EXHIBIT 10.4
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1997 KEY EMPLOYEES' STOCK OPTION AND STOCK
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APPRECIATION RIGHTS PLAN
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OF
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HORIZON BANCORP
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ARTICLE I
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INTRODUCTION
1.1. PURPOSE. The 1997 Key Employees' Stock Option and Stock
Appreciation Rights Plan of Horizon Bancorp (the "Plan") is designed to promote
the interests of the Company and its Subsidiaries by encouraging their officers
and key employees, upon whose judgment, initiative and industry the Company and
its Subsidiaries are largely dependent for the successful conduct and growth of
their businesses, to continue their association with the Company and its
Subsidiaries by providing additional incentive and opportunity for unusual
industry and efficiency through stock ownership, and by increasing their
proprietary interest in the Company and their personal interest in its continued
success and progress. The Plan provides for the granting of (i) incentive stock
options ("ISO's") and (ii) nonqualified stock options ("NSO's"), which the
option grantee may exercise in order to purchase shares of Company common stock.
The Plan also provides for the granting of stock appreciation rights ("SARs").
1.2. EFFECTIVE DATE AND DURATION. The Effective Date of the Plan is
January 1, 1997. ISOs may be granted under the Plan for a period of ten (10)
years commencing January 1, 1997 and NSOs and SARs may be granted under the Plan
for a period of twenty (20) years commencing January 1, 1997. However, no option
or SAR may be exercised until this Plan has been approved by a majority of the
shares of the Company represented at the shareholders' meeting at which approval
of the Plan is considered. No ISOs shall be granted after December 31, 2006 and
no NSO's or SAR's shall be granted after December 31, 2016. On December 31,
2016, the Plan shall expire except as to outstanding options and SAR's, which
options and SAR's shall remain in effect until they have been exercised or
terminated or have expired. ISO's must be granted within ten (10) years of the
date the Plan is adopted by the Board of Directors or approved by the
shareholders of the Company, whichever is earlier.
1.3. ADMINISTRATION. The Plan shall be administered by the Committee.
The Committee, from time to time, may adopt any rule or procedure it deems
necessary or desirable for the proper and efficient administration of the Plan
provided it is consistent with the terms of the Plan. The decision of a majority
of the Committee members shall constitute the decision of the Committee. Subject
to the provisions of the Plan, the Committee is authorized to take the following
actions: (i) to grant ISO's, NSO's and SAR's; (ii) to determine the key
employees to be granted ISO's, NSO's and SAR's; (iii) to determine the option
period, the option price and, subject to the limitations of Section 3.2, the
number of shares subject to each option and SAR; (iv) to determine the time or
times at which options and SAR's will be granted; (v) to determine the time or
times at which each option and related SAR becomes exercisable and the duration
of the exercise period; (vi) to determine other conditions and limitations, if
any, applicable to the
exercise of each option and related SAR; and (vii) to determine the nature and
duration of the restrictions, if any, to be imposed upon the sale or other
disposition of shares acquired by any optionee upon exercise of an option, and
the nature of the events, if any, and the duration of the period, in or with
respect to which any optionee's rights to shares acquired upon exercise of an
option may be forfeited. Each option and related SAR granted under the Plan
shall be evidenced by a written stock option agreement containing terms and
conditions established by the Committee consistent with the provisions of the
Plan, including such terms as the Committee shall deem advisable in order that
each ISO shall constitute an "incentive stock option" within the meaning of
Section 422 of the Code. The Committee's determinations and interpretations with
respect to the Plan shall be final and binding on all parties. Any notice or
document required to be given to or filed with the Committee will be properly
given or filed if delivered or mailed by certified mail, postage prepaid, to the
Committee at 515 Franklin Square, P. O. Box 800, Michigan City, Indiana 46360.
1.4. DEFINITIONS. For purposes of this Plan, unless a different meaning
is clearly required by the context:
(a) "Board of Directors" means the board of directors of the
Company.
(b) "Change in Control of the Company" means (i) any merger,
consolidation or similar transaction which involves the Company and in which
persons who are the shareholders of the Company immediately prior to such
transaction own, immediately after such transaction, shares of the surviving or
combined entity which possess voting rights equal to or less than fifty percent
(50%) of the voting rights of all shareholders of such entity, determined on a
fully diluted basis; (ii) any sale, lease, exchange, transfer or other
disposition of all or any substantial part of the consolidated assets of the
Company; (iii) any tender, exchange, sale or other disposition (other than
disposition of the stock of the Company or any Subsidiary in connection with
bankruptcy, insolvency, foreclosure, receivership or other similar transactions)
or purchases (other than purchases by the Company or any Company sponsored
employee benefit plan, or purchases by members of the Board of Directors of the
Company or any Subsidiary) of shares which represent more than twenty-five
percent (25%) of the voting power of the Company or any Subsidiary; (iv) during
any period of two (2) consecutive years, individuals who at the date of the
adoption of the Plan constitute the Company's Board of Directors cease for any
reason to constitute at least a majority thereof, unless the election of each
director at the beginning of such period has been approved by directors
representing at least a majority of the directors then in office who were
directors on the date of the adoption of the Plan; (v) a majority of the members
of the Company's Board of Directors recommend the acceptance of or accept any
agreement, contract, offer or other arrangement providing for, or any series of
transactions resulting in, any of the transactions described above.
Notwithstanding the foregoing, a Change in Control of the Company (A) shall not
occur as a result of the issuance of stock by the Company in connection with any
public offering of its stock, or (B) be deemed to have occurred with respect to
any transaction unless such transaction has been approved or shares have been
tendered by a majority of the shareholders who are not Section 16 Grantees.
(c) "Code" means the Internal Revenue Code of 1986, as amended.
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(d) "Committee" means the Compensation Committee of the Board of
Directors of the Company.
(e) "Company" means Horizon Bancorp.
(f) "Effective Date" means January 1, 1997.
(g) "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
(h) "Fair Market Value" means the per share fair market value of
the Company's stock as determined by the Committee in good faith based upon such
factors as it shall determine.
(i) "For Cause" means (i) the willful and continued failure of an
optionee to perform his required duties as an officer or key employee of the
Company or any Subsidiary, (ii) any action by an optionee which involves willful
misfeasance or gross negligence, (iii) the requirement of or direction by a
federal or state regulatory agency which has jurisdiction over the Company or
any Subsidiary to terminate the employment of an optionee, (iv) the conviction
of an optionee of the commission of any criminal offense which involves
dishonesty or breach of trust, or (v) any intentional breach by an optionee of a
material term, condition or covenant of any agreement between the optionee and
the Company or any Subsidiary.
(j) "Permanent and Total Disability" or "Permanently and Totally
Disabled" means any disability that would qualify as a disability under Section
22(c)(3) of the Code.
(k) "Plan" means the stock option plan embodied herein, as
amended from time to time, known as the 1997 Key Employees' Stock Option and
Stock Appreciation Rights Plan of Horizon Bancorp.
(l) "Retirement" means the termination of employment by an
optionee on or after attaining age fifty-five (55) and completing ten (10) full
years of employment with the Company and/or any Subsidiary for reasons other
than For Cause, death or Permanent and Total Disability.
(m) "Section 16 Grantee" or "Section 16 Grantees" or means a
person or persons subject to potential liability under Section 16(b) of the
Exchange Act with respect to transactions involving equity securities of the
Company.
(n) "Subsidiary" or "Subsidiaries" means a corporation,
partnership or limited liability company, a majority of the outstanding voting
stock, general partnership interests or membership interests, as the case may
be, of which is owned or controlled, directly or indirectly, by the Company or
by one or more other Subsidiaries of the Company. For the purposes of this
definition, "voting stock" means stock having voting power for the election of
directors, or trustees, as the case may be, whether at all times or only so long
as no senior class of stock has such voting power by reason of any contingency.
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ARTICLE II
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ELIGIBILITY AND PARTICIPATION
Officers and other key employees of the Company or any of its
Subsidiaries, as selected by the Committee, shall be eligible to receive grants
of ISO's, NSO's and SAR's under the Plan. Committee members shall not be
eligible to receive grants of options or SAR's under the Plan while serving as
Committee members.
ARTICLE III
BENEFITS
3.1. SHARES COVERED BY THE PLAN. The stock to be subject to options and
related SAR's under the Plan shall be shares of authorized common stock of the
Company and may be unissued shares or reacquired shares (including shares
purchased in the open market), or a combination of the two, as the Committee may
from time to time determine. Subject to the provisions of Section 4.2 and the
provisions of this Section 3.1, the maximum number of shares to be delivered
upon exercise of all options granted under the Plan shall not exceed ninety
thousand (90,000) shares. Shares covered by an option that remain unpurchased
upon the expiration or termination of the option may be made subject to further
options.
3.2. GRANT OF OPTIONS. The Committee shall be responsible for granting
all options and related SAR's under the Plan. The Committee shall also
determine, in its sole discretion, with respect to each optionee, the following:
(i) whether the options granted shall be ISO's or NSO's, or a combination of the
two; (ii) whether any SAR's shall be granted in connection with such options;
and (iii) whether any key employee shall be given discretion to determine
whether any options granted to him shall be ISO's or NSO's or a combination of
the two.
3.3. OPTION PRICE.
(a) ISO OPTION PRICE. The option price per share of stock under
each ISO shall be not less than one hundred percent (100%) of the Fair Market
Value of the share on the date on which the option is granted; provided,
however, as to officers and key employees who, at the time an ISO is granted,
own, within the meaning of Code Section 424(d), more than ten percent (10%) of
the total combined voting power of all classes of stock of the Company or any
Subsidiary (referred to as "10% Shareholder-Employees") and the purchase price
per share of stock under each ISO shall be not less than one hundred ten percent
(110%) of the Fair Market Value of the stock on the date on which the option is
granted.
(b) NSO OPTION PRICE. The option price per share of stock under
each NSO shall be determined by the Committee in its discretion; provided,
however, the option price per share shall not be less than one hundred percent
(100%) of the Fair Market Value of the share on the date on which the option is
granted.
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3.4. OPTION PERIOD. No option period with respect to an ISO or related
SAR shall exceed ten (10) years from the Effective Date and no option period
with respect to an NSO or related SAR shall exceed twenty (20) years. Provided,
however, the option period with respect to ISO's granted to 10%
Shareholder-Employees shall not exceed five (5) years.
3.5. SPECIAL CALENDAR YEAR LIMITATION ON SHARES SUBJECT TO ISO'S. The
aggregate Fair Market Value (determined at the time of the grant of the ISO's)
of the stock with respect to which ISO's are exercisable for the first time by
an eligible key employee during any calendar year (under all plans providing for
the grant of incentive stock options of the Company or any of its Subsidiaries)
shall not exceed One Hundred Thousand Dollars ($100,000.00).
3.6. SEQUENCE OF EXERCISING STOCK OPTIONS. Any option granted to an
employee pursuant to the Plan shall be exercisable even if there are outstanding
previously granted but unexercised options with respect to such key employee.
3.7. VESTING OF OPTIONS. All options and SAR's granted under the Plan
shall vest, and thereby become exercisable at such time or times as shall be
determined by the Committee in its sole discretion. The stock option agreement
between the Company and the optionee shall include the schedule under which the
options and SAR's shall vest.
3.8. VESTING ON CHANGE IN CONTROL OF THE COMPANY, DEATH, RETIREMENT OR
DISABILITY OF OPTIONEE. Notwithstanding the provisions of Section 3.7, in the
event of a Change in Control of the Company or upon the death, Permanent and
Total Disability or Retirement of the optionee, any options and SAR's granted
under this Plan may be exercised in full. Such ability of an optionee to
exercise an option or related SAR shall be without regard to any restrictions on
the vesting of the options and SAR's contained in the option agreement between
the Company and the optionee.
3.9. EARLY TERMINATION OF OPTION.
(a) TERMINATION OF OPTIONEE'S EMPLOYMENT PRIOR TO RETIREMENT. All
rights to exercise an option and related SAR shall terminate thirty (30) days
after the effective date of the optionee's termination of employment with the
Company and its Subsidiaries, but not later than the date the option and related
SAR expire unless such termination is For Cause or is on account of the
Permanent and Total Disability, death or Retirement of the optionee. The
transfer of employment of the optionee from the Company to a Subsidiary, or vice
versa, or from one Subsidiary to another, shall not be deemed a termination of
employment. The Committee shall have the authority to determine in each case
whether a leave of absence on military or government service or orther leave of
absence shall be deemed a termination of employment for purposes of this
subsection (a).
(b) FOR CAUSE TERMINATION OF OPTIONEE'S EMPLOYMENT. If an
optionee's employment with the Company and its Subsidiaries is terminated For
Cause, no previously unexercised option or SAR granted hereunder may be
exercised. Rather, all unexercised options and SAR's shall terminate effective
on the date the optionee receives notice of his termination For Cause.
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(c) TERMINATION OF OPTIONEE'S EMPLOYMENT DUE TO PERMANENT AND
TOTAL DISABILITY OR DEATH. If an optionee's employment terminates due to
Permanent and Total Disability or death, his option and any related SAR shall
terminate one (1) year after termination of his employment due to his Permanent
and Total Disability or death (but not later than the date the option and any
related SAR expire pursuant to their terms). During such period, subject to the
limitations of this Plan and the option agreement between the Company and the
optionee, the optionee, his guardian, attorney-in-fact, personal representative
or administrator, as the case may be, may exercise the option or related SAR in
full.
(d) TERMINATION OF OPTIONEE'S EMPLOYMENT DUE TO RETIREMENT. If an
optionee's employment terminates due to Retirement, his options and any related
SAR shall terminate five (5) years after termination of his employment due to
Retirement (but not later than the date on which the option and any related SAR
expire pursuant to their respective terms). Provided, however, if the optionee
dies after his Retirement but before he exercises his option or related SAR, his
option and related SAR shall terminate one (1) year after the optionee's date of
death (but not later than the date on which the option and any related SAR
expire pursuant to their respective terms). During such period, subject to the
limitations of this Plan and the option agreement between the optionee and the
Company, the optionee, his guardian, attorney-in-fact, or personal
representative, as the case may be, may exercise the option or related SAR in
full.
3.10. PAYMENT FOR STOCK. Full payment for shares purchased hereunder
shall be made at the time the option is exercised. Payment may be made by
delivering to the Company (a) cash; (b) at the discretion of the Committee,
whole shares of common stock of the Company ("Delivered Stock") which (i) has
been owned by the optionee for more than six (6) months and has been paid for,
within the meaning of SEC Rule 144 under the Exchange Act (and, if such stock
was purchased from the Company by use of a promissory note, such note has been
fully paid with respect to such stock), or (ii) was obtained by the optionee in
the public market or otherwise than through the exercise of an option under this
Plan or under any other stock option plan involving Company stock; (c) at the
discretion of the Committee, a combination of cash and Delivered Stock; or (d)
provided that a public market for the Company's common stock exists, (i) through
a "same day sale" commitment from the optionee and a broker-dealer that is a
member of the National Association of Securities Dealers ("NASD Dealer") whereby
the optionee irrevocably elects to exercise the option and to sell a portion of
the common stock so purchased in order to pay the option price, and whereby the
NASD Dealer irrevocably commits upon receipt of such stock to forward the option
price directly to the Company; or (ii) through a "margin" commitment from the
optionee and an NASD Dealer whereby the optionee irrevocably elects to exercise
the option and to pledge the stock so purchased to the NASD Dealer in a margin
account as security for a loan from the NASD Dealer in the amount of the option
price and whereby the NASD Dealer irrevocably commits upon receipt of such stock
to forward the option price directly to the Company. Delivered Stock shall be
valued by the Committee at its Fair Market Value determined as of the date of
the exercise of the option. No shares shall be issued until full payment for
them has been made, and an optionee shall have none of the rights of a
shareholder with respect to any shares until they are issued to him. Upon
payment of the full purchase price, and any required withholding taxes, the
Company shall issue a certificate or certificates to the optionee evidencing
ownership of the shares purchased pursuant to the exercise
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of the option which contain(s) such terms, conditions and provisions as may be
required and as are consistent with the terms, conditions and provisions of the
Plan and the stock option agreement between the Company and the optionee.
3.11. INCOME AND EMPLOYMENT TAX WITHHOLDING.
(a) PAYMENT BY OPTIONEE. The optionee shall be solely responsible
for paying to the Company all required federal, state, city and local taxes
applicable to his (i) exercise of an NSO or SAR under the Plan and (ii)
disposition of shares acquired pursuant to the exercise of an ISO in a
disqualifying disposition of the shares under Code Section 422(a)(1).
(b) NSO AND SAR WITHHOLDING WITH COMPANY STOCK. Notwithstanding
the provisions of subsection (a), with respect to stock to be issued pursuant to
the exercise of an NSO or cash or stock to be paid pursuant to the exercise of a
SAR, the Committee, in its discretion and subject to such rules as it may adopt,
may permit the optionee to satisfy, in whole or in part, any withholding tax
obligation which may arise in connection with the exercise of the NSO or SAR by
having the Company retain shares of stock which would otherwise be issued in
connection with the exercise of the NSO or SAR or accept delivery from the
optionee of shares of Company stock which have a Fair Market Value, determined
as of the date of the delivery of such shares, equal to the amount of the
withholding tax to be satisfied by that retention or delivery.
(c) ISO DISQUALIFYING DISPOSITION; WITHHOLDING WITH COMPANY
STOCK. Notwithstanding the provisions of subsection (a), with respect to shares
of stock to be issued pursuant to the exercise of any ISO, the Committee, in its
discretion and subject to such rules as it may adopt, may permit the optionee to
satisfy, in whole or in part, any withholding tax obligation which may arise in
connection with the disqualifying disposition of the shares under Code Section
422(a)(1) by having the Company accept delivery from the optionee of shares of
stock having a Fair Market Value, determined as of the date of the delivery of
such shares, equal to the amount of the withholding tax to be satisfied by that
delivery.
3.12. NOTICE OF DISQUALIFYING DISPOSITION. Any ISO granted hereunder
shall require the optionee to notify the Committee in writing of any disposition
of any stock issued pursuant to the exercise of the ISO under the circumstances
described in Section 421(b) of the Code (relating to certain disqualifying
dispositions), within ten (10) days of such disposition.
3.13. STOCK APPRECIATION RIGHTS.
(a) SAR's may be granted by the Committee, in its discretion, in
conjunction with all or part of any option granted under the Plan, at the time
of the grant of such option. All of the terms of the Plan respecting options
shall also apply to SAR's subject to the further special rules of this Section
3.13 and such other terms and conditions not inconsistent therewith as the
Committee shall determine. Accordingly, each SAR by its terms shall (i) expire
when the underlying option expires; (ii) become transferable only when the
underlying option is transferable and under the same terms and conditions; and
(iii) become exercisable only when and to the extent that the underlying option
is eligible to be exercised. Moreover, a SAR by its terms shall further provide
that the "economic value" thereof (as defined in subsection (c) below)
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may not exceed one hundred percent (100%) of the difference between the exercise
price of the number of shares covered by the underlying option and the Fair
Market Value of such shares determined at the time when the SAR is exercised and
the SAR may only be exercised when such Fair Market Value exceeds such exercise
price.
(b) SAR's may be exercised by an optionee by surrendering the
underlying option or applicable portion thereof. As provided in subsection (a)
above, a SAR shall be exercisable at such time or times and only to the extent
that the underlying option is exercisable; further, with respect to employees
who are officers or directors of the Company, SAR's may be exercised, and
elections to receive cash in settlement thereof may be made, only during such
periods of time as may be allowed under Rule 16b-3 of the Exchange Act.
Underlying options shall no longer be exercisable to the extent they are
surrendered upon exercise of related SAR's.
(c) Upon the exercise of a SAR and the surrender of the
underlying option, the optionee shall become entitled to receive the economic
value of such SAR, in cash, in shares of Company stock or any combination
thereof. Such economic value shall be equal to the excess of the Fair Market
Value (determined on the date of exercise of such SAR) of one (1) share of stock
over the option price per share specified in the underlying option, multiplied
by the number of shares with respect to which SAR's shall have been exercised.
The Committee shall have the sole discretion either to determine the form in
which such payment of economic value is to be made or to consent to or
disapprove of the election of the optionee to receive cash in full or partial
payment of such value.
(d) Upon the exercise of a SAR, the underlying option or part
thereof to which such SAR is related shall be deemed to have been exercised for
purposes of the limitation on the number of shares of stock specified in Section
3.1.
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ARTICLE IV
PLAN ADMINISTRATION AND INTERPRETATION
4.1. AMENDMENT AND TERMINATION. The Board of Directors or the Committee
may, at any time, without the approval of the stockholders of the Company
(except as otherwise required by applicable law, rule or regulations, or listing
requirements of any National Securities Exchange on which are listed any of the
Company's equity securities, including without limitation any shareholder
approval requirement of Rule 16b-3 or any successor safe harbor rule promulgated
under the Exchange Act ), alter, amend, modify, suspend or discontinue the Plan,
but may not, without the consent of the holder of an option, or an option and a
SAR, make any alteration which would adversely affect an option or SAR
previously granted under the Plan or, without the approval of the stockholders
of the Company, make any alteration which would: (a) increase the aggregate
number of shares subject to options under the Plan, except as provided in
Section 4.2; (b) decrease the minimum option price, except as provided in
Section 4.2; (c) permit any Committee member to become eligible to receive
grants of options or SAR's under the Plan; (d) withdraw administration of the
Plan from the Committee or the Board of Directors; (e) extend the term of the
Plan or the maximum period during which any option may be exercised; (f) change
the manner of determining the option price; or (g) change the class of
individuals eligible for options under the Plan.
4.2. CHANGES IN STOCK.
(a) SUBSTITUTION OF STOCK AND ASSUMPTION OF PLAN. In the event of
any change in the common stock of the Company through stock dividends,
split-ups, recapitalizations, reclassifications, conversions, or otherwise, or
in the event that the number of shares of common stock outstanding (which for
these purposes shall be the number of shares actually outstanding plus the
number of shares available for issuance pursuant to options granted under the
Plan or any other employee stock option plan, as now in effect or hereafter
adopted or amended, of the Company) shall increase as a result of the issuance
of additional shares by the Company, or in the event that other stock shall be
converted into or substituted for the present common stock of the Company as the
result of any merger, consolidation, reorganization or similar transaction which
results in a Change in Control of the Company, then the Committee may, and in
the case of an increase in the number of shares outstanding, shall, make
appropriate adjustment or substitution in the aggregate number, price, and kind
of shares available under the Plan and in the number, price and kind of shares
covered under any options granted or to be granted under the Plan. The
Committee's determination in this respect shall be final and conclusive.
Provided, however, that the Company shall not, and shall not permit its
Subsidiaries to, recommend, facilitate, agree or consent to a transaction or
series of transactions which would result in a Change of Control of the Company
unless and until the person or persons or the entity or entities acquiring or
succeeding to the assets or capital stock of the Company or any of its
Subsidiaries as a result of such transaction or transactions agrees to be bound
by the terms of the Plan so far as it pertains to options theretofore granted
but unexercised and agrees to assume and perform the obligations of the Company
hereunder. Notwithstanding the foregoing provisions of this subsection (a), no
adjustment shall be made which would operate to reduce the option price of
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any ISO below the Fair Market Value of the stock (determined on the date the
option was granted) which is subject to an ISO.
(b) CONVERSION OF STOCK. In the event of a Change in Control of
the Company pursuant to which another person or entity acquires control of the
Company (such other person or entity being the "Successor"), the kind of shares
of common stock which shall be subject to the Plan and to each outstanding
option and each SAR related thereto, if any, shall, automatically by virtue of
such Change in Control of the Company, be converted into and replaced by shares
of common stock, or such other class of securities having rights and preferences
no less favorable than common stock of the Successor, and the number of shares
subject to the option and the SAR related thereto, if any, and the purchase
price per share upon exercise of the option and the SAR related thereto, if any,
shall be correspondingly adjusted, so that, by virtue of such Change in Control
of the Company, each optionee shall have the right (i) to purchase (A) that
number of shares of common stock of the Successor which have a Fair Market Value
equal, as of the date of such Change in Control of the Company, to the Fair
Market Value, as of the date of such Change in Control of the Company, of the
shares of common stock of the Company theretofore subject to his option, (B) for
a purchase price per share which, when multiplied by the number of shares of
common stock of the Successor subject to the option, shall equal the aggregate
exercise price at which the optionee could have acquired all of the shares of
common stock of the Company previously granted to the optionee; and (ii) to
exercise that number of SAR's which have an economic value, as defined in
Section 3.13(c) equal, as of the date of Change in Control of the Company, to
the economic value, as defined in Section 3.3(c), as of such date of Change in
Control of the Company, of the SAR's theretofore granted to the optionee.
4.3. INFORMATION TO BE FURNISHED BY OPTIONEES. Optionees, or any other
persons entitled to benefits under this Plan, must furnish to the Committee such
documents, evidence, data or other information as the Committee considers
necessary or desirable for the purpose of administering the Plan. The benefits
under the Plan for each optionee, and each other person who is entitled to
benefits hereunder, are to be provided on the condition that he furnish full,
true and complete data, evidence or other information, and that he will promptly
sign any document reasonably related to the administration of the Plan requested
by the Committee.
4.4. EMPLOYMENT RIGHTS. Neither the Plan nor any stock option agreement
executed under the Plan shall constitute a contract of employment and
participation in the Plan will not give an optionee the right to be rehired or
retained in the employ of the Company, nor will participation in the Plan give
any optionee any right or claim to any benefit under the Plan, unless such right
or claim has specifically accrued under the terms of the Plan.
4.5. EVIDENCE. Evidence required of anyone under the Plan may be by
certificate, affidavit, document or other information which the person relying
thereon considers pertinent and reliable, and signed, made or presented by the
proper party or parties.
4.6. GENDER AND NUMBER. Where the context admits, words in the
masculine gender shall include the feminine gender, the plural shall include the
singular and the singular shall include the plural.
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4.7. ACTION BY COMPANY. Any action required of or permitted by the
Company under the Plan shall be by resolution of the Board of Directors or by a
person or persons authorized by resolution of the Board of Directors.
4.8. CONTROLLING LAWS. Except to the extent superseded by laws of the
United States, the laws of Indiana shall be controlling in all matters relating
to the Plan.
4.9. MISTAKE OF FACT. Any mistake of fact or misstatement of fact shall
be corrected when it becomes known and proper adjustment made by reason thereof.
4.10. SEVERABILITY. In the event any provisions of the Plan shall be
held to be illegal or invalid for any reason, such illegality or invalidity
shall not affect the remaining parts of the Plan, and the Plan shall be
construed and endorsed as if such illegal or invalid provisions had never been
contained in the Plan.
4.11. EFFECT OF HEADINGS. The descriptive headings of the sections of
this Plan are inserted for convenience of reference and identification only and
do not constitute a part of this Plan for purposes of interpretation.
4.12. NONTRANSFERABILITY. No option or SAR granted under the Plan shall
be transferable, except by the optionee's will or the laws of descent and
distribution. During the optionee's lifetime, his option and any related SAR
shall be exercisable (to the extent exercisable) only by him. The option (and
any related SAR) and any rights and privileges pertaining thereto shall not be
transferred, assigned, pledged or hypothecated by him in any way, whether by
operation of law or otherwise and shall not be subject to execution, attachment
or similar process.
4.13. LIABILITY. No member of the Board of Directors or the Committee
or any officer or employee of the Company or its Subsidiaries shall be
personally liable for any action, omission or determination made in good faith
in connection with the Plan. Each optionee, in the stock option agreement
between him and the Company, shall agree to release and hold harmless the
Company, the Board of Directors, the Committee and all officers and employees of
the Company and its Subsidiaries from and against any tax liability, including
without limitation interest and penalties, incurred by the optionee in
connection with his participation in the Plan.
4.14. INVESTMENT REPRESENTATIONS. Unless the shares subject to an
option are registered under the Securities Act of 1933, each optionee, in the
stock option agreement between the Company and the optionee, shall agree for
himself and his legal representatives that any and all shares of common stock
purchased upon the exercise of the option shall be acquired for investment and
not with a view to, or for sale in connection with, any distribution of those
shares. Any share issued pursuant to an exercise of an option subject to this
investment representation shall bear a legend evidencing this restriction.
4.15. USE OF PROCEEDS. The proceeds received by the Company from the
sale of stock pursuant to the Plan will be used for general corporate purposes.
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HORIZON BANCORP
By:__________________________________
Larry E. Reed, Chairman
ATTEST: [SEAL]
By:______________________________
Thomas P. McCormick, Secretary
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