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EXHIBIT 10.14
FIRSTIER CORPORATION
1999 STOCK INCENTIVE PLAN
1. PURPOSE
The purpose of the FirsTier Corporation 1999 Stock Incentive is to
provide incentives and rewards for Employees, non-Employee Directors and
consultants of the Corporation and its Subsidiaries (i) to support the execution
of the Corporation's business strategies and the achievement of its goals, (ii)
to associate the interests of Employees, non-Employee Directors and consultants
with those of the Corporation's stockholders, and (iii) to help provide a
competitive compensation program that will enable the Corporation to attract and
retain the highest quality Employees, non-Employee Directors and consultants.
2. DEFINITIONS
(a) "Award" means individually or collectively Restricted Stock, Stock
Options (including incentive stock options under Section 422 of the Code), Stock
Appreciation Rights or Performance Shares granted hereunder.
(b) "Award Period" means the period of time during which a Stock
Appreciation Right which has not been granted pursuant to an option may be
exercised. The Award Period shall be set forth in the Award Summary issuing the
Stock Appreciation Right to the person granted the Award.
(c) "Award Summary" means a written summary or agreement setting forth
the terms and conditions of each Award made under this Plan.
(d) "Board" means the Board of Directors of the Corporation.
(e) "Code" means the Internal Revenue Code of 1986, as amended from
time to time.
(f) "Committee" means the Compensation Committee of the Board or such
other committee of the Board consisting of at least two members as may be
designated by the Board from time to time to administer this Plan; provided,
however, that no person may serve on the Committee who would not be considered
(i) a "non-employee director" within the meaning of Rule 16b-3 promulgated under
the Exchange Act, and (ii) an "outside director" within the meaning of Section
162(m) of the Code.
(g) "Common Stock" means the Common Stock of the Corporation.
(h) "Corporation" means FirsTier Corporation a Colorado corporation.
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(i) "Director" means a non-Employee director of the Corporation. For
purposes of Awards granted pursuant to this Plan, the term "Director" may, at
the discretion of the Board, include directors of Subsidiaries.
(j) "Eligible Person" or "Eligible Persons" has the meaning assigned to
it in Section 3.
(k) "Employee" means an employee of the Corporation or a Subsidiary.
(l) "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
(m) "Exercise Period" means the period or periods during which a Stock
Appreciation Right is exercisable as described in Section 8(b).
(n) "Fair Market Value" means the fair market value of the Common Stock
as of the date on which a determination is to be made, as determined by the
Board.
(o) "Option Period" or "Option Periods" means the period or periods
during which an option is exercisable as described in Section 7(e).
(p) "Option Price" means the price, expressed on a per share basis, for
which the Common Stock can be acquired by the holder of the option pursuant to
the exercise of such option.
(q) "Participant" means an Eligible Person who has been granted an
Award under this Plan.
(r) "Performance Share" is an Award granted under Section 9.
(s) "Plan" means this FirsTier Corporation 1999 Stock Incentive Plan.
(t) "Plan Year" means a twelve-month period beginning with January 1 of
each year.
(u) "Stock Appreciation Right" is an Award granted under Section 8.
(v) "Subsidiary" means any corporation or other entity, whether
domestic or foreign, in which the Corporation has or obtains, directly or
indirectly, a proprietary interest of more than 50% by reason of stock ownership
or otherwise.
3. ELIGIBILITY
Awards under the Plan may be granted to Employees, Directors and
consultants of the Corporation and its Subsidiaries ("Eligible Person" or
"Eligible Persons"). Notwithstanding the foregoing, for purposes of the Plan,
and the Plan only, no person
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shall be granted an Award under the Plan unless such person is an Employee,
Director or consultant of the Corporation or a Subsidiary.
Awards may be issued to the same person on more than one occasion.
4. PLAN ADMINISTRATION
(a) Board of Directors. The Plan shall be administered by the Board of
Directors of the Corporation or by the Committee (unless the context otherwise
requires, the Board of Directors of the Corporation or Committee thereof as
provided herein shall be referred to herein as the "Board"). The Board shall
periodically make determinations with respect to the participation of Eligible
Persons in this Plan and, except as otherwise required by law or this Plan, the
grant terms of Awards including vesting schedules, price, length of relevant
performance, restriction or option periods, termination rights, payment
alternatives or other means of payment consistent with the purposes of this
Plan, and such other terms and conditions as the Board deems appropriate. Awards
may be granted as replacements of Awards outstanding under the Plan or under
previous stock incentive plans maintained by the Corporation.
(b) Construction. The interpretation and construction by the Board of
any provisions of the Plan, or of any Award granted under it, shall be final. No
member of the Board shall be liable for any action or determination made in good
faith with respect to the Plan, option or restricted stock granted under it.
(c) Indemnification. The Board shall have authority to interpret and
construe the provisions of this Plan and the Award Summaries and make
determinations pursuant to any Plan provision or Award Summary which shall be
final and binding on all persons. No member of the Board shall be liable for any
action or determination made in good faith, and the members shall be entitled to
indemnification and reimbursement in the manner provided in the Corporation's
Articles of Incorporation and Bylaws, and to the fullest extent allowed by law.
5. STOCK SUBJECT TO PROVISIONS OF PLAN
The stock for which Awards may be granted and which may be sold
pursuant to the Plan shall not, subject to Sections 13 and 15, exceed in the
aggregate 1,700,000 shares of the Corporation's common stock. Such shares may be
authorized and unissued shares or may be issued shares reacquired by the
Corporation. All shares for which an Award is granted under the Plan, which for
any reason are not issued as a result of non-exercise of such Award or
fulfillment of the conditions and terms of such Award, shall be available for
the granting of further Awards under the Plan.
6. AWARDS TO EMPLOYEES UNDER PLAN: RESTRICTED STOCK AWARDS
(a) Grants of Shares of Restricted Stock. An award made pursuant to
this
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Section 6 shall be granted in the form of shares of common stock, restricted as
provided in this Section 6 ("Restricted Stock"). Shares of Restricted Stock
shall be issued to the Eligible Person upon the payment of consideration as
determined by the Board. The shares of Restricted Stock shall be issued in the
name of the Eligible Person and shall bear a restrictive legend prohibiting
sale, transfer, pledge or hypothecation of the shares of Restricted Stock until
the expiration of the restriction period.
The Board may also impose such other restrictions and conditions on the
shares of Restricted Stock as it deems appropriate, including but not limited to
requiring the Eligible Person to keep the Restricted Stock certificates, duly
endorsed, in the custody of the Corporation while the restrictions remain in
effect.
(b) Restriction Period. At the time a Restricted Stock award is made,
the Board may establish a restriction period applicable to such award which
shall not be more than ten (10) years. Each Restricted Stock award may have a
different restriction period, at the discretion of the Board. In addition to or
in lieu of a restriction period, the Board may establish a performance goal
which must be achieved as a condition to the retention of the Restricted Stock.
The performance goal may be based on the attainment of specified types of
performance measurement criteria, which may differ as to various Eligible
Persons or classes or categories of Eligible Persons. Such criteria may include,
without limitation, the attainment of certain performance levels by the Eligible
Person, the Corporation, a department or division of the Corporation and/or a
group or class of Eligible Persons. Any such performance goals, together with
the ranges of Restricted Stock awards for which the Eligible Persons may be
eligible shall be set from time to time by the Board and shall be timely
communicated in writing to the Eligible Persons in advance of the commencement
of the performance of services to which such performance goals relate.
(c) Forfeiture or Payout of Award. In the event a Participant ceases to
be an Eligible Person during a restriction period, or in the event performance
goals attributable to a Restricted Stock award are not achieved, subject to the
terms of each particular Restricted Stock award, a Restricted Stock award is
subject to forfeiture of the shares of common stock which had not previously
been removed from restriction under the terms of the award.
Any shares of Restricted Stock which are forfeited will be transferred
to the Corporation. Any consideration paid by the Eligible Person for the
Restricted Stock shall be returned, without interest, to such Eligible Person
upon forfeiture.
Upon completion of the restriction period and satisfaction of any
performance-goal criteria, all restrictions upon the award will expire and new
certificates representing the award will be issued or released without the
restrictive legend. As a condition precedent to receipt of the certificates, the
Eligible Person (or the designated
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beneficiary or personal representative of the Eligible Person) will agree to
make payment to the Corporation in the amount of any taxes, payable by the
Eligible Person, which are required to be withheld with respect to such shares
of common stock.
7. STOCK OPTIONS
(a) Grant of Option. One or more options may be granted to any Eligible
Person. Upon the grant of an option to an Eligible Person, the Board shall
specify whether the option is intended to constitute a non-qualified stock
option or an incentive stock option; provided, however, that incentive stock
options may only be issued to persons who are Employees. An incentive stock
option is an option within the meaning of Section 422 of the Internal Revenue
Code of 1986, as amended.
(b) Stock Option Agreement. Each option granted under the Plan shall be
evidenced by a written stock option agreement between the Corporation and the
Eligible Person containing such terms and conditions as the Board determines,
including, without limitation, provisions to qualify Incentive Stock Options as
such under Section 422 of the Code. Such agreements shall incorporate the
provisions of this Plan by reference. The date of granting an option is the date
specified in the written stock option agreement which is signed by the Eligible
Person and the Corporation.
(c) Exercise Price. The exercise price of the common stock offered to
Employees persons under the Plan by grant of an incentive stock option to
purchase common stock may not be less than the fair market value of the common
stock at the date of grant; provided, however, that the exercise price shall not
be less than 110% of the fair market value of the common stock on the date of
grant in the event an Employee owns 10% or more of the common stock of the
Corporation. The exercise price of the common stock offered to Eligible Persons
under the Plan by grant of a non-qualified stock option may be less than fair
market value of the common stock at the date of grant.
(d) Term of Options. The terms of each option shall be no more than ten
years from the date of grant as determined by the Board but shall be subject to
earlier termination as subsequently provided; however, if an incentive stock
option is granted to an Employee who, as of the date of grant, owns 10% or more
of the Corporation's Common Stock, the term of the option shall be no more than
five years.
(e) Schedule For Exercise. Immediately after grant of an option, it may
be exercised (subject to sections (f) and (g) of this Section) on terms and
conditions as the Board shall so determine on the date of grant. The Board may
limit an option by restricting its exercise in whole or in part for specified
periods in its sole discretion.
(f) Manner of Exercise
(i) Notice to The Corporation. Each exercise of an option
granted shall be made by the delivery by the optionee (or his legal
representative, as the case may
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be) of written notice of such election to the Corporation, either in person or
by certified mail to the Corporation's mailing address, stating the number of
shares with respect to which the option is being exercised and specifying a date
on which the shares will be taken and payment made therefor. Such date shall be
at least 30 days after such notice is given.
(ii) Issuance of Stock. On the date specified in the notice of
election, the Corporation shall deliver, or cause to be delivered, to the
optionee (or his legal representative, as the case may be), stock certificates
for the number of shares with respect to which the option is being exercised,
against payment therefor. Delivery of the certificate(s) may be made at the
office of the Corporation or at the office of a transfer agent appointed for the
transfer of shares of the Corporation, as the Corporation shall determine.
Shares shall be issued in the name of the optionee (or his legal representative,
as the case may be). No shares shall be issued until full payment therefor shall
have been made by cash or by certified check equal to the exercise price;
provided however, that the Board may adopt customary "cashless exercise"
provisions if deemed appropriate. In the event of a failure on the date stated
to pay for and accept delivery of the certificate(s) representing the full
number of shares specified in the notice of election, the option shall become
inoperative only as to those shares which are not paid for and accepted, but
shall continue with respect to any remaining shares subject to the option as to
which exercise has not yet been made.
(g) Purchase of Investment
(i) Written Agreement. Unless a registration statement under
the Securities Act of 1933 is then in effect with respect to the common stock an
Eligible Person receives upon exercise of his or her option, an Eligible Person
shall acquire the common stock he or she receives upon exercise of the option
for investment and not for resale or distribution, and he or she shall furnish
the Corporation with a written statement to that effect when exercising the
option and a reference to such investment warranty shall be inscribed on the
stock certificate(s).
(ii) Registration Requirement. Each option shall be subject to
the requirement that, if at any time the Board determines that the listing,
registration or qualification of the common stock subject to the option upon any
securities exchange or quotation system, or under any state or Federal law is
necessary or desirable as a condition of, or in connection with, the issuance of
the common stock thereunder, the option may not be exercised in whole or in part
unless such listing, registration or qualification shall have been effected or
obtained (and the same shall have been free of any conditions not acceptable to
the Board).
(h) Date of Grant. Each option granted under the Plan, unless otherwise
speci fically indicated, shall be granted as of the date of the Board's
resolution conferring the option ("date of grant").
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(i) Special Limitations on Exercise of Incentive Stock Options. The
aggregate fair market value (determined at the time the incentive stock option
is granted) of the common stock with respect to which any incentive stock option
is first exercisable during any calendar year shall not exceed $100,000.
8. STOCK APPRECIATION RIGHTS
(a) Grant of Stock Appreciation Rights. One or more Stock Appreciation
Right awards may be granted to Eligible Persons. Stock Appreciation Rights may
be granted under the Plan in tandem with an option either at the time of grant
or by amendment or may be separately awarded. Stock Appreciation Rights shall be
subject to such terms and conditions not inconsistent with the Plan as the Board
shall impose.
(b) Right to Exercise; Exercise Period. A Stock Appreciation Right
issued in tandem with an option shall be exercisable to the extent the option is
exercisable. A Stock Appreciation Right issued independent of an option shall be
exercisable pursuant to such terms and conditions established in the grant.
(c) Automatic Redemption of Unexercised Stock Appreciation Rights. If
on the last day of the Option Period, in the case of a Stock Appreciation Right
granted in tandem with an option, or the specified Award Period, in the case of
a Stock Appreciation Right issued independent of an option, the Participant has
not exercised such Stock Appreciation Right, then such Stock Appreciation Right
shall be automatically redeemed by the Corporation for an amount equal to the
payment that would otherwise have been made to the Participant if the
Participant had chosen to exercise the Stock Appreciation Right on the last day
of the Option Period or the specified Award Period, as the case may be.
(d) Rights Upon Exercise. An exercisable Stock Appreciation Right
granted in tandem with an option shall entitle the Participant to surrender
unexercised the option or any portion thereof to which the Stock Appreciation
Right is attached, and to receive in exchange for the Stock Appreciation Right a
payment (in cash or shares of Common Stock or a combination thereof as described
below) equal to the Fair Market Value of one share of Common Stock at the date
of exercise minus the Option Price times the number of shares called for by the
Stock Appreciation Right (or portion thereof) which is so exercised. For
example, assume that a Participant is granted a tandem Award of an option to
purchase 1,000 shares of Common Stock at an Option Price of $2.00 per share and
1,000 Stock Appreciation Rights. In such a case, the exercise of 700 options by
the Participant would relinquish and terminate 700 Stock Appreciation Rights;
similarly, the exercise of the remaining 300 Stock Appreciation Rights would
relinquish and terminate the remaining 300 options. If the Fair Market Value of
the Stock was $5.00 per share at both the time of the exercise of the options
and Stock Appreciation Rights, then the Participant would receive 700 shares of
Common Stock upon payment of $1,400 (700 times the Option Price of $2.00) and
the Corporation would pay the
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Participant $900 upon the exercise of the 300 Stock Appreciation Rights (($5.00
minus $2.00) times 300).
With respect to the issuance of Stock Appreciation Rights which are not
granted in tandem with an option, the Board shall specify upon the date of grant
of the Stock Appreciation Right whether the Stock Appreciation Right is a
"regular" Stock Appreciation Right or a "book value" Stock Appreciation Right.
Upon the exercise of a "regular" Stock Appreciation Right, the Participant will
receive a payment equal to the Fair Market Value of one share of Stock at the
date of exercise minus the Fair Market Value of one share of Common Stock as of
the Date of Grant of the Stock Appreciation Right times the number of shares
called for by the Stock Appreciation Right (or portion thereof) which is so
exercised. Upon the exercise of a "book value" Stock Appreciation Right, the
Participant will receive a payment equal to the Book Value of one share of Stock
at the date of exercise minus the Book Value of one share of Common Stock as of
the Date of the Grant of the Stock Appreciation Right times the number of shares
called for by the Stock Appreciation Right (or portion thereof) which is so
exercised.
The value of any Common Stock to be received upon exercise of a Stock
Appreciation Right shall be the Fair Market Value of the Stock on such date of
exercise. To the extent that a Stock Appreciation Right issued in tandem with an
option is exercised, such option shall be deemed to have been exercised, and
shall not be deemed to have lapsed.
(e) Transferability. The Board may impose such restrictions on
transferability of Stock Appreciation Rights, if any, as it may in its sole
discretion determine; provided however, that Stock Appreciation Rights issued in
tandem with the grant of an incentive stock option must be subject to the same
transferability restriction as the incentive stock option itself.
9. PERFORMANCE SHARES
(a) Grant of Performance Shares. One or more Performance Shares awards
may be granted to Eligible Persons. Awards made pursuant to this Section 9 shall
be granted in the form of Performance Shares, subject to such terms and
conditions not inconsistent with the Plan as the Board shall impose. Performance
Shares shall be issued to the Participant without the payment of consideration
by the Participant. Awards shall be based on the attainment of specified types
and combination of performance measurement criteria, which may differ as to
various Participants or classes or categories of Participants. Such criteria may
include, without limitation, the attainment of certain performance levels by the
individual Participant, the Corporation, a department or division of the
Corporation and/or a group or class of Participants.
(b) Performance Period. The measuring period to establish the
performance criteria set forth in a Performance Share Award shall be determined
by the Board. A
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Performance Share Award may initially provide, or the Board may at any time
thereafter, but no more frequently than once in any six (6) month period, amend
it to provide, for waiver or reduction of the measuring period and, if
appropriate, for adjustment of the performance criteria set forth in the
Performance Share Award, upon the occurrence of events determined by the Board
in its sole discretion to justify such waiver, reduction or adjustment.
(c) Form of Payment. Upon the completion of the applicable measuring
period, a determination shall be made by the Board in accordance with the Award
as to (i) the extent to which performance criteria have been attained, (ii) the
satisfaction of any other terms and conditions with respect to the Award, and
(iii) the number of shares of Common Stock to be awarded to the Participant. The
appropriate number of shares of Common Stock shall thereupon be issued to the
Participant in accordance with the Award in satisfaction of such Performance
Share Award.
10. AWARD SUMMARIES
Each Award under this Plan shall be evidenced by an Award Summary.
Delivery of an Award Summary to each Participant shall constitute an agreement
between the Corporation and the Participant as to the terms and conditions of
the Award.
11. OTHER TERMS AND CONDITIONS
(a) Assignability. Except as otherwise provided below, no Award shall
be assignable or transferable except by will or the laws of descent and
distribution and, during the lifetime of a Participant, the Award shall be
exercisable only by such Participant or such Participant's guardian or legal
representative. The Board, in its discretion, may permit a Participant during
their lifetime, to transfer a non-qualified stock option, for no consideration,
to or for the benefit of the Participant's immediate family (including a trust
for the benefit of the Participant's immediate family) or to a partnership or
limited liability company for one or more members of the Participant's immediate
family), subject to such limits as the Board may establish, and the transferee
shall remain subject to all the terms and conditions applicable to the Award
prior to such transfer. Any vesting period applicable to an Award shall,
however, continue to be measured in terms of the Participant's employment or
service to the Corporation or its Subsidiaries. The term "immediate family"
shall mean the Participant's spouse, parents, children, stepchildren, adoptive
children, sisters, brothers and grandchildren (and, for these purposes, shall
also include the Participant).
(b) Termination of Employment or Relationship. If the employment or
relationship of a Participant as identified in his or her particular option
and/or Stock Appreciation Right agreement terminates for any reason other than
death or total and permanent disability, any options and/or Stock Appreciation
Rights granted to the Participant under the Plan which have not been exercised
shall be canceled, except that such an option and/or Stock Appreciation Right
may be exercised within three
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months after such termination of such relationship to the extent the option
and/or Stock Appreciation Right was exercisable on the date of termination of
such relationship. The Plan will not confer upon any Participant any right with
respect to continuance of such relationship with the Corporation; nor will it
interfere in any way with the Corporation's right to terminate such relationship
at any time.
In the event of the death of a Participant, any option and/or Stock
Appreciation Right held by him or her at the time of his or her death shall be
transferred as provided in his will or as determined by the laws of descent and
distribution, and the terms of the option and/or Stock Appreciation Right may
provide that it may be exercised by the estate of the Participant, or by any
person who acquired such option and/or Stock Appreciation Right by bequest or
inheritance from the Participant, at any time or from time to time within three
months after the date of death (such date to be determined by the Board), but
not thereafter, to the extent the option and/or Stock Appreciation Right was
exercisable on such date.
In the event of permanent disability (within the meaning of section
22(e)(3)) of a Participant, any option and/or Stock Appreciation Right granted
pursuant to the Plan and held by him or her may be exercised by the Participant
or his or her representative at any time or from time to time within one year
after the date of termination (such date to be determined by the Board), but not
thereafter, to the extent the option and/or Stock Appreciation Right was
exercisable on such date.
(c) Rights as a Stockholder. An Eligible Person shall have all voting,
dividend, liquidation and other rights with respect to Common Stock in
accordance with its terms received by him or her as a Restricted Stock award
upon his or her becoming the holder of record of such Common Stock; provided,
however, that the Eligible Person's right to sell, encumber or otherwise
transfer such Common Stock shall be subject to the restrictions set forth in the
grant of the Award and elsewhere in this Plan. A Participant shall not, by
reason of any option and/or Stock Appreciation Right granted pursuant to this
Plan, have any rights of a stockholder of the Corporation until the date of
issuance of the stock certificate(s) to him or her in respect of exercise of an
option and/or Stock Appreciation Right granted hereunder.
(d) Payments by Participants. The Board may determine that Awards for
which a payment is due from a Participant may be payable: (i) in U.S. dollars by
personal check, bank draft or money order payable to the order of the
Corporation, by money transfers or direct account debits; (ii) through the
delivery or deemed delivery based on attestation to the ownership of shares of
Common Stock held by the payor for at least six months, with a Fair Market Value
equal to the total payment due; (iii) by a combination of the methods described
in (i) and (ii) above; (iv) in the case of a non-qualified stock option, by
authorizing a third party to sell shares of Common Stock (or a sufficient
portion of the shares) acquired upon exercise of the option and remit to the
Corporation a sufficient portion of the sale proceeds to pay the entire exercise
price and any tax withholding resulting from such exercise, or (v) by such other
methods as the Board may deem appropriate.
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(e) Withholding. The Corporation shall have the right to deduct from an
Award pursuant to the Plan any federal, state or local taxes as it deems to be
required by law to be withheld with respect to such award. In the case of awards
paid in Common Stock, the Eligible Person or other person receiving such Common
Stock may be required to pay to the Corporation the amount of any such taxes
which the Corporation is required to withhold with respect to such Common Stock.
At the request of an Eligible Person, or as required by law, such sums as may be
required for the payment of any estimated or accrued income tax liability may be
withheld and paid over to the governmental entity entitled to receive the same.
The Board may from time to time establish procedures for withholding of Common
Stock.
12. AMENDMENTS
The Board (but not the Committee) may alter, amend, suspend or
discontinue this Plan to the extent permitted by law; provided, however, that no
alteration, amendment, suspension or discontinuance of this Plan shall adversely
affect any right acquired by any Participant under an Award granted before the
date of such alteration, amendment, suspension or discontinuance of this Plan
without the written consent of the Eligible Person to whom the stock award has
been granted. Any such action of the Board may be taken without the approval of
the Corporation's stockholders, but only to the extent that such stockholder
approval is not required by applicable law or regulation, including specifically
Section 422 of the Code and the rules or policies of the primary exchange or
trading system on which the Common Stock is then traded.
13. RECAPITALIZATION
The aggregate number of shares of Common Stock as to which Awards may
be granted hereunder, the number of shares thereof covered by each outstanding
Award, and the price per share thereof in each such Award, shall all be
proportionately adjusted for any increase or decrease in the number of issued
shares of Common Stock resulting from a subdivision or consolidation of shares
or other capital adjustment, or the payment of a stock dividend or other
increase or decrease in such shares, effected without receipt of consideration
by the Corporation, or other change in corporate or capital structure; provided,
however, that any fractional shares resulting from any such adjustment shall be
eliminated. The Board shall make the foregoing changes and any other changes,
including changes in the classes of securities available, to the extent
necessary or desirable to preserve the intended benefits of this Plan for the
Corporation and the Participants in the event of any other reorganization,
recapitalization, merger, consolidation, spin-off, extraordinary dividend or
other distribution or similar transaction.
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14. NO RIGHT TO EMPLOYMENT
No person shall have any claim or right to be granted an Award, and the
grant of an Award shall not be construed as giving a Participant, Director or
consultant the right to be retained in the employ of the Corporation or a
Subsidiary; provided, however, that this Section 14 shall not in any way modify
or void any written employment agreement, consulting agreement or other similar
agreement between the Corporation and the Participant The Corporation and each
Subsidiary further expressly reserve the right at any time to dismiss a
Participant free from any liability, or any claim under this Plan, except as
provided herein or in any Award Summary issued hereunder.
15. CHANGE IN CONTROL
(a) Discontinuation of the Plan. The Plan shall be discontinued in the
event of the dissolution or liquidation of the Corporation or in the event of a
Reorganization (as hereinafter defined) in which the Corporation is not the
surviving or acquiring company, or in which the Corporation is or becomes a
wholly-owned subsidiary of another company after the effective date of the
Reorganization and no plan or agreement respecting the Reorganization is
established which specifically provides for the continuation of the Plan and the
change, conversion, or exchange of the Common Stock relating to existing Awards
under this Plan for securities of another corporation. Upon the dissolution of
the Plan in connection with an event described in this subsection (a), all
Awards shall become fully vested and unrestricted and all outstanding options
and Stock Appreciation Rights shall become immediately exercisable by the holder
thereof. Any options or Stock Appreciation Rights granted under the Plan may be
terminated as of a date fixed by the Board, provided that no less than fifteen
(15) days written notice of the date so fixed shall be given to each Participant
and each such Participant shall have the right during such period to exercise
all or any portion of such options or Stock Appreciation Rights. Any Stock
Appreciation Right not so exercised shall be redeemed.
(b) Continuation of the Plan Upon a Reorganization. In the event of a
Reorganization (as hereinafter defined) (i) in which the Corporation is not the
surviving or acquiring company, or in which the Corporation is or becomes a
wholly-owned subsidiary of another company after the effective date of the
Reorganization, and (ii) with respect to which there is a reorganization
agreement which undertakes to continue the Plan and to provide for the change,
conversion or exchange of the Stock attributable to outstanding Awards for
securities of another corporation, then the Plan shall continue and the Board
shall adjust the shares under such outstanding Awards (and shall adjust the
shares remaining under the Plan which are then to be available for the grant of
additional Awards under the Plan, if the reorganization agreement makes specific
provisions therefor), in a manner not inconsistent with the provisions of the
reorganization agreement and this Plan for the adjustment, change, conversion or
exchange of such Awards.
The term "Reorganization" as used in this Section 15 shall mean any
statutory merger, statutory consolidation, sale of all or substantially all of
the assets of the
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Corporation, or sale, pursuant to an agreement with the Corporation, of
securities of the Corporation pursuant to which the Corporation is or becomes a
wholly-owned subsidiary of another company after the effective date of the
Reorganization.
(c) Adjustments and Determinations. Adjustments and determinations
under this Section 15 shall be made by the Board, whose decisions as to what
adjustments or determinations shall be made, and the extent thereof, shall be
final, binding, and conclusive.
16. RETIREMENT
The Board may, in its discretion, waive the forfeiture, termination, or
lapse of an Award in the event of retirement of a Participant (each as
determined by the Board, in its discretion). Exercise of such discretion by the
Board in any individual case, however, shall not be deemed to require, or to
establish a precedent suggesting such waiver in any other case.
17. GOVERNING LAW
To the extent that federal laws do not otherwise control, this Plan and
the Awards issued hereunder shall be construed in accordance with and governed
by the law of the State of Colorado to the extent not inconsistent with Section
422 of the Code and regulations issued thereunder.
18. SAVINGS CLAUSE
This Plan is intended to comply in all aspects with applicable law and
regulation. In case any one or more of the provisions of this Plan shall be held
invalid, illegal or unenforceable in any respect under applicable law and
regulation, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby and the invalid,
illegal or unenforceable provision shall be deemed null and void; however, to
the extent permissible by law, any provision which could be deemed null and void
shall first be construed, interpreted or revised retroactively to permit this
Plan to be construed in compliance with all applicable laws so as to foster the
intent of this Plan.
19. SUCCESSORS
Awards issued under the Plan should be binding upon, and inure to the
benefit of, the Corporation and its successors and assigns, and upon any person
acquiring, whether by merger, consolidation, purchase of assets or otherwise,
all or substantially all of the Corporation's assets and business.
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20. EFFECTIVE DATE AND TERM
The FirsTier Corporation 1999 Stock Incentive Plan shall be effective
this 15th day of September, 1999, subject to stockholder approval within one
year of this date. No option or restricted stock award shall be granted
hereunder after the expiration of ten years from the earlier of the date on
which the Plan was adopted by the Board of Directors or the date it was approved
by the stockholders of the Corporation.