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EXHIBIT 10.2
MICHIGAN HERITAGE BANCORP, INC.
1996 NONEMPLOYEE DIRECTOR STOCK OPTION PLAN
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Effective: December 31, 1996
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MICHIGAN HERITAGE BANCORP, INC.
1996 NONEMPLOYEE DIRECTOR STOCK OPTION PLAN
Subject to shareholder approval, effective December 31, 1996, the plan
described herein is hereby adopted as the Michigan Heritage Bancorp, Inc. 1996
Nonemployee Director Stock Option Plan (the "Plan").
I. GENERAL PROVISIONS
1.1 Purpose. The purpose of this Plan is to promote the best
interests of the Corporation and its shareholders by attracting and motivating
highly qualified individuals to serve as Directors and to encourage such
Directors to acquire an ownership interest in the Corporation, thus
identifying their interests with those of shareholders.
1.2 Definitions. As used in this Plan, the following terms have
the meaning described below:
(a) "Agreement" means the written agreement that sets forth
the terms of a Participant's Option.
(b) "Board" means the Board of Directors of the Corporation.
(c) "Change in Control" means the occurrence of any of the
following events:
(i) If any "person" (as such term is used in
Sections 13(d) and 14(d) of the Exchange Act), or group of persons acting in
concert, other than the Corporation, a Subsidiary or an employee benefit plan
or employee benefit plan trust maintained by the Corporation or a Subsidiary,
becomes the "beneficial owner" (as such term is defined in Rule 13d-3 of the
Exchange Act, except that a person also shall be deemed the beneficial owner of
all securities which such person may have a right to acquire, whether or not
such right is presently exercisable), directly or indirectly, of securities of
the Corporation representing twenty (20%) or more of the combined voting power
of the Corporation's then outstanding securities ordinarily having the right to
vote in the election of directors; or
(ii) A liquidation or dissolution of the Corporation,
sale of substantially all of the assets of the Corporation, or a merger,
consolidation or combination in which the Corporation is not the survivor; or
(iii) The addition of new members to the Board within
any consecutive twenty-four (24) month period, which members constitute a
majority of the Board, unless a majority of the Board, consists of incumbent
members of the Board in office prior to the commencement of such twenty-four
(24) month period, plus new members who were recommended or appointed by a
majority of the incumbent directors in office immediately prior
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to the addition of such new members to the Board.
(d) "Code" means the Internal Revenue Code of 1986, as
amended from time to time.
(e) "Committee" means the Compensation Committee of the
Corporation, if any, which shall be comprised of two or more disinterested
members of the Board, as defined in Rule 16b-3.
(f) "Common Stock" means shares of the Corporation's
authorized Common Stock.
(g) "Corporation" means Michigan Heritage Bancorp, Inc., a
Michigan Corporation.
(h) "Director" means a member of the Corporation's Board of
Directors.
(i) "Disability" means total and permanent disability, as
defined in Section 22(e) of the Code.
(j) "Effective Date" means December 31, 1996.
(k) "Eligible Director" means a Director who is not an
Employee of the Corporation.
(l) "Employee" means an employee of the Corporation or its
Subsidiaries, who has an "employment relationship" with the Corporation or its
Subsidiaries, as defined in Treasury Regulation 1.421-7(h), and the term
"employment" means employment with the Corporation or its subsidiaries.
(m) "Exchange Act" means the Securities Exchange Act of
1934, as amended from time to time, and any successor thereto.
(n) "Expiration Date" means the date set forth in the
Agreement relating to an Option on which the right to exercise such Option
shall expire, except as otherwise provided in Article III below. Unless
otherwise provided in the Agreement, the Expiration Date for an Option shall
be the seventh (7th) anniversary of its Grant Date.
(o) "Fair Market Value" means, for purposes of determining
the value of Common Stock, the average between the published closing bid and
asked prices of the Common Stock on the NASD OTC Bulletin Board or if the
Common Stock has become listed on The Nasdaq Stock Market or a national
securities exchange, then on The Nasdaq Stock Market or such exchange instead;
or if the Common Stock is not quoted on either the NASD OTC Bulletin
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Board or the Nasdaq Stock Market or any nationally recognized stock exchange, a
value determined by any fair and reasonable means prescribed by the Committee.
(p) "Grant Date" means the date on which an Option was
automatically awarded pursuant to Section 2.1.
(q) "Initial Offering Price" means the price per share of
Common Stock received by the Company, excluding any underwriters' fees or
commissions in connection with its initial public offering of Common Stock.
(r) "Nonemployee Director" means a Director who is not an
Employee of the Company.
(s) "Nonqualified Stock Option" means an Option that is not
intended to meet the requirements of Section 422 of the Code.
(t) "Option" means a Nonqualified Stock Option to purchase
Common Stock granted under this Plan.
(u) "Participant" means each of the Nonemployee Directors
of the Corporation participating in this Plan from time to time.
(v) "Plan" means this Michigan Heritage Bancorp, Inc. 1996
Nonemployee Director Stock Option Plan, the terms of which are set forth
herein, and any amendments hereto.
(w) "Rule 16b-3" means Rule 16b-3 under the Exchange Act,
as in effect from time to time.
(x) "Subsidiary" means a corporation of which more than
fifty percent (50%) of the outstanding voting stock is owned by the
Corporation, either directly or indirectly through one or more other
Subsidiaries.
1.3 Administration. To the extent permitted by Rule 16b-3, the
Plan shall be administered by the Committee or another committee appointed by
at least a majority of the Board of Directors of the Corporation. The
Committee shall interpret the Plan, prescribe, amend, and rescind rules and
regulations relating to the Plan, and make all other determinations necessary
or advisable for its administration. The decision of the Committee on any
question concerning the interpretation of the Plan or its administration with
respect to any Option granted under the Plan shall be final and binding upon
all Participants.
1.4 Stock. The total number of shares of Common Stock available
for grants under the Plan shall not, in the aggregate, exceed 60,000 shares of
Common Stock, as adjusted from time to time in accordance with Article IV.
Shares subject to any unexercised portion of a
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terminated, forfeited, cancelled or expired Option granted hereunder shall be
available for subsequent grants under the Plan. In the event that an option
granted under the Plan is exercised by the delivery of shares of Common Stock
previously acquired upon the exercise of Options issued under the Plan or
through the retention of options procedure as described in Section 2.6 below,
the shares of Common Stock so delivered to the Corporation or underlying such
retained options shall be available for subsequent grants under this Plan.
II. STOCK OPTIONS FOR ELIGIBLE DIRECTORS
2.1 Automatic Grants of Options to Nonemployee Directors.
(a) Eligibility. All Nonemployee Directors of the
Corporation who have been elected by the shareholders at an Annual Meeting, who
have been appointed by the incorporator, or who have been appointed to fill a
vacancy on the Board, and are serving on the Board at the time an Option is
granted hereunder shall automatically participate hereunder.
(b) Initial Options; Subsequent Options. On February 1,
1997, the Company shall grant to each Participant an option to purchase 12,000
shares of Common Stock at the Initial Offering Price (the "Initial Option").
The Initial Options shall become exercisable at the following times with
respect to the amount of shares listed:
Exercisability
Date Number of Shares
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March 1, 1997 6,000 shares
March 1, 1998 8,000 shares
March 1, 1999 10,000 shares
March 1, 2000 12,000 shares
Nonemployee Directors who are appointed or elected after March 1, 1997,
and who become Participants, shall be granted an option ("Subsequent Option")
on the first day of the month following their appointment or election as a
director for a number of shares which is equal to the amount set forth in the
following table, and is based on the time of their appointment or election in
relation to the next regular annual meeting of shareholders of the Company, as
follows:
Year of First Annual
Meeting of Shareholders
After Appointment or Number of
Election Options Granted
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1998 3,000 shares
1999 2,000 shares
2000 1,000 shares
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All Subsequent Options shall become exercisable in full 180 days
following their date of grant. The grant of Initial Options and Subsequent
Options shall be automatic and nondiscretionary.
(c) No Discretion. Notwithstanding any provision in the
Plan to the contrary, the Committee shall have no discretion with respect to
the terms of grants made to a Nonemployee Director pursuant to this Article II,
except to the extent such discretion would not result in the grant or the
Plan failing to qualify for the disinterested Director exemption provided
under Rule 16b-3.
2.2 Option Agreement. Each Option granted pursuant to this Article
II shall be evidenced by an Agreement for Nonemployee Directors in accordance
with the terms of the Plan and shall specify, among other things, the exercise
price, the term of the Option, the date or dates on which the Option becomes
exercisable, the number of shares to which the Option relates, and other such
provisions as the Committee shall determine.
2.3 Option Price. The purchase price per share of Common Stock for
the Initial Option shall be the Initial Public Offering price per share, which
is deemed to be the Fair Market Value of the Common Stock at such time of grant
or such Options. The purchase price per share of Common Stock for all
Subsequent Options granted pursuant to this Article II shall be equal to the
Fair Market Value per share of Common Stock on the Grant Date.
2.4 Payment for Option Shares. The purchase price for shares of
Common Stock to be acquired upon exercise of an Option granted hereunder shall
be paid in full at the time of exercise in any of the following ways: (a) in
cash; (b) by certified check, bank draft or money order; (c) by delivery to the
Corporation of previously-acquired shares of the Corporation's Common Stock
with a Fair Market Value (determined on the last trading date immediately
preceding the date of exercise) equal to the exercise price; or (d) by any
combination of the foregoing.
III. TERMINATION
3.1 General. The unexercised portion of each option automatically
expires, and is no longer exercisable, on the earliest to occur of the
following: (i) seven (7) years after the option is granted , (ii) three (3)
months after the person who was granted the option ceases to be a Nonemployee
Director, other than due to permanent disability, death, or for cause, (iii) one
(1) year following the death or permanent disability of the Nonemployee
Director, and (iv) termination of the Nonemployee Director's service as such,
for cause.
3.2 Post-Termination Exercise. During the period from the
Participant's termination of services as a Nonemployee Director until the
termination of the Option, the Participant, or the person or persons to whom
the Option shall have been transferred by will, by the laws of descent and
distribution, or pursuant to a qualified domestic relations order may exercise
the Option only
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to the extent that such Option was exercisable on the date of the Participant's
termination.
IV. ADJUSTMENTS AND CHANGE IN CONTROL
4.1 Adjustments. The total amount of Common Stock for which
Options may be granted under this Plan, and the number of shares subject to any
such grants (both as to the number of shares of Common Stock and the Option
price), shall be appropriately adjusted for any increase or decrease in the
number of outstanding shares of Common Stock resulting from payment of a
stock dividend on Common Stock, a subdivision or combination of shares of
Common Stock, a stock split, a recapitalization of Common Stock, or otherwise.
The foregoing adjustments and the manner of application of the foregoing
provisions shall be determined and made by the Committee. Any such adjustment
may provide for the elimination of any fractional share which might otherwise
become subject to an Option.
4.2 Change in Control. Notwithstanding anything contained herein
to the contrary, upon a Change in Control, any outstanding Option granted
hereunder immediately shall become exercisable in full.
V. MISCELLANEOUS
5.1 Partial Exercise. The Committee shall permit, and shall
establish procedures for, the partial exercise of Options under the Plan.
5.2 Rule 16b-3 Requirements. Notwithstanding any other provision
of the Plan, the Committee may impose such conditions on the exercise of an
Option as may be required to satisfy the requirements of Rule 16b-3 and any
successor thereto.
5.3 Rights Prior to Issuance of Shares. No Participant shall have
any rights as a shareholder with respect to shares covered by an Option until
and only to the extent that the Option is exercised.
5.4 Non-Assignability. Except as set forth below, no Option shall
be transferable by a Participant except by will, the laws of descent and
distribution, or pursuant to a qualified domestic relations order and during
the lifetime of a Participant, an Option shall be exercised only by the
Participant. Notwithstanding the foregoing, to the extent permitted by Rule
16b-3 of the Securities Exchange Act of 1934, as amended from time to time, an
Option may be transferred by a Participant to a living trust of which the
Participant is the grantor and beneficiary during his lifetime, if such transfer
shall not be deemed to constitute a change in beneficial ownership. No transfer
of an Option by will or the laws of descent and distribution (or to a living
trust as applicable) shall be effective to bind the Corporation unless the
Corporation shall have been furnished with written notice thereof and a copy of
the will (or trust) or such evidence as the Corporation may deem necessary to
establish the validity of the transfer and the acceptance by the transferee of
the terms and conditions of the Option.
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5.5 Securities Laws.
(a) Anything to the contrary herein notwithstanding, the
Corporation's obligation to sell and deliver Common Stock pursuant to the
exercise of an Option is subject to such compliance with federal and state
laws, rules and regulations applying to the authorization, issuance or sale of
securities as the Corporation deems necessary or advisable. The Corporation
shall not be required to sell and deliver Common Stock unless and until it
receives satisfactory assurance that the issuance or transfer of such shares
shall not violate any of the provisions of the Securities Act of 1933, as
amended, or the Exchange Act, or the rules and regulations of the Securities
and Exchange Commission promulgated thereunder or those of the New York Stock
Exchange, Inc., the American Stock Exchange, Inc., the National Association of
Securities Dealers, Inc. or any stock exchange on which the Common Stock may be
listed, the provisions of any state laws governing the sale of securities, or
that there has been compliance with the provisions of such acts, rules,
regulations and laws.
(b) The Committee may impose such restrictions on any
shares of Common Stock acquired pursuant to the exercise of an Option as it may
deem advisable, including, without limitation, restrictions (i) under
applicable federal securities laws, (ii) required by the American Stock
Exchange, Inc., the Nasdaq Stock Market or any stock exchange or other
recognized trading market upon which such shares of Common Stock are then
listed or traded, and (iii) under any blue sky or state securities laws
applicable to such shares. No shares shall be issued until counsel for the
Corporation has determined that the Corporation has complied with all
requirements under appropriate securities laws.
5.6 Termination and Amendment.
(a) The Board may terminate or suspend the Plan, in whole
or in part, or the granting of Options under the Plan, at any time. No new
grants shall be made under the Plan after December 31, 2000.
(b) The Board may amend or modify the Plan at any time and
from time to time, without shareholder approval, no amendment or modification,
without the approval of the shareholders of the Corporation, except that no
such action shall be taken by the Board that (i) materially increase the
benefits accruing to Participants under the Plan, materially increase the
amount of Common Stock for which grants may be made under the Plan, except as
permitted under Sections 1.4 and 4.1, or materially change the provisions
relating to the eligibility of individuals to whom grants may be made under the
Plan, (ii) causes the Nonemployee Director to fail to satisfy the applicable
requirements of Rule 16b-3 under the Exchange Act, or any Nonemployee Director
to fail to qualify as a "disinterested person" as defined in that rule, or
(iii) impairs the rights of any option holder granted under the Nonemployee
Director Plan, without such option holder's consent. Unless otherwise
permitted under Rule 16b-3, this Plan shall not be amended more than once in
any six (6) month period other than to comply with changes in the Code or the
Exchange Act.
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(c) No amendment, modification or termination of the Plan
shall adversely affect any Option granted under the Plan without the consent of
the Participant holding the Option.
5.7 Effect on Services. Neither the adoption of the Plan nor the
granting of any Option pursuant to the Plan shall be deemed to create any right
in any individual to be retained as a Nonemployee Director.
5.8 Use of Proceeds. The proceeds received from the sale of Common
Stock pursuant to the Plan shall be used for general corporate purposes of the
Corporation.
5.9 Approval of Plan. The Plan shall be subject to the approval of
the holders of at least a majority of the shares of Common Stock of the
Corporation present and entitled to vote at a meeting of shareholders of the
Corporation held within twelve (12) months after adoption of the Plan by the
Board. Any Option granted under the Plan prior to such shareholder approval,
shall be conditioned upon receipt of such approval, and may not be exercised in
whole or in part unless the Plan has been approved by the shareholders as
provided herein. If not approved by shareholders within twelve (12) months
after approval by the Board, the Plan shall be rescinded, and any Options
granted under the Plan shall be void retroactive to the Grant Date.
BOARD APPROVAL: December __, 1996
SHAREHOLDER APPROVAL: December __, 1996
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