EXHIBIT 10.2
FIRST COMMERCE CORPORATION
AMENDED AND RESTATED
1992 STOCK INCENTIVE PLAN
Section 1. Purpose. The purpose of the First Commerce
Corporation 1992 Stock Incentive Plan (the "Plan") is to increase
shareholder value and to advance the interests of First Commerce
Corporation ("FCC") and its subsidiaries (collectively, the
"Company") by granting stock options, stock appreciation rights,
stock awards, restricted stock and performance share awards (the
"Incentives") to key officers of the Company in order to attract,
retain and motivate these officers.
Section 2. Administration.
Section 2.1 Composition. The Plan shall be
administered by the Compensation Committee (the "Committee")
of the Board of Directors of FCC. The Committee shall
consist of not fewer than two members of the Board of
Directors, all of whom shall (a) to the extent required,
qualify to administer the Plan under Rule 16b-3 under the
Securities Exchange Act of 1934 (the "Exchange Act") as
currently in effect or any successor rule, and (b) beginning
on the date of the Company's 1995 annual meeting of
shareholders, qualify as "outside directors" under Section
162(m) of the Internal Revenue Code of 1986, as amended (the
"Code").
Section 2.2 Authority. The Committee shall have
plenary authority to award Incentives under the Plan, to set
the terms of such Incentives, to interpret the Plan, to
establish any rules or regulations relating to the Plan that
it determines to be appropriate, and to make any other
determination that it believes necessary or advisable for
the proper administration of the Plan. Its decisions in
matters relating to the Plan shall be final and conclusive
on the Company and participants. The Committee may delegate
its authority hereunder to the extent provided elsewhere
herein.
Section 3. Eligible Participants. Employees of the
Company holding the position of assistant vice-president or above
(including directors who also hold positions of assistant vice-
president or above) who, in the opinion of the Committee have
significant responsibility for the continued growth, development
and financial success of the Company shall become eligible to
receive Incentives under the Plan when designated by the
Committee. Participants may be designated individually or by
groups or categories as the Committee deems appropriate. With
respect to participants not subject to Section 16 of the Exchange
Act and not covered employees under Section 162(m) of the Code,
the Committee may delegate to the Chief Executive Officer of FCC
its authority to designate participants, to determine the size
and type of Incentive to be received by those participants and to
determine or modify performance objectives for those
participants, subject to ratification by the Committee.
Section 4. Types of Incentives. Incentives may be granted
under the Plan in any of the following forms, either individually
or in combination, (a) incentive stock options and non-qualified
stock options; (b) stock appreciation rights ("SARs"); (c) stock
awards; (d) restricted stock and (e) performance shares.
Section 5. Shares Subject to the Plan.
Section 5.1 Number of Shares. Subject to adjustment
as provided in Section 11.5, the total number of shares of
FCC common stock, $5.00 par value per share (the "Common
Stock"), with respect to which Incentives may be granted
under the Plan shall not exceed ten percent of the total
number of outstanding shares of Common Stock during the
effectiveness of the Plan. In addition, Incentives that may
be paid in shares of Common Stock granted in any one year
shall not exceed one percent of the total number of shares
outstanding and the aggregate of Incentives that may be paid
in shares of Common Stock and Incentives that must be paid
in cash granted in one year shall not exceed five percent of
the total number of shares outstanding. Incentives with
respect to no more than 100,000 shares of Common Stock may
be granted through the Plan to a single participant in one
calendar year. If and to the extent that an Incentive is
paid in cash rather than shares of Common Stock, the total
number of shares available for issuance during the
effectiveness of the Plan hereunder shall be credited with
the appropriate number of shares represented by the cash
payment of the Incentive, as determined in the sole
discretion of the Committee.
Section 5.2 Cancellation. If a stock option or stock
appreciation right granted hereunder expires or is
terminated or cancelled as to any shares of Common Stock,
such shares may again be issued under the Plan. If shares
of Common Stock are issued as restricted stock or as stock
awards and thereafter are forfeited or reacquired by the
Company pursuant to rights reserved upon issuance thereof,
such forfeited and reacquired shares may again be issued
under the Plan, if such issuance does not result in a
violation of Rule 16-3 under the Act or any successor rule.
The Committee may also determine to cancel, and agree to the
cancellation of, stock options and stock appreciation rights
in order to grant new stock options or stock appreciation
rights to the same participant at a lower price than the
options or stock appreciation rights to be cancelled.
Section 5.3 Type of Common Stock. Common Stock
issued under the Plan in connection with Incentives may be
authorized and unissued shares or issued shares held as
treasury shares.
Section 5.4 Reinvestment of Dividends. Shares of
Common Stock that are delivered to a participant in the Plan
as a result of the reinvestment of dividends in conjunction
with restricted stock shall be applied against the maximum
number of shares provided in Section 5.1.
Section 6. Stock Options. A stock option is a right to
purchase shares of Common Stock from the Company. Each stock
option granted by the Committee under the Plan shall be subject
to the following terms and conditions:
Section 6.1 Price. The option price per share shall
be equal to the Fair Market Value (as defined in Section
11.11) of a share of Common Stock on the date of grant,
subject to adjustment under Section 11.5.
Section 6.2 Number. The number of shares of Common
Stock subject to the option shall be determined by the
Committee, subject to adjustment as provided in Section
11.5.
Section 6.3 Duration and Time for Exercise. The term
of each option shall be determined by the Committee. Each
option shall become exercisable at such time or times during
its term as shall be determined by the Committee and as
provided in Section 11.10; provided, however, that, except
as provided in Section 11.10, no stock option shall be
exercisable within the six month period immediately
following the date of grant and, unless otherwise provided
in the stock option agreement, all stock options shall
expire (a) 12 months from the date of termination of
employment as the result of death or disability, (b) six
months and one day after termination of employment as a
result of retirement and (c) immediately if employment
terminates for any other reason, including resignation and
termination for cause. The Committee may in its discretion
extend the term of options which would otherwise expire as a
result of resignation or termination for cause. The
Committee may also impose such terms and conditions to the
exercise of each option as it deems advisable and may
accelerate the exercisability of any outstanding option at
any time in its sole discretion.
Section 6.4 Repurchase. Upon approval of the
Committee, the Company may repurchase a previously granted
stock option from a participant by mutual agreement before
such option has been exercised by payment to the participant
of the amount per share by which: (a) the Fair Market Value
of the Common Stock subject to the option on the date of
purchase exceeds (b) the option price.
Section 6.5 Manner of Exercise. A stock option may
be exercised, in whole or in part, by giving written notice
to the Company, specifying the number of shares of Common
Stock to be purchased. The exercise notice shall be
accompanied by the full purchase price for such shares. The
option price shall be payable in United States dollars and
may be paid (a) by cash, uncertified or certified check or
bank draft, (b) by delivery of shares of Common Stock held
by the optionee for at least six months in payment of all or
any part of the option price, which shares shall be valued
for this purpose at the Fair Market Value on the date such
option is exercised, (c) by delivering a properly executed
exercise notice together with irrevocable instructions to a
broker approved by the Company (with a copy to the Company)
to promptly deliver to the Company the amount of sale or
loan proceeds to pay the exercise price or (d) in such other
manner as may be authorized from time to time by the
Committee. Shares of Common Stock delivered in payment of
the exercise price that were acquired upon the exercise of a
stock option are deemed to have been held from the date of
grant of the stock option. In the case of delivery of an
uncertified check or bank draft upon exercise of a stock
option, no shares shall be issued until the check or draft
has been paid in full. Prior to the issuance of shares of
Common Stock upon the exercise of a stock option, a
participant shall have no rights as a stockholder.
Section 6.6 Incentive Stock Options. Notwithstanding
anything in the Plan to the contrary, the following
additional provisions shall apply to the grant of stock
options that are intended to qualify as incentive stock
options (as such term is defined in Section 422 of the
Internal Revenue Code of 1986, as amended (the "Code"):
(a) Any incentive stock option authorized under
the Plan shall contain such other provisions as the
Committee shall deem advisable, but shall in all events
be consistent with and contain or be deemed to contain
all provisions required in order to qualify the options
as incentive stock options;
(b) All incentive stock options must be granted
within ten years from the date on which this Plan was
adopted by the Board of Directors;
(c) Unless sooner exercised, all incentive stock
options shall expire no later than ten years after the
date of grant;
(d) No incentive stock option shall be granted to
any participant who, at the time such option is
granted, would own (within the meaning of Section 422
of the Code) stock possessing more than 10% of the
total combined voting power of all classes of stock of
the employer corporation or of its parent or subsidiary
corporation; and
(e) The aggregate Fair Market Value (determined
with respect to each incentive stock option as of the
time such incentive stock option is granted) of the
Common Stock with respect to which incentive stock
options are exercisable for the first time by a
participant during any calendar year (under the Plan or
any other plan of the Company) shall not exceed
$100,000. To the extent that such limitation is
exceeded, such options shall not be treated, for
federal income tax purposes, as incentive stock
options.
Section 6.7 Non-Transferability of Options. Options
granted under the Plan shall not be transferable otherwise
than by will or by the laws of descent and distribution or
pursuant to a qualified domestic relations order, as defined
by the Code, and options may be exercised during the
lifetime of a participant only by the participant or by the
participant's guardian or legal representative. Any
attempted assignment, transfer, pledge, hypothecation or
other disposition of an option, or levy of attachment or
similar process upon the option not specifically permitted
herein shall be null and void and without effect.
Section 7. Restricted Stock
Section 7.1 Grant of Restricted Stock. The Committee
may award shares of restricted stock to such key employees
as the Committee determines to be eligible pursuant to the
terms of Section 3. An award of restricted stock may be
subject to the attainment of specified performance goals or
targets, restrictions on transfer, forfeitability provisions
and on such other terms and conditions as the Committee may
determine, subject to the provisions of the Plan. To the
extent restricted stock is intended to qualify as
performance based compensation under Section 162(m) of the
Code, it must meet the additional requirements imposed
thereby.
Section 7.2 Award and Delivery of Restricted Stock.
At the time an award of restricted stock is made, the
Committee shall establish a period of time (the "Restricted
Period") applicable to such an award. Each award of
restricted stock may have a different Restricted Period.
The Committee may, in its sole discretion, prescribe
conditions for the lapse of restrictions upon death,
disability, retirement or other termination of employment or
for the lapse or termination of restrictions upon the
satisfaction of other conditions in addition to or other
than the expiration of the Restricted Period with respect to
all or any portion of the shares of restricted stock. In
addition, any participant subject to Section 16 of the
Exchange Act shall be prohibited from selling shares of
restricted stock for a period of six months from the grant
thereof. The Committee shall have the power to accelerate
the expiration of the Restricted Period with respect to all
or any part of the shares awarded to a participant and the
expiration of the Restricted Period shall automatically
occur under the conditions described in Section 11.10
hereof.
Section 7.3 Escrow. In order to enforce the
restrictions imposed by the Committee pursuant to this
Section 7, the participant receiving restricted stock shall
enter into an agreement with the Company setting forth the
conditions of the grant. Certificates representing shares
of restricted stock shall be registered in the name of the
participant and deposited with the Company, together with a
stock power endorsed in blank by the participant. Each such
certificate shall bear a legend in substantially the
following form:
The transferability of this certificate and the
shares of Common Stock represented by it are
subject to the terms and conditions (including
conditions of forfeiture) contained in the First
Commerce Corporation 1992 Stock Incentive Plan
(the "Plan"), and an agreement entered into
between the registered owner and First Commerce
Corporation. Copies of the Plan and the agreement
are on file at the principal office of the
Company.
Section 7.4 Dividends on Restricted Stock. Any and
all cash and stock dividends paid with respect to the shares
of restricted stock shall be subject to any restrictions on
transfer, forfeitability provisions or reinvestment
requirements as the Committee may, in its discretion,
determine.
Section 7.5 Forfeiture. Upon the forfeiture of any
restricted stock (including any additional shares of
restricted stock that may result from the reinvestment of
cash and stock dividends in accordance with such rules as
the Committee may establish pursuant to Section 7.4), such
forfeited shares shall be surrendered. The participants
shall have the same rights and privileges, and be subject to
the same forfeiture provisions with respect to any
additional shares received pursuant to Section 11.5 due to a
recapitalization, merger or other change in capitalization.
Section 7.6 Expiration of Restricted Period. Upon the
expiration or termination of the Restricted Period and the
satisfaction of any other conditions prescribed by the
Committee or at such earlier time as provided for in Section
7.2 and in the restricted stock agreement, the restrictions
applicable to the restricted stock shall lapse and a stock
certificate for the number of shares of restricted stock
with respect to which the restrictions have lapsed shall be
delivered, free of all such restrictions, except any that
may be imposed by law, to the participant or the
participant's estate, as the case may be.
Section 7.7 Rights as a Stockholder. Subject to the
terms and conditions of the Plan and subject to any
restrictions on the receipt of dividends that may be imposed
by the Committee, each participant receiving restricted
stock shall have all the rights of a stockholder with
respect to shares of stock during any period in which such
shares are subject to forfeiture and restrictions on
transfer, including without limitation, the right to vote
such shares. Unless otherwise restricted by the Committee,
dividends paid in cash or property, other than Common Stock
with respect to shares of restricted stock, shall be paid to
the participant currently.
Section 8. Stock Appreciation Rights. A SAR is a right to
receive, without payment to the Company, a number of shares of
Common Stock, cash or any combination thereof, the amount of
which is determined pursuant to the formula set forth in Section
8.4. A SAR may be granted (a) with respect to any stock option
granted under the Plan, either concurrently with the grant of
such stock option or at such later time as determined by the
Committee (as to all or any portion of the shares of Common Stock
subject to the stock option), or (b) alone, without reference to
any related stock option. Each SAR granted by the Committee
under the Plan shall be subject to the following terms and
conditions:
Section 8.1 Number. Each SAR granted to any
participant shall relate to such number of shares of Common
Stock as shall be determined by the Committee, subject to
adjustment as provided in Section 11.5. In the case of a
SAR granted with respect to a stock option, the number of
shares of Common Stock to which the SAR pertains shall be
reduced in the same proportion that the holder of the option
exercises the related stock option.
Section 8.2 Duration. The term of each SAR shall be
determined by the Committee. Unless otherwise provided by
the Committee, each SAR shall become exercisable at such
time or times, to such extent and upon such conditions as
the stock option, if any, to which it relates is
exercisable. No SAR granted to an officer subject to
Section 16 of the Exchange Act may be exercised during the
first six months of its term. Notwithstanding the
foregoing, the Committee may in its discretion accelerate
the exercisability of any SAR.
Section 8.3 Exercise. A SAR may be exercised, in
whole or in part, by giving written notice to the Company,
specifying the number of SARs that the holder wishes to
exercise. The date that the Company receives such written
notice shall be referred to herein as the "Exercise Date."
The Company shall, within 30 days of an Exercise Date,
deliver to the exercising holder certificates for the shares
of Common Stock or cash or both, as determined by the
Committee, to which the holder is entitled pursuant to
Section 8.4.
Section 8.4 Payment. Subject to the right of the
Committee to deliver cash in lieu of shares of Common Stock,
the number of shares of Common Stock that shall be issuable
upon the exercise of an SAR shall be determined by dividing:
(a) the number of shares of Common Stock as to
which the SAR is exercised multiplied by the amount of
the appreciation in such shares (for this purpose, the
"appreciation" shall be the amount by which the Fair
Market Value of the shares of Common Stock subject to
the SAR on the Exercise Date exceeds (1) in the case of
a SAR related to a stock option, the purchase price of
the shares of Common Stock under the stock option or
(2) in the case of a SAR granted alone, without
reference to a related stock option, an amount equal to
the Fair Market Value of a share of Common Stock on the
date of grant, which shall be determined by the
Committee at the time of grant, subject to adjustment
under Section 11.5); by
(b) the Fair Market Value of a share of Common
Stock on the Exercise Date.
In lieu of issuing shares of Common Stock upon the
exercise of a SAR, the Committee may elect to pay the holder
of the SAR cash equal to the Fair Market Value on the
Exercise Date of any or all of the shares which would
otherwise be issuable. No fractional shares of Common Stock
shall be issued upon the exercise of a SAR; instead, the
holder of a SAR shall be entitled to receive a cash
adjustment equal to the same fraction of the Fair Market
Value of a share of Common Stock on the Exercise Date or to
purchase the portion necessary to make a whole share at its
Fair Market Value on the Exercise Date.
Section 9.Stock Awards. A stock award consists of the
transfer by the Company to a participant of shares of Common
Stock, without other payment therefor, as additional compensation
for services previously provided to the Company. The number of
shares to be transferred by the Company to a participant pursuant
to a stock award shall be determined by the Committee. To the
extent a stock award is intended to qualify as performance based
compensation under Section 162(m) it must meet the additional
requirements imposed thereby.
Section 10.Performance Shares. A performance share consists
of an award that may be paid in shares of Common Stock or in
cash, as described below. The award of performance shares shall
be subject to such terms and conditions as the Committee deems
appropriate, including the following:
Section 10.1 Performance Objectives. Each
performance share will be subject to performance objectives
for the Company or one of its subsidiaries or departments to
be achieved by the end of a specified period. The number of
performance shares awarded shall be determined by the
Committee and may be subject to such terms and conditions,
as the Committee shall determine. If the performance
objectives are achieved, each participant will be paid (a) a
number of shares of Common Stock equal to the number of
performance shares initially granted to that participant;
(b) a cash payment equal to the Fair Market Value of such
number of shares of Common Stock on the date the performance
objectives are met or such other date as may be provided by
the Committee or (c) a combination of shares of Common Stock
and cash, as may be provided by the Committee. If such
objectives are not met, each award of performance shares may
provide for lesser payments in accordance with the
established formula. To the extent a performance share is
intended to qualify as performance based compensation under
Section 162(m) of the Code, it must meet the additional
requirements imposed thereby.
Section 10.2 Not a Shareholder. The award of
performance shares to a participant shall not create any
rights in such participant as a shareholder of the Company,
until the payment of shares of Common Stock with respect to
an award.
Section 10.3 Dividend Equivalent Payments. A
performance share award may be granted by the Committee in
conjunction with dividend equivalent payment rights or other
such rights. If so granted, an adjustment shall be made in
performance shares awarded on account of cash dividends that
may be paid or other rights that may be issued to the
holders of Common Stock prior to the end of any period for
which performance objectives were established.
Section 10.4 Non-transferability of Performance
Shares. No performance share may be transferred, pledged or
assigned by the holder thereof (except, in the event of the
holder's death, by will or the laws of descent and
distribution) and the Company shall not be required to
recognize any attempted assignment of such performance share
by any participant.
Section 11. General.
Section 11.1 Duration. The Plan shall remain in
effect until all Incentives granted under the Plan have
either been satisfied by the issuance of shares of Common
Stock or the payment of cash or been terminated under the
terms of the Plan and all restrictions imposed on shares of
restricted stock in connection with their issuance under the
Plan have lapsed.
Section 11.2 Effect of Termination of Employment or
Death. If a participant ceases to be an employee of the
Company for any reason, including death, any Incentives may
be exercised or shall expire as provided herein or as may be
determined by the Committee in the Incentive Agreement.
Section 11.3 Legal and Other Requirements. The
obligation of the Company to sell and deliver Common Stock
under the Plan shall be subject to all applicable laws,
regulations, rules and approvals, including, but not by way
of limitation, the effectiveness of a registration statement
under the Securities Act of 1933 if deemed necessary or
appropriate by the Company.
Section 11.4 Non-transferability of Common Stock.
Any shares of Common Stock awarded to a participant subject
to Section 16 of the Exchange Act through a stock award, as
restricted stock or in payment of a performance share award
must be held for a period of six months from the date of
grant, unless otherwise permitted to be transferred and
still be in compliance with Rule 16b-3 under the Exchange
Act.
Section 11.5 Adjustment. In the event of any merger,
consolidation or reorganization of the Company with any
other corporation or corporations, there shall be
substituted for each of the shares of Common Stock then
subject to the Plan, including shares subject to
restrictions, options, or achievement of performance share
objectives, the number and kind of shares of stock or other
securities to which the holders of the shares of Common
Stock will be entitled pursuant to the transaction. In the
event of any recapitalization, stock dividend, stock split,
combination of shares or other change in the Common Stock,
the number of shares of Common Stock then subject to the
Plan, including shares subject to restrictions, options or
achievement of performance share objectives, shall be
adjusted in proportion to the change in outstanding shares
of Common Stock. In the event of any such adjustments, the
purchase price of any option, the performance objectives of
any Incentive, and the shares of Common Stock issuable
pursuant to any Incentive shall be adjusted as and to the
extent appropriate, in the reasonable discretion of the
Committee, to provide participants with the same relative
rights before and after such adjustment.
Section 11.6 Incentive Agreements. The terms of each
Incentive shall be stated in an agreement approved by the
Committee. The Committee may also determine to enter into
agreements with holders of options to reclassify or convert
certain outstanding options, within the terms of the Plan,
as incentive stock options or as non-qualified stock options
with respect to all or part of such options and any other
previously issued options. Notwithstanding anything to the
contrary contained in the Plan, the Company is under no
obligation to grant an Incentive to a participant or
continue an Incentive in force unless the participant
executes all appropriate agreements with respect to such
Incentives in such form as the Committee may determine from
time to time.
Section 11.7 Withholding. At any time that a
participant is required to pay to the Company an amount
required to be withheld under the applicable income tax laws
in connection with the issuance of shares of Common Stock
under the Plan or upon the lapse of restrictions on shares
of restricted stock, the participant may, subject to the
Committee's right of disapproval, satisfy this obligation in
whole or in part by electing (the "Election") to have the
Company withhold from the distribution shares of Common
Stock having a value equal to the amount required to be
withheld. The value of the shares withheld shall be based
on the Fair Market Value of the Common Stock on the date
that the amount of tax to be withheld shall be determined
(the "Tax Date").
Each Election must be made prior to the Tax Date. The
Committee may disapprove of any Election or may suspend or
terminate the right to make Elections. If a participant
makes an election under Section 83(b) of the Internal
Revenue Code with respect to shares of restricted stock, an
Election is not permitted to be made.
If a participant is an officer of the Company within
the meaning of Section 16 of the Exchange Act, then the
exemption provided by Rule 16b-3(e) under the Exchange Act
for the stock withholding transaction will only be available
if the Election meets the following additional provisions:
(a) No Election shall be effective for a Tax Date
that occurs within six months of the grant of the
option or restricted stock.
(b) The Election must be made either (i) six
months prior to the Tax Date or (ii) during a period
beginning on the third business day following the date
of release for publication of the Company's quarterly
or annual summary statements of earnings and ending on
the twelfth business day following such date (a "window
period"). If the Election is made under (b)(ii) hereof
and relates to the exercise of an option, the exercise
must also occur during a window period.
(c) The Election is irrevocable except upon six
months' advance written notice to the Company.
A participant may also satisfy his or her total tax
liability related to the Incentive by delivering shares of
Common Stock that have been owned by the participant for at
least six months. Satisfaction of the tax obligation
through the use of previously owned shares does not require
compliance with the procedures described above applicable to
an Election to have shares withheld from the shares
otherwise issuable under the Incentive. The value of the
shares delivered shall be based on the Fair Market Value of
the Common Stock on the Tax Date.
Section 11.8 No Continued Employment. No participant
in the Plan shall have any right, because of his or her
participation, to continue in the employ of the Company for
any period of time or to any right to continue his or her
present or any other rate of compensation.
Section 11.9 Amendment of the Plan. The Board may
amend or discontinue the Plan at any time; provided,
however, that no such amendment or discontinuance shall
change or impair, without the consent of the recipient, an
Incentive previously granted and; further provided that if
any such amendment requires shareholder approval to meet the
requirements of Rule 16b-3 under the Exchange Act or any
successor rule such amendment shall be subject to the
approval of the shareholders of FCC.
Section 11.10 Immediate Acceleration of Incentives.
Notwithstanding any provision in this Plan or in any
Incentive Agreement to the contrary, except a provision in
an Incentive Agreement that provides that an Incentive will
in no case be earned unless the prescribed performance goals
are met and no acceleration of vesting will occur under the
terms of this provision, (a) the restrictions on all shares
of restricted stock awarded shall lapse immediately and (b)
all outstanding options and SARs shall become exercisable
immediately and (c) all performance goals established with
respect to any Incentives will be deemed to be met and
payment made immediately, if any of the following events
occur, unless otherwise determined by the Board of Directors
and a majority of the Continuing Directors (as defined
below):
(a) any person or group of persons, other than
any employee benefit plan of the Company, or related
trust, initially becomes the beneficial owner of
securities representing 40% or more of the total voting
power of FCC;
(b) a majority of the members of the Board of
Directors of FCC is replaced within any period of less
than two years by directors not nominated and approved
by the Board of Directors; or
(c) the stockholders of FCC approve a
reorganization, merger or consolidation, in each case,
with respect to which the individuals and entities who
were the respective beneficial owners of the Common
Stock and other voting securities of FCC immediately
prior to such reorganization, merger, or consolidation
do not, following such reorganization, merger or
consolidation, beneficially own, directly or
indirectly, more than 80% of, respectively, the then
outstanding shares of Common Stock and the combined
voting power of the then outstanding voting securities
entitled to vote generally in the election of
directors, as the case may be, of the corporation
resulting from such reorganization, merger or
consolidation, or a complete liquidation or dissolution
of FCC or the sale or other disposition of all or
substantially all of the assets of FCC;
provided that, if a participant directs the Committee
in writing prior to the occurrence of any such event
(an "Acceleration Notice") then the restrictions on
that participant's shares shall lapse and the stock
options held by that participant shall become
exercisable only to the extent specified in the
Acceleration Notice.
For the purposes of this Section 11.10, beneficial
ownership by a person or group of persons shall be
determined in accordance with Regulation 13D (or any similar
successor regulation) promulgated by the Securities and
Exchange Commission under the Exchange Act. Beneficial
ownership of securities representing more than 30% of the
total voting power may be established by any reasonable
method, but shall be presumed conclusively as to any person
who files a Schedule 13D report with the Securities and
Exchange Commission reporting such ownership. If the
restrictions and non-exercisability periods are eliminated
by reason of provision (a), the limitations of this Plan
shall not become applicable again should the person or group
cease to own securities representing 30% or more of the
voting power of FCC.
For purposes of this Section 11.10, "Continuing
Directors" are directors (i) who were in office prior to the
time any of provisions (a), (b) or (c) occurred or any
person publicly announced an intention to acquire securities
representing 20% or more of the voting power of FCC, (ii)
directors in office for a period of more than two years, and
(iii) directors nominated and approved by the Continuing
Directors.
Section 11.11 Definition of Fair Market Value. "Fair
Market Value" of the Common Stock on any date shall be
deemed to be the final closing sale price per share of
Common Stock on the trading day immediately prior to such
date. If the Common Stock is listed upon an established
stock exchange or exchanges or any automated quotation
system that provides sale quotations, such fair market value
shall be deemed to be the closing price of the Common Stock
on such exchange or quotation system, or if no sale of the
Common Stock shall have been made on that day, on the next
preceding day on which there was a sale of such stock. If
the Common Stock is not listed on any exchange or quotation
system, but bid and asked prices are quoted and published,
such fair market value shall be the mean between the quoted
bid and asked price on the day the option is granted, and if
bid and asked quotations are not available on such day, on
the latest preceding day. If the Common Stock is not
actively traded, or quoted, such fair market value shall be
established by the Committee based upon a good faith effort
to value the Common Stock.
Section 11.12 Deferral Permitted. Payment of cash or
distribution of any shares of Common Stock to which a
participant is entitled under any Incentive shall be made as
provided in the Incentive Agreement. Payment may be
deferred at the option of the participant if provided in the
Incentive Agreement.
Section 11.13 Loans. In order to assist a participant
to acquire shares of Common Stock pursuant to an Incentive
granted under the Plan and to assist a participant to
satisfy his tax liabilities arising in connection with such
Incentive, the Committee may authorize, at either the time
of the grant of the Incentive, at the time of the
acquisition of Common Stock pursuant to the Incentive, or at
the time of the lapse of restrictions on shares of
restricted stock granted under the Plan, the extension of a
loan to the participant by the Company. The terms of any
loans, including the interest rate, collateral and terms of
repayment, will be subject to the discretion of the
Committee. The maximum credit available hereunder shall be
the purchase price, if any, of the Common Stock acquired
pursuant to the Incentive, plus the maximum tax liability
that may be incurred in connection with the acquisition.
To be submitted to shareholders for approval on April 18, 1994.