Exhibit 10.1
FIRST IPSWICH BANCORP
2004 Incentive Stock Option Plan for Key Employees
1. Purpose.
1.1 The purpose of the First Ipswich Bancorp 2004 Incentive Stock Option
Plan for Key Employees (hereinafter referred to as the "Plan") is to provide
incentives to present and future employees of First Ipswich Bancorp, a
Massachusetts corporation (this "Corporation"), and any of its present and
future subsidiaries at least fifty percent (50%) owned by this Corporation
("Subsidiaries") (such employees being hereinafter referred to as "Employees"
and each of them individually as an "Employee") in order that they may provide
exceptional services to this Corporation and its Subsidiaries, and to offer
inducements to Employees to accept and continue employment with this Corporation
and its Subsidiaries by offering Employees options to purchase shares of this
Corporation's common stock intended to qualify for treatment as incentive stock
options under the Internal Revenue Code of 1986, as amended (the "Code") upon
the approval of the Plan by the shareholders of this Corporation and upon the
satisfaction by such Employees of the requirements for such qualification. This
Plan is an "incentive stock option plan" described in Section 422 of the Code.
2. Administration of Plan.
2.1 The Plan shall be administered by the Board of Directors of this
Corporation (the "Board of Directors") which shall: (1) determine which
Employees shall be granted options to purchase shares of this Corporation's
Common Stock ($1.00 par value) ("Stock") pursuant to the Plan (which options
shall hereinafter be referred to as "Options," or in the singular as an
"Option"); (2) determine the time or times when Options shall be granted and the
number of shares of Stock to be subject to each Option; (3) determine the option
price at which the shares of Stock subject to each Option may be purchased
pursuant to the Plan and the forms of the instruments evidencing any Options
granted under the Plan or any other instrument to be used in connection with
the Plan; (4) adopt, amend and rescind, in its discretion, rules and regulations
for the administration of the Plan; (5) interpret the Plan and decide all
questions and settle all controversies and disputes which may arise in
connection with the Plan, which decisions and interpretations shall be binding
upon all persons; and (6) exercise such other powers as may be necessary or
desirable to implement the provisions of this Plan.
2.2 Members of the Board of Directors who are Employees shall be eligible
to receive Options pursuant to the Plan. The grant of an Option to an Employee
who is also a director of this Corporation shall not be affected or invalidated
by reason of the fact that such director voted to approve the grant of such
Option.
2.3 No member of the Board of Directors shall be liable for any action
taken or determination made in good faith and in a manner reasonably believed to
be in the best interests of this Corporation with respect to the Plan or any
Option granted pursuant thereto. The Board of Directors shall indemnify any
person against expenses reasonably incurred or the amount of any damages, fine,
or settlement assessed against or agreed to by such person, in connection with
any action, suit or proceeding in which such person may be involved in
connection with any Option or this Plan to the fullest extent that the Board of
Directors may indemnify such person under law or the By-laws of this
Corporation.
3. Authority to Grant Options.
3.1 Subject to the terms and conditions of this Plan, the Board of
Directors may from time to time grant to such Employees as it may determine to
be capable of making substantial contributions to the management or development
of this Corporation and its Subsidiaries Options, upon such terms and conditions
as it may deem appropriate, subject to applicable provisions of this Plan.
Without limiting the foregoing, the Board of Directors may establish performance
goals and base the grant of options under the Stock Option Plan on whether such
performance goals are achieved. Such performance goals may include but are not
limited to achieving a certain Corporation return on equity.
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3.2 The Board of Directors may authorize the grant of Options to Employees
by action taken with or without a meeting. The effective date of the grant of an
Option pursuant hereto shall be the date on which the Board of Directors
determines the fair market value of the Stock and grants the Option.
3.3 The number of shares of Stock subject to an Option shall in each case
be determined by the Board of Directors and subject to the applicable provisions
of this Plan. More than one Option may be granted to the same Employee.
3.4 Nothing contained in this Plan or in any resolution adopted by the
Board of Directors or the shareholders of this Corporation shall constitute the
grant of an Option hereunder, and no Employee shall be entitled to the grant of
an Option unless action granting an Option to such Employee shall have been
taken by the Board of Directors and unless the recipient of an Option shall have
executed an agreement in form and substance satisfactory to the Board of
Directors containing terms, restrictions and conditions imposed upon the
exercise of the Option and the transfer of any Stock pursuant thereto ("Stock
Option Agreement").
3.5 Any purported disposition of shares of Stock acquired pursuant to an
Option which shall be in contravention of the terms, restrictions and conditions
contained in the Stock Option Agreement executed in connection with such Option
shall be ineffective, and such disposition shall not be registered upon the
stock transfer books of this Corporation.
3.6 The aggregate fair market value of Stock with respect to which Options
issued hereunder are exercisable by an Employee for the first time during any
calendar year, when aggregated with the fair market value of stock subject to
other incentive stock options then outstanding under all plans of this
Corporation and its parent and subsidiary corporations and exercisable by such
Employee for the first time during such calendar year, shall not exceed $100,000
or such other amount as shall be permitted for options intended to qualify for
incentive stock option treatment. For purposes of this section the fair market
value of Stock subject to Options shall be determined at the time the Options
are issued. Any Options issued under this Plan which fail to qualify for
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treatment as incentive stock options under the provisions of the Code shall be
treated as non-qualified stock options.
4. Stock Subject to the Plan.
4.1 Stock to be issued upon the exercise of an Option shall be made
available, in the discretion of the Board of Directors, from authorized but
unissued shares of Stock or from shares of Stock held in the 200,000. If an
Option shall expire, terminate, or be canceled or surrendered in whole or in
part prior to the exercise thereof, the shares of Stock not acquired under such
Option shall revert to the Plan and again shall become available for issuance
under the Plan.
4.3 Appropriate adjustments in the number of shares of Stock subject to
Options previously issued hereunder and in the number of shares of Stock for
which Options have not yet been granted under this Plan shall be made by the
Board of Directors if at any time after the effective date of this Plan this
Corporation shall increase or decrease the number of outstanding shares of
Stock, whether by stock split, combination, stock dividend or reclassification,
or merger, consolidation, recapitalization, or reorganization.
4.4 No provision of this Plan, nor any Option granted pursuant hereto or
Stock Option Agreement entered into in connection therewith shall confer upon
any Employee or any other person any preemptive right to acquire any stock of
this Corporation.
5. Eligibility.
5.1 The Board of Directors may grant Options pursuant hereto to such
Employees as it may designate from time to time pursuant to Section 3.1 hereof
regardless of whether such Employees are also officers or directors of this
Corporation.
5.2 No officer or director of this Corporation shall be eligible to
receive any Option pursuant to this Plan unless such officer or director is also
an Employee.
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5.3 No Employee may exercise any part of an Option unless he or she has
been continuously employed by this Corporation from the date the Option was
granted until no more than three (3) months prior to such exercise (or any
earlier date set forth in the Stock Option Agreement), provided, that in the
case of a deceased employee or an employee whose employment terminates for
reason of Total and Permanent Disability, no Option may be exercised unless the
Employee was continuously employed by this Corporation from the date the Option
was granted until no more than twelve (12) months prior to the time of such
exercise. An Employee shall be deemed to have a "Total and Permanent Disability"
if (i) the Employee has been so totally and permanently disabled by any
medically determinable physical or mental impairment as to be prevented thereby
from engaging in any substantial gainful activity, and (ii) in the opinion of a
qualified physician selected by the Corporation, such disability can be expected
to result in death or be expected to last for a continuous period of not less
than 12 months. An Employee shall not be deemed to have a "Total and Permanent
Disability" if the Employee incurred the total and permanent disability while
the Employee was engaged in, or as a result of the Employee engaging in, the
commission of a felony, or if the total and permanent disability was a result of
(i) the Employee's addiction to alcohol or narcotics or (ii) a self-inflicted
injury.
5.4 If an Employee or former Employee eligible to exercise an Option
granted pursuant to this Plan dies prior to such exercise, such Option may be
exercised to the extent permitted herein by his estate or a person who acquires
the right to exercise such Option by bequest or inheritance.
5.5 No Option granted pursuant to this Plan may be transferred by the
holder thereof other than by will or the laws of descent and distribution of the
state in which such holder is domiciled at the time of his death.
6. Terms of Options.
6.1 The price at which shares of Stock may be purchased pursuant to an
Option shall be the fair market value of the Stock on the date of the grant of
such Option, provided, that in the case of Options granted to an Employee who at
the date of
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the grant of such Option owns 10% or more of the combined voting stock of the
Corporation (a "10% Employee"), such price shall be equal to 110% of the fair
market value of the Stock on the date of the grant of such Option. For purposes
of determining the percentage of stock of the Corporation owned by an Employee,
attribution rules made applicable by the Code and related regulations shall
apply. The fair market value of any Stock shall be determined by the Board of
Directors in good faith. Notwithstanding the foregoing, an Option may be granted
with an exercise price lower than the fair market value if such Option is
granted pursuant to an assumption or substitution for another Option in a manner
satisfying the provisions of Section 424(a) or other applicable provisions of
the Code.
6.2 Each Option granted under this Plan shall expire, and may not be
exercised to any extent, upon the earliest to occur of the following:
(a) Each Option shall expire ten (10) years after the date of grant
of such Option, or on such date prior thereto as may be fixed by the Board of
Directors, provided, however, that each Option granted to a 10% Employee shall
expire five (5) years after the date of grant of such Option, or such date prior
thereto as may be fixed by the Board of Directors.
(b) Each Option shall expire at the time after termination of the
Employee's employment with this Corporation or any of its Subsidiaries (with or
without Cause, voluntary or involuntary) for reasons other than death or Total
and Permanent Disability as may be fixed by the Board of Directors in the Stock
Option Agreement, but in no case later than three months after such termination,
during the period after termination but prior to expiration the Option may be
exercised only to the extent that it was exercisable upon termination. If the
Employee's employment with this Corporation or any of its Subsidiaries
terminates for reasons of death or Total and Permanent Disability, then the
Option shall expire twelve (12) months after such termination of employment, and
during that 12-month period the Option may be exercised only to the extent it
was exercisable upon termination. If an Employee whose employment terminates for
reasons other than death or Total and Permanent Disability
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dies during the period between termination and expiration described above (which
period shall be no longer than 3 months after termination), such Employee's
Options shall expire one year from the date of termination of employment, during
which time they may be exercised to the extent exercisable on the date of
termination.
6.3 If any Employee who has been granted Options under this Plan is
terminated for Cause by either the Corporation or any of its Subsidiaries, all
unexercised Options granted to the Employee (whether vested or not) shall
immediately terminate and be of no further force and effect. An Employee shall
be terminated for Cause only if (i) the Employee has been convicted by a court
of competent jurisdiction of any criminal offense involving dishonesty or breach
of trust; (ii) the Employee has committed an act of fraud against the
Corporation, its Subsidiaries or any of them; (iii) the Employee has willfully
refused to perform the duties reasonably assigned to the Employee by the Board
of Directors of the Corporation or of any of its Subsidiaries, which failure or
breach has continued for more than ten (10) days after written notice given to
the Employee pursuant to a vote of the Board of Directors of the Corporation or
of any of its subsidiaries (exclusive of the Employee if the Employee then is a
Director) at a meeting duly called for such purpose, such vote to set forth in
reasonable details the nature of such refusal; or (iv) the Employee has engaged
in willful misconduct materially injurious to the Corporation, its Subsidiaries
or any of them, monetarily or otherwise.
7. Exercise of Options.
7.1 Each Option granted hereunder shall be exercisable in such installment
or installments as may be determined by the Board of Directors at the time of
the grant. The right to purchase shares shall be cumulative so that when the
right to purchase any shares has vested, such shares or any part thereof may be
purchased at any time thereafter until the expiration or termination of the
Option.
7.2 A person entitled to exercise an Option may, subject to the terms and
conditions of the Stock Option Agreement executed in connection therewith,
exercise such Option from time to time by delivery to this Corporation at its
principal office of
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written notice of his or her intention to exercise such Option setting forth the
number of shares with respect to which the Option is to be exercised and
accompanied by (1) payment in full of the purchase price of the shares to be
purchased, (2) payment in full of all local, state or federal taxes due on
account of the exercise of such Option, and (3) such other documents and
materials as may be required by this Corporation under the terms of this Plan,
the Stock Option Agreement, or otherwise. As promptly as practicable thereafter,
this Corporation shall deliver to the purchaser certificates for the number of
shares purchased. The exercise price of an Option shall be payable either (i) in
United States dollars in cash or by check, bank draft or money order payable to
the order of the Corporation, (ii) through the delivery of shares of Stock owned
by the Employee with a fair market value equal to the option price, or (iii) by
a combination of (i) and (ii). Fair market value of Stock so delivered shall be
determined on the date of exercise. Unless the Board of Directors otherwise
determines, an Employee may engage in successive exchange (or series of
exchanges) in which stock such Employee is entitled to receive upon exercise of
an Option may be simultaneously utilized as payment for the exercise of an
additional Option or Options. To the extent permitted by applicable law, the
Board of Directors may permit payment of the Option exercise price through
arrangements with a brokerage firm under which such firm, on behalf of the
Employee, will pay the exercise price to the Corporation and the Corporation
shall promptly deliver to such firm the number of shares of Stock subject to the
Option so that the firm may sell such shares, or a portion thereof, for the
account of the Employee. In addition, the Board of Directors may permit payment
of the Option exercise price by delivery of an unconditional and irrevocable
undertaking by a broker to deliver promptly to the Corporation sufficient funds
to pay the exercise price as soon as the shares subject to the Option, or a
portion thereof, are sold on behalf of the Employee.
7.3 The date of actual receipt by this Corporation of notice of intention
to exercise an Option shall be deemed the date of exercise of the Option with
respect to the shares then purchased. Delivery of shares purchased shall be
deemed effective when a stock transfer agent shall have deposited certificates
therefor with the United States
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mail for delivery to the purchaser at the address specified in the notice of
exercise provided to this Corporation.
7.4 During the life of a holder of an Option issued pursuant to this Plan,
such Option may be exercised only by the holder.
7.5 No person, estate or other entity shall have any of the rights of a
shareholder of this Corporation with respect to shares subject to an Option
until a certificate or certificates for such shares shall have been delivered by
this Corporation to such person or entity. Upon delivery of such a certificate
to the purchaser thereof for the number of shares of Stock purchased, the owner
thereof shall have all the rights of a shareholder of such shares of Stock,
including the right to vote the same and receive dividends thereon, subject,
however, to the terms, conditions and restrictions contained in this Plan and in
the Stock Option Agreement executed in connection with the Option exercised with
respect to such shares.
8. Miscellaneous.
8.1 The grant of an Option to an Employee pursuant hereto shall not confer
upon such Employee a right to continued employment, nor shall it limit the right
of this Corporation or any Subsidiary to terminate the employment of any such
Employee.
8.2 The Board of Directors may modify, amend or terminate this Plan or any
provision thereof at any time and from time to time, provided however, that no
amendment to this Plan shall be made which shall: (1) increase the total number
of shares of Stock for which Options under this Plan may be issued, except as
provided in Section 4.3 hereof, (2) increase the total number of shares of Stock
which may be acquired by an Employee pursuant to Options issued under this Plan
except as provided in Section 4.3 hereof, (3) extend the maximum period during
which any Option may be exercised as set forth in Section 6.2 hereof, (4) change
the class of employees entitled to receive awards, (5) reduce the purchase price
of Stock subject to any Option, or (6) extend the termination date of this Plan,
without in each case the prior approval of the holders of at least a majority of
the Stock of this Corporation of all classes voting together. No amendment to
this Plan shall alter or impair any Option
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previously granted pursuant hereto without the consent of the holder thereof.
8.3 The effective date of this Plan shall be February 18, 2004. No Option
may be granted pursuant hereto subsequent to the date which is ten years after
the date on which the Plan shall be adopted by the Board of Directors.
8.4 This Plan, and all rights and obligations hereunder, including matters
of construction, validity and performance, shall be governed by the laws of the
Commonwealth of Massachusetts.
8.5 Notice to this Corporation pursuant to Sections 7.2 or 8.5 hereof or
for any other purpose may be given by delivery in hand or first class mail,
postage prepaid, and addressed as follows:
First Ipswich Bancorp
31 Market Street
Ipswich, Massachusetts 01938
Attention: President
Notice to an Employee to whom an Option shall be granted hereunder may be
given by delivery in hand or first class mail, postage prepaid, to the address
listed by such Employee in the Stock Option Agreement executed by such Employee.
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