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EXHIBIT 10.8
BANCTENN CORP.
1996 EMPLOYEE STOCK PURCHASE PLAN
BancTenn Corp., a Tennessee corporation (herein the "Corporation"),
hereby adopts the following Employee Stock Purchase Plan for the benefit of its
eligible employees and eligible employees of its subsidiaries as defined herein.
The purpose of this Plan is to provide an opportunity for eligible employees to
share in the growth and prosperity of the Corporation and its subsidiaries by
acquiring a proprietary interest in the Corporation through the acquisition of
shares of the Corporation's common stock (the "Stock"). The Plan is intended to
qualify as an "employee stock purchase plan" within the meaning of Section
423(b) of the Internal Revenue Code of 1986, as amended (the "Code").
ARTICLE I
DEFINITIONS
As used herein, in addition to the defined terms set forth in the
preamble above, the following words and phrases shall have the meanings
specified below, unless a different meaning is plainly required by the context:
1.1 "ANNIVERSARY DATE" shall mean January 1 of each year.
1.2 "BOARD OF DIRECTORS" shall mean the Board of Directors of the
Corporation.
1.3 The "COMMITTEE" shall mean those members of the Corporation's
Board of Directors who are not eligible to participate in the Plan or such other
Committee as may be designated by the Corporation's Board of Directors from time
to time.
1.4 "CONTINUOUS SERVICE" shall mean the number of full years and
completed months of continuous employment with an Employer calculated from an
Employee's last hire date to the Employee's date of severance of employment for
any reason. Continuous Service shall not be
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broken and shall be credited for absences due to vacation, temporary sickness or
injury, other paid leaves of absences authorized by an Employer, and leaves of
absence which would not cause an individual to cease to be an Employee.
1.5 "EFFECTIVE DATE" shall mean January 1, 1996.
1.6 "EMPLOYEE" shall mean each current or future employee of an
Employer as defined in Treasury Regulation Sections 1.423-2(b) and 1.421-7(h).
1.7 "EMPLOYER" and "EMPLOYER CORPORATION" shall mean the
Corporation, and its wholly-owned subsidiaries, Bank of Tennessee and Tennessee
General Corporation, and any other corporation which becomes an eighty percent
(80%) or greater subsidiary of the Corporation while this Plan is in effect.
"Employer" shall also include any successors of the Corporation and any future
parent corporation (as defined in Section 424(e) of the Code).
1.8 "EXERCISE DATE" shall mean the last business day of each
calendar month during each Plan Year.
1.9 "GRANT DATE" shall mean, for each Plan Year, the first
business day that Bank of Tennessee is open for banking business in each
calendar year.
1.10 "ISSUE PRICE" shall mean the purchase price of the
Corporation's Stock to be charged to participating Employees on the Exercise
Date.
1.11 "MARKET PRICE" shall be the amount determined by the Committee
as the fair market value of the Corporation's Stock as of each Grant Date under
this Plan. In determining the Market Price, the Committee shall take into
account all relevant factors influencing the value of the Corporation's Stock
including recent trading prices, typical banking industry price-earnings ratios,
and typical banking industry price-book value ratios. The Committee shall be
guided by the principles set forth in Treasury Regulations Sections
1.421.7(e)(2), 20.2031-2(e),
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and 20.2031-2(f). In no event, however, shall the "Market Price" be less than
150% of the book value per share of the Stock as of the last day of the calendar
year immediately preceding each Grant Date. The calculation of book value shall
be made based on the number of primary shares of Stock outstanding and shall not
take into account shares then under option under this Plan or any other option
plan now or hereafter in effect.
1.12 "PLAN" shall mean this BancTenn Corp. 1996 Employee Stock
Purchase Plan as set forth herein and all subsequent amendments hereto.
1.13 "PLAN YEAR" shall mean a twelve (12) month period beginning on
the first day of January and ending on the last day of December of each calendar
year; provided, however, that the first Plan Year shall mean the period
commencing on April 11, 1996 and ending on December 31, 1996.
ARTICLE II
RESERVATION OF STOCK
The Corporation hereby reserves 50,000 shares of its Stock for issuance
upon the exercise of the options granted pursuant to this Plan; provided, that
the class and aggregate number of shares which may be issued upon exercise of
options granted pursuant to this Plan shall be subject to adjustment in
accordance with the provisions of Article IX of the Plan. These shares may be
authorized and unissued shares, issued shares held in or acquired for the
treasury by the Corporation, or shares of Stock reacquired by the Corporation
upon purchase in the open market or otherwise.
ARTICLE III
ELIGIBILITY
3.1 On the Effective Date each Employee whose customary employment
is at least twenty (20) hours per week and more than five (5) months in a
calendar year and who has been
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employed by the Corporation for at least two (2) years shall be eligible to
participate in the Plan as of the Effective Date. Thereafter, each Employee
whose customary employment is at least twenty (20) hours per week and more than
five (5) months in a calendar year shall be eligible to participate as of any
Anniversary Date coincident with or immediately following his completion of at
least two (2) years of Continuous Service. Upon an Employee's completion of two
(2) years of Continuous Service, and assuming he is otherwise eligible to
participate, he shall be deemed an Eligible Employee as of the Anniversary Date
of the same calendar year. An Employee shall not be eligible to participate,
however, if immediately after the options are granted such Employee would own
Stock possessing five percent (5%) or more of the total combined voting power or
value of all classes of the Corporation or any subsidiary or parent corporation
(as those terms are defined in Section 424(e) and (f) of the Code). For purposes
of this paragraph, the ownership attribution rules of Section 424(d) of the Code
shall apply in determining the stock ownership of an Employee and Stock which
the Employee may purchase under outstanding options (under this or any other
agreement) shall be treated as Stock owned by the Employee.
3.2 Each Eligible Employee (as defined in Section 3.1) shall be
bound by the terms of this Plan including any amendments adopted from time to
time. Each Eligible Employee shall be furnished a summary of the Plan and a form
for requesting participation. If the Employee elects to participate, he shall
complete such form and file it with his Employer Corporation no later than
thirty (30) days prior to the next Anniversary Date (or the date specified by
the Committee in the case of the first Plan Year). If an Eligible Employee does
not elect to participate in any Plan Year he may elect to participate as of any
future Anniversary Date if he continues to meet
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the eligibility requirements and files a request for participation within the
time required by the Committee.
ARTICLE IV
GRANT OF OPTIONS
4.1 Effective as of January 1 of each Plan Year (but effective as
of April 11 for the initial Plan Year), each Eligible Employee (as defined in
Article III hereof) shall be granted options to purchase shares of the
Corporation's Stock. The number of shares that each Eligible Employee shall
receive options to purchase in each Plan Year shall be determined according to
the following uniform pro-rata calculation: (a) Eligible Employee's total
compensation for the prior calendar year divided by the total amount of
compensation for all Eligible Employees as paid in the prior calendar year (b)
multiplied by the number of shares allocated by the Committee for the current
Plan Year; provided, however, the Corporation shall not issue fractional shares
of Stock in respect of options issued under this Plan. The option rights of each
Eligible Employee shall be rounded down to the nearest whole share in
calculating the number of shares of Stock an Eligible Employee holds an option
to purchase. For purposes of the initial Plan Year, 20,000 shares of the
Corporation's Stock shall be allocated for purchase by Eligible Employees. The
number of total shares to be optioned under the Plan for subsequent Plan Years
shall be set by the Committee effective as of each Anniversary Date.
4.2 Options not exercised by the Exercise Date in each Plan Year
shall automatically terminate and the shares of the Corporation's Stock
allocable to an unexercised option, and any unexercised portion of an option,
shall be returned to the general pool of shares available under the Plan for
reallocation in the next succeeding Plan Years. In no event shall the shares
subject
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to an unexercised option inure to the benefit of other Eligible Employees during
the Plan Year that such option was not exercised in whole or in part.
4.3 The Issue Price of the Corporation's Stock under this Plan
shall be equal to eighty-five percent (85%) of the Market Price on the Grant
Date of each Plan Year.
4.4 Notwithstanding any other provision of this Plan, no Employee
shall receive options to purchase the Corporation's Stock which permit the
rights of an Employee to purchase Stock under all "employee stock purchase
plans" of the Corporation and any parent or subsidiary corporation (as such
terms are defined in Section 424(e) and (f) of the Code) to accrue at a rate
which exceeds twenty-five percent (25%) of fair market value of such Stock
(determined at the time the option is granted) for each calendar year in which
the option is outstanding at any time. For purposes of this Section 4.4, (i) the
right to purchase Stock under an option accrues when the option (or any portion
thereof) first becomes exercisable during the calendar year, and (ii) the right
to purchase Stock under an option accrues at the rate provided in the option but
in no case shall such rate exceed Twenty-Five Thousand Dollars ($25,000)
(determined at the time the option is granted) for any one calendar year, and
(iii) a right to purchase Stock which has accrued under one option granted
pursuant to this Plan may not be carried over to any other option.
4.5 Section 16 limitations. Notwithstanding any other provision of
this Plan, and notwithstanding termination of this Plan, if an Eligible Employee
is subject to Section 16(a) of the Securities Exchange Act of 1934, as amended,
with respect to the Corporation's Stock (any such Eligible Employee being
referred to herein as a "Statutory Insider"), then any shares of the
Corporation's Stock received by a Statutory Insider under this Plan may not be
sold, assigned or otherwise transferred by such Statutory Insider for a period
of six (6) months following the date
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such shares of the Corporation's Stock are received by the Statutory Insider
unless the Corporation, upon advice of counsel, consents in advance.
ARTICLE V
EXERCISE OF OPTIONS
5.1 Options granted under this Plan may be exercised by Eligible
Employees as of the last business day of each calendar month up to and including
the last business day of each Plan Year (the "Exercise Date"). In no event will
any options granted under this Plan remain in effect past the last business day
of the Plan Year in which such options were granted. On or before the Exercise
Date, each Eligible Employee shall tender to the Corporation payment for the
number of shares he desires to purchase pursuant to his option. Failure to
tender such payment by the last available Exercise Date each Plan Year shall
cause such option to lapse and terminate.
5.2 Certificates for the Corporation's Stock purchased through the
exercise of options granted hereunder shall be issued as soon as practicable
after the Exercise Date. At the Corporation's option, such certificate shall
bear appropriate legend notations describing the fact that such shares have been
issued pursuant to the terms of this Plan and noting any limitations applicable
thereto.
5.3 Notwithstanding any other provision herein, the Corporation
shall not issue fractional shares of Stock in connection with the exercise of
options under this Plan.
ARTICLE VI
TERMINATION OF EMPLOYMENT
6.1 Any Employee whose employment with the Corporation is
terminated for any reason, except death or retirement, during the Plan Year
shall immediately cease to be an Eligible Employee. Any right to purchase the
Corporation's Stock pursuant to options granted
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under this Plan shall automatically become null and void upon the Employee's
termination of employment except where such termination is due to death or
retirement.
6.2 If an Eligible Employee retires or dies within three (3)
months prior to the Exercise Date of a Plan Year, the retired Eligible Employee
or the personal representative of the deceased Eligible Employee's estate, as
the case may be, shall be entitled to exercise any outstanding options in the
manner set forth in Article V above. Any options not so exercised shall
automatically terminate and lapse and be of no further legal effect.
ARTICLE VII
DISPOSITION OF STOCK
If an Eligible Employee or former Eligible Employee disposes of any
shares of the Corporation's Stock obtained pursuant to this Plan (i) prior to
two years after the Grant Date of such shares, or (ii) prior to one year after
the Exercise Date of such shares, such Employee or former Employee must notify
the Committee immediately of such disposition. All dispositions of the
Corporation's Stock shall be made in compliance with applicable federal and
state securities laws.
ARTICLE VIII
ADMINISTRATION
8.1 This Plan shall be administered by the Committee. No member of
the Committee shall be eligible to participate in the Plan while serving as a
member of the Committee. Meetings shall be held at such time and places as shall
be determined the Committee. A majority of the members of the Committee shall
constitute a quorum for the transaction of business, and the vote of a majority
of those members present at any meeting where a quorum is present shall decide
any question brought under the Plan. No member of the Committee shall be liable
for any
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act or omission of any other member of the Committee or for any act or omission
on his own part related to the Plan, including but not limited to the exercise
of any power or discretion given to him under the Plan, except in those
instances resulting from his own gross negligence or willful misconduct. All
questions of interpretation and application to the Plan or of options granted
hereunder, shall be subject to the determination of the whole Committee, which
determination shall be final and binding. The Plan shall be administered in
order to qualify the options granted hereunder as granted pursuant an "employee
stock purchase plan" described in Section 423(b) of the Code.
8.2 With respect to administration of the Plan, the Corporation
shall indemnify each present and future member of the Committee and the Board of
Directors against, and each member of the Committee and the Board of Directors
shall be entitled without further act on his or her part to indemnity from the
Corporation, for all expenses (including the amount of judgments and the amount
of approved settlements made with a view to the curtailment of costs of
litigation, other than amounts paid to the Corporation itself) reasonably
incurred by him or her in connection with or arising out of any action, suit or
proceeding in which he or she may be involved by reason of his or her being or
having been a member of the Committee and the Board of Directors, whether or not
he or she continues to be such a member of the Committee and the Board of
Directors at the time of incurring such expenses. Notwithstanding the foregoing,
such indemnity shall not include any expenses incurred by any such member of the
Committee and the Board of Directors (a) in respect of matters as to which he or
she shall be finally adjudged in any such action, suit or proceeding to have
been guilty of gross negligence or willful misconduct in the performance of his
or her duty as such a member of the Committee and the Board of Directors, or (b)
in respect of any matter in which in any settlement is effected, to an amount in
excess of the amount approved by the Corporation on the advice of its legal
counsel; and provided further, that no right of indemnification under the
provisions of this Plan shall be
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available to or enforceable by any such member of the Committee and the Board of
Directors unless, within sixty (60) days after institution of such action, suit
or proceeding, he or she shall have offered the Corporation, in writing, the
opportunity to handle and defend same at its own expense. The foregoing right of
indemnification shall inure to the benefit of the heirs, executors and
administrators of each such member of the Committee and the Board of Directors,
and shall be in addition to all other rights to which such member of the
Committee and the Board of Directors may be entitled as a matter of law,
contract or otherwise.
ARTICLE IX
CHANGES IN CORPORATION'S CAPITAL STRUCTURE
9.1 The existence of this Plan shall not affect in any way the
right or power of the Corporation or its stockholders to make or authorize any
or all adjustments, recapitalizations, reorganizations, or other changes in the
Corporation's capital structure or business, or any merger or consolidation of
the Corporation, or any issue of bonds, debentures, preferred or prior
preference stock ahead of or affecting the Corporation's Stock or rights
thereof, or the dissolution or liquidation of the Corporation, or any sale or
transfer of all or part of its assets or business, or any other corporate act or
proceeding, whether of similar character or otherwise.
9.2 In the event of a subdivision or consolidation of shares or
other capital reconstruction, the payment of a stock dividend or other increase
or reduction in the number of shares in the Corporation's Stock outstanding
without receiving compensation in money, services or property, then the class of
shares of the Corporation's Stock subject to this Plan, the number of shares
reserved under this Plan pursuant to Article II, and the number of shares
granted to eligible Employees, shall be appropriately adjusted as determined by
the Committee. The Committee's determination shall be final, binding and
conclusive, provided each option granted pursuant to this Plan shall not be
adjusted in a manner which causes the option to fail to
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continue to qualify as an option issued pursuant to an "employee stock purchase
plan" within the meaning of Section 423(b) of the Code.
9.3 Subject to any required action by the Corporation's
stockholders, if the Corporation shall be the surviving corporation in any
merger or consolidation, each outstanding option shall pertain to and apply to
the securities to which a holder of the number of shares of the Corporation's
Stock subject to the option would have been entitled. Unless adopted by the
surviving corporation, a dissolution or liquidation of the Corporation or a
merger or consolidation in which the Corporation is not the surviving
corporation, shall cause each outstanding option to terminate, provided that the
Committee, in its sole discretion, immediately prior to such dissolution or
liquidation, or merger or consolidation in which the Corporation is not the
surviving corporation, directs that the Plan Year end on the date immediately
prior to such event.
ARTICLE X
MISCELLANEOUS
10.1 The Board of Directors may at any time or from time to time
amend the Plan in any respect, except that the following amendments shall
require approval of the Corporation's Stockholders within twelve (12) months
prior to or after the date that the amendment is adopted by the Board of
Directors: (i) an increase in the number of shares of Stock reserved under the
Plan other than as provided in Article IX, (ii) a modification of the class of
Employees eligible to participate in the Plan, (iii) a reduction in the Issue
Price per Share as defined herein, (iv) a material increase in the benefits
accruing to Statutory Insiders under the Plan, or (v) a material modification of
the requirements as to eligibility of Statutory Insiders under the Plan.
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10.2 The term of the Plan shall be for a period of five (5) years
from January 1, 1996 through December 31, 2001; provided, however, the
Corporation reserves the right to terminate the Plan at any time. If the Plan is
terminated, the date of termination shall be treated as the Exercise Date for
the Plan Year in which termination occurs and Eligible Employees shall be
entitled to exercise their existing options as of such Exercise Date. The Plan
shall be deemed terminated in any event when all shares reserved for the Plan
have been purchased by Eligible Employees.
10.3 The Corporation will pay all expenses that may arise in
connection with the administration of the Plan.
10.4 Any headings or subheadings in the Plan are inserted for
convenience of reference only and are to be disregarded in the interpretation of
any provisions of the Plan.
10.5 This Plan shall be construed in accordance with the laws of
the State of Tennessee except to the extent that federal law is applicable to
the tax status and qualification of the Plan.
10.6 A misstatement in the age, length of Continuous Service, date
of employment, or any other such matter shall be corrected when it becomes known
that any such misstatement of fact has occurred.
10.7 Any option to purchase the Corporation's Stock arising by
participation under this Plan is not transferable by any Employee other than by
will or by the laws of descent and distribution, and then only to the extent
provided for herein, and is exercisable during his lifetime only by him.
10.8 This Plan shall not be deemed to constitute a contract between
any Employer Corporation and any Employee or to be in consideration of or as an
inducement for the employment of any Employee. Nothing contained in this Plan
shall be deemed to give any
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Employee the right to be retained in the service of any Employer Corporation or
to interfere with the right of any Employer Corporation to discharge any
Employee at any time regardless of the effect which such discharge shall have
upon him as a participant under the Plan.
10.9 No liability whatsoever shall attach to or be incurred by any
past, present or future stockholders, officers, or directors, as such, of any
Employer Corporation, under or by reason of any of the terms, conditions or
agreements contained in this Plan or implied therefrom, and any and all
liabilities of and any and all rights and claims against an Employer
Corporation, or any stockholder, officer or director as such, whether arising at
common law or in equity or created by statute or constitution or otherwise,
pertaining to this Plan are hereby expressly waived and released by every
Employee as a part of the consideration for any benefits provided by the
Employer corporations under this Plan.
10.10 Notwithstanding any other provisions of this Plan, in order
for this Plan to continue as effective, it must be approved by the stockholders
holding at least a majority of the Stock of the Corporation on or before the
date which is twelve (12) months after the date it is adopted by the Board of
Directors.
10.11 The Corporation's obligation to sell and deliver Stock under
the Plan is, at all times, subject to all approvals of any governmental
authorities required in connection with the authorization, issuance, offer, sale
or delivery of such Stock and compliance with state and federal securities laws.
10.12 Whenever any notice is required or permitted hereunder, such
notice must be in writing and personally delivered or sent by United States mail
or nationally recognized overnight courier delivery. Any notice required and
permitted to be delivered hereunder shall be deemed to be delivered on the date
which it is personally delivered, or, whether actually received or not,
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on the third business day after it is deposited in United States Mail, certified
or registered postage prepaid, or the next business day after it is delivered to
a nationally recognized courier delivery service, properly addressed to the
person who is to receive it at the address which such person has theretofore
specified by written notice delivered in accordance herewith.
10.13 In the event the Corporation should receive notice that this
Plan fails to qualify as an "employee stock purchase plan" under Section 423 of
the Code, the Corporation shall have the option of terminating the Plan and
canceling all then outstanding options.
10.14 To the extent applicable to the Corporation's Stock, this Plan
is intended to comply with Rule 16b-3 under the Securities Exchange Act of 1934,
as amended, and to the extent necessary or appropriate shall be interpreted to
comply with such Rule 16b-3.
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