Exhibit 10.9
AMERISAFE, INC.
2005 NON-EMPLOYEE DIRECTOR RESTRICTED STOCK PLAN
1. PURPOSE. The purpose of this 2005 Non-Employee Director Restricted
Stock Plan is to attract and retain qualified individuals who are not
employed by the Company to serve as Directors.
2. DEFINITIONS. As used in this Plan,
(a) "Annual Grant" means a grant of Restricted Stock to a
Non-Employee Director in accordance with Section 5 of this Plan.
(b) "Annual Meeting" means the Company's annual meeting of
shareholders.
(c) "Award" means any award of an Initial Grant or Annual Grant
under this Plan.
(d) "Award Agreement" means a written agreement between the
Company and a Non-Employee Director setting forth the terms,
conditions and restrictions of the Award granted to the Non-Employee
Director.
(e) "Board" means the Board of Directors of the Company.
(f) "Change in Control" shall have the meaning provided in
Section 6 of this Plan.
(g) "Common Shares" means the shares of common stock, par value
$0.01 per share, of the Company or any security into which such
Common Shares may be changed by reason of any transaction or event
of the type referred to in Section 3(b) of this Plan.
(h) "Company" means AMERISAFE, Inc., a Texas corporation.
(i) "Date of Grant" means (i) with respect to an Initial Grant,
the close of business on the date on which the Non-Employee
Director is first elected or appointed to the Board, and (ii)
with respect to an Annual Grant, the date on which the Annual
Meeting in any calendar year is first convened.
(j) "Director" means a member of the Board.
(k) "Effective Date" means __________, 2005.
(l) "Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder, as such law,
rules and regulations may be amended from time to time.
(m) "Incumbent Directors" means the individuals who, as of the
Effective Date, are Directors of the Company and any individual
becoming a Director subsequent to the date thereof whose election,
nomination for election by the Company's shareholders, or
appointment, was approved by a vote of at least two-thirds of the
then Incumbent Directors (either by a specific vote or by approval
of the proxy statement of the Company in which such person is named
as a nominee for Director, without objection to such nomination);
provided, however, that an individual shall not be an Incumbent
Director if such individual's election or appointment to the Board
occurs as a result of an actual or threatened election contest (as
described in Rule 14a-12(c) of the Exchange Act) with respect to the
election or removal of Directors or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person
other than the Board.
(n) "Initial Grant" means a grant of shares of Restricted Stock to
a Non-Employee Director in accordance with Section 4 of this Plan.
(o) "Market Value per Share" means, as of any particular date, (i)
the closing sale price per Common Share on that date (or if there
are no sales on that date, on the next preceding trading date during
which a sale occurred) as reported on the Nasdaq National Market
System, or if the Common Shares are not then-traded on the Nasdaq
National Market System, the principal exchange on which the Common
Shares are then trading, or (ii) if clause (i) does not apply, the
fair value of the Common Shares as determined by the Board.
(p) "Non-Employee Director" means each member of the Board from
time to time who is not an employee of the Company or any of its
Affiliates.
(q) "Person" means any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act).
(r) "Plan" means this 2005 Non-Employee Director Plan.
(s) "Restricted Stock" means Common Shares as to which neither the
substantial risk of forfeiture nor the prohibition on transfers
referred to in Section 4 or Section 5 of this Plan has lapsed.
(t) "Subsidiary" means a corporation, company or other entity (i)
more than 50 percent of whose outstanding shares or other securities
(representing the right to vote for the election of directors or
other managing authority) are, or (ii) which does not have
outstanding shares or other securities (as may be the case in a
partnership, limited liability company, business trust or other
legal entity), but more than 50 percent of whose ownership interest
representing the right generally to make decisions for such entity
is, now or hereafter, owned or controlled, directly or indirectly,
by the Company.
(u) "Total Disability" means the permanent or total disability of
a Non-Employee Director, as determined by the Board in good faith.
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(v) "Voting Securities" means, at any time, (i) the securities
entitled to vote generally in the election of Directors in the case
of the Company, or (ii) the securities entitled to vote generally in
the election of members of the board of directors or similar body in
the case of another legal entity.
3. SHARES AVAILABLE UNDER THE PLAN.
(a) Subject to adjustment as provided in Section 3(b) of this
Plan, the number of Common Shares that may be issued or transferred
as Restricted Stock and released from substantial risk of forfeiture
thereof shall not exceed in the aggregate ______ Common Shares. Such
shares may be authorized but unissued shares or treasury shares or a
combination of the foregoing.
(b) The number of shares available in Section 3(a) above shall be
adjusted to account for shares relating to Awards that are
forfeited. The number and type of shares available in Section 3(a)
shall also automatically be adjusted to reflect (a) any stock split,
combination of shares, recapitalization or other change in the
capital structure of the Company, (b) any merger, consolidation,
spin-off, split-off, spin-out, split-up, reorganization, partial or
complete liquidation or other distribution of assets, issuance of
rights or warrants to purchase securities, or (c) any other
corporate transaction or event having an effect similar to any of
the foregoing.
4. INITIAL GRANTS
(a) Without any further action of the Board, each person who is
elected or appointed for the first time to be a Non-Employee
Director shall automatically receive an Initial Grant determined by
dividing $_______ (prorated as determined below in this Section
4(a)) by the Market Value per Share on the Date of Grant; provided,
however, that the number of shares of Restricted Stock shall be
rounded downward such that no fractional share shall be issued. If
any such person is so elected or appointed other than at an Annual
Meeting, the Initial Grant shall be prorated for the number of whole
months that such Non-Employee Director will serve until the first
anniversary of the immediately preceding Annual Meeting.
(b) In lieu of the Initial Grant contemplated by Section 4(a),
each person who is, or will become, a Non-Employee Director upon the
consummation of the Company's initial public offering (the "IPO") of
its Common Shares shall, without further action by the Board,
automatically receive an Initial Grant determined by dividing
$_______ (prorated as determined below in this Section 4(b)) by the
initial price to the public in the IPO; provided, however, that the
number of shares of Restricted Stock shall be rounded down such that
no fractional share shall be issued. The Initial Grant to be made
pursuant to this Section 4(b) shall be prorated for the number of
whole months that such Non-Employee Director will serve from the
consummation of the IPO to June 1, 2006.
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(c) Each Initial Grant shall constitute an immediate transfer of
the ownership of shares of Restricted Stock to the Non-Employee
Director, entitling such Non-Employee Director to voting, dividend
and other ownership rights, but subject to the substantial risk of
forfeiture and restrictions on transfer set forth in this Section 4.
(d) Each Initial Grant shall provide that the shares of Restricted
Stock covered by such Initial Grant shall be subject to a
"substantial risk of forfeiture" until the first Annual Meeting
after the Date of Grant. Each Initial Grant shall provide that the
Non-Employee Director shall forfeit the shares of Restricted Stock
covered by such Initial Grant if such Non-Employee Director
terminates his or her service with the Company while such shares of
Restricted Stock are subject to a substantial risk of forfeiture.
Notwithstanding the foregoing, each such Initial Grant shall provide
for the immediate lapse of such substantial risk of forfeiture in
the event of (i) the Non-Employee Director's death or Total
Disability, or (ii) upon a Change in Control.
(e) Each Initial Grant shall require that any and all dividends or
other distributions (other than cash dividends) declared or
otherwise distributed thereon be subject to the same restrictions as
the underlying Initial Grant.
(f) Each Initial Grant shall provide that during the period for
which such substantial risk of forfeiture has not lapsed, the shares
of Restricted Stock shall not be sold or otherwise transferred,
other than by will or the laws of descent and distribution.
(g) Each Initial Grant shall be evidenced by an Award Agreement,
which shall contain such terms and provisions not inconsistent with
this Plan as the Board may approve. Unless otherwise directed by the
Board, all certificates representing shares of Restricted Stock
shall be held in custody by the Company until all restrictions
thereon shall have lapsed, together with a stock power or powers
executed by the Non-Employee Director in whose name such
certificates are registered, endorsed in blank.
5. ANNUAL GRANTS
(a) Commencing with the Annual Meeting in 2006, each Non-Employee
Director who is then elected or is continuing as a Non-Employee
Director shall, without any further action of the Board,
automatically receive an Annual Grant determined by dividing
$_______ by the Market Value per Share on the Date of Grant;
provided, however, that the number of shares of Restricted Stock
shall be rounded downward such that no fractional share shall be
issued.
(b) Each Annual Grant shall constitute an immediate transfer of
the ownership of shares of Restricted Stock to the Non-Employee
Director, entitling such Non-Employee Director to voting, dividend
and other ownership rights, but subject to
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the substantial risk of forfeiture and restrictions on transfer set
forth in this Section 5.
(c) Each Annual Grant shall provide that the shares of Restricted
Stock covered by such Annual Grant shall be subject to a
"substantial risk of forfeiture" until the first Annual Meeting
after the Date of Grant. Each Annual Grant shall provide that the
Non-Employee Director shall forfeit the shares of Restricted Stock
covered by such Annual Grant if such Non-Employee Director
terminates his or her service with the Company while such shares of
Restricted Stock are subject to a substantial risk of forfeiture.
Notwithstanding the foregoing, each such Annual Grant shall provide
for the immediate lapse of such substantial risk of forfeiture in
the event of (i) the Non-Employee Director's death or Total
Disability, or (ii) upon a Change in Control.
(d) Each Annual Grant shall provide that during the period for
which such substantial risk of forfeiture has not lapsed, the shares
of Restricted Stock shall not be sold or otherwise transferred,
other than by will or the laws of descent and distribution.
(e) Each Annual Grant shall require that any and all dividends or
other distributions (other than cash dividends) declared or
otherwise distributed thereon be subject to the same restrictions as
the underlying Annual Grant.
(f) Each Annual Grant shall be evidenced by an Award Agreement,
which shall contain such terms and provisions not inconsistent with
this Plan as the Board may approve. Unless otherwise directed by the
Board, all certificates representing Restricted Stock shall be held
in custody by the Company until all restrictions thereon shall have
lapsed, together with a stock power or powers executed by the
Non-Employee Director in whose name such certificates are
registered, endorsed in blank.
6. CHANGE IN CONTROL. For purposes of this Plan, except as may be
otherwise defined in an Award Agreement, a "Change in Control" shall
mean the occurrence of any of the following events:
(a) the acquisition by any Person of beneficial ownership (within
the meaning of Rule 13d-3 promulgated under the Exchange Act) of 35%
or more of the then outstanding Voting Securities of the Company;
provided, however, that for purposes of this Section 6(a), the
following acquisitions shall not constitute a Change in Control: (A)
any acquisition by the Company or a Subsidiary of Voting Securities,
(B) any acquisition of Voting Securities by any employee benefit
plan (or related trust) sponsored or maintained by the Company or
any Subsidiary or (C) any acquisition of Voting Securities by any
Person pursuant to a Business Combination that complies with clauses
(A), (B) and (C) of Section 6(c) below;
(b) a majority of the Board ceases to be comprised of Incumbent
Directors;
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(c) consummation of a reorganization, merger or consolidation, a
sale or other disposition of all or substantially all of the assets
of the Company or other transaction (each, a "Business
Combination"), unless, in each case, immediately following the
Business Combination, (A) all or substantially all of the
individuals and entities who were the beneficial owners of Voting
Securities immediately prior to the Business Combination
beneficially own, directly or indirectly, more than 50% of the
combined voting power of the then outstanding Voting Securities of
the entity resulting from the Business Combination (including,
without limitation, an entity which as a result of such transaction
owns the Company or all or substantially all of the Company's assets
either directly or through one or more subsidiaries), (B) no Person
(other than the Company, such entity resulting from the Business
Combination, or any employee benefit plan (or related trust)
sponsored or maintained by the Company, any Subsidiary or such
entity resulting from the Business Combination) beneficially owns,
directly or indirectly, 35% or more of the combined voting power of
the then outstanding Voting Securities of the entity resulting from
the Business Combination; provided, however, that no Person will be
treated for purposes of this Section 6(c) as beneficially owning 35%
or more of the Voting Securities of the entity resulting from the
Business Combination solely as a result of the Voting Securities
held in the Company prior to consummation of the Business
Combination and (C) at least a majority of the members of the board
of directors of the entity resulting from the Business Combination
were Incumbent Directors at the time of the execution of the initial
agreement or of the action of the Board providing for the Business
Combination; or
(d) approval by the shareholders of the Company of a complete
liquidation or dissolution of the Company, except pursuant to a
Business Combination that complies with clauses (A), (B) and (C) of
Section 6(c) hereof.
Notwithstanding anything to the contrary contained in this Section 6, a
Person who holds 35% or more of the Voting Securities of the Company on the
Effective Date will not be deemed to have acquired 35% or more of the Voting
Securities of the Company for purposes of Section 6(a) of this Plan (and as a
result, such circumstance shall not constitute a Change in Control) unless after
the Effective Date such person acquires, in one or more transactions, additional
Voting Securities of the Company representing 1% or more of the then outstanding
Voting Securities of the Company it being understood that an increase in the
percentage of Voting Securities held by a Person as a result of the Company's
repurchase of Voting Securities of the Company is not an acquisition of Voting
Securities by such Person.
7. FRACTIONAL SHARES. The Company shall not issue any fractional
Common Shares pursuant to this Plan.
8. ADMINISTRATION OF THE PLAN.
(a) This Plan shall be administered by the Board, which may from
time to time delegate all or any part of its authority under this
Plan to a committee of the Board (or a subcommittee thereof). To the
extent of any such delegation,
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references in this Plan to the Board shall be deemed to be
references to such committee or subcommittee.
(b) The interpretation and construction by the Board of any
provision of this Plan or of any Award Agreement, and any
determination by the Board pursuant to any provision of this Plan or
of any such Award Agreement, shall be final and conclusive. No
member of the Board shall be liable for any such action or
determination made in good faith.
9. AMENDMENT AND TERMINATION OF PLAN. The Board may from time to time
and at any time amend or terminate the Plan in whole or in part; provided,
however, that any amendment (i) which must be approved by the shareholders
of the Company in order to comply with applicable law or the rules of the
principal exchange on which the Common Shares are traded or quoted, or
(ii) which would increase the benefits accruing to Non-Employee Directors,
increase the aggregate number of Common Shares that may be issued under
the Plan or materially modify the eligibility requirements for
participating in the Plan, shall not be effective unless and until the
shareholders of the Company have approved such amendment. Notwithstanding
anything to the contrary set forth in this Plan, following the IPO in the
event the common stock of the Company is no longer listed for trading with
a national securities exchange or the Nasdaq National Market System, then
all future grants under this Plan shall be suspended until the Board shall
take further action with respect thereto.
10. GOVERNING LAW. All issues concerning construction, validity and
interpretation of this Plan and all Awards granted hereunder shall be
governed by the law of the State of Texas, without regard to such state's
conflict of laws rules.
11. GENERAL PROVISIONS.
(a) Nothing in the Plan shall be deemed to create any obligation
on the part of the Board to nominate any Director for reelection by
the Company's shareholders or to limit the rights of the
shareholders to remove any Director.
(b) All notices under this Plan shall be in writing, and if to the
Company, shall be delivered to the Secretary of the Company or
mailed to its principal executive office addressed to the attention
of the Secretary; and if to a Non-Employee Director, shall be
delivered personally or mailed to the Non-Employee Director at the
address appearing on the records of the Company. Such addresses may
be changed at any time by written notice to the other party.
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