FIRST COMMERCIAL CORPORATION
1987 Incentive and Nonqualified Stock Option Plan
As Amended May 15, 1990; April 19, 1994 and October 18, 1994
1. Purpose of Plan
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This Stock Option Plan (the "Plan") is intended as an incentive to
employees of First Commercial Corporation ("Company") and its affiliates
or subsidiaries. Its purposes are to retain employees with a high degree
of training, experience and ability, to attract new employees whose
services are considered unusually valuable, to encourage the sense of
proprietorship of such persons and to stimulate the active interest of
such persons in the development and financial success of the Company. It
is intended that options granted under the Plan will qualify as "incentive
stock options" under the Internal Revenue Code of 1954 as amended by the
Economic Recovery Tax Act of 1981, and as may be further amended from time
to time (the "Internal Revenue Code") provided, however, that nonqualified
stock options may also be granted which do not qualify as incentive stock
options.
2. Administration of the Plan
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(a) The Compensation Committee appointed by the Board of Directors of the
Company ("Compensation Committee"), consisting of four members of the
Board of Directors who are both "disinterested persons" within the
meaning of Rule 16b-3 of the Securities and Exchange Commission and
"outside directors" under applicable Treasury Regulations, will
recommend to the Board of Directors qualified individuals as
described in Paragraph 3 to participate in the Plan. The
Compensation Committee shall have the power and authority to
designate the number of shares to be optioned to each participant and
which participants shall receive options, to interpret the provisions
of the Plan and to supervise the administration of the Plan. All
decisions and selections made by the Compensation Committee pursuant
to the Plan shall be made by a majority of its members eligible to
vote on matters affecting the Plan. For the purposes of the Plan, no
member of the Board of Directors shall be authorized to vote upon any
matters concerning the Compensation Committee, who is an executive
officer or salaried employee of the Company or of any of its
affiliates or subsidiaries or who has, at any time within one year
prior to any time when any matter involving the Plan is being acted
upon by the Compensation Committee, served the Company or any of its
affiliates or subsidiaries in such a position. The Compensation
Committee may from time to time refer matters involving the Plan to
one or more special constituted subcommittees of its members for
study, reports and recommendations to be made to the Compensation
Committee. Any decision of the Compensation Committee which shall be
reduced in writing and signed by a majority of its members shall be
fully effective as if such decision has been made at a duly
constituted meeting of the Compensation Committee.
(b) Option grants shall be in the absolute discretion of the Compensation
Committee, and shall be final without approval of the shareholders of
the Company. The Board of Directors of the Company shall ratify the
terms of the option grants.
3. Eligibility
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(a) The person eligible for participation in the Plan as recipient of
options shall include only employees of the Company or of any
affiliates or subsidiaries of the Company (as defined in Section
425(f) of the Internal Revenue Code) who are executive,
administrative, professional, or technical personnel and who have the
principal responsibility, subject to the Board of Directors, for the
management, direction and financial success of the Company. An
employee who owns, directly or indirectly, stock possessing more than
10% (ten percent) of the total combined voting power or value of all
classes of stock in the Company or an affiliate or subsidiary thereof
shall not be eligible to participate in the incentive portion of the
Plan; however, such employees shall be eligible to participate in the
nonqualified portion of the Plan. The Directors of the Company shall
not be eligible to participate in the Plan as Directors, but
Directors otherwise qualified shall be eligible to participate. An
employee who has been granted an option hereunder may be granted an
additional option or options if the Compensation Committee shall so
determine. In addition, any consultant who spends in excess of 1,000
hours providing services on behalf of the Company shall be eligible
to receive nonqualified stock options only.
(b) No executive may receive more than 25% of the total number of options
granted in any single year, nor more than 25% of the total number of
options granted over the life of the Plan.
4. Shares Subject to the Plan
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Subject to the adjustments as provided in Paragraph 9 hereof, there shall
be subject to the Plan 1,375,596 shares of common stock of the Company par
value $3.00 per share. Any or all of the shares subject to the Plan may
be granted at such time as the Board of Directors may determine. The
shares subject to the Plan shall consist of authorized but unissued shares
or treasury shares held by the Company. Any of such shares which may
remain unsold and which are not subject to outstanding options at the
termination of the Plan shall cease to be subject to the Plan, but until
termination of the Plan, the Company shall at all times make available a
sufficient number of shares to meet the requirements of the Plan. Should
any option expire or be canceled prior to the exercise in full, the shares
thereof subject to such options may again be subject to an option under
the plan.
5. Option Price
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(a) The purchase price for each share placed under option pursuant to the
Plan shall be determined by the Compensation Committee, but shall in
no event be less than 100% of the fair market value of such shares on
the date the option is granted.
(b) The aggregate fair market value (determined at the time the option is
granted) of stock treated as acquired pursuant to incentive stock
options which are exercisable for the first time during any calendar
year (under all incentive stock option plans of the Company or as
affiliates or subsidiaries thereof) shall not exceed $100,000.
(c) The fair market value of a share at time of grant shall be deemed to
be (i) the average of the closing bid and ask price as reported by
the National Association of Securities Dealers Quotation System
("NASDAQ") on that date or (ii) if the stock hereafter becomes listed
on a stock exchange, the mean between the highest and lowest sales
price per share of the stock on the principal national securities
exchanges on which the stock may be listed from time to time on that
date or, in either case, if there shall have been no sale on that
date on the last preceding date on which such sale or sales were
reported on NASDAQ or effected on such exchange. In the event that
the method just described for determining the fair market value of
the shares shall not remain consistent with the provisions of the
Internal Revenue Code or the regulations of the Secretary of the
Treasury promulgated thereunder, then the fair market value per share
shall be determined by such other method consistent with the Internal
Revenue Code or regulations as the Compensation Committee shall in
its discretion select and apply at the time of grant of the option
concerned.
6. Option Period
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(a) Options granted under this plan shall terminate and be of no force
and effect with respect to any shares not previously purchased by the
optionee upon the happening of the first of the following:
(i) The expiration of ten (10) years from the date of granting of such
option, or
(ii) The termination of the optionee's employment with the Company for
any reason, with or without cause, other than by death or
retirement, or
(iii) The expiration of twelve (12) months after the date of death of
the optionee, or
(iv) The expiration of three (3) months after the date of retirement of
the optionee.
(b) If a participant leaves the Company to join a competitor, unexercised
options granted to the participant under the Plan shall be forfeited.
(c) "Employment with the Company" as used in this Plan shall include
employment with any affiliate or subsidiary of the Company and option
granted under this Plan shall not be affected by an employee's
transfer of employment from the Company to an affiliate or
subsidiary, from an affiliate or subsidiary to the Company or between
affiliates or subsidiaries.
7. Terms and Exercise of Options
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(a) The Compensation Committee in granting options hereunder shall have
discretion to determine the terms on which options shall be
exercisable, including such provisions as deemed advisable to permit
qualification as "incentive stock options" within the meaning of
Section 422A of the Internal Revenue Code, as the same may from time
to time be amended. Any incentive stock options outstanding under
the Plan may be amended, if necessary, in order to retain such
qualification.
(b) Options may be exercised solely by the optionee during his lifetime,
or in the event of his legal incapacity, by his legal representative,
or after his death, by the person or persons entitled thereto under
his Will or the laws of descent and distribution. In the event of
the retirement of an optionee while in the employ of the Company at
or beyond age 65, or any time after age 62, if the optionee has 10 or
more years of employment with the Company, any unmatured installments
of the option shall be accelerated as of the date of retirement and
the option shall be exercisable in full within three months following
the date of retirement. In the event of the death of an optionee
while in the employ of the Company, any unmatured installments of the
options shall be accelerated as of the date of death and the option
shall be exercisable in full within twelve months following the date
of death. Options shall terminate and be of no force and effect in
the event of termination of employment for any reason other than
retirement or death. In no event may an option be exercised more
than ten years after the date of its grant.
(c) Options may be exercised, whether in whole or in part, by written
notification to the Company, accompanied by cash or Cashier's Check
for the aggregate price of the number of shares being purchased, or
upon exercising of an option the optionee may, with approval of the
Compensation Committee, pay for the shares by tendering stock in the
Company already owned by the optionee, with such stock being valued
on the date of exercise by application of the method set out in
Paragraph 5 hereinabove. An optionee may, with approval of the
Compensation Committee, also pay for such shares with a combination
of cash and stock of the Company valued as stated above.
(d) Options granted under the Plan which are not incentive stock options
shall become exercisable at such time as the Compensation Committee
may, in its discretion, determine, which time may be different from
those specified in Paragraph 7(a) for incentive stock options. In
the event more than $100,000 of stock which is subject to an option
which would otherwise qualify as an incentive stock option first
becomes exercisable in a calendar year (under all incentive stock
option plans of the Company or an affiliate or subsidiary thereof),
the Compensation Committee may designate the stock that is treated as
an incentive stock option by issuing a separate stock certificate (or
certificates) for $100,000 of stock and identifying such certificate
(or certificates) as incentive stock option stock in the Company's
stock transfer records and the balance of the stock shall be treated
as acquired pursuant to the exercise of a nonqualified stock option.
(e) Stock certificates to be issued or transferred pursuant to Options
granted under this Plan shall have noted thereon that same have been
issued or transferred pursuant to an option granted under this Plan.
Additionally, such stock certificates shall bear a restriction that
in the event a participant leaves the Company to join a competitor,
any stock purchased six months prior to termination of employment as
a result of exercise of nonqualified stock options shall be subject
to an option on behalf of the Company to repurchase such stock at the
option price for a period of 30 days after such participant's
termination.
8. Assignability
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Options granted under this Plan shall not be assignable or transferable by
the optionee, otherwise than by Will or the laws of descent and
distribution and shall be exercisable during the lifetime of the optionee
only by the optionee for his individual account or, in the event of
his legal incapacity, by his legal representatives. Other than is
permitted in the preceding sentence, no assignment or transfer of an
option or of the rights represented thereby, whether voluntarily or
involuntarily, by operation of law or otherwise, shall vest in the
purported assignee or transferee, any interest or right therein
whatsoever, but immediately upon any such purported assignment or
transfer, or any attempt to make the same, such option shall
terminate and become of no further effect.
9. Reorganizations and Recapitalization of the Company
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(a) The existence of this Plan and options granted hereunder shall not
affect in any way the right or power of the Company or its
shareholders to make or authorize any or all adjustments,
recapitalizations, reorganizations or other changes in the Company's
capital structure or its business, or any merger or consolidation of
the Company, or any issue of bonds, debentures, preferred or prior
preferred stocks ahead of or affecting the common stock or the rights
thereof, or the dissolution or the liquidation of the Company, or any
sale or transfer of all or any part of its assets or business, or any
corporate act or proceeding, whether of a similar character or
otherwise.
(b) The shares with respect to which options may be granted hereunder are
shares of the common stock of the Company as presently constituted,
but if and whenever, prior to the delivery by the Company of all of
the shares of common stock which are subject to options granted
hereunder, the Company shall effect a subdivision or consolidation of
shares or other capital readjustments, the payments of a stock
dividend or other increase or reduction in the number of shares of
the common stock outstanding without receiving compensation therefor
in money, services or property, the number of shares of common stock
available under the Plan and the number of shares of common stock
with respect to which options granted hereunder, may thereafter be
exercised shall (i) in the event of an increase in the number of
shares, be proportionately increased, and the cash consideration
payable per share shall be proportionately reduced; and (ii) in the
event of a reduction in the number of outstanding shares, be
proportionately reduced, and the cash consideration payable per share
shall be proportionately increased.
(c) If the Company is reorganized or merged or consolidated with or sells
or otherwise disposes of substantially all its assets to another
corporation or if at least 80% of the outstanding common stock of the
Company is acquired by another corporation (in exchange for stock or
other securities of such other corporation) while unexercised options
remain outstanding under the Plan, there shall be substituted for the
shares subject to the unexercised portion of such outstanding options
an appropriate number of shares, if any, of each class of stock or
other securities of the reorganized, merged, consolidated, or
acquiring corporation which were distributed or issued to the
shareholders of the Company in respect of such shares. In the case
of any reorganization, merger or consolidation wherein the Company is
not the surviving corporation, or any sale or distribution of
substantially all of the assets of the Company to another corporation
or the acquisition of at least 80% of the outstanding common stock of
the Company by another corporation (in exchange for stock or other
securities of such other corporations) all options granted under the
plan shall become immediately vested without regard to the
installment provision set forth in Paragraph 7 hereof provided.
(d) In the event there shall be any change of the number of, or kind of,
issued shares of stock under option, or of any stock or other
securities into which such stock shall have changed, or for which it
shall have been exchanged, then if the Compensation Committee shall,
in its sole discretion, determine that such change equitably requires
an adjustment in the number, or kind, or option price of shares then
subject to an option or available for option, such adjustment shall
be made by the Board of Directors and shall be effective and binding
for all purposes of the respective Plan.
10. Registration and Listing
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The Company from time to time shall take such steps as may be necessary to
cause the issuance of shares upon the exercise of options granted under
the Plan to be registered under the Securities Act of 1933, as amended,
and such other Federal or State securities laws as may be applicable. The
timing of such registration shall be at the sole discretion of the
Company. Until such shares are registered, they shall bear a legend
restricting the sale of such securities. The Company shall also from time
to time take such steps as may be necessary to list the shares issuable
upon exercise of options granted under the Plan for trading on such stock
exchange on which the Company's then outstanding shares are admitted to
listed trading.
11. Effective and Expiration Dates of Plan
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The effective date of the Plan is February 17, 1987. No option shall be
granted pursuant to the Plan after February 17, 1997.
12. Amendments or Termination
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The Board of Directors may amend, alter or discontinue the Plan, but no
amendment or alteration shall be made without the approval of the
shareholders which would:
(I) materially increase the benefits accruing to participants under
the Plan; or
(ii) increase the number of securities which may be issued under the
Plan; or
(iii) modify the requirements as to eligibility for participants in the
Plan.
No amendment, alteration or discontinuation of the Plan shall adversely
affect any stock options granted prior to the time of such amendment,
alteration or discontinuation.
13. Government Regulations
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Notwithstanding any provisions hereof, or any option granted hereunder,
the obligation of the Company to sell and deliver shares under any such
option shall be subject to all applicable laws, rules and regulations and
to such approvals by any governmental agencies or national securities
exchange as may be required, and the optionee shall agree that he
will not exercise any option granted hereunder, and that the Company
will not be obligated to issue any shares under any such option, if
the exercise thereof or if the issuance of such shares shall
constitute a violation by the optionee or the Company of any
applicable law or regulation.