MW BANCORP, INC. 2016 EQUITY INCENTIVE PLAN ARTICLE 1 – GENERAL

EX-10.1 2 v437340_ex10-1.htm EXHIBIT 10.1

Exhibit 10.1

 

MW BANCORP, INC.

 

2016 EQUITY INCENTIVE PLAN

 

ARTICLE 1 – GENERAL

 

Section 1.1 Purpose, Effective Date and Term.  The purpose of the MW Bancorp, Inc. 2016 Equity Incentive Plan (the “Plan”) is to promote the long-term financial success of MW Bancorp, Inc. (the “Company”), and its Subsidiaries, including Watch Hill Bank (the “Bank”), by providing a means to attract, retain and reward individuals who contribute to such success and to further align their interests with those of the Company’s stockholders through the ownership of additional common stock of the Company. The “Effective Date” of the Plan shall be the date the Plan satisfies the applicable stockholder approval requirements.  The Plan shall remain in effect as long as any Awards are outstanding; provided, however, that no Awards may be granted under the Plan after the day immediately prior to the ten-year anniversary of the Effective Date.

 

Section 1.2 Administration.  The Plan shall be administered by the Compensation Committee of the Company’s Board of Directors (the “Committee”).

 

Section 1.3 Participation.  Each Employee or Director of the Company or any Subsidiary of the Company who is granted an Award in accordance with the terms of the Plan shall be a “Participant” in the Plan.  The grant of Awards shall be limited to Employees and Directors of the Company or any Subsidiary.

 

Section 1.4 Definitions.  Capitalized terms used in this Plan are defined in Article 8 and elsewhere in this Plan.

 

ARTICLE 2 - AWARDS

 

Section 2.1 General.  Any Award under the Plan may be granted singularly or in combination with another Award (or Awards).  Each Award under the Plan shall be subject to the terms and conditions of the Plan and such additional terms, conditions, limitations and restrictions as the Committee shall provide with respect to such Award and as evidenced in the Award Agreement.  Subject to the provisions of Section 2.10, an Award may be granted as an alternative to or replacement of an existing Award under the Plan or any other plan of the Company or any Subsidiary (including any entity acquired by the Company or any Subsidiary), or as the form of payment for grants or rights earned or due under any other compensation plan or arrangement of the Company or its Subsidiaries (including any entity acquired by the Company or any Subsidiary).  The types of Awards that may be granted under the Plan include:

 

(a) Stock Options.  A Stock Option means a grant under Section 2.2 that represents the right to purchase Shares at an Exercise Price established by the Committee.  Any Stock Option may be either an Incentive Stock Option (an “ISO”) that is intended to satisfy the requirements applicable to an “Incentive Stock Option” described in Code Section 422(b), or a Non-Qualified Stock Option (a “Non-Qualified Option”) that is not intended to be an ISO; provided, however, that no ISOs may be granted: (i) after the day immediately prior to the ten-year anniversary of the Effective Date or the date the Plan is approved by the Board, whichever is earlier; or (ii) to a non-Employee.  Any ISO granted under this Plan that does not qualify as an ISO for any reason (whether at the time of grant or as the result of a subsequent event) shall be deemed to be a Non-Qualified Option. In addition, any ISO granted under this Plan may be unilaterally modified by the Committee to disqualify such Stock Option from ISO treatment such that it shall become a Non-Qualified Option; provided, however, that any such modification shall be ineffective if the Award, as modified would trigger excise taxes under Code Section 409A.

 

 

(b) Restricted Stock Awards.  A Restricted Stock Award means a grant of Shares of Restricted Stock under Section 2.3 for no consideration or for such consideration as may be required by the Committee in its sole discretion, either alone or in addition to other Awards granted under the Plan, subject to a vesting schedule or the satisfaction of market conditions or performance conditions. 

 

(c) Restricted Stock Units. A Restricted Stock Unit means a grant under Section 2.4 denominated in Shares that is similar to a Restricted Stock Award except no Shares are actually issued on the date of grant of a Restricted Stock Unit. A Restricted Stock Unit is subject to a vesting schedule or the satisfaction of market conditions or performance conditions and shall be settled in Shares.

 

(d) Performance Awards. A Performance Award means an Award of Stock Options, Restricted Stock, or Restricted Stock Units that is granted under Section 2.5 and that will vest upon the achievement of one or more specified performance measures set forth in Section 2.5. A Performance Award may or may not be intended to satisfy the requirements of Code Section 162(m).

 

(e) Unrestricted Shares. An Unrestricted Share is a grant of Shares under Section 2.6 for no consideration or for such consideration as may be required by the Committee in its sole discretion, either alone or in addition to other Awards granted under the Plan, that are immediately fully vested.

 

(f) Dividend Equivalent Rights. A Dividend Equivalent Right means a grant under Section 2.7 that represents the right to receive a payment, on terms and conditions established by the Committee in the applicable Award Agreement, equal to the amount of dividends payable on a Share.

 

Section 2.2 Stock Options. 

 

(a) Grant of Stock Options. Each Stock Option shall be evidenced by an Award Agreement that shall: (i) specify the number of Shares to be covered by the Stock Option Award; (ii) specify the date of grant of the Stock Option; (iii) specify the “Exercise Price” (as defined below) for the Stock Option; (iv) specify the vesting period or conditions to vesting; (v) specify whether the Stock Option is intended to qualify as an ISO; and (vi) contain such other terms and conditions not inconsistent with the Plan, including the effect of termination of a Participant’s Service as the Committee may, in its discretion, prescribe.

 

 

(b) Terms and Conditions. A Stock Option shall be exercisable in accordance with such terms and conditions and during such periods as may be established by the Committee. In no event, however, shall a Stock Option expire later than ten (10) years after the date of its grant (or five (5) years with respect to ISOs granted to an Employee who is a 10% Stockholder).  The Exercise Price of each Stock Option shall not be less than 100% of the per Share Fair Market Value on the date of grant (or, if greater, the par value of a Share); provided, however, that the Exercise Price of an ISO shall not be less than 110% of Fair Market Value of a Share on the date of grant if granted to a 10% Stockholder; provided further, that the Exercise Price may be less than the per Share Fair Market Value on the date of grant for a Stock Options granted in substitution for an option award that had been granted by an acquired entity and that was outstanding on the date of acquisition; provided, however, that the Stock Option Exercise Price would satisfy the requirements of Treasury Regulation 1.409A-1(b)(5)(v)(D). The payment of the Exercise Price of a Stock Option (and any required tax withholding resulting from such exercise) shall be by cash or, subject to limitations imposed by applicable law, by such other means as the Committee may from time to time permit, including: (i) by tendering, either actually or constructively by attestation, Shares valued at Fair Market Value as of the day of exercise; (ii) by irrevocably authorizing a third party, acceptable to the Committee, to sell Shares that would be acquired upon exercise of the Stock Option and to remit to the Company a sufficient portion of the sale proceeds to pay the entire Exercise Price and any required tax withholding; (iii) by a net settlement of the Stock Option, using a portion of the Shares that would otherwise have been issued upon exercise after payment of the Exercise Price and any required tax withholding; (iv) by personal, certified or cashier’s check; (v) by the transfer of other property deemed acceptable by the Committee; or (vi) by any combination thereof. The total number of Shares that may be issued upon the exercise of a Stock Option shall be rounded down to the nearest whole Share, with cash-in-lieu paid by the Company for the value of any fractional Share.

 

Section 2.3 Restricted Stock.

 

(a) Grant of Restricted Stock. Each Restricted Stock Award shall be evidenced by an Award Agreement that shall: (i) specify the number of Shares covered by the Restricted Stock Award; (ii) specify the date of grant of the Restricted Stock Award; (iii) specify the vesting period or conditions to vesting; and (iv) contain such other terms and conditions not inconsistent with the Plan, including the effect of termination of a Participant’s Service, as the Committee may in its discretion prescribe. All Restricted Stock Awards shall be in the form of issued and outstanding Shares that, at the discretion of the Committee, shall be either: (x) registered in the name of the Participant and held by or on behalf of the Company, together with a stock power executed by the Participant in favor of the Company, pending the vesting or forfeiture of the Restricted Stock; or (y) registered in the name of, and delivered to, the Participant. In any event, the certificates evidencing the Restricted Stock Award shall at all times prior to the applicable vesting date bear the following legend:

 

The share of common stock of MW Bancorp, Inc. evidenced hereby is subject to the terms of an Award Agreement with MW Bancorp, Inc. dated [Date], made pursuant to the terms of the MW Bancorp, Inc. 2016 Equity Incentive Plan, copies of which are on file at the executive offices of MW Bancorp, Inc., and may not be sold, encumbered, hypothecated or otherwise transferred except in accordance with the terms of such Plan and Award Agreement,

 

 

or such other restrictive legend as the Committee, in its discretion, may specify. Notwithstanding the foregoing, the Company may in its sole discretion issue Restricted Stock in any other approved format (e.g., electronically) in order to facilitate the paperless transfer of such Awards. In the event Restricted Stock is not issued in certificate form, the Company and the transfer agent shall maintain appropriate bookkeeping entries that evidence Participants’ ownership of such Awards. Restricted Stock that is not issued in certificate form shall be subject to the same terms and conditions of the Plan as certificated Shares, including the restrictions on transferability and the provision of a stock power executed by the Participant in favor of the Company, until the satisfaction of the conditions to which the Restricted Stock Award is subject.

 

(b) Terms and Conditions. Each Restricted Stock Award shall be subject to the following terms and conditions:

 

(i) Dividends. The Committee, in its sole discretion, may specify in the Award Agreement that cash dividends or other distributions that are paid on any Shares of Restricted Stock shall be (A) paid directly to the Participant, (B) reinvested in additional Shares of Restricted Stock based on the Fair Market Value of a Share on the date the dividend is paid, or (C) subject to the same restrictions on transferability and forfeitability as the Shares of Restricted Stock with respect to which the dividends were issued. Unless otherwise specified in the Award Agreement, dividends or other distributions shall be subject to Section 2.3(b)(i)(C). Any dividend payment that is deferred pursuant to Section 2.3(b)(i)(C) shall be paid to the Participant within two and one-half months following the date on which the Restricted Stock Award vests. Any stock dividends declared on Shares of Restricted Stock shall be subject to the same restrictions and shall vest at the same time as the Shares of Restricted Stock from which said dividends were derived.

 

(ii) Voting Rights. Unless the Committee determines otherwise with respect to any Restricted Stock Award and specifies such determination in the relevant Award Agreement, a Participant shall have voting rights related to the unvested, non-forfeited Restricted Stock and such voting rights shall be exercised by the Participant in his or her discretion.

 

(iii) Tender Offers and Merger Elections. Each Participant to whom a Restricted Stock Award is granted shall have the right to respond, or to direct the response, with respect to the related Shares of Restricted Stock, to any tender offer, exchange offer, cash/stock merger consideration election or other offer made to, or elections made by, the holders of Shares. Such a direction for any such Shares of Restricted Stock shall be given by proxy or ballot (if the Participant is the beneficial owner of the Shares of Restricted Stock for voting purposes) or by completing and filing, with the inspector of elections, the trustee or such other person who shall be independent of the Company as the Committee shall designate in the direction (if the Participant is not such a beneficial owner), a written direction in the form and manner prescribed by the Committee. If no such direction is given, then the Shares of Restricted Stock shall not be tendered.

 

 

 Section 2.4 Restricted Stock Units.

 

(a) Grant of Restricted Stock Unit Awards.  Each Restricted Stock Unit shall be evidenced by an Award Agreement which shall: (i) specify the number of Shares covered by the Restricted Stock Unit Award; (ii) specify the date of grant of the Restricted Stock Units; (iii) specify the vesting period or conditions of vesting; and (iv) contain such other terms and conditions not inconsistent with the Plan, including the effect of termination of a Participant’s Services. Except to the extent provided otherwise in the Award Agreement, Restricted Stock Unit Awards shall be settled in Shares.

 

(b) Terms and Conditions. Each Restricted Stock Unit Award shall be subject to the following terms and conditions:

 

(i) A Restricted Stock Unit shall be similar to a Restricted Stock Award except that no Shares are actually awarded to the recipient on the date of grant.

 

(ii) The Committee may, in connection with the grant of Restricted Stock Units, designate them as “qualified performance based compensation” within the meaning of Code Section 162(m), in which event it shall condition the vesting thereof upon the attainment of one or more performance measures set forth in Section 2.5(a) hereof. Regardless of whether Restricted Stock Units are subject to the attainment of one or more performance measures, the Committee may also condition the vesting thereof upon the continued Service of the Participant. The conditions for grant or vesting and the other provisions of Restricted Stock Units (including without limitation any applicable performance measures) need not be the same with respect to each recipient. An Award of Restricted Stock Units shall be settled as and when the Restricted Stock Units vest or, in the case of Restricted Stock Units subject to performance measures, after the Committee has certified that the performance goals have been satisfied.

 

(iii) Subject to the provisions of the Plan and the applicable Award Agreement, during the period, if any, set by the Committee, commencing with the date of such Restricted Stock Unit for which such Participant’s continued Service is required (the “Restriction Period”), and until the later of (A) the expiration of the Restriction Period and (B) the date the applicable performance measures (if any) are satisfied, the Participant shall not be permitted to sell, assign, transfer, pledge or otherwise encumber Restricted Stock Units.

 

(iv) A Participant shall have no voting rights with respect to any Restricted Stock Units granted hereunder. No dividends shall be paid on Restricted Stock Units unless the Award Agreement also includes an award of Dividend Equivalent Rights.

 

Section 2.5 Performance Awards. The vesting of any Restricted Stock Award or a Restricted Stock Unit that is intended to be performance-based compensation (also referred to as “Performance Awards”) shall be conditioned on the achievement of one or more objective performance measures set forth in sub-section (a) below, as may be determined by the Committee. The grant of any Performance Award and the establishment of performance measures that are intended to be qualified performance-based compensation within the meaning of Code Section 162(m) shall be made during the period required under Code Section 162(m) and shall comply with all applicable requirements of that Code Section. At the discretion of the Committee, the vesting of any Stock Option also may be subject to the achievement of one or more objective performance measures, although such performance-based vesting is not necessary to satisfy the requirement of Code Section 162(m) with respect to Stock Options. Notwithstanding anything herein to the contrary, in the discretion of the Committee, Performance Awards that do not comply with the requirements of Code Section 162(m) may be granted to Covered Employees and/or to persons other than Covered Employees.

 

 

(a) Performance Measures.  If intended to be qualified performance-based compensation pursuant to Code Section 162(m), such performance measures must be based on any one or more of the following:

 

(i) book value or tangible book value per Share;

 

(ii) basic earnings per Share; 

 

(iii) basic cash earnings per Share;

 

(iv) diluted earnings per Share; 

 

(v) diluted cash earnings per Share; 

 

(vi) return on equity;

 

(vii) net income or net income before taxes; 

 

(viii) cash earnings;

 

(ix) net interest income;

 

(x) non-interest income;

 

(xi) non-interest expense to average assets ratio; 

 

(xii) cash general and administrative expense to average assets ratio;

 

(xiii) efficiency ratio;

 

(xiv) cash efficiency ratio;

 

(xv) return on average assets;

 

(xvi) cash return on average assets;

 

(xvii) return on average stockholders’ equity;

 

(xviii) cash return on average stockholders’ equity;

 

 

(xix) return on average tangible stockholders’ equity;

 

(xx) cash return on average tangible stockholders’ equity;

 

(xxi) core earnings;

 

(xxii) operating income;

 

(xxiii) operating efficiency ratio;

 

(xxiv) net interest rate margin or net interest rate spread;

 

(xxv) growth in assets, loans, or deposits;

 

(xxvi) loan production volume;

 

(xxvii) non-performing loans;

 

(xxviii) cash flow;

 

(xxix) strategic business objectives, consisting of one or more objectives based upon meeting specified cost targets, business expansion goals, and goals relating to acquisitions or divestitures, or goals relating to capital raising and capital management;

 

(xxx) total shareholder return; or

 

(xxxi) any combination of the foregoing.

 

Performance measures may be based on the performance of the Company on a consolidated basis, or on the performance of any one or more Subsidiaries or business units of the Company or a Subsidiary, and may be measured relative to a peer group, an index or a business plan, and may be considered as absolute measures or changes in measures. The terms of an Award may provide that partial achievement of performance measures may result in partial payment or vesting of the award or that the achievement of the performance measures may be measured over more than one period or fiscal year. In establishing any performance measures, the Committee may provide for the exclusion of the effects of the following items, to the extent the exclusion is set forth in the Participant’s Award Agreement and identified in the audited financial statements of the Company, including footnotes, or in the Management’s Discussion and Analysis section of the Company’s annual report or in the Compensation Discussion and Analysis section, if any, of the Company’s annual proxy statement: (i) unusual, and/or nonrecurring items of gain or loss; (ii) gains or losses on the disposition of a business; (iii) changes in tax or accounting principles, regulations or laws; or (iv) expenses incurred in connection with a merger, branch acquisition or similar transaction. To the extent not specifically excluded, such effects shall be included in any applicable performance measure.

 

 

(b) Adjustments. Pursuant to this Section 2.5, in certain circumstances the Committee may adjust performance measures; provided, however, no adjustment may be made with respect to an Award that is intended to be qualified performance-based compensation within the meaning of Code Section 162(m), except to the extent the Committee exercises such negative discretion as is permitted under applicable law for purposes of an exception under Code Section 162(m). Subject to the foregoing sentence, if the Committee determines that a change in the business, operations, corporate structure or capital structure of the Company or the manner in which the Company or its Subsidiaries conducts its business or other events or circumstances render current performance measures to be unsuitable, the Committee may modify such performance measures, in whole or in part, as the Committee deems appropriate, provided that no Award intended to be subject to Code Section 162(m) is enhanced as a result of a modified performance measure. Notwithstanding anything to the contrary herein, performance measures relating to any Award hereunder will be modified, to the extent applicable, to reflect a change in the outstanding Shares by reason of any stock dividend or stock split, or a corporate transaction, such as a merger of the Company into another corporation, any separation of a corporation or any partial or complete liquidation by the Company or a Subsidiary.  If a Participant is promoted, demoted or transferred to a different business unit during a performance period, the Committee may determine that the selected performance measures or applicable performance period are no longer appropriate, in which case, the Committee, in its sole discretion, may adjust, change or eliminate the performance measures or change the applicable performance period; or (ii) cause to be made a cash payment to the Participant in an amount determined by the Committee.

 

(c) Treatment on Retirement. Notwithstanding anything herein to the contrary, no Performance Awards that are intended to be considered qualified performance-based compensation under Code Section 162(m) shall be granted under terms that will permit its accelerated vesting upon Retirement or other termination of Service (other than death or Disability) or a Change in Control. Notwithstanding anything to the contrary herein, in the sole discretion of the Committee exercised at the time of grant of an Award under this Section 2.5, in the event of Retirement of a Participant during the performance period, the Award Agreement may provide for the vesting of all or a portion of such Award, so long as the vesting is not accelerated but shall occur at the end of the performance period, and will be prorated, based on the period of the Participant’s active employment and the level of achievement of the performance measures during the period of the Participant’s active employment.

 

Section 2.6 Unrestricted Shares. Subject to the provisions of this Plan and as set forth in the related Award Agreement, the Committee shall have sole and complete authority to grant Unrestricted Shares to Employees or Directors at such time or times, in such amounts and for such reasons as the Committee, in its sole discretion, shall determine. The Company shall issue, in the name of each Participant to whom Unrestricted Shares have been granted, stock certificates representing the total number of Unrestricted Shares granted to the Participant (net of any Shares withheld to satisfy any required tax withholding), and shall deliver such certificates to the Participant as soon as reasonably practicable after the date of grant.

 

Section 2.7 Dividend Equivalent Rights. Subject to the provisions of this Plan and as set forth in the related Award Agreement, the Committee shall have sole and complete authority to grant Dividend Equivalent Rights to Employees or Directors at such time or times, in such amounts and for such reasons as the Committee, in its sole discretion shall determine. Each Award including Dividend Equivalent Rights shall be evidenced by an Award Agreement that shall: (i) specify the number of Shares covered by the Dividend Equivalent Right; (ii) specify the date of grant of the Dividend Equivalent Right; (iii) specify the vesting period or conditions to vesting; (iv) specify the timing of payment of cash or issuance of Shares in satisfaction of the Dividend Equivalent Right; and (v) contain such other terms and conditions not inconsistent with the Plan, including the effect of termination of a Participant’s Service, as the Committee may in its discretion prescribe. The Committee, in its sole discretion, may specify in the Award Agreement that an amount equal to any cash dividends or other distributions that are paid on the Shares covered by the Dividend Equivalent Right shall be (A) paid directly to the Participant within 60 days after the dividend payment date, (B) automatically converted into additional Dividend Equivalent Rights based on the Fair Market Value of a Share on the date the dividend is paid, or (C) unless otherwise specified in the Award Agreement, paid to the Participant upon satisfying any applicable vesting criteria. To the extent that an Award including Dividend Equivalent Rights is intended to be qualified performance-based compensation in accordance with Code Section 162(m), payment of Dividend Equivalent Rights to the Participant will be conditioned on the satisfaction of applicable performance criteria and any amounts payable in connection with the Dividend Equivalent Right shall be paid at the same time as the Shares subject to such Restricted Stock Unit are distributed to the Participant.

 

 

Section 2.8 Vesting of Awards. The Committee shall specify the vesting schedule or conditions of each Award. Unless the Committee specifies a different vesting schedule at the time of grant, Awards under the Plan, other than performance awards and unrestricted shares, shall be granted with a vesting rate not exceeding thirty-three and thirty-four hundredths percent (33.34%) per year, with the first installment vesting no earlier than the one year anniversary of the date of grant and succeeding installments vesting on the annual anniversaries thereafter. If the right to become vested in an Award under the Plan (including the right to exercise a Stock Option) is conditioned on the completion of a specified period of Service, without achievement of performance measures or other performance objectives being required as a condition of vesting, and without it being granted in lieu of, or in exchange for, other compensation, then the required period of Service for full vesting shall be determined by the Committee and evidenced in the Award Agreement (subject to acceleration of vesting, to the extent permitted by the Committee or set forth in the Award Agreement, in the event of the Participant’s death or Disability or a Change in Control).

 

Section 2.9 Deferred Compensation. If any Award would be considered “deferred compensation” as defined under Code Section 409A (“Deferred Compensation”), the Committee reserves the absolute right (including the right to delegate such right) to unilaterally amend the Plan or the Award Agreement, without the consent of the Participant, to maintain exemption from, or to comply with, Code Section 409A. Any amendment by the Committee to the Plan or an Award Agreement pursuant to this Section shall maintain, to the extent practicable, the original intent of the applicable provision without violating Code Section 409A. A Participant’s acceptance of any Award under the Plan constitutes acknowledgement and consent to such rights of the Committee, without further consideration or action. Any discretionary authority retained by the Committee pursuant to the terms of this Plan or pursuant to an Award Agreement shall not be applicable to an Award which is determined to constitute Deferred Compensation, if such discretionary authority would contravene Code Section 409A.

 

Section 2.10 Prohibition Against Option Repricing.  Except for adjustments pursuant to Section 3.4, and reductions of the Exercise Price that is approved by the Company’s stockholders, neither the Committee nor the Board shall have the right or authority to make any adjustment or amendment that reduces or would have the effect of reducing the Exercise Price of a Stock Option previously granted under the Plan, whether through amendment, cancellation (including cancellation in exchange for a cash payment in excess of the Stock Option’s in-the-money value or in exchange for Options or other Awards), replacement grants, or other means.

 

 

Section 2.11. Effect of Termination of Service on Awards. The Committee shall establish the effect of a Termination of Service on the continuation of rights and benefits available under an Award and, in so doing, may make distinctions based upon, among other things, the cause of Termination of Service (including Retirement) and type of Award. Unless otherwise specified by the Committee and set forth in an Award Agreement between the Company and the Participant or as set forth in an employment agreement or severance arrangement entered into by and between the Company and/or the Bank and an Employee, the following provisions shall apply to each Award granted under this Plan:

 

(a) Upon a Participant’s Termination of Service for any reason other than due to Disability, death, Retirement or termination for Cause, Stock Options shall be exercisable only as to those Shares that were immediately exercisable by such Participant at the date of termination, and Stock Options may be exercised only for a period of three (3) months following termination, or the remaining unexpired term of the Stock Option, if less, and any Restricted Stock, Restricted Stock Unit or Dividend Equivalent Right Award that has not vested as of the date of Termination of Service shall expire and be forfeited.

 

(b) In the event of a Termination of Service for Cause, all Stock Options granted to a Participant that have not been exercised and all Restricted Stock, Restricted Stock Unit and Dividend Equivalent Right Awards granted to a Participant that have not vested shall expire and be forfeited.

 

(c) Upon Termination of Service for reason of Disability or death, all Stock Options shall be exercisable as to all Shares subject to an outstanding Award, whether or not then exercisable, and all Restricted Stock, Restricted Stock Unit and Dividend Equivalent Right Awards shall vest as to all Shares subject to an outstanding Award, whether or not otherwise vested, at the date of such Termination of Service. Stock Options may be exercised for a period of one year following Termination of Service due to death or Disability, or the remaining unexpired term of the Stock Option, if less; provided, however, in order to obtain ISO treatment for Stock Options exercised by heirs or devisees of an optionee, the optionee’s death must have occurred while employed or within three months after the date of the Employee’s Termination of Service.

 

(d) In the event of Termination of Service due to Retirement, a Participant’s vested Stock Options shall be exercisable for one year following Termination of Service, or the remaining unexpired term of the Stock Option, if less; provided that no Stock Option shall be eligible for treatment as an ISO in the event such Stock Option is exercised more than three months following Termination of Service due to Retirement. Any Stock Option, Restricted Stock, Restricted Stock Unit and Dividend Equivalent Right Award that has not vested as of the date of Termination of Service due to Retirement shall expire and be forfeited.

 

 

(e) Notwithstanding the provisions of this Section 2.11, the effect of a Change in Control on the vesting and exercisability of Stock Options, Restricted Stock, Restricted Stock Units and Dividend Equivalent Right Awards is as set forth in Article 4.

 

ARTICLE 3 - Shares Subject to Plan

 

Section 3.1 Available Shares.  The Shares with respect to which Awards may be made under the Plan shall be Shares currently authorized but unissued, currently held or, to the extent permitted by applicable law, subsequently acquired by the Company, including Shares purchased in the open market or in private transactions.

 

Section 3.2 Share Limitations. 

 

(a) Share Reserve. Subject to the following provisions of this Section 3.2, the total number of Shares reserved and available for delivery to Participants and their beneficiaries in connection with Awards under the Plan shall be equal to 122,662 Shares, which represents 14% of the number of Shares sold in connection with the mutual-to-stock conversion and acquisition of the Bank (the “Conversion”). The maximum number of Shares that may be delivered pursuant to the exercise of Stock Options (all of which may be granted as ISOs) is 87,616 Shares, which represents 10% of the number of Shares sold in connection with the Conversion. The maximum number of Shares that may be delivered pursuant to Restricted Stock, Restricted Stock Units and Unrestricted Share Awards is 35,046 Shares, which represents 4% of the number of Shares sold in connection with the Conversion. The aggregate number of Shares available for grant under this Plan and the number of Shares subject to outstanding awards shall be subject to adjustment as provided in Section 3.4.

 

(b) Computation of Shares Available. For purposes of this Section 3.2, the number of Shares available for the grant of additional Stock Options, Restricted Stock Awards or Restricted Stock Units shall be reduced by the number of Shares previously granted, subject to the following: to the extent any Shares covered by an Award (including Restricted Stock Awards and Restricted Stock Units) under the Plan are not delivered to a Participant or beneficiary for any reason, including because the Award is forfeited or canceled or because a Stock Option is not exercised, then such Shares shall not be deemed to have been delivered for purposes of determining the maximum number of Shares available for delivery under the Plan. To the extent: (i) a Stock Option is exercised by using an actual or constructive exchange of Shares to pay the Exercise Price; (ii) Shares are withheld to satisfy withholding taxes upon exercise or vesting of an Award granted hereunder; or (iii) Shares are withheld to satisfy the exercise price of Stock Options in a net settlement of Stock Options, then the number of Shares available shall be reduced by the gross number of Shares exercised or vested rather than by the net number of Shares issued. An Award that pursuant to its terms must be settled in cash shall not count against the applicable share limits.

 

 

Section 3.3 Individual Share Limitations.

 

(a) Awards to any one Participant. The maximum number of Shares, in the aggregate, that may be granted to any one Participant during the total lifetime of the Plan may not exceed 30,666, which is 25% of the number of Shares that may be granted under this Plan.

 

(b) Stock Option Awards to Employees. The maximum number of Shares, in the aggregate, that may be subject to Stock Options granted to any one Employee during any calendar year shall be 12,266, which is 10% of the number of Shares that may be granted under this Plan.

 

(b) Stock Option Awards to Directors. The maximum number of Shares, in the aggregate, that may be subject to Stock Options granted to any one Director under the Plan shall be 4,380, all of which may be granted during any calendar year and; in addition, all Directors, in the aggregate, may not receive Stock Options on more than 26,285 Shares, all of which may be granted during any calendar year. Such maximum amounts represent 5% and 30%, respectively, of the maximum number of Shares that may be delivered pursuant to Stock Options under Section 3.2.

 

(c) Restricted Stock, Restricted Stock Unit and Unrestricted Share Awards to Employees. The maximum number of Shares, in the aggregate, that may be subject to Restricted Stock, Restricted Stock Unit and Unrestricted Share Awards granted during any calendar year to any one Employee under the Plan shall be 12,266, which is 10% of the number of shares that may be granted under this Plan.

 

(d) Restricted Stock, Restricted Stock Unit and Unrestricted Share Awards to Directors. The maximum number of Shares, in the aggregate, that may be subject to Restricted Stock, Restricted Stock Unit and Unrestricted Share Awards granted to any one Director under the Plan shall be 1,752, all of which may be granted during any calendar year and, in addition, all Directors, in the aggregate, may not receive Restricted Stock, Restricted Stock Unit and Unrestricted Share Awards on more than 10,514 Shares, all of which may be granted during any calendar year. Such maximum amounts represent 5% and 30%, respectively, of the maximum number of Shares that may be issued as Restricted Stock, Restricted Stock Units and Unrestricted Share Awards.

 

(e) The limits on the number of Shares available for grant under this Plan as described in this Section 3.3, shall be subject to adjustment as provided in Section 3.4.

 

Section 3.4 Corporate Transactions. 

 

(a) General. In the event any recapitalization, forward or reverse stock split, reorganization, merger, consolidation, spin-off, combination, repurchase, or exchange of Shares or other securities, stock dividend or other special and nonrecurring dividend or distribution (whether in the form of cash, securities or other property), liquidation, dissolution, or other similar corporate transaction or event, affects the Shares such that an adjustment is appropriate in order to prevent dilution or enlargement of the rights of Participants under the Plan and/or under any Award granted under the Plan, then the Committee shall, in an equitable manner, adjust any or all of: (i) the number and kind of securities deemed to be available thereafter for grants of Stock Options, Restricted Stock Awards and Restricted Stock Units in the aggregate to all Participants and individually to any one Participant; (ii) the number and kind of securities that may be delivered or deliverable in respect of outstanding Stock Options, Restricted Stock Awards and Restricted Stock Units; and (iii) the Exercise Price of Stock Options. In addition, the Committee is authorized to make adjustments in the terms and conditions of, and the criteria included in, Stock Options, Restricted Stock Awards and Restricted Stock Units (including, without limitation, cancellation of Stock Options, Restricted Stock Awards and Restricted Stock Units in exchange for the in-the-money value, if any, of the vested portion thereof, or substitution or exchange of Stock Options, Restricted Stock Awards and Restricted Stock Units using stock of a successor or other entity) in recognition of unusual or nonrecurring events (including, without limitation, events described in the preceding sentence) affecting the Company or any parent or Subsidiary or the financial statements of the Company or any parent or Subsidiary, or in response to changes in applicable laws, regulations, or accounting principles. Unless otherwise determined by the Committee, any such adjustment to an Award intended to qualify as “qualified performance-based compensation” shall conform to the requirements of Code Section 162(m) and the regulations thereunder then in effect.

 

 

(b) Merger in which Company is Not Surviving Entity. In the event of any merger, consolidation, or other business reorganization (including, but not limited to, a Change in Control) in which the Company is not the surviving entity, unless otherwise determined by the Committee at any time at or after grant and prior to the consummation of such merger, consolidation or other business reorganization, any Stock Options granted under the Plan which remain outstanding shall be converted into Stock Options to purchase voting common equity securities of the business entity which survives such merger, consolidation or other business reorganization having substantially the same terms and conditions as the outstanding Stock Options under this Plan and reflecting the same economic benefit (as measured by the difference between the aggregate Exercise Price and the value exchanged for outstanding Shares in such merger, consolidation or other business reorganization), all as determined by the Committee prior to the consummation of such merger; provided, however, that the Committee may, at any time prior to the consummation of such merger, consolidation or other business reorganization, direct that all outstanding Stock Options be canceled as of the effective date of such merger, consolidation or other business reorganization in exchange for a cash payment per Share equal to the excess (if any) of the value exchanged for an outstanding Share in such merger, consolidation or other business reorganization over the Exercise Price of the Stock Option being canceled.

 

Section 3.5 Delivery of Shares.  Delivery of Shares or other amounts under the Plan shall be subject to the following:

 

(a) Compliance with Applicable Laws.  Notwithstanding any other provision of the Plan, the Company shall have no obligation to deliver any Shares or make any other distribution of benefits under the Plan unless such delivery or distribution complies with all applicable laws (including, the requirements of the Securities Act), and the applicable requirements of any Exchange or similar entity.

 

(b) Certificates.  To the extent that the Plan provides for the issuance of Shares, the issuance may be effected on a non-certificated basis, to the extent not prohibited by applicable law or the applicable rules of any Exchange.

 

 

ARTICLE 4 - CHANGE IN CONTROL

 

Section 4.1 Consequence of a Change in Control. Subject to the provisions of Section 2.8 (relating to vesting and acceleration) and Section 3.4 (relating to the adjustment of Shares), and except as otherwise provided in the Plan or as determined by the Committee and set forth in the terms of any Award Agreement or as set forth in an employment, change in control or severance agreement entered into by and between the Company and/or the Bank and an Employee:

 

(a) At the time of a Change in Control, all Stock Options then held by the Participant shall become fully earned and exercisable (subject to the expiration provisions otherwise applicable to the Stock Option).

 

(b) At the time of a Change in Control, all Awards of Restricted Stock described in Section 2.1(b) and Restricted Stock Units described in Section 2.1(c) shall become fully earned and vested immediately. Notwithstanding the above, any Awards, the vesting of which are based on satisfaction of performance-based conditions will be vested as specified in subsection (c) hereof.

 

(c) In the event of a Change in Control, any performance measure attached to an Award under the Plan shall be deemed satisfied at the 100% of target attainment level as of the date of the Change in Control.

 

Section 4.2 Definition of Change in Control. For purposes of this Agreement, the term “Change in Control” shall mean the consummation by the Company or the Bank, in a single transaction or series of related transactions, of any of the following:

 

(a) Merger: The Company or the Bank merges into or consolidates with another entity, or merges another bank or corporation into the Company or the Bank, and as a result, less than a majority of the combined voting power of the resulting corporation immediately after the merger or consolidation is held by persons who were stockholders of the Company or the Bank immediately before the merger or consolidation;

 

(b) Acquisition of Significant Share Ownership: A person or persons acting in concert has or have become the beneficial owner(s) of 25% or more of a class of the Company’s or the Bank’s Voting Securities; provided, however, this clause (b) shall not apply to beneficial ownership of the Company’s or the Bank’s voting shares held in a fiduciary capacity by an entity of which the Company directly or indirectly beneficially owns 50% or more of its outstanding Voting Securities;

 

(c) Change in Board Composition: During any period of two consecutive years, individuals who constitute the Company’s or the Bank’s Board of Directors at the beginning of the two-year period cease for any reason to constitute at least a majority of the Company’s or the Bank’s Board of Directors; provided, however, that for purposes of this clause (c), each director who is first elected by the board (or first nominated by the board for election by the stockholders) by a vote of at least two-thirds (2/3) of the directors who were directors at the beginning of the two-year period shall be deemed to have also been a director at the beginning of such period or who is appointed as a director as a result of a directive, supervisory agreement or order issued by the primary federal regulator of the Company or the Bank or by the Federal Deposit Insurance Corporation shall be deemed to have also been a director at the beginning of such period; or

 

 

(d) Sale of Assets: The Company or the Bank sells to a third party all or substantially all of its assets.

 

Notwithstanding the foregoing, in the event that an Award constitutes Deferred Compensation, and the settlement of, or distribution of benefits under, such Award is to be triggered solely by a Change in Control, then with respect to such Award, a Change in Control shall be defined as required under Code Section 409A, as in effect at the time of such transaction.

 

ARTICLE 5 - COMMITTEE

 

Section 5.1 Powers of Committee.  The administration of the Plan by the Committee shall be subject to the following:

 

(a) the Committee will have the authority and discretion: (i) to select from among the Company’s and its Subsidiaries’ Employees and Directors those persons who shall receive Awards at any time; (ii) to determine the types of Awards to be granted to a Participant; (iii) to determine the number of Shares covered by an Award; (iv) to establish the terms, conditions, features, performance criteria, restrictions (including without limitation, provisions relating to non-competition, non-solicitation and confidentiality), and other provisions of such Awards (subject to the restrictions imposed by Article 6); (v) to cancel or suspend Awards issued with performance-based vesting conditions; (vi) to reduce, eliminate or accelerate any restrictions or vesting requirements applicable to an Award at any time after the grant of the Award; or (vii) to extend the time period to exercise a Stock Option, provided that such extension is consistent with Code Section 409A.

 

(b) The Committee will have the authority and discretion to interpret the Plan and any Award Agreement, to establish, amend and rescind any rules and regulations relating to the Plan, and to make all other determinations that may be necessary or advisable for the administration of the Plan.

 

(c) The Committee will have the authority to define terms not otherwise defined herein.

 

(d) Any interpretation of the Plan by the Committee and any decision made by it under the Plan are final and binding on all persons.

 

(e) In controlling and managing the operation and administration of the Plan, the Committee shall take action in a manner that conforms to the charter and bylaws of the Company and applicable corporate law.

 

 

Section 5.2 Delegation by Committee.  Except to the extent prohibited by applicable law, the applicable rules of an Exchange upon which the Company lists its Shares or the Plan, or as necessary to comply with the exemptive provisions of Rule 16b-3 promulgated under the Exchange Act or Code Section 162(m), the Committee may allocate all or any portion of its responsibilities and powers to any one or more of its members and may delegate all or any part of its responsibilities and powers to any person or persons selected by it, including: (a) delegating to a committee of one or more members of the Board who are not “outside directors” within the meaning of Code Section 162(m), the authority to grant Awards under the Plan to eligible persons who are not persons with respect to whom the Company wishes to comply with Code Section 162(m); or (b) delegating to a committee of one or more members of the Board who are not “non-employee directors,” within the meaning of Rule 16b-3, the authority to grant Awards under the Plan to eligible persons who are not then subject to Section 16 of the Exchange Act; or (c) delegating to a committee of one or more members of the Board who would be eligible to serve on the Compensation Committee of the Company pursuant to the listing requirements imposed by any national securities exchange on which the Company lists, has listed or seeks to list its securities, the authority to grant awards under the Plan.  The acts of such delegates shall be treated hereunder as acts of the Committee and such delegates shall report regularly to the Committee regarding the delegated duties and responsibilities and any Awards so granted. Any such allocation or delegation may be revoked by the Committee at any time.

 

Section 5.3 Information to be Furnished to Committee.  As may be permitted by applicable law, the Company and its Subsidiaries shall furnish the Committee with such data and information as it determines may be required for it to discharge its duties.  The records of the Company and its Subsidiaries as to a Participant’s employment, termination of employment, leave of absence, reemployment and compensation shall be conclusive on all persons unless determined by the Committee to be manifestly incorrect.  Subject to applicable law, Participants and other persons entitled to benefits under the Plan must furnish the Committee such evidence, data or information as the Committee considers desirable to carry out the terms of the Plan.

 

Section 5.4 Committee Action. The Committee shall hold such meetings, and may make such administrative rules and regulations, as it may deem proper. A majority of the members of the Committee shall constitute a quorum, and the action of a majority of the members of the Committee present at a meeting at which a quorum is present, as well as actions taken pursuant to the unanimous written consent of all of the members of the Committee without holding a meeting, shall be deemed to be actions of the Committee. All actions of the Committee shall be final and conclusive and shall be binding upon the Company, Participants and all other interested parties. Any person dealing with the Committee shall be fully protected in relying upon any written notice, instruction, direction or other communication signed by a member of the Committee or by a representative of the Committee authorized to sign the same in its behalf.

 

ARTICLE 6 - AMENDMENT AND TERMINATION

 

Section 6.1 General.  The Board may, as permitted by law, at any time, amend or terminate the Plan, and may amend any Award Agreement, provided that no amendment or termination (except as provided in Section 2.9, Section 3.4 and Section 6.2) may cause the Award to violate Code Section 409A, may cause the repricing of a Stock Option, or, in the absence of written consent to the change by the affected Participant (or, if the Participant is not then living, the affected beneficiary), adversely impair the rights of any Participant or beneficiary under any Award granted under the Plan prior to the date such amendment is adopted by the Board; provided, however, that, no amendment may: (i) materially increase the benefits accruing to Participants under the Plan; (ii) materially increase the aggregate number of securities which may be issued under the Plan, other than pursuant to Section 3.4; or (iii) materially modify the requirements for participation in the Plan, unless the amendment under (i), (ii) or (iii) above is approved by the Company’s stockholders.

 

 

Section 6.2 Amendment to Conform to Law and Accounting Changes. Notwithstanding any provision in this Plan or any Award Agreement to the contrary, the Committee may amend the Plan or any Award Agreement, to take effect retroactively or otherwise, as deemed necessary or advisable for the purpose of: (i) conforming the Plan or the Award Agreement to any present or future law relating to plans of this or similar nature (including, but not limited to, Code Section 409A); or (ii) avoiding an accounting treatment resulting from an accounting pronouncement or interpretation thereof issued by the SEC or Financial Accounting Standards Board subsequent to the adoption of the Plan or the making of the Award affected thereby, which, in the sole discretion of the Committee, may materially and adversely affect the financial condition or results of operations of the Company. By accepting an Award under this Plan, each Participant agrees and consents to any amendment made pursuant to this Section 6.2 or Section 2.9 to any Award granted under the Plan without further consideration or action.

 

ARTICLE 7 - GENERAL TERMS

 

Section 7.1  No Implied Rights.

 

(a) No Rights to Specific Assets.  Neither a Participant nor any other person shall by reason of participation in the Plan acquire any right in or title to any assets, funds or property of the Company or any Subsidiary whatsoever, including any specific funds, assets, or other property which the Company or any Subsidiary, in its sole discretion, may set aside in anticipation of a liability under the Plan.  A Participant shall have only a contractual right to the Shares or amounts, if any, payable or distributable under the Plan, unsecured by any assets of the Company or any Subsidiary, and nothing contained in the Plan shall constitute a guarantee that the assets of the Company or any Subsidiary shall be sufficient to pay any benefits to any person.

 

(b) No Contractual Right to Employment or Future Awards.  The Plan does not constitute a contract of employment or service, and selection as a Participant will not give any Participant the right to be retained in the employ of, or provided services to, the Company or any Subsidiary or any right or claim to any benefit under the Plan, unless such right or claim has specifically accrued under the terms of the Plan.  No individual shall have the right to be selected to receive an Award under the Plan, or, having been so selected, to receive a future Award under the Plan.

 

(c) No Rights as a Stockholder. Except as otherwise provided in the Plan or in the Award Agreement, no Award under the Plan shall confer upon the holder thereof any rights as a stockholder of the Company prior to the date on which the individual fulfills all conditions for receipt of such rights.

 

 

Section 7.2 Transferability.  Except as otherwise so provided by the Committee:

 

(a) ISOs granted under the Plan are not transferable except: (i) as designated by the Participant by will or by the laws of descent and distribution; (ii) to a trust established by the Participant, if under Code Section 671 and applicable state law, the Participant is considered the sole beneficial owner of the Stock Option while held in trust; or (iii) between spouses incident to a divorce or pursuant to a domestic relations order, provided, however, that any ISO transferred pursuant to this subparagraph (iii) shall be treated as a nonqualified stock option as of the day of such transfer.

 

(b) Vested Stock Options (other than ISOs) granted under the Plan may be transferred to Immediate Family Members of Participants, trusts and partnerships established for the primary benefit of the Participant’s Immediate Family Members or to charitable organizations, and; provided, that the Participant may not receive any consideration in connection with a transfer of any Stock Option.

 

(c) Awards of Restricted Stock or Dividend Equivalent Rights shall not be transferable prior to the time that such Awards vest in the Participant.

 

(d) Awards of Restricted Stock Units are not transferable, except in the event of death, prior to the time that the Restricted Stock Unit Award vests and is earned and the property in which the Restricted Stock Unit is denominated is distributed to the Participant or the Participant’s Beneficiary.

 

Section 7.3 Designation of Beneficiaries.  A Participant hereunder may file with the Company a written designation of a beneficiary or beneficiaries under this Plan and may from time to time revoke or amend any such designation (“Beneficiary Designation”). Any designation of beneficiary under this Plan shall be controlling over any other disposition, testamentary or otherwise (unless such disposition is pursuant to a domestic relations order); provided, however, that if the Committee is in doubt as to the entitlement of any such beneficiary to any Award, the Committee may determine to recognize only the legal representative of the Participant, in which case the Company, the Committee and the members thereof shall not be under any further liability to anyone.

 

Section 7.4 Non-Exclusivity.  Neither the adoption of this Plan by the Board nor the submission of the Plan to the stockholders of the Company for approval shall be construed as creating any limitations on the power of the Board or the Committee to adopt such other incentive arrangements as either may deem desirable, including, without limitation, the granting of Stock Options, Restricted Stock, Restricted Stock Units, Unrestricted Shares or Dividend Equivalent Rights otherwise than under the Plan or an arrangement that is or is not intended to qualify under Code Section 162(m), and such arrangements may be either generally applicable or applicable only in specific cases.

 

Section 7.5 Form and Time of Elections/Notification Under Code Section 83(b). Unless otherwise specified herein, each election required or permitted to be made by any Participant or other person entitled to benefits under the Plan, and any permitted modification or revocation thereof, shall be filed with the Company at such times, in such form, and subject to such restrictions and limitations, not inconsistent with the terms of the Plan, as the Committee shall require. Notwithstanding anything herein to the contrary, the Committee may, on the date of grant or at a later date, as applicable, prohibit an individual from making an election under Code Section 83(b). If the Committee has not prohibited an individual from making this election, an individual who makes this election shall notify the Committee of the election within ten (10) days of filing notice of the election with the Internal Revenue Service. This requirement is in addition to any filing and notification required under the regulations issued under the authority of Code Section 83(b).

 

 

Section 7.6 Evidence.  Evidence required of anyone under the Plan may be by certificate, affidavit, document or other information upon which the person is acting considers pertinent and reliable, and signed, made or presented by the proper party or parties.

 

Section 7.7 Tax Withholding.  Where a Participant is entitled to receive Shares upon the vesting or exercise of an Award, the Company shall have the right to require such Participant to pay to the Company the amount of any tax that the Company is required to withhold with respect to such vesting or exercise, or, in lieu thereof, to retain, or to sell without notice, a sufficient number of Shares to cover the minimum amount required to be withheld. To the extent determined by the Committee and specified in an Award Agreement, a Participant shall have the right to direct the Company to satisfy the minimum required federal, state and local tax withholding by: (i) with respect to a Stock Option, reducing the number of Shares subject to the Stock Option (without issuance of such Shares to the Stock Option holder) by a number equal to the quotient of (a) the total minimum amount of required tax withholding divided by (b) the excess of the Fair Market Value of a Share on the exercise date over the Exercise Price per Share; and (ii) with respect to Restricted Stock, Restricted Stock Units, Unrestricted Share and Dividend Equivalent Rights Awards, withholding a number of Shares (based on the Fair Market Value on the vesting date) otherwise vesting that would satisfy the minimum amount of required tax withholding. Provided there are no adverse accounting consequences to the Company (a requirement to have liability classification of an award under Financial Accounting Standards Board Accounting Standards Codification (ASC) Topic 718 is an adverse consequence), a Participant who is not required to have taxes withheld may require the Company to withhold in accordance with the preceding sentence as if the Award were subject to minimum tax withholding requirements.

 

Section 7.8 Action by Company or Subsidiary.  Any action required or permitted to be taken by the Company or any Subsidiary shall be by resolution of its board of directors, or by action of one or more members of the Board (including a committee of the Board) who are duly authorized to act for the Board, or (except to the extent prohibited by applicable law or applicable rules of the Exchange on which the Company lists its securities) by a duly authorized officer of the Company or such Subsidiary.

 

Section 7.9 Successors.  All obligations of the Company under the Plan shall be binding upon and inure to the benefit of any successor to the Company, whether the existence of such successor is the result of a direct or indirect purchase, merger, consolidation or otherwise, of all or substantially all of the business, stock, and/or assets of the Company.

 

 

Section 7.10 Indemnification.  To the fullest extent permitted by law and the Company’s governing documents, each person who is or shall have been a member of the Committee, or of the Board, or an officer of the Company to whom authority was delegated in accordance with Section 5.2, or an Employee of the Company, shall be indemnified and held harmless by the Company against and from any loss (including amounts paid in settlement), cost, liability or expense (including reasonable attorneys’ fees) that may be imposed upon or reasonably incurred by him or her in connection with or resulting from any claim, action, suit, or proceeding to which he or she may be a party or in which he or she may be involved by reason of any action taken or failure to act under the Plan and against and from any and all amounts paid by him or her in settlement thereof, with the Company’s approval, or paid by him or her in satisfaction of any judgment in any such action, suit, or proceeding against him or her, provided he or she shall give the Company an opportunity, at its own expense, to handle and defend the same before he or she undertakes to handle and defend it on his or her own behalf, unless such loss, cost, liability, or expense is a result of his or her own willful misconduct or except as expressly provided by statute or regulation. The foregoing right of indemnification shall not be exclusive of any other rights of indemnification to which such persons may be entitled under the Company’s charter or bylaws, as a matter of law, or otherwise, or any power that the Company may have to indemnify them or hold them harmless. The foregoing right to indemnification shall include the right to be paid by the Company the expenses incurred in defending any such proceeding in advance of its final disposition, provided, however, that, if required by applicable law, an advancement of expenses shall be made only upon delivery to the Company of an undertaking, by or on behalf of such persons to repay all amounts so advanced if it shall ultimately be determined by final judicial decision from which there is no further right to appeal that such person is not entitled to be indemnified for such expenses.

 

Section 7.11 No Fractional Shares.  Unless otherwise permitted by the Committee, no fractional Shares shall be issued or delivered pursuant to the Plan or any Award. The Committee shall determine whether cash or other property shall be issued or paid in lieu of fractional Shares or whether such fractional Shares or any rights thereto shall be forfeited or otherwise eliminated by rounding down.

 

Section 7.12 Governing Law.  The Plan, all Awards granted hereunder, and all actions taken in connection herewith shall be governed by and construed in accordance with the laws of the State of Ohio without reference to principles of conflict of laws, except as superseded by applicable federal law. The federal and state courts located in the State of Ohio, shall have exclusive jurisdiction over any claim, action, complaint or lawsuit brought under the terms of the Plan. By accepting any award under this Plan, each Participant and any other person claiming any rights under the Plan agrees to submit himself or herself and any legal action that the Participant brings under the Plan, to the sole jurisdiction of such courts for the adjudication and resolution of any such disputes.

 

Section 7.13 Benefits Under Other Plans.  Any compensation recognized by a Participant in connection with an Award under the Plan shall be disregarded for purposes of determining the Participant’s benefits under, or contributions to, any other benefit plans maintained by the Participant’s employer, specifically including any qualified or non-qualified retirement plan, unless the terms of such other benefit plan explicitly includes such compensation.

 

 

Section 7.14 Validity.  If any provision of this Plan is determined to be illegal or invalid for any reason, said illegality or invalidity shall not affect the remaining parts hereof, but this Plan shall be construed and enforced as if such illegal or invalid provision has never been included herein.

 

Section 7.15 Notice.  Unless otherwise provided in an Award Agreement, all written notices and all other written communications to the Company provided for in the Plan or in any Award Agreement, shall be delivered personally or sent by registered or certified mail, return receipt requested, postage prepaid (provided that international mail shall be sent via overnight or two-day delivery), or sent by facsimile, email or prepaid overnight courier to the Company at its principal executive office. Such notices, demands, claims and other communications shall be deemed given:

 

(a) in the case of delivery by overnight service with guaranteed next day delivery, the next day or the day designated for delivery;

 

(b) in the case of certified or registered U.S. mail, five days after deposit in the U.S. mail; or

 

(c) in the case of facsimile or email, the date upon which the transmitting party received confirmation of receipt; provided, however, that in no event shall any such communications be deemed to be given later than the date they are actually received, provided they are actually received.

 

In the event a communication is not received, it shall only be deemed received upon the showing of an original of the applicable receipt, registration or confirmation from the applicable delivery service. Communications that are to be delivered by U.S. mail or by overnight service to the Company shall be directed to the attention of the Company’s Corporate Secretary, unless otherwise provided in the Participant’s Award Agreement.

 

Section 7.16 Forfeiture Events. The Committee may specify in an Award Agreement that the Participant’s rights, payments, and benefits with respect to an Award shall be subject to reduction, cancellation, forfeiture or recoupment upon the occurrence of certain specified events, in addition to any otherwise applicable vesting or performance conditions of an Award. Such events include, but are not limited to, termination of employment for cause, termination of the Participant’s provision of Services to the Company or any Subsidiary, violation of material Company or Subsidiary policies, breach of noncompetition, confidentiality, or other restrictive covenants that may apply to the Participant, or other conduct of the Participant that is detrimental to the business or reputation of the Company or any Subsidiary.

 

Section 7.17 Regulatory Requirements. The grant and settlement of Awards under this Plan shall be conditioned upon and subject to compliance with Section 18(k) of the Federal Deposit Insurance Act, 12 U.S.C. 1828(k), and the rules and regulations promulgated thereunder.

 

Section 7.18 Clawback Policy. If the Company is required to prepare an accounting restatement due to the material noncompliance of the Company, as a result of misconduct, with any financial reporting requirement under the federal securities laws, any Participant who is subject to automatic forfeiture under Section 304 of the Sarbanes-Oxley Act of 2002 shall reimburse the Company the amount of any payment in settlement of an Award earned or accrued during the twelve month period following the first public issuance or filing with the SEC (whichever first occurred) of the financial document embodying such financial reporting requirement.

 

 

In addition, Awards granted hereunder are subject to any clawback policy adopted by the Board from time to time.

 

ARTICLE 8 - DEFINED TERMS; CONSTRUCTION

 

Section 8.1 In addition to the other definitions contained herein, unless otherwise specifically provided in an Award Agreement, the following definitions shall apply:

 

(a) “10% Stockholder” means an individual who, at the time of grant, owns stock possessing more than 10% of the total combined voting power of all classes of stock of the Company.

 

(b) “Award” means any Stock Option, Restricted Stock, Restricted Stock Unit, Performance, Unrestricted Share or Dividend Equivalent Right Award or any or all of them, granted to a Participant under the Plan.

 

(c) “Award Agreement” means the written or electronic agreement between the Company and each Participant which evidences the terms and conditions of an Award under the Plan. Such document is referred to as an agreement, regardless of whether a Participant’s signature is required. If there is a conflict between the terms of this Plan and the terms of an Award Agreement, the terms of this Plan will govern.

 

(d) “Board” means the Board of Directors of the Company.

 

(e) “Cause” means (i) “Cause” as defined in the Award Agreement; (ii) “Cause” as defined in any written employment agreement (or other similar written agreement) between the applicable Participant and the Company or a Subsidiary; or (iii) if “Cause” is not defined in an applicable Award Agreement or employment agreement, “Cause” means termination because of a Participant’s personal dishonesty, incompetence, willful misconduct, breach of fiduciary duty involving personal profit, material breach of the Bank’s Code of Ethics, material violation of the Sarbanes-Oxley requirements for officers of public companies that in the reasonable opinion of the Chief Executive Officer of the Bank or the Board will likely cause substantial financial harm or substantial injury to the reputation of the Bank, willfully engaging in actions that in the reasonable opinion of the Board will likely cause substantial financial harm or substantial injury to the business reputation of the Bank, intentional failure to perform stated duties, willful violation of any law, rule or regulation (other than routine traffic violations or similar offenses) or final cease-and-desist order, or material breach of any provision of the contract.

 

(f) “Change in Control” has the meaning ascribed to it in Section 4.2.

 

(g) “Code” means the Internal Revenue Code of 1986, as amended, and any rules, regulations and guidance promulgated thereunder, as modified from time to time.

 

 

(h) “Code Section 409A” means the provisions of Section 409A of the Code and any rules, regulations and guidance promulgated thereunder, as modified from time to time.

 

(i) “Covered Employee” has the meaning given the term in Code Section 162(m), and shall also include any other Employee who may become a Covered Employee before an Award vests, as the Committee may determine in its sole discretion.

 

(j) “Director” means: (i) a member of the Board of Directors of the Company or a Subsidiary; or (ii) a member of an advisory board to the Board of Directors of the Company or Subsidiary. Any Director who is also employed by the Company or a Subsidiary shall not be eligible to receive any Awards as a Director.

 

(k) “Disability” or “Disabled” means (i) “Disability” as defined in the Award agreement; (ii) “Disability” as defined in any written employment agreement (or other similar written agreement) between the applicable Participant and the Company or a Subsidiary; or (iii) if “Disability” is not defined in an applicable Award Agreement or employment agreement, or the Award is subject to Code Section 409A, “Disability” means that a Participant: (x) is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than twelve months; or (y) is, by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than twelve months, receiving income replacement benefits for a period of not less than three months under an accident and health plan covering Employees. Except to the extent prohibited under Code Section 409A for an Award subject to Code Section 409A, the Committee shall have discretion to determine if a termination due to Disability has occurred.

 

(l) “Dividend Equivalent Rights” means the right to receive a payment, in cash or stock, as applicable, equal to the amount of dividends paid on a Share, as specified in the Award Agreement.

 

(m) “Employee” means any person employed by the Company or any Subsidiary. Directors who are also employed by the Company or a Subsidiary shall be considered Employees under the Plan and shall not be eligible to receive any Awards as a Director.

 

(n) “Exchange” means any national securities exchange on which the Shares may from time to time be listed or traded.

 

(o) “Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time.

 

(p) “Exercise Price” means the price established with respect to a Stock Option pursuant to Section 2.2.

 

(q) “Fair Market Value” on any date, means: (i) if the Shares are listed on an Exchange, the closing sales price on such Exchange on such date or, in the absence of reported sales on such date, the closing sales price on the immediately preceding date on which sales were reported, in either case without regard to after-hours trading activity; or (ii) if the Shares are not listed on an Exchange, “Fair Market Value” shall mean a price determined by the Committee in its sole discretion in good faith on the basis of objective criteria consistent with the requirements of Code Section 422 and applicable provisions of Section 409A.

 

 

(r) “Immediate Family Member” means with respect to any Participant: (i) any of the Participant’s children, stepchildren, grandchildren, parents, stepparents, grandparents, spouses, former spouses, siblings, nieces, nephews, mothers-in-law, fathers-in-law, sons-in-law, daughters-in-law, brothers-in-law or sisters-in-law, including relationships created by adoption; (ii) any natural person sharing the Participant’s household (other than as a tenant or employee, directly or indirectly, of the Participant); (iii) a trust in which any combination of the Participant and persons described in section (i) and (ii) above own more than fifty percent (50%) of the beneficial interests; (iv) a foundation in which any combination of the Participant and persons described in sections (i) and (ii) above control management of the assets; or (v) any other corporation, partnership, limited liability company or other entity in which any combination of the Participant and persons described in sections (i) and (ii) above control more than fifty percent (50%) of the voting interests.

 

(s) “ISO” has the meaning ascribed to it in Sections 2.1(a) and 2.2.

 

(t) “Non-Qualified Option” means the right to purchase Shares that is either: (i) granted to a Participant who is not an Employee; or (ii) granted to an Employee and either is not designated by the Committee to be an ISO or does not satisfy the requirements of Section 422 of the Code.

 

(u) “Participant” means any individual who has received, and currently holds, an outstanding Award under the Plan.

 

(v) “Performance Award” has the meaning ascribed to it in Sections 2.1(d) and 2.5.

 

(w) “Restricted Stock” or “Restricted Stock Award” has the meaning ascribed to it in Sections 2.1(b) and 2.3. 

 

(x) “Restricted Stock Unit” has the meaning ascribed to it in Sections 2.1(c) and 2.4.

 

(y) “Restriction Period” has the meaning set forth in Section 2.4(b)(iii).

 

(z) “Retirement” means, unless otherwise specified in an Award Agreement, retirement from employment as an Employee on or after the attainment of age 65, or Termination of Service as a Director on or after the attainment of the latest age at which a Director is eligible for election or appointment as a voting member of the Employer’s Board of Directors under the Employer’s charter, or if there are no age limitations for serving as a Director, then age 70, provided, however, that unless otherwise specified in an Award Agreement, an Employee who is also a Director shall not be deemed to have terminated due to Retirement for purposes of vesting of Awards and exercise of Stock Options until both Service as an Employee and Service as a Director has ceased. A non-Employee Director will be deemed to have terminated due to Retirement under the provisions of this Plan only if the non-Employee Director has terminated Service on the Board(s) of Directors of the Company and any Subsidiary or affiliate in accordance with applicable Company policy, following the provision of written notice to such Board(s) of Directors of the non-Employee Director’s intention to retire. A non-employee Director who continues in Service as a director emeritus or advisory director shall be deemed to be in Service of the Employer for purposes of vesting of Awards and exercise of Stock Options.

 

 

(aa) “SEC” means the United States Securities and Exchange Commission.

 

(bb) “Securities Act” means the Securities Act of 1933, as amended from time to time.

 

(cc) “Service” means service as an Employee or non-employee Director of the Company or a Subsidiary, as the case may be, and shall include service as a director emeritus or advisory director. Service shall not be deemed interrupted in the case of sick leave, military leave or any other absence approved by the Company or a Subsidiary, in the case of transferees between payroll locations or between the Company, a Subsidiary or a successor.

 

(dd) “Share” means a share of the common stock of the Company, $0.01 par value per share.

 

(ee) “Stock Option” has the meaning ascribed to it in Section 2.1(a) and 2.2.

 

(ff) “Subsidiary” means any corporation, affiliate, bank or other entity which would be a subsidiary corporation with respect to the Company as defined in Code Section 424(f) and, other than with respect to an ISO, shall also mean any partnership or joint venture in which the Company and/or other Subsidiary owns more than 50% of the capital or profits interests.

 

(gg) “Termination of Service” means the first day occurring on or after a grant date on which the Participant ceases to be an Employee or Director (including a director emeritus or advisory director) of the Company or any Subsidiary, regardless of the reason for such cessation, subject to the following:

 

(i) The Participant’s cessation as an Employee shall not be deemed to occur by reason of the transfer of the Participant between the Company and a Subsidiary or between two Subsidiaries.

 

(ii) The Participant’s cessation as an Employee shall not be deemed to occur by reason of the Participant’s being on a bona fide leave of absence from the Company or a Subsidiary approved by the Company or Subsidiary otherwise receiving the Participant’s Services, provided such leave of absence does not exceed six months, or if longer, so long as the Employee retains a right to reemployment with the Company or Subsidiary under an applicable statute or by contract. For these purposes, a leave of absence constitutes a bona fide leave of absence only if there is a reasonable expectation that the Employee will return to perform Services for the Company or Subsidiary. If the period of leave exceeds six months and the Employee does not retain a right to reemployment under an applicable statute or by contract, the employment relationship is deemed to terminate on the first day immediately following such six month period. For purposes of this sub-section, to the extent applicable, an Employee’s leave of absence shall be interpreted by the Committee in a manner consistent with Treasury Regulation Section 1.409A-1(h)(1).

 

 

(iii) If, as a result of a sale or other transaction, the Subsidiary for whom Participant is employed (or to whom the Participant is providing Services) ceases to be a Subsidiary, and the Participant is not, following the transaction, an Employee of the Company or an entity that is then a Subsidiary, then the occurrence of such transaction shall be treated as the Participant’s Termination of Service caused by the Participant being discharged by the entity for whom the Participant is employed or to whom the Participant is providing Services.

 

(iv) Except to the extent Section 409A of the Code may be applicable to an Award, and subject to the foregoing paragraphs of this sub-section, the Committee shall have discretion to determine if a Termination of Service has occurred and the date on which it occurred. In the event that any Award under the Plan constitutes Deferred Compensation (as defined in Section 2.9 hereof), the term Termination of Service shall be interpreted by the Committee in a manner consistent with the definition of “Separation from Service” as defined under Code Section 409A and under Treasury Regulation Section 1.409A-1(h)(ii). For purposes of this Plan, a “Separation from Service” shall have occurred if the Bank and Participant reasonably anticipate that no further Services will be performed by the Participant after the date of the Termination of Service (whether as an employee or as an independent contractor) or the level of further Services performed will be less than 20% of the average level of bona fide Services in the 36 months immediately preceding the Termination of Service. If a Participant is a “Specified Employee,” as defined in Code Section 409A and any payment to be made hereunder shall be determined to be subject to Code Section 409A, then if required by Code Section 409A, such payment or a portion of such payment (to the minimum extent possible) shall be delayed and shall be paid on the first day of the seventh month following Participant’s Separation from Service.

 

(v) With respect to a Participant who is a director, cessation as a Director will not be deemed to have occurred if the Participant continues as a director emeritus or advisory director. With respect to a Participant who is both an Employee and a Director, termination of employment as an Employee shall not constitute a Termination of Service for purposes of the Plan so long as the Participant continues to provide Service as a Director or director emeritus or advisory director.

 

(hh) “Unrestricted Shares” has the meaning ascribed to it in Sections 2.1(a) and 2.6.

 

(ii) “Voting Securities” means any securities which ordinarily possess the power to vote in the election of directors without the happening of any pre-condition or contingency.

 

Section 8.2 In this Plan, unless otherwise stated or the context otherwise requires, the following uses apply:

 

(a) actions permitted under this Plan may be taken at any time and from time to time in the actor’s reasonable discretion;

 

 

(b) references to a statute shall refer to the statute and any successor statute, and to all regulations promulgated under or implementing the statute or its successor, as in effect at the relevant time;

 

(c) in computing periods from a specified date to a later specified date, the words “from” and “commencing on” (and the like) mean “from and including,” and the words “to,” “until” and “ending on” (and the like) mean “to, but excluding”;

 

(d) references to a governmental or quasi-governmental agency, authority or instrumentality shall also refer to a regulatory body that succeeds to the functions of the agency, authority or instrumentality;

 

(e) indications of time of day mean Eastern Time;

 

(f) “including” means “including, but not limited to”;

 

(g) all references to sections, schedules and exhibits are to sections, schedules and exhibits in or to this Plan unless otherwise specified;

 

(h) all words used in this Plan will be construed to be of such gender or number as the circumstances and context require;

 

(i) the captions and headings of articles, sections, schedules and exhibits appearing in or attached to this Plan have been inserted solely for convenience of reference and shall not be considered a part of this Plan nor shall any of them affect the meaning or interpretation of this Plan or any of its provisions;

 

(j) any reference to a document or set of documents in this Plan, and the rights and obligations of the parties under any such documents, shall mean such document or documents as amended from time to time, and any and all modifications, extensions, renewals, substitutions or replacements thereof; and

 

(k) all accounting terms not specifically defined herein shall be construed in accordance with GAAP