EXHIBIT 99.1
ACCESS ANYTIME BANCORP, INC.
1997 STOCK OPTION AND INCENTIVE PLAN
I. PURPOSE
The purpose of the ACCESS ANYTIME BANCORP, INC. 1997 STOCK OPTION AND
INCENTIVE PLAN (the "PLAN") is to provide a means through which Access Anytime
Bancorp, Inc., a Delaware corporation (the "COMPANY"), and its subsidiaries,
may attract and retain the best available personnel as officers, directors and
employees of the Company and its subsidiaries and to provide a means whereby
those individuals upon whom the responsibilities of the successful
administration and management of the Company and its subsidiaries rest, and
whose present and potential contributions to the welfare of the Company and its
subsidiaries are of importance, can acquire and maintain stock ownership,
thereby strengthening their concern for the welfare of the Company and its
subsidiaries and their desire to remain in the Company's and its subsidiaries'
employ. A further purpose of the Plan is to provide such individuals with
additional incentive and reward opportunities designed to enhance the
profitable growth of the Company. Accordingly, the Plan provides for granting
Incentive Stock Options, options which do not constitute Incentive Stock
Options, Stock Appreciation Rights, or any combination of the foregoing, as is
best suited to the circumstances of the particular individual as provided
herein.
II. DEFINITIONS
The following definitions shall be applicable throughout the Plan unless
specifically modified by any paragraph:
(a) "AFFILIATES" means any "parent corporation" of the Company and any
"subsidiary" of the Company within the meaning of Code Sections 424(e) and (f),
respectively.
(b) "AWARD" means, individually or collectively, any Option or Stock
Appreciation Right.
(c) "BOARD" means the Board of Directors of the Company.
(d) "CHANGE OF CONTROL" means the occurrence of any of the following
events: (i) the Company shall not be the surviving entity in any merger,
consolidation or other reorganization (or survives only as a subsidiary of an
entity other than a previously wholly-owned subsidiary of the Company), (ii)
the Company sells, leases or exchanges all or substantially all of its assets
to any other person or entity (other than a wholly-owned subsidiary of the
Company), (iii) the Company is to be dissolved and liquidated, (iv) any person
or entity, including a "group" as contemplated by Section 13(d)(3) of the 1934
Act, acquires or gains ownership or control (including, without limitation,
power to vote) of more than 50% of the outstanding shares of the Company's
voting
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stock (based upon voting power), or (v) as a result of or in connection
with a contested election of directors, the persons who were directors of the
Company before such election shall cease to constitute a majority of the Board.
(e) "CHANGE OF CONTROL VALUE" shall mean (i) the per share price offered
to stockholders of the Company in any such merger, consolidation,
reorganization, sale of assets or dissolution transaction, (ii) the price per
share offered to stockholders of the Company in any tender offer or exchange
offer whereby a Change of Control takes place, or (iii) if such Change of
Control occurs other than pursuant to a tender or exchange offer, the Fair
Market Value per share of the shares into which Awards are exercisable, as
determined by the Committee, whichever is applicable. In the event that the
consideration offered to stockholders of the Company consists of anything other
than cash, the Committee shall determine the fair cash equivalent of the
portion of the consideration offered which is other than cash.
(f) "CODE" means the Internal Revenue Code of 1986, as amended.
Reference in the Plan to any section of the Code shall be deemed to include any
amendments or successor provisions to any section and any regulations under
such section.
(g) "COMMITTEE" means the Stock Committee of the Board. If the Company
is governed by Section 16 of the 1934 Act, no director shall serve as a member
of the Committee unless he or she is a "Non-Employee Director" within the
meaning of Rule 16b-3 promulgated by the Securities and Exchange Commission
(the "Commission") under the 1934 Act.
(h) "COMPANY" means Access Anytime Bancorp, Inc..
(i) "DIRECTOR" means an individual elected to the Board by the
stockholders of the Company or by the Board under applicable corporate law who
is serving on the Board on the date the Plan is adopted by the Board or is
elected to the Board after such date.
(j) An "EMPLOYEE" means any person (including an officer or a Director)
employed on a full-time basis by the Employer.
(k) "EMPLOYER" means the Company, an Affiliate or any Subsidiary.
(l) "FAIR MARKET VALUE" means, as of any specified date, the mean of the
high and low sales prices of the Stock (i) reported by any interdealer
quotation system on which the Stock is quoted on that date or (ii) if the Stock
is listed on a national stock exchange, reported on the stock exchange
composite tape on that date; or, in either case, if no prices are reported on
that date, on the last preceding date on which such prices of the Stock are so
reported. If the Stock is traded over the counter at the time a determination
of its fair market value is required to be made hereunder, its fair market
value shall be deemed to be equal to the average between the reported high and
low or closing bid and asked prices of Stock on the most recent date on which
Stock was publicly traded. In the event Stock is not publicly traded at the
time a determination of its value is required to be made hereunder, the
determination of its fair market value shall be made by the Committee in such
manner as it deems appropriate.
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(m) "HOLDER" means an employee who has been granted an Award.
(n) "INCENTIVE STOCK OPTION" means an incentive stock option within the
meaning of section 422(b) of the Code.
(o) "1934 ACT" means the Securities Exchange Act of 1934, as amended.
(p) "NONQUALIFIED STOCK OPTION" means an option granted under Paragraph
VII of the Plan to purchase Stock which does not constitute an Incentive Stock
Option.
(q) "OPTION" means an Award granted under Paragraph VII of the Plan and
includes both Incentive Stock Options to purchase Stock and Nonqualified Stock
Options to purchase Stock.
(r) "OPTION AGREEMENT" means a written agreement between the Company and
a Holder with respect to an Option.
(s) "PLAN" means the Access Anytime Bancorp, Inc. 1997 Stock Option and
Incentive Plan, as amended from time to time.
(t) "RULE 16b-3" means SEC Rule 16b-3 promulgated under the 1934 Act, as
such may be amended from time to time, and any successor rule, regulation or
statute fulfilling the same or a similar function.
(u) "SPREAD" means, in the case of a Stock Appreciation Right, an amount
equal to the excess, if any, of the Fair Market Value of a share of Stock on
the date such right is exercised over the exercise price of such Stock
Appreciation Right; provided, however, the Committee may establish, in its sole
discretion, in any Stock Appreciation Rights Agreement, the maximum amount of
Spread attributable to a Stock Appreciation Right.
(v) "STOCK" means the common stock, $0.01 par value, of the Company.
(w) "STOCK APPRECIATION RIGHT" means an Award granted under
Paragraph VIII of the Plan.
(x) "STOCK APPRECIATION RIGHTS AGREEMENT" means a written agreement
between the Company and a Holder with respect to an Award of Stock Appreciation
Rights.
(y) "SUBSIDIARY" means any corporation or entity of which more than 50%
of the outstanding securities or ownership interests having ordinary voting
power to elect a majority of the members of the Board of Directors, or persons
in similar capacity of such corporation or entity, is, directly or indirectly
owned by the Company.
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III. EFFECTIVE DATE AND DURATION OF THE PLAN
The Plan shall be effective upon the date of its adoption by the Board,
provided that the Plan is approved by the stockholders of the Company within
twelve months thereafter. No further Awards may be granted under the Plan
after the expiration of ten years from the date of its adoption by the Board.
The Plan shall remain in effect until all Awards granted under the Plan have
been satisfied or expired.
IV. ADMINISTRATION
(a) COMMITTEE. The Plan shall be administered by the Committee.
(b) POWERS. Subject to the provisions of the Plan, the Committee shall
have sole authority, in its discretion, to determine which employees shall
receive an Award, the time or times when such Award shall be made, whether an
Incentive Stock Option, Nonqualified Option or Stock Appreciation Right shall
be granted, and the number of shares of Stock which may be issued under each
Option or Stock Appreciation Right. In making such determinations, the
Committee may take into account the nature of the services rendered by the
respective employees, their present and potential contributions to the
Employer's success and such other factors as the Committee in its discretion
shall deem relevant.
(c) ADDITIONAL POWERS. The Committee shall have such additional powers
as are delegated to it by the other provisions of the Plan. Subject to the
express provisions of the Plan, the Committee is authorized to construe the
Plan and the respective agreements executed thereunder, to prescribe such rules
and regulations relating to the Plan as it may deem advisable to carry out the
Plan, and to determine the terms, restrictions and provisions of each Award,
including such terms, restrictions and provisions as shall be requisite in the
judgment of the Committee to cause designated Options to qualify as Incentive
Stock Options, and to make all other determinations necessary or advisable for
administering the Plan. The Committee may correct any defect or supply any
omission or reconcile any inconsistency in any agreement relating to an Award
in the manner and to the extent it shall deem expedient to carry it into
effect. The determinations of the Committee on the matters referred to in this
Article IV shall be conclusive.
(d) EXPENSES. All expenses and liabilities incurred by the Committee in
the administration of this Plan shall be borne by the Company. The Committee
may employ attorneys, consultants, accountants or other persons to assist the
Committee in the carrying out of its duties hereunder.
V. STOCK SUBJECT TO THE PLAN
(a) STOCK GRANT AND AWARD LIMITS. The Committee may from time to time
grant Awards to one or more employees determined by it to be eligible for
participation in the Plan in accordance with the provisions of Paragraph VI.
Subject to Paragraph IX, the aggregate number of shares of Stock that may be
issued under the Plan shall not exceed 180,000 shares. Shares of Stock shall
be deemed to have been issued under the Plan only to the extent actually
issued and
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delivered pursuant to an Award. To the extent that an Award lapses or the
rights of its Holder terminate or the Award is to only be paid in cash or is
paid in cash, any shares of Stock subject to such Award shall again be
available for the grant of an Award. To the extent that an Award lapses or the
rights of its Holder terminate, any shares of Stock subject to such Award shall
again be available for the grant of an Award. Separate stock certificates
shall be issued by the Company for those shares acquired pursuant the exercise
of an Incentive Stock Option and for those shares acquired pursuant to the
exercise of a Nonqualified Stock Option.
(b) STOCK OFFERED. The stock to be offered pursuant to the grant of an
Award may be authorized but unissued Stock or Stock previously issued and
outstanding and reacquired by the Company.
VI. ELIGIBILITY
Awards may be granted only to persons who, at the time of grant, are
officers, directors or other key employees. An Award may be granted on more
than one occasion to the same person, and, subject to the limitations set forth
in the Plan, such Award may include an Incentive Stock Option or a Nonqualified
Stock Option, a Stock Appreciation Right or any combination thereof.
VII. STOCK OPTIONS
(a) OPTION PERIOD. The term of each Option shall be as specified by the
Committee at the date of grant.
(b) LIMITATIONS ON EXERCISE OF OPTION. An Option shall be exercisable in
whole or in such installments and at such times as determined by the Committee.
No Incentive Stock Option granted pursuant to this Plan shall be exercised by
any Holder while there is outstanding any other Incentive Stock Option which
was granted prior to the date of grant of such Incentive Stock Option to such
Holder, whether pursuant to this Plan or any other plan of the Company. In the
event that any additional Incentive Stock Option is granted at a later date
pursuant to the Plan to any Holder, the instrument evidencing any such
additional Incentive Stock Option shall include the following provisions:
"This incentive stock option is not exercisable while there is
outstanding any incentive stock option which was granted prior to the
date of the grant hereof to the holder of this incentive stock option
to purchase shares of common stock of Access Anytime BanCorp, Inc. or
any of its subsidiaries."
(c) SPECIAL LIMITATIONS ON INCENTIVE STOCK OPTIONS. No Incentive Stock
Option may be granted to any Director who is not an employee. To the extent
that the aggregate Fair Market Value (determined at the time the respective
Incentive Stock Option is granted) of Stock with respect to which Incentive
Stock Options are exercisable for the first time by an individual during any
calendar year under all incentive stock option plans of the Company and its
Affiliates exceeds $100,000, such Incentive Stock Options shall be treated as
Nonqualified Stock Options as determined by the Committee. The Committee shall
determine, in accordance with applicable
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provisions of the Code, Treasury Regulations and other administrative
pronouncements, which of an optionee's Incentive Stock Options will not
constitute Incentive Stock Options because of such limitation and shall
notify the optionee of such determination as soon as practicable after such
determination. No Incentive Stock Option shall be granted to an individual
if, at the time the Option is granted, such individual owns stock possessing
more than 10% of the total combined voting power of all classes of stock of
the Company or of its parent or subsidiary corporation, within the meaning of
section 422(b)(6) of the Code, unless (i) at the time such Option is granted
the option price is at least 110% of the Fair Market Value of the Stock
subject to the Option and (ii) such Option by its terms is not exercisable
after the expiration of five years from the date of grant.
(d) OPTION AGREEMENT. Each Option shall be evidenced by an Option
Agreement in such form and containing such provisions not inconsistent with the
provisions of the Plan as the Committee from time to time shall approve,
including, without limitation, provisions to qualify an Incentive Stock Option
under section 422 of the Code. An Option Agreement may provide for the payment
of the option price, in whole or in part, in cash or by the delivery of a
number of shares of Stock (plus cash if necessary) having a Fair Market Value
equal to such option price. Each Option shall specify the effect of
termination of employment (by retirement, disability, death or otherwise) on
the exercisability of the Option. Moreover, an Option Agreement may provide
for a "cashless exercise" of the Option by establishing procedures whereby the
Holder, by a properly-executed written notice, directs (i) an immediate market
sale or margin loan respecting all or a part of the shares of Stock to which he
is entitled upon exercise pursuant to an extension of credit by the Company to
the Holder of the option price, (ii) the delivery of the shares of Stock from
the Company directly to a brokerage firm and (iii) the delivery of the option
price from the sale or margin loan proceeds from the brokerage firm directly to
the Company. Such Option Agreement may also include, without limitation,
provisions relating to (i) vesting of Options, subject to the provisions hereof
accelerating such vesting on a Change of Control, (ii) tax matters (including
provisions (y) permitting the delivery of additional shares of Stock or the
withholding of shares of Stock from those acquired upon exercise to satisfy
federal or state income tax withholding requirements and (z) dealing with any
other applicable employee wage withholding requirements), and (iii) any other
matters not inconsistent with the terms and provisions of this Plan that the
Committee shall in its sole discretion determine. The terms and conditions of
the respective Option Agreements need not be identical.
(e) OPTION PRICE AND PAYMENT. The price at which a share of Stock may be
purchased upon exercise of an Option shall be determined by the Committee, but
(i) such purchase price shall not be less than the Fair Market Value of Stock
subject to an Incentive Stock Option on the date the Incentive Stock Option is
granted and (ii) such purchase price shall be subject to adjustment as provided
in Paragraph IX. The Option or portion thereof may be exercised by delivery of
an irrevocable notice of exercise to the Company. The purchase price of the
Option or portion thereof shall be paid in full in the manner prescribed by the
Committee.
(f) STOCKHOLDER RIGHTS AND PRIVILEGES. The Holder shall be entitled to
all the privileges and rights of a stockholder only with respect to such shares
of Stock as have been
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purchased under the Option and for which certificates of stock have been
registered in the Holder's name.
(g) OPTIONS AND RIGHTS IN SUBSTITUTION FOR STOCK OPTIONS GRANTED BY OTHER
CORPORATIONS. Options and Stock Appreciation Rights may be granted under the
Plan from time to time in substitution for stock options held by individuals
employed by corporations who become employees as a result of a merger or
consolidation of the employing corporation with the Company, an Affiliate, or
any Subsidiary, or the acquisition by the Company, an Affiliate or a Subsidiary
of the assets of the employing corporation, or the acquisition by the Company,
an Affiliate or a Subsidiary of stock of the employing corporation with the
result that such employing corporation becomes a Subsidiary.
(h) EFFECT OF TERMINATION OF EMPLOYMENT, DISABILITY OR DEATH.
1. TERMINATION OF EMPLOYMENT. In the event that a Holder's
employment by the Company shall terminate for any reason, other than
disability or death, all of any such Holder's Incentive Stock Options, and
all of any such Holder's rights to purchase or receive shares of Stock
pursuant thereto, as the case may be, shall automatically terminate on the
date of such termination of employment. However, no termination of a
Holder's Incentive Stock Options shall occur if, and to the extent that,
the Committee authorizes the Holder to exercise any such Incentive Stock
Options at any time prior to the earlier of (i) the respective expiration
dates of any such Incentive Stock Options, or (ii) the expiration of not
more than three (3) months after the date of such termination of
employment, but only if, and to the extent that, the Holder was entitled
to exercise any such Incentive Stock Options at the date of such
termination of employment. In the event that an Affiliate or Subsidiary
ceases to be an Affiliate or Subsidiary, the employment of all of its
employees who are not immediately thereafter employees of the Company
shall be deemed to terminate upon the date such Affiliate or Subsidiary
ceases to be an Affiliate or Subsidiary.
2. DISABILITY. In the event of the determination of disability of
a Holder while the Holder is employed by the Company, the Incentive Stock
Options previously granted to him may be exercised (to the extent he or
she would have been entitled to do so at the date of the determination of
disability) at any time and from time to time, within a one year period
after the date of such determination of disability, by the former
employee, but in no event may the Incentive Stock Option be exercised
after its expiration under the terms of the Option Agreement. An Optionee
shall be deemed to be disabled if, in the opinion of a physician selected
by the Committee, he or she is incapable of performing services for the
Company of the kind he or she was performing at the time the disability
occurred by reason of any medically determinable physical or mental
impairment which can be expected to result in death or to be of long,
continued and indefinite duration. The date of determination of
disability for purposes hereof shall be the date of such determination by
such physician.
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3. DEATH. In the event of the death of Holder while the Holder is
employed by the Company, the Incentive Stock Options previously granted to
him may be exercised (to the extent the Holder would have been entitled to
do so at the date of death) at any time and from time to time, within a
six (6) month period after the date of death (or such later period not
exceeding one (1) year to which the Committee may, in its discretion,
extend such period), by the guardian of his estate, the executor or
administrator of his estate or by the person or persons to whom his rights
under the option shall pass by will or the laws of descent and
distribution, but in no event may the Incentive Stock Option be exercised
after its expiration under the terms of the Option Agreement.
4. NONQUALIFIED STOCK OPTIONS. The terms and conditions of
Nonqualified Stock Options relating to the effect of the termination of a
Holder's employment or service on the Board, death or disability shall be
such terms and conditions as the Committee shall, in its sole discretion,
determine at the time of grant or at the time of such termination,
disability or death.
(i) OTHER RESTRICTIONS ON EXERCISE. The Committee may impose
additional conditions upon the right of any Holder to exercise any Option
granted hereunder which are not inconsistent with the terms of the Plan or,
with respect to Incentive Stock Options, are not inconsistent with the
requirements under Code Section 422.
VIII. STOCK APPRECIATION RIGHTS
(a) STOCK APPRECIATION RIGHTS. A Stock Appreciation Right is the right
to receive an amount equal to the Spread with respect to a share of Stock
upon the exercise of such Stock Appreciation Right. Stock Appreciation
Rights may be granted in connection with the grant of an Option, in which
case the Option Agreement will provide that exercise of Stock Appreciation
Rights will result in the surrender of the right to purchase the shares under
the Option as to which the Stock Appreciation Rights were exercised.
Alternatively, Stock Appreciation Rights may be granted independently of
Options in which case each Award of Stock Appreciation Rights shall be
evidenced by a Stock Appreciation Rights Agreement which shall contain such
terms and conditions as may be approved by the Committee. The Spread with
respect to a Stock Appreciation Right may be payable either in cash, shares
of Stock with a Fair Market Value equal to the Spread or in a combination of
cash and shares of Stock. With respect to Stock Appreciation Rights that are
subject to Section 16 of the 1934 Act, however, the Committee shall, except
as provided in Paragraph IX.(c), retain sole discretion (i) to determine the
form in which payment of the Stock Appreciation Right will be made (I.E.,
cash, securities or any combination thereof) or (ii) to approve an election
by a Holder to receive cash in full or partial settlement of Stock
Appreciation Rights. Each Stock Appreciation Rights Agreement shall specify
the effect of termination of employment (by retirement, disability, death or
otherwise) on the exercisability of the Stock Appreciation Rights.
(b) OTHER TERMS AND CONDITIONS. At the time of such Award, the
Committee may, in its sole discretion, prescribe additional terms, conditions
or restrictions relating to Stock Appreciation Rights. Such additional
terms, conditions or restrictions shall be set forth in the
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Stock Appreciation Rights Agreement made in conjunction with the Award. Such
Stock Appreciation Rights Agreements may also include, without limitation,
provisions relating to (i) vesting of Awards, subject to the provisions
hereof accelerating vesting on a Change of Control, (ii) tax matters
(includinG provisions covering applicable wage withholding requirements), and
(iii) any other matters not inconsistent with the terms and provisions of
this Plan, that the Committee shall in its sole discretion determine. The
terms and conditions of the respective Stock Appreciation Rights Agreements
need not be identical.
(c) EXERCISE PRICE. The exercise price of each Stock Appreciation
Right shall be determined by the Committee, but such exercise price shall be
subject to adjustment as provided in Paragraph IX.
(d) EXERCISE PERIOD. The term of each Stock Appreciation Right shall
be as specified by the Committee at the date of grant.
(e) LIMITATIONS ON EXERCISE OF STOCK APPRECIATION RIGHT. A Stock
Appreciation Right shall be exercisable in whole or in such installments and
at such times as determined by the Committee.
IX. RECAPITALIZATION OR REORGANIZATION
(a) The shares with respect to which Awards may be granted are shares
of Stock as presently constituted, but if, and whenever, prior to the
expiration of an Award theretofore granted, the Company shall effect a
subdivision or consolidation by the Company, the number of shares of Stock
with respect to which such Award may thereafter be exercised or satisfied, as
applicable, (i) in the event of an increase in the number of outstanding
shares shall be proportionately increased, and the purchase price per share
shall be proportionately reduced, and (ii) in the event of a reduction in the
number of outstanding shares shall be proportionately reduced, and the
purchase price per share shall be proportionately increased.
(b) If the Company recapitalizes or otherwise changes its capital
structure, thereafter upon any exercise or satisfaction, as applicable, of an
Award theretofore granted the Holder shall be entitled to (or entitled to
purchase, if applicable) under such Award, in lieu of the number of shares of
Stock then covered by such Award, the number and class of shares of stock and
securities to which the Holder would have been entitled pursuant to the terms
of the recapitalization if, immediately prior to such recapitalization, the
Holder had been the holder of record of the number of shares of Stock then
covered by such Award.
(c) In the event of a Change of Control, all outstanding Awards shall
immediately vest and become exercisable or satisfiable, as applicable. The
Committee, in its discretion, may determine that upon the occurrence of a
Change of Control, each Award other than an Option outstanding hereunder
shall terminate within a specified number of days after notice to the Holder,
and such Holder shall receive, with respect to each share of Stock subject to
such Award, cash in an amount equal to the excess, if any, of the Change of
Control Value over any exercise price or purchase price paid, if applicable.
Further, in the event of a Change of Control, the Committee, in
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its discretion, shall act to effect one or more of the following alternatives
with respect to outstanding Options, which may vary among individual Holders
and which may vary among Options held by any individual Holder: (1)
determine a limited period of time on or before a specified date (before or
after such Change of Control) after which specified date all unexercised
Options and all rights of Holders thereunder shall terminate, (2) require the
mandatory surrender to the Company by selected Holders of some or all of the
outstanding Options held by such Holders (irrespective of whether such
Options are then exercisable under the provisions of the Plan) as of a date,
before or after such Change of Control, specified by the Committee, in which
event the Committee shall thereupon cancel such Options and the Company shall
pay to each Holder an amount of cash per share equal to the excess, if any,
of the Change of Control Value of the shares subject to such Option over the
exercise price(s) under such Options for such shares, (3) make such
adjustments to Options then outstanding as the Committee deems appropriate to
reflect such Change of Control (provided, however, that the Committee may
determine in its sole discretion that no adjustment is necessary to Options
then outstanding), or (4) provide that thereafter upon any exercise of an
Option theretofore granted the Holder shall be entitled to purchase under
such Option, in lieu of the number of shares of Stock then covered by such
Option, the number and class of shares of stock or other securities or
property (including, without limitation, cash) to which the Holder would have
been entitled pursuant to the terms of the agreement of merger, consolidation
or sale of assets and dissolution if, immediately prior to such merger,
consolidation or sale of assets and dissolution the Holder has been the
holder of record of the number of shares of Stock then covered by such
Option. The provisions contained in this paragraph shall not terminate any
rights of the Holder to further payments pursuant to any other agreement with
the Company following a Change of Control.
(d) In the event of changes in the outstanding Stock by reason of
recapitalization, reorganizations, mergers, consolidations, combinations,
exchanges or other relevant changes in capitalization occurring after the
date of the grant of any Award and not otherwise provided for by this
Paragraph IX, any outstanding Awards and any agreements evidencing such
Awards shall be subject to adjustment by the Committee at its discretion as
to the number and price of shares of Stock or other consideration subject to
such Awards. In the event of any such change in the outstanding Stock, the
aggregate number of shares available under the Plan may be appropriately
adjusted by the Committee, whose determination shall be conclusive.
(e) The existence of the Plan and the Awards granted hereunder shall
not affect in any way the right or power of the Board or the stockholders of
the Company to make or authorize any adjustment, recapitalization,
reorganization or other change in the Company's capital structure or its
business, any merger or consolidation of the Company, any issue of debt or
equity securities ahead of or affecting Stock or the rights thereof, the
dissolution or liquidation of the Company or any sale, lease, exchange or
other disposition of all or any part of its assets or business or any other
corporate act or proceeding.
(f) Any adjustment provided for in Subparagraphs (a), (b), (c) or (d)
above shall be subject to any required stockholder action.
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(g) Except as hereinbefore expressly provided, the issuance by the
Company of shares of stock of any class or securities convertible into shares
of stock of any class, for cash, property, labor or services, upon direct
sale, upon the exercise of rights or warrants to subscribe therefor, or upon
conversion of shares of obligations of the Company convertible into such
shares or other securities, and in any case whether or not for fair value,
shall not affect, and no adjustment by reason thereof shall be made with
respect to, the number of shares of Stock subject to Awards theretofore
granted or the purchase price per share, if applicable.
X. AMENDMENT AND TERMINATION OF THE PLAN
The Board in its discretion may terminate the Plan at any time with
respect to any shares for which Awards have not theretofore been granted.
The Board shall have the right to alter or amend the Plan or any part thereof
from time to time; provided that no change in any Award theretofore granted
may be made which would impair the rights of the Holder without the consent
of the Holder (unless such change is required in order to cause the benefits
under the Plan to qualify as performance-based compensation within the
meaning of section 162(m) of the Code and applicable interpretive authority
thereunder), and provided, further, that the Board may not, without approval
of the stockholders, amend the Plan:
(a) to increase the maximum number of shares which may be issued on
exercise or surrender of an Award, except as provided in Paragraph IX;
(b) to change the class of employees eligible to receive Awards or
materially increase the benefits accruing to employees under the Plan;
(c) to extend the maximum period during which Awards may be granted
under the Plan;
(d) to modify materially the requirements as to eligibility for
participation in the Plan; or
(e) to decrease any authority granted to the Committee hereunder in
contravention of Rule 16b-3.
XI. MISCELLANEOUS
(a) NO RIGHT TO AN AWARD. Neither the adoption of the Plan by the
Company nor any action of the Board or the Committee shall be deemed to give
an employee any right to be granted an Option, a right to a Stock
Appreciation Right, or any of the rights hereunder except as may be evidenced
by an Award or by an Option Agreement or Stock Appreciation Rights Agreement
on behalf of the Company, and then only to the extent and on the terms and
conditions expressly set forth therein. The Plan shall be unfunded. The
Company shall not be required to establish any special or separate fund or to
make any other segregation of funds or assets to assure the payment of any
Award.
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(b) EMPLOYEES' RIGHTS UNSECURED. The right of an employee to receive
Stock, cash or any other payment under this Plan shall be an unsecured claim
against the general assets of the Company. The Company may, but shall not be
obligated to, acquire shares of Stock from time to time in anticipation of
its obligations under this Plan, but a Participant shall have no right in or
against any shares of Stock so acquired. All Stock shall constitute the
general assets of the Company and may be disposed of by the Company at such
time and for such purposes as it deems appropriate.
(c) NO EMPLOYMENT RIGHTS CONFERRED. Nothing contained in the Plan
shall (i) confer upon any employee any right with respect to continuation of
employment with any Employer or (ii) interfere in any way with the right of
any Employer to terminate an employee's employment at any time.
(d) OTHER LAWS; WITHHOLDING. The Company shall not be obligated to
issue any Stock pursuant to any Award granted under the Plan at any time when
the shares covered by such Award have not been registered under the
Securities Act of 1933 and such other state and federal laws, rules or
regulations as the Company or the Committee deems applicable and, in the
opinion of legal counsel for the Company, there is no exemption from the
registration requirements of such laws, rules or regulations available for
the issuance and sale of such shares. Unless the Awards and Stock covered by
this Plan have been registered under the Securities Act of 1993, or the
Company has determined that such registration is unnecessary, each Holder
exercising an Award under this Plan may be required by the Company to give
representation in writing that such Holder is acquiring such shares for his
or her own account for investment and not with a view to, or for sale in
connection with, the distribution of any part thereof. No fractional shares
of Stock shall be delivered, nor shall any cash in lieu of fractional shares
be paid. The Company shall have the right to deduct in connection with all
Awards any taxes required by law to be withheld and to require any payments
required to enable it to satisfy its withholding obligations.
(e) NO RESTRICTION ON CORPORATE ACTION. Nothing contained in the Plan
shall be construed to prevent the Company, an Affiliate or any Subsidiary
from taking any corporate action which is deemed by the Company, an Affiliate
or any Subsidiary to be appropriate or in its best interest, whether or not
such action would have an adverse effect on the Plan or any Award made under
the Plan. No employee, beneficiary or other person shall have any claim
against the Company, an Affiliate or any Subsidiary as a result of any such
action.
(f) RESTRICTIONS ON TRANSFER. An Award shall not be transferable
otherwise than by will or the laws of descent and distribution and shall be
exercisable during the Holder's lifetime only by such Holder or the Holder's
guardian or legal representative.
(g) BENEFICIARY DESIGNATION. Each Holder may name, from time to time,
any beneficiary or beneficiaries (who may be named contingently or
successively) to whom any benefit under the Plan is to be paid in case of his
or her death before he or she receives any or all of such benefit. Each
designation will revoke all prior designations by the same Holder, shall be
in a form prescribed by the Committee, and will be effective only when filed
by the Holder in writing with
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the Committee during his lifetime. In the absence of any such designation,
benefits remaining unpaid at the Holder's death shall be paid to his estate.
(h) RULE 16B-3. It is intended that the Plan and any grant of an Award
made to a person subject to Section 16 of the 1934 Act meet all of the
requirements of Rule 16b-3. If any provision of the Plan or any such Award
would disqualify the Plan or such Award under, or would otherwise not comply
with, Rule 16b-3, such provision or Award shall be construed or deemed
amended to conform to Rule 16b-3.
(i) SECTION 162(M). If the Plan is subject to Section 162(m) of the
Code, it is intended that the Plan comply fully with and meet all the
requirements of Section 162(m) of the Code so that Options and Stock
Appreciation Rights granted hereunder shall constitute "performance-based"
compensation within the meaning of such section. If any provision of the
Plan would disqualify the Plan or would not otherwise permit the Plan to
comply with Section 162(m) as so intended, such provision shall be construed
or deemed amended to conform to the requirements or provisions of Section
162(m); provided that no such construction or amendment shall have an adverse
effect on the economic value to a Holder of any Award previously granted
hereunder.
(j) INDEMNIFICATION. Each person who is or shall have been a member of
the Committee or of the Board shall be indemnified and held harmless by the
Company against and from any loss, cost, liability, or expense that may be
imposed upon or reasonably incurred by him in connection with or resulting
from any claim, action, suit, or proceeding to which he may be a party or in
which he may be involved by reason of any action taken or failure to act
under the Plan and against and from any and all amounts paid by him in
settlement thereof, with the Company's approval, or paid by him in
satisfaction of any judgment in any such action, suit, or proceeding against
him, provided he shall give the Company an opportunity, at its own expense,
to handle and defend the same before he undertakes to handle and defend it on
his own behalf. The foregoing right of indemnification shall not be
exclusive of any other rights of indemnification to which such persons may be
entitled under the Company's Articles of Incorporation or Bylaws, as a matter
of law, under separate indemnification agreements, or otherwise, or any power
that the Company may have to indemnify them or hold them harmless.
(k) GOVERNING LAW. This Plan shall be construed in accordance with the
laws of the State of Delaware.
IN WITNESS WHEREOF, and as conclusive evidence of the adoption of the
foregoing by the Board, Access Anytime Bancorp, Inc. has caused this
document to be duly executed in its name and behalf by its proper officer
thereunto duly authorized as of this ____ day of _________, 1997.
By:
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Name:
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Title:
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