EXHIBIT 10.1
CIB MARINE BANCSHARES, INC.
1999 STOCK OPTION AND INCENTIVE PLAN
(AS AMENDED SEPTEMBER 1, 1999 AND APRIL 26, 2001, AND AS
ADJUSTED TO REFLECT THE JULY 1, 2000 STOCK SPLIT IN
THE FORM OF A STOCK DIVIDEND)
1. PURPOSE
CIB Marine Bancshares, Inc., a Wisconsin corporation ("CIBM"), hereby
establishes the CIB Marine Bancshares, Inc. 1999 Stock Option and Incentive
Plan, effective January 1, 1999 (the "1999 Plan"). The purpose of the 1999 Plan
is to enable CIBM and its subsidiaries to attract, retain, and reward key
managerial employees ("Key Employees") and non-employee members of the board of
directors of CIBM or its subsidiaries (references hereinafter to "Board" means
the Board of Directors of CIBM and any subsidiary of CIBM, as the context
dictates, unless otherwise indicated) ("Nonemployee Directors") by offering them
an opportunity to have a greater proprietary interest in and closer identity
with CIBM and its subsidiaries and with their financial success. An option
granted under the 1999 Plan to a Key Employee to purchase shares of CIBM's
common stock, $1.00 par value ("Common Stock"), may be an incentive stock option
("ISO") as defined in Section 422 of the Internal Revenue Code of 1986 as
heretofore or hereafter amended ("Code") or a nonqualified stock option ("NSO")
(collectively referred to as "Options"). An Option that is not an ISO shall be
an NSO. Nonemployee Directors shall be granted NSOs under Section 6 of the 1999
Plan. Proceeds received by CIBM from shares of Common Stock acquired pursuant to
Options granted under the 1999 Plan shall be used for general corporate
purposes.
2. MERGER OF PREDECESSOR STOCK OPTION PLANS
Effective January 1, 1999, all of CIBM's stock option plans listed on
the attached schedule shall be merged into the 1999 Plan (collectively referred
to as the "Merged Plans"). Each outstanding stock option issued under a Merged
Plan shall be assumed by the 1999 Plan ("Assumed Option"). Each existing stock
option agreement entered into with respect to an Assumed Option under a Merged
Plan shall be replaced by an amended and restated stock option agreement
("Restated Agreement") between CIBM and the Participant (hereinafter defined)
and each Assumed Option shall be subject to the terms of the 1999 Plan and the
Restated Agreement from and after January 1, 1999 and the Merged Plans shall
have no further force or effect. Upon execution of a Restated Agreement, any
prior stock option agreements with the Participant shall be deemed canceled and
of no further force and effect. References herein to Options include Assumed
Options, unless otherwise indicated.
3. ADMINISTRATION
The 1999 Plan shall be administered by a committee ("Committee")
appointed by the Board. The Committee shall be composed of not fewer than three
Nonemployee Directors, all of whom are "nonemployee directors" within the
meaning of Rule 16(b)-3 under the Securities Exchange Act of 1934 and "outside
directors" within the meaning of Section 162(m) of the Code. Except as otherwise
provided in the 1999 Plan, the Committee may interpret the 1999 Plan, prescribe,
amend and rescind rules and regulations relating to it, determine the terms and
provisions of options granted under the 1999 Plan (which need not be identical),
and make such other determinations as it deems necessary and advisable for the
administration of the 1999 Plan. A majority of the Committee members shall
constitute a quorum. All determinations
1999 STOCK OPTION AND INCENTIVE PLAN PAGE 2
of the Committee shall be made by a majority of its members. Any decision or
determination reduced to writing, and signed by all of the members, shall be
fully as effective as if it had been made by a majority vote at a meeting duly
called and held. The Committee shall also have express authorization to hold
Committee meetings by means of conference telephone, or similar communications
equipment, by which all persons participating in the meeting can hear each
other. The Committee may delegate decisions with respect to Options granted to
Key Employees who are not elected officers or directors of CIBM or its
subsidiaries to such elected officer or officers of CIBM as the Committee
determines, and subject to Sections 7 and 20, the Committee may delegate
decisions with respect to Key Employees who are elected officers of CIBM or its
subsidiaries to the Chief Executive Officer of CIBM (the "Chief Executive
Officer"). The decisions of the Committee or the Chief Executive Officer under
the 1999 Plan shall be conclusive and binding. No member of the Board or the
Committee, or the Chief Executive Officer, shall be liable for any action taken
or determination made hereunder in good faith. Service on the Committee shall
constitute service as a director of CIBM so that the members of the Committee
shall be entitled to indemnification and reimbursement as directors of CIBM
pursuant to its by-laws.
4. ELIGIBILITY
Key Employees who have been selected to receive an Option shall
participate in the 1999 Plan. Nonemployee Directors shall participate in the
1999 Plan through grants of NSOs pursuant to Section 6 hereof. (Key Employees
and Nonemployee Directors who participate in the 1999 Plan shall be collectively
referred to as "Participants"). The Committee or the Chief Executive Officer, as
applicable, shall determine, within the limits of the express provisions of the
1999 Plan, those Participants to whom, and the time or times at which, Options
shall be granted. The Committee or the Chief Executive Officer, as applicable,
shall also determine, with respect to Options granted to Participants, the
number of shares of Common Stock to be subject to each such Option; the duration
of each Option; the exercise price under each Option; the time or times within
which (during the term of the Option) all or portions of each Option may be
exercised; whether cash, Common Stock, or other property may be accepted in full
or partial payment upon exercise of an Option; any other terms and conditions of
such Options; and in the case of Options granted to Key Employees, the type of
Options (ISO or NSO). In making such determinations, the Committee or Chief
Executive Officer, as applicable, may take into account the nature of the
services rendered by the Participant, his or her present and potential
contributions to CIBM's success and such other factors as the Committee or the
Chief Executive Officer, as applicable, in its or his discretion shall deem
relevant.
5. COMMON STOCK
The total number of shares of Common Stock that may be subject to
Options under the 1999 Plan at any date shall be the greater of (a) 10% of the
issued and outstanding shares of Common Stock on such date, reduced by the
number of shares of Common Stock issued as a result of Options exercised
pursuant to the 1999 Plan; or (b) 1,762,500 shares of Common Stock less the
number of shares of Common Stock issued as a result of Options exercised
pursuant to the 1999 Plan. Such total number of shares shall be adjusted in
accordance with the provisions of Section 12 hereof. All shares issued under the
1999 Plan may be either authorized but unissued shares or reacquired shares.
Notwithstanding anything to the contrary in the 1999 Plan, the total number of
shares of Common Stock that may be subject to ISOs under the 1999 Plan shall be
1,762,500 shares, adjusted in accordance with Section 12 hereof.
1999 STOCK OPTION AND INCENTIVE PLAN PAGE 3
The total number of shares of Common Stock available for Option grants under the
1999 Plan shall be the number of shares of Common Stock subject to Options
calculated pursuant to (a) or (b) above, less the number of shares of Common
Stock granted pursuant to outstanding Options that remain unexercised. Any
Option granted under the 1999 Plan that expires unexercised or is terminated,
surrendered, forfeited, canceled or reacquired without being exercised, in whole
or in part, for any reason, shall not be considered outstanding or exercised for
determining the number of shares available for Option grants under the 1999
Plan.
6. GRANTS TO NONEMPLOYEE DIRECTORS
NSOs may be granted to Nonemployee Directors at any time and from time
to time as shall be determined by the Committee. The Committee shall have
discretion in determining the number of shares of Common Stock subject to
issuance to a Nonemployee Director.
7. GRANTS TO KEY EMPLOYEES
Options may be granted to Key Employees at any time and from time to
time as shall be determined by the Chief Executive Officer; provided that a
grant to the Chief Executive Officer shall be determined by the Committee.
Subject to the limitation on the total number of shares subject to issuance to a
Key Employee in subsection 9(d), the Committee or the Chief Executive Officer,
as applicable, shall have complete discretion in determining the number of
shares of Common Stock subject to Options granted to each Key Employee. The
Committee or the Chief Executive Officer, as applicable, may grant to a Key
Employee any type of Option to purchase Common Stock that is permitted by law at
the time of the grant, including ISOs. Unless otherwise expressly provided at
the time of grant, Options granted to Key Employees under the 1999 Plan will not
be ISOs.
8. REQUIRED TERMS AND CONDITIONS OF ISOS
The provisions of each ISO granted to a Key Employee under this Section
8 shall be interpreted in a manner consistent with Section 422 of the Code and
with all regulations issued thereunder. Each ISO granted to a Key Employee shall
be in such form and subject to such restrictions and conditions and other terms
as the Committee may determine at the time of grant, subject to the general
provisions of the 1999 Plan, Section 422 of the Code, the applicable Option
Agreement and the following specific rules:
(a) Exercise Price. Except as otherwise provided, the per share
exercise price of each ISO shall be at least 100% of the Fair Market Value of
the Common Stock at the time such ISO is granted, provided that in the case of
an ISO granted to a Key Employee who at the time of grant owns (as defined in
Section 424(d) of the Code) stock of CIBM or any of its subsidiaries possessing
more than 10% of the total combined voting power of all classes of stock of any
such corporation, the exercise price shall be at least 110% of the Fair Market
Value of the Common Stock subject to the ISO at the time such ISO is granted and
the ISO by its terms shall not be exercisable after the expiration of five years
from the date the ISO is granted.
(b) Maximum Term. Subject to earlier termination as provided in Section
11, each ISO shall expire on the date determined in the applicable Option
Agreement at the time the ISO is granted, provided that no ISO shall be
exercisable after the expiration of 10 years from the date it is granted, except
as otherwise provided in subsection (a) next above.
1999 STOCK OPTION AND INCENTIVE PLAN PAGE 4
(c) Time of Exercise. The Committee or the Chief Executive Officer, as
applicable, shall specify in the Option Agreement, at the time each ISO is
granted, the duration of each ISO and the time or times within which (during the
term of the ISO) all or portions of each ISO may be exercised, except to the
extent that other terms of exercise are specifically provided by other
provisions of the 1999 Plan.
(d) Value of Shares. The aggregate Fair Market Value (determined at the
time of grant) of Common Stock with respect to which ISOs are exercisable for
the first time by a Key Employee during any calendar year (under all option
plans of CIBM or of a corporation which, at the time such ISO was granted, is a
parent or subsidiary of CIBM, or is a predecessor corporation of any such
corporation) shall not exceed $100,000. If the aggregate Fair Market Value
(determined at the time of grant) of the stock subject to an Option, which first
becomes exercisable in any calendar year and during this period exceeds the
limitation of this subsection, so much of the Option that does not exceed the
applicable dollar limit shall be an ISO and the remainder shall be an NSO; but
in all other respects, the original Option Agreement shall remain in full force
and effect.
(e) Conversion. The Committee or the Chief Executive Officer, as
applicable, may, in its or his sole discretion, cause CIBM to convert an ISO to
an NSO upon such terms and conditions and in such manner as the Committee or the
Chief Executive Officer, as applicable, deems appropriate in its or his sole
discretion.
9. REQUIRED TERMS AND CONDITIONS OF NSOS
Each NSO granted to a Participant shall be in such form and subject to
such restrictions and conditions and other terms as the Committee or the Chief
Executive Officer, as applicable, may determine at the time of grant, subject to
the general provisions of the 1999 Plan, the applicable Option Agreement, and
the following specific rules:
(a) Exercise Price. The number of shares of Common Stock subject to
each NSO and the per share exercise price of each NSO shall be determined by the
Committee or the Chief Executive Officer, as applicable, at the time the NSO is
granted, provided that such exercise price shall be at least 100% of the Fair
Market Value of the Common Stock on the date the NSO is granted. The exercise
price of an Assumed Option shall be at least Fair Market Value or a multiple of
the Fair Market Value of the Common Stock at the date the Assumed Option is
granted, as specified in the agreement evidencing the grant of the Assumed
Option.
(b) Maximum Term. Subject to earlier termination as provided in Section
10, each such NSO shall expire on the date determined in the applicable Option
Agreement at the time the NSO is granted, provided that such date shall not be
more than 10 years after the date of grant.
(c) Time of Exercise. The Committee or the Chief Executive Officer, as
applicable, shall specify in the Option Agreement at the time each NSO is
granted, the duration of each NSO and the time or times within which (during the
term of the NSO) all or portions of each NSO many be exercised, except to the
extent that other terms of exercise are specifically provided by other
provisions of the 1999 Plan.
1999 STOCK OPTION AND INCENTIVE PLAN PAGE 5
(d) Maximum Number of Shares subject to Option. The total number of
shares with respect to which Options may be granted under the 1999 Plan to any
Key Employee during any 12-month period shall not exceed 150,000 shares;
provided, however, that such number of shares may be adjusted from time to time
in accordance with Section 12 hereof. No Participant shall hold or exercise an
Option, or Options, under the 1999 Plan (other than an "Assumed Option") for the
purchase of an aggregate number of shares in excess of 25% of the total number
of shares available for future grants of Options under the 1999 Plan, as such
number may be adjusted in accordance with Section 12.
(e) Option Agreement. Each Option shall be evidenced by a written
agreement specifying the type of Option to be granted in the case of a Key
Employee, the Option exercise price, the terms for payment of the exercise
price, the duration of the Option, and the number of shares of Common Stock to
which the Option pertains (the "Option Agreement"). An Option Agreement may also
contain a vesting schedule, a noncompetition agreement, a confidentiality
provision, and such restrictions and conditions and other terms as the Committee
or the Chief Executive Officer, as applicable, in its or his sole discretion,
shall from time to time determine. Option Agreements need not be identical. The
Option Agreement shall provide that it does not confer upon the Participant any
right to continue in the employ of CIBM, or any such subsidiary, or as a member
of the Board, and that it does not prejudice or interfere in any way with the
right of CIBM or of any subsidiary to terminate the employment of a Key Employee
at any time.
(f) The Committee or the Chief Executive Officer, as applicable, in its
or his sole discretion, shall have the power and authority to accelerate the
dates for exercise of any or all Options, or any part thereof, granted to a
Participant under the 1999 Plan.
10. EXPIRATION OF OPTIONS; TERMINATION OF EMPLOYMENT, DISABILITY, DEATH,
AND EXPIRATION OF RESTRICTIONS UPON OCCURRENCE OF SPECIFIED EVENTS
(a) General Rule. Except with respect to Options expiring pursuant to
subsection 10(b), (c) or (d) below, each Option granted to a Participant shall
expire on the expiration date or dates set forth in the applicable Option
Agreement. Each Option expiring pursuant to subsection 10(b), (c) or (d) below
shall expire on the date set forth in subsection 10(b), (c) or (d)
notwithstanding any restrictions and conditions that may be contained in a
Participant's Option Agreement.
(b) Expiration Upon Termination of Employment or Service on the Board.
If a Participant ceases to be an employee of CIBM or any of its subsidiaries, or
ceases to serve on the Board, due to the voluntary resignation of the
Participant, or a termination by CIBM or any of its subsidiaries for Cause, then
all of such Participant's Options shall be null and void and shall terminate. If
a Participant ceases to be an employee of CIBM or any of its subsidiaries or
ceases to serve on the Board of CIBM or any of its subsidiaries due to
termination without Cause by CIBM or any of its subsidiaries, then all of such
Participant's Options shall expire on the first to occur of (i) the applicable
date or dates determined pursuant to section 10(a) or (ii) the date ninety (90)
days after the date that the employment of the Participant with CIBM or its
subsidiaries, or service of the Participant on the Board, terminates.
(c) Expiration Upon Disability or Death. If the employment of a
Participant with CIBM and its subsidiaries, or service on the Board, terminates
by reason of disability (as determined by the Committee or the Chief Executive
Officer, as applicable), all of the Participant's unexercised Options may be
exercised by the Participant, whether or not otherwise exercisable at the date
of disability, within twelve (12) months after the date of
1999 STOCK OPTION AND INCENTIVE PLAN PAGE 6
disability, but in no event later than the expiration date of such Options. If a
Participant dies while in the employ of CIBM and its subsidiaries, or during
such Participant's service on the Board, all of the Participant's unexercised
Options, whether or not otherwise exercisable at the date of death, may be
exercised within twelve (12) months after the date of death by the person
specified in Section 11, but in no event later than the expiration date of such
Options.
(d) Expiration Upon Occurrence of Specified Events. Upon the occurrence
of any event described in subsection 12(b), each Participant's outstanding
Options shall become immediately vested and exercisable. In such event, the
Participant may elect to exercise in whole or in part any or all of his or her
Options, in accordance with the terms of Section 11, notwithstanding any
restrictions and conditions that may be contained in his or her Option
Agreement.
(e) "Cause" shall mean: a) the willful failure of Participant to
substantially perform his or her duties with CIBM or any of its subsidiaries
(other than any such failure resulting from Participant's incapacity due to
physical or mental illness) after a written demand for substantial performance
is delivered to Participant specifically identifying the manner in which
Participant has not substantially performed his or her duties; b) any willful
act of misconduct by Participant which is materially injurious to CIBM or it
subsidiaries (monetarily or otherwise); c) criminal indictment or conviction of
Participant for any felony or act involving dishonesty, breach of trust, or a
violation of the laws of the United States or any state of the United States; d)
a breach of fiduciary duty involving personal profit; e) a willful violation of
any law, rule, regulation or final cease and desist order; f) incompetence,
personal dishonesty or material violation of any employment policy of CIBM or
any of its subsidiaries relating to Participant which would have a material
adverse effect on CIBM or any of its subsidiaries; or g) suspension, removal
and/or prohibition (whether temporary or permanent) by any banking or similar
regulatory authority from participation in the affairs of CIBM or any of its
subsidiaries.
11. METHOD OF EXERCISE OF OPTIONS
Any Option may be exercised by the Participant, by a legatee or
legatees of such Option under the Participant's last will, by his or her
executors, personal representatives or distributees, or in the case of an NSO by
his or her assignee or assignees as provided in Section 14 below, by delivering
to the Secretary of CIBM written notice of the number of shares of Common Stock
with respect to which the Option is being exercised, accompanied by full payment
to CIBM of the exercise price of the shares being purchased under the Option,
and by satisfying all other conditions provided for in the 1999 Plan. Except as
otherwise provided in the 1999 Plan or in any Option Agreement, the exercise
price of Common Stock upon exercise of any Option by a Participant shall be paid
in full (i) in cash, (ii) in Common Stock which has been held by the Participant
for not less than six months prior to the exercise of the Option, valued at its
Fair Market Value on the date of exercise, (iii) in cash by a broker-dealer to
whom the holder of the Option has submitted an exercise notice consisting of a
fully endorsed Option, or (iv) by such other medium of payment as the Committee
or the Chief Executive Officer, as applicable, in its or his sole discretion,
shall authorize, or by any combination of (i), (ii), or (iii), at the sole
discretion of the Committee or the Chief Executive Officer, as applicable, or in
any manner provided in the Option Agreement, except by directing CIBM to
withhold shares of Common Stock otherwise issuable upon the exercise of the
Option in payment of the exercise price. In the case of payment pursuant to (ii)
or (iii), above, the Participant's election must be made on or prior to the date
of exercise of the Option and must be irrevocable. In lieu of a separate
election governing each exercise of an Option, a Participant may file a blanket
election which shall govern all future exercises of Options until revoked by the
Participant. CIBM shall issue, in
1999 STOCK OPTION AND INCENTIVE PLAN PAGE 7
the name of the Participant (or, if applicable, the legatee(s), executor(s),
personal representative(s), or distributee(s) of a deceased Participant, or the
assignee(s) as provided in Section 14), stock certificates representing the
total number of shares of Common Stock issuable pursuant to the exercise of any
Option as soon as reasonably practicable after such exercise, provided that any
Common Stock purchased by a Participant through a broker-dealer pursuant to
clause (iii) above shall be delivered to such broker-dealer in accordance with
12 CFR ss. 220.3(e)(4).
12. ADJUSTMENTS
(a) Appropriate adjustment in the maximum number of shares of Common
Stock issuable pursuant to the 1999 Plan, the maximum number of shares of Common
Stock with respect to which Options may be granted within any 12-month period to
any Key Employee or to any Participant during the duration of the Plan, the
number of shares subject to Options granted under the 1999 Plan or the Merged
Plans, and the exercise price with respect to Options, shall be made to give
effect to any increase or decrease in the number of shares of issued Common
Stock resulting from a subdivision or consolidation of shares whether through
reorganization, recapitalization, stock split, reverse stock split, spin-off,
split-off, spin-out, or other distribution of assets to shareholders, stock
distributions or combination of shares, assumption and conversion of outstanding
Options due to an acquisition by CIBM of the stock or assets of any other
corporation, payment of stock dividends, other increase or decrease in the
number of such shares outstanding effected, without receipt of consideration by
CIBM, or any other occurrence for which the Committee determines an adjustment
is appropriate. If the number of shares of Common Stock subject to an Option has
been adjusted pursuant to this paragraph, the decision of the Committee as to
the amount and timing of any such adjustments shall be conclusive.
(b) Upon the earliest to occur of:
(i) the acquisition by any entity, person, or group
of beneficial ownership, as that term is defined in Rule 13d-3
under the Exchange Act, of more than 15% of the outstanding
capital stock of CIBM entitled to vote for the election of
directors ("Voting Stock");
(ii) the commencement by an entity, person, or group
(other than CIBM or a subsidiary of CIBM) of a tender offer or
an exchange offer for more than 15% of the outstanding Voting
Stock of CIBM; or
(iii) the effective date of (A) a merger or
consolidation of CIBM with one or more other corporations as a
result of which the holders of the outstanding Voting Stock of
CIBM immediately prior to such merger or consolidation hold
less than 60% of the voting stock of the surviving or
resulting corporation, or (B) a transfer of substantially all
of the assets of CIBM other than to an entity of which CIBM
owns at least 80% of the voting stock; or
(iv) the election to the CIBM Board, without the
recommendation or approval of the incumbent CIBM Board, of the
lesser of: (a) three directors; or (B) directors constituting
a majority of the number of directors of the CIBM Board then
in office; or
1999 STOCK OPTION AND INCENTIVE PLAN PAGE 8
(v) the occurrence of any transaction, merger or
consolidation of CIBM whereby the Chief Executive Officer of
CIBM immediately prior to the consummation of such transaction
is not the Chief Executive Officer of the surviving or
resulting company and the members of the CIBM Board, or any
number thereof immediately prior to the consummation of such
transaction, do not constitute a majority plus one director of
the total number of directors appointed to the Board of
Directors of the surviving or resulting company; or
(vi) the liquidation or dissolution of CIBM;
then as set forth in Subsection 10(d), all unexercised Options shall
become immediately vested and exercisable, whether or not otherwise
exercisable at such time, and may be exercised at any time during the
term set forth in the applicable Option Agreement.
(c) The Committee shall make all determinations relating to the
applicability and interpretation of this Section 12, and all such determinations
shall be conclusive and binding.
13. TERMS AND CONDITIONS OF OPTIONS
(a) In order for an Option to be effective, each Participant shall
agree to such restrictions and conditions and other terms in connection with the
exercise of an Option, including restrictions and conditions on the disposition
of the Common Stock acquired upon the exercise, grant or sale thereof, as the
Committee may deem appropriate. The certificates delivered to a Participant
evidencing the shares of Common Stock acquired upon exercise of an Option may
bear a legend referring to the restrictions and conditions and other terms
contained in the respective Option Agreement and the 1999 Plan, and CIBM may
place a stop transfer order with its transfer agent against the transfer of such
shares. If requested to do so by the Committee at the time of exercise of an
Option, each Participant shall execute a written instrument stating that he or
she is purchasing the Common Stock for investment and not with any present
intention to sell the same.
(b) The obligation of CIBM to sell and deliver Common Stock under the
1999 Plan shall be subject to all applicable laws, regulations, rules and
approvals, including, but not by way of limitation, the effectiveness of a
registration statement under the Securities Act of 1933, if deemed necessary by
the Committee, of the Common Stock and Options reserved for issuance or that may
be offered under the 1999 Plan. A Participant shall have no rights as a
shareholder with respect to any shares covered by an Option granted to, or
exercised by, him or her until the date of delivery of a stock certificate to
him or her for such shares. No adjustment other than pursuant to Section 12(a)
hereof shall be made for dividends or other rights for which the record date is
prior to the date such stock certificate is delivered.
14. NONTRANSFERABILITY
(a) Except as provided in subsection (b) next below, Options governed
hereby and any rights and privileges pertaining thereto, may not be transferred,
assigned, pledged or hypothecated in any manner, by operation of law or
otherwise, other than by will or by the laws of descent and distribution, and
shall not be subject to execution, attachment or similar process. The granting
of an Option shall impose no obligation upon the applicable Participant to
exercise such Option.
1999 STOCK OPTION AND INCENTIVE PLAN PAGE 9
(b) Notwithstanding the provisions of subsection (a) above, a
Participant, at any time prior to his or her death, may assign all or any
portion of an Option granted to him or her (other than an ISO) to (i) his or her
spouse or lineal descendant, (ii) the trustee of a trust for the primary benefit
of his or her spouse or lineal descendant, (iii) a partnership of which his or
her spouse and lineal descendants are the only partners, or (iv) a tax exempt
organization as described in Section 501(c)(3) of the Code. In such event, the
spouse, lineal descendant, trustee, partnership or tax exempt organization will
be entitled to all of the rights of the Participant with respect to the assigned
portion of such Option, and such portion of the Option will continue to be
subject to all of the terms, conditions and restrictions applicable to the
Option, as set forth herein and in the related Option Agreement immediately
prior to the effective date of the assignment. Any such assignment will be
permitted only if (i) the Participant does not receive any consideration
therefore, and (ii) the assignment is expressly permitted by the applicable
Option Agreement and approved by the Committee. Any such assignment shall be
evidenced by an appropriate written document executed by the Participant, and a
copy thereof shall be delivered to CIBM on or prior to the effective date of the
assignment.
15. INDEMNIFICATION OF THE COMMITTEE AND CHIEF EXECUTIVE OFFICER
In addition to such other rights of indemnification as they may have as
members of the Board, or as members of the Committee, or as its delegatees, or
as the Chief Executive Officer, the members of the Committee and its delegatees
and the Chief Executive Officer shall be indemnified by CIBM against (a) the
reasonable expenses (as such expenses are incurred), including attorneys' fees
actually and necessarily incurred in connection with the defense of any action,
suit or proceeding (or in connection with any appeal therein), to which they or
any of them may be a party by reason of any action taken or failure to act under
or in connection with the 1999 Plan, or any Option granted hereunder; and (b)
against all amounts paid by them in settlement thereof (provided such settlement
is approved by independent legal counsel selected by CIBM) or paid by them in
satisfaction of a judgment in any such action, suit or proceeding, except in
relation to matters as to which it shall be adjudged in such action, suit or
proceeding that such Committee member or delegatee, or the Chief Executive
Officer, as applicable, is liable for gross negligence or gross misconduct in
the performance of his or her duties; provided that within 60 days after
institution of any such action, suit or proceeding a Committee member or
delegatee or the Chief Executive Officer shall in writing offer CIBM the
opportunity, at its own expense, to handle and defend the same.
16. NO CONTRACT OF EMPLOYMENT OR SERVICE ON THE BOARD
Neither the adoption of the 1999 Plan nor the grant of any Option shall
be deemed to obligate CIBM or any subsidiary to continue the employment or
service on the Board of any Participant for any particular period, nor shall the
granting of an Option constitute a request or consent to postpone the retirement
date of any Participant.
17. TERMINATION AND AMENDMENT OF 1999 PLAN
(a) No ISOs shall be granted under the 1999 Plan more than ten years
after the first to occur of (i) the date the 1999 Plan was adopted by the Board
or (ii) the date the 1999 Plan was approved by the shareholders of CIBM. The
Board may at any time terminate, suspend, amend, or modify the 1999 Plan without
the authorization of shareholders to the extent allowed by law, including
without limitation any rules issued by the Securities and Exchange Commission
under Section 16 of the Securities Exchange Act of 1934, or the rules of any
1999 STOCK OPTION AND INCENTIVE PLAN PAGE 10
national securities exchange or automated quotation system on which the Common
Stock is then listed or quoted.
(b) Unless required by law, no termination, suspension, amendment or
modification of the 1999 Plan shall adversely affect any right acquired by any
Participant under an Option granted before the date of such termination,
suspension, amendment or modification, unless such Participant shall consent;
but it shall be conclusively presumed that any adjustment for changes in
capitalization as provided for herein does not adversely affect any such right.
18. EFFECTIVE DATE OF 1999 PLAN
The 1999 Plan shall become effective upon adoption by the Board;
provided, however, that it shall be submitted for approval by the holders of a
majority of the outstanding shares of Common Stock of CIBM present, or
represented, and entitled to vote at a shareholders' meeting held within 12
months thereafter, and Options, but excluding Assumed Options, granted prior to
such shareholder approval shall become null and void if such shareholder
approval is not obtained.
19. WITHHOLDING TAXES
Whenever CIBM proposes or is required to issue or transfer shares of
Common Stock to a Participant under the 1999 Plan, CIBM or the Committee shall
have the right to require the Participant to remit to CIBM an amount sufficient
to satisfy all federal, state and local withholding tax requirements prior to
the delivery of any certificate or certificates for such shares. If such
certificates have been delivered prior to the time a withholding obligation
arises, CIBM shall have the right to require the Participant to remit to CIBM an
amount sufficient to satisfy all federal, state or local withholding tax
requirements at the time such obligation arises and to withhold from other
amounts payable to the Participant, as compensation or otherwise, as necessary.
A Participant may elect to satisfy his or her tax withholding obligation
incurred with respect to the Taxable Date of an Option by (a) directing CIBM to
withhold a portion of the shares of Common Stock otherwise distributable to the
Participant, or (b) by transferring to CIBM a certain number of shares of Common
Stock either subject to an Option being exercised or previously owned, such
shares being valued at the Fair Market Value thereof on the Taxable Date.
Notwithstanding any provision of the 1999 Plan to the contrary, a Participant's
election pursuant to the preceding sentence (a) must be made on or prior to the
Taxable Date with respect to such Option, and (b) must be irrevocable. In lieu
of a separate election on each Taxable Date of an Option, a Participant may make
a blanket election with the Committee that shall govern all future Taxable Dates
until revoked by the Participant. If the holder of shares of Common Stock
purchased in connection with the exercise of an ISO disposes of such shares
within two years of the date such ISO was granted or within one year of such
exercise, he or she shall notify CIBM of such disposition and remit an amount
necessary to satisfy applicable withholding requirements including those arising
under federal income tax laws. If such holder does not remit such amount, CIBM
may withhold all or a portion of any amounts then or in the future owed to such
holder as necessary to satisfy such requirements. Taxable Date means the date a
Participant recognizes income with respect to an Option under the Code or any
applicable state or local income tax law.
20. RATIFICATION OF AWARDS
The determination by the Committee or the Chief Executive Officer, as
applicable, to grant any Award under the Plan on or after January 1, 1999, must
be ratified in full by the Board
1999 STOCK OPTION AND INCENTIVE PLAN PAGE 11
of Directors of CIBM. Any such Award which is not ratified in full by the Board
of Directors of CIBM within 60 days after the date of grant thereof shall be
null and void.
21. LEAVES OF ABSENCE
A period of leave of absence shall not be deemed a termination of
employment or service on the Board for purposes of Options granted under the
1999 Plan, if:
(i) such leave of absence is expressly approved in writing by the
Committee or the Chief Executive Officer, as applicable, as a leave of absence
for purposes of the 1999 Plan; or
(ii) to the extent required by the Family and Medical Leave Act or
other applicable law. Except as provided above, a leave of absence shall be
deemed a termination of employment or service on the Board for purposes of
Options governed by the 1999 Plan.
22. GOVERNING LAW
The 1999 Plan, and all agreements hereunder, shall be construed in
accordance with and governed by the laws of the State of Wisconsin and, in the
case of ISOs, Section 422 of the Code and regulations issued thereunder.
23. FAIR MARKET VALUE
"Fair Market Value" as of a given date for all purposes of the 1999
Plan and any Option Agreement means (a) if the Common Stock is listed on a
national securities exchange or the Nasdaq Stock Market's National Market, the
average of the closing prices of the Common Stock for the 10 consecutive trading
days immediately preceding such given date; (b) if the Common Stock is
principally traded on a national securities exchange or the Nasdaq Stock
Market's National Market but there are no reported closing sales prices on such
exchange or the Nasdaq Stock Market's National Market during the 10 consecutive
trading days immediately preceding such given date or if the Common Stock is
principally traded on the over-the-counter market, the average of the mean
between the bid and the asked price for the Common Stock at the close of trading
for the 10 consecutive trading days immediately preceding such given date; or
(c) if the Common Stock is neither listed on a national securities exchange or
the Nasdaq Stock Market's National Market nor traded on the over-the-counter
market, or if no such bid and asked prices are otherwise available, such value
as the Board, in good faith, shall determine. The Committee shall have broad
discretion in selecting a valuation method consistent with this Section 23 for
purposes of determining "Fair Market Value." Notwithstanding any provision of
the 1999 Plan to the contrary, no determination made with respect to the Fair
Market Value of Common Stock subject to an ISO shall be inconsistent with
Section 422 of the Code or regulations issued thereunder.
24. SUCCESSORS
In the event of a liquidation, dissolution, sale or transfer of
substantially all of the assets of CIBM, or a merger or consolidation involving
CIBM, all obligations of CIBM under the 1999 Plan with respect to Options
governed by the 1999 Plan shall be binding on the successor to the transaction.
Employment of a Key Employee with such a successor or service on the board of
directors of a successor shall be considered employment of the Key Employee with
CIBM, or service on the Board, for purposes of the 1999 Plan.
1999 STOCK OPTION AND INCENTIVE PLAN PAGE 12
25. NOTICES
Notices given pursuant to the 1999 Plan shall be in writing and shall
be deemed received when personally delivered or five days after mailed by United
States registered or certified mail, return receipt requested, addressee only,
postage prepaid. Notice to CIBM shall be directed to:
Donald J. Straka
Senior Vice President, General Counsel and Secretary
CIB Marine Bancshares, Inc.
N27 W24025 Paul Court
P.O. Box 449
Pewaukee, Wisconsin 53072
Notices to or with respect to a Participant shall be directed to the
Participant, or the executors, personal representatives or distributees of a
deceased Participant or to a Participant's assignee, at the Participant's or
assignee's home address on the records of CIBM.
IN WITNESS WHEREOF, CIBM has caused the 1999 Plan, as amended and
adjusted, to be executed on its behalf by its duly authorized officer as of the
27th day of April, 2001.
CIB MARINE BANCSHARES, INC.
By: /s/ J. MICHAEL STRAKA
---------------------------------
J. Michael Straka
Its: President and Chief Executive
Officer
1999 STOCK OPTION AND INCENTIVE PLAN PAGE 13
SCHEDULE A
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PLAN NAME EFFECTIVE DATE
--------- --------------
Central Illinois Bancorp, Inc. Non Qualified Employee Stock Option Plan 6-30-93
Central Illinois Bancorp, Inc. Non Qualified Employee Stock Option Plan 1-1-95
Central Illinois Bancorp, Inc. Non Qualified Director Stock Option Plan 1-1-95
Central Illinois Bancorp, Inc. Non-Employee Non-Qualified Director Stock Option Plan 4-25-96
Central Illinois Bancorp, Inc. Non Qualified Employee Stock Option Plan 4-25-96
Central Illinois Bancorp, Inc. Non Qualified Employee Stock Option Plan 4-30-97
Central Illinois Bancorp, Inc. Non Qualified Employee Stock Option Plan 8-18-97
Central Illinois Bancorp, Inc. Non Qualified Employee Stock Option Plan 8-20-97
Central Illinois Bancorp, Inc. Non Qualified Employee Stock Option Plan 9-24-97
Central Illinois Bancorp, Inc. Non Qualified Employee Stock Option Plan 2-25-98
Central Illinois Bancorp, Inc. Non-Qualified Director Stock Option Plan (CIBM Directors) 2-25-98
Central Illinois Bancorp, Inc. Non-Qualified Director Stock Option Plan (CIBM Subsidiary 2-25-98
Directors)