Exhibit 10.1
HOME BANCSHARES, INC.
2006 STOCK OPTION AND PERFORMANCE INCENTIVE PLAN
ARTICLE 1
ESTABLISHMENT AND PURPOSE
1.1 Establishment and Effective Date. Home BancShares, Inc., an Arkansas
corporation (the "Company"), hereby establishes a stock incentive plan to be
known as the Home BancShares, Inc. 2006 Stock Option and Performance Incentive
Plan (the "Plan"). The Plan shall become effective on March ____, 2006, subject
to the approval of the Company's stockholders at the 2006 Annual Meeting. Upon
approval of the Plan by the Board of Directors of the Company (the "Board"),
awards may be made as provided herein, subject to stockholder approval.
1.2 Purpose. The Company desires to attract and retain the best available
executive and key Employees for itself and its subsidiaries and to encourage the
highest level of performance by such Employees in order to serve the best
interests of the Company and its stockholders. The Plan is expected to
contribute to the attainment of these objectives by offering eligible Employees
the opportunity to acquire stock ownership interests in the Company, and other
rights with respect to stock of the Company, and to thereby provide them with
incentives to put forth maximum efforts for the success of the Company and its
subsidiaries.
1.3. Furthermore, this Plan is an amendment and restatement of the Cabot
Bankshares, Inc. Non-Qualified Stock Option Plan; Employee Incentive Stock
Option Plan; Stock Option Plan for Directors, Officers and Employees of Marine
Bank of the Florida Keys; Home BancShares 1999 Stock and Incentive Compensation
Plan Special Employee and Director Award; Home BancShares 1999 Stock and
Incentive Compensation Plan; North Little Rock Bancshares, Inc. 2000 Stock and
Incentive Compensation Plan; Home BancShares 2005 Appreciation Rights Incentive
Compensation Plan; and any other prior plan of the Company or a predecessor in
effect prior to the Effective Date of this Plan under which stock options or
other equity awards covering the Company's Stock remain outstanding to a service
provider (the "Prior Plans"). This Plan document therefore is intended to
preserve material rights and features of the Prior Plans, and should any
material provision of this Plan be determined to impair the rights of an
Employee under an Award granted prior to the Effective Date of this restated
Plan, the Award Agreement covering the Award shall instead be treated as
including the material provision as an explicit term.
ARTICLE 2
AWARDS
2.1 Form of Awards. Awards under the Plan may be granted in any one or all
of the following forms: (i) incentive stock options ("Incentive Stock Options")
meeting the requirements of Section 422 of the Internal Revenue Code of 1986, as
amended (the "Code"); (ii)
nonstatutory stock options ("Nonstatutory Stock Options") (unless otherwise
indicated, references in the Plan to "Options" shall include both Incentive
Stock Options and Nonstatutory Stock Options); (iii) stock appreciation rights
("Stock Appreciation Rights"), as described in Article 7, which may be awarded
either in tandem with Options ("Tandem Stock Appreciation Rights") or on a
stand-alone basis ("Nontandem Stock Appreciation Rights"); (iv) shares of Common
Stock (as defined below) which are restricted as provided in Article 11
("Restricted Shares"); (v) units representing shares of Common Stock, as
described in Article 12 ("Performance Shares"); (vi) units which do not
represent shares of Common Stock but which may be paid in the form of Common
Stock, as described in Article 13 ("Performance Units"); (vii) shares of
unrestricted Common Stock ("Unrestricted Shares"); and (viii) tax offset
payments ("Tax Offset Payments"), as described in Article 15.
2.2 Maximum Shares Available. The maximum aggregate number of shares of the
Company's Common Stock, par value $.01 per share (the "Common Stock"), available
for award as Options, Restricted Shares, Performance Shares, Performance Units
and Unrestricted Shares under the Plan, including shares of Common Stock awarded
as Tax Offset Payments, is 800,000 and the maximum aggregate number of Stock
Appreciation Rights is 1,200,000, all of which are subject to adjustment
pursuant to Article 16. Shares of Common Stock issued pursuant to the Plan may
be either authorized and unissued shares or issued shares reacquired by the
Company. In the event that prior to the end of the period during which Options
may be granted under the Plan, any Option or any Nontandem Stock Appreciation
Right under the Plan expires unexercised or is terminated, surrendered or
canceled (other than in connection with the exercise of a Stock Appreciation
Right) without being exercised in whole or in part for any reason, or any
Restricted Shares, Performance Shares or Performance Units are forfeited, or if
such awards are settled in cash in lieu of shares of Common Stock, then such
shares or units may, at the discretion of the Committee (hereinafter defined) to
the extent permissible under Rule 16b-3 under the Securities Exchange Act of
1934 (the "Act"), be made available for subsequent awards under the Plan, upon
such terms as the Committee may determine.
2.3 Return of Prior Awards. As a condition to any subsequent award, the
Committee shall have the right, at its discretion, upon replacement with a new
award of a substantially similar monetary amount, to require Employees to return
to the Company awards previously granted under this Plan. Subject to the
provisions of this Plan, such new award shall be upon such terms and conditions
as are specified by the Committee at the time the new award is granted to the
extent permitted by Rule 16b-3 under the Act.
ARTICLE 3
ADMINISTRATION
3.1 Committee. The Plan shall be administered by the Compensation Committee
(the "Committee") of the Board. Each member of the Committee shall be an
"outside director" (within the meaning of Section 162(m) of the Code) and a
"non-employee director" (within the meaning of Rule 16b-3(b)(3)(i) under the
Act); and an independent director within the meaning of NASD listing standards.
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3.2 Powers of Committee. Subject to the express provisions of the Plan, the
Committee shall have the power and authority (i) to grant Options and to
determine the purchase price of the Common Stock covered by each Option, the
term of each Option, the number of shares of Common Stock to be covered by each
Option and any performance objectives or vesting standards applicable to each
Option, (ii) to designate Options as Incentive Stock Options or Nonstatutory
Stock Options and to determine which Options, if any, shall be accompanied by
Tandem Stock Appreciation Rights; (iii) to grant Tandem Stock Appreciation
Rights and Nontandem Stock Appreciation Rights and to determine the terms and
conditions of such rights; (iv) to grant Restricted Shares and to determine the
term of the restricted period and other conditions and restrictions applicable
to such shares; (v) to grant Performance Shares and Performance Units and to
determine the performance objectives, performance periods and other conditions
applicable to such shares or units; (vi) to grant Unrestricted Shares; (vii) to
determine the amount of, and to make, Tax Offset Payments; and (viii) to
determine to whom, and the time or times at which, Options, Stock Appreciation
Rights, Restricted Shares, Performance Shares, Performance Units and
Unrestricted Shares shall be granted.
3.3 Delegation. The Committee may delegate to one or more of its members or
to any other person or persons such ministerial duties as it may deem advisable;
provided, however, that the Committee may not delegate any of its
responsibilities hereunder if such delegation will cause (i) transactions under
the Plan to fail to comply with Section 16 of the Act or (ii) the Committee to
fail to qualify as "outside directors" under Section 162(m) of the Code. The
Committee may also employ attorneys, consultants, accountants or other
professional advisors and shall be entitled to rely upon the advice, opinions or
valuations of any such advisors.
3.4 Interpretations. The Committee shall have sole discretionary authority
to interpret the terms of the Plan, to adopt and revise rules, regulations and
policies to administer the Plan and to make any other factual determinations
which it believes to be necessary or advisable for the administration of the
Plan. All actions taken and interpretations and determinations made by the
Committee in good faith shall be final and binding upon the Company, all
Employees who have received awards under the Plan and all other interested
persons.
3.5 Liability; Indemnification. No member of the Committee, nor any
Employee to whom ministerial duties have been delegated, shall be personally
liable for any action, interpretation or determination made with respect to the
Plan or awards made thereunder, and each member of the Committee shall be fully
indemnified and protected by the Company with respect to any liability he or she
may incur with respect to any such action, interpretation or determination, to
the extent permitted by applicable law and to the extent provided in the
Company's Certificate of Incorporation and Bylaws, as amended from time to time.
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ARTICLE 4
ELIGIBILITY
Awards may be granted to officers, Employees, directors, consultants, and
other key persons of the Company and its subsidiaries (herein referred to
collectively as "Employees"). In determining to whom awards shall be granted and
the number of shares to be covered by each award, the Committee shall take into
account the nature of the services rendered by such person, their present and
potential contributions to the success of the Company and its subsidiaries and
such other factors as the Committee in its sole discretion shall deem relevant.
As used in this Plan, the term "subsidiary" shall mean any corporation which at
the time qualifies as a subsidiary of the Company under the definition of
"subsidiary corporation" set forth in Section 424(f) of the Code, or any
successor provision hereafter enacted.
ARTICLE 5
STOCK OPTIONS
5.1 Grant of Options. Options may be granted under this Plan for the
purchase of shares of Common Stock. Options shall be granted in such form and
upon such terms and conditions, including the satisfaction of corporate or
individual performance objectives and other vesting standards, as the Committee
shall from time to time determine.
5.2 Option Price. The option price of each Option to purchase Common Stock
shall be determined by the Committee at the time of grant, but shall not be less
than 100 percent of the fair market value of the Common Stock subject to such
Option on the date of grant. The option price so determined shall also be
applicable in connection with the exercise of any Tandem Stock Appreciation
Right granted with respect to such Option. The exercise price of an Option
previously granted under the Plan shall not thereafter be reduced other than
pursuant to the provisions of Article 16 or Article 17.
5.3 Term of Options. The term of each Option granted under the Plan shall
not exceed ten (10) years from the date of grant, subject to earlier termination
as provided in Articles 9 and 10, except as otherwise provided in Section 6.1
with respect to ten (10) percent stockholders of the Company and except as
provided in prior grants.
5.4 Exercise of Options. An Option may be exercised, in whole or in part,
at such time or times as the Committee shall determine. The Committee may, in
its discretion, accelerate the exercisability of any Option at any time. Options
may be exercised by an Employee by giving written notice to the Committee
stating the number of shares of Common Stock with respect to which the Option is
being exercised and tendering payment therefor. Payment for the Common Stock
issuable upon exercise of the Option shall be made in full in cash, or by
certified check or, if the Committee, in its sole discretion, permits, in shares
of Common Stock (valued at fair market value on the date of exercise). As soon
as reasonably practicable following such
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exercise, a certificate representing the shares of Common Stock purchased,
registered in the name of the Employee, shall be delivered to the Employee.
5.5 Cancellation of Stock Appreciation Rights. Upon exercise of all or a
portion of an Option, the related Tandem Stock Appreciation Rights shall be
canceled with respect to an equal number of shares of Common Stock.
ARTICLE 6
SPECIAL RULES APPLICABLE TO INCENTIVE STOCK OPTIONS
6.1 Ten Percent Stockholder. Notwithstanding any other provision of this
Plan to the contrary, no person may receive an Incentive Stock Option under the
Plan if such person, at the time the award is granted, owns (after application
of the rules contained in Section 424(d) of the Code) stock possessing more than
ten (10) percent of the total combined voting power of all classes of stock of
the Company or its subsidiaries, unless (i) the option price for such Incentive
Stock Option is at least 110 percent of the fair market value of the Common
Stock subject to such Incentive Stock Option on the date of grant and (ii) such
Option is not exercisable after the date five (5) years from the date such
Incentive Stock Option is granted.
6.2 Limitations on Time of Grants. No grant of an Incentive Stock Option
shall be made under this Plan after the termination date set forth in Section
19.10 hereof.
ARTICLE 7
STOCK APPRECIATION RIGHTS
7.1 Grants of Stock Appreciation Rights. Tandem Stock Appreciation Rights
may be awarded by the Committee in connection with any Option granted under the
Plan, either at the time the Option is granted or thereafter at any time prior
to the exercise, termination or expiration of the Option. Nontandem Stock
Appreciation Rights may also be granted by the Committee at any time. At the
time of grant of a Nontandem Stock Appreciation Right, the Committee shall
specify the number of shares of Common Stock covered by such right and the base
price of shares of Common Stock to be used in connection with the calculation
described in Section 7.4 below. The base price of a Nontandem Stock Appreciation
Right shall be not less than 100 percent of the fair market value of a share of
Common Stock on the date of grant. Stock Appreciation Rights shall be subject to
such terms and conditions not inconsistent with the other provisions of this
Plan as the Committee shall determine.
7.2 Limitations on Exercise. A Tandem Stock Appreciation Right shall be
exercisable only to the extent that the related Option is exercisable and shall
be exercisable only for such period as the Committee may determine (which period
may expire prior to the expiration date of the related Option). Upon the
exercise of all or a portion of Tandem Stock Appreciation Rights, the related
Option shall be canceled with respect to an equal number of shares of Common
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Stock. Shares of Common Stock subject to Options or portions thereof,
surrendered upon exercise of a Tandem Stock Appreciation Right, shall not be
available for subsequent awards under the Plan. A Nontandem Stock Appreciation
Right shall be exercisable during such period as the Committee shall determine.
7.3 Surrender or Exchange of Tandem Stock Appreciation Rights. A Tandem
Stock Appreciation Right shall entitle the grantee to surrender to the Company
unexercised the related Option, or any portion thereof, and to receive from the
Company in exchange therefor that number of shares of Common Stock having an
aggregate fair market value equal to (A) the excess of (i) the fair market value
of one (1) share of Common Stock as of the date the Tandem Stock Appreciation
Right is exercised over (ii) the option price per share specified in such
Option, multiplied by (B) the number of shares of Common Stock subject to the
Option, or portion thereof, which is surrendered. Cash shall be delivered in
lieu of any fractional shares.
7.4 Exercise of Nontandem Stock Appreciation Rights.. The exercise of a
Nontandem Stock Appreciation Right shall entitle the grantee to receive from the
Company that number of shares of Common Stock having an aggregate fair market
value equal to (A) the excess of (i) the fair market value of one (1) share of
Common Stock as of the date on which the Nontandem Stock Appreciation Right is
exercised over (ii) the base price of the shares covered by the Nontandem Stock
Appreciation Right, multiplied by (B) the number of shares of Common Stock
covered by the Nontandem Stock Appreciation Right, or the portion thereof being
exercised. Cash shall be delivered in lieu of any fractional shares.
7.5 Settlement of Stock Appreciation Rights. As soon as is reasonably
practicable after the exercise of a Stock Appreciation Right, the Company shall
(i) issue, in the name of the grantee, stock certificates representing the total
number of full shares of Common Stock to which the grantee is entitled pursuant
to Section 7.3 or 7.4 hereof and cash in an amount equal to the fair market
value, as of the date of exercise, of any resulting fractional shares, and (ii)
if the Committee causes the Company to elect to settle all or part of its
obligations arising out of the exercise of the Stock Appreciation Right in cash
pursuant to Section 7.6, deliver to the grantee an amount in cash equal to the
fair market value, as of the date of exercise, of the shares of Common Stock it
would otherwise be obligated to deliver.
7.6 Cash Settlement. The Committee, in its discretion, may cause the
Company to settle all or any part of its obligation arising out of the exercise
of a Stock Appreciation Right by the payment of cash in lieu of all or part of
the shares of Common Stock it would otherwise be obligated to deliver in an
amount equal to the fair market value of such shares on the date of exercise.
ARTICLE 8
NONTRANSFERABILITY OF OPTIONS AND STOCK APPRECIATION RIGHTS
No Option or Stock Appreciation Right may be transferred, assigned, pledged
or hypothecated (whether by operation of law or otherwise), except as provided
by will or the
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applicable laws of descent and distribution, and no Option or Stock Appreciation
Right shall be subject to execution, attachment or similar process. Any
attempted assignment, transfer, pledge hypothecation or other disposition of an
Option or a Stock Appreciation Right not specifically permitted herein shall be
null and void and without effect. An Option or Stock Appreciation Right may be
exercised by grantee only during his or her lifetime, or following his or her
death pursuant to Article 10.
ARTICLE 9
TERMINATION OF EMPLOYMENT
9.1 Exercise after Termination of Employment. Except as the Committee may
at any time provide, in the event that the employment of a grantee to whom an
Option or Stock Appreciation Right has been granted under the Plan shall be
terminated (for reasons other than death or total disability), such Option or
Stock Appreciation Right may be exercised (to the extent that the grantee was
entitled to do so on the date of the termination of his employment) at any time
within three (3) months after such termination of employment.
9.2 Total Disability. In the event that a grantee to whom an Option or
Stock Appreciation Right has been granted under the Plan shall become totally
disabled, except as the Committee may at any time provide, such Option or Stock
Appreciation Right may be exercised at any time during the first nine (9) months
that the grantee receives benefits under the Long-Term Disability Plan (the
"Disability Plan") to the extent otherwise exercisable during such nine-month
period. For purposes hereof, "total disability" shall have the definition set
forth in the Disability Plan, which definition is hereby incorporated by
reference.
ARTICLE 10
DEATH OF EMPLOYEE
If an Employee to whom an Option or Stock Appreciation Right has been
granted under the Plan shall die while employed by the Company or one of its
subsidiaries or within three (3) months after the termination of such
employment, such Option or Stock Appreciation Right (whether or not then
exercisable by its terms) shall become immediately exercisable in full by the
Employee's estate or by the person who acquires the right to exercise such
Option or Stock Appreciation Right upon his or her death by bequest or
inheritance. Such exercise may occur at any time within one (1) year after the
date of the Employee's death or such other period as the Committee may at any
time provide, but in no case later than the date on which the Option or Stock
Appreciation Right would otherwise terminate.
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ARTICLE 11
RESTRICTED SHARES
11.1 Grant of Restricted Shares. The Committee may from time to time cause
the Company to grant Restricted Shares under the Plan to Employees, subject to
such restrictions, conditions and other terms as the Committee may determine.
11.2 Restrictions. (a) At the time a grant of Restricted Shares is made,
the Committee shall establish a period of time (the "Restricted Period")
applicable to such Restricted Shares. Each grant of Restricted Shares may be
subject to a different Restricted Period but except as set forth in subsection
(b) hereof in no event shall Restricted Period be less than the minimum
Restricted Period hereinafter set forth. The Committee may, in its sole
discretion, at the time a grant is made, prescribe restrictions in addition to
or other than the expiration of the Restricted Period, including the
satisfaction of corporate or individual performance objectives which may be
applicable to all or any portion of the Restricted Shares. Except as set forth
in subsection (b) hereof, the minimum Restricted Period shall be three (3) years
except in respect of Restricted Shares that are also subject to restrictions
relating to the satisfaction of corporate or individual performance objectives,
as to which the minimum Restricted Period shall be one (1) year.
(b) With respect to grants of Restricted Shares intended to qualify as
performance-based compensation for purposes of Section 162(m) of the Code, upon
the death of an Employee to whom Restricted Shares have been granted under the
Plan, to the extent that the performance-based goals established in respect of
such Restricted Shares have been satisfied for purposes of said Section 162(m),
any other restrictions or conditions applicable to the Restricted Shares shall
immediately terminate. Except as necessary to effect the termination of
restrictions contemplated by the foregoing sentence, the Committee shall have no
discretion to shorten or terminate the Restricted Period or waive any other
restrictions applicable to all or a portion of any Restricted Shares intended to
qualify as performance-based compensation for purposes of Section 162(m) of the
Code. With respect to grants of Restricted Shares not intended to so qualify as
performance-based compensation, upon the death of the holder of Restricted
Shares, all restrictions or conditions applicable to the Restricted Shares shall
immediately terminate; and upon the disability or retirement of the holder of
Restricted Shares or as permitted under Section 16 hereof, the Committee may, in
its sole discretion, shorten or terminate the Restricted Period or waive any
other restrictions applicable to all or a portion of such Restricted Shares.
None of the Restricted Shares may be sold, transferred, assigned, pledged or
otherwise encumbered or disposed of during the Restricted Period or prior to the
satisfaction of any other restrictions prescribed by the Committee with respect
to such Restricted Shares.
11.3 Restricted Stock Certificates. If the Committee deems it necessary or
appropriate, the Company may issue, in the name of each Employee to whom
Restricted Shares have been granted, stock certificates representing the total
number of Restricted Shares granted to the Employee, provided that such
certificates bear an appropriate legend or other restriction on transfer. If the
Restricted Shares are certificated, the Secretary of the Company shall hold such
certificates, properly endorsed for transfer, for the Employee's benefit until
such time as the Restricted Shares are forfeited to the Company, or the
restrictions lapse.
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11.4 Rights of Holders of Restricted Shares. Except as determined by the
Committee either at the time Restricted Shares are awarded or at any time
thereafter prior to the lapse of the restrictions, holders of Restricted Shares
shall not have the right to vote such shares or the right to receive any
dividends with respect to such shares. All distributions, if any, received by an
Employee with respect to Restricted Shares as a result of any stock split-up,
stock distribution, a combination of shares, or other similar transaction shall
be subject to the restrictions of this Article 11.
11.5 Forfeiture. Except as the Committee may at any time provide, any
Restricted Shares granted to an Employee pursuant to the Plan shall be forfeited
if the Employee terminates employment with the Company or its subsidiaries prior
to the expiration or termination of the Restricted Period and the satisfaction
of any other conditions applicable to such Restricted Shares. Upon such
forfeiture, the Secretary of the Company shall either cancel or retain in its
treasury the Restricted Shares that are forfeited to the Company.
11.6 Delivery of Restricted Shares. Upon the expiration or termination of
the Restricted Period and the satisfaction of any other conditions prescribed by
the Committee, the restrictions applicable to the Restricted Shares shall lapse
and a stock certificate for the number of Restricted Shares with respect to
which the restrictions have lapsed shall be delivered, free of all such
restrictions, to the Employee or the Employee's beneficiary or estate, as the
case may be.
11.7 Performance-Based Objectives. At the time of the grant of Restricted
Shares to an Employee, and prior to the beginning of the performance period to
which performance objectives relate, the Committee may establish performance
objectives based on any one or more of the following: price of Company Common
Stock or the stock of any affiliate, shareholder return, return on assets,
growth in assets, return on equity, return on investment, return on capital,
economic profit, economic value added, net income, operating income, gross
margin, sales, free cash flow, earnings per share. These factors shall have a
minimum performance standard below which no payments will be made. These
performance goals may be based on an analysis of historical performance and
growth expectations for the business, financial results of other comparable
businesses, and progress towards achieving the long-range strategic plan for the
business. These performance goals and determination of results shall be based
entirely on financial measures. The Committee may not use any discretion to
modify award results except as permitted under Section 162(m) of the Code.
ARTICLE 12
PERFORMANCE SHARES
12.1 Award of Performance Shares. For each Performance Period (as defined
in Section 12.2). Performance Shares may be granted under the Plan to such
Employees of the Company and its subsidiaries as the Committee shall determine.
Each Performance Share shall be deemed to be equivalent to one (1) share of
Common Stock. Performance Shares granted to an Employee
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shall be credited to an account (a "Performance Share Account") established and
maintained for such Employee.
12.2 Performance Period. "Performance Period" shall mean such period of
time as shall be determined by the Committee in its sole discretion. Different
Performance Periods may be established for different Employees receiving
Performance Shares. Performance Periods may run consecutively or concurrently.
12.3 Right to Payment of Performance Shares. With respect to each award of
Performance Shares under this Plan, the Committee shall specify performance
objectives (the "Performance Objectives") which must be satisfied in order for
the Employee to vest in the Performance Shares which have been awarded to him or
her for the Performance Period. If the Performance Objectives established for an
Employee for the Performance Period are partially but not fully met, the
Committee may, nonetheless, in its sole discretion, determine that all or a
portion of the Performance Shares have vested. If the Performance Objectives for
a Performance Period are exceeded, the Committee may, in its sole discretion,
grant additional, fully vested Performance Shares to the Employee. The Committee
may also determine, in its sole discretion, that Performance Shares awarded to
an Employee shall become partially or fully vested upon the Employee's death,
total disability (as defined in Article 9) or retirement, or upon the
termination of the Employee's employment prior to the end of the Performance
Period.
12.4 Payment for Performance Shares. As soon as practicable following the
end of a Performance Period, the Committee shall determine whether the
Performance Objectives for the Performance Period have been achieved (or
partially achieved to the extent necessary to permit partial vesting at the
discretion of the Committee pursuant to Section 12.3). If the Performance
Objectives for the Performance Period have been exceeded, the Committee shall
determine whether additional Performance Shares shall be granted to the Employee
pursuant to Section 12.3. As soon as reasonably practicable after such
determinations, or at such later date as the Committee shall determine at the
time of grant, the Company shall pay to the Employee an amount with respect to
each vested Performance Share equal to the fair market value of a share of
Common Stock on such payment date or, if the Committee shall so specify at the
time of grant, an amount equal to (i) the fair market value of a share of Common
Stock on the payment date less (ii) the fair market value of a share of Common
Stock on the date of grant of the Performance Share. Payment shall be made
entirely in cash, entirely in Common Stock (including Restricted Shares) or in
such combination of cash and Common Stock as the Committee shall determine.
12.5 Voting and Dividend Rights. No Employee shall be entitled to any
voting rights, to receive any dividends, or to have his or her Performance Share
Account credited or increased as a result of any dividends or other distribution
with respect to Common Stock. Notwithstanding the foregoing, within sixty (60)
days from the date of payment of a dividend by the Company on its shares of
Common Stock, the Committee, in its discretion, may credit an Employee's
Performance Share Account with additional Performance Shares having an aggregate
fair market value equal to the dividend per share paid on the Common Stock
multiplied by the number of Performance Shares credited to his or her account at
the time the dividend was declared.
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ARTICLE 13
PERFORMANCE UNITS
13.1 Award of Performance Units. For each Performance Period (as defined in
Section 12.2), Performance Units may be granted under the Plan to such Employees
of the Company and its subsidiaries as the Committee shall determine. The award
agreement covering such Performance Units shall specify a value for each
Performance Unit or shall set forth a formula for determining the value of each
Performance Unit at the time of payment (the "Ending Value"). If necessary to
make the calculation of the amount to be paid to the Employee pursuant to
Section 13.3, the Committee shall also state in the award agreement the initial
value of each Performance Unit (the "Initial Value"). Performance Units granted
to an Employee shall be credited to an account (a "Performance Unit Account")
established and maintained for such Employee.
13.2 Right to Payment of Performance Units. With respect to each award of
Performance Units under this Plan, the Committee shall specify Performance
Objectives which must be satisfied in order for the Employee to vest in the
Performance Units which have been awarded to him or her for the Performance
Period. If the Performance Objectives established for an Employee for the
Performance Period are partially but not fully met, the Committee may,
nonetheless, in its sole discretion, determine that all or a portion of the
Performance Units have vested. If the Performance Objectives for a Performance
Period are exceeded, the Committee may, in its sole discretion, grant
additional, fully vested Performance Units to the Employee. The Committee may
also determine, in its sole discretion, that Performance Units awarded to an
Employee shall become partially or fully vested upon the Employee's death, total
disability (as defined in Article 9) or retirement, or upon the termination of
employment of the Employee by the Company.
13.3 Payment for Performance Units. As soon as practicable following the
end of a Performance Period, the Committee shall determine whether the
Performance Objectives for the Performance Period have been achieved (or
partially achieved to the extent necessary to permit partial vesting at the
discretion of the Committee pursuant to Section 13.2). If the Performance
Objectives for the Performance Period have been exceeded, the Committee shall
determine whether additional Performance Units shall be granted to the Employee
pursuant to Section 13.2. As soon as reasonably practicable after such
determinations, or at such later date as the Committee shall determine, the
Company shall pay to the Employee an amount with respect to each vested
Performance Unit equal to the Ending Value of the Performance Unit or, if the
Committee shall so specify at the time of grant, an amount equal to (i) the
Ending Value of the Performance Unit less (ii) the Initial Value of the
Performance Unit. Payment shall be made entirely in cash, entirely in Common
Stock (including Restricted Shares) or in such combination of cash and Common
Stock as the Committee shall determine.
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ARTICLE 14
UNRESTRICTED SHARES
14.1 Award of Unrestricted Shares. The Committee may cause the Company to
grant Unrestricted Shares to Employees at such time or times, in such amounts
and for such reasons as the Committee, in its sole discretion, shall determine.
Except as required by applicable law, no payment shall be required for
Unrestricted Shares.
14.2 Delivery of Unrestricted Shares. The Company shall issue, in the name
of each Employee to whom Unrestricted Shares have been granted, stock
certificates representing the total number of Unrestricted Shares granted to the
Employee, and shall deliver such certificates to the Employee as soon as
reasonably practicable after the date of grant or on such later date as the
Committee shall determine at the time of grant.
ARTICLE 15
TAX OFFSET PAYMENTS
The Committee shall have the authority at the time of any award under this
Plan or anytime thereafter to make Tax Offset Payments to assist Employees in
paying income taxes incurred as a result of their participation in this Plan.
The Tax Offset Payments, which, if awarded, may be in cash or shares of Common
Stock, shall be determined by multiplying a percentage established by the
Committee by all or a portion (as the Committee shall determine) of the taxable
income recognized by an Employee upon (i) the exercise of a Nonstatutory Stock
Option or a Stock Appreciation Right, (ii) the disposition of shares received
upon exercise of an Incentive Stock Option, (iii) the lapse of restrictions on
Restricted Shares, (iv) the award of Unrestricted Shares or (v) payments for
Performance Shares or Performance Units. The percentage shall be established,
from time to time, by the Committee at that rate which the Committee, in its
sole discretion, determines to be appropriate and in the best interests of the
Company to assist Employees in paying income taxes incurred as a result of the
events described in the preceding sentence. Tax Offset Payments shall be subject
to the restrictions on transferability applicable to Options and Stock
Appreciation Rights under Article 8.
ARTICLE 16
ADJUSTMENT UPON CHANGES IN CAPITALIZATION
Notwithstanding any other provision of the Plan, the Committee may at any
time make or provide for such adjustments to the Plan, to the number and class
of shares available thereunder or to any outstanding Options, Stock Appreciation
Rights, Restricted Shares or Performance Shares as it shall deem appropriate to
prevent dilution or enlargement of rights, including adjustments in the event of
changes in the number of shares of outstanding Common Stock by reason of stock
dividends, split-ups, recapitalizations, mergers, consolidations, combinations
or exchanges of shares, separations, reorganizations, liquidations and the like.
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ARTICLE 17
AMENDMENT AND TERMINATION
The Board may suspend, terminate, modify or amend the Plan, provided that
any amendment that would (i) materially increase the aggregate number of shares
which may be issued under the Plan, (ii) materially modify the requirements as
to eligibility for participation in the Plan or (iii) reduce the exercise price
of Options previously granted under the Plan shall be subject to the approval of
the Company's stockholders, except that any such increase, modification or
reduction that may result from adjustments authorized by Article 16 does not
require such approval. If the Plan is terminated, the terms of the Plan shall,
notwithstanding such termination, continue to apply to awards granted prior to
such termination. No suspension, termination, modification or amendment of the
Plan may, without the consent of the Employee to whom an award shall theretofore
have been granted, adversely affect the rights of such Employee under such
award.
ARTICLE 18
WRITTEN AGREEMENT
Each award of Options, Stock Appreciation Rights, Restricted Shares,
Performance Shares, Performance Units, Unrestricted Shares and Tax Offset
Payments shall be evidenced by a written agreement, executed by the Employee and
the Company, and containing such restrictions, terms and conditions, if any, as
the Committee may require. In the event of any conflict between a written
agreement and the Plan, the terms of the Plan shall govern.
ARTICLE 19
MISCELLANEOUS PROVISIONS
19.1 Fair Market Value. "Fair market value" for purposes of this Plan,
shall be the closing price of the Common Stock as reported on the principal
exchange on which the shares are listed for the date on which the grant,
exercise or other transaction occurs, or if there were no sales on such date,
the most recent prior date on which there were sales.
19.2 Tax Withholding. The Company shall have the right to require Employees
or their beneficiaries or legal representatives to remit to the Company an
amount sufficient to satisfy federal, state and local withholding tax
requirements, or to deduct from all payments under this Plan, including Tax
Offset Payments, amounts sufficient to satisfy all withholding tax requirements.
Whenever payments under the Plan are to be made to an Employee in cash, such
payments shall be net of any amounts sufficient to satisfy all federal, state
and local withholding tax requirements. The Committee may, in its discretion,
permit an Employee to satisfy his or her
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tax withholding obligation either by (i) surrendering shares owned by the
Employee or (ii) having the Company withhold from shares otherwise deliverable
to the Employee. Shares surrendered or withheld shall be valued at their fair
market value as of the date on which income is required to be recognized for
income tax purposes. In the case of an award of Incentive Stock Options, the
foregoing right shall be deemed to be provided to the Employee at the time of
such award.
19.3 Compliance With Section 16(b) and Section 162(m). In the case of
Employees who are or may be subject to Section 16 of the Act, it is the intent
of the Company that any award granted hereunder satisfy and be interpreted in a
manner that satisfies the applicable requirements of Rule 16b-3, so that such
persons will be entitled to the benefits of Rule 16b-3 or other exemptive rules
under Section 16 of the Act and will not be subjected to liability thereunder.
If any provision of the Plan or any award would otherwise conflict with the
intent expressed herein, that provision, to the extent possible, shall be
interpreted and deemed amended so as to avoid such conflict. To the extent of
any remaining irreconcilable conflict with such intent, such provision shall be
deemed void as applicable to Employees who are or may be subject to Section 16
of the Act. If any award hereunder is intended to qualify as performance-based
for purposes of Section 162(m) of the Code, the Committee shall not exercise any
discretion to increase the payment under such award except to the extent
permitted by Section 162(m) and the regulations thereunder.
19.4 Successors. The obligations of the Company under the Plan shall be
binding upon any successor corporation or organization resulting from the
merger, consolidation or other reorganization of the Company, or upon any
successor corporation or organization succeeding to substantially all of the
assets and businesses of the Company. In the event of any of the foregoing, the
Committee may, at its discretion prior to the consummation of the transaction,
cancel, offer to purchase, exchange, adjust or modify any outstanding awards, at
such time and in such manner as the Committee deems appropriate and in
accordance with applicable law.
19.5 General Creditor Status. Employees shall have no right, title, or
interest whatsoever in or to any investments which the Company may make to aid
it in meeting its obligations under the Plan. Nothing contained in the Plan, and
no action taken pursuant to its provisions, shall create or be construed to
create a trust of any kind, or a fiduciary relationship between the Company and
any Employee or beneficiary or legal representative of such Employee. To the
extent that any person acquires a right to receive payments from the Company
under the Plan, such right shall be no greater than the right of an unsecured
general creditor of the Company. All payments to be made hereunder shall be paid
from the general funds of the Company and no special or separate fund shall be
established and no segregation of assets shall be made to assure payment of such
amounts except as expressly set forth in the Plan.
19.6 No Right to Employment. Nothing in the Plan or in any written
agreement entered into pursuant to Article 18, nor the grant of any award, shall
confer upon any Employee any right to continue in the employ of the Company or a
subsidiary or to be entitled to any remuneration or benefits not set forth in
the Plan or such written agreement or interfere with or limit the right of the
Company or a subsidiary to modify the terms of or terminate such Employee's
employment at any time.
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19.7 Notices. Notices required or permitted to be made under the Plan shall
be sufficiently made if sent by registered or certified mail addressed (a) to
the Employee at the Employee's address as set forth in the books and records of
the Company or its subsidiaries, or (b) to the Company or the Committee at the
principal office of the Company.
19.8 Severability. In the event that any provision of the Plan shall be
held illegal or invalid for any reason, such illegality or invalidity shall not
affect the remaining parts of the Plan, and the Plan shall be construed and
enforced as if the illegal or invalid provision had not been included.
19.9 Governing Law. To the extent not preempted by federal law, the Plan,
and all agreements hereunder, shall be construed in accordance with and governed
by the laws of the State of Arkansas.
19.10 Term of Plan. Unless earlier terminated pursuant to Article 17
hereof, the Plan shall terminate on the earlier of the tenth (10th) anniversary
of the date of adoption of the Plan by the Board or March ____, 2016.
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