EXHIBIT 10.07
Fourth Financial Corporation
and Subsidiaries
1993 EMPLOYEE STOCK PURCHASE PLAN
1993 FOURTH FINANCIAL CORPORATION AND SUBSIDIARIES
EMPLOYEE STOCK PURCHASE PLAN
TABLE OF CONTENTS
Page
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1. Purpose . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. Definitions . . . . . . . . . . . . . . . . . . . . . . . 1
Change of Control . . . . . . . . . . . . . . . . . . . . 1
Committee . . . . . . . . . . . . . . . . . . . . . . . . 1
Common Stock. . . . . . . . . . . . . . . . . . . . . . . 2
Compensation. . . . . . . . . . . . . . . . . . . . . . . 2
Employee. . . . . . . . . . . . . . . . . . . . . . . . . 2
Exercise Date . . . . . . . . . . . . . . . . . . . . . . 2
Offering Date . . . . . . . . . . . . . . . . . . . . . . 2
Price . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Subsidiary. . . . . . . . . . . . . . . . . . . . . . . . 2
Termination Date. . . . . . . . . . . . . . . . . . . . . 2
Total Compensation. . . . . . . . . . . . . . . . . . . . 2
3. Eligibility . . . . . . . . . . . . . . . . . . . . . . . 3
4. Offering Dates. . . . . . . . . . . . . . . . . . . . . . 4
5. Participation . . . . . . . . . . . . . . . . . . . . . . 4
6. Granting of Option. . . . . . . . . . . . . . . . . . . . 4
7. Exercise of Option. . . . . . . . . . . . . . . . . . . . 5
8. Payment and Delivery. . . . . . . . . . . . . . . . . . . 5
9. Stock . . . . . . . . . . . . . . . . . . . . . . . . . . 5
10. Administration. . . . . . . . . . . . . . . . . . . . . . 6
11. Restrictions on Transferability . . . . . . . . . . . . . 6
12. Changes in Capitalization . . . . . . . . . . . . . . . . 7
13. Merger; Change of Control . . . . . . . . . . . . . . . . 7
14. Termination of Employee's Rights of Participation . . . . 8
15. Amendment or Termination. . . . . . . . . . . . . . . . . 8
16. Notices . . . . . . . . . . . . . . . . . . . . . . . . . 8
17. Stockholder Approval. . . . . . . . . . . . . . . . . . . 9
18. Application of Funds. . . . . . . . . . . . . . . . . . . 9
19. Governing Law . . . . . . . . . . . . . . . . . . . . . . 9
FOURTH FINANCIAL CORPORATION
1993 EMPLOYEE STOCK PURCHASE PLAN
1. PURPOSE. The purpose of this stock purchase plan
(the "Plan") is to provide eligible Employees of Fourth Financial
Corporation (the "Company") and its subsidiaries an opportunity to
acquire a proprietary interest in the Company through the purchase
of Common Stock and to encourage such Employees to remain in the
employ of the Company or its subsidiaries. It is further intended
that this Plan shall qualify as an "employee stock purchase plan"
under Section 423 of the Internal Revenue Code of 1986 as now in
effect and as may hereafter from time to time be amended (the
"Code"). The provisions of the Plan shall, accordingly, be
construed so as to extend and limit participation in a manner
consistent with the requirements of Section 423 of the Code.
2. DEFINITIONS. Unless the context clearly requires a
different meaning, the following words shall have the following
meanings when used herein:
(a) "Change of Control" means the acquisition by any
person, entity, or group (as such term is defined in the Securities
Exchange Act of 1934, as amended, and the rules and regulations of
the Securities and Exchange Commission adopted thereunder) of
Common Stock in a transaction or series of transactions that
results in such person, entity, or group owning beneficially 50% or
more of the outstanding Common Stock; provided, that a merger or
consolidation of the Company with or into another corporation shall
not be deemed to be a Change of Control if, by reason of such
merger or consolidation, the holders of Common Stock receive in
exchange for their shares of Common Stock voting common stock of
the surviving or resulting corporation that is registered under the
Securities Exchange Act of 1934, as amended, and is either listed
for trading on a national securities exchange or a security for
which bid and asked quotations are reported in an automated
quotations system operated by a national securities association.
(b) "Committee" means the Committee established pursuant
to Paragraph 10 hereof.
(c) "Common Stock" means common stock, par value $5.00
per share, of the Company.
(d) "Compensation" means all wages, salaries, bonuses,
incentive pay, supplemental pay, commissions, and other forms of
direct cash remuneration received by an Employee on account of
service performed for the Company or any of its Subsidiaries,
except that Compensation will not include any indirect or imputed
remuneration, e.g., imputed income from life insurance, car
allowances, etc.
(e) "Employee" means any person, including an officer of
the Company, who is customarily employed for more than 20 hours per
week and more than five months in a calendar year by the Company or
by the Company and one or more of its Subsidiaries, or by one or
more Subsidiaries of the Company.
(f) "Exercise Date" means the Termination Date.
(g) "Offering Date" means the first day of a one-year
offering period.
(h) "Price" means the fair market value of the Common
Stock as of a particular day, which value shall be determined by
the Committee in such manner as may be consistent with the
applicable Treasury regulations used by the Internal Revenue
Service for determining stock valuations as of or on a specified
day.
(i) "Subsidiary" means any corporation of which the
Company owns 80% or more of each class of outstanding equity
securities, but does not include any subsidiary of a Subsidiary
unless provided otherwise by the Committee.
(j) The "Termination Date" of any offering under the
Plan shall be the last day of a one-year offering period, e.g., the
Termination Date of an offering having an Offering Date of May 1,
1993, would be April 30, 1994.
(k) "Total Compensation" means the sum of all
Compensation received by an Employee from the Company and each of
its Subsidiaries.
3. ELIGIBILITY. (a) Any Employee who shall have been
continuously employed by the Company, by the Company and one or
more of its Subsidiaries, or by one or more of the Subsidiaries of
the Company for a period of one or more years as of the Offering
Date and who is employed by the Company and/or one of its
Subsidiaries on the date his or her participation in any offering
to be made under the Plan is to become effective shall be eligible
to participate in offerings under the Plan made on or subsequent to
his or her being so employed for one year, subject to the
limitations imposed by Section 423(b) of the Code and to the
limitations contained herein. For purposes of the one-year period
referred to above, no credit shall be given for employment during
any period of time during which the Subsidiary was not a Subsidiary
of the Company.
(b) Any provision of the Plan to the contrary
notwithstanding, no Employee shall be granted an option hereunder:
(i) if, immediately after the grant, such Employee
would own shares of stock, and/or hold outstanding
options to purchase shares of stock, possessing 5% or
more of the total combined voting power or value of all
classes of stock of the Company or of any Subsidiary of
the Company. For purposes of this paragraph, the rules
of Section 424(d) of the Code shall apply in determining
the stock ownership of an individual; or
(ii) which permits his or her rights to purchase
shares under all employee stock purchase plans of the
Company and its Subsidiaries to accrue at a rate which
exceeds $25,000 of fair market value of the shares
(determined at the time such option is granted) for each
calendar year in which such stock option is outstanding
at any time. For purposes of this paragraph 3(b)(ii),
(A) the right to purchase stock under an option accrues
when the option (or any portion thereof) first becomes
exercisable, (B) the right to purchase stock under an
option accrues at the rate provided in the option but in
no case may such rate exceed $25,000 of fair market value
of such stock (determined at the time the option is
granted) for any one calendar year, and (C) a right to
purchase stock which has accrued under one option granted
under the Plan may not be carried over to any other
option.
4. OFFERING DATES. It is contemplated that the Plan
will be implemented by annual twelve-month offerings which shall be
consecutively numbered. Offering No. 1 shall commence on May 1,
1993, and shall end on April 30, 1994. Each succeeding offering,
if authorized by the Board of Directors of the Company (or by the
Committee in the event the Board of Directors of the Company shall
by resolution delegate such authority to the Committee), shall
commence on such date as the Board (or the Committee if so
authorized) may determine, and shall continue for twelve months.
Only one offering may be in effect at any one time. Participation
in any offering under the Plan shall neither limit nor require
participation in any other offering.
5. PARTICIPATION. Participation in the Plan shall be
limited to eligible Employees as defined above. All eligible
Employees shall be given notice of each offering within a
reasonable time after a determination to make such offering has
been made by the Board of Directors or the Committee as the case
may be.
6. GRANTING OF OPTION. (a) Each eligible Employee
shall be granted an option to purchase that number of whole shares
(rounded down to the nearest whole share) of Common Stock
determined by dividing 10% of the Total Compensation earned by the
participant during the preceding calendar year by 85% of the Price
of the stock on the Offering Date for such offering.
(b) The option price of shares in any offering to be
made hereunder shall be the lower of:
(i) 85% of the Price of the Common Stock on the
Offering Date for such offering; or
(ii) 85% of the Price of the Common Stock on the
Termination Date for such offering;
provided, however, that in no event shall the option price be less
than the par value of the Common Stock.
In the event either an Offering Date or a Termination
Date shall fall on a weekend, holiday, or any other day for which
published Price quotations for the Common Stock are not available,
the weighted average of the Prices for the next trading day
immediately preceding and the next trading day immediately
following such date for which such quotations are available shall
be used.
7. EXERCISE OF OPTION. A participant may only exercise
his or her option for the purchase of shares on or before 5:00 p.m.
on the Exercise Date for the number of full shares covered by the
grant of the option or any lesser number of full shares; provided,
that such lesser number shall not be less than ten shares. Options
shall be exercised only on forms supplied by the Company. No
option under the Plan shall be exercised prior to the Termination
Date of the offering with respect to which such option was granted
and any option exercise form received prior to such date shall be
effective at the close of business on the Termination Date.
8. PAYMENT AND DELIVERY. The option price shall be
payable in United States dollars upon the exercise of the option
and shall be payable by check only. Payment shall be made on or
before the seventh day following the Exercise Date. The Company
will deliver to each participant a certificate evidencing the
shares purchased upon the exercise of his or her option. Any
participant who fails to pay in full for any shares being purchased
under the Plan shall forfeit his or her option with respect to any
shares for which full payment has not then been made.
9. STOCK. (a) The shares to be sold to participants
under the Plan may, at the election of the Company, be either
Treasury shares or shares to be originally issued for such purpose.
The maximum number of shares which shall be made available for sale
under the Plan during all offerings under the Plan shall be 750,000
shares, subject to adjustment upon changes in capitalization of the
Company as provided in Paragraph 12 hereof. If the total number of
shares for which options are to be granted on any date in
accordance with Paragraph 6 exceeds the number of shares then
available under the Plan (after deduction of all shares for which
options have been exercised or are then outstanding), the Company
shall make a pro rata allocation of the shares remaining available
in as nearly a uniform manner as shall be practicable and as it
shall determine to be equitable. The Company shall give written
notice of such reduction to each Employee affected thereby.
(b) No participant shall have any interest in shares
covered by his or her option until such option has been exercised,
the shares have been fully paid for, and shall have been issued by
the Company.
(c) Shares to be delivered to a participant under the
Plan will be registered in the name of the participant, or, if the
participant so directs by written notice to the Company prior to
the Termination Date of the pertinent offering, in the name of the
participant and one such other person as may be designated, as
joint tenants with rights of survivorship, to the extent permitted
by applicable law.
(d) In no event shall any certificates for fractional
shares be issued under the Plan.
10. ADMINISTRATION. (a) The Plan shall be administered
by the Committee which shall be appointed by the Board of Directors
of the Company and shall consist of not fewer than three members of
the Board of Directors. No member of the Committee shall be an
officer or Employee of the Company or of any of its Subsidiaries or
eligible to participate in the Plan. All members of the Committee
shall serve at the pleasure of the Board of Directors of the
Company which may, from time to time, remove members from, or add
members to, the Committee.
(b) The acts of a majority of the members of the
Committee attending a meeting at which a quorum is present, or acts
reduced to or approved in writing by a majority of the members of
the Committee, shall be the valid acts of the Committee.
(c) The Committee shall be vested with full authority to
make, administer, and interpret such rules and regulations and to
promulgate such forms as it deems necessary to administer the Plan,
and any determination, decision, or action of the Committee in
connection with the construction, interpretation, administration,
or application of the Plan shall be final, conclusive, and binding
upon all participants and any and all persons claiming under or
through any participant.
11. RESTRICTIONS ON TRANSFERABILITY. No participant may
sell, assign, pledge, encumber, transfer, or otherwise hypothecate
any option or right to purchase shares under the Plan. No
participant may sell, assign, pledge, encumber, transfer, or
otherwise hypothecate any of the shares purchased under the Plan
until the expiration of two years from the Offering Date of the
offering in which such shares are issued, nor until the expiration
of one year after the issuance of any shares to him or her;
provided, however, this restriction shall terminate upon the
occurrence of a Change of Control or other transaction described in
Paragraph 13. All stock certificates issued under the Plan shall
bear a conspicuous notation of such restriction.
12. CHANGES IN CAPITALIZATION. In the event of
reorganization, recapitalization, stock split, stock dividend,
combination of shares, offerings of rights, or any other change in
the structure of the common shares of the Company except merger or
consolidation, the Committee may make such adjustment, if any, as
it may deem appropriate in the number, kind, and the option price
of shares available for purchase under the Plan, and in the number
of shares which an Employee is entitled to purchase.
13. MERGER; CHANGE OF CONTROL. (a) If the Company shall
be the surviving or resulting corporation in any merger or
consolidation, each then outstanding option granted hereunder shall
pertain to and apply to the same number and type of shares of stock
which a holder of the same number of shares of Common Stock subject
to such option was entitled to receive by reason of such merger or
consolidation.
(b) Subject to Paragraph 3(b), the holder of an option
granted hereunder shall have the right to exercise such option, in
whole or in part, (i) during the period beginning with the
commencement of a tender offer or exchange offer (other than a
tender or exchange offer by the Company) which by its terms could
result in a Change of Control of the Company and ending ten days
after the first purchase of stock pursuant to such tender offer or
exchange offer, (ii) during the 30-day period following a Change of
Control of the Company, and (iii) during the 30-day period
commencing on the date of approval by the stockholders of the
Company of an agreement of merger or reorganization of the Company
in which the Company will not survive as an independent, publicly-
owned corporation, of a plan of dissolution or disposition of
substantially all of the assets of the Company. For the purpose of
determining the purchase price to be paid for shares purchased
pursuant to this subparagraph (b), the Termination Date shall be
deemed to be the date the holder of an option exercises his or her
option (or, in the event public trading in the Common Stock of the
Company ceases prior to such date, the last date the Common Stock
is traded in the over-the-counter market).
(c) At any time after the occurrence of a Change of
Control, the Company shall have the right to cancel all outstanding
options granted hereunder by making cash payment to each holder of
a then outstanding option with respect to each share of Common
Stock covered by such option, of the difference between the
greatest per share amount of cash (and the fair market value of any
other form of consideration) paid to the public stockholders of the
Company in the transaction or transactions resulting in the Change
of Control and the amount of cash that would have been paid by the
option holder to exercise such option if the Termination Date of
the offering had been the date such Change of Control occurred (or,
in the event public trading in the Common Stock ceases prior to
such date, the last date the Common Stock is traded in the over-
the-counter market). The Company may not exercise any rights under
this subparagraph (c) if the effect of such exercise would be to
subject an option holder to any liability under Section 16 of the
Securities Exchange Act of 1934, as amended.
14. TERMINATION OF EMPLOYEE'S RIGHTS OF PARTICIPATION.
An Employee's rights to participate in the Plan shall terminate
upon the termination of such Employee's employment by the Company
or a subsidiary of the Company for any reason including death or
retirement.
15. AMENDMENT OR TERMINATION. The Board of Directors of
the Company may at any time terminate, withdraw, suspend, modify,
or amend the Plan. No such termination can affect options
previously granted, nor may an amendment make any change in any
option theretofore granted which would adversely affect the rights
of any participant, nor may an amendment be made without the prior
approval of the stockholders of the Company if such amendment
requires the sale of more shares than are authorized under
Paragraph 9 of the Plan. No amendment to any provision of this
Plan relating to the amount and price of securities to be offered
or which specifies the timing of the granting of options under this
Plan, or which sets forth a formula that determines the amount,
price, and timing of options to be awarded under this Plan may be
amended more than once every six months, other than to comport with
changes in the Code, the Employee Retirement Income Security Act,
or the rules thereunder. The Plan will terminate in any event on
April 30, 1998, and no offering hereunder will be commenced after
May 1, 1997. Although it is presently contemplated that offerings
will be made under the Plan each year during the term of the Plan,
the Company shall not be obligated to any Employee or other person
whatsoever to make any offering under the Plan, or having made any
offering or offerings, to make any further offering or offerings
under the Plan.
16. NOTICES. All notices, exercises of options, payment
for stock, or other communications by a participant to the Company
under or in connection with the Plan shall be deemed to have been
duly given only when received by the Employee Benefits Office of
the Company or when received in the form specified by the Company
at the location, or by the person, designated by the Company for
the receipt thereof.
17. STOCKHOLDER APPROVAL. The Plan has been adopted by
the Board of Directors of the Company on March 8, 1993, and is
subject to the approval of the holders of a majority of the issued
and outstanding Common Stock within 12 months after its adoption by
the Board of Directors.
18. APPLICATION OF FUNDS. All proceeds received by the
Company from the sale of stock under the Plan will be used for
general corporate purposes.
19. GOVERNING LAW. This Plan and all agreements entered
into under the Plan shall be construed in accordance with and shall
be governed by the laws of the State of Kansas except as provided
in Paragraph 1 hereof.