EXHIBIT 99.1
EVERGREENBANCORP, INC.
AMENDED 2000 STOCK OPTION PLAN
SECTION 1. Purpose. The purpose of this EvergreenBancorp, Inc. 2000 Stock
Option Plan (this "Plan") is to provide a means whereby EvergreenBancorp, Inc.
(the "Company") may continue to attract, motivate and retain selected employees,
officers, and directors (subject to the restrictions contained in Sections 2 and
4) and to encourage stock ownership in the Company through granting incentive
stock options and/or nonqualified stock options to purchase the Common Stock of
the Company (as defined in Section 3), so that such key employees will more
closely identify their interests with those of the Company and its shareholders.
SECTION 2. Administration. This Plan shall be administered by the Board of
Directors of the Company (the "Board") or, in the event the Board shall appoint
or authorize a committee to administer this Plan, by such committee. The
administrator of this Plan shall hereinafter be referred to as the "Plan
Administrator."
2.1 Procedures. The Board may designate one of the members of the
Plan Administrator as chairperson. The Plan Administrator may hold meetings at
such times and places as it shall determine. The acts of a majority of the
members of the Plan Administrator present at meetings at which a quorum exists,
or acts reduced to or approved in writing by all Plan Administrator members,
shall be valid acts of the Plan Administrator.
2.2 Responsibilities. Except for the terms and conditions
explicitly required in this Plan, the Plan Administrator shall have the
authority, in its discretion, to determine all matters relating to the options
to be granted under this Plan, including selection of the individuals to be
granted options, the number of shares to be subject to each option, the exercise
price, and all other terms and conditions of the options. Grants under this Plan
need not be identical in any respect, even when made simultaneously. The
interpretation and construction by the Plan Administrator of any terms or
provisions of this Plan or any option issued under this Plan, or of any rule or
regulation promulgated in connection with this Plan, shall be conclusive and
binding on all interested parties, so long as such interpretation and
construction with respect to incentive stock options correspond to the
requirements of Section 422 of the Internal Revenue Code (the "Code"), as
amended, and the regulations thereunder.
2.3 Section 16(b) Compliance and Bifurcation of Plan. It is the
intention of the Company that this Plan and options granted under this Plan
comply in all respects with Rule 16b-3 under the Exchange Act and, if any Plan
provision is later found not to be in compliance with such Rule, the provision
shall be deemed null and void, and in all events this Plan shall be construed in
favor of its meeting the requirements of Rule 16b-3. Notwithstanding anything in
this Plan to the contrary, the Board, in its absolute discretion, may bifurcate
this Plan so as to restrict, limit or condition the use of any provision of this
Plan to participants who are officers and directors subject to Section 16(b) of
the Exchange Act without so restricting, limiting or conditioning other Plan
participants.
1
SECTION 3. Stock Subject to This Plan. The stock subject to this Plan
shall be the Company's Common Stock (the "Common Stock"), presently authorized
but unissued or now held or subsequently acquired by the Company as treasury
shares. Subject to adjustment as provided in Section 7 of this Plan, the
aggregate amount of Common Stock to be delivered upon the exercise of all
options granted under this Plan shall not exceed 179,850 shares as such Common
Stock was constituted on the effective date of this Plan. If any option granted
under this Plan expires or is surrendered, exchanged for another option,
canceled or terminated for any reason without having been exercised in full, the
unpurchased shares subject to such option shall again be available for purposes
of this Plan, including for replacement options which may be granted in exchange
for such surrendered, canceled or terminated options. In no event shall a single
individual receive a grant, or series of grants, during a single calendar year
for more than 5,000 shares.
SECTION 4. Eligibility. An incentive stock option may be granted only to
an individual who, at the time the option is granted, is an employee of the
Company (or a related corporation) and who the Board may from time to time
select for participation in this Plan. Members of the Board shall not be
eligible for grants of incentive stock options unless they are also employees of
the Company. At the discretion of the Plan Administrator, employees, officers,
independent contractors and directors of the Company (including nonemployee
directors) may receive nonqualified stock options. Any party to whom an option
is granted under this Plan shall be referred to in this Plan as an "Optionee."
SECTION 5. Terms and Conditions of Options. Options granted under this
Plan shall be evidenced by written agreements which shall contain such terms,
conditions, limitations and restrictions as the Plan Administrator shall deem
advisable and which are not inconsistent with this Plan. Notwithstanding the
foregoing, options shall include or incorporate by reference the following terms
and conditions:
5.1 Number of Shares. The maximum number of shares that may be
purchased pursuant to the exercise of each option shall be as established by the
Plan Administrator.
5.2 Price of Shares. The price per share at which each option is
exercisable (the "exercise price") shall be as established by the Plan
Administrator, provided that the Plan Administrator shall act in good faith to
establish the exercise price as follows:
5.2.1 Incentive Stock Options. With respect to incentive stock
options intended to qualify under Section 422 of the Internal Revenue Code, and
subject to subsection 5.2.3 below, the exercise price shall be not less than the
fair market value per share of the Common Stock at the time the option is
granted.
5.2.2 Nonqualified Stock Options. With respect to nonqualified
stock options, the exercise price shall be the amount set by the Plan
Administrator.
5.2.3 Incentive Stock Options to Greater than 10%
Shareholders. With respect to incentive stock options granted to greater than
10% shareholders, the exercise price shall be as required by Section 6.
2
5.2.4 Fair Market Value. The fair market value per share of
the Common Stock for the purpose of determining the exercise price under this
Section 5.2 shall be determined by the Board in good faith at the time the
option is granted.
5.3 Term and Maturity. Subject to the restrictions contained in
Section 6 with respect to granting incentive stock options to greater than 10%
shareholders, the term of each incentive stock option shall be ten (10) years
from the date it is granted unless a shorter period of time is established by
the Plan Administrator. The term of each nonqualified stock option shall also be
ten (10) years from the date it is granted unless a shorter or longer period of
time is established by the Plan Administrator. To ensure that the Company or
related corporation will achieve the purpose and receive the benefits
contemplated in this Plan, any option granted to any Optionee under this Plan
shall, unless the condition of this sentence is waived or modified in the
agreement evidencing the option or by resolution adopted by the Plan
Administrator, be exercisable according to the following schedule:
Period of Optionee's Continuous
Relationship With the Company or
Related Corporation From Portion of Total Option
the Date the Option Is Granted Which Is Exercisable
- -------------------------------- -----------------------
after 1 year 20%
after 2 years 40%
after 3 years 60%
after 4 years 80%
after 5 years 100%
5.4 Exercise. Subject to the vesting schedule described in
subsection 5.3 above and to any additional holding period required by applicable
law, each option may be exercised in whole or in part; provided, however, that
only whole shares will be issued pursuant to the exercise of any option. During
an Optionee's lifetime, any incentive stock options granted under this Plan are
personal to him or her and are exercisable solely by such Optionee. Options
shall be exercised by delivery to the Company of notice of the number of shares
with respect to which the option is exercised, together with payment of the
exercise price.
5.5 Payment of Exercise Price. Payment of the option exercise
price shall be made in full at the time the notice of exercise of the option is
delivered to the Company and shall be in cash, Company certified or cashier's
check or personal check (unless at the time of exercise the Plan Administrator
in a particular case determines not to accept a personal check) for the Common
Stock being purchased.
The Plan Administrator can determine at the time the option is
granted for incentive stock options, or at any time before exercise for
nonqualified stock options, that additional forms of payment will be permitted,
including installment payments on such terms and over such period as the Plan
Administrator may determine in its discretion.
5.6 Withholding Tax Requirement. The Company or any related entity
shall have the right to retain and withhold from any payment of cash or Common
Stock under this
3
Plan the amount of taxes required by any government to be withheld or otherwise
deducted and paid with respect to such payment. At its discretion, the Company
may require an Optionee receiving shares of Common Stock to reimburse the
Company or a related entity for any such taxes required to be withheld and may
withhold any distribution in whole or in part until the Company, or related
entity, is so reimbursed. In lieu of such withholding or reimbursement, the
Company (or related entity) shall have the right to withhold from any other cash
amounts due or to become due from the Company (or related entity) to the
Optionee an amount equal to such taxes or to retain and withhold a number of
shares having a market value not less than the amount of such taxes required to
be withheld as reimbursement for any such taxes and cancel (in whole or in part)
any such shares so withheld.
5.7 Nontransferability of Option. Options granted under this Plan
and the rights and privileges conferred by this Plan may not be transferred,
assigned, pledged or hypothecated in any manner (whether by operation of law or
otherwise) other than by will or by the applicable laws of descent and
distribution. Options under this Plan shall not be subject to execution,
attachment or similar process. Any attempt to transfer, assign, pledge,
hypothecate or otherwise dispose of any option under this Plan or of any right
or privilege conferred by this Plan, contrary to the Code or to the provisions
of this Plan, or the sale or levy or any attachment or similar process upon the
rights and privileges conferred by this Plan shall be null and void.
Notwithstanding the foregoing, an Optionee may during the Optionee's lifetime,
designate a person who may exercise the option after the Optionee's death by
giving written notice of such designation to the Plan Administrator. Such
designation may be changed from time to time by the Optionee by giving written
notice to the Plan Administrator revoking any earlier designation and making a
new designation.
5.8 Termination of Relationship.
5.8.1 Termination Other Than Termination For Cause, Death or
Total Disability. If the Optionee's relationship with the Company or any related
corporation ceases for any reason other than termination for cause, death or
total disability, and unless by its terms the option sooner terminates or
expires, then the Optionee may exercise, for a three (3) month period after such
cessation, that portion of the Optionee's option which is exercisable at the
time of such cessation. The Optionee's option, however, shall terminate at the
end of the three (3) month period following such cessation as to all Shares for
which it has not been exercised, unless such provision is waived in the
agreement evidencing the option or by resolution adopted by the Plan
Administrator. If, in the case of an incentive stock option, an Optionee's
relationship with the Company or related corporation changes (i.e., from
employee to nonemployee, such as a consultant), such change shall constitute a
termination of an Optionee's employment with the Company or related corporation
and the Optionee's incentive stock option shall terminate in accordance with
this subsection. Upon the expiration of the three (3) month period following
cessation of employment, the Plan Administrator shall have sole discretion in a
particular circumstance to extend the exercise period following such cessation
beyond that specified above. In the case of an incentive stock option, the
Optionee does not exercise the Optionee's option within three (3) months after
cessation of employment, the option will no longer qualify as an incentive stock
option under the Code.
4
5.8.2 Termination For Cause. If an Optionee is terminated for
cause, any option granted under this Plan shall automatically terminate as of
the first discovery by the Company of any reason for termination for cause, and
such Optionee shall have no right to purchase any shares pursuant to such
option. "Termination for cause" shall mean dismissal for willful material
misconduct or failure to discharge duties, conviction or confession of a crime
punishable by law (except minor violations), the performance of an illegal act
involving moral turpitude while purporting to act in the Company's behalf, or
engaging in activities directly in competition or antithetical to the best
interests of the Company. If an Optionee is suspended pending an investigation
of whether or not the Optionee shall be terminated for cause, all Optionee's
rights under any option granted under this Plan shall likewise be suspended
during the period of investigation.
5.8.3 Termination Because of Total Disability. If an
Optionee's relationship with the Company or any related corporation ceases
because of a total disability, the Optionee's option shall not terminate or, in
the case of an incentive stock option, cease to be treated as an incentive stock
option until the end of the 12-month period following such cessation (unless by
its terms it sooner terminates and expires). As used in this Plan, the term
"total disability" refers to a mental or physical impairment of the Optionee
which is expected to result in death or which has lasted or is expected to last
for a continuous period of 12 months or more and which causes the Optionee to be
unable, in the opinion of the Company and two independent physicians and after
reasonable accommodation, to perform his or her duties for the Company and to be
engaged in any substantial gainful activity. Total disability shall be deemed to
have occurred on the first day after the Company and the two independent
physicians have furnished their opinion of total disability to the Plan
Administrator.
5.8.4 Transfer of Relationship Between Company and Related
Corporation. For purposes of this subsection 5.8, a transfer of relationship
between or among the Company and/or any related corporation shall not be deemed
to constitute a cessation of relationship with the Company or any of its related
corporations.
5.8.5 Military Leave, Sick Leave and Bona Fide Leave of
Absence. For purposes of this subsection 5.8, with respect to incentive stock
options, employment shall be deemed to continue while the Optionee is on
military leave, sick leave or other bona fide leave of absence (as determined by
the Plan Administrator). The foregoing notwithstanding, employment shall not be
deemed to continue beyond the first 90 days of such leave, unless the Optionee's
reemployment rights are guaranteed by statute or by contract.
5.9 of Optionee. If an Optionee dies while he or she has a
relationship with the Company or any related corporation or dies within the
three (3) month period (or 12-month period in the case of totally disabled
Optionees) following cessation of such relationship, any option held by such
Optionee to the extent that the Optionee would have been entitled to exercise
such option, may be exercised within one year after his or her death by the
personal representative of his or her estate or by the person or persons to whom
the Optionee's rights under the option shall pass by will or by the applicable
laws of descent and distribution.
5.10 Status of Shareholder. Neither the Optionee nor any party to
which the Optionee's rights and privileges under the option may pass shall be,
or have any of the rights or
5
privileges of, a shareholder of the Company with respect to any of the shares
issuable upon the exercise of any option granted under this Plan unless and
until such option has been exercised.
5.11 Continuation of Employment. Nothing in this Plan or in any
option granted pursuant to this Plan shall confer upon any Optionee any right to
continue in the employ of the Company or of a related corporation, or to
interfere in any way with the right of the Company or of any related corporation
to terminate his or her employment or other relationship with the Company at any
time.
5.12 Modification and Amendment of Option. Subject to the
requirements of Code Section 422 with respect to incentive stock options and to
the terms and conditions and within the limitations of this Plan, the Plan
Administrator may modify or amend outstanding options granted under this Plan.
The modification or amendment of an outstanding option shall not, without the
consent of the Optionee, impair or diminish any of his or her rights or any of
the obligations of the Company under such option. Except as otherwise provided
in this Plan, no outstanding option shall be terminated without the consent of
the Optionee. Unless the Optionee agrees otherwise, any changes or adjustments
made to outstanding incentive stock options granted under this Plan shall be
made in such a manner so as not to constitute a "modification" as defined in
Code Section 424(h) and so as not to cause any incentive stock option issued
hereunder to fail to continue to qualify as an incentive stock option as defined
in Code Section 422(b).
5.13 Limitation on Value for Incentive Stock Options. As to all
incentive stock options granted under the terms of this Plan, to the extent that
the aggregate fair market value (determined at the time the incentive stock
option is granted) of the stock with respect to which incentive stock options
are exercisable for the first time by the Optionee during any calendar year
(under this Plan and all other incentive stock option plans of the Company, a
related corporation or a predecessor corporation) exceeds $100,000, those
options (or the portion of an option) beyond the $100,000 threshold shall be
treated as nonqualified stock options. The previous sentence shall not apply if
the Internal Revenue Service publicly rules, issues a private ruling to the
Company, any Optionee, or any legatee, personal representative or distributee of
an Optionee or issues regulations changing or eliminating such annual limit.
5.14 Shareholders' Agreement. To the extent required by the Plan
Administrator upon exercise of an option, the Optionee shall agree to enter into
and be bound by the agreement then in effect, if any, between the Company and
its shareholders relating to the repurchase by the Company of its outstanding
Common Stock, or a similar agreement that governs the Company's repurchase of
shares from Optionees under certain circumstances.
SECTION 6. Greater Than 10% Shareholders.
6.1 Exercise Price and Term of Incentive Stock Options. If
incentive stock options are granted under this Plan to employees who own more
than 10% of the total combined voting power of all classes of stock of the
Company or any related corporation, the term of such incentive stock options
shall not exceed five years and the exercise price shall be not less than 110%
of the fair market value of the Common Stock at the time the incentive stock
option is
6
granted. This provision shall control notwithstanding any contrary terms
contained in an option agreement or any other document.
6.2 Attribution Rule. For purposes of subsection 6.1, in
determining stock ownership, an employee shall be deemed to own the stock owned,
directly or indirectly, by or for his brothers, sisters, spouse, ancestors and
lineal descendants. Stock owned, directly or indirectly, by or for a
corporation, partnership, estate or trust shall be deemed to be owned
proportionately by or for its shareholders, partners or beneficiaries. If an
employee or a person related to the employee owns an unexercised option or
warrant to purchase stock of the Company, the stock subject to that portion of
the option or warrant which is unexercised shall not be counted in determining
stock ownership. For purposes of this Section 6, stock owned by an employee
shall include all stock actually issued and outstanding immediately before the
grant of the incentive stock option to the employee.
SECTION 7. Adjustments Upon Changes in Capitalization. The aggregate
number and class of shares for which options may be granted under this Plan, the
number and class of shares covered by each outstanding option and the exercise
price per share thereof (but not the total price), and each such option, shall
all be proportionately adjusted for any increase or decrease in the number of
issued shares of Common Stock of the Company resulting from a split-up or
consolidation of shares or any like capital adjustment, or the payment of any
stock dividend.
7.1 Effect of Reorganization or Change in Control.
7.1.1 Conversion of Options on Stock for Stock Exchange. If
the shareholders of the Company receive capital stock of another corporation
("Exchange Stock") in exchange for their shares of Common Stock in any
transaction involving a merger, consolidation or reorganization, all options
granted under this Plan shall be converted into options to purchase shares of
Exchange Stock. The amount and price of converted options shall be determined by
adjusting the amount and price of the options granted under this Plan in the
same proportion as used for determining the number of shares of Exchange Stock
the holders of the Common Stock receive in such merger, consolidation or
reorganization. The vesting schedule set forth in the option agreement shall
continue to apply for the Exchange Stock.
7.1.2 Change in Control. In the event of a "Change in
Control," as defined in Section 7.1.3 below, any options or portions of such
options outstanding as of the date such Change in Control is determined to have
occurred that are not yet fully vested shall not become fully vested merely by
the occurrence of a Change in Control. Provided, in the event that the option
holder's employment shall be involuntarily terminated within one (1) year
following the Change in Control without cause as defined in Section 5.8.2, any
options or portions of such options outstanding as of the date of such
termination shall become fully vested and exercisable.
7.1.3 Definition of "Change in Control." As used herein, a
"Change in Control" shall be deemed to have occurred if: (A) a "person" (meaning
an individual, a partnership, or other group or association as defined in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934) acquires more
than fifty percent (50%) of the combined voting power of the outstanding
securities of the Company having a right to vote at elections of directors; or
7
(B) the individuals who at the commencement date of this Agreement constitute
the Board of Directors (the "Incumbent Board") cease for any reason to
constitute a majority thereof, provided, however, that any person becoming a
director subsequent to the date hereof whose election, or nomination for
election by the Company's shareholders was approved by a vote of at least a
majority of the directors comprising the Incumbent Board shall be, for purposes
of this subparagraph (B), considered as though he were a member of the Incumbent
Board
7.2 Fractional Shares. In the event of any adjustment in the
number of shares covered by any option, any fractional shares resulting from
such adjustment shall be disregarded and each such option shall cover only the
number of full shares resulting from such adjustment.
7.3 Determination of Board to Be Final. All Section 7 adjustments
shall be made by the Board, and its determination as to what adjustments shall
be made, and the extent of such adjustments, shall be final, binding and
conclusive. Unless an Optionee agrees otherwise, any change or adjustment to an
incentive stock option shall be made in such a manner so as not to constitute a
"modification" as defined in Code Section 424(h) and so as not to cause his or
her incentive stock option issued hereunder to fail to continue to qualify as an
incentive stock option as defined in Code Section 422(b).
SECTION 8. Securities Regulation. Shares shall not be issued with respect
to an option granted under this Plan unless the exercise of such option and the
issuance and delivery of such shares pursuant to the exercise of such option
shall comply with all relevant provisions of law, including, without limitation,
any applicable state securities laws, the Securities Act of 1933, as amended,
the Exchange Act, the rules and regulations promulgated thereunder, and the
requirements of any stock exchange upon which the shares may then be listed, and
shall be further subject to the approval of counsel for the Company with respect
to such compliance, including the availability of an exemption from registration
for the issuance and sale of any shares under this Plan. Inability of the
Company to obtain from any regulatory body having jurisdiction, the authority
deemed by the Company's counsel to be necessary for the lawful issuance and sale
of any shares under this Plan or the unavailability of an exemption from
registration for the issuance and sale of any shares under this Plan shall
relieve the Company of any liability in respect of the nonissuance or sale of
such shares as to which such requisite authority shall not have been obtained.
8
As a condition to the exercise of an option, the Company may require
the Optionee to represent and warrant at the time of any such exercise that the
shares are being purchased only for investment and without any present intention
to sell or distribute such shares if, in the opinion of counsel for the Company,
such a representation is required by any relevant provision of the
aforementioned laws. At the option of the Company, a stop-transfer order against
any shares of stock may be placed on the official stock books and records of the
Company, and a legend indicating that the stock may not be pledged, sold or
otherwise transferred unless an opinion of counsel is provided (concurred in by
counsel for the Company) stating that such transfer is not in violation of any
applicable law or regulation, may be stamped on stock certificates in order to
assure exemption from registration. The Plan Administrator may also require such
other action or agreement by the Optionees as may from time to time be necessary
to comply with the federal and state securities laws. THIS PROVISION SHALL NOT
OBLIGATE THE COMPANY TO UNDERTAKE REGISTRATION OF THE OPTIONS OR STOCK
HEREUNDER.
Should any of the Company's capital stock of the same class as the
stock subject to options granted under this Plan be listed on a national
securities exchange, all stock issued under this Plan if not previously listed
on such exchange shall be authorized by that exchange for listing on such
exchange prior to the issuance of such stock.
SECTION 9. Amendment and Termination.
9.1 Board Action. The Board may at any time suspend, amend or
terminate this Plan, provided that except as set forth in Section 7, the
approval of the Company's shareholders is necessary within 12 months before or
after the adoption by the Board of any amendment which will:
(a) increase the number of shares which are to be
reserved for the issuance of options under this Plan;
(b) permit the granting of stock options to a class of
persons other than those presently permitted to receive stock options under this
Plan; or
(c) require shareholder approval under applicable law.
Any amendment made to this Plan which would constitute a
"modification" to incentive stock options outstanding on the date of such
amendment, shall not be applicable to such outstanding incentive stock options,
but shall have prospective effect only, unless the Optionee agrees otherwise.
9.2 Automatic Termination. Unless sooner terminated by the Board,
this Plan shall terminate ten years from the earlier of (a) the date on which
this Plan is adopted by the Board or (b) the date on which this Plan is approved
by the shareholders of the Company. No option may be granted after such
termination or during any suspension of this Plan. The amendment or termination
of this Plan shall not, without the consent of the option holder, alter or
impair any rights or obligations under any option previously granted under this
Plan.
9
SECTION 10. Effectiveness of This Plan. This Plan shall become effective
upon adoption by the Board so long as it is approved by the Company's
shareholders any time within 12 months before or after the adoption of this
Plan.
Adopted by the Board of Directors of EvergreenBank on February 17,
2000, and approved by the shareholders on April 20, 2000.
Adopted by the Board of Directors of the Company upon the holding
company reorganization effective on June 20, 2001.
Amendment to Section 3 adopted by the Board of Directors of the
Company on March 23, 2003 and approved by the shareholders on April 17, 2003.
EVERGREENBANCORP, INC.
By /s/ Gerald O. Hatler
--------------------------
Its President & CEO
10