EXHIBIT 10.7
Charter Financial Corp.
2001 Stock Option Plan
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Effective as of the Date of the Reorganization
TABLE OF CONTENTS
Page
Article I
Purpose
Section 1.1 General Purpose of the Plan................................. 1
Article II
Definitions
Section 2.1 Bank......................................................... 1
Section 2.2 Board........................................................ 1
Section 2.3 Change in Control............................................ 1
Section 2.4 Code......................................................... 3
Section 2.5 Committee.................................................... 3
Section 2.6 Company...................................................... 3
Section 2.7 Disability................................................... 3
Section 2.8 Disinterested Board Member................................... 3
Section 2.9 Effective Date............................................... 3
Section 2.10 Eligible Director............................................ 3
Section 2.11 Eligible Employee............................................ 3
Section 2.12 Employer..................................................... 3
Section 2.13 Exchange Act................................................. 4
Section 2.14 Exercise Price............................................... 4
Section 2.15 Fair Market Value............................................ 4
Section 2.16 Family Member................................................ 4
Section 2.17 FDIC Regulations............................................. 4
Section 2.18 Incentive Stock Option....................................... 4
Section 2.19 Non-Profit Organization...................................... 4
Section 2.20 Non-Qualified Stock Option................................... 4
Section 2.21 Option....................................................... 4
Section 2.22 Option Period................................................ 5
Section 2.23 Person....................................................... 5
Section 2.24 Plan......................................................... 5
Section 2.25 Retirement................................................... 5
Section 2.26 Share........................................................ 5
Section 2.27 Termination for Cause........................................ 5
Article III
Available Shares
Section 3.1 Available Shares............................................. 5
Article IV
Administration
Section 4.1 Committee.................................................... 6
Section 4.2 Committee Action............................................. 6
(i)
Page
Section 4.3 Committee Responsibilities.................................. 7
Article V
Stock Option Grants
Section 5.1 Grant of Options............................................ 7
Section 5.2 Size of Option.............................................. 8
Section 5.3 Exercise Price.............................................. 8
Section 5.4 Option Period............................................... 8
Section 5.5 Required Regulatory Provisions.............................. 9
Section 5.6 Additional Restrictions on Incentive Stock Options.......... 10
Article VI
Options -- In General
Section 6.1 Method of Exercise.......................................... 11
Section 6.2 Limitations on Options...................................... 12
Article VII
Amendment and Termination
Section 7.1 Termination................................................. 13
Section 7.2 Amendment................................................... 13
Section 7.3 Adjustments in the Event of a Business Reorganization....... 13
Article VIII
Miscellaneous
Section 8.1 Status as an Employee Benefit Plan.......................... 14
Section 8.2 No Right to Continued Employment............................ 14
Section 8.3 Construction of Language.................................... 15
Section 8.4 Governing Law............................................... 15
Section 8.5 Headings.................................................... 15
Section 8.6 Non-Alienation of Benefits.................................. 15
Section 8.7 Taxes....................................................... 15
Section 8.8 Notices..................................................... 16
Section 8.9 Required Regulatory Provisions.............................. 16
Section 8.10 Approval of Shareholders.................................... 16
Article IX
Additional Provisions Subject to Further Shareholder Approval
Section 9.1 Accelerated Vesting Upon Retirement......................... 17
Section 9.2 No Effect Prior to Shareholder Approval..................... 17
(ii)
Charter Financial Corp. 2001 Stock Option Plan
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Article I
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Purpose
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Section 1.1 General Purpose of the Plan.
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The purpose of the Plan is to promote the growth and profitability of
Charter Financial Corp., to provide eligible directors, certain key officers and
employees of Charter Financial Corp. and its affiliates with an incentive to
achieve corporate objectives, to attract and retain individuals of outstanding
competence and to provide such individuals with an equity interest in Charter
Financial Corp.
Article II
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Definitions
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The following definitions shall apply for the purposes of this Plan,
unless a different meaning is plainly indicated by the context:
Section 2.1 Bank means CharterBank and any successor thereto.
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Section 2.2 Board means the board of directors of the Company.
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Section 2.3 Change in Control means any of the following events:
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(a) the consummation of a reorganization, merger or consolidation of
the Company with one or more other persons, other than a transaction
following which:
(i) at least 51% of the equity ownership interests of the entity
resulting from such transaction are beneficially owned (within the
meaning of Rule 13d-3 promulgated under the Securities Exchange Act of
1934, as amended ("Exchange Act")) in substantially the same relative
proportions by persons who, immediately prior to such transaction,
beneficially owned (within the meaning of Rule 13d-3 promulgated under
the Exchange Act) at least 51% of the outstanding equity ownership
interests in the Company; and
(ii) at least 51% of the securities entitled to vote generally in
the election of directors of the entity resulting from such
transaction are beneficially owned (within the meaning of Rule 13d-3
promulgated under the Exchange Act) in substantially the same relative
proportions by persons who, immediately prior to such transaction,
beneficially owned (within the meaning of Rule 13d-3 promulgated under
the Exchange Act) at least 51%
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of the securities entitled to vote generally in the election of
directors of the Company;
(b) the acquisition of all or substantially all of the assets of the
Company or beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of 25% or more of the outstanding
securities of the Company entitled to vote generally in the election of
directors by any person or by any persons acting in concert;
(c) a complete liquidation or dissolution of the Company;
(d) the occurrence of any event if, immediately following such event,
at least 50% of the members of the Board of Directors of the Company do not
belong to any of the following groups:
(i) individuals who were members of the Board of Directors of
the Company on the Effective Date; or
(ii) individuals who first became members of the Board of
Directors of the Company after the Effective Date either:
(A) upon election to serve as a member of the Board of
Directors of the Company by affirmative vote of three-quarters of
the members of such board, or of a nominating committee thereof,
in office at the time of such first election; or
(B) upon election by the shareholders of the Company to
serve as a member of such board, but only if nominated for
election by affirmative vote of three-quarters of the members of
the Board of Directors of the Company, or of a nominating
committee thereof, in office at the time of such first
nomination;
provided, however, that such individual's election or nomination did
not result from an actual or threatened election contest (within the
meaning of Rule 14a-11 of Regulation 14A promulgated under the
Exchange Act) or other actual or threatened solicitation of proxies or
consents (within the meaning of Rule 14a-11 of Regulation 14A
promulgated under the Exchange Act) other than by or on behalf of the
Board of Directors of the Company; or
(e) approval by the stockholders of the Company of any agreement, plan
or arrangement for the consummation of a transaction which, if consummated,
would result in the occurrence of an event described in section 2.3(a),
(b), (c) or (d); or
(f) any event which would be described in section 2.3(a), (b), (c),
(d) or (e) if the term "Bank" were substituted for the terms "Company"
therein.
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In no event, however, shall a Change of Control be deemed to have occurred as a
result of (i) any acquisition of securities or assets of the Company, the Bank,
or a subsidiary of either of them, by the Company, the Bank, or any subsidiary
of either of them, or by any employee benefit plan maintained by any of them or
(ii) the conversion of First Charter, MHC to a stock form company and the
issuance of additional Shares of the Company in connection therewith. For
purposes of this section 2.3, the term "person" shall have the meaning assigned
to it under sections 13(d)(3) or 14(d)(2) of the Exchange Act.
Section 2.4 Code means the Internal Revenue Code of 1986 (including
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the corresponding provisions of any succeeding law).
Section 2.5 Committee means the Committee described in section 4.1.
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Section 2.6 Company means Charter Financial Corp., a corporation
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organized and existing under the laws of the State of Georgia, and any successor
thereto.
Section 2.7 Disability means a condition of total incapacity,
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mental or physical, for further performance of duty with the Company which the
Committee shall have determined, on the basis of competent medical evidence, is
likely to be permanent.
Section 2.8 Disinterested Board Member means a member of the Board
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who (a) is not a current employee of the Company or a subsidiary, (b) is not a
former employee of the Company who receives compensation for prior services
(other than benefits under a tax-qualified retirement plan) during the taxable
year, (c) has not been an officer of the Company, (d) does not receive
remuneration from the Company or a subsidiary, either directly or indirectly, in
any capacity other than as a director except in an amount for which disclosure
would not be required pursuant to Item 404(a) of the proxy solicitation rules of
the Securities and Exchange Commission and (e) does not possess an interest in
any other transaction, and is not engaged in a business relationship, for which
disclosure would be required pursuant to Item 404(a) or (b) of the proxy
solicitation rules of the Securities and Exchange Commission. The term
Disinterested Board Member shall be interpreted in such manner as shall be
necessary to conform to the requirements of section 162(m) of the Code and Rule
16b-3 promulgated under the Exchange Act.
Section 2.9 Effective Date means the date on which the Bank
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converts from a mutual bank to a stock bank (the "Reorganization").
Section 2.10 Eligible Director means a member of the board of
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directors of an Employer who is not also an employee or an officer of any
Employer.
Section 2.11 Eligible Employee means any employee whom the Committee
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may determine to be a key officer or employee of an Employer and select to
receive a grant of an Option pursuant to the Plan.
Section 2.12 Employer means the Company, the Bank and any successor
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thereto and, with the prior approval of the Board, and subject to such terms and
conditions as may be imposed by the Board, any other savings bank, savings and
loan association, bank, corporation, financial institution or other business
organization or institution. With respect to any Eligible
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Employer or Eligible Director, the Employer shall mean the entity which employs
such person or upon whose board of directors such person serves.
Section 2.13 Exchange Act means the Securities Exchange Act of 1934,
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as amended.
Section 2.14 Exercise Price means the price per Share at which
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Shares subject to an Option may be purchased upon exercise of the Option,
determined in accordance with section 5.3.
Section 2.15 Fair Market Value means, with respect to a Share on a
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specified date:
(a) the final reported sales price on the date in question (or if
there is no reported sale on such date, on the last preceding date on which
any reported sale occurred) as reported in the principal consolidated
reporting system with respect to securities listed or admitted to trading
on the principal United States securities exchange on which the Shares are
listed or admitted to trading; or
(b) if the Shares are not listed or admitted to trading on any such
exchange, the closing bid quotation with respect to a Share on such date on
the National Association of Securities Dealers Automated Quotations System,
or, if no such quotation is provided, on another similar system, selected
by the Committee, then in use; or
(c) if sections 2.15(a) and (b) are not applicable, the fair market
value of a Share as the Committee may determine.
Section 2.16 Family Member means the spouse, parent, child or
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sibling of an Eligible Director or Eligible Employee.
Section 2.17 FDIC Regulations means the rules and regulations of the
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Federal Deposit Insurance Corporation.
Section 2.18 Incentive Stock Option means a right to purchase Shares
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that is granted to Eligible Employees pursuant to section 5.1, that is
designated by the Committee to be an Incentive Stock Option and that is intended
to satisfy the requirements of section 422 of the Code.
Section 2.19 Non-Profit Organization means any organization which is
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exempt from federal income tax under section 501(c)(3), (4), (5), (6), (7), (8)
or (10) of the Internal Revenue Code.
Section 2.20 Non-Qualified Stock Option means a right to purchase
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Shares that is either (a) granted to an Eligible Director or (b) granted to an
Eligible Employee and either (i) is not designated by the Committee to be an
Incentive Stock Option, or (ii) does not satisfy the requirements of section 422
of the Code.
Section 2.21 Option means either an Incentive Stock Option or a Non-
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Qualified Stock Option.
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Section 2.22 Option Period means the period during which an Option
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may be exercised, determined in accordance with section 5.4.
Section 2.23 Person means an individual, a corporation, a bank, a
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savings bank, a savings and loan association, a financial institution, a
partnership, an association, a joint-stock company, a trust, an estate, an
unincorporated organization and any other business organization or institution.
Section 2.24 Plan means the Charter Financial Corp. 2001 Stock
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Option Plan, as amended from time to time.
Section 2.25 Retirement means with respect to an Eligible Employee,
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termination of all service for all Employers as an employee at or after the
normal or early retirement date set forth in any tax-qualified retirement plan
of the Bank, whether or not the individual in question actually participates in
any such tax-qualified plan of the Bank, and in the case of an Eligible
Director, termination of all service for all Employers as a voting member of the
Employer's board of directors after the attainment of the latest age at which
the Eligible Director is eligible for election or appointment as a voting member
of the Employer's board of directors under the Employer's charter.
Section 2.26 Share means a share of Common Stock, par value $.01
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share, of Charter Financial Corp.
Section 2.27 Termination for Cause means termination of service or
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removal from office with the Employer upon the occurrence of any of the
following: (a) the individual intentionally engages in dishonest conduct in
connection with his performance of services for the Employer resulting in his
conviction of a felony; (b) the individual is convicted of, or pleads guilty or
nolo contendere to, a felony or any crime involving moral turpitude; (c) the
individual breaches his fiduciary duties to the Employer for personal profit; or
(d) the individual willfully breaches or violates any law, rule or regulation
(other than traffic violations or similar offenses), or final cease and desist
order in connection with his performance of services for the Employer.
Article III
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Available Shares
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Section 3.1 Available Shares.
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(a) The maximum aggregate number of Shares with respect to which
Options may be granted at any time shall be equal to the excess of:
(i) 4.9% of the total number of Shares issued in the Reorganization;
over
(ii) the sum of:
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(A) the number of Shares with respect to which previously granted
Options may then or may in the future be exercised; plus
(B) the number of Shares with respect to which previously granted
Options have been exercised;
subject to adjustment pursuant to section 7.3.
(b) Options to purchase an aggregate maximum of 1.47% of the total
number of Shares issued in the Reorganization (subject to adjustment pursuant to
section 7.3) may be granted to Eligible Directors, and Options to purchase a
maximum of 0.245% of the total number of Shares issued in the Reorganization
(subject to adjustment pursuant to section 7.3) may be granted to any one
Eligible Director.
(c) Options to purchase a maximum of 1.225% of the total number of
Shares issued in the Reorganization (subject to adjustment pursuant to section
7.3) may be granted to any one Eligible Employee.
(d) For purposes of this section 3.1, an Option shall not be
considered as having been exercised to the extent that such Option terminates by
reason other than the purchase of related Shares; provided, however, that for
purposes of meeting the requirements of section 162(m) of the Code, no Eligible
Employee who is a covered employee (within the meaning of section 162(m) of the
Code) shall receive grants of Options for an aggregate number of Shares that is
in excess of the amount specified for him under this section 3.1, computed as if
any Option which is canceled or forfeited reduced the maximum number of Shares.
Article IV
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Administration
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Section 4.1 Committee.
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The Plan shall be administered by the members of the Compensation
Committee of Charter Financial Corp. who are Disinterested Board Members. If
the Committee consists of fewer than two Disinterested Board Members, then the
Board shall appoint to the Committee such additional Disinterested Board Members
as shall be necessary to provide for a Committee consisting of at least two
Disinterested Board Members.
Section 4.2 Committee Action.
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The Committee shall hold such meetings, and may make such
administrative rules and regulations, as it may deem proper. A majority of the
members of the Committee shall constitute a quorum, and the action of a majority
of the members of the Committee present at a meet ing at which a quorum is
present, as well as actions taken pursuant to the unanimous written consent of
all of the members of the Committee without holding a meeting, shall be deemed
to be actions
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of the Committee. All actions of the Committee shall be final and conclusive and
shall be binding upon the Company and all other interested parties. Any Person
dealing with the Committee shall be fully protected in relying upon any written
notice, instruction, direction or other communication signed by the Secretary of
the Committee and one member of the Committee, by two members of the Committee
or by a representative of the Committee authorized to sign the same in its
behalf.
Section 4.3 Committee Responsibilities.
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Subject to the terms and conditions of the Plan and such limitations
as may be imposed by the Board, the Committee shall be responsible for the
overall management and administration of the Plan and shall have such authority
as shall be necessary or appropriate in order to carry out its responsibilities,
including, without limitation, the authority:
(a) to interpret and construe the Plan, and to determine all
questions that may arise under the Plan as to eligibility for participation
in the Plan, the number of Shares subject to the Options, if any, to be
granted, and the terms and conditions thereof;
(b) to adopt rules and regulations and to prescribe forms for the
operation and administration of the Plan; and
(c) to take any other action not inconsistent with the provisions of
the Plan that it may deem necessary or appropriate.
Article V
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Stock Option Grants
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Section 5.1 Grant of Options.
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(a) Subject to the limitations of the Plan, the Committee may, in its
discretion, grant to an Eligible Employee or an Eligible Director an Option to
purchase Shares. An Option for Eligible Employees must be designated as either
an Incentive Stock Option or a Non-Qualified Stock Option and, if not designated
as either, shall be a Non-Qualified Stock Option. An Option for an Eligible
Director shall be a Non-Qualified Stock Option.
(b) Any Option granted under this section 5.1 shall be evidenced by a
written agreement which shall:
(i) specify the number of Shares covered by the Option determined in
accordance with section 5.2;
(ii) specify the Exercise Price, determined in accordance with section
5.3, for the Shares subject to the Option;
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(iii) specify the Option Period determined in accordance with section
5.4;
(iv) set forth specifically or incorporate by reference the
applicable provisions of the Plan; and
(v) contain such other terms and conditions not inconsistent with
the Plan as the Committee may, in its discretion, prescribe with respect to
an Option granted to an Eligible Employee or an Eligible Director.
Section 5.2 Size of Option.
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Subject to section 3.1 and such limitations as the Board may from time
to time impose, the number of Shares as to which an Eligible Employee or
Eligible Director may be granted Options shall be determined by the Committee,
in its discretion.
Section 5.3 Exercise Price.
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The price per Share at which an Option granted to an Eligible Employee
or Eligible Director shall be determined by the Committee, in its discretion;
provided, however, that the Exercise Price shall not be less than the Fair
Market Value of a Share on the date on which the Option is granted.
Section 5.4 Option Period.
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Subject to section 5.5, the Option Period during which an Option
granted to an Eligible Employee may be exercised shall commence on the date
specified by the Committee in the Option agreement and shall expire on the date
specified in the Option agreement or, if no date is specified, on the earliest
of:
(a) in the case of an Option granted to an Eligible Employee:
(i) the close of business on the last day of the three-month
period commencing on the date of the Eligible Employee's termination
of employment with the Employer, other than on account of death or
Disability, Retirement or a Termination for Cause;
(ii) the close of business on the last day of the one-year
period commencing on the date of the Eligible Employee's termination
of employment due to death, Disability or Retirement;
(iii) the date and time when the Eligible Employee ceases to be
an employee of the Employer due to a Termination for Cause; and
(iv) the last day of the ten-year period commencing on the date
on which the Option was granted; and
(b) in the case of an Option granted to an Eligible Director:
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(i) removal for cause in accordance with the Employer's bylaws,
or Termination for Cause; or
(ii) the last day of the ten-year period commencing on the date
on which the Option was granted.
Section 5.5 Required Regulatory Provisions.
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Notwithstanding anything contained herein to the contrary:
(a) no Option shall be granted to an Eligible Employee or Eligible
Director under the Plan prior to the later of (i) six months after the date
of the Reorganization or (ii) the approval of the Plan by shareholders in
accordance with section 8.10;
(b) each Option granted to an Eligible Employee or Eligible Director
shall become exercisable no more rapidly than as follows:
(i) prior to the first anniversary of the Effective Date, an
Option shall not be exercisable;
(ii) on and after the first anniversary, but prior to the second
anniversary, of the Effective Date, an Option may be exercised as to a
maximum of twenty percent (20%) of the Shares subject to the Option
when granted;
(iii) on and after the second anniversary, but prior to the
third anniversary, of the Effective Date, an Option may be exercised
as to a maximum of forty percent (40%) of the Shares subject to the
Option when granted, including in such forty percent (40%) any
optioned Shares purchased prior to such second anniversary;
(iv) on and after the third anniversary, but prior to the fourth
anniversary, of the Effective Date, an Option may be exercised as to a
maximum of sixty percent (60%) of the Shares subject to the Option
when granted, including in such sixty percent (60%) any optioned
Shares purchased prior to such third anniversary;
(v) on and after the fourth anniversary, but prior to the fifth
anniversary, of the Effective Date, an Option may be exercised as to a
maximum of eighty percent (80%) of the Shares subject to the Option
when granted, including in such eighty percent (80%) any optioned
Shares purchased prior to such fourth anniversary; and
(vi) on and after the fifth anniversary of the Effective Date
and for the remainder of the Option Period, an Option may be exercised
as to the entire number of optioned Shares not theretofore purchased;
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provided, however, that such an Option shall become fully exercisable, and
all optioned Shares not previously purchased shall become available for
purchase, on the date of the Option holder's death or Disability while in
the service of an Employer or on the date of a Change in Control.
(c) The Option Period of any Option granted hereunder, whether or not
previously vested, shall be suspended as of the time and date at which the
Option holder has received notice from the Board that his or her employment
is subject to a possible Termination for Cause, or in the case of an
Eligible Director, removal for cause in accordance with the Employer's by-
laws. Such suspension shall remain in effect until the Option holder
receives official notice from the Board that he or she has been cleared of
any possible Termination for Cause, or in the case of an Eligible Director,
removal for cause, at which time, the original Exercise Period shall be
reinstated without any adjustment for the intervening suspended period. In
the event that the Option Period under section 5.4 expires during such
suspension, the Company shall pay to the Eligible Employee, within 30 days
after his reinstatement as an employee of the Company, damages equal to the
value of the expired Options (based on the Fair Market Value of a Share as
of the expiration of the Option Period less the Exercise Price of such
Options).
(d) No Option granted to an Eligible Employee or Eligible Director
hereunder, whether or not previously vested, shall be exercised after the
time and date at which the Option holder's services with the Employer are
terminated in a Termination for Cause, or, in the case of an Eligible
Director, removal for cause in accordance with the Employer's by-laws.
Section 5.6 Additional Restrictions on Incentive Stock Options.
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An Option granted to an Eligible Employee designated by the Committee
to be an Incentive Stock Option shall be subject to the following limitations:
(a) If, for any calendar year, the sum of (i) plus (ii) exceeds
$100,000, where (i) equals the Fair Market Value (determined as of the date
of the grant) of Shares subject to an Option intended to be an Incentive
Stock Option which first be come available for purchase during such
calendar year, and (ii) equals the Fair Market Value (determined as of the
date of grant) of Shares subject to any other options intended to be
Incentive Stock Options and previously granted to the same Eligible
Employee which first become exercisable in such calendar year, then that
number of Shares optioned which causes the sum of (i) and (ii) to exceed
$100,000 shall be deemed to be Shares optioned pursuant to a Non-Qualified
Stock Option or Non-Qualified Stock Options, with the same terms as the
Option or Options intended to be an Incentive Stock Option;
(b) The Exercise Price of an Incentive Stock Option granted to an
Eligible Employee who, at the time the Option is granted, owns Shares
comprising more than 10% of the total combined voting power of all classes
of stock of the Company shall not be less than 110% of the Fair Market
Value of a Share, and if an Option
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designated as an Incentive Stock Option shall be granted at an Exercise
Price that does not satisfy this requirement, the designated Exercise Price
shall be observed and the Option shall be treated as a Non-Qualified Stock
Option;
(c) The Option Period of an Incentive Stock Option granted to an
Eligible Employee who, at the time the Option is granted, owns Shares
comprising more than 10% of the total combined voting power of all classes
of stock of the Company, shall expire no later than the fifth anniversary
of the date on which the Option was granted, and if an Option designated as
an Incentive Stock Option shall be granted for an Option Period that does
not satisfy this requirement, the designated Option Period shall be
observed and the Option shall be treated as a Non-Qualified Stock Option;
(d) An Incentive Stock Option that is exercised during its designated
Option Period but more than:
(i) three (3) months after the termination of employment with
the Company, a parent or a subsidiary (other than on account of
disability within the meaning of section 22(e)(3) of the Code or
death) of the Eligible Employee to whom it was granted; and
(ii) one (1) year after such individual's termination of
employment with the Company, a parent or a subsidiary due to
disability (within the meaning of section 22(e)(3) of the Code) or
death;
may be exercised in accordance with the terms but shall at the time of
exercise be treated as a Non-Qualified Stock Option; and
(e) Except with the prior written approval of the Committee, no
individual shall dispose of Shares acquired pursuant to the exercise of an
Incentive Stock Option until after the later of (i) the second anniversary
of the date on which the Incentive Stock Option was granted, or (ii) the
first anniversary of the date on which the Shares were acquired.
Article VI
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Options -- In General
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Section 6.1 Method of Exercise.
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(a) Subject to the limitations of the Plan and the Option agreement,
an Option holder may, at any time during the Option Period, exercise his or her
right to purchase all or any part of the Shares to which the Option relates;
provided, however, that the minimum number of Shares which may be purchased at
any time shall be 100, or, if less, the total number of Shares relating to the
Option which remain unpurchased. An Option holder shall exercise an Option to
purchase Shares by:
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(i) giving written notice to the Committee, in such form and manner
as the Committee may prescribe, of his intent to exercise the Option;
(ii) delivering to the Committee full payment, consistent with
section 6.1(b), for the Shares as to which the Option is to be exercised;
and
(iii) satisfying such other conditions as may be prescribed in the
Option agreement.
(b) The Exercise Price of Shares to be purchased upon exercise of
any Option shall be paid in full in cash (by certified or bank check or such
other instrument as the Company may accept) or, if and to the extent permitted
by the Committee, by one or more of the following: (i) in the form of Shares
already owned by the Option holder having an aggregate Fair Market Value on the
date the Option is exercised equal to the aggregate Exercise Price to be paid;
(ii) by requesting the Company to cancel without payment Options outstanding to
such Person for that number of Shares whose aggregate Fair Market Value on the
date of exercise, when reduced by their aggregate Exercise Price, equals the
aggregate Exercise Price of the Options being exercised; or (iii) by a
combination thereof. Payment for any Shares to be purchased upon exercise of an
Option may also be made by delivering a properly executed exercise notice to the
Company, together with a copy of irrevocable instructions to a broker to deliver
promptly to the Company the amount of sale or loan proceeds to pay the purchase
price. To facilitate the foregoing, the Company may enter into agreements for
coordinated procedures with one or more brokerage firms.
(c) When the requirements of section 6.1(a) and (b) have been
satisfied, the Committee shall take such action as is necessary to cause the
issuance of a stock certificate evidencing the Option holder's ownership of such
Shares. The Person exercising the Option shall have no right to vote or to
receive dividends, nor have any other rights with respect to the Shares, prior
to the date as of which such Shares are transferred to such Person on the stock
transfer records of the Company, and no adjustments shall be made for any
dividends or other rights for which the record date is prior to the date as of
which such transfer is effected, except as may be required under section 7.3.
Section 6.2 Limitations on Options.
----------------------
(a) An Option by its terms shall not be transferable by the Option
holder other than to Family Members or Non-Profit Organizations or by will or by
the laws of descent and distribution and shall be exercisable, during the
lifetime of the Option holder, only by the Option holder, a Family Member or a
Non-Profit Organization. Any such transfer shall be effected by written notice
to the Company given in such form and manner as the Committee may prescribe and
shall be recognized only if such notice is received by the Company prior to the
death of the person giving it. Thereafter, the transferee shall have, with
respect to such Option, all of the rights, privileges and obligations which
would attach thereunder to the transferor if the Option were issued to such
transferor. If a privilege of the Option depends on the life, employment or
other status of the transferor, such privilege of the Option for the transferee
shall continue to depend on the life, employment or other status of the
transferor. The Committee shall have full and exclusive authority to interpret
and apply the provisions of this Plan to transferees to the extent not
specifically described herein. Notwithstanding the foregoing, an Incentive
Stock Option is not transferable by an Eligible
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Employee other than by will or the laws of descent and distribution, and is
exercisable, during his lifetime, solely by him.
(b) The Company's obligation to deliver Shares with respect to an
Option shall, if the Committee so requests, be conditioned upon the receipt of a
representation as to the investment intention of the Option holder 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 applicable federal,
state or local law. It may be provided that any such representation shall
become inoperative upon a registration of the Shares or upon the occurrence of
any other event eliminating the necessity of such representation. 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, or (ii) the completion of such registration or other
qualification under any state or federal law, rule or regulation as the
Committee shall determine to be necessary or advisable.
Article VII
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Amendment and Termination
-------------------------
Section 7.1 Termination.
-----------
The Board may suspend or terminate the Plan in whole or in part at any
time prior to the tenth anniversary of the Effective Date by giving written
notice of such suspension or termination to the Committee. Unless sooner
terminated, the Plan shall terminate automatically on the day preceding the
tenth anniversary of the Effective Date. In the event of any suspension or
termination of the Plan, all Options theretofore granted under the Plan that are
outstanding on the date of such suspension or termination of the Plan shall
remain outstanding and exercisable for the period and on the terms and
conditions set forth in the Option agreements evidencing such Options.
Section 7.2 Amendment.
---------
The Board may amend or revise the Plan in whole or in part at any
time; provided, however, that, to the extent required to comply with section
162(m) of the Code, no such amendment or revision shall be effective if it
amends a material term of the Plan unless approved by the holders of a majority
of the votes cast on a proposal to approve such amendment or revision.
Section 7.3 Adjustments in the Event of a Business Reorganization.
-----------------------------------------------------
(a) In the event of any merger, consolidation, or other business
reorganization in which the Company is the surviving entity, and in the event of
any stock split, stock dividend or other event generally affecting the number of
Shares held by each Person who is then a holder of record of Shares, the number
of Shares covered by each outstanding Option and the number of Shares available
to any individual or group of individuals pursuant to section 3.1 shall be
adjusted to account for such event. Such adjustment shall be effected by
multiplying such number of Shares by an amount equal to the number of Shares
that would be owned after such event by a Person who, immediately prior to such
event, was the holder of record of one Share, and the Exercise Price of the
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Options shall be adjusted by dividing the Exercise Price by such number of
Shares; provided, however, that the Committee may, in its discretion, establish
another appropriate method of adjustment.
(b) In the event of any merger, consolidation, or other business
reorganization in which the Company is not the surviving entity, any Options
granted under the Plan which remain outstanding shall be converted into options
to purchase voting common equity securities of the business entity which
survives such merger, consolidation or other business reorganization having
substantially the same terms and conditions as the outstanding Options under
this Plan and reflecting the same economic benefit (as measured by the
difference between the aggregate exercise price and the value exchanged for
outstanding Shares in such merger, consolidation or other business
reorganization), all as determined by the Committee prior to the consummation of
such merger; provided, however, that the Committee may, at any time prior to the
consummation of such merger, consolidation or other business reorganization,
direct that all, but not less than all, outstanding Options be canceled as of
the effective date of such merger, consolidation or other business
reorganization in exchange for a cash payment per optioned Share equal to the
excess (if any) of the value exchanged for an outstanding Share in such merger,
consolidation or other business reorganization over the Exercise Price of the
Option being canceled.
Article VIII
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Miscellaneous
-------------
Section 8.1 Status as an Employee Benefit Plan.
----------------------------------
This Plan is not intended to satisfy the requirements for
qualification under section 401(a) of the Code or to satisfy the definitional
requirements for an "employee benefit plan" under section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended. It is intended to be a non-
qualified incentive compensation program that is exempt from the regulatory
requirements of the Employee Retirement Income Security Act of 1974, as
amended. The Plan shall be construed and administered so as to effectuate this
intent.
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Section 8.2 No Right to Continued Employment.
--------------------------------
Neither the establishment of the Plan nor any provisions of the Plan
nor any action of the Board or the Committee with respect to the Plan shall be
held or construed to confer upon any Eligible Director or Eligible Employee any
right to a continuation of his or her position as a director or employee of the
Company. The Employers reserve the right to remove any Eligible Director or
dismiss any Eligible Employee or otherwise deal with any Eligible Director or
Eligible Employee to the same extent as though the Plan had not been adopted.
Section 8.3 Construction of Language.
------------------------
Whenever appropriate in the Plan, words used in the singular may be
read in the plural, words used in the plural may be read in the singular, and
words importing the masculine gender may be read as referring equally to the
feminine or the neuter. Any reference to an Article or section number shall
refer to an Article or section of this Plan unless otherwise indicated.
Section 8.4 Governing Law.
-------------
The Plan shall be construed, administered and enforced according to
the laws of the State of Georgia without giving effect to the conflict of laws
principles thereof, except to the extent that such laws are preempted by federal
law. The Plan shall be construed to comply with applicable OTS Regulations.
Section 8.5 Headings.
--------
The headings of Articles and sections are included solely for
convenience of reference. If there is any conflict between such headings and
the text of the Plan, the text shall control.
Section 8.6 Non-Alienation of Benefits.
--------------------------
The right to receive a benefit under the Plan shall not be subject in
any manner to anticipation, alienation or assignment, nor shall such right be
liable for or subject to debts, contracts, liabilities, engagements or torts.
Section 8.7 Taxes.
-----
The Company shall have the right to deduct from all amounts paid by
the Company in cash with respect to an Option under the Plan any taxes required
by law to be withheld with respect to such Option. Where any Person is entitled
to receive Shares pursuant to the exercise of an Option, the Company shall have
the right to require such Person to pay the Company the amount of any tax which
the Company is required to withhold with respect to such Shares, or, in lieu
thereof, to retain, or to sell without notice, a sufficient number of Shares to
cover the minimum amount re quired to be withheld under applicable law.
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Section 8.8 Notices.
-------
Any communication required or permitted to be given under the Plan,
including any notice, direction, designation, comment, instruction, objection or
waiver, shall be in writing and shall be deemed to have been given at such time
as it is delivered personally or five (5) days after mailing if mailed, postage
prepaid, by registered or certified mail, return receipt requested, addressed to
such party at the address listed below, or at such other address as one such
party may by written notice specify to the other party:
(a) If to the Committee:
Charter Financial Corp.
600 Third Avenue
West Point, GA 31833
Attention: Corporate Secretary
-------------------
(b) If to an Option holder, to the Option holder's address as shown in
the Employer's records.
Section 8.9 Required Regulatory Provisions.
------------------------------
The grant and settlement of Options under this Plan shall be
conditioned upon and subject to compliance with section 18(k) of the Federal
Deposit Insurance Act, 12 U.S.C. 1828(k), and the rules and regulations
promulgated thereunder.
Section 8.1 Approval of Shareholders.
------------------------
The Plan shall not be effective prior to its approval by a majority of
the total votes cast by purchasers (other than First Charter, MHC) in the stock
offering conducted in conjunction with the Reorganization who become holders of
Shares. If not effective due to the vote of purchasers in the Reorganization,
the Plan shall be effective upon the date of its approval by a majority of the
total votes eligible to be cast at any duly called annual or special meeting of
the Company. If not effective prior to the one year anniversary of the date of
the Reorganization, the Plan shall be effective on such later date as is
specified by the Board. No Option shall be granted prior to the date on which
the Plan becomes effective nor shall any Option be granted within six months of
the date of the Reorganization.
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Article IX
----------
Additional Provisions Subject to Further Shareholder Approval
-------------------------------------------------------------
Section 9.1 Accelerated Vesting Upon Retirement.
-----------------------------------
Notwithstanding anything in the Plan to the contrary, but subject to
section 9.2: in the event that any Eligible Employee terminates service as an
Employee of all Employers, or in the event that an Eligible Director terminates
service as a voting member of all Employers' boards of directors, and such
termination constitutes a Retirement, all Options outstanding to such holder on
the date of his Retirement shall, to the extent not already exercisable, become
exercisable upon Retirement.
Section 9.2 No Effect Prior to Shareholder Approval.
---------------------------------------
Notwithstanding anything contained in this Article IX to the contrary,
the provisions of this Article IX shall not be applied, and shall be of no force
or effect, unless and until the shareholders of the Company shall have approved
such provisions by affirmative vote of the holders of a majority of the Shares
represented in person or by proxy and entitled to vote at a meeting of
shareholders duly called and held after the one year anniversary of the date of
the Reorganization.