EXHIBIT 10.29
NBD BANCORP, INC.
PERFORMANCE INCENTIVE PLAN
(As Amended March 21, 1994)
SECTION 1 - PURPOSE
The NBD BANCORP, INC. PERFORMANCE INCENTIVE PLAN (hereinafter called the
"Plan") is a plan to provide long term incentive compensation to certain current
and former key officers and employees of NBD Bancorp, Inc. (hereinafter called
the "Corporation") and of its affiliated entities (hereinafter, including the
Corporation, called "participating affiliates") based upon such officers' and
employees' individual contributions to the long term growth and profitability of
the Corporation, in order to encourage their identity with shareholder concerns
and their current and continuing interest in the development and financial
success of the Corporation. Because it is expected that the efforts of the
officers and employees selected for participation in the Plan will have a
significant impact on the results of the Corporation's operations in future
years, the Plan is intended to assist the Corporation in attracting and
retaining as officers and employees individuals of superior ability and in
motivating their activities on behalf of the Corporation.
SECTION 2 - DEFINITIONS
(a) The term "affiliated entities" shall mean those corporations and
partnerships in which the Corporation owns directly or indirectly a significant
equity interest as defined under generally accepted accounting principles.
(b) The term "Code" shall mean the Internal Revenue Code of 1986, as the
same may be from time to time amended.
(c) The term "Committee" shall mean the Compensation Committee of the
Board of Directors of the Corporation, the members of which shall be
"disinterested persons"' under Rule 16b-3 of the Securities and Exchange
Commission (or any successor regulation issued under federal securities laws)
and shall be ineligible to participate in the Plan.
(d) The term "company stock" shall mean shares of the common capital stock
of the Corporation available for award or awarded, or subject to options or
rights granted, under the Plan.
(e) The term "market value" shall mean for a share of company stock as of
any date the mean between the highest and lowest sale prices for the company
stock as reflected in the New York Stock Exchange Composite Transactions
Quotations for that date, or if there is no sale on such date, then on the next
preceding date on which a sale has occurred.
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(f) The term "options" shall mean collectively the incentive stock options
and the non-qualified options available for grant or granted under Section 10 of
the Plan.
(g) The term "optionee" means any person to whom an option or right has
been granted or who becomes a holder of an option or right under Section 10 of
the Plan.
(h) The term "performance share" shall mean one share of company stock
available for award or awarded under Section 8 of the Plan.
(i) The term "rights" shall mean the stock appreciation rights available
for grant or granted in connection with options under Section 10 of the Plan.
(j) The term "share unit" shall mean a unit available for award under the
Plan having a cash value upon distribution equal to the market value of one
share of company stock on the distribution date.
SECTION 3 - EFFECTIVE DATE AND DURATION
Subject to the approval of the Plan by the shareholders of the
Corporation, the Plan shall be generally effective as of January 1, 1988. The
Plan shall continue until it is terminated by the Board of Directors as provided
in Section 12.
SECTION 4 -ADMINISTRATION
The Committee shall be responsible for the general operation and
administration of the Plan and shall have the authority to interpret the Plan
and to adopt administrative rules and regulations governing its operation. The
Committee may delegate the performance of administrative functions to the
Secretary of the Committee.
SECTION 5 - PARTICIPATION, STOCK AWARDS AND OPTION GRANTS
(a) Each year, the Committee shall designate as participants in the Plan
those officers and employees of the participating affiliates and those former
officers and employees who have a consulting arrangement with the Corporation
whom the Committee determines to have significant responsibility for the success
and future growth and profitability of the Corporation.
(b) Each year, the Committee may award shares of company stock,
performance shares, share units, and/or may grant stock options that qualify as
"incentive stock options" within the meaning of Section 422 of the Code or stock
options that do not qualify as incentive stock options and/or stock appreciation
rights for use in connection with options to each current and former officer and
employee whom it has designated as a participant for such year. Upon the
approval by the Board of Directors of the Corporation of the individual awards
and/or grants, if any, made to executive officers and of the total of all awards
and grants made to all other persons, the determination of the Committee as to
each such award and grant shall become final.
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SECTION 6 - SHARES RESERVED UNDER THE PLAN
There is hereby reserved for award and/or grant under the Plan an
aggregate number of whole shares of company stock equal as nearly as possible
to, but not more than, 5% of the aggregate shares of company stock outstanding
on the first day of January of each year, less the number of shares and share
units awarded or subject to options granted under the Plan during the
immediately preceding four-calendar-year period that have not been forfeited. Of
such aggregate number, no more than 1,000,000 shares of company stock shall be
available for the grant of incentive stock options under the Plan. Shares of
company stock may be authorized but unissued shares, treasury shares, shares
acquired in the open market, or any combination of the foregoing, and if
acquired in the open market, shall be acquired by an agent independent of the
participating affiliates. Any shares of company stock (including performance
shares), share units, or options that are forfeited pursuant to Sections 8(f) or
(g), 9(d) or (e), or 10(h) of the Plan and, to the extent permissible for
purposes of allowing the Plan to continue to be considered as described under
Rule 16b-3 under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), any shares of company stock that are used for full or partial payment of
the purchase price of shares with respect to which an option is exercised
pursuant to Section 10 of the Plan may thereafter again be awarded or made
subject to grant under the Plan. In the event of any change in the outstanding
shares of the common capital stock of the Corporation by reason of a stock
dividend, stock split, recapitalization, merger, consolidation, combination or
exchange of shares, or other similar change, the Committee may make appropriate
adjustments in the aggregate number of shares of company stock (including
performance shares) and share units already awarded or made subject to options
granted or reserved for award or grant under the Plan, in the prices of options
granted, or provide for the substitution of other securities of the class
exchanged for common capital stock of the Corporation in any merger or
consolidation.
SECTION 7 - SHARES AWARDED AND OPTIONS GRANTED UNDER THE PLAN
(a) Shares of company stock (including performance shares), share units,
options and/or rights awarded or granted to a participant may not be sold,
transferred, alienated or assigned (other than by will or the laws of descent
and distribution) during the award period, performance period and/or exercise
period established with respect to such shares, but nothing contained in this
sentence shall preclude the sale or other transfer of shares of company stock
obtained by the proper exercise of any option. During the lifetime of an
optionee, the option or right shall be exercisable only by the optionee
personally or by the optionee's legal representative.
(b) Subject to the vesting provisions of Sections 8(e) and 9(c), shares of
company stock awarded to a participant will become freely transferable by the
participant only at the end of the award period or performance period
established with respect to such shares.
(c) The vesting of awards of shares of company stock (including
performance shares) and/or share units in, and the exercise of options and/or
rights by, a participant under this Plan shall be subject to satisfaction of the
conditions precedent that the participant refrain from engaging in any activity
that, in the opinion of the Committee, is competitive with any activity of the
Corporation or
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any of the participating affiliates (except that employment at the request of
the Corporation with an entity in which the Corporation has, directly or
indirectly, a substantial ownership interest, or other employment specifically
approved by the Committee, shall not be considered to be an activity that is
competitive with any activity of the Corporation or any of the participating
affiliates) and from otherwise acting, either prior to or after termination of
employment, in any manner inimical or in any way contrary to the best interests
of the Corporation and that the participant furnish to the Corporation such
information with respect to the satisfaction of the foregoing conditions
precedent as the Committee shall reasonably request. Any shares of company stock
awarded or issued under the Plan may be made subject to such other conditions or
restrictions as the Committee deems advisable, including without limitation,
provisions to comply with federal and state securities laws.
(d) Whenever shares of company stock are awarded to a participant, such
shares shall be outstanding, and stock certificates may be issued in the name of
the participant or a book entry may be made by the Corporation's stock transfer
agent for the account of the participant, which certificates and/or account
shall bear a legend stating that the shares are issued subject to the
restrictions set forth in the Plan. Any certificates actually issued for shares
of company stock awarded under the Plan shall be deposited for the benefit of
the participant with NBD Bank, N.A., as custodian until such time as the shares
are vested and transferable.
(e) A participant who is awarded shares of company stock under Section 8
or Section 9 of the Plan shall have full voting rights on such shares, whether
or not the shares are vested or transferable.
(f) Shares of company stock awarded to a participant under Section 8 or
Section 9 of the Plan, whether or not vested or transferable, shall have full
dividend rights with respect to dividends declared after the award, with such
dividends being paid directly to the participant. If all or part of a dividend
is paid in the form of shares of common capital stock of the Corporation, such
shares shall be issued in the same manner, and subject to the same deposit
requirements, vesting provisions and transferability restrictions as the shares
of company stock that are the basis for the dividend. Like requirements,
provisions and restrictions shall be applicable to shares or securities issued
as a result of a merger, consolidation or similar event. A participant to whom
share units have been awarded may be given by the Committee the right to receive
during the performance or award period as additional compensation cash in an
amount equal to the product of (i) the per share dividend on company stock that
is declared after the award of share units and (ii) the number of share units
awarded to such participant, and in such case such sums shall be payable
directly to the participant at the same time as dividends on company stock are
paid.
SECTION 8 - PERFORMANCE AWARDS AND PERIODS
(a) Participants eligible to receive awards of performance shares and/or
share units under the Plan shall be selected by the Committee from among the
more senior officers of the Corporation and its participating affiliates. For
officers who are "covered employees" under Section 162(m) of the Internal
Revenue Code of 1986, as amended, and related regulations, the Committee shall
administer awards under this Section 8 of the Plan in accordance with the
provisions of Appendix A.
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(b) Effective January 1, 1988, and each year thereafter, the Committee
shall establish a performance period of no less than one (1) year and no more
than five (5) years in duration for the award of performance shares, which
period shall begin on the first day of January of the first year of the period
and shall end on the last day of December of the final year of such period. At
the beginning of a performance period, the Committee shall make such award or
awards of performance shares or share units to each selected participant as it
determines. During a performance period the Committee may increase awards of
performance shares or share units to such selected participants whose increased
corporate responsibilities warrant, in the judgment of the Committee, such
increase and may make awards of performance shares or share units to such newly
selected participants whose corporate responsibilities warrant, in the judgment
of the Committee, such award.
(c) As of the beginning of each performance period, the Committee shall
establish one or more business performance goals for that period, and the weight
to be given to each such goal. In setting performance goals, the Committee may
take into account performance in comparison with such peer financial
institutions as may be selected by the Committee for that purpose. The Committee
may, from time to time thereafter, make appropriate adjustments in performance
goals to reflect major unforeseen transactions, events or circumstances that
alter or affect such goals.
(d) As soon as practicable after the end of each performance period, the
Committee shall determine the extent to which the performance goals for that
period were attained and shall make the distributions, if any, prescribed in
Section 8(h).
(e) If a participant has received an award pursuant to the provisions of
Section 8(b) of the Plan and is employed by the participating affiliates at the
end of a performance period and the Committee determines that the performance
goals for such performance period were fully met, the participant shall be fully
vested at the end of the performance period in the number of performance shares
or share units awarded to the participant for that performance period. In the
event that the Committee determines that the performance goals for such
performance period were only partially met or were unmet, then the Committee
will determine what portion of the performance share or share unit award, if
any, will be distributable for such performance period, and the balance of the
participant's performance share or share unit award, if any, shall be forfeited
to the Corporation as of the last day of the performance period. In the event
that the Committee determines that the satisfaction the performance goals for
such performance period so warrant, the Committee may for that performance
period make additional awards of performance shares or share units to such
selected participants as the Committee determines, which additional performance
shares and/or share units shall be fully vested and nonforfeitable.
(f) Unless the Committee provides otherwise, in the event that before the
end of a performance period a participant dies, becomes totally and permanently
disabled, or retires at normal retirement age, or with the consent of the
participating affiliate with which he or she is employed retires at early
retirement age under a retirement plan maintained by a participating affiliate,
the participant, or the participant's beneficiary or estate in the event of the
participant's death, will be vested as of the day on which such death,
disability or retirement occurs in the number of performance shares or share
units the participant would have received had the participant's
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employment with the participating affiliate continued to the end of the
performance period, but proportionately reduced to reflect the shorter period of
employment. The balance of performance shares or share units awarded to the
participant for such performance period shall be forfeited to the Corporation as
of the last day of the performance period. In the event of the death of the
participant before the end of a performance period, the Committee may elect to
advance the distribution date.
(g) Unless the Committee provides otherwise, if a participant should
terminate employment with the participating affiliates before the end of a
performance period for a reason other than death, total and permanent
disability, or retirement, all performance shares or share units awarded to the
participant for which the applicable performance period has not ended shall
automatically be forfeited to the Corporation as of the date of termination of
employment.
(h) Except as otherwise provided for in Section 8(f), distribution of
vested performance shares shall be made as soon as practicable after the last
day of the applicable performance period in the form of full shares of company
stock, with fractional shares, if any, being distributed in cash, and
distribution of vested share units shall be made on the same date to the
participant entitled thereto in cash, or in shares of company stock if the
Committee shall so determine.
SECTION 9 - RESTRICTED AWARDS AND PERIODS
(a) Participants eligible to receive awards of company stock or share
units under this Section 9 shall be selected by the Committee from among the
officers and employees of the Corporation and its participating affiliates and
shall exclude, except by special Committee action, any of the more senior
officers selected for participation in the Plan under Section 8.
(b) Each year, the Committee shall establish one (1) or more award periods
for the shares of company stock to be awarded to those participants selected by
the Committee for such awards under this Section 9 during that year. At the
beginning of an award period, the Committee shall make such award or awards of
shares of company stock and/or share units to each selected participant as it
determines. Each award period must extend for at least twelve (12) months after
the date of the award.
(c) If a participant has received an award pursuant to the provisions of
Section 9(b) of the Plan and is employed by a participating affiliate at the end
of the award period, the participant shall be fully vested, at the end of the
award period, in the shares of company stock or share units awarded to the
participant for that award period.
(d) Unless the Committee provides otherwise, in the event that before the
end of an award period a participant dies, becomes totally and permanently
disabled, or retires at normal retirement age, or with the consent of the
participating affiliate with which he or she is employed retires at early
retirement age under a retirement plan maintained by a participating affiliate,
the participant, or the participant's beneficiary or estate in the event of the
participant's death, will be vested, as of the day on which such death,
disability or retirement occurs, in the number of shares of company stock or
share units the participant would have received had the participant's employment
with the
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participating affiliate continued to the end of the award period, but
proportionately reduced to reflect the shorter period of employment. The balance
of the shares of company stock or share units awarded to the participant shall
be forfeited to the Corporation as of the last day of the award period. The
Committee may provide in such cases for accelerated distribution of awards made
pursuant to the provisions of this Section 9.
(e) Unless the Committee provides otherwise, if a participant should
terminate employment with a participating affiliate before the end of an award
period for a reason other than death, total and permanent disability, or
retirement, all shares of company stock or share units awarded to the
participant for which the applicable award period has not ended shall
automatically be forfeited to the Corporation as of the date of his or her
termination of employment.
(f) Except as otherwise provided for in Section 9(d), distribution of
vested awards of company stock shall be made as soon as practicable after the
last day of the applicable award period in the form of full shares of company
stock, with fractional shares, if any, being awarded in cash, and distribution
of vested share units shall be made on the same date to the participant entitled
thereto in cash, or in shares of company stock if the Committee shall so
determine.
SECTION 10 - GRANTS OF OPTIONS AND RIGHTS
(a) Participants eligible to receive grants of options and/or rights under
this Section 10 shall be selected by the Committee from among the officers and
employees of the Corporation and its participating affiliates and from former
officers and employees who have a consulting arrangement with the Corporation,
and may include officers selected for participation under Section 8 or officers
and employees selected for participation under Section 9 of the Plan. The
Committee may grant more than one option or right to any eligible current or
former officer or employee; but no more than five-tenths of one percent (0.5%)
of the average of the aggregate shares of company stock outstanding on the first
day of January of each of the preceding five years shall be granted subject to
option and/or right during each rolling five-year period to any individual
current or former officer or employee.
(b) The Committee shall determine the eligible participants to whom, and
the time or times at which, options and rights will be granted, the number of
shares to be subject to each option, the duration of each option or right, the
time or times within which the option or right may be exercised, the
cancellation of the option or right (with the consent of the holder thereof) and
the other conditions of the grant of the option or right. The provisions and
conditions of the grants of options and rights need not be the same with respect
to each optionee or with respect to each option or each right.
(c) Except as otherwise specifically provided herein, options granted
pursuant to the Plan shall be subject to the following terms and conditions:
(i) Option Price. At the time the Committee approves the grant, the
Committee shall determine the option price that shall be not less than one
hundred percent (100%) of the market value of the company stock on the date of
Committee approval of the grant.
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(ii) Payment. The option price shall be paid in full at the time of
exercise. No shares shall be issued until full payment has been received
therefor. Payment may be in cash or, with the prior approval of and upon the
conditions established by the Committee, by delivery of shares of company stock
owned by the optionee; provided, however, that company stock acquired by the
optionee through the exercise of an incentive stock option may not be used for
payment prior to the expiration of the holding periods prescribed in Section
422(a)(1) of the Code. If payment is made by the delivery of shares of company
stock, the value of the shares on the date of exercise shall be the market value
on such day.
(iii) Duration of Options. The duration of options shall be determined by
the Committee, but in no event shall the maximum duration of an incentive stock
option exceed ten (10) years from the date of its grant.
(iv) Restoration Options. The Committee may provide that an option include
the right to receive a restoration option. An option that provides for the grant
of a restoration option shall entitle the participant, upon exercise of the
option prior to retirement of the participant and payment of the option price in
shares of company stock that have been owned by the participant for not less
than six months prior to the date of exercise, to receive a restoration option.
In addition to any other terms and conditions the Committee deems appropriate,
the restoration option shall be subject to the following terms: the number of
shares shall not exceed the number of whole shares delivered in payment of the
original option, the date of grant will be the date of the exercise of the
original option, the exercise price shall not be less than 100% of the market
value of the company stock on the date of the grant of the restoration option,
the option may not be exercised for at least six months after grant, the option
term will not extend beyond the term of the original option, and the restoration
option shall be a non-qualified option.
(v) Other Terms and Conditions. Options may contain such other provisions,
not inconsistent with the provisions of the Plan, as the Committee shall
determine to be appropriate from time to time; provided, however, that no option
shall be exercisable in whole or in part for a period of twelve (12) months from
the date on which the option is granted. Options shall be exercisable in full or
in such cumulative installments as shall be determined by the Committee on the
grant of the option. If an option shall be exercisable in installments, the
Committee may, in its discretion, provide for other events in which all
installments shall become immediately exercisable if any installment be
presently exercisable.
(vi) Incentive Stock Options. The Committee, with respect to each grant of
an option to an optionee, shall determine whether such option shall be an
incentive stock option, and, upon determining that an option shall be an
incentive stock option, shall designate it as such in the written instrument
evidencing such option. If the written instrument evidencing an option does not
contain a designation that it is an incentive stock option, it shall contain a
designation that it is a non-qualified option.
The Committee may not grant a participant incentive stock options in the
aggregate that are
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first exercisable during any one calendar year with respect to company stock the
aggregate market value of which exceeds $100,000, taking into account all stock
option plans of the Corporation and any parent or subsidiary entities.
(d) The Committee may grant a right to an optionee of any option granted
under the Plan with respect to some or all of the company stocked covered by
such option. A right may be granted either at the time of grant of the option or
at any time thereafter during its term. Each right shall be exercisable only if
and to the extent that the related option is then exercisable; provided, no
right may be exercised until a date at least six (6) months subsequent to the
date of grant of the right. Upon the exercise of a right, the related option
will cease to be exercisable to the extent of the company stock with respect to
which such right is exercised, but shall be considered to have been exercised to
that extent for purposes of determining the number of shares available for the
grant of further awards and/or options pursuant to the Plan. Upon the exercise
or termination of an option, the right with respect to such option shall
terminate to the extent of the shares of company stock with respect to which the
option was exercised or terminated.
(e) For purposes of this Section 10, the word "increment" means with
respect to the exercise of any right associated with an option an amount equal
to the product computed by multiplying (i) the excess of (A) the market value on
the date such right is exercised over (B) the market value on the date the
related option was granted by (ii) the number of shares of company stock with
respect to which such right is being exercised.
(f) Subject to the approval of the Committee, an optionee upon the
exercise of a right may elect to receive either: (i) a number of shares of
company stock equal to the quotient computed by dividing the increment by the
market value on the date of exercise of the right, provided, however, that cash
will be paid in lieu of any fractional share and that the total number of shares
of company stock will not exceed the total number of shares subject to the
related option, or (ii) an amount in cash equal to the increment, or (iii) a
combination of cash in the amount specified by the optionee, and the number of
shares of company stock calculated as provided in clause (i) of this Paragraph
(f), after reducing the increment that was utilized by such cash amount, plus
cash in lieu of any fractional share.
(g) Notwithstanding the provisions of Paragraph (f) of this Section 10,
the Committee may require that a cash payment election may be made only in the
period beginning on the third business day following the date of release for
publication of the quarterly and annual summary statements of earnings of the
Corporation and ending on the twelfth business day following such date. Such
restriction will be imposed on an optionee if it is required under the Exchange
Act.
(h) In the event that the employment of an optionee to whom an incentive
stock option has been granted under the Plan shall be terminated (except as set
forth below) such option may be exercised, to the extent that the option was
exercisable on the date of termination of employment, only until the earlier of
three (3) months after such termination or the original expiration date of the
option; provided, however, that any option held by an optionee whose employment
shall be terminated either (i) for cause or (ii) voluntarily by the optionee and
without the consent of the
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participating affiliate by which the optionee was employed (which consent shall
be assumed in the case of retirement at normal retirement age but not in the
case of early retirement) shall, to the extent not theretofore exercised,
forthwith terminate. If an optionee to whom an incentive stock option has been
granted under the Plan shall become disabled while employed and such disability
results in the termination of employment, such option may be exercised, to the
extent that the option was exercisable on the date of termination of employment,
by either the disabled optionee or such optionee's legal representative, as the
case may be, and the right to exercise the option shall terminate upon the
earlier of the expiration of twelve (12) months from the date of such
termination of employment or the original expiration date of the option. If an
optionee has been granted an option exercisable in installments, then,
notwithstanding the terms specifying the installments in which the option shall
be exercisable, upon the death or disability of the optionee at any time
subsequent to the expiration of the first year of the term of the option, the
option shall be exercisable within the time period set forth above as to all
shares of company stock remaining subject to the option. For the purposes of
this Section 10, the term "option" shall include any right related to the option
and the term "disabled" shall have the meaning contained within Section 22 (e)
(3) of the Code.
(i) In the event that the employment of an optionee to whom an option
other than an incentive stock option has been granted under the Plan shall be
terminated (except as set forth below), such option may be exercised, to the
extent that the option was exercisable on the date of termination of employment,
only until the earlier of such date after termination as provided by the
Committee on the grant of the option or the original expiration date of the
option; provided, however, that any option held by an optionee whose employment
shall be terminated either (i) for cause or (ii) voluntarily by the optionee and
without the consent of the participating affiliate by which the optionee was
employed (which consent shall be assumed in the case of retirement at normal
retirement age but not in the case of early retirement) shall, to the extent not
theretofore exercised, forthwith terminate. If an optionee to whom an option
other than an incentive stock option has been granted under the Plan shall
become disabled while employed or within six (6) months after the termination of
such employment (other than termination for cause or voluntarily by the optionee
and without the consent of the participating affiliate by which the optionee was
employed), such option may be exercised, to the extent that the option was
exercisable on the date of termination of employment, by either the disabled
optionee or such optionee's legal representative, as the case may be, and the
right to exercise the option shall terminate upon the earlier of such date
following termination of employment as provided by the Committee on the grant of
the option or the original expiration date of the option. If an optionee to whom
an option other than an incentive stock option has been granted under the Plan
shall die while employed or within six (6) months after the termination of such
employment (other than termination for cause or voluntarily by the optionee and
without the consent of the participating affiliate by which the optionee was
employed), such option may be exercised, to the extent that the option was
exercisable on the date of termination of employment, by either the executor,
administrator or personal representative of the optionee's estate or a
transferee of the option under Section 7(a) or a beneficiary designated under
Section 11(b), as the case may be, and the right to exercise the option shall
terminate upon the earlier of such date following termination of employment as
provided by the Committee on the grant of the option or the original expiration
date of the option. If an optionee has been granted an option exercisable in
installments, then, notwithstanding the terms specifying the installments in
which the option shall be exercisable, upon the disability or death of the
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optionee at any time subsequent to the expiration of the first year of the term
of the option, the option shall be exercisable within the time periods set forth
above as to all shares of company stock remaining subject to the option.
(j) An optionee or a transferee of an option pursuant to Section 7(a)
shall have no rights as a shareholder with respect to any company stock the
subject of either an unexercised or exercised option or right until the optionee
or transferee shall have become the holder of record of such stock, and no
adjustments shall be made for dividends in cash or other property or other
distributions or rights in respect of such stock for which the record date is
prior to the date on which the optionee or transferee shall have in fact become
the holder of record of the company stock acquired pursuant to the option or
right.
SECTION 11 - GENERAL
(a) If, in connection with the payment of any award hereunder in shares of
company stock or the exercise of any option or right hereunder, it is necessary
or desirable, to comply with any law or regulation of any governmental authority
relating to the issuance or sale of securities, that the participant receiving
such shares shall agree that the participant will take the shares for investment
and not with any present intention to resell the same and that the participant
will dispose of such shares only in compliance with such laws and regulations,
the participant shall, upon the request of the Committee, execute and deliver to
the Committee an agreement to such effect satisfactory to the Committee.
(b) If a participant dies prior to the receipt in full of any award under
the Plan to which the participant is entitled and/or prior to the exercise in
full of any option or right granted to the participant, the award or grant shall
be distributed to the participant's designated beneficiary or, in the absence of
a beneficiary designation, to the participant's estate. The designation of a
beneficiary shall be made in writing on a form prescribed by and filed with the
Secretary of the Committee.
(c) Neither the establishment of the Plan nor any provisions of the Plan
or modification thereof shall be held or construed as giving any participant in
the Plan the right to be retained in the service of any participating affiliate
and each participating affiliate expressly reserves its right to discharge any
such participant whenever the interests of such participating affiliate may so
require.
(d) A forfeiture of shares of company stock (including performance shares)
pursuant to Sections 8(e), (f) or (g) or 9(d) or (e) of the Plan shall effect a
complete forfeiture of voting rights, dividend rights and all other rights
relating to the award or grant as of the date of forfeiture.
(e) Each distribution of company stock under this Plan shall be made
subject to such federal, state and local tax withholding requirements as apply
on the distribution date. For this purpose, the Committee may provide for the
withholding of shares of company stock or allow a participant to tender back to
the Corporation shares of company stock received in such distribution.
(f) Notwithstanding any other provisions in the Plan, in the event of a
Change in Control (as
11
hereinafter defined) each participant shall be fully vested in the number of
shares of company stock (including performance shares) or share units awarded to
such participant for all award periods and/or performance periods that, upon
such event, have not yet ended, and all options and rights then outstanding
shall become immediately exercisable. Distribution of all shares of company
stock, and all cash with respect to which rights have become vested, or due
because of the exercise of options or rights, shall be made as soon as
practicable within sixty (60) days after the date of the Change in Control, as
if, in the case of awards under Section 8 and Section 9, the applicable award
period or periods and/or performance period or periods had ended on such date.
In addition, the Corporation shall reimburse a participant for legal fees and
expenses incurred by such participant in successfully seeking to obtain or
enforce any right to distribution under this Section 11(f) and in the event that
it shall be determined that such participant is entitled to a cash distribution
hereunder, such participant shall also be entitled to interest thereon payable
to such participant in an amount equivalent to the prime rate of interest of NBD
Bank, N.A., from time to time during the period from the date such distribution
should have been made to the date it is made.
For purposes of this Plan, a Change in Control shall occur if (i) any
"person" or "group" within the meaning of Section 13(d) and 14(d)(2) of the
Exchange Act becomes the "beneficial owner" as defined in Rule 13d-3 under the
Exchange Act of more than thirty percent (30%) of the then outstanding voting
securities of the Corporation otherwise than through a transaction or
transactions arranged by or consummated with the prior approval of the
Corporation's Board of Directors; or (ii) during any period of twenty- four (24)
consecutive months (not including any period prior to the adoption of this Plan)
Present Directors and/or New Directors cease for any reason to constitute a
majority of the Board. For purposes of subsection (ii) of the preceding
sentence, "Present Directors" shall mean individuals who at the beginning of
such consecutive twenty-four (24) month period were members of the Corporation's
Board and "New Directors" shall mean any director of the Corporation whose
election by the Corporation's Board or whose nomination for election by the
Corporation's shareholders was approved by a vote of at least two- thirds the
Corporation's Directors then still in office who were Present Directors or New
Directors. Notwithstanding any other provisions of the Plan, the provisions of
this Section 11(f) may not be amended after the date a Change in Control occurs
without the written consent of a majority in number of participants.
SECTION 12 - AMENDMENT, SUSPENSION AND TERMINATION
The Board of Directors of the Corporation reserves the right at any time
to amend, suspend, or terminate the Plan; provided, however, no such amendment,
suspension or termination shall adversely affect any award or grant then in
effect unless the prior approval of the participant so affected is obtained. No
amendment of the Plan shall, without approval of the shareholders of the
Corporation, (a) increase the aggregate number of shares of company stock
(including performance shares) that are reserved for award and/or grant under
the Plan (except as provided in Section 6), (b) change the group of eligible
employees under the Plan, (c) change the manner of determining the option price
or the amount payable upon exercise of a right, or (d) increase the maximum
duration of an option.
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SECTION 13 - GOVERNING LAW
The Plan and all determinations made and action taken pursuant thereto
shall be governed by the laws of the State of Michigan and construed in
accordance therewith.
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NBD BANCORP, INC.
PERFORMANCE INCENTIVE PLAN
Appendix A
The following provisions have been disclosed to and approved by the
shareholders of the Corporation at the annual meeting held on May 16, 1994:
The performance-based long-term incentive criteria for the chief executive
officer and the next four highest paid executive officers (the "class of
employees" covered) provide for annual grants of performance shares, starting in
1994, that will be earned out 0-100% at the end of a four-year performance
period based on NBD's average return on equity ("ROE") in comparison to average
ROE during the period at peer banking institutions selected by the Committee
(the "performance measure").
TARGET AND MAXIMUM AWARDS. Each participating officer is assigned a target
award at the start of each performance period stated as a percent of salary.
Under the criteria, the Committee is able to grant a maximum target award of
100% of the salary stated in the Corporation's proxy statement for the first
year of the performance period. The target award is multiplied by the
participant's salary and divided by the fair market value of a share of the
Corporation's Common Stock at the start of each performance period to determine
a target number of performance shares. If average ROE during the performance
period is at or above the goal, the target number of performance shares will be
earned. The target number of shares is also the maximum number of shares (the
"maximum award"). If ROE performance is below the goal, individual awards will
be less than the target, down to an ROE threshold below which all performance
shares will be forfeited.
DEFINITIONS. For purposes of determining awards, "Return on Equity" is
calculated by dividing "Net Income" by "Stockholders' Equity" for the year. "Net
Income" is defined as consolidated net income as reported in the Corporation's
audited financial statements for the year, before any extraordinary, unusual or
non-recurring items of gain or loss that are identified and quantified
separately in the audited financial statements, net of tax effect, and after any
preferred dividends. The Compensation Committee retains the right in its
discretion to reduce Net Income for purposes of the performance-based long-term
incentive criteria if it believes that such Net Income produces a level of
payout above the level warranted by management performance. It may not, however,
increase Net Income or individual awards above the level produced by the
calculations. "Stockholders' Equity" is the Corporation's common stockholders'
equity on its consolidated balance sheet at the end of the preceding year.
TERM OF CRITERIA. The term of the performance-based long-term incentive
criteria is five years, 1994 through 1998, unless sooner terminated or amended
by the Board. Any amendment that would materially change the "class of
employees" covered, the "performance measure," or the "maximum award" payable is
subject to stockholder approval.