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EXHIBIT 10.8
FIRSTMERIT CORPORATION
AMENDED AND RESTATED
1994 STOCK OPTION AND INCENTIVE PLAN (SF)
Effective October 21, 2000
1. PLAN PURPOSE. The purpose of the Plan is to promote the long-term
interests of the Corporation and its stockholders by providing a means for
attracting and retaining directors, officers and employees of the Corporation
and its Affiliates. It is intended that designated Options granted pursuant to
the provisions of this Plan to persons employed by the Corporation or its
Affiliates will qualify as Incentive Stock Options. Options granted to persons
who are not employees will be Non-Qualified Stock Options.
2. DEFINITIONS. The following definitions are applicable to the Plan:
"Affiliate" - means any "parent corporation" or "subsidiary
corporation" of the Corporation, as such terms are defined in Section 424(e) and
(f), respectively, of the Code.
"Bank" - means FirstMerit Corporation.
"Award" - means the grant of an Incentive Stock Option, a
Non-Qualified Stock Option, or of Restricted Stock, or any combination thereof,
as provided in the Plan.
"Code" - means the Internal Revenue Code of 1986, as amended.
"Committee" - means the Committee referred to in Section 3
hereof.
"Continuous Service" - means the absence of any interruption
or termination of service as a director, advisory director, officer or employee
of the Corporation or an Affiliate, except that when used with respect to
persons granted an Incentive Option means the absence of any interruption or
termination of service as an employee of the Corporation or an Affiliate.
Service shall not be considered interrupted in the case of sick leave, military
leave or any other leave of absence approved by the Corporation or in the case
of transfers between payroll locations of the Corporation or between the
Corporation, its parent, its subsidiaries or its successor. With respect to any
advisory director, continuous service shall mean availability to perform such
functions as may be required of the Bank's advisory directors.
"Corporation" - means FirstMerit Corporation, an Ohio
corporation.
"Disinterested Person" - means any member of the Board of
Directors of the Corporation who within the prior year has not been, and is not
being, granted any awards related to the Shares under this Plan or any other
plan of the Corporation or any of its Affiliates except for awards which (i) are
calculated in accordance with a formula as contemplated in paragraph (c)(ii) of
Rule 16b-3 ("Rule 16b-3") under the Securities Exchange Act of 1934; (ii) result
from participation in an ongoing securities acquisition plan meeting the
conditions of paragraph (d)(2) of Rule 16b-3; or, (iii) arise from an election
by a director to receive all or part of his board fees in
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securities. No recipient of a stock award granted pursuant to Section 21 hereof
shall be deemed not to be a Disinterested Person solely by reason of such grant.
"Employee" - means any person, including an officer or
director, who is employed by the Corporation or any Affiliate.
"ERISA" - means the Employee Retirement Income Security Act of
1974, as amended.
"Exercise Price" - means (i) in the case of an Option, the
price per Share at which the Shares subject to such Option may be purchased upon
exercise of such Option and (ii) in the case of a Right, the price per Share
(other than the Market Value per Share on the date of exercise and the Offer
Price per Share as defined in Section 10 hereof) which, upon grant, the
Committee determines shall be utilized in calculating the aggregate value which
a Participant shall be entitled to receive pursuant to Sections 9, 10 or 13
hereof upon exercise of such Right.
"FirstMerit" - means FirstMerit Corporation, an Ohio
corporation.
"Incentive Stock Option" - means an option to purchase Shares
granted by the Committee pursuant to Section 6 hereof which is subject to the
limitations and restrictions of Section 8 hereof and is intended to qualify
under Section 422 of the Code.
"Market Value" - means the average of the high and low quoted
sales price on the date in question (or, if there is no reported sale on such
date, on the last preceding date on which any reported sale occurred) of a Share
on the Composite Tape for the New York Stock Exchange-Listed Stocks, or, if on
such date the Shares are not quoted on the Composite Tape, on the New York Stock
Exchange, or, if the Shares are not listed or admitted to trading on such
Exchange, on the principal United States securities exchange registered under
the Securities Exchange Act of 1934 on which the Shares are listed or admitted
to trading, or, if the Shares are not listed or admitted to trading on any such
exchange, the mean between the closing high bid and low asked quotations with
respect to a Share on such date on the National Association of Securities
Dealers, Inc., Automated Quotations System, or any similar system then in use,
or, if no such quotations are available, the fair market value on such date of a
Share as the Committee shall determine.
"Non-Qualified Stock Option" - means an option to purchase
Shares granted by the Committee pursuant to Section 6 hereof, which option is
not intended to qualify under Section 422(b) of the Code.
"Option" - means an Incentive Stock Option or a Non-Qualified
Stock Option.
"Participant" - means any officer or employee of the
Corporation or any Affiliate who is selected by the Committee to receive an
Award and any director or advisory director of the Corporation who is granted an
Award pursuant to Section 21 hereof.
"Plan" - means the FirstMerit Corporation 1994 Stock Option
and Incentive Plan
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(SF).
"Restricted Period" - means the period of time selected by the
Committee for the purpose of determining when restrictions are in effect under
Section 9 hereof with respect to Restricted Stock awarded under the Plan.
"Restricted Stock" - means Shares which have been contingently
awarded to a Participant by the Committee subject to the restrictions referred
to in Section 9 hereof, so long as such restrictions are in effect.
"Right" - means a Limited Stock Appreciation Right or a Stock
Appreciation Right.
"Shares" - means the shares of common stock of the
Corporation.
"Senior Officer" - means the Corporation's president,
principal financial officer, or principal accounting officer, any vice president
of the Corporation in charge of a principal business unit, division or function
(such as sales, administration or finance), any other officer who performs a
policy-making function, or any other person who performs similar policy-making
functions for the Corporation. Officers of the Corporation's Affiliates shall be
deemed Senior Officers of the Corporation if they perform such policy-making
functions for the Corporation.
"Ten Percent Beneficial Owner" - means the beneficial owner of
more than ten percent of any class of the Corporation's equity securities
registered pursuant to Section 10 of the Securities Exchange Act of 1934.
3. ADMINISTRATION. The Plan shall be administered by a Committee
consisting of two or more members, each of whom shall be a Disinterested Person
and each of whom shall be an "outside director," as set forth in Section 162(m)
of the Code and defined in the regulations promulgated thereunder. The members
of the Committee shall be appointed by the Board of Directors of the
Corporation. Except as limited by the express provisions of the Plan, the
Committee shall have sole and complete authority and discretion to (i) select
Participants and grant Awards; (ii) determine the number of Shares to be subject
to types of Awards generally, as well as to individual Awards granted under the
Plan; (iii) determine the terms and conditions upon which Awards shall be
granted under the Plan; (iv) prescribe the form and terms of instruments
evidencing such grants; and (v) establish from time to time regulations for the
administration of the Plan, interpret the Plan, and make all determinations
deemed necessary or advisable for the administration of the Plan. The Committee
may maintain, and update from time to time as appropriate, a list designating
selected directors as Disinterested Persons. The purpose of such list shall be
to evidence the status of such individuals as Disinterested Persons, and the
Board of Directors may appoint to the Committee any individual actually
qualifying as a Disinterested Person, regardless of whether identified as such
on said list.
A majority of the Committee shall constitute a quorum, and the acts of
a majority of the
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members present at any meeting at which a quorum is present, or acts approved in
writing by a majority of the Committee without a meeting, shall be acts of the
Committee.
4. PARTICIPATION IN COMMITTEE AWARDS. The Committee may select from
time to time Participants in the Plan from those directors, officers and
employees (other than Disinterested Persons), of the Corporation or its
Affiliates who, in the opinion of the Committee, have the capacity for
contributing to the successful performance of the Corporation or its Affiliates.
5. SHARES SUBJECT TO PLAN. Subject to adjustment by the operation of
Section 10 hereof, the maximum number of Shares with respect to which Awards may
be made under the Plan is 10% of the total Shares issued in the Bank's
conversion to the capital stock form. The Shares with respect to which Awards
may be made under the Plan may be either authorized and unissued shares or
issued shares heretofore or hereafter reacquired and held as treasury shares.
Shares which are subject to Related Rights and Related Options shall be counted
only once in determining whether the maximum number of Shares with respect to
which Awards may be granted under the Plan has been exceeded. An Award shall not
be considered to have been made under the Plan with respect to any Option which
terminates or with respect to Restricted Stock which is forfeited, and new
Awards may be granted under the Plan with respect to the number of Shares as to
which such termination or forfeiture has occurred.
6. GENERAL TERMS AND CONDITIONS OF OPTIONS. The Committee shall have
full and complete authority and discretion, except as expressly limited by the
Plan, to grant Options and to provide the terms and conditions (which need not
be identical among Participants) thereof. In particular, the Committee shall
prescribe the following terms and conditions: (i) the Exercise Price of any
Option, which shall not be less than the Market Value per Share at the date of
grant of such Option, (ii) the number of Shares subject to, and the expiration
date of, any Option, which expiration date shall not exceed ten years from the
date of grant, (iii) the manner, time and rate (cumulative or otherwise) of
exercise of such Option, and (iv) the restrictions, if any, to be placed upon
such Option or upon Shares which may be issued upon exercise of such Option. The
Committee may, as a condition of granting any Option, require that a Participant
agree not to thereafter exercise one or more Options previously granted to such
Participant. Notwithstanding the foregoing, no individual shall be granted
Awards in any calendar year with respect to more than 25% of the total shares
subject to the Plan.
7. EXERCISE OF OPTIONS.
(a) Except as provided herein, an Option granted under the
Plan shall be exercisable during the lifetime of the Participant to whom such
Option was granted only by such Participant and, except as provided in
paragraphs (c) and (d) of this Section 7, no such Option may be exercised unless
at the time such Participant exercises such Option, such Participant has
maintained Continuous Service since the date of grant of such Option.
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(b) To exercise an Option under the Plan, the Participant to
whom such Option was granted shall give written notice to the Corporation in
form satisfactory to the Committee (and, if partial exercises have been
permitted by the Committee, by specifying the number of Shares with respect to
which such Participant elects to exercise such Option) together with full
payment of the Exercise Price. The date of exercise shall be the date on which
such notice is received by the Corporation. Payment, if any is required, shall
be made either (i) in cash (including check, bank draft or money order) or (ii)
if permitted by the Committee, by delivering (A) Shares already owned by the
Participant and having a fair market value equal to the applicable exercise
price, such fair market value to be determined in such appropriate manner as may
be provided by the Committee or as may be required in order to comply with or to
conform to requirements of any applicable laws or regulations, or (B) a
combination of cash and such Shares.
(c) If a Participant to whom an Option was granted shall cease
to maintain Continuous Service for any reason (including total or partial
disability and normal or early retirement, but excluding death and termination
of employment by the Corporation or any Affiliate for cause), such Participant
may, but only within the period of three months immediately succeeding such
cessation of Continuous Service and in no event after the expiration date of
such Option, exercise such Option to the extent that such Participant was
entitled to exercise such Option at the date of such cessation, provided,
however, that such right of exercise after cessation of Continuous Service shall
not be available to a Participant if the Committee otherwise determines and so
provides in the applicable instrument or instruments evidencing the grant of
such Option. If the Continuous Service of a Participant to whom an Option was
granted by the Corporation is terminated for cause, all rights under any Option
of such Participant shall expire immediately upon the giving to the Participant
of notice of such termination.
(d) In the event of the death of a Participant while in the
Continuous Service of the Corporation or an Affiliate or within the three month
period referred to in paragraph (c) of this Section 7, the person to whom any
Option held by the Participant at the time of his death is transferred by will
or the laws of descent and distribution, or in the case of an Award other than
an Incentive Stock Option, pursuant to a qualified domestic relations order, as
defined in the Code or Title 1 of ERISA or the rules thereunder may, but only to
the extent such Participant was entitled to exercise such Option immediately
prior to his death, exercise such Option at any time within a period of one year
succeeding the date of death of such Participant, but in no event later than ten
years from the date of grant of such Option. Following the death of any
Participant to whom an Option was granted under the Plan, irrespective of
whether any Related Right shall have theretofore been granted to the Participant
or whether the person entitled to exercise such Related Right desires to do so,
the Committee may, as an alternative means of settlement of such Option, elect
to pay to the person to whom such Option is transferred by will or by the laws
of descent and distribution, or in the case of an Option other than an Incentive
Stock Option, pursuant to a qualified domestic relations order, as defined in
the Code or Title I of ERISA or the rules thereunder, the amount by which the
Market Value per Share on the date of exercise of such Option shall exceed the
Exercise Price of such Option, multiplied by the number of Shares with respect
to which such Option is properly exercised. Any such settlement of an Option
shall be considered an exercise of such Option for all purposes of the Plan.
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8. INCENTIVE STOCK OPTIONS. Incentive Stock Options may be granted only
to Participants who are Employees. Any provision of the Plan to the contrary
notwithstanding, (i) no Incentive Stock Option shall be granted more than ten
years from the date the Plan is adopted by the Board of Directors of the
Corporation and no Incentive Stock Option shall be exercisable more than ten
years from the date such Incentive Stock Option is granted, (ii) the Exercise
Price of any Incentive Stock Option shall not be less than the Market Value per
Share on the date such Incentive Stock Option is granted, (iii) any Incentive
Stock Option shall not be transferable by the Participant to whom such Incentive
Stock Option is granted other than by will or the laws of descent and
distribution, and shall be exercisable during such Participant's lifetime only
by such Participant, (iv) no Incentive Stock Option shall be granted to any
individual who, at the time such Incentive Stock Option is granted, owns stock
possessing more than ten percent of the total combined voting power of all
classes of stock of the Corporation or any Affiliate unless the Exercise Price
of such Incentive Stock Option is at least 110 percent of the Market Value per
Share at the date of grant and such Incentive Stock Option is not exercisable
after the expiration of five years from the date such Incentive Stock Option is
granted, and (v) the aggregate Market Value (determined as of the time any
Incentive Stock Option is granted) of the Shares with respect to which Incentive
Stock Options are exercisable for the first time by a Participant in any
calendar year shall not exceed $100,000.
9. TERMS AND CONDITIONS OF RESTRICTED STOCK. The Committee shall have
full and complete authority, subject to the limitations of the Plan, to grant
awards of Restricted Stock and, in addition to the terms and conditions
contained in paragraphs (a) through (f) of this Section 9, to provide such other
terms and conditions (which need not be identical among Participants) in respect
of such Awards, and the vesting thereof, as the Committee shall determine and
provide in the agreement referred to in paragraph (d) of this Section 9.
(a) At the time of an award of Restricted Stock, the Committee
shall establish for each Participant a Restricted Period of not less than six
months during which or at the expiration of which, as the Committee shall
determine and provide in the agreement referred to in paragraph (d) of this
Section 9, the Shares awarded as Restricted Stock shall vest. Subject to any
such other terms and conditions as the Committee shall provide, shares of
Restricted Stock may not be sold, assigned, transferred, pledged or otherwise
encumbered by the Participant, except as hereinafter provided, during the
Restricted Period. Except for such restrictions, and subject to paragraphs (c),
(d) and (e) of this Section 9 and Section 10 hereof, the Participant as owner of
such shares shall have all the rights of a stockholder, including but not
limited to the right to receive all dividends paid on such shares and the right
to vote such shares. The Committee shall have the authority, in its discretion,
to accelerate the time at which any or all of the restrictions shall lapse with
respect to any shares of Restricted Stock prior to the expiration of the
Restricted Period with respect thereto, or to remove any or all of such
restrictions, whenever it may determine that such action is appropriate by
reason of changes in applicable tax or other laws or other changes in
circumstances occurring after the commencement of such Restricted Period.
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(b) Except as provided in Section 12 hereof, if a Participant
ceases to maintain Continuous Service for any reason (other than death or total
or partial disability) unless the Committee shall otherwise determine, all
shares of Restricted Stock theretofore awarded to such Participant and which at
the time of such termination of Continuous Service are subject to the
restrictions imposed by paragraph (a) of this Section 9 shall upon such
termination of Continuous Service be forfeited and returned to the Corporation.
Unless the Committee shall have provided in the agreement referred to in
paragraph (d) of this Section 9 for a ratable lapse of restrictions with respect
to an award of shares of Restricted Stock during the Restricted Period, if a
Participant ceases to maintain Continuous Service by reason of death or total or
partial disability, such portion of such shares of Restricted Stock awarded to
such Participant which at the time of such termination of Continuous Service are
subject to the restrictions imposed by paragraph (a) of this Section 9 as shall
be equal to the portion of the Restricted Period with respect to such shares
which shall have elapsed at the time of such termination of Continuous Service
shall be free of restrictions and shall not be forfeited.
(c) Each certificate in respect of shares of Restricted Stock
awarded under the Plan shall be registered in the name of the Participant and
deposited by the Participant, together with a stock power endorsed in blank,
with the Corporation and shall bear the following (or a similar) legend:
"The transferability of this certificate and the shares of
stock represented hereby are subject to the terms and conditions
(including forfeiture) contained in the FirstMerit Corporation 1994
Stock Option and Incentive Plan (SF) and an Agreement entered into
between the registered owner and FirstMerit Corporation. Copies of such
Plan and Agreement are on file in the offices of the Secretary of
FirstMerit Corporation, III Cascade Plaza, Akron, Ohio 44308."
(d) At the time of an award of shares of Restricted Stock, the
Participant shall enter into an Agreement with the Corporation in a form
specified by the Committee, agreeing to the terms and conditions of the award
and such other matters as the Committee shall in its sole discretion determine.
(e) At the time of an award of shares of Restricted Stock, the
Committee may, in its discretion, determine that the payment to the Participant
of dividends declared or paid on such shares, or specified portion thereof, by
the Corporation shall be deferred until the earlier to occur of (i) the lapsing
of the restrictions imposed under paragraph (a) of this Section 9 or (ii) the
forfeiture of such shares under paragraph (b) of this Section 9, and shall be
held by the Corporation for the account of the Participant until such time. In
the event of such deferral, there shall be credited at the end of each year (or
portion thereof) interest on the amount of the account at the beginning of the
year at a rate per annum as the Committee, in its discretion, may determine.
Payment of deferred
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dividends, together with interest accrued thereon as aforesaid, shall be made
upon the earlier to occur of the events specified in (i) and (ii) of the
immediately preceding sentence.
(f) At the expiration or lapse of the restrictions imposed by
paragraph (a) of this Section 9, the Corporation shall redeliver to the
Participant (or where the relevant provision of paragraph (b) of this Section 9
applies in the case of a deceased Participant, to his legal representative,
beneficiary or heir) the certificate(s) and stock power deposited with it
pursuant to paragraph (c) of this Section 9 and the Shares represented by such
certificate(s) shall be free of the restrictions referred to in paragraph (a) of
this Section 9.
10. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION. In the event of any
change in the outstanding Shares subsequent to the effective date of the Plan by
reason of any reorganization, recapitalization, stock split, stock dividend,
combination or exchange of shares, merger, consolidation or any change in the
corporate structure or Shares of the Corporation, the maximum aggregate number
and class of shares as to which Awards may be granted under the Plan and the
number and class of shares with respect to which Awards theretofore have been
granted under the Plan shall be appropriately adjusted by the Committee, whose
determination shall be conclusive. Any shares of stock or other securities
received, as a result of any of the foregoing, by a Participant with respect to
Restricted Stock shall be subject to the same restrictions and the
certificate(s) or other instruments representing or evidencing such shares or
securities shall be legended and deposited with the Corporation in the manner
provided in Section 9 hereof.
11. EFFECT OF MERGER. In the event of any merger, consolidation or
combination of the Corporation (other than a merger, consolidation or
combination in which the Corporation is the continuing entity and which does not
result in the outstanding Shares being converted into or exchanged for different
securities, cash or other property, or any combination thereof) pursuant to a
plan or agreement the terms of which are binding upon all stockholders of the
Corporation (except to the extent that dissenting stockholders may be entitled,
under statutory provisions or provisions contained in the certificate of
incorporation, to receive the appraised or fair value of their holdings), any
Participant to whom an Option has been granted at least 6 months prior to such
event shall have the right (subject to the provisions of the Plan and any
limitation applicable to such Option), thereafter and during the term of each
such Option, to receive upon exercise of any such Option an amount equal to the
excess of the fair market value on the date of such exercise of the securities,
cash or other property, or combination thereof, receivable upon such merger,
consolidation or combination in respect of a Share over the Exercise Price of
such Right or Option, multiplied by the number of Shares with respect to which
such Option shall have been exercised. Such amount may be payable fully in cash,
fully in one or more of the kind or kinds of property payable in such merger,
consolidation or combination, or partly in cash and partly in one or more of
such kind or kinds of property, all in the discretion of the Committee. Unless
the Committee shall have provided otherwise in the agreement referred to in
paragraph (d) of Section 9 hereof, in the event of any such merger,
consolidation or combination any Restricted Period shall lapse with respect to
Shares of Restricted Stock awarded at least six months prior to such event, all
such Shares shall be fully vested in the Participants to whom such Shares were
awarded, and the holders of such Shares shall be
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eligible to receive in respect thereof the full amount receivable per Share in
such merger, consolidation or combination.
12. EFFECT OF CHANGE IN CONTROL. The term "Change in Control" shall
mean the occurrence of any one of the following events:
(a) individuals who, on April 19, 2000, constitute the Board
(the "Incumbent Directors") cease for any reason to constitute at least a
majority of the Board, provided that any person becoming a director subsequent
to April 19, 2000 whose election or nomination for election was approved by a
vote of at least 2/3rds of the Incumbent Directors then on the Board (either by
a specific vote or by approval of the proxy statement of the Company in which
such person is named as a nominee for director, without written objection to
such nomination) shall be an Incumbent Director; provided, however, that no
director of the Company initially as a result of an actual or threatened
election contest with respect to directors or any other actual or threatened
solicitation of proxies or consents by or on behalf of any person other than the
Board shall be deemed to be an Incumbent Director;
(b) any "person" (as such term is defined in Section 3(a)(9)
of the Securities Exchange Act of 1934 (the "Exchange Act") and as used in
Sections 13(d)(3) and 14(d)(2) of the Exchange Act) is or becomes a "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Company representing 25% or more of the
combined voting power of the Company's then outstanding securities eligible to
vote for the election of the Board (the "Company Voting Securities"); provided,
however, that the event described in this paragraph (b) shall not be deemed to
be a Change in Control by virtue of any of the following acquisitions:
(i) by the Company or any Subsidiary,
(ii) by any employee benefit plan sponsored or
maintained by the Company or any Subsidiary,
(iii) by any underwriter temporarily holding
securities pursuant to an offering of such securities,
(iv) pursuant to a Non-Control Transaction (as
defined in paragraph (c)), or
(v) a transaction (other than one described in (c)
below) in which Company Voting Securities are acquired from
the Company, if a majority of the Incumbent Directors then on
the Board approve a resolution providing expressly that the
acquisition pursuant to this clause (v) does not constitute a
Change in Control under this paragraph (b);
(c) the consummation of a merger, consolidation, statutory
share exchange or similar form of corporate transaction involving the Company or
any of its Subsidiaries that requires the
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approval of the Company's shareholders, whether for such transaction or the
issuance of securities in the transaction (a "Business Combination"), unless
immediately following such Business Combination:
(i) more than 50% of the total voting power of (x)
the corporation resulting from such Business Combination (the
"Surviving Entity"), or (y) if applicable, the ultimate parent
corporation that directly or indirectly has beneficial
ownership of 100% of the voting securities eligible to elect
directors ("Total Voting Power") of the Surviving Entity (the
"Parent Entity"), is represented by Company Voting Securities
that were outstanding immediately prior to such Business
Combination (or, if applicable, shares into which such Company
Voting Securities were converted pursuant to such Business
Combination), and such voting power among the holders thereof
is in substantially the same proportion as the voting power of
such Company Voting Securities among the holders thereof
immediately prior to the Business Combination,
(ii) no person (other than any employee benefit plan
(or related trusts) sponsored or maintained by the Surviving
Entity or the Parent Entity), is or becomes the beneficial
owner, directly or indirectly, of 25% or more of the Total
Voting Power of the outstanding voting securities eligible to
elect directors of the Parent Entity (or, if there is no
Parent Entity, the Surviving Entity), and
(iii) at least a majority of the members of the board
of directors of the Parent Entity (or, if there is no Parent
Entity, the Surviving Entity) following the consummation of
the Business Combination were Incumbent Directors at the time
of the Board's approval of the execution of the initial
agreement providing for such Business Combination (any
Business Combination which satisfies all of the criteria
specified in (i), (ii) and (iii) above shall be deemed to be a
"Non-Control Transaction"); or
(d) the shareholders of the Company approve a plan of complete
liquidation or dissolution of the Company.
Notwithstanding the foregoing, a Change in Control of the Company shall
not be deemed to occur solely because any person acquires beneficial ownership
of more than 25% of the Company Voting Securities as a result of the acquisition
of Company Voting Securities by the Company which reduces the number of Company
Voting Securities outstanding; provided, that if after such acquisition by the
Company such person becomes the beneficial owner of additional Company Voting
Securities that increases the percentage of outstanding Company Voting
Securities beneficially owned by such person by more than one percent, a Change
in Control of the Company shall then occur.
If the Continuous Service of any Participant of the Corporation or any
Affiliate is involuntarily terminated for whatever reason, at any time within
eighteen months after a change in
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control, unless the Committee shall have otherwise provided in the agreement
referred to in paragraph (d) of Section 9 hereof, any Restricted Period with
respect to Restricted Stock theretofore awarded to such Participant shall lapse
upon such termination and all Shares awarded as Restricted Stock shall become
fully vested in the Participant to whom such Shares were awarded. If a tender
offer or exchange offer for Shares (other than such an offer by the Corporation)
is commenced, or if the event specified in clause (iii) above shall occur,
unless the Committee shall have otherwise provided in the instrument evidencing
the grant of an Option or Stock Appreciation Right, all Options and Stock
Appreciation Rights theretofore granted and not fully exercisable shall become
exercisable in full upon the happening of such event and shall remain so
exercisable for a period of sixty days following such date, after which they
shall revert to being exercisable in accordance with their terms; provided,
however, that no Option or Stock Appreciation Right shall be exercisable by a
director, Senior Officer or Ten Percent Beneficial Owner of the Corporation
within six months of the date of grant of such Option or Stock Appreciation
Right and no Option or Stock Appreciation Right which has previously been
exercised or otherwise terminated shall become exercisable.
13. ASSIGNMENTS AND TRANSFERS. No Award nor any right or interest of a
Participant under the Plan in any instrument evidencing any Award under the Plan
may be assigned, encumbered or transferred except, in the event of the death of
a Participant, by will or the laws of descent and distribution or in the case of
Awards other than Incentive Stock Options pursuant to a qualified domestic
relations order, as defined in the Code or Title I of ERISA or the rules
thereunder.
14. EMPLOYEE RIGHTS UNDER THE PLAN. No director, officer or employee
shall have a right to be selected as a Participant nor, having been so selected,
to be selected again as a Participant and no director, officer, employee or
other person shall have any claim or right to be granted an Award under the Plan
or under any other incentive or similar plan of the Corporation or any
Affiliate. Neither the Plan nor any action taken thereunder shall be construed
as giving any employee any right to be retained in the employ of the Corporation
or any Affiliate.
15. DELIVERY AND REGISTRATION OF STOCK. The Corporation's obligation to
deliver Shares with respect to an Award shall, if the Committee so requests, be
conditioned upon the receipt of a representation as to the investment intention
of the Participant to whom such Shares are to be delivered, in such form as the
Committee shall determine to be necessary or advisable to comply with the
provisions of the Securities Act of 1933 or any other Federal, state or local
securities legislation or regulation. It may be provided that any representation
requirement shall become inoperative upon a registration of the Shares or other
action eliminating the necessity of such representation under such Securities
Act or other securities legislation. The Corporation shall not be required to
deliver any Shares under the Plan prior to (i) the admission of such shares to
listing on any stock exchange on which Shares may then be listed, and (ii) the
completion of such registration or other qualification of such Shares under any
state or Federal law, rule or regulation, as the Committee shall determine to be
necessary or advisable.
This Plan is intended to comply with Rule 16b-3 under the Securities
Exchange Act of 1934. Any provision of the Plan which is inconsistent with said
Rule shall, to the extent of such inconsistency, be inoperative and shall not
affect the validity of the remaining provisions of the Plan.
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16. WITHHOLDING TAX. Upon the termination of the Restricted Period with
respect to any shares of Restricted Stock (or at any such earlier time, if any,
that an election is made by the Participant under Section 83(b) of the Code, or
any successor provision thereto, to include the value of such shares in taxable
income), the Corporation shall retain a sufficient number of shares held by it
to cover the amount required to be withheld. The Corporation shall have the
right to deduct from all dividends paid with respect to shares of Restricted
Stock the amount of any taxes which the Corporation is required to withhold with
respect to such dividend payments.
The Corporation shall have the right to deduct from all amounts paid in
cash with respect to the exercise of a Right under the Plan any taxes required
by law to be withheld with respect to such cash payments. Where a Participant or
other person is entitled to receive Shares pursuant to the exercise of an Option
pursuant to the Plan, the Corporation shall have the right to require the
Participant or such other person to pay the Corporation the amount of any taxes
which the Corporation is required to withhold with respect to such Shares.
17. AMENDMENT OR TERMINATION. The Board of Directors of the Corporation
may amend, suspend or terminate the Plan or any portion thereof at any time, but
(except as provided in Section 10 hereof) no amendment shall be made without
approval of the stockholders of the Corporation which shall (i) materially
increase the aggregate number of Shares with respect to which Awards may be made
under the Plan, (ii) materially increase the aggregate number of Shares which
may be subject to Awards to Participants who are not Employees or (iii) change
the class of persons eligible to participate in the Plan; provided, however,
that no such amendment, suspension or termination shall impair the rights of any
Participant, without his consent, in any Award theretofore made pursuant to the
Plan.
18. EFFECTIVE DATE AND TERM OF PLAN. The Plan became effective upon its
approval by the stockholders of the Corporation. It shall continue in effect for
a term of ten years unless sooner terminated under Section 17 hereof.
19. INITIAL GRANT. By, and simultaneously with, the approval of the
Plan by the stockholders of the Corporation, each member of the Board of
Directors of the Corporation at the time of the Bank's conversion to stock form,
who was not an Employee, was granted a ten year, Non-Qualified Stock Option to
purchase a number of shares equal to .50% of the shares issued in the conversion
at an Exercise Price per share equal to the Market Value on the date of the
grant. All options shall vest ratably over a five year period, beginning one
year from the date of stockholder approval.
[THE FOLLOWING PROVISION WAS TERMINATED AT THE EFFECTIVE TIME OF THE
MERGER BETWEEN FIRSTMERIT CORPORATION AND SECURITY FIRST CORP.] In addition,
each non-employee director of the Corporation elected after the completion of
the Bank's conversion to stock form is hereby granted as of the date he or she
is elected and qualified ("election date") a ten year Non-Qualified Stock
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Option to Purchase a number of shares equal to .50% of the shares issued in the
conversion at the applicable Market Value on the election date. Each such Option
shall be evidenced by a Non- Qualified Stock Option Agreement in a form approved
by the Board of Directors and shall be subject in all respects to the terms and
conditions of this Plan, which are controlling.
All options granted pursuant to this Section 19 shall be rounded down
to the nearest whole share to the extent necessary to ensure that no options to
purchase stock representing fractional shares are granted.
Notwithstanding anything else in this Plan to the contrary, to the
extent that the Plan provides for formula awards, as defined in Rule
16b-3(c)(2)(ii) under the Securities Exchange Act of 1934, such provisions may
not be amended more than once every six months, other than to comport with
changes in the Code, ERISA or the rules thereunder.
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