FIRST COMMERCE CORPORATION
1997 DIVIDEND AND INTEREST REINVESTMENT AND STOCK PURCHASE PLAN
ARTICLE I
PURPOSE OF THE PLAN
The purpose of the 1997 Dividend and Interest Reinvestment
and Stock Purchase Plan (the "Plan") of First Commerce
Corporation (the "Company") is to provide the record holders
(collectively, "Security Holders") of Company Common Stock, par
value $5.00 per share (the "Common Stock"), the 12 3/4%
Convertible Debentures due 2000, Series A of the Company (the
"Series A Debentures") and the 12 3/4% Convertible Debentures
due 2000, Series B of the Company (the "Series B Debentures")
and any subsequently issued series or classes of stock or debt
instruments as the Company Board of Directors (the "Board") may
designate (collectively, "Securities") with a simple and
convenient way of reinvesting dividend and interest payments
for purposes of acquiring shares of Common Stock at such
shares' current market price, without the payment of brokerage
commissions, fees, service charges or other expenses.
Participants may also contribute up to an additional $150,000
each year (an "Optional Cash Contribution") to the Plan for the
purchase of shares of Common Stock at such shares' current
market price, without the payment of brokerage commissions,
fees, service charges or expenses other than a nominal charge
for processing Optional Cash Contributions by electronic debit.
Capitalized terms in this Plan that are not defined in this
paragraph shall have the meanings given them in Article X
hereof.
ARTICLE II
ENROLLMENT, DEPOSIT, INVESTMENT, AND DIVIDEND
AND INTEREST PAYMENT ELECTIONS
Section 2.1. Enrollment. (a) Any Record Security
Holder may elect to participate in the Plan by completing and
returning to the Administrator a completed enrollment form
designating the Record Securities of such Record Security
Holder that shall be Participating Securities and, if so
desired by such Record Security Holder, submitting for deposit
under the Plan one or more certificates for shares of Common
Stock to the Administrator accompanied by such documentation as
the Administrator may require. Such Person's participation
will be effective immediately upon the Administrator's receipt
of such enrollment form and any other documentation required.
The Administrator shall send to any such Record Security Holder
who deposits shares of Common Stock under the Plan in
connection with enrollment a statement of account as soon as
practicable after such deposit. A Street Name Beneficial Owner
may not participate in the Plan. A Street Name Beneficial
Owner may become a Record Security Holder eligible to
participate in the Plan by obtaining the registration of
Securities in such Person's name. A Participant may at any
time increase or decrease the number or principal amount of
Record Securities that will be Participating Securities by
completing and delivering to the Administrator a revised
enrollment form, and such modification will be effective
immediately upon the Administrator's receipt of such revised
enrollment form. If a Participant elects on an enrollment form
that all Record Securities of such Participant shall be
Participating Securities, all Record Securities subsequently
acquired by such Participant will also be Participating
Securities.
(b) Any Person participating in the Predecessor Plan
as of the date that the Plan becomes effective will be enrolled
in the Plan automatically, without submitting an enrollment
form. All Participating Securities of a Participant under the
Predecessor Plan will automatically be deemed to be
Participating Securities under the Plan and all shares of
Common Stock attributable to a Predecessor Plan Participant
under the Predecessor Plan will automatically be deemed to be
Plan Shares, without regard to whether the Participant submits
certificates for such shares to the Administrator, and, to the
extent any such shares are held by the Predecessor Plan agent
under the terms of the Predecessor Plan, they will be delivered
to the Administrator and credited to the Plan Account of the
applicable Participant.
(c) Any Person who is a transferee of a Participant
may elect to participate in the Plan by submitting an
enrollment form and otherwise complying with the provisions of
Section 4.2.
(d) Notwithstanding the foregoing, the Company and
the Administrator retain the right to reject an enrollment
application of a former Participant whose Plan Account was
terminated pursuant to Section 4.5.
Section 2.2. Optional Deposits of Common Stock. (a)
After the establishment of a Plan Account as provided in
Section 2.1, a Participant may at any time deposit free of
charge shares of Common Stock held in a Record Account over
which such Participant has dispositive authority into such
Participant's existing Plan Account by delivering the
certificates representing such shares and such documentation as
the Administrator may require. The Administrator shall send to
a Participant a statement of account as soon as practicable
after the deposit of shares of Common Stock under the Plan for
such Participant. A Street Name Beneficial Owner may not
deposit shares of Common Stock with the Administrator under the
Plan. A Street Name Beneficial Owner may become a Record
Security Holder eligible to participate in the Plan and thereby
be able to deposit shares of Common Stock with the
Administrator under the Plan by obtaining the registration of
such shares in such Person's name and then following the
procedures set forth in Section 2.1. Nothing contained herein
shall be construed to prohibit any Street Name Beneficial Owner
or Record Security Holder from participating in the direct
registration system for any of the Securities, whereby a Person
may be registered on the books of the Company as the owner of a
Security without the issuance of a certificate or instrument
evidencing such registration or ownership.
(b) A Participant or a Plan applicant delivering
certificates to the Administrator in connection with depositing
shares of Common Stock into such person's existing Plan Account
or a Plan Account to be established for such person is eligible
for insurance free of charge against the loss of such
certificates, provided such person submits such certificates to
the Administrator by first class mail in brown, pre-addressed
envelopes supplied by the Administrator. The maximum
protection provided by such insurance is the lesser of $25,000
or the current market value of the shares of Common Stock
represented by such certificates. Claims for such insurance
must be submitted to the Administrator by a Participant or a
Plan applicant within thirty calendar days after the date that
the subject certificates were mailed to the Administrator, and,
if the claimant is a Plan applicant, such claimant must also
enroll in the Plan in conjunction with the processing of such
person's insurance claim. Any Participant or Plan applicant
who elects to forego such insurance coverage by not following
the aforementioned procedures should nevertheless mail
certificates for shares of Common Stock to be deposited under
the Plan to the Administrator at the address furnished by the
Administrator and obtain from a third party insurance against
the loss of such certificates in an amount equal to the greater
of $20 or the current market value of the shares of Common
Stock represented by such certificates.
Section 2.3. Optional Cash Investments. A Participant
may elect to make an initial Optional Cash Investment upon
enrolling in the Plan by means of a personal check or money
order payable in United States dollars to the Plan
Administrator. Subsequent to enrollment, a Participant may
elect to make occasional or ongoing Optional Cash Investments
in the Plan for the purchase of additional Plan Shares by means
of a cash payment form that is attached to statements of
account prepared by the Administrator for such Participant, or
by electronic debit under Section 2.4 to the Administrator;
provided, however, that any Optional Cash Contributions must be
accompanied by, or in the case of electronic debits, preceded
by, documentation acceptable to the Administrator. Ongoing
Optional Cash Investments by means of a cash payment form may
be made no more frequently than once each calendar week;
ongoing Optional Cash Investments by electronic debit may be
made no more frequently than as set forth in Section 2.4. Any
Participant who elects to make Optional Cash Investments must
invest at least $50 for any single Optional Cash Investment.
In any calendar year, the sum of all Optional Cash Investments
made that year by a Participant shall not exceed $150,000.
Section 2.4. Optional Cash Investments by Electronic
Debit. A Participant may elect to transmit Optional Cash
Contributions for Optional Cash Investments to the
Administrator by means of electronic debit from such
Participant's bank account designated for this purpose,
provided the Participant completes and delivers to the
Administrator a valid and usable Automatic Deduction Form,
which will become effective as promptly as practicable after
receipt thereof by the Administrator. A Participant may any
time thereafter change such election by completing and
delivering a revised valid and usable Automatic Deduction Form,
which will become effective as promptly as practicable after
receipt thereof by the Administrator. Each electronic debit
permitted by this Section 2.4 must be a minimum of $50 in
amount. A Participant making one or more Optional Cash
Investments by electronic debit will be charged by the
Administrator a fee, which will initially be $2, for each such
electronic debit. Such electronic debits may be occasional or
periodic, provided all periodic electronic debits must be made,
at the election of such Participant, in accordance with the
limitations established by the Administrator from time to time.
Until otherwise established by the Administrator, a Participant
may elect that all such periodic electronic debits will be made
on a monthly basis on either the first or the fifteenth day of
each month or on a bi-monthly basis on the first and fifteenth
day of each month: provided that, if any such day is not a
Business Day, such debit will be made on the first Business Day
following such day. Funds provided by an electronic debit will
be used by the Administrator to make Optional Cash Investments
generally on the Investment Date that is within five Business
Days after the date of such debit. In the event that at any
time the designated electronic transfer route or bank account
proves unusable for any reason, the Administrator shall so
advise the Participant of the failed transmission and of the
Administrator's resulting inability to execute the transaction
requested.
Section 2.5. Dividend and Interest Payment Method.
Dividends and Interest paid in respect of all Participating
Securities will be reinvested in shares of Common Stock and
credited as Plan Shares to the appropriate Plan Accounts
pursuant to the provisions of the Plan. Dividends and Interest
paid in respect of a Participant's Securities that are not
Participating Securities shall be paid by means of a check
delivered to such Participant's address of record by first
class mail unless such Participant elects that such Dividends
and Interest be sent by electronic fund transfer to such
Participant's bank account designated for this purpose by
completing and delivering to the Administrator a valid and
usable Automatic Deposit Form. A Participant may change the
designated bank account by completing and delivering a revised
valid and usable Automatic Deposit Form to the Administrator.
In the event that the designated electronic fund transfer route
or bank account identification proves unusable for any reason,
the Administrator shall send a check for the subject Dividend
or Interest by first class mail to the Participant's address of
record with an advice of the failed transmission and of the
resulting inability to execute the deposit of Dividend or
Interest funds.
Section 2.6. Conversion of Securities. Shares of Common
Stock issued to a Participant upon the conversion by such
Participant of convertible Securities shall not be deemed to be
Participating Securities unless such Participant has elected
that all Record Securities of such Participant will be
Participating Securities or unless such Participant submits to
the Administrator a revised enrollment form designating such
shares of Common Stock as Participating Securities.
ARTICLE III
COMMON STOCK PURCHASE PROCEDURES
Section 3.1 Source of Common Stock. All Dividends,
Interest and Optional Cash Contributions shall be invested in
either (i) Directly Issued Common Stock or (ii) in Common Stock
purchased in the Open Market, as determined by the Company.
The Company may not change such determination as to the source
of the shares purchased more than once every three months nor
in the absence of a documented determination by the Board or
the chief financial officer of the Company that the need of the
Company to raise additional capital has changed or that there
is another valid reason for such change, unless counsel for the
Company advises the Company that compliance with such
requirements is no longer necessary or advisable under the
federal securities laws.
Section 3.2. Optional Cash Investments. (a) For an
Investment Date with respect to which the Company elects to
sell Directly Issued Common Stock to the Plan, the Company
shall issue to the Administrator upon the Company's receipt of
the funds described herein an integral number of shares of
Common Stock equal to (i) the amount of Optional Cash
Contributions held by the Administrator on such Investment Date
that do not comprise any Ineligible Funds, divided by (ii) the
Company Purchase Price for such Investment Date. The
Administrator shall credit to the Plan Account of each
investing Participant for such Investment Date the number of
Book Shares that represents the Participant's proportionate
interest, as calculated in the preceding sentence, in the
Common Stock so purchased.
(b) For an Investment Date with respect to which the
Company elects to effect the Optional Cash Investments through
purchases of shares of Common Stock in the Open Market, the
Administrator shall, if it is an Independent Agent, or shall
cause an Independent Agent to, purchase an integral number of
shares of Common Stock in the Open Market equal to (i) the
amount of Optional Cash Contributions held by the Administrator
on such Investment Date that do not comprise any Ineligible
Funds, divided by (ii) the Market Purchase Price with respect
to such Investment Date. The Administrator shall credit to the
Plan Account of each investing Participant for such Investment
Date the number of Book Shares that represents the
Participant's proportionate interest, as calculated in the
preceding sentence, in the Common Stock so purchased.
Section 3.3. Dividend Reinvestment and Interest
Reinvestment. (a) On or before each dividend payment date or
interest payment date for a Security, pursuant to its
established practice, the Company shall remit to the
Administrator the Reinvestment Fund for such dividend payment
date or interest payment date with respect to Participating
Securities to be invested in either (i) Directly Issued Common
Stock or (ii) Common Stock purchased in the Open Market, as
determined by the Company in accordance with Section 3.1.
(b) For a dividend payment date or an interest
payment date with respect to which the Company elects to sell
Directly Issued Common Stock to the Plan to effect a Dividend
Reinvestment or an Interest Reinvestment, the Company shall
issue to the Administrator an integral number of shares of
Common Stock equal to (i) the amount of the Reinvestment Fund
for such dividend payment date or interest payment date that
does not comprise any Ineligible Funds, divided by (ii) the
Company Purchase Price for such dividend payment date or
interest payment date. The Administrator shall credit to the
Plan Account of each Participant with Participating Securities
in regard to which a portion of such Dividend or Interest was
paid the number of Book Shares that represents the subject
Participant's proportionate interest, as calculated in the
preceding sentence, in the Common Stock so purchased.
(c) For a dividend payment date or an interest
payment date with respect to which the Company elects to effect
the Dividend Reinvestment or Interest Reinvestment through
purchases of shares of Common Stock in the Open Market, the
Administrator shall, if it is an Independent Agent, or shall
cause an Independent Agent to, purchase an integral number of
shares of Common Stock in the Open Market equal to (i) the
amount of the Reinvestment Fund for such dividend payment date
or interest payment date that does not comprise any Ineligible
Funds, divided by (ii) the Market Purchase Price with respect
to such dividend payment date or interest payment date. The
Administrator shall credit to the Plan Account of each
Participant with Participating Securities in regard to which a
portion of such Dividend or Interest was paid the number of
Book Shares that represents the Participant's proportionate
interest, as calculated in the preceding sentence, in the
Common Stock so purchased.
ARTICLE IV
SALES, GIFTS, TRANSFERS, AND WITHDRAWALS
Section 4.1. Sales of Plan Shares. A Participant may
request, at any time, that all or a portion of the whole shares
of Common Stock allocable to such Participant's Plan Account be
sold by delivering or making to the Administrator a completed
Transaction Request and, with respect to Plan Shares that are
Certificated Shares, delivering to the Administrator the
certificates representing such Plan Shares and such other
documentation as the Administrator may require. If it is not an
Independent Agent, the Administrator shall forward sale
instructions for such Plan Shares to the Independent Agent.
The Administrator shall, if it is an Independent Agent, or
shall cause an Independent Agent to sell such Plan Shares in
the Open Market as soon as feasible at its discretion on any
one day on which the Common Stock is traded on the Open Market.
The Administrator shall, if it is an Independent Agent, or
shall cause an Independent Agent to sell such Plan Shares
pursuant to the provisions of Section 5.5 and in accordance
with general commercial law, stock transfer requirements, and
federal and state securities laws. Promptly after the
placement of the order to sell such Plan Shares on the Open
Market, the Administrator shall send by first class mail to the
address of record of such Participant a transaction notice for
such sale. As soon as practicable following the receipt of
proceeds from the sale of such Plan Shares but no later than
thirty days after its receipt of the sale Transaction Request,
the Administrator shall send by first class mail to the address
of record of such Participant a statement of account and a
check payable in an amount equal to the total number of such
Plan Shares sold multiplied by the Market Sale Price for such
Plan Shares, less any applicable deductions and withholdings
required by law. Fractional Plan Shares of a Participant may
be sold in accordance with the provisions of Section 4.4 only
if the selling Participant is withdrawing completely from Plan
participation or the provisions of Section 4.5 only if such
Participant's Plan Account is being terminated and such
Participant has elected to sell such Participant's Plan Shares
in connection therewith.
Section 4.2. Transfers of Shares. A Participant may
elect to transfer by gift or private sale to the Plan Account
of another Participant or to the Plan Account to be established
for a Person in conjunction with such transfer (a) any number
of Plan Shares or (b) any number of Certificated Shares that
are not Participating Securities over which the Participant has
dispositive authority. Unless the Administrator is instructed
otherwise, all shares so transferred shall be credited to the
appropriate transferee Plan Account as Book Shares. Fractional
Plan Shares may be transferred from one Plan Account to another
Plan Account only if the transferor Participant is withdrawing
completely from Plan participation. Such transfer may be
effected by the Participant by delivering to the Administrator
a completed Transaction Request, any necessary transferee
enrollment form, certificates for any Certificated Shares being
transferred and any other documentation as the Administrator
may require. As soon as possible after such transfer, the
Administrator shall send by first class mail a statement of
account to each transferor and transferee for such transaction.
If the transferee is already a Participant as of the date on
which Plan Shares are credited under this Section 4.2 to such
Participant's Plan Account, the payment of Dividends allocable
to such transferred Plan Shares shall be made according to the
instructions previously provided by the transferee for such
Participant's Plan Account. If the transferee is not already a
Participant as of the date on which Plan Shares are credited
under this Section 4.2 to such Participant's Plan Account, the
Administrator shall open a Plan Account in the name of the
transferee using the information provided by the transferee in
such Person's enrollment form, and the Administrator shall send
the transferee a Prospectus and any related documentation as
soon as reasonably practicable, whereupon the transferee will
be eligible to submit Optional Cash Contributions to the Plan.
Section 4.3. Classification of Record Shares. If a
Participant has elected that a portion, but not all, of such
Participant's Record Shares shall be Participating Securities
and such Participant subsequently sells, gives, or transfers
fewer than all such Participant's Record Shares, non-
Participating Securities will be deemed to have been sold,
given, or transferred prior to any Participating Securities,
unless such Participant instructs the Administrator otherwise.
Section 4.4. Withdrawal from Plan Participation. If a
Participant elects to withdraw partially or completely from
Plan participation, the Administrator shall transfer or
reclassify all whole shares of Common Stock allocable to such
Participant's Plan Account and subject to such election to a
Record Account for such Participant. The Administrator shall
send by first class mail a statement of account and any
certificates for such whole shares of Common Stock to such
Participant's address of record as soon as practicable, but in
no event later than thirty days after receipt of such
Participant's election. In connection with any such request to
withdraw from Plan participation, any fractional Plan Share
will be sold in the open market as soon as practicable after
the Administrator receives such Participant's election. As
soon as practicable, but in no event later than thirty days
after the receipt of such Participant's election, the
Administrator shall also send by first class mail to the
address of record of such Participant a check payable in an
amount equal to a proration of the Market Sales Price
applicable to such fractional Plan Share, less any applicable
deductions and withholdings required by law; provided, however,
that a Participant will not be charged any Administrator
processing fee if whole Plan Shares of such Participant are not
sold in connection therewith. In the event, however, that the
Participant requests to sell or transfer all or a portion of
the Common Stock allocable to such Participant's Plan Account
upon withdrawal from the Plan, the relevant provisions of
Sections 4.1 and 4.2 will apply to such sales or transfers,
respectively. In the event that the Administrator receives
such Participant's election to withdraw on or after the
dividend record date or interest record date for a Dividend or
Interest payment but prior to the dividend payment date or
interest payment date with respect thereto, the Administrator
may, in its sole discretion, either reinvest such Dividend or
Interest in shares of Common Stock for the benefit of such
Participant prior to processing such withdrawal or pay such
Dividend or Interest to such Participant by means of a check
delivered to such Participant's address of record by first
class mail.
Section 4.5. Termination of Plan Participation. The
Company or the Administrator may, in their discretion,
terminate a Participant's participation in the Plan at any time
and will do so if a Participant's continued participation is
not considered to be in the best interests of the Company. The
objective of the Plan is to encourage long-term investment by
allowing Security Holders to accumulate Common Stock over a
long period of time, thus providing benefits to Security
Holders and the Company. Excessive activity in a Participant's
account does not serve this objective and may cause the Company
or the Administrator to terminate the eligibility of a
Participant and such Participant's Plan Account. The Company
or the Administrator may terminate a Participant's Plan Account
by sending by first class mail to the address of record of such
Participant written notice of termination. In connection
therewith, the Administrator shall transfer or reclassify all
whole shares of Common Stock allocable to such Participant's
Plan Account to a Record Account for such Participant. The
Administrator shall send by first class mail a statement of
account and any certificates for such whole shares of Common
Stock to such Participant's address of record within thirty
days of such termination. In connection with any such
termination, any fractional Plan Share will be sold in the open
market as soon as practicable after the date of such
termination. As soon as practicable, but in no event later
than thirty days after such termination, the Administrator
shall also send by first class mail to the address of record of
such Participant a check payable in an amount equal to a
proration of the Market Sales Price applicable to such
fractional Plan Share, less any applicable deductions and
withholdings required by law; provided, however, that a
Participant will not be charged any Administrator processing
fee if whole Plan Shares of such Participant are not sold in
connection therewith. In the event, however, that the
Participant requests to sell or transfer all or a portion of
the Common Stock allocable to such Participant's Plan Account
upon such termination, the relevant provisions of Sections 4.1
and 4.2 will apply to such sales or transfers, respectively.
Section 4.6. Pledge of Plan Shares. A Participant may
not pledge Book Shares until such Participant has obtained from
the Administrator one or more certificates for such shares of
Common Stock pursuant to the provisions of Section 5.7. All
Plan Shares pledged by a Participant shall continue to be
Participating Securities, unless such Participant instructs the
Administrator otherwise.
ARTICLE V
INVESTMENT PROCEDURES AND ACCOUNTING
Section 5.1. Registration of Common Stock Under the Plan.
All shares of Common Stock purchased by the Administrator for
the Plan shall be registered on the stock records of the
Company in the name of the nominee of the Administrator. A
Participant may at any time submit Certificated Shares for
safekeeping by the Administrator. The certificates
representing such Certificated Shares shall be cancelled, and
such shares shall be credited to such Participant's Plan
Account as Book Shares. Any remaining Certificated Shares of
such Participant that are also Participating Securities shall
remain registered on the Company's shareholder records in the
name of the Participant.
Section 5.2. Commingling of Assets. For the purpose of
making, or causing to be made, purchases and sales of Common
Stock for the Plan, the Independent Agent shall be entitled to
commingle each Participant's funds or the Common Stock held on
behalf of a Participant with the funds or Common Stock,
respectively, held on behalf of all other Participants.
Section 5.3. Statement of Account. The Administrator
shall send to each Participant a statement of account as soon
as practicable after any purchase of shares of Common Stock
under the Plan for such Participant. Such statements of account
shall be in addition to other statements of account to be
delivered pursuant to the provisions of other sections of this
Plan. A Participant may also request from the Administrator
duplicate statements of account. A Participant making such
request shall be charged by the Administrator a fee, which will
initially be $5, for each such statement of account that is two
or more years old, not to exceed a certain amount, which will
initially be $25, for a single request for statements covering
more than one year.
Section 5.4. Stock Splits, In-Kind Distributions, and
Rights Offerings. Any shares of Common Stock distributed as an
in-kind distribution or stock split on Plan Shares shall be
credited as Book Shares to the Plan Accounts of the respective
Participants in proportion to the Plan Shares held in such
Participants' Plan Accounts, respectively. Any rights
distributed in respect of the Common Stock that are deemed to
be attached to the Common Stock shall attach to all Plan
Shares, including fractional Book Shares, and shall be
allocated to the Plan Accounts of the respective Participants
in proportion to the Plan Shares held in such Participants'
Plan Accounts, respectively, and shall be held in the same form
as the Certificated Shares or Book Shares as to which such
rights relate, respectively. All communications in respect of
such rights shall be distributed to the Participants pursuant
to Section 6.2 hereof. To exercise any such rights attached to
any Book Shares credited to the Plan Account of any
Participant, such Participant must first request certificates
pursuant to Section 5.7 for the Plan Shares associated with
such rights and then exercise the rights in accordance with the
procedures for Record Security Holders applicable to such
rights.
Section 5.5. Timing of Investments and Sales. (a) The
Administrator shall, if it is an Independent Agent, or shall
cause an Independent Agent to sell Common Stock allocable to
any Plan Account as soon as practicable following the
Administrator's receipt of a direction from a Participant to do
so, except when deferral is necessary under applicable federal
or state securities laws or regulations.
(b) The Administrator shall, if it is an Independent
Agent, or shall arrange with the Independent Agent to purchase
Common Stock for the Plan at least once each calendar week if
there are any outstanding Optional Cash Contributions not yet
invested. The Administrator shall arrange for purchase of
Common Stock with a Reinvestment Fund no later than thirty days
after the relevant dividend payment date or interest payment
date, and, for Optional Cash Contributions, no later than
thirty-five days after the Administrator's receipt thereof,
except in each case when deferral is necessary to comply with
applicable federal or state securities laws or regulations.
Any Dividends or Interest not invested in Common Stock within
thirty days of the relevant dividend payment date or interest
payment date and any Optional Cash Contributions not invested
in Common Stock within thirty-five days after receipt thereof
by the Administrator shall be promptly returned by first class
mail to the address of record of each relevant Participant. No
interest shall be paid on Dividends, Interest, or Optional Cash
Contributions held pending investment or return to the relevant
Participant.
Section 5.6. Timely Receipt of Instructions. (1) If
prior to a scheduled Investment Date the Administrator receives
from a Participant an instruction not to invest all or any
portion of an Optional Cash Contribution previously delivered
by such Participant to the Administrator, such Optional Cash
Contribution will not be invested in Common Stock and will be
returned by first class mail to the address of record of such
Participant as soon as practicable but no later than thirty-
five days after receipt thereof by the Administrator.
(2) If on or before a Record Date the Administrator
receives from a Participant instructions to change a Dividend
or Interest payment method for such Participant, the revised
payment method will be implemented beginning with such Record
Date.
(3) If the Administrator receives from a Participant
instructions to transfer Plan Shares of such Participant on or
after an Ex-Dividend Date but before the related dividend
payment date, or if a transfer occurs on or after an Ex-
Dividend Date but before the related dividend payment date, any
such transfer shall be processed without Dividend rights to the
transferee of such Plan Shares. As soon as practicable
following the receipt of the Dividend allocable to such Plan
Shares, the Administrator shall reinvest the Dividend for the
benefit of the transferor Participant and, if the transferor
Participant has withdrawn from Plan participation, the Plan
Shares so purchased with the Dividend shall be sold in
accordance with the provision of Section 4.1 of the Plan for
the benefit of the transferor Participant.
Section 5.7. Requests for Certificates. A Participant
may, at any time or from time to time, submit a Transaction
Request to receive one or more certificates for all or a
portion of such Participant's whole Book Shares. Such shares
of Common Stock shall remain Plan Shares. Certificates for
such shares of Common Stock will be delivered to such
Participant's address of record within thirty days of receipt
of such Transaction Request.
Section 5.8. Fractional Plan Shares. Fractional Plan
Shares shall be recorded as Book Shares. Fractional Plan
Shares will not have voting rights but will accrue Dividends on
a proportionate basis. Fractional Plan Shares of a Participant
will not be liquidated except upon complete withdrawal by such
Participant from the Plan or the termination of the Plan.
Section 5.9. Company Participation. If a Participant
should deliver an Optional Cash Contribution to the Company,
the Company must transmit it to the Administrator by the
opening of business on the next Business Day if such Optional
Cash Contribution is received by noon or by noon of the next
Business Day if such Optional Cash Contribution is received
after noon.
ARTICLE VI
PARTICIPANTS AS SHAREHOLDERS
Section 6.1. Shareholders. A Participant shall be
recognized as a shareholder of Common Stock for purposes of
admission to the Company's shareholder meetings, voting and
disposing of the shares of Common Stock allocable to such
Participant's Plan Account and the communications that the
Company may from time to time send to its shareholders,
provided (a) the Participant so recognized has not alienated
the voting or dispositive authority over the shares of Common
Stock allocable to such Participant's Plan Account, other than
pursuant to a valid proxy solicitation, and (b) either the
Company's stock records or the Plan records of the
Administrator contain the name and address of such Participant.
Section 6.2. Communications and Voting. The Company
shall send or forward to each Participant Common Stock proxy
solicitation materials and other general Company shareholder
written communications, consent solicitation materials, or
rights offering materials or notices. A Participant shall have
the exclusive right to exercise all voting rights respecting
such Participant's Plan Shares and may vote such Participant's
Plan Shares in person or by proxy; provided, however, a
Participant shall have no voting rights with respect to any
fractional Plan Shares allocable to such Participant's Plan
Account. Shares of Common Stock allocable to a Participant's
Plan Account shall not be voted unless such Participant or such
Participant's proxy votes them.
Section 6.3. Solicitation. Solicitation of the exercise
of Participants' voting rights by the management of the Company
and other persons under a proxy or consent provision applicable
to all beneficial holders of Common Stock shall be permitted.
Solicitation of the exercise of Participant's tender offer or
exchange offer rights by the management of the Company and
other persons shall also be permitted. The Administrator shall
notify Participants of each occasion for the exercise of their
voting rights or rights with respect to a tender offer or
exchange offer within a reasonable time before such rights must
be exercised. Such notification shall include all information
distributed by the Company to Record Security Holders regarding
the exercise of such rights.
ARTICLE VII
PLAN ADMINISTRATION
Section 7.1. Costs. Costs of mailings, materials, and
other administration of the Plan shall be paid by the Company;
provided, however, that brokerage commissions, applicable
taxes, and direct Plan fees, charges, and expenses incurred in
connection with Common Stock sales transactions under the Plan
shall be borne by the Participants as specified in Section 4.1
and disclosed in the Prospectus.
Section 7.2. Control of Transactions. With regard to
Open Market purchases and sales of Common Stock, neither the
Company nor the Administrator, unless it is serving as the
Independent Agent, shall have any authority to direct the time
or price at which Plan Shares may be purchased or sold, the
amount of such shares to be included in a transaction, the
markets on which such shares are to be purchased or sold, or
the selection of the broker or dealer, other than the selection
of the Independent Agent by the appropriate party, through or
from whom transactions may be made, except that such
transactions shall be made in accordance with the terms and
conditions of the Plan. The Company may perform only purely
clerical and ministerial functions in connection with
Securities transactions under the Plan and the administration
of the Plan. Purchases and sales of Common Stock on the Open
Market pursuant to the Plan may be executed upon the terms and
subject to the conditions respecting price and delivery as the
Administrator, if it is an Independent Agent, or the
Independent Agent determines to be appropriate.
Section 7.3. Modification and Termination of the Plan by
the Company. The Company may at any time and from time to
time, at its sole option, modify, amend or terminate the Plan,
in whole, in part or in respect of Participants in one or more
jurisdictions; provided, however, no such amendment shall
result in a distribution to the Company of any Plan Shares or
cash credited to the Plan Account of any Participant. Upon
complete termination of the Plan, the Plan Accounts of all
Participants or, upon the partial termination of the Plan, the
Plan Accounts of all affected Participants, shall be converted,
respectively, to Record Accounts. The Administrator shall send
by first class mail to the address of record of each affected
Participant prior written notice of such Plan or Plan Account
termination and of the conversion of Plan Accounts to Record
Accounts. The fractional Plan Shares of each such Participant
will be liquidated at a cash value in an amount equal to a
proration of the Company Purchase Price as of the effective
date of such termination, less applicable deductions and
withholdings required by law. As soon as practicable, but no
later than thirty days after such effective date of
termination, the Administrator shall mail by first class mail
to the address of record of each such Participant a check
payable in an amount equal to the cash value of such
Participant's fractional Plan Share.
Section 7.4. Sale Upon Plan Termination or Plan Account
Termination. In the event that a Participant notifies the
Administrator of such Participant's desire to sell or transfer
all or a portion of the Common Stock allocable to such
Participant's Plan Account upon the Company's termination of
the Plan or of such Participant's Plan Account, such sales or
transfers shall be effected pursuant to the relevant provisions
of Article IV.
ARTICLE VIII
SELECTION AND ROLE OF ADMINISTRATOR AND INDEPENDENT AGENT
Section 8.1. Selection of an Administrator. The
Administrator shall be appointed by the Company, which
appointment may be revoked by the Company at any time. The
Administrator may resign at any time upon 120 days' notice to
the Company. The Company shall make such arrangements
regarding compensation of the Administrator and reimbursement
of expenses as is deemed reasonable and appropriate.
Section 8.2. Authority and Duties of Administrator. The
Administrator shall have the authority and responsibility to
control and to manage the aspects of the operation and
administration of the Plan that are assigned herein as its
responsibility and such other aspects of operation and
administration of the Plan as may be determined by the Company
from time to time. The Administrator shall have the power and
the duty to take all actions and to make all decisions
necessary or proper to carry out its responsibilities under the
Plan. Notwithstanding any other provision of this Plan, the
Administrator shall not be liable for its inability to buy or
to sell Common Stock on behalf of the Plan as a result of the
closing of one or more of the markets on which the Common Stock
is traded.
Section 8.3. Selection of Independent Agent. If the
Administrator is not eligible under the provisions of this Plan
to serve as the Independent Agent, the Administrator shall
select the Independent Agent to serve in such capacity pursuant
to the Plan. The Administrator shall make arrangements and
enter into agreements with the Independent Agent in connection
with the activities contemplated by the Plan.
Section 8.4. Authority and Duties of Independent Agent.
The Independent Agent shall have the authority and
responsibility to control and to manage the aspects of the
operation and administration of the Plan that are assigned
herein as its responsibility and such other aspects of
operation and administration of the Plan as may be determined
by the Administrator from time to time. The Independent Agent
shall have the power and the duty to take all actions and to
make all decisions necessary or proper to carry out its
responsibilities under the Plan.
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.1. Governing Law. This Plan shall be
construed, regulated and administered under the laws of the
State of Louisiana.
Section 9.2. Agreement by Participants. Each
Participant, as a condition of participation herein, for
himself, his heirs, devisees, legatees, executors,
administrators, legal representatives and assigns, approves and
agrees to be bound by the provisions of this Plan and any
subsequent amendments hereto and all actions of the Company,
the Administrator, and the Independent Agent hereunder.
Section 9.3. Headings. The headings and subheadings in
this Plan are inserted for convenience and reference only and
are not to be used in construing the Plan or any provision
thereof.
Section 9.4. Absence of Guarantee. Neither the Company
nor the Administrator guarantees the Plan or Plan Participants
against loss or depreciation. Neither the Company nor the
Administrator guarantees the payment or amount of any future
Dividends or Interest on Securities. Unless otherwise provided
by law, the Company, its directors, officers, employees, and
agents, the Administrator, and the Independent Agent shall in
no manner be liable to any Participant with respect to the
price or performance of the Common Stock held for the Plan.
Section 9.5. Liability. The Company, its directors,
officers, employees, and agents, the Administrator, and the
Independent Agent shall not be liable under the Plan for any
act performed in good faith or for any good faith omission to
act including, without limitation, any claims for liability (a)
arising out of failure to terminate a Plan Account upon a
Participant's death absent valid transfer instructions
pertaining to the Common Stock allocable to the subject Plan
Account and (b) the price at which Common Stock is purchased or
sold for Plan Accounts and the time such purchases or sales are
made.
Section 9.6. No Assignment. A Participant who desires to
assign or pledge Book Shares must first request certificates
for such shares pursuant to Section 5.7 hereof.
ARTICLE X
DEFINITIONS
For all purposes of this Plan, the following terms shall
have the meanings indicated.
Administrator: The term "Administrator" shall mean the
bank, trust company or other entity appointed from time to time
by the Company to act as the administrator of the Plan and as
custodian for the Common Stock purchased for the Plan, the Plan
Shares held for Participants, and all funds received for
investment under the Plan. Until otherwise determined by the
Company, the Administrator shall be First Chicago Trust Company
of New York.
Automatic Deduction Form: The term "Automatic Deduction
Form" shall mean the documentation that the Administrator shall
require to be completed and received prior to taking electronic
debits from a bank account.
Automatic Deposit Form: The term "Automatic Deposit Form"
shall mean the documentation that the Administrator shall
require to be completed and received prior to making electronic
credits to a bank account.
Book Shares: The term "Book Shares" shall mean a
Participant's proportionate interest in the shares of Common
Stock held in nominee name by the Administrator for the Plan,
as to which the Participant's ownership is evidenced solely by
book entry in Plan records, and not by any certificate.
Business Day: The term "Business Day" shall mean any
weekday on which the Administrator conducts normal business
operations, exclusive of federal banking holidays.
Certificated Share: The term "Certificated Share" shall
mean a share of Common Stock for which a valid certificate is
outstanding.
Company Purchase Price: The term "Company Purchase Price"
shall mean with respect to a share of Common Stock the average
of the high and low per share sales prices of Common Stock, as
reported on The Nasdaq Stock Market for the date in question
or, if there is no reported sale on such date, on the last
preceding day on which any reported sale of Common Stock
occurred. With respect to the Company Purchase Price, the date
in question shall be the relevant Investment Date for Optional
Cash Investments in Directly Issued Common Stock, the relevant
dividend payment date for Dividend Reinvestments in Directly
Issued Common Stock, and the relevant interest payment date for
Interest Reinvestments in Directly Issued Common Stock.
Directly Issued Common Stock: The term "Directly Issued
Common Stock" shall mean shares of Common Stock sold directly
by the Company under the Plan and shall exclude Common Stock
purchased in the Open Market.
Dividend: The term "Dividend" shall mean cash dividends
paid on Securities.
Dividend Reinvestment: The term "Dividend Reinvestment"
shall mean the purchase of Common Stock with the Dividends on
Participating Securities received by the Administrator for
credit as Plan Shares.
Exchange Act: The term "Exchange Act" shall mean the
Securities Exchange Act of 1934, as amended from time to time,
and the rules and regulations promulgated thereunder.
Ex-Dividend Date: The term "Ex-Dividend Date" shall mean
the date as of which The Nasdaq Stock Market lists the Common
Stock as being subject to transfer without dividend rights to
the transferee.
Independent Agent: The term "Independent Agent" shall mean
an agent independent of the Company that satisfies applicable
legal requirements, including without limitation the
requirements of Regulation M and Rule 10b-18 promulgated under
the Exchange Act, and who, in the absence of the eligibility of
the Administrator to serve as such, has been selected by the
Administrator pursuant to Section 8.3 hereof to serve as an
independent agent for purposes of making Open Market purchases
and sales of Common Stock for the Plan. Unless ineligible
hereunder, the Administrator shall be the Independent Agent.
Ineligible Funds: The term "Ineligible Funds" shall mean,
as of any date with respect to any Optional Cash Contributions,
Dividends, and Interest received or held by the Administrator
from or on behalf of any Participant, any portion of such funds
that the Administrator is required to return to such
Participant pursuant to Section 5.5 or Section 5.6 hereof as of
such date.
Interest: The term "Interest" shall mean interest payments
made on Securities.
Interest Reinvestment: The term "Interest Reinvestment"
shall mean the purchase of Common Stock with the Interest on
Participating Securities received by the Administrator for
credit as Plan Shares.
Investment Date: The term "Investment Date" shall mean the
date in each calendar week selected by the Administrator or by
the Independent Agent as of which shares of Common Stock are
purchased or begun to be purchased for the Plan with Optional
Cash Contributions, either in the Open Market or as Directly
Issued Common Stock.
Market Purchase Price: The term "Market Purchase Price"
shall mean with respect to a share of Common Stock purchased on
the Open Market in connection with an Investment Date, a
dividend payment date with respect to a Security, or an
interest payment date with respect to a security, the weighted
average price per share of all shares of Common Stock purchased
on the Open Market under the Plan in connection with such
Investment Date, dividend payment date, or interest payment
date, respectively, without deduction for charges, expenses,
fees, and commissions directly incurred in connection with such
purchases.
Market Sale Price: The term "Market Sale Price" shall mean
with respect to a share of Common Stock sold in the Open Market
on a particular date the weighted average price per share of
all shares of Common Stock sold in the Open Market under the
Plan on such date after deduction for the Administrator's
processing fee, which will initially be $15, for each
transaction request by a Participant and the weighted average
per share amount of brokerage commissions and any other costs
directly incurred in connection with such sales.
Open Market: The term "Open Market" shall mean any
securities exchange on which the Common Stock is traded, the
over-the-counter market, or negotiated transactions, excluding
transactions with the Company or its affiliates.
Optional Cash Investment: The term "Optional Cash
Investment" shall mean the voluntary purchase by a Participant
of shares of Common Stock under the Plan with Optional Cash
Contributions.
Participant: The term "Participant" shall mean (a) any
person who has met the requirements of Section 2.1 regarding
enrollment and investment and has not revoked such elections,
and (b) any Person participating in the Predecessor Plan as of
the date that the Plan first becomes effective, unless such
Person has timely delivered the notification referred to in
Section 2.1(b) hereof.
Participating Securities: The Securities of a Participant,
whether held in a Record Account or a Plan Account, the
Dividends or Interest payable in respect of which have been
designated by such Participant on an enrollment form to be
reinvested under the Plan or the Predecessor Plan. All Book
Shares of a Participant shall be Participating Securities.
Person: The term "Person" shall mean any individual,
corporation, partnership, limited liability company, joint
venture, association, joint-stock company, trust, estate or
unincorporated organization.
Plan Account: The term "Plan Account" shall mean, as to
any Participant, the account maintained by the Administrator
recording such Participant's Plan Shares and any cash held by
the Administrator pending investment or return to such
Participant.
Plan Shares: The term "Plan Shares" shall mean, as to any
Participant, (a) the Certificated Shares held in such
Participant's name on the stock records of the Company and
credited to such Participant's Plan Account as Participating
Securities and (b) the Book Shares held in such Participant's
Plan Account.
Predecessor Plan: The term "Predecessor Plan" shall mean
the Dividend and Interest Reinvestment and Stock Purchase Plan
adopted by the Company in 1987.
Prospectus: The term "Prospectus" shall mean the
prospectus for the offering of shares of Common Stock under the
Plan filed by the Company under the Securities Act of 1933, as
it may be amended from time to time.
Record Account: The term "Record Account" shall mean any
Security Holder account on the Company's securities records
reflecting Securities ownership, excluding all Plan Accounts.
Record Date: The term "Record Date" shall mean the date
established by the Company's Board of Directors to determine
Record Security Holders and Plan Participants for the purpose
designated by the Board of Directors at the time.
Record Securities: The term "Record Securities" shall mean
all Securities credited to a Record Account.
Record Security Holder: The term "Record Security Holder"
shall mean the Person whose name and taxpayer identification or
social security number, where applicable, are recorded in a
Record Account.
Reinvestment Fund: The term "Reinvestment Fund" shall mean
the total amount of Dividends or Interest allocable to
Participating Securities for a given dividend payment date or
interest payment date, respectively, less applicable
withholdings and deductions required by law, and paid by the
Company to the Administrator with respect to such Participating
Securities.
Street Name Beneficial Owner: The term "Street Name
Beneficial Owner" shall mean any Person other than a
Participant who has voting or dispositive authority over
Securities registered on the Company's securities records, not
in such Person's name, but in the name of a third party bank,
broker, nominee, or trustee.
Transaction Request: The term "Transaction Request" shall
mean the instructions and documentation that the Administrator
shall require to be completed and received prior to a
Participant's sale, gift, or transfer of Plan Shares, the
provision of certificates, or withdrawal from Plan
participation. The term shall include electronic and voice
transaction requests acceptable to the Administrator wherein
the Participant supplies the Administrator with such
Participant's Plan account number and personal identification
number.