, in the event that the Committee determines that it is advisable to grant Awards which shall not qualify for the Performance-Based Exception, the Committee may make such grants without satisfying the requirements of Code Section 162(m)(4)(C).

 

ARTICLE 13. BENEFICIARY DESIGNATION

 

Any provision of the Plan to the contrary notwithstanding, each Participant under the Plan may, from time to time, name a beneficiary or beneficiaries (who may be named contingently or successively) to whom any benefit under the Plan is to be paid (or who shall have the right to exercise the Participant’s Options and SARs) in case of his or her death before he or she receives any or all of such benefit (or exercises such Options and SARs). Each such designation shall revoke all prior designations by the same Participant, shall be in a form prescribed by the Company, shall be subject to any terms and conditions prescribed by the Company and set forth in such form, and will be effective only when filed by the Participant in writing with the Company during the Participant’s lifetime. In the absence of any such designation, or if the designated beneficiary is not alive or in existence at the time of the Participant’s death, benefits remaining unpaid (and exercisable Options and SARs remaining unexercised) at the Participant’s death shall be paid to (or exercisable by) the Participant’s estate.

 

ARTICLE 14. DEFERRALS

 

Subject to Section 21.7 below, the Committee may permit or require a Participant to defer such Participant’s receipt of the payment of cash or the delivery of Shares that would otherwise be due to such Participant by virtue of the exercise of an Option or SAR, the lapse or waiver of restrictions with respect to Stock Units, or the satisfaction of any requirements or objectives with respect to Performance Units/Shares. If any such deferral election is required or permitted, the Committee shall, in its sole discretion, establish rules and procedures for such payment deferrals.

 

ARTICLE 15. RIGHTS OF EMPLOYEES

 

15.1

 

EMPLOYMENT.    Nothing in the Plan shall interfere with or limit in any way the right of the Company to terminate any Participant’s employment at any time with or without cause or notice, nor confer upon any Participant any right to continue in the employ of the Company.

 

15.2

 

PARTICIPATION.    No Employee shall have the right to be selected to receive an Award under this Plan, or, having been so selected, to be selected to receive a future Award.

 

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ARTICLE 16. CHANGE IN CONTROL

 

16.1

 

TREATMENT OF OUTSTANDING AWARDS.    Any provision of the Plan (other than Section 21.7 and the last sentence of this Section 16.1) to the contrary notwithstanding, upon the occurrence of a Change in Control (within the meaning of Section 2.5, including, if applicable, the last sentence thereof) during the employment of a Participant, unless otherwise specifically prohibited under applicable laws, or by the rules and regulations of any governing governmental agencies or national securities exchanges, or unless the applicable Award Agreement provides otherwise:

 

 

(a)

 

Any and all then outstanding Options and SARs granted to the Participant hereunder shall become immediately exercisable, and shall remain exercisable throughout their entire term; and

 

 

(b)

 

Any Periods of Restriction and restrictions imposed on any then outstanding Shares of Restricted Stock or Stock Units (or Shares subject to then outstanding Stock Units) granted to the Participant hereunder shall lapse; provided, however, that the degree of vesting associated with Restricted Stock or Stock Units which have been conditioned upon the achievement of performance conditions pursuant to Section 8.4 or 9.2 herein shall be determined in the manner set forth in the applicable Award Agreement.

 

The effect, if any, of a Change in Control on outstanding awards of Performance Shares and Performance Units shall be determined in accordance with Sections 10.4 and 11.4, respectively. Notwithstanding the foregoing provisions of this Section 16.1, with or without the consent of the affected Participants the Committee may provide in advance or at the time of a Change in Control for outstanding Awards to vest in full and be cancelled in the event of a Change in Control and for the cash value of such Awards to be paid at the time of such Change in Control in settlement of the Awards, or for equivalent awards relating to stock of another company to be granted at the time of such Change in Control in substitution for the cancelled Awards, or for the Awards to be assumed by another entity involved in the Change in Control.

 

16.2

 

TERMINATION, AMENDMENT, AND MODIFICATIONS OF CHANGE IN CONTROL PROVISIONS.    Notwithstanding any other provision of this Plan or any Award Agreement provision, the provisions of this Article 16 may not be terminated, amended, or modified on or after the date of a Change in Control to affect adversely any Award theretofore granted under the Plan without the prior written consent of the Participant with respect to said Participant’s outstanding Awards.

 

ARTICLE 17. AMENDMENT, MODIFICATION, AND TERMINATION

 

17.1

 

AMENDMENT, MODIFICATION, AND TERMINATION.    Subject to Section 16.2 herein, the Committee or the Board may at any time and from time to time, alter, amend, suspend or terminate the Plan in whole or in part; provided, however, that no amendment which requires stockholder approval in order for the Plan to continue to comply with Rule 16b-3 under the Exchange Act, including any successor to such Rule, or to comply with Delaware law, the rules of the principal stock exchange (or absent such an exchange, the principal electronic trading network) on which Shares may be listed from time to time or Sections 162(m) and 422 of the Code, shall be effective unless such amendment shall be approved by the requisite vote of stockholders of the Corporation entitled to vote thereon. Without stockholder approval no amendment may give the Committee the authority to reprice outstanding Options or SARs at a lower price, either by reducing the exercise price or by canceling the Award and issuing lower-priced Options or SARs in replacement thereof, except as permitted by Section 16.1 above.

 

17.2

 

ADJUSTMENT OF AWARDS UPON THE OCCURRENCE OF CERTAIN UNUSUAL OR NONRECURRING EVENTS.    The Committee may make adjustments in the terms and conditions of, and the criteria included in, Awards in recognition of unusual or nonrecurring events (including, without limitation, the events described in Section 4.5 hereof) affecting the Company or the financial statements of the Company or of changes in applicable laws, regulations, or accounting principles, whenever the Committee determines that such adjustments are appropriate in order to prevent dilution or enlargement of

 

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the benefits or potential benefits intended to be made available under the Plan; provided, however, that Awards which are designed to qualify for the Performance-Based Exception, and which are held by Covered Employees, may only be adjusted to the extent permissible under Code Section 162(m).

 

17.3

 

AWARDS PREVIOUSLY GRANTED.    No termination, amendment, or modification of the Plan shall adversely affect in any material way any Award previously granted under the Plan, without the written consent of the Participant holding such Award, except for amendments of the Plan before a Change in Control and on or before December 31, 2006 (or such later date, if any, to which the plan amendment deadline referred to in Section XI.B. of the Preamble to Proposed Treasury Regulation Sections 1.409A-1, 1.409A-2, 1.409A-3 and 1.409A-6 is extended) to conform to the provisions of Code Section 409A with respect to amounts subject to that Code Section, or to ensure that Awards do not provide for a deferral of compensation for purposes of Code Section 409A.

 

ARTICLE 18. WITHHOLDING

 

18.1

 

TAX WITHHOLDING.    The Company shall have the power and the right to deduct or withhold, or require a Participant to remit to the Company, an amount sufficient to satisfy federal, state, and local taxes, domestic or foreign, required by law or regulation to be withheld with respect to any taxable event arising as a result of this Plan.

 

18.2

 

SHARE WITHHOLDING.    With respect to withholding required upon the exercise of Options or SARs, upon the lapse of restrictions on Restricted Stock or the issuance of Shares subject to Stock Units, upon payments relating to Performance Shares and Performance Units or upon any other taxable event arising as a result of Awards granted hereunder, Participants may elect to satisfy the withholding requirement, in whole or in part, by having the Company withhold Shares having a Fair Market Value on the date the tax is to be determined up to the minimum statutory federal and state tax, including payroll taxes, required to be withheld on the transaction. All such elections shall be made in writing, signed by Participant, and shall be subject to any restrictions or limitations that the Committee, in its sole discretion, deems appropriate.

 

ARTICLE 19. INDEMNIFICATION

 

Each person who is or shall have been a member of the Committee, or of the Board, shall be indemnified and held harmless by the Corporation against and from any loss, cost, liability, or expense that may be imposed upon or reasonably incurred by him or her in connection with or resulting from any claim, action, suit, or proceeding to which he or she may be a party or in which he or she may be involved by reason of any action taken or failure to act under the Plan and against and from any and all amounts paid by him or her in settlement thereof, with the Corporation’s approval, or paid by him or her in satisfaction of any judgment in any such action, suit, or proceeding against him or her, provided he or she shall give the Corporation an opportunity, at its own expense, to handle and defend the same before he or she undertakes to handle and defend it on his or her own behalf. The foregoing right of indemnification shall not be exclusive of any other rights of indemnification to which such persons may be entitled under the Corporation’s Certificate of Incorporation or Bylaws, as a matter of law, or otherwise, or any power that the Corporation may have to indemnify them or hold them harmless.

 

ARTICLE 20. SUCCESSORS

 

All obligations of the Corporation under the Plan with respect to Awards granted hereunder shall be binding on any successor to the Corporation, whether the existence of such successor is the result of a direct or indirect purchase, of all or substantially all of the business and/or assets of the Corporation, or a merger, consolidation, or otherwise.

 

ARTICLE 21. LEGAL CONSTRUCTION; GENERAL PROVISIONS

 

21.1

 

GENDER AND NUMBER.    Except where otherwise indicated by the context, any masculine term used herein also shall include the feminine; the plural shall include the singular and the singular shall include the plural.

 

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21.2

 

SEVERABILITY.    In the event any provision of the Plan shall be held illegal or invalid for any reason, the illegality or invalidity shall not affect the remaining parts of the Plan, and the Plan shall be construed and enforced as if the illegal or invalid provision had not been included.

 

21.3

 

REQUIREMENTS OF LAW.    The granting of Awards and the issuance of Shares under the Plan shall be subject to all applicable laws, rules, and regulations, and to such approvals by any governmental agencies or national securities exchanges as may be required.

 

21.4

 

SECURITIES LAW COMPLIANCE.    With respect to Insiders, transactions under this Plan are intended to qualify for the applicable exemptions under Rule 16b-3 or its successors under the Exchange Act. The Plan shall be administered, interpreted and construed to carry out such intention, and to the extent that any provision of the Plan cannot be so administered, interpreted and construed it shall be disregarded.

 

21.5

 

GOVERNING LAW.    To the extent not preempted by federal law, the Plan, and all agreements hereunder, and the validity, interpretation and construction thereof, and the rights of all persons having or claiming to have any rights thereunder, shall be determined exclusively in accordance with and governed by the laws of the state of Delaware, without giving effect to the conflicts of laws principles of that state. Without limiting the generality of the foregoing, the period within which any action arising under or in connection with the Plan must be commenced, shall be governed by the laws of the State of Delaware, without giving effect to the principles of conflicts of laws thereof, irrespective of the place where the act or omission complained of took place and of the residence of any party to such action and irrespective of the place where the action may be brought.

 

21.6

 

PLAN NON-EXCLUSIVE.    Nothing in this Plan is intended to be a substitute for, or shall preclude or limit the establishment or continuation of, any other plan, practice or arrangement for the payment of compensation or awards to officers, directors or employees of the Company, or to any class or group of such persons (including without limitation Employees), which the Company or any Subsidiary now has or may hereafter lawfully put into effect, including, without limitation, any incentive compensation, stock incentive, stock option, stock purchase, retirement, pension or group insurance plan.

 

21.7

 

COMPLIANCE WITH CODE SECTION 409A.    Any provision of the Plan to the contrary notwithstanding, Awards under the Plan are intended either (a) to not provide for a deferral of compensation within the meaning of Code Section 409A, or (b) to meet any applicable requirements of paragraphs (a)(2), (a)(3) and (a)(4) of Code Section 409A, in either case (a) or (b) to the end that no compensation payable under the Plan will be required to be included in any Participant’s gross income pursuant to subparagraph (a)(1)(A) of Code Section 409A. The Plan and Awards thereunder shall be administered, interpreted and construed to fulfill that intention, and any provision of the Plan or any Award that cannot be so administered, interpreted and construed shall to that extent be disregarded.

 

21.8

 

RECOUPMENT OF AWARDS UNDER CERTAIN CIRCUMSTANCES.    A Participant’s acceptance of any Award the grant or vesting of which is explicitly based on financial performance as reported in the consolidated financial statements of the Corporation shall be deemed to constitute his agreement that, if any of the financial statements on which the grant or vesting of such Award is explicitly based is materially restated before two years elapse after such Award is granted or vests (whichever is later), the Participant will repay any portion of such Award that would not have been granted or vested on the basis of financial performance as reported in the financial statements as materially restated; provided that this Section 21.8 shall apply after a Change in Control only if the restatement is required by law or generally accepted accounting principles, and, provided further, that the provisions of this Section 21.8 shall be in addition to and shall not limit any other rights and remedies the Company may have with respect to the recoupment of Awards at law, by contract or otherwise.

 

 

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