EXHIBIT 10.1
(Restated for SEC electronic
filing purposes only)
CIVITAS BANKGROUP, INC.
1998 STOCK OPTION PLAN
SECTION 1. PURPOSE; DEFINITIONS.
The purpose of the Civitas BankGroup, Inc. 1998 Stock Option Plan (the
"Plan") is to enable Civitas BankGroup, Inc. (the "Corporation") to attract,
retain and reward officers, directors, and key employees of the Corporation and
its Subsidiaries and Affiliates and to strengthen the mutuality of interests
between such persons by awarding them stock options. The creation of the Plan
shall not diminish or prejudice other compensation programs approved from time
to time by the Board.
For purposes of the Plan, the following terms shall be defined as set
forth below:
A. "Affiliate" means any entity other than the Corporation and its
Subsidiaries that is designated by the Board as a participating employer under
the Plan, provided that the Corporation directly or indirectly owns at least 20%
of the combined voting power of all classes of stock of such entity or at least
20% of the ownership interests in such entity.
B. "Board" means the Board of Directors of the Corporation.
C. "Cause" has the meaning provided in Section 5 of the Plan.
D. "Change in Control" has the meaning provided in Section 6 of the Plan.
E. "Change in Control Price" has the meaning provided in Section 6(d) of
the Plan.
F. "Common Stock" means the Corporation's Common Stock.
G. "Code" means the Internal Revenue Code of 1986, as amended from time to
time, and any successor thereto.
H. "Committee" means the Committee referred to in Section 2 of the Plan.
I. "Corporation" means Civitas BankGroup, Inc., a corporation organized
under the laws of the State of Tennessee or any successor corporation.
J. "Disability" means disability as determined under the Corporation's
group long term disability insurance program for each respective optionee.
K. "Early Retirement" means retirement, for purposes of this Plan with the
express consent of the Corporation at or before the time of such retirement,
from active employment with
the Corporation and any Subsidiary or Affiliate prior to age 65, in accordance
with any applicable early retirement policy of the Corporation then in effect or
as may be approved by the Committee.
L. "Effective Date" has the meaning provided in Section 10 of the Plan.
M. "Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, and any successor thereto.
N. "Fair Market Value" means with respect to the Common Stock, as of any
given date or dates, unless otherwise determined by the Committee in good faith,
the reported closing price of a share of Common Stock on the Nasdaq Stock Market
or, if no such price is available, the average of the closing bid and asked
prices quoted (by electronic bulletin board, "pink sheets" or other recognized
quotation) in the over-the-counter market for the Common Stock, or, if no such
price is available on such date, the fair market value of a share of Common
Stock as determined by the Committee in good faith.
O. "Incentive Stock Option" means any Stock Option intended to be and
designated as an "Incentive Stock Option" within the meaning of Section 422 of
the Code.
P. "Immediate Family" means any child, stepchild, grandchild, parent,
stepparent, grandparent, spouse, sibling, mother-in-law, father-in-law,
son-in-law, daughter-in-law, brother-in-law, or sister-in-law, and shall include
adoptive relationships.
Q. "Non-Employee Director" means a member of the Board who is a
Non-Employee Director with the meaning of Rule 16b-3(b)(3) promulgated under the
Exchange Act and an outside director within the meaning of Treasury Regulation
Sec. 162-27(e)(3) promulgated under the Code.
R. "Non-Qualified Stock Option" means any Stock Option that is not an
Incentive Stock Option.
S. "Normal Retirement" means retirement from active employment with the
Corporation and any Subsidiary or Affiliate on or after age 65.
T. "Plan" means this Cumberland Bancorp, Inc. 1998 Stock Option Plan, as
amended from time to time.
U. "Retirement" means Normal or Early Retirement.
V. "Section 162(m) Maximum" has the meaning provided in Section 3(a)
hereof.
W. "Stock Option" or "Option" means any option to purchase shares of
Common Stock granted pursuant to Section 5 below.
X. "Subsidiary" means any corporation (other than the Corporation) in an
unbroken chain of corporations beginning with the Corporation if each of the
corporations (other than the last corporation in the unbroken chain) owns stock
possessing 50% or more of the total
combined voting power of all classes of stock in one of the other corporations
in the chain.
SECTION 2. ADMINISTRATION.
The Plan shall be administered by a Committee of not less than two
Non-Employee Directors, who shall be appointed by the Board and who shall serve
at the pleasure of the Board. The functions of the Committee specified in the
Plan may be exercised by an existing Committee of the Board composed exclusively
of Non-Employee Directors. The Plan shall be initially administered by the
Board. In the event that there are not at least two Non-Employee Directors on
the Committee, the Plan shall be administered by the Board and all references
herein to the Committee shall refer to the Board.
The Committee shall have authority to recommend to the Board grants of
Stock Options, pursuant to the terms of the Plan, to officers and other key
employees. The Board shall have the authority to accept or reject the
Committee's recommendations.
In particular, the Committee shall have the authority, consistent with the
terms of the Plan and upon approval by the Board.
(a) to select the officers and key employees to whom Stock Options
may from time to time be granted hereunder;
(b) to determine whether and to what extent Incentive Stock Options
or Non-Qualified Stock Options, or any combination thereof, are to be
granted hereunder to one or more eligible persons;
(c) to determine the number of shares to be covered by each such
award granted hereunder;
(d) to determine the terms and conditions, not inconsistent with the
terms of the Plan, of any award granted hereunder (including, but not
limited to, the share price and any restriction or limitation, or any
vesting acceleration or waiver of forfeiture restrictions regarding any
Stock Option and/or the shares of Common Stock relating thereto, based in
each case on such factors as the Committee shall determine, in its sole
discretion); and to amend or waive any such terms and conditions to the
extent permitted by Section 6 hereof;
(e) to determine whether and under what circumstances a Stock Option
may be settled in cash under Section 5(l), instead of Common Stock;
(f) to determine whether to require payment withholding requirements
in shares of Common Stock; and
(g) to impose any holding period required to satisfy Section 16
under the Exchange Act.
The Committee shall report any recommendations it makes concerning the
grant of Stock Options to the Board, who may approve, amend or reject any such
Committee recommendations;
provided, that the Board shall not have the authority to grant any Stock Option
under any condition that has not been approved by the Committee.
The Committee may adopt, alter, and repeal such rules, guidelines, and
practices governing the Plan as it shall, from time to time, deem advisable,
subject to Board approval.
The Committee shall have the authority to interpret the terms and
provisions of the Plan and any award issued under the Plan (and any agreements
relating thereto), and to otherwise supervise the administration of the Plan.
All decisions made by the Committee pursuant to the provisions of the Plan
shall be made subject to the review of the Board. Decisions of the Board shall
be final and binding on all persons, including the Corporation and Plan
participants. The Board may elect to delegate some or all of its authority
granted herein, except the authority given to the Board under Section 7, to the
Committee.
SECTION 3. SHARES OF COMMON STOCK SUBJECT TO PLAN.
(a) The aggregate number of shares of Common Stock that may be
issued under the Plan shall be 4,000,000 shares. The shares of Common
Stock issuable under the Plan may consist, in whole or in part, of
authorized and unissued shares or treasury shares. No officer of the
Corporation or other person whose compensation may be subject to the
limitations on deductibility under Section 162(m) of the Code shall be
eligible to receive awards pursuant to this Plan relating to in excess of
100,000 shares of Common Stock in any fiscal year (the "Section 162(m)
Maximum").
(b) If any shares of Common Stock that have been optioned cease to
be subject to a Stock Option, such shares shall again be available for
distribution in connection with future awards under the Plan.
(c) In the event of any merger, reorganization, consolidation,
recapitalization, extraordinary cash dividend, stock dividend, stock split
or other change in corporate structure affecting the Common Stock, an
appropriate substitution or adjustment shall be made in the maximum number
and kind of shares that may be awarded under the Plan, in the number and
option price of shares subject to outstanding Options granted under the
Plan and in the Section 162(m) Maximum as may be determined to be
appropriate by the Committee, in its discretion with the approval of the
Board, provided that the number of shares subject to any award shall
always be a whole number.
SECTION 4. ELIGIBILITY.
Officers, directors, and other key employees of the Company and its
Subsidiaries and Affiliates who are responsible for or contribute to the
management, growth and/or profitability of the business of the Corporation
and/or its Subsidiaries and Affiliates are eligible to be granted awards under
the Plan.
SECTION 5. STOCK OPTIONS.
Stock Options may be granted alone, in addition to, or in tandem with cash
awards made outside of the Plan. Any Stock Option granted under the Plan shall
be in such form as the Committee and the Board may from time to time approve.
Stock Options granted under the Plan may be of two types: (i) Incentive
Stock Options and (ii) Non-Qualified Stock Options. Incentive Stock Options may
be granted only to individuals who are employees of the Company or any
Subsidiary of the Company.
The Committee, subject to Board ratification, shall have the authority to
grant to any optionee Incentive Stock Options, Non-Qualified Stock Options, or
both types of Stock Options.
Options granted to officers and key employees under the Plan shall be
subject to the following terms and conditions and shall contain such additional
terms and conditions, not inconsistent with the terms of the Plan, as the
Committee, or the Board as the case may be, shall deem desirable. All decisions
made by the Committee under this Section 5 are subject to Board ratification as
described in Section 2.
(a) Option Price. The option price per share of Common Stock
purchasable under a Stock Option shall be determined by the Committee at
the time of grant but shall be not less than 100% (or, in the case of any
employee who owns stock possessing more than 10% of the total combined
voting power of all classes of stock of the Corporation or of any of its
Subsidiaries, not less than 110%) of the Fair Market Value of the Common
Stock at grant, in the case of Incentive Stock Options, and not less than
50% of the Fair Market Value of the Common Stock at grant, in the case of
Non-Qualified Stock Options.
(b) Option Term. The term of each Stock Option shall be fixed by the
Committee, but no Incentive Stock Option shall be exercisable more than
ten years (or, in the case of an employee who owns stock possessing more
than 10% of the total combined voting power of all classes of stock of the
Corporation or any of its Subsidiaries or parent corporations, more than
five years) after the date the Option is granted.
(c) Exercisability. Stock Options shall be exercisable at such time
or times and subject to such terms and conditions as shall be determined
by the Committee at or after grant; provided, however, that except as
provided in Section 5(g) and (h), and Section 6, unless otherwise
determined by the Committee at or after grant, no Stock Option shall be
exercisable prior to the first anniversary date of the granting of the
Option. The Committee may provide that a Stock Option shall vest over a
period of future service at a rate specified at the time of grant, or that
the Stock Option is exercisable only in installments. If the Committee
provides that any Stock Option is exercisable only in installments, the
Board may waive such installment exercise provisions at any time at or
after grant, in whole or in part, based on such factors as the Committee
shall determine in its sole discretion.
(d) Method of Exercise. Subject to whatever installment exercise
restrictions apply under Section 5(c), Stock Options may be exercised in
whole or in part at any time during the option period, by giving written
notice of exercise to the Corporation
specifying the number of shares to be purchased. Such notice shall be
accompanied by payment in full of the purchase price, either by check,
note, or such other instrument as the Committee may accept, by submission
of an executed Subscription Agreement in a form, and as, determined by the
Committee, and by payment of all amounts the Corporation is required to
withhold under federal, state, and local law that the Committee shall
require. Unless the Committee shall decide otherwise at or after grant, an
optionee shall not have the rights to dividends or other rights of a
shareholder with respect to shares subject to the Option unless and until
the Corporation has issued certificates representing such shares to the
optionees.
(e) Transferability of Options. No Non-Qualified Stock Option shall
be transferable by the optionee without the prior written consent of the
Board other than (i) transfers by the Optionee to a member of his or her
Immediate Family or a trust for the benefit of the optionee or a member of
his or her Immediate Family, or (ii) transfers by will or by the laws of
descent and distribution. No Incentive Stock Option shall be transferable
by the optionee otherwise than by will or by the laws of descent and
distribution and all Incentive Stock Options shall be exercisable, during
the optionee's lifetime, only by the optionee.
(f) Bonus for Taxes. In the case of a Non-Qualified Stock Option or
an optionee who elects to make a disqualifying disposition (as defined in
Section 422(a)(1) of the Code) of Common Stock acquired pursuant to the
exercise of an Incentive Stock Option, the Committee may award at the time
of grant or thereafter the right to receive upon exercise of such Stock
Option a cash bonus calculated to pay part or all of the federal and
state, if any, income tax incurred by the optionee upon such exercise.
(g) Termination by Death. Subject to Section 5(k), if an optionee's
employment by the Corporation and any Subsidiary or (except in the case of
an Incentive Stock Option) Affiliate terminates by reason of death, any
Stock Option held by such optionee may thereafter be exercised, to the
extent such option was exercisable at the time of death or (except in the
case of an Incentive Stock Option) on such accelerated basis as the
Committee may determine at or after grant (or except in the case of an
Incentive Stock Option, as may be determined in accordance with procedures
established by the Committee) by the legal representative of the estate or
by the legatee of the optionee under the will of the optionee, for a
period of one year (or such other period as the Committee may specify at
or after grant) from the date of such death or until the expiration of the
stated term of such Stock Option, whichever period is the shorter.
(h) Termination by Reason of Disability. Subject to Section 5(k), if
an optionee's employment by the Corporation and any Subsidiary or (except
in the case of an Incentive Stock Option) Affiliate terminates by reason
of Disability, any Stock Option held by such optionee may thereafter be
exercised by the optionee, to the extent it was exercisable at the time of
termination or (except in the case of an Incentive Stock Option) on such
accelerated basis as the Committee may determine at or after grant (or,
except in the case of an Incentive Stock Option, as may be determined in
accordance with procedures established by the Committee), for a period of
(i) three years (or such other period as the Committee may specify at or
after grant) from the date of such termination
of employment or until the expiration of the stated term of such Stock
Option, whichever period is the shorter, in the case of a Non-Qualified
Stock Option and (ii) one year from the date of termination of employment
or until the expiration of the stated term of such Stock Option, whichever
period is shorter, in the case of an Incentive Stock Option; provided
however, that, if the optionee dies within the period specified in (i)
above (or other such period as the Committee shall specify at or after
grant), any unexercised Non-Qualified Stock Option held by such optionee
shall thereafter be exercisable to the extent to which it was exercisable
at the time of death for a period of twelve months from the date of such
death or until the expiration of the stated term of such Stock Option,
whichever period is shorter. In the event of termination of employment by
reason of Disability, if an Incentive Stock Option is exercised after the
expiration of the exercise period applicable to Incentive Stock Options,
but before the expiration of any period that would apply if such Stock
Option were a Non-Qualified Stock Option, such Stock Option will
thereafter be treated as a Non-Qualified Stock Option.
(i) Termination by Reason of Retirement. Subject to Section 5(k), if
an optionee's employment by the Corporation and any Subsidiary or (except
in the case of an Incentive Stock Option) Affiliate terminates by reason
of Normal or Early Retirement, any Stock Option held by such optionee may
thereafter be exercised by the optionee, to the extent it was exercisable
at the time of such Retirement or (except in the case of an Incentive
Stock Option) on such accelerated basis as the Committee may determine at
or after grant (or, except in the case of an Incentive Stock Option, as
may be determined in accordance with procedures established by the
Committee), for a period of (i) three years (or such other period as the
Committee may specify at or after grant) from the date of such termination
of employment or the expiration of the stated term of such Stock Option,
whichever period is the shorter, in the case of a Non-Qualified Stock
Option and (ii) three months from the date of such termination of
employment or the expiration of the stated term of such Stock Option,
whichever period is the shorter, in the event of an Incentive Stock
Option; provided however, that, if the optionee dies within the period
specified in (i) above (or other such period as the Committee shall
specify at or after grant), any unexercised Non-Qualified Stock Option
held by such optionee shall thereafter be exercisable to the extent to
which it was exercisable at the time of death for a period of twelve
months from the date of such death or until the expiration of the stated
term of such Stock Option, whichever period is shorter. In the event of
termination of employment by reason of Retirement, if an Incentive Stock
Option is exercised after the expiration of the exercise period applicable
to Incentive Stock Options, but before the expiration of the period that
would apply if such Stock Option were a Non-Qualified Stock Option, the
option will thereafter be treated as a Non-Qualified Stock Option.
(j) Other Termination. Subject to Section 5(k), unless otherwise
determined by the Committee or the Board (or pursuant to procedures
established by the Committee) at or (except in the case of an Incentive
Stock Option) after grant, if an optionee's employment by the Corporation
and any Subsidiary or (except in the case of an Incentive Stock Option)
Affiliate is involuntarily terminated for any reason other than death,
Disability or Normal or Early Retirement, the Stock Option shall thereupon
terminate, except that such Stock Option may be exercised, to the extent
otherwise then exercisable, for the lesser of three months or the balance
of such Stock Option's term if the
involuntary termination is without Cause. For purposes of this Plan,
"Cause" means (i) a felony conviction of a participant or the failure of a
participant to contest prosecution for a felony, or (ii) a participant's
willful misconduct or dishonesty, which is directly and materially harmful
to the business or reputation of the Corporation or any Subsidiary or
Affiliate. If an optionee voluntarily terminates employment with the
Corporation and any Subsidiary or (except in the case of an Incentive
Stock Option) Affiliate (except for Disability, Normal or Early
Retirement), the Stock Option shall thereupon terminate; provided,
however, that the Committee at grant or (except in the case of an
Incentive Stock Option) thereafter may extend the exercise period in this
situation for the lesser of three months or the balance of such Stock
Option's term.
(k) Incentive Stock Options. Anything in the Plan to the contrary
notwithstanding, no term of this Plan relating to Incentive Stock Options
shall be interpreted, amended, or altered, nor shall any discretion or
authority granted under the Plan be so exercised, so as to disqualify the
Plan under Section 422 of the Code, or, without the consent of the
optionee(s) affected, to disqualify any Incentive Stock Option under such
Section 422. No Incentive Stock Option shall be granted to any participant
under the Plan if such grant would cause the aggregate Fair Market Value
(as of the date the Incentive Stock Option is granted) of the Common Stock
with respect to which all Incentive Stock Options are exercisable for the
first time by such participant during any calendar year (under all such
plans of the Company and any Subsidiary) to exceed $100,000. To the extent
permitted under Section 422 of the Code or the applicable regulations
thereunder or any applicable Internal Revenue Service pronouncement:
(i) if (x) a participant's employment is terminated by reason
of death, Disability, or Retirement and (y) the portion of any
Incentive Stock Option that is otherwise exercisable during the
post-termination period specified under Section 5(g), (h) or (i),
applied without regard to the $100,000 limitation contained in
Section 422(d) of the Code, is greater than the portion of such
Option that is immediately exercisable as an "Incentive Stock
Option" during such post-termination period under Section 422, such
excess shall be treated as a Non-Qualified Stock Option; and
(ii) if the exercise of an Incentive Stock Option is
accelerated by reason of a Change in Control, any portion of such
Option that is not exercisable as an Incentive Stock Option by
reason of the $100,000 limitation contained in Section 422(d) of the
Code shall be treated as a Non-Qualified Stock Option.
(l) Buyout Provisions. The Committee may at any time offer to buy
out for a payment in cash or Common Stock an Option previously granted,
based on such terms and conditions as the Board shall establish and
communicate to the optionee at the time that such offer is made.
(m) Performance and Other Conditions. The Committee may condition
the exercise of any Option upon the attainment of specified performance
goals or other factors as the Committee may determine, in its sole
discretion. Unless specifically provided in the option agreement, any such
conditional Option shall vest immediately
prior to its expiration if the conditions to exercise have not theretofore
been satisfied.
SECTION 6. CHANGE IN CONTROL PROVISIONS.
(a) Impact of Event. In the event of:
(1) a "Change in Control" as defined in Section 6(b); or
(2) a "Potential Change in Control" as defined in Section
6(c), but only if and to the extent so determined by the Committee
and the Board, at or after grant (subject to any right of approval
expressly reserved by the Committee or the Board at the time of such
determination),
(i) Subject to the limitations set forth below in this
Section 6(a), any Stock Option awarded under the Plan not
previously exercisable and vested shall become fully
exercisable and vested.
(ii) Subject to the limitations set forth below in this
Section 6(a), the value of all outstanding Stock Options and
Outside Director Options, in each case to the extent vested,
shall, unless otherwise determined by the Board or the
Committee in its sole discretion prior to any Change in
Control, be cashed out on the basis of the "Change in Control
Price" as defined in Section 6(d) as of the date such Change
in Control or such Potential Change in Control is determined
to have occurred or such other date as the Board or Committee
may determine prior to the Change in Control.
(iii) The Board or the Committee may impose additional
conditions on the acceleration or valuation of any award in
the award agreement.
(b) Definition of Change in Control. For purposes of Section 6(a), a
"Change in Control" means the happening of any of the following:
(i) any person or entity, including a "group" as defined
in Section 13(d)(3) of the Exchange Act, other than the
Corporation or a wholly-owned subsidiary thereof or any
employee benefit plan of the Corporation or any of its
Subsidiaries, becomes the beneficial owner of the
Corporation's securities having 50% or more of the combined
voting power of the then outstanding securities of the
Corporation that may be cast for the election of directors of
the Corporation (other than as a result of an issuance of
securities initiated by the Corporation in the ordinary course
of business); or
(ii) as the result of, or in connection with, any cash
tender or exchange offer, merger or other business
combination, sales of assets or contested election, or any
combination of the foregoing transactions, less than a
majority of the combined voting power of the then outstanding
securities of the Corporation or any successor corporation or
entity entitled to vote generally in the election of the
directors of the Corporation or such other corporation or
entity after such transaction are held in the aggregate by the
holders of the Corporation's securities entitled to vote
generally in the election of directors of the Corporation
immediately prior to such transaction; or
(iii) during any period of two consecutive years,
individuals who at the beginning of any such period constitute
the Board cease for any reason to constitute at least a
majority thereof, unless the election, or the nomination for
election by the Corporation's shareholders, of each director
of the Corporation first elected during such period was
approved by a vote of at least two-thirds of the directors of
the Corporation then still in office who were directors of the
Corporation at the beginning of any such period.
(c) Definition of Potential Change in Control. For purposes of
Section 6(a), a "Potential Change in Control" means the happening of any
one of the following:
(i) The approval by shareholders of an agreement by the
Corporation, the consummation of which would result in a
Change in Control of the Corporation as defined in Section
6(b); or
(ii) The acquisition of beneficial ownership, directly
or indirectly, by any entity, person or group (other than the
Corporation or a Subsidiary or any Corporation employee
benefit plan (including any trustee of such plan acting as
such trustee)) of securities of the Corporation representing
5% or more of the combined voting power of the Corporation's
outstanding securities and the adoption by the Board of a
resolution to the effect that a Potential Change in Control of
the Corporation has occurred for purposes of this Plan.
(d) Change in Control Price. For purposes of this Section 6, "Change
in Control Price" means the highest price per share paid in any
transaction reported on the Nasdaq stock market or such other exchange or
market as is the principal trading market for the Common Stock, or paid or
offered in any bona fide transaction related to a Potential or actual
Change in Control of the Corporation at any time during the 60 day period
immediately preceding the occurrence of the Change in Control (or, where
applicable, the occurrence of the Potential Change in Control event), in
each case as determined by the Committee and the Board except that, in the
case of Incentive Stock Options such price shall be based only on
transactions reported for the date on which the optionee exercises such
Stock Options or, where applicable, the date on which a cash out occurs
under Section 6(a)(ii).
SECTION 7. AMENDMENTS AND TERMINATION.
The Board may at any time amend, alter or discontinue the Plan; provided,
however, that, without the approval of the Corporation's shareholders, no
amendment or alteration may be made
which would (a) except as a result of the provisions of Section 3(c) of the
Plan, increase the maximum number of shares that may be issued under the Plan or
increase the Section 162(m) Maximum, (b) change the provisions governing
Incentive Stock Options except as required or permitted under the provisions
governing incentive stock options under the Code, or (c) make any change for
which applicable law or regulatory authority (including the regulatory authority
of the "NASDAQ" or any other market or exchange on which the Common Stock is
traded) would require shareholder approval or for which shareholder approval
would be required to secure full deductibility of compensation received under
the Plan under Section 162(m) of the Code. No amendment, alteration, or
discontinuation shall be made which would impair the rights of an optionee or
participant under a Stock Option theretofore granted, without the participant's
consent.
The Committee may amend the terms of any Stock Option or other award
theretofore granted, prospectively or retroactively, subject to Board
ratification, but, subject to Section 3 above, no such amendment shall impair
the rights of any holder without the holder's consent. The Committee may also
substitute new Stock Options for previously granted Stock Options (on a one for
one or other basis), including previously granted Stock Options having higher
option exercise prices. Solely for purposes of computing the Section 162(m)
Maximum, if any Stock Options previously granted to a participant are canceled
and new Stock Options having a lower exercise price or other more favorable
terms for the participant are substituted in their place, both the initial Stock
Options and the replacement Stock Options will be deemed to be outstanding
(although the canceled Stock Options will not be exercisable or deemed
outstanding for any other purpose).
SECTION 8. UNFUNDED STATUS OF PLAN.
The Plan is intended to constitute an "unfunded" plan for incentive and
deferred compensation. With respect to any payments not yet made to a
participant or optionee by the Corporation, nothing contained herein shall give
any such participant or optionee any rights that are greater than those of a
general creditor of the Corporation. In its sole discretion, the Committee and
the Board may authorize the creation of trusts or other arrangements to meet the
obligations created under the Plan to deliver Common Stock or payments in lieu
of; provided, however, that, unless the Committee and the Board otherwise
determines with the consent of the affected participant, the existence of such
trusts or other arrangements is consistent with the "unfunded" status of the
Plan.
SECTION 9. GENERAL PROVISIONS.
(a) The Committee may require each person purchasing shares pursuant
to a Stock Option to represent to and agree with the Corporation in
writing that the optionee or participant is acquiring the shares without a
view to distribution thereof. The certificates for such shares may include
any legend which the Committee deems appropriate to reflect any
restrictions on transfer. All certificates for shares of Common Stock or
other securities delivered under the Plan shall be subject to such
stock-transfer orders and other restrictions as the Committee may deem
advisable under the rules, regulations, and other requirements of the
Commission, any stock exchange upon which the Common Stock is then listed,
and any applicable Federal or state securities law, and
the Committee may cause a legend or legends to be put on any such
certificates to make appropriate reference to such restrictions.
(b) Nothing contained in this Plan shall prevent the Board from
adopting other or additional compensation arrangements, subject to
shareholder approval if such approval is required; and such arrangements
may be either generally applicable or applicable only in specific cases.
(c) The adoption of the Plan shall not confer upon any employee of
the Corporation or any Subsidiary or Affiliate any right to continued
employment with the Corporation or a Subsidiary or Affiliate, as the case
may be, nor shall it interfere in any way with the right of the
Corporation or a Subsidiary or Affiliate to terminate the employment of
any of its employees at any time.
(d) No later than the date as of which an amount first becomes
includible in the gross income of the participant for Federal income tax
purposes with respect to any award under the Plan, the participant shall
pay to the Corporation, or make arrangements satisfactory to the Committee
regarding the payment of, any Federal, state, or local taxes of any kind
required by law to be withheld with respect to such amount. The Committee
may require withholding obligations to be settled with Common Stock,
including Common Stock that is part of the award that gives rise to the
withholding requirement. The obligations of the Corporation under the Plan
shall be conditional on such payment or arrangements and the Corporation
and its Subsidiaries or Affiliates shall, to the extent permitted by law,
have the right to deduct any such taxes from any payment of any kind
otherwise due to the participant.
(e) The Plan and all awards made and actions taken thereunder shall
be governed by and construed in accordance with the laws of the State of
Tennessee.
(f) The members of the Committee and the Board shall not be liable
to any employee or other person with respect to any determination made
hereunder in a manner that is not inconsistent with their legal
obligations as members of the Board. In addition to such other rights of
indemnification as they may have as directors or as members of the
Committee, the members of the Committee and the Board shall be indemnified
by the Corporation against the reasonable expenses, 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 Plan or any option
granted thereunder, and against all amounts paid by them in settlement
thereof (provided such settlement is approved by independent legal counsel
selected by the Corporation) 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 or Board member is liable for negligence or misconduct in the
performance of his duties; provided that within 60 days after institution
of any such action, suit or proceeding, the Committee or Board member
shall in writing offer the Corporation the opportunity, at its own
expense, to handle and defend the same.
(g) In addition to any other restrictions on transfer that may be
applicable under the terms of this Plan or the applicable award agreement,
no Stock Option issued under this Plan is transferable by the participant
without the prior written consent of the Board, or the Committee if so
delegated, other than (i) transfers by an optionee to a member of his or
her Immediate Family or a trust for the benefit of the optionee or a
member of his or her Immediate Family or (ii) transfers by will or by the
laws of descent and distribution. The designation of a beneficiary will
not constitute a transfer.
(h) The Committee, subject to Board ratification, may, at or after
grant, condition the receipt of any payment in respect of any award or the
transfer of any shares subject to an award on the satisfaction of a
six-month holding period, if such holding period is required for
compliance with Section 16 under the Exchange Act.
SECTION 10. [INTENTIONALLY OMITTED]
SECTION 11. EFFECTIVE DATE OF PLAN; CONNECTION WITH PRIOR OPTIONS.
The Plan shall be effective on the date it is approved by the Board of the
Corporation and shall govern, but shall not limit any terms or provisions under
agreements for, options granted on or after March 1, 1998 under the Plan.
SECTION 12. TERM OF PLAN.
No Stock Option shall be granted pursuant to the Plan on or after the
tenth anniversary of the Effective Date of the Plan, but awards granted prior to
such tenth anniversary may be extended beyond that date.