EXHIBIT 4.1
FIRST BUSEY CORPORATION
2004 STOCK OPTION PLAN
1. Purpose of The Plan.
First Busey Corporation 2004 Stock Option Plan (herein called the
"Plan") of First Busey Corporation (herein called the "Company") and its
Subsidiaries is designed and intended (a) to encourage ownership of the
Company's Stock by employees and directors of the Company and its Subsidiaries,
and to provide additional incentive for them to promote the success of the
business of the Company, and (b) to attract personnel to enter and remain in the
employment of the Company and its Subsidiaries. It is expected that the added
interest of the participating Employees and Directors under this Plan, and their
proprietary attitude toward the Company resulting from their investment in the
Company's Stock, will promote the future growth, development and continued
success of the Company.
2. Definitions.
The following terms shall have the meanings hereinafter set forth
unless the context clearly indicates to the contrary:
(a) "Board of Directors" shall mean the Board of Directors of First
Busey Corporation.
(b) "Code" shall mean the Internal Revenue Code of 1986, as amended.
(c) "Committee" shall mean the Compensation Committee of the Board of
Directors.
(d) "Company" shall mean First Busey Corporation.
(e) "Director" shall mean a member of the Board of Directors who is not
an Employee of the Company.
(f) "Employee" shall mean an individual who performs services for the
Company or one or more of its Subsidiaries. The term "Employee" shall also mean
an officer of the Company or one of its Subsidiaries.
(g) "Exchange Act" shall mean the Securities Exchange Act of 1934.
(h) "Option" shall mean an Option to purchase Stock granted pursuant to
the provisions of paragraph 6.
(i) "Optionee" shall mean an Employee or Director to whom an Option has
been granted pursuant to this Plan.
(j) "Stock" shall mean the Common Stock, without par value, of the
Company, or in the event that the outstanding shares of Stock are exchanged for
shares of a different stock or securities of the Company or some other
corporation, such other stock or securities.
(k) "Subsidiary" shall mean any subsidiary corporation of the Company
as defined in Section 424(f) of the Code.
(l) "Termination of Employment" shall mean the later of (i) a severance
of the employer-employee relationship with the Company or (ii) the resignation,
removal or termination of an officer or Director of the Company.
3. Stock Subject to the Plan.
One million (1,000,000) shares of Stock shall be reserved for issue
upon the exercise of Options granted under the Plan. In the event an Option is
exercised, the Company may use authorized but unissued shares or shares held in
treasury in lieu thereof. If any Option granted under the Plan shall expire or
terminate for any reason without having been exercised in full, the unpurchased
shares subject to such Option shall again be available for the purposes of the
Plan.
4. Administration of the Plan.
4.1. The Plan shall be administered by the Compensation Committee of
the Board of Directors consisting of not less than three (3) members. Each
member of such Committee shall be a non-employee director as defined in Rule
16b-3 of the Rules and Regulations of the Securities and Exchange Commission, as
amended from time to time.
4.2. The Committee shall be appointed by the Board of Directors of the
Company. The Board of Directors of the Company may, within the limits herein
provided, from time to time in its discretion, fix and change the number of
members of the Committee, remove members of the Committee, appoint members of
the Committee in substitution for or in addition to members previously
appointed, and fill vacancies however caused in the Committee.
4.3. The Board of Directors shall select one of the Committee members
as its chairman, and the Committee shall hold its meetings at such times and
places as it may determine. A majority of its members shall constitute a quorum,
but all action of the Committee shall be taken by a majority of its members. Any
action, decision or determination reduced to writing and signed by all members
shall be fully as effective as if it had been done or made by a vote of a
majority of the members at the meeting duly called and held. The Committee may
appoint a secretary, and shall keep minutes of its meetings and actions, and
shall make such rules and regulations for the conduct of the business of the
Committee as it deems advisable. The secretary may be, but need not be, an
Employee of the Company or a Subsidiary. Serving as secretary of the Committee
shall not disqualify an Employee from receiving an Option under the Plan.
4.4. Subject to the express provisions of the Plan, the Committee shall
have plenary authority, in its sole discretion, to determine the individuals to
whom Options shall be granted,
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the number of shares subject to each Option, the Option exercise price, the time
or times at which Options shall be granted, and the other terms and conditions
of such Options. Subject to the express provisions of the Plan, the Committee
shall also have plenary authority, in its discretion, to construe and interpret
the Plan, to make determinations in administration of the Plan, to make, amend
and rescind rules and regulations regarding the Plan and its administration, to
determine the terms and provisions of the respective Stock Option agreements
(which need not be identical), and to take whatever action is necessary to carry
out the purposes of the Plan; provided, however, the Committee shall take no
action which will impair any Option previously granted under the Plan or cause
the Plan to not meet the requirements of Rule 16b-3 of the Rules and Regulations
of the Securities and Exchange Commission. The Committee's actions and
determinations on matters referred to in this section shall be conclusive on all
persons whomsoever. No act or failure to act on the part of the Committee, or on
the part of any member thereof, shall result in any liability whatsoever if
taken in good faith.
5. Type of Option Granted By The Plan.
The Committee shall have authority to grant Options which do not
qualify as incentive stock options as defined in Section 422 of the Code.
6. Eligibility to Receive Options Under The Plan.
6.1. Options may be granted under the Plan to any Employee or Director
of the Company or any of its Subsidiaries. An Option may be granted to an
individual upon the condition that such individual will become an Employee or
Director of the Company or any of its Subsidiaries; provided, however, that such
a conditional Option shall be deemed to be granted only on the date such
individual becomes an Employee or Director.
6.2. In making a determination as to persons to whom Options shall be
granted under the Plan, and the number of shares to be covered by such Options,
the Committee shall take into consideration the nature of the services rendered
or to be rendered by the Employee or Director, the Employee's or Director's
present and potential contributions to the success of the Company, and such
other factors as the Committee shall deem relevant in accomplishing the purposes
of the Plan. Any and all determinations made by the Committee pursuant to this
section shall be binding upon all persons whomsoever, and no Employee or
Director eligible to receive an Option under the Plan shall have any legal right
to complain as to any determination which shall be made by the Committee
hereunder with respect to such Employee or Director.
6.3. Nothing contained in the Plan shall be construed to limit the
right of the Company to grant Options otherwise than under the Plan in
connection with (a) the employment or directorship of any person, (b) the
acquisition of any corporation, firm or association, or the business or assets
thereof, including Options granted to employees thereof who become employees of
the Company or a Subsidiary, or (c) other proper corporate purposes.
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7. Option Price.
7.1. The purchase price of the Stock subject to each Option granted
hereunder shall be equal to at least 100% of the fair market value of the Stock
at the time of the grant of the Option.
7.2. The Committee shall adopt criteria for the determination of the
fair market value of Stock subject to any Option granted pursuant to this Plan;
provided, however, if the Stock is quoted on the National Association of
Securities Dealers Automated Quotation System ("Nasdaq National Market") or any
national securities exchange, the fair market value shall be the closing price
on the date of such grant.
8. Term of Options.
8.1. Except as provided in paragraph 6.1, the term of each Option
granted pursuant to the Plan shall not exceed ten (10) years from the date of
granting thereof. Within such ten-year limit, Options will be exercisable only
at such time or times, subject to the restrictions of paragraphs 10, 11 and 12,
and any other restrictions and conditions, as the Committee shall in each
instance approve, which need not be uniform for all individuals to whom Options
are granted.
8.2. Except as provided in paragraphs 11 and 12, no Option may be
exercised at any time unless the Optionee is then an Employee of the Company or
a Subsidiary or a Director of the Company or a Subsidiary and has been so
employed or has been a Director continuously since the granting of the Option.
9. Date of Grant of Option.
The grant of an Option under the Plan shall take place on or as of the
date the Committee grants an Employee or Director a particular Option; provided,
however, that if the resolution or other written determination of the Committee
specifies that an Option is to be granted as of and at some future date, the
date of grant shall be such future date.
10. Exercise of Option.
10.1. Except as provided in paragraphs 11 and 12, unless otherwise
provided in the terms under which the Committee granted the Option, each Option
shall be exercisable in whole (i.e. the rights for all shares subject to any one
Option must be exercised in full) only at any time and from time to time on a
date specified in the relevant Option Agreement and provided in paragraph 10.2,
which shall be a date no earlier than six months after the date of grant of such
Option.
10.2. To the extent that the right to purchase shares under an Option
granted under the Plan is exercisable, in order to exercise an option, the
Optionee must provide written notice to the Company in accordance with the rules
and procedures established by the Committee. Such notice to the Company shall
state the number and identity of Stock with respect to which the Option is being
exercised, and shall be accompanied by payment in full in cash or in any other
form and term as the Committee shall permit.
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10.3. After the exercise of an Option, the Company shall within a
reasonable time deliver to the person exercising the Option a certificate or
certificates issued in the name of the person who exercised the Option for the
appropriate number of shares. Each Option granted under the Plan shall be
subject to the requirement that if at any time the Board of Directors of the
Company shall determine that the listing, registration or qualification of the
shares subject to such Option upon any securities exchange or under any state or
Federal law, or the consent or approval of any governmental regulatory body, is
necessary or desirable, as a condition of, or in connection with, the granting
of such Option or the issue or purchase of shares thereunder, no such Option may
be exercised unless such listing, registration, qualification, consent or
approval shall have been effected or obtained free of any conditions not
acceptable to the Board of Directors.
10.4. An Optionee under an Option granted under the Plan shall have no
rights as a shareholder with respect to any shares covered by an Option until
one or more certificates for shares shall have been delivered to the Optionee
upon due exercise of an Option as above provided.
10.5. An Option granted under the Plan shall be nontransferable by the
Optionee other than by will or the laws of descent and distribution, and shall
be exercised during the Optionee's lifetime only by the Optionee, unless the
Optionee is under legal disability, in which case it may be exercised by the
Optionee's duly appointed legal representative.
11. Termination of Employment.
11.1. Except in the case of disability or death, as provided in
paragraphs 11.2 and 12, if an Optionee of an Option granted under the Plan has a
Termination of Employment with the Company or a Subsidiary, then all Options
granted to such person under the Plan shall terminate and expire as of the date
the Optionee ceases to be an Employee or a Director, unless otherwise provided
by the Committee in its sole discretion.
11.2. If an Optionee becomes permanently and totally disabled, all
Options which are not presently exercisable shall become exercisable on the date
the Optionee has a Termination of Employment because of such disability. Any
unexercised Option held by such disabled Optionee shall expire not later than
180 days after the Optionee has a Termination of Employment because of such
disability; provided, however, no Option may be exercised after the expiration
date specified for the particular Option in the Option grant.
11.3. The transfer of an Employee from one corporation to another among
the Company and its Subsidiaries, or a leave of absence (as described in Section
1.421-7(h)(2) of the Income Tax Regulations) with the written consent of the
Company or a Subsidiary shall not be deemed a Termination of Employment for the
purposes of the Plan, and an option agreement may provide that retirement at a
time when the Optionee is eligible for an immediate retirement benefit under any
retirement plan of the Company shall not be a Termination of Employment for
purposes of an Option.
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12. Death of Optionee.
12.1. If an Optionee under the Plan dies while an Employee or Director
of the Company or a Subsidiary, all Options which are not presently exercisable
shall become exercisable on the date of the Optionee's death. The shares which
the Optionee was or becomes entitled to purchase on the date of the Optionee's
death under an Option or Options granted under the Plan may be purchased at any
time after the Optionee's death by the person or persons to whom said rights
under the Option or Options shall have passed by the Optionee's will or by the
applicable laws of descent and distribution; provided, however, that any
unexercised Option held by an Optionee who dies shall expire not later than 180
days after the date of the Optionee's death, and that no Option may be exercised
after the expiration date specified for the particular Option in the Option
grant.
13. Effect of Merger, Change in Capitalization, Etc.
13.1. In the event of any reclassification or increase or decrease in
the number of the issued shares of Stock of the Company by reason of the payment
of a Stock dividend, a split or consolidation of shares, a recapitalization, a
combination or exchange of shares or any like capital adjustment, then (a) the
aggregate number and the class of shares reserved under the Plan shall be as
though the shares reserved had been outstanding prior to any adjustment as
aforesaid, and (b) as to any outstanding unexercised Options theretofore granted
under the Plan, there shall be a corresponding adjustment as to the class and
number of shares covered by each Option, and as to the purchase price under each
Option, to the end that the Optionee's proportionate interest shall be
maintained as before the occurrence of such event without change in the total
purchase price applicable to said Option.
13.2. In the event the Company shall approve a plan of reorganization
or of merger into or consolidation with any other corporation, and appropriate
provision is made for the resulting corporation's assumption of the Plan under
terms whereby the unexercised portion of each Option then outstanding under the
Plan shall thereafter apply to such number and kind of securities as would have
been issuable by reason of such reorganization, merger or consolidation to a
holder of the number of shares which were subject to the Option immediately
prior to such reorganization, merger or consolidation, without change in the
total purchase price applicable to said Option, then such Options shall continue
under the Plan.
13.3. In the event the Company shall approve a plan of reorganization
or of merger into or consolidation with any other corporation, and appropriate
provision is not made for the assumption of the Plan by the resulting
corporation as above provided in paragraph 13.2, or in the event the Company
shall approve a plan of dissolution, liquidation or sale of substantially all of
its assets, then in any event, the unexercised portion of each Option then
outstanding under the Plan shall terminate as of a date fixed by the Committee
and approved by the Board of Directors of the Company upon not less than thirty
days' written notice to each Optionee; provided, however, that any such Option
shall be accelerated and may be exercised before the termination date fixed as
aforesaid; provided further, however, that such termination date shall be fixed
as of a date on or before the effective date of such reorganization, merger,
consolidation, dissolution, liquidation or sale.
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13.4. In the event the Company shall issue additional capital Stock of
any class for cash or other consideration, there shall be no adjustment in the
number of shares covered by outstanding Options under the Plan, and no
adjustment in the purchase price under such Options.
14. Termination and Amendment of The Plan.
14.1. This Plan shall terminate ten years from the date the Plan was
adopted by the Board of Directors, and no Option shall be granted hereunder
after said date, but such termination shall not affect any Option theretofore
granted. The Board of Directors of the Company may suspend, discontinue or
terminate the Plan at any time, and may from time to time make such changes in
and additions to the Plan as the Board of Directors shall deem advisable;
provided, however, that the Board of Directors may not, without approval by the
shareholders of the Company, change any provision which otherwise requires
shareholder approval in accordance with applicable rules and regulations.
14.2. Subject to other provisions of the Plan, no termination or
amendment of the Plan may, without the consent of the Optionee under an Option
then outstanding, terminate such Option or materially and adversely affect the
rights of the Optionee thereunder.
15. Shareholder Approval.
Notwithstanding any other provision of this Plan, no Option granted
under this Plan may be exercised until this Plan is approved by vote of a
majority of the total votes cast by the shareholders of the Company at the
Company's Annual Meeting to be held on April 13, 2004. In the event such
shareholder approval is not forthcoming at the Company's Annual Meeting to be
held on April 13, 2004, this Plan and any Options granted pursuant to it shall
be null and void.
16. Amendments to Code or Regulations.
Any reference in this Plan to a section of the Code or a section of the
Income Tax Regulations shall include any amendments thereto and shall include
such additional sections of the Code or Regulations into which the substance of
the cited subsections shall be incorporated.
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