Exhibit 10.1
SECOND AMENDMENT AND RESTATEMENT OF THE
ALABAMA NATIONAL BANCORPORATION
PERFORMANCE SHARE PLAN
1. Purpose. The purpose of the Alabama National BanCorporation Performance
Share Plan (the "Plan") is to further the long-term growth in profitability of
Alabama National BanCorporation (the "Company") by offering long-term incentives
in addition to current compensation to those key executives who will be largely
responsible for such growth.
2. Certain Definitions.
(a) "Award" means the award of Performance Shares to a Participant pursuant
to the terms of the Plan.
(b) "Award Period" means the period of calendar years (but no more than
five years) fixed by the Committee with respect to all Awards with the same Date
of Grant, commencing with each Date of Grant, except that (i) the Award Period
for an Employee whose normal retirement date (as determined under the Company's
corporate policy covering retirement of salaried employees) is less than the
period otherwise fixed by the Committee from the applicable Date of Grant shall
be the period beginning with such Date of Grant and ending on the December 31st
immediately preceding such normal retirement date and (ii) the Award Period for
a recently hired Employee may be for such lesser period as determined by the
Committee.
(c) "Committee" means the committee of the Board of Directors of the
Company which shall administer the Plan in accordance with Section 3.
(d) "Common Stock" means the common stock, par value $1.00 per share, of
the Company.
(e) "Company" means Alabama National BanCorporation, a Delaware
corporation.
(f) "Date of Grant" means as of January 1 of any year in which an Award is
made.
(g) "Employee" means any person (including any officer) employed by the
Company or any subsidiary of the Company on a full-time salaried basis.
(h) "Fair Market Value" of the Common Stock means the average of the daily
closing prices for a share of the Common Stock for the twenty (20) trading days
ending on the fifth business day prior to the date of payment of Performance
Shares for an Award Period or an Interim Period, as the case may be, on the
Composite Tape for New York Stock Exchange - Listed Stocks, or, if the Common
Stock is not listed on such Exchange, on the principal United States securities
exchange registered under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), on which the Common Stock is listed, or, if the Common Stock is
not listed on any such Exchange, the average of the daily closing bid quotations
with respect to a share of the Common Stock for such twenty (20) trading days on
the National Association of Securities Dealers, Inc., Automated Quotations
System or any system then in use.
(i) "Interim Period" means a period of calendar years chosen by the
Committee commencing with any Date of Grant, which period is less than the Award
Period commencing on the Date of Grant.
(j) "Net Income Per Share" for the Company, or any other corporation, means
net income for the year divided by average common shares outstanding during the
year, computed in accordance with generally accepted accounting principles as
reported in the Company's Annual Report to Stockholders or its equivalent.
(k) "Participant" means an Employee who is selected by the Committee to
receive an Award under the Plan.
(l) "Performance Share" means the equivalent of one share of Common Stock.
(m) "Return on Average Equity" for the Company, or any other corporation,
for a period is obtained by dividing (i) Net Income Per Share of Common Stock
for the year, by (ii) average Stockholders' Equity Per Share at the beginning of
the year and at the end of the year, computed in accordance with generally
accepted accounting principles as reported in the Company's Annual Report to
Stockholders or its equivalent.
(n) "Section 162(m)" means Section 162(m) of the Internal Revenue Code of
1986, as amended, and any regulations promulgated thereunder.
(o) "Stockholders' Equity Per Share" for the Company, or any other
corporation, for a particular point in time is obtained by dividing (i)
stockholders' equity by (ii) outstanding common shares, computed in accordance
with generally accepted accounting principles as reported in the Company's
Annual Report to Stockholders or its equivalent.
3. Administration of the Plan. The Plan shall be administered by a Committee
designated by the Board of Directors, which shall be composed of not less than
three members of the Board of Directors. No member of the Committee shall be
eligible to participate in the Plan while serving as a member of the Committee.
Initially, the Committee shall be the Compensation Committee. Subject to the
provisions of the Plan, the Committee shall have the authority to select the
Employees who are to participate in the Plan, to determine the Award to be made
to each Employee selected to participate in the Plan, and to determine the
conditions subject to which Awards will become payable under the Plan.
The Committee shall have full power to administer and interpret the Plan
and to adopt such rules and regulations consistent with the terms of the Plan as
the Committee deems necessary or advisable in order to carry out the provisions
of the Plan. Except as otherwise provided in the Plan, the Committee's
interpretation and construction of the Plan and its determination of any
conditions applicable to Performance Share Awards or the reasons for any
terminations of Participants shall be conclusive and binding on all
Participants.
In connection with its determination as to the payment of Performance
Shares, the Committee has full discretion to adjust Net Income Per Share or
Stockholders' Equity Per Share to recognize special or nonrecurring situations
or circumstances for the Company, or any other corporation, for any year.
The Plan shall be unfunded. Benefits under the Plan shall be paid from the
general assets of the Company.
4. Participation. Participants in the Plan shall be selected by the Committee
from those Employees who, in the estimation of the Committee, have a substantial
opportunity to influence the long-term profitability of the Company.
5. Performance Share Awards.
(a) After appropriate approval of the Plan, and thereafter from time to
time, the Committee shall select Employees to receive Awards in any year as of
the Date of Grant. Any Employee may be granted more than one Award under the
Plan, but no Employee may be granted, in the aggregate, more than 25% of the
Performance Shares which are the subject of this Plan. Awards of Performance
Shares hereunder shall not be made unless any such Award is in compliance with
all applicable laws.
(b) No Participant shall be entitled to receive any dividends or dividend
equivalents on Performance Shares; with respect to any Performance Shares, no
Participant shall have any voting or any other rights of a Company
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stockholder; and no Participant shall have any interest in or right to receive
any shares of Common Stock prior to the time when the Committee determines the
form of payment of Performance Shares pursuant to Section 6.
(c) Payment of the Award to any Participant shall be made in accordance
with Section 6 and shall be subject to such conditions for payment as the
Committee may prescribe at the time the Award is made. The Committee may
prescribe different conditions for different Participants. Such conditions may
be expressed in terms of: (i) the growth in Net Income Per Share during the
Award Period, or (ii average Return on Average Equity in comparison with other
banks and bank holding companies, or (ii other reasonable bases; provided that,
to the extent the Committee determines that it is necessary to qualify
compensation under Section 162(m), the performance criteria shall be based on
one or more of the criteria listed in (i) or (ii) above. The Committee may
prescribe conditions such that payment of an Award may be made with respect to a
number of shares of Common Stock that is greater than the number of Performance
Shares awarded. However, the Committee may not provide for payment of greater
than 125% of the number of Performance Shares awarded.
(d) Each Award shall be made in writing and shall set forth the terms and
conditions set by the Committee for payment of such Award including, without
limitation, the length of the Award Period and whether there will be an Interim
Period with respect to the Award and if so, the length of the Interim Period.
6. Payment of Performance Share Awards.
(a) Subject to the right of certain management or highly compensated
employees to defer payment of an Award as discussed in this Section 6(b) below,
payment of Performance Share Awards shall be as follows:
Each Participant granted an Award shall be entitled to payment of the
Award as of the close of the Award Period applicable to such Award, but
only if and after the Committee has determined that the conditions for
payment of the Award set by the Committee have been satisfied. At the time
of grant of each Award, the Committee shall decide whether there will be an
Interim Period. If the Committee determines that there shall be an Interim
Period for the Award to any Participant, each such Participant granted an
Award with an Interim Period shall be entitled to partial payment on
account thereof as of the close of the Interim Period, but only if and
after the Committee has determined that the conditions for partial payment
of the Award set by the Committee have been satisfied. Performance Shares
paid to a Participant for an Interim Period may be retained by the
Participant and shall not be repaid to the Company, notwithstanding that
based on the conditions set for payment at the end of the Award Period such
Participant would not have been entitled to payment of some or any of his
Award. Any Performance Shares paid to a Participant for the Interim Period
during an Award Period shall be deducted from the Performance Shares to
which such Participant is entitled at the end of the Award Period.
Unless otherwise directed by the Committee, payment of Awards shall be
made as promptly as possible by the Company after the determination by the
Committee that payment has been earned. Unless otherwise directed by the
Committee, all payments of Awards to Participants shall be made partly in
shares of Common Stock and partly in cash, with the cash portion being
approximately equal to the amount of federal, state and local taxes which
the Participant's employer is required to withhold on account of said
payment. The Committee, in its discretion, may provide for payment of cash
and distribution of shares of Common Stock in such other proportions as the
Committee deems appropriate, except and provided that the Committee must
pay in cash an amount equal to the federal, state and local taxes which the
Participant's employer is required to withhold on account of said payment.
There shall be deducted from the cash portion of all Awards all taxes to be
withheld with respect to such Awards.
For payment of each Award, the number of shares of Common Stock to be
distributed to Participants shall equal the Fair Market Value of the total
Performance Shares determined by the Committee to have been earned by the
Participant, less the portion of the Award that was paid in cash, divided
by the Fair Market
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Value of a Performance Share. To the extent that shares of Common Stock are
available in the treasury of the Company on the date payment is to be made,
such shares may be issued in payment of Awards.
(b) Each Participant who is a management or highly compensated employee and
who is entitled to participate in the Alabama National BanCorporation Deferral
of Compensation Plan for Key Employees may elect to defer payment of any Award
in accordance with said plan.
7. Death or Disability. If, prior to the close of an Award Period, a
Participant's employment terminates by reason of his death or by his total and
permanent disability (as determined under the Company's Pension Plan), payment
of his outstanding Award or Awards shall be made as promptly as possible after
death or the date of the determination of total and permanent disability, and
the number of Performance Shares to be paid shall be computed as follows: First,
determine (based on the conditions set by the Committee for payment of Awards
for the subject Award Period) the number of Performance Shares that would have
been paid if each subject Award Period had ended on the December 31st
immediately preceding the date of death or the date of determination of total
and permanent disability. Then, multiply each above-determined number by a
fraction, the numerator of which is the number of months during the subject
Award Period that the Participant was an active Employee, and the denominator of
which is the number of months in the Award Period. This product shall be
reduced by any Performance Shares for which payment has been made with respect
to any Interim Period during each Award Period. In this instance, the Fair
Market Value of the Common Stock shall be based on the twenty (20) days
immediately preceding the date of death or the date of the determination of
total and permanent disability.
8. Retirement Prior to Close of an Award Period. If, prior to the close of an
Award Period, a Participant's employment terminates by reason of his retirement
on or after his normal retirement date (as determined under the Company's
Pension Plan) or prior to his normal retirement date if such retirement was at
the request of his employer, payment of the Participant's outstanding Award or
Awards will be made as promptly as possible after such retirement and such
payment shall be computed in the same manner as in Section 7, using the
effective date of retirement in place of the date of death or determination of
total and permanent disability.
9. Termination Under Certain Circumstances. If, prior to the close of an
Award Period, a Participant's employment terminates by reason of (i) his
retirement prior to his normal retirement date (as determined under the
Company's Pension Plan) and such retirement was at the request of the
Participant and approved in writing by his employer, (ii) the divestiture by the
Company of one or more of its business segments or a significant portion of the
assets of a business segment, or (iii) a significant reduction by the Company in
its salaried work force, the determination of whether such Participant shall
receive payment of his outstanding Award or Awards shall be within the exclusive
discretion of the Committee. Payment, if any, of his Award or Awards to such
Participant shall be made as of the close of each such Award Period by
multiplying the amount of payment otherwise due under the Award at that date had
the Participant remained employed through such date by a fraction, the numerator
of which is the number of months during the subject Award Period that the
Participant was an active Employee and the denominator of which is the number of
months in the Award Period.
10. Voluntary Termination or Discharge. If, prior to the close of an Award
Period, a Participant's status as an Employee terminates and there is no payment
due under the terms of Sections 7, 8, 9, or 20, all of such Participant's
outstanding Performance Shares shall forthwith and automatically be canceled and
all rights of the former holder of such canceled Performance Shares in respect
to such canceled Performance Shares shall forthwith terminate.
11. Limitation on Awards and Payments. The maximum number of Performance
Shares which may be awarded under the Plan shall not exceed an aggregate of
400,000 (except as adjusted in accordance with Section 18); provided, however,
that since January 1, 1996 for the term of the Plan, payments of Awards shall
involve no more than 400,000 shares of Common Stock (similarly adjusted in
accordance with Section 18). If any Performance Shares awarded under the Plan
are not paid because of death, total and permanent disability, retirement,
voluntary termination, discharge or
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cancellation or because they lapse when conditions to their payment are not met,
they shall thereupon become available again for award under the Plan.
12. Term of Plan. This Plan was originally effective January 1, 1996 as it was
approved by the stockholders of the Company at the Annual Meeting of
Stockholders held on June 6, 1996. This Plan was first amended pursuant to an
Amendment approved by the Board of Directors of the Company at a meeting held on
April 16, 1998. This Restated Plan shall be effective April 20, 2000, as it was
approved by the Board of Directors of the Company at a meeting held on April 20,
2000. The Board of Directors of the Company may terminate the Plan at any time.
If not sooner terminated, the Plan will expire on the date on which all of the
Performance Shares subject to award under the Plan have been paid, but no grant
of Awards may be made after December 31, 2005. Termination or expiration shall
not adversely affect any right or obligation with respect to an Award
theretofore made.
13. Cancellation of Performance Shares. With the written consent of a
Participant holding Performance Shares granted to him under the Plan, the
Committee may cancel such Performance Shares. In the event of any such
cancellation, all rights of the former holder of such canceled Performance
Shares in respect to such canceled Performance Shares shall forthwith terminate;
and in no such event may such Participant be granted another Award within twelve
months thereafter.
14. No Assignment of Interest. The interest of any Participant in the Plan
shall not be assignable, either by voluntary assignment or by operation of law,
and any assignment of such interest, whether voluntary or by operation of law,
shall render the Award void, except that cash or shares of Common Stock payable
under the Plan shall be transferable by testamentary will or by the laws of
descent and distribution. All shares of Common Stock paid pursuant to this Plan
are to be taken subject to an investment representation by the Participant or
other recipient that any such shares are acquired for investment and not with a
view to distribution and that such shares shall not be transferred or sold until
registered in compliance with the Securities Act of 1933 or unless an exemption
therefrom is available in the opinion of the counsel for the Company.
15. Designation of Beneficiary. Each Participant may designate a beneficiary
or beneficiaries (which beneficiary may be an entity other than a natural
person) to receive any payments which may be made following the Participant's
death. Such designation may be changed or canceled at any time without the
consent of any such beneficiary. Any such designation, change or cancellation
must be made in a form approved by the Compensation Committee and shall not be
effective until received by the Compensation Committee. If no beneficiary has
been named, or the designated beneficiary or beneficiaries shall have
predeceased the Participant, the beneficiary shall be the Participant's spouse
or, if no spouse survives the Participant, the Participant's estate. If a
Participant designates more than one beneficiary, the rights of such
beneficiaries shall be payable in equal shares, unless the Participant has
designated otherwise.
16. Employment Rights. An Award made under the Plan shall not confer any right
on the Participant to continue in the employ of the Company or any subsidiary or
limit in any way the right of his employer to terminate his employment at any
time.
17. Expenses. The expenses of administering the Plan shall be borne by the
Company.
18. Dilution, Recapitalization and Other Adjustments. In case the Company
shall at any time issue any shares of Common Stock (i) in a stock split or other
increase of outstanding shares of Common Stock, by reclassification or
otherwise, whereby the par value of shares is reduced, or (ii) in payment of a
stock dividend, the number of Performance Shares which have been awarded but not
paid, the maximum number of Performance Shares which may be awarded under
the Plan, and the maximum number of shares of Common Stock which may be issued
in payment of the Awards (see Section 11) shall be increased proportionately;
and in like manner, in case of any combination of shares of Common Stock, by a
reverse stock split, reclassification or otherwise, the number of Performance
Shares which have been awarded but not paid, the maximum number of Performance
Shares which may be awarded under
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the Plan, and the maximum number of shares of Common Stock which may be issued
in payment of the Awards shall be reduced proportionately.
19. Amendment and Termination of the Plan. The Board of Directors of the
Company may amend, suspend or terminate the Plan at any time; provided, however,
that no amendment may, without stockholder approval, increase the total number
of Performance Shares which may be awarded or paid under the Plan or change the
definition of Performance Share.
20. Plan Termination. The Board of Directors may terminate the Plan at any
time in their discretion and in such event no Awards shall be made after the
date of such Plan Termination. Payment of all Awards outstanding at the date of
Plan Termination shall be made as promptly as possible after such date and
payment of each such Award shall be computed in the same manner as in Section 7
using the effective date of Plan Termination in place of the date of death or
the date of the determination of total and permanent disability, except that the
Common Stock will be priced at Fair Market Value based on the twenty (20)
trading days immediately preceding the date of Plan Termination.
21. Change in Control. In the event of a Change in Control, each Participant
shall be deemed to have earned Performance Shares with respect to each of his or
her Awards outstanding at the date of such Change in Control. The number of
Performance Shares so earned shall be computed by determining (based on the
conditions set by the Committee for payment of Awards for the subject Award
Period) the number of Performance Shares that would have been paid if each
subject Award Period had ended on the December 31st immediately preceding the
Change of Control provided that in no event shall the number of Performance
Shares earned be less than the aggregate number of Performance Shares at the
target performance level (as identified in the applicable award letter) with
respect to all such Awards. Thus, in the event of a Change in Control, the
minimum Performance Shares to be awarded shall be equal to the aggregate number
of Performance Shares that would have been awarded at the end of the Award
Period(s) if the target performance level(s) applicable thereto had been met.
Performance Share Awards granted in the year of the Change in Control shall be
earned at the same percentage as Awards granted in the year preceding the year
of the Change in Control. Each Performance Share so earned shall be canceled
in exchange for an immediate payment in cash of an amount equal to the Change
in Control Price.
For purposes of this Section 21, the following terms shall have the
meanings ascribed thereto:
"Change in Control" means (i) acquisition by any person (within the
meaning of Section 13(d) of the Securities Exchange Act of 1934 (the
"Exchange Act")) of beneficial ownership (within the meaning of Rule 13d-3
under the Exchange Act) of 20% or more of the Common Stock then
outstanding; or (ii) the consummation of (A) any consolidation or merger of
the Company in which the Company is not the continuing or surviving
corporation or pursuant to which shares of the Common Stock are converted
into cash, securities or other property, other than a merger of the Company
in which the holders of Common Stock immediately prior to the merger have
the same proportionate ownership of common stock of the surviving
corporation immediately after the merger as they had in Common Stock
immediately prior to the merger, or (B) any sale, lease, exchange or other
transfer (in one transaction or a series of related transactions) of all,
or substantially all, of the assets of the Company, including, without
limitation, any sale, lease, exchange or other transfer (in one transaction
or a series of related transactions) of all or substantially all, of the
assets of the Company.
"Change in Control Price" means the greater of (x) the price per share
of Common Stock immediately preceding any transaction resulting in a Change
in Control or (y) the highest price per share of Common Stock offered in
conjunction with any transaction resulting in a Change in Control (as
determined in good faith by the Committee if any part of the offered price
is payable other than in cash).
22. Construction. The use of the masculine gender herein shall be deemed to
refer to the feminine as well. All headings are included for convenience of
reference and shall not be deemed a part of this Plan.
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23. Interpretation. Notwithstanding anything else contained in this Plan to
the contrary, if any Award of Performance Shares is intended, at the time of
grant, to be other performance based compensation within the meaning of Section
162(m)(4)(C) of the Code, to the extent required to so qualify any award
hereunder, the Committee shall not be entitled to exercise any discretion
otherwise authorized under this Plan with respect to such Award if the ability
to exercise such discretion (as opposed to the exercise of such discretion)
would cause such Award to fail to qualify as other performance based
compensation.
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