EXHIBIT 10.9
FIRST MIDWEST FINANCIAL, INC.
2002 OMNIBUS INCENTIVE PLAN
1. Plan Purpose. The purpose of the Plan is to promote the long-term
interests of the Company and its stockholders by providing a means for
attracting and retaining directors, advisory directors, officers and employees
of the Company and its Affiliates.
2. Definitions. The following definitions are applicable to the Plan:
"Affiliate" -- means any "parent corporation" or "subsidiary
corporation" of the Company as such terms are defined in Section 424(e) and (f),
respectively, of the Code.
"Award" -- means the grant by the Committee under this Plan of an
Incentive Stock Option, a Non-Qualified Stock Option, a Stock Appreciation
Right, Restricted Stock or a Performance Award, or any combination thereof, as
provided in the Plan.
"Award Agreement" -- means the agreement evidencing the grant of an
Award made under the Plan.
"Cause" -- means termination of service by reason of personal
dishonesty, incompetence, willful misconduct, breach of fiduciary duty involving
personal profit, intentional failure to perform stated duties or gross
negligence.
"Code" -- means the Internal Revenue Code of 1986, as amended.
"Committee" -- means the Committee referred to in Section 3 hereof.
"Company" -- means First Midwest Financial Inc. and any successor
thereto.
"Continuous Service" -- means the absence of any interruption or
termination of service as a director, advisory director, officer or employee of
the Company or an Affiliate, except that when used with respect to a person
granted an Incentive Stock Option means the absence of any interruption or
termination of service as an employee of the Company or an Affiliate. Service
shall not be considered interrupted in the case of sick leave, military leave or
any other leave of absence approved by the Company or in the case of transfers
between payroll locations of the Company or between the Company, its parent, its
subsidiaries or its successor.
"ERISA" -- means the Employee Retirement Income Security Act of
1974, as amended.
"Incentive Stock Option" -- means an option to purchase Shares
granted by the Committee which is intended to qualify as an Incentive Stock
Option under Section 422 of the Code. Unless otherwise set forth in the Award
Agreement, any Option which does not qualify as an Incentive Stock Option for
any reason shall be deemed a Non-Qualified Stock Option.
"Market Value" -- means the closing high bid with respect to a Share
on the date in question on the Nasdaq Stock Market, or any similar system then
in use, or, if the Shares are not then traded on the Nasdaq Stock Market or any
similar system, the closing sales price on such date (or, if there is no
reported sale on such date, on the last preceding date on which any reported
sale occurred) of a Share on the Composite Tape for New York Stock
Exchange-Listed Stocks, or, if on such date the Shares are not quoted on the
Composite Tape, on the New York Stock Exchange, or if the Shares are not listed
or
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admitted to trading on such Exchange, on the principal United States securities
exchange registered under the Securities Exchange Act of 1934 (the "Exchange
Act") on which the Shares are listed or admitted to trading, or, if the Shares
are not listed or admitted to trading on any such exchange, the fair market
value on such date of a Share as the Committee shall determine.
"Non-Qualified Stock Option" -- means an option to purchase Shares
granted by the Committee which does not qualify, for any reason, as an Incentive
Stock Option under Section 422 of the Code.
"Option" -- means an Incentive Stock Option or a Non-Qualified Stock
Option awarded to a Participant pursuant to Section 5(a) hereof.
"Participant" -- means any director, advisory director, officer or
employee of the Company or any Affiliate who is selected by the Committee to
receive an Award.
"Performance Award" -- means an Award granted pursuant to Section
5(d) herein.
"Plan" -- means this 2002 Omnibus Incentive Plan of the Company.
"Related" -- means (i) in the case of a Stock Appreciation Right, a
Stock Appreciation Right which is granted in connection with, and to the extent
exercisable, in whole or in part, in lieu of, an Option or another Stock
Appreciation Right and (ii) in the case of an Option, an Option with respect to
which and to the extent a Stock Appreciation Right is exercisable, in whole or
in part, in lieu thereof.
"Restricted Stock" -- means Shares awarded to a Participant pursuant
to Section 5(c) hereof.
"Retirement" -- means retirement from employment with the Company or
an Affiliate thereof, as an employee, director, director emeritus or advisory
director thereof, having reached the age of 65.
"Shares" -- means the shares of common stock of the Company.
"Stock Appreciation Right" -- means a stock appreciation right with
respect to Shares granted by the Committee pursuant to the Plan.
"Ten Percent Holder" -- means any individual who owns stock
possessing more than ten percent of the total combined voting power of all
classes of stock of the Company and any Affiliate.
"Termination of Service" - means cessation of service, for any
reason, whether voluntary or involuntary, so that the affected individual is not
either (i) an employee of the Corporation or any Affiliate for purposes of an
Incentive Stock Option, or (ii) a director, advisory director or employee of the
Corporation or any affiliate for purpose of any other Award.
3. Administration. The Plan shall be administered by a Committee
consisting of two or more members of the Board of Directors of the Company, each
of whom (i) shall be an outside director as defined under Section 162(m) of the
Code and the regulations thereunder and (ii) shall be a Non-Employee Director as
defined under Rule 16(b) of the Securities Exchange Act of 1934 or any similar
or successor provision. The members of the Committee shall be appointed by the
Board of Directors of the Company. Except as limited by the express provisions
of the Plan or by resolutions adopted by the Board of Directors of the Company,
the Committee shall have sole and complete authority and discretion to
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(i) select Participants and grant Awards; (ii) determine the number of Shares to
be subject to types of Awards generally, as well as to individual Awards granted
under the Plan; (iii) determine the terms and conditions upon which Awards shall
be granted under the Plan; (iv) prescribe the form and terms of instruments
evidencing such grants; and (v) establish from time to time regulations for the
administration of the Plan, interpret the Plan, to correct any defect or supply
an omission or reconcile any inconsistency in the Plan, and make all
determinations deemed necessary or advisable for the administration of the Plan.
A majority of the Committee shall constitute a quorum, and the acts of a
majority of the members present at any meeting at which a quorum is present, or
acts approved in writing by a majority of the Committee without a meeting, shall
be acts of the Committee.
4. Shares Subject to Plan.
(a) Subject to adjustment by the operation of Section 7, the maximum
number of Shares with respect to which Awards may be made under the Plan is
200,000 Shares. The Shares with respect to which Awards may be made under the
Plan may be either authorized and unissued shares or previously issued shares
reacquired and held as treasury shares. Shares which are subject to Related
Stock Appreciation Rights and Related Options shall be counted only once in
determining whether the maximum number of Shares with respect to which Awards
may be granted under the Plan has been exceeded. An Award shall not be
considered to have been made under the Plan with respect to any Option or Stock
Appreciation Right which terminates or with respect to Restricted Stock which is
forfeited, and new Awards may be granted under the Plan with respect to the
number of Shares as to which such termination or forfeiture has occurred.
(b) During any calendar year, no Participant may be granted Awards
under the Plan of more than 100,000 Shares, subject to adjustment as provided in
Section 7.
5. Awards.
(a) Options. The Committee is hereby authorized to grant Options to
Participants with the following terms and conditions and with such additional
terms and conditions not inconsistent with the provisions of the Plan as the
Committee shall determine, including the granting of Options in tandem with
other Awards under the Plan:
(i) Exercise Price. The exercise price per Share for an Option
shall be determined by the Committee; provided that, in the case of
an Incentive Stock Option, the exercise price thereof shall not be
less than 100% of the Market Value of a Share on the date of grant
of such Option; provided further that, in the case of an Incentive
Stock Option granted to a Ten Percent Holder, the exercise price
thereof shall not be less than 110% of the Market Value of a Share
on the date of grant of such Option.
(ii) Option Term. The term of each Option shall be fixed by
the Committee, but shall be no greater than 15 years; provided that,
in the case of an Incentive Stock Option, the term of such Option
shall not exceed ten years; provided further that, in the case of an
Incentive Stock Option granted to a Ten Percent Holder, the term of
such option shall not exceed five years.
(iii) Time and Method of Exercise. Except as provided in
paragraph (a) of Section 6, no Option granted hereunder may be
exercised unless at the time the Participant exercises such Option,
such Participant has maintained Continuous Service since the date of
grant of such Option. To exercise an Option under the Plan, the
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Participant to whom such Option was granted shall give written
notice to the Company in form satisfactory to the Committee (and, if
partial exercises have been permitted by the Committee, by
specifying the number of Shares with respect to which such
Participant elects to exercise such Option) together with full
payment of the exercise price, if any and to the extent notice is
received by the Company. Payment, if any is required, shall be made
either (i) in cash (including check, bank draft or money order) or,
if the Committee specifically approves in writing on an individual
basis, (ii) by delivering (A) Shares already owned by the
Participant and having a fair market value equal to the applicable
exercise price, such fair market value to be determined in such
appropriate manner as may be provided by the Committee or as may be
required in order to comply with or to conform to requirements of
any applicable laws or regulations, or (B) a combination of cash and
such Shares.
(iv) Option Agreements. At the time of an Award of an Option,
the Participant shall enter into an Award Agreement with the Company
in a form specified by the Committee, agreeing to the terms and
conditions of the Award and such other matters as the Committee
shall in its sole discretion determine.
(v) Limitations on Value of Exercisable Incentive Stock
Options. The aggregate Market Value of the Shares with respect to
which Incentive Stock Options are exercisable for the first time by
a Participant in any calendar year shall not exceed $100,000.
(vi) Eligible Recipients of Incentive Stock Options. Incentive
Stock Options may be granted by the Committee only to employees of
the Company or its Affiliates.
(vii) Incentive Stock Options must be granted no later than 10
years from the date the Plan is adopted or approved by the
stockholders, whichever is earlier.
(b) Stock Appreciation Rights. The Committee is hereby authorized to
grant Stock Appreciation Rights to Participants with the following terms and
conditions and with such additional terms and conditions not inconsistent with
the provisions of the Plan as the Committee shall determine:
(i) General. A Stock Appreciation Right shall, upon its
exercise, entitle the Participant to whom such Stock Appreciation
Right was granted to receive a number of Shares or cash or
combination thereof, as the Committee in its discretion shall
determine, the aggregate value of which (i.e., the sum of the amount
of cash and/or Market Value of such Shares on date of exercise)
shall equal (as nearly as possible, it being understood that the
Company shall not issue any fractional shares) the amount by which
the Market Value per Share on the date of such exercise shall exceed
the exercise price of such Stock Appreciation Right, multiplied by
the number of Shares with respect to which such Stock Appreciation
Right shall have been exercised.
(ii) Related Options. A Stock Appreciation Right may be
Related to an Option or may be granted independently of any Option
as the Committee shall from time to time in each case determine. In
the case of a Related Option, such Related Option shall cease to be
exercisable to the extent of the Shares with respect to which the
Related Stock Appreciation Right was exercised. Upon the exercise or
termination of a Related Option, any Related Stock Appreciation
Right shall terminate to the extent of the Shares with respect to
which the Related Option was exercised or terminated. If the Related
Option is an Incentive Stock Option, the Related Option shall
satisfy all restrictions and
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the limitations imposed on Incentive Stock Options under paragraph
(a) of this Section 5 (including, without limitation, restrictions
on exercise price and term).
(iii) Exercise Price and Term. The exercise price and term of
each Stock Appreciation Right shall be fixed by the Committee;
provided that, that the term of a Stock Appreciation Right shall not
exceed 15 years.
(iv) Stock Appreciation Right Agreements. At the time of an
Award of a Stock Appreciation Right, the Participant shall enter
into an Award Agreement with the Company in a form specified by the
Committee, agreeing to the terms and conditions of the Award and
such other matters as the Committee shall in its sole discretion
determine.
(v) Time and Method of Exercise. Except as provided in
paragraph (a) of Section 6, no Stock Appreciation Right may be
exercised unless at the time the Participant exercises such Stock
Appreciation Right, such Participant has maintained Continuous
Service since the date of grant of such Stock Appreciation Right. To
exercise a Stock Appreciation Right under the Plan, the Participant
to whom such Stock Appreciation Right was granted shall give written
notice to the Company in form satisfactory to the Committee (and, if
partial exercises have been permitted by the Committee, by
specifying the number of Shares with respect to which such
Participant elects to exercise such Stock Appreciation Right)
together with full payment of the exercise price, if any and to the
extent required. The date of exercise shall be the date on which
such notice is received by the Company. Payment, if any is required,
shall be made either (i) in cash (including check, bank draft or
money order) or with the specific written permission of the
Committee (ii) by delivering (A) Shares already owned by the
Participant and having a fair market value equal to the applicable
exercise price, such fair market value to be determined in such
appropriate manner as may be provided by the Committee or as may be
required in order to comply with or to conform to requirements of
any applicable laws or regulations, or (B) a combination of cash and
such Shares.
(c) Restricted Stock. The Committee is hereby authorized to grant
Awards of Restricted Stock to Participants with the following terms and
conditions and with such additional terms and conditions not inconsistent with
the provisions of the Plan as the Committee shall determine:
(i) Restrictions. Shares of Restricted Stock shall be subject
to such restrictions as the Committee may impose (including, without
limitation, any limitation on the right to vote a Share of
Restricted Stock or the right to receive any dividend or other right
or property with respect thereto), which restrictions may lapse
separately or in combination at such time or times, in such
installments or otherwise as the Committee may deem appropriate.
During the period of time in which the Shares awarded as Restricted
Stock are subject to the restrictions contemplated herein (a
"Restricted Period"), unless otherwise permitted by the Plan or by
the Committee as provided in the applicable Award Agreement, such
Shares may not be sold, assigned, transferred, pledged or otherwise
encumbered by the Participant. Except for the restrictions which may
be imposed on Restricted Stock, a Participant to whom Shares of
Restricted Stock have been awarded shall have all the rights of a
stockholder, including but not limited to the right to receive all
dividends paid on such Shares and the right to vote such Shares.
(ii) Restricted Stock Agreements. At the time of an Award of
Shares of Restricted Stock, the Participant shall enter into an
Award Agreement with the Company
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in a form specified by the Committee, agreeing to the terms and
conditions of the Award and such other matters as the Committee
shall in its sole discretion determine.
(iii) Stock Certificates. Any Restricted Stock granted under
the Plan shall be evidenced by issuance of a stock certificate or
certificates, which certificate or certificates shall be held by the
Company. Such certificate or certificates shall be registered in the
name of the Participant and shall bear the following (or similar)
legend:
"The transferability of this certificate and the shares of
stock represented hereby are subject to the terms and
conditions (including forfeiture) contained in the Company's
2002 Omnibus Incentive Plan and an Agreement entered into
between the registered owner and the Company. Copies of such
Plan and Agreement are on file in the offices of the Secretary
of the Company, Fifth at Erie, Storm Lake, Iowa 50588."
(iv) Removal of Restrictions. Shares representing Restricted
Stock that are no longer subject to restrictions shall be delivered
to the holder thereof promptly after the applicable restrictions
lapse or are waived.
(d) Performance Awards. The Committee is hereby authorized to grant
Performance Awards to Participants subject to the terms of the Plan and the
applicable Award Agreement. At the time of grant of a Performance Award, the
Participant shall enter into an Award Agreement with the Company in a form
specified by the Committee, agreeing to the terms and conditions of the
Performance Award and such other matters as the Committee shall in its sole
discretion determine. A Performance Award granted under the Plan (i) may be
denominated or payable in cash, Shares (including, without limitation,
Restricted Stock), other securities, other Awards or other property and (ii)
shall confer on the holder thereof the right to receive payments, in whole or in
part, upon the achievement of such performance goals during such performance
periods as the Committee shall establish. Subject to the terms of the Plan, the
performance goals to be achieved during any performance period, the length of
any performance period, the amount of any Performance Award granted and the
amount of any payment or transfer to be made pursuant to any Performance Award
shall be determined by the Committee as provided in the applicable Award
Agreement. Unless otherwise provided in the Performance Award, the term of a
Performance Award shall not exceed 15 years.
6. Termination of Service.
(a) Options and Stock Appreciation Rights.
(i) If a Participant to whom an Option or Stock Appreciation
Right was granted shall cease to maintain Continuous Service for any
reason (including total and partial disability but excluding
Retirement, death and termination of employment by the Company or
any Affiliate for Cause), such Participant may, but only within the
period of three months, in the case of an Incentive Stock Option, or
one year, in the case of a Non-Qualified Stock Option or Stock
Appreciation Right, immediately succeeding such cessation of
Continuous Service and in no event after the expiration date of such
Option or Stock Appreciation Right, exercise such Option or Stock
Appreciation Right to the extent that such Participant was entitled
to exercise such Option or Stock Appreciation Right at the date of
such cessation of Continuous Service. If the Continuous Service of a
Participant to whom an Option or Stock Appreciation Right was
granted by the Company is terminated for Cause, all rights under any
Option or Stock Appreciation Right of such
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Participant shall expire immediately upon the giving to the
Participant of notice of such termination.
(ii) If a Participant to whom an Option or Stock Appreciation
Right was granted shall cease to maintain Continuous Service due to
Retirement, such Participant may, but only within the period of
three months, in the case of an Incentive Stock Option, or two
years, in the case of a Non-Qualified Stock Option or Stock
Appreciation Right, immediately succeeding such cessation of
Continuous Service and in no event after the expiration date of such
Option or Stock Appreciation Right, exercise such Option or Stock
Appreciation Right to the extent that such Participant was entitled
to exercise such Option or Stock Appreciation Right at the date of
such cessation of Continuous Service.
(iii) In the event of the death of a Participant while in the
Continuous Service of the Company or an Affiliate or within the
periods referred to in paragraphs (a)(i) and (a)(ii) of this Section
6, the person to whom any Option or Stock Appreciation Right held by
the Participant at the time of his or her death is transferred by
will or the laws of descent and distribution or in the case of an
Award other than an Incentive Stock Option, pursuant to a qualified
domestic relations order, as defined in the Code or Title I of ERISA
or the rules thereunder, or as otherwise permitted to be transferred
under Section 10 of the Plan may, but only within the period of two
years immediately succeeding the date of death of such Participant,
and in no event after the expiration date of such Option or Stock
Appreciation Right, exercise such Option or Stock Appreciation Right
to the extent that such Participant was entitled to exercise such
Option or Stock Appreciation Right immediately prior to his death.
Following the death of any Participant to whom an Option was granted
under the Plan, irrespective of whether any Related Stock
Appreciation Right shall have theretofore been granted to the
Participant or whether the person entitled to exercise such Related
Stock Appreciation Right desires to do so, the Committee may, as an
alternative means of settlement of such Option, elect to pay to the
person to whom such Option is transferred as permitted by Section 10
of this Plan, the amount by which the Market Value per Share on the
date of exercise of such Option shall exceed the exercise price of
such Option, multiplied by the number of Shares with respect to
which such Option is properly exercised. Any such settlement of an
Option shall be considered an exercise of such Option for all
purposes of the Plan.
(iv) Notwithstanding the provisions of subparagraphs (i)
through (iii) above, the Committee may, in its sole discretion,
establish different terms and conditions pertaining to the effect of
termination to the extent permitted by applicable federal and state
law.
(b) Restricted Stock. Except as otherwise provided in this Plan, if
a Participant ceases to maintain Continuous Services for any reason (other than
death, total or partial disability or Retirement) unless the Committee, in its
sole discretion, shall otherwise determine, all shares of Restricted Stock
theretofore awarded to such Participant and which at the time of such
termination of Continuous Service are subject to the restrictions imposed by
paragraph (c)(i) of Section 5 shall upon such termination of Continuous Service
be forfeited and returned to the Company. Unless the Committee, in its sole
discretion, shall otherwise determine, if a Participant ceases to maintain
Continuous Service by reason of death, total or partial disability or
Retirement, all shares of Restricted Stock theretofore awarded to such
Participant and which at the time of such termination of Continuous Service are
subject to the restrictions imposed by paragraph (c)(i) of Section 5 shall upon
such termination of Continuous Service be free of restrictions and shall not be
forfeited.
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(c) Performance Awards. In the event that a Participant to whom a
Performance Award has been granted shall cease to maintain Continuous Service
for any reason, the rights of such Participant or any person to whom the Award
may have been transferred as permitted by Section 10 shall be governed by the
terms of the Plan and the applicable Award Agreement.
7. Adjustments Upon Changes in Capitalization. In the event of any change
in the outstanding Shares subsequent to the effective date of the Plan by reason
of any reorganization, recapitalization, stock split, stock dividend,
combination or exchange of shares, merger, consolidation or any change in the
corporate structure or Shares of the Company, the maximum aggregate number and
class of shares and exercise price of the Award, if any, as to which Awards may
be granted under the Plan and the number and class of shares and exercise price
of the Award, if any, with respect to which Awards have been granted under the
Plan shall be appropriately adjusted by the Committee, whose determination shall
be conclusive. Any Award which is adjusted as a result of this Section 7 shall
be subject to the same restrictions as the original Award.
8. Effect of Merger on Options and Stock Appreciation Rights. In the case
of any merger, consolidation or combination of the Company (other than a merger,
consolidation or combination in which the Company is the continuing corporation
and which does not result in the outstanding Shares being converted into or
exchanged for different securities, cash or other property, or any combination
thereof), any Participant to whom an Option or Stock Appreciation Right has been
granted shall have the additional right (subject to the provisions of the Plan
and any limitation applicable to such Option or Stock Appreciation Right),
thereafter and during the term of each such Option or Stock Appreciation Right,
to receive upon exercise of any such Option or Stock Appreciation Right an
amount equal to the excess of the fair market value on the date of such exercise
of the securities, cash or other property, or combination thereof, receivable
upon such merger, consolidation or combination in respect of a Share over the
exercise price of such Stock Appreciation Right or Option, multiplied by the
number of Shares with respect to which such Option or Stock Appreciation Right
shall have been exercised. Such amount may be payable fully in cash, fully in
one or more of the kind or kinds of property payable in such merger,
consolidation or combination, or partly in cash and partly in one or more of
such kind or kinds of property, all in the discretion of the Committee.
9. Effect of Change in Control. Each of the events specified in the
following clauses (i) through (iii) of this Section 9 shall be deemed a "change
of control": (i) any third person, including a "group" as defined in Section
13(d)(3) of the Securities Exchange Act of 1934, as amended, shall become the
beneficial owner of shares of the Company with respect to which 25% or more of
the total number of votes for the election of the Board of Directors of the
Company may be cast, (ii) as a result of, or in connection with, any cash tender
offer, merger or other business combination, sale of assets or contested
election, or combination of the foregoing, the persons who were directors of the
Company shall cease to constitute a majority of the Board of Directors of the
Company, or (iii) the stockholders of the Company shall approve an agreement
providing either for a transaction in which the Company will cease to be an
independent publicly-owned corporation or for a sale or other disposition of all
or substantially all the assets of the Company. Upon a change in control, unless
the Committee shall have otherwise provided in the applicable Award Agreement,
any restrictions or vesting period with respect to any outstanding Awards shall
lapse and all such Awards shall become fully vested in the Participant to whom
such Awards were awarded; provided, however, that no Award which has previously
been exercised or otherwise terminated shall become exercisable.
10. Assignments and Transfers. No Award granted under the Plan shall be
transferable otherwise than by will or the laws of descent and distribution,
except that an Award other than an Incentive Stock Option may be transferred
pursuant to a qualified domestic relations order or by gift to any member of the
Participant's immediate family or to a trust for the benefit of one or more of
such
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immediate family members. During the lifetime of an Award recipient, an Award
shall be exercisable only by the Award recipient unless it has been transferred
as permitted hereby, in which case it shall be exercisable only by such
transferee. For the purpose of this Section 10, a Participant's "immediate
family" shall mean the Participant's spouse, children and grandchildren.
11. Employee Rights Under the Plan. No person shall have a right to be
selected as a Participant nor, having been so selected, to be selected again as
a Participant and no officer, employee or other person shall have any claim or
right to be granted an Award under the Plan or under any other incentive or
similar plan of the Company or any Affiliate. Neither the Plan nor any action
taken thereunder shall be construed as giving any employee any right to be
retained in the employ of or serve as a director or advisory director of the
Company or any Affiliate.
12. Delivery and Registration of Stock. The Company's obligation to
deliver Shares with respect to an Award shall, if the Committee so requests, be
conditioned upon the receipt of a representation as to the investment intention
of the Participant to whom such Shares are to be delivered, in such form as the
Committee shall determine to be necessary or advisable to comply with the
provisions of the Securities Act of 1933, as amended, or any other federal,
state or local securities legislation. It may be provided that any
representation requirement shall become inoperative upon a registration of the
Shares or other action eliminating the necessity of such representation under
such Securities Act or other securities legislation. The Company shall not be
required to deliver any Shares under the Plan prior to (i) the admission of such
Shares to listing on any stock exchange on which Shares may then be listed, and
(ii) the completion of such registration or other qualification of such Shares
under any state or federal law, rule or regulation, as the committee shall
determine to be necessary or advisable.
13. Withholding Tax. Upon the termination of the restricted period with
respect to any shares of Restricted Stock (or at any such earlier time, if any,
that an election is made by the Participant under Section 83(b) of the Code, or
any successor provision thereto, to include the value of such shares in taxable
income), the Company shall have the right to require the Participant or other
person receiving such shares to pay the Company the amount of any taxes which
the Company is required to withhold with respect to such shares, or, in lieu
thereof, to retain or sell without notice, a sufficient number of shares held by
it to cover the amount required to be withheld. The Company shall have the right
to deduct from all dividends paid with respect to shares of Restricted Stock the
amount of any taxes which the Company is required to withhold with respect to
such dividend payments.
The Company shall have the right to deduct from all amounts paid in cash
with respect to the exercise of a Stock Appreciation Right under the Plan any
taxes required by law to be withheld with respect to such cash payments. Where a
Participant or other person is entitled to receive Shares pursuant to the
exercise of an Option or Stock Appreciation Right pursuant to the Plan, the
Company shall have the right to require the Participant or such other person to
pay the Company the amount of any taxes which the Company is required to
withhold with respect to such Shares, or, in lieu thereof, to retain, or sell
without notice, a number of such Shares sufficient to cover the amount required
to be withheld.
All withholding decisions pursuant to this Section 13 shall be at the sole
discretion of the Committee or the Company.
14. Amendment or Termination.
(a) Subject to paragraph (b) of this Section 14, the Board of
Directors of the Company may amend, alter, suspend, discontinue, or terminate
the Plan at any time without the consent of shareholders or Participants, except
that any such action will be subject to the approval of the Company's
shareholders if, when and to the extent such shareholder approval is necessary
or required for
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purposes of any applicable federal or state law or regulation or the rules of
any stock exchange or automated quotation system on which the Shares may then be
listed or quoted, or if the Board of Directors of the Company, in its
discretion, determines to seek such shareholder approval.
(b) Except as otherwise provided herein, the Committee may waive any
conditions of or rights of the Company or modify or amend the terms of any
outstanding Award. The Committee may not, however, amend, alter, suspend,
discontinue or terminate any outstanding Award without the consent of the
Participant or holder thereof, except as otherwise herein provided.
15. Effective Date and Term of Plan. The Plan shall become effective upon
its adoption by the Board of Directors of the Company, subject to the approval
of the Plan by the shareholders of the Company. It shall continue in effect for
a term of 15 years unless sooner terminated under Section 14 hereof.
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