COMMERCIAL FEDERAL CORPORATION
2002 STOCK OPTION AND INCENTIVE PLAN
1. PURPOSE OF THE PLAN.
The purpose of this Plan is to advance the interests of the Company through
providing select key Employees and Directors of the Bank, the Company, and their
Affiliates with the opportunity to acquire Shares. By encouraging such stock
ownership, the Company seeks to attract, retain and motivate the best available
personnel for positions of substantial responsibility and to provide additional
incentives to Directors and Employees of the Company or any Affiliate to promote
the success of the business.
As used herein, the following definitions shall apply.
(a) "Affiliate" shall mean any "parent corporation" or "subsidiary
corporation" of the Company, as such terms are defined in Section 424(e) and
(f), respectively, of the Code.
(b) "Agreement" shall mean a written agreement entered into in accordance
with Paragraph 5(c).
(c) "Awards" shall mean, collectively, Options, SARs and Shares of
Restricted Stock, unless the context clearly indicates a different meaning.
(d) "Bank" shall mean Commercial Federal Bank, a Federal Savings Bank.
(e) "Board" shall mean the Board of Directors of the Company.
(f) "Change in Control" shall mean any one of the following events: (i) the
acquisition of ownership, holding or power to vote more than 20% of the Bank's
or the Company's voting stock, (ii) the acquisition of the ability to control
the election of a majority of the Bank's or the Company's directors, (iii) the
acquisition of a controlling influence over the management or policies of the
Bank or the Company by any person or by persons acting as a "group" (within the
meaning of Section 13(d) of the Securities Exchange Act of 1934), or (iv) during
any period of two consecutive years, individuals (the "Continuing Directors")
who at the beginning of such period constitute the Board of Directors of the
Bank or the Company (the "Existing Board") cease for any reason to constitute at
least two-thirds thereof, provided that any individual whose election or
nomination for election as a member of the Existing Board was approved by a vote
of at least two-thirds of the Continuing Directors then in office shall be
considered a Continuing Director. Notwithstanding the foregoing, in the case of
(i), (ii) and (iii) hereof, ownership or control of the Bank by the Company
itself shall not constitute a Change in Control. For purposes of this paragraph
only, the term "person" refers to an individual or a corporation, partnership,
trust, association, joint venture, pool, syndicate, sole proprietorship,
unincorporated organization or any other form of entity not specifically listed
(g) "Code" shall mean the Internal Revenue Code of 1986, as amended.
(h) "Committee" shall mean the Stock Option Committee appointed by the
Board in accordance with Paragraph 5(a) hereof.
(i) "Common Stock" shall mean the common stock of the Company.
(j) "Company" shall mean Commercial Federal Corporation.
(k) "Continuous Service" shall mean the absence of any interruption or
termination of service as an Employee or Director of the Company or an
Affiliate. Continuous Service shall not be considered interrupted in the
case of sick leave, military leave or any other leave of absence approved by the
Company, in the case of transfers between payroll locations of the Company or
between the Company, an Affiliate or a successor, or in the case of a Director's
performance of services in an emeritus or advisory capacity.
(l) "Director" shall mean any member of the Board, and any member of the
board of directors of any Affiliate that the Board has by resolution designated
as being eligible for participation in this Plan.
(m) "Disability" has the meaning ascribed to it in Section 22 (e)(3) of the
(n) "Effective Date" shall mean the date specified in Paragraph 15 hereof.
(o) "Employee" shall mean any person employed by the Company, the Bank, or
(p) "Exercise Price" shall mean the price per Optioned Share at which an
Option or SAR may be exercised.
(q) "ISO" means an option to purchase Common Stock which meets the
requirements set forth in the Plan, and which is intended to be and is
identified as an "incentive stock option" within the meaning of Section 422 of
(r) "Market Value" shall mean the fair market value of the Common Stock, as
determined under Paragraph 7(b) hereof.
(s) "Non-Employee Director" shall have the meaning provided in Rule 16b-3.
(t) "Non-ISO" means an option to purchase Common Stock which meets the
requirements set forth in the Plan but which is not intended to be and is not
identified as an ISO.
(u) "Option" means an ISO and/or a Non-ISO.
(v) "Optioned Shares" shall mean Shares subject to an Award granted
pursuant to this Plan.
(w) "Participant" shall mean any person who receives an Award pursuant to
(x) "Plan" shall mean this Commercial Federal Corporation Stock Option and
(y) "Restricted Stock" means Common Stock which is subject to restrictions
against transfer and forfeiture and such other terms and conditions determined
by the Committee, as provided in Paragraph 10.
(z) "Rule 16b-3" shall mean Rule 16b-3 of the General Rules and Regulations
under the Securities Exchange Act of 1934, as amended.
(aa) "Share" shall mean one share of Common Stock.
(bb) "SAR" (or "Stock Appreciation Right") means a right to receive the
appreciation in value, or a portion of the appreciation in value, of a specified
number of shares of Common Stock.
3. TERM OF THE PLAN AND AWARDS.
(a) Term of the Plan. The Plan shall continue in effect for a term of ten
years from the Effective Date, unless sooner terminated pursuant to Paragraph 17
hereof. No Award shall be granted under the Plan after ten years from the
(b) Term of Awards. The term of each Award granted under the Plan shall be
established by the Committee, but shall not exceed 10 years; provided, however,
that in the case of an Employee who owns Shares
representing more than 10% of the outstanding Common Stock at the time an ISO is
granted, the term of such ISO shall not exceed five years.
4. SHARES SUBJECT TO THE PLAN.
(a) General Rule. Except as otherwise required under Paragraph 12, the
aggregate number of Shares deliverable pursuant to Awards shall not exceed
2,100,000 Shares. Such Shares may either be authorized but unissued Shares,
Shares held in treasury, or Shares held in a grantor trust created by the Bank
or the Company. If any Awards should expire, become unexercisable, or be
forfeited for any reason without having been exercised, the Optioned Shares
shall, unless the Plan shall have been terminated, be available for the grant of
additional Awards under the Plan.
(b) Special Rule for SARs. The number of Shares with respect to which an
SAR is granted, but not the number of Shares which the Company delivers or could
deliver to an Employee or individual upon exercise of an SAR, shall be charged
against the aggregate number of Shares remaining available under the Plan;
provided, however, that in the case of an SAR granted in conjunction with an
Option, under circumstances in which the exercise of the SAR results in
termination of the Option and vice versa, only the number of Shares subject to
the Option shall be charged against the aggregate number of Shares remaining
available under the Plan. The Shares involved in an Option as to which option
rights have terminated by reason of the exercise of a related SAR shall not be
available for the grant of further Options under the Plan.
5. ADMINISTRATION OF THE PLAN.
(a) Composition of the Committee. The Plan shall be administered by the
Committee, which shall consist of not less than two (2) members of the Board who
are Non-Employee Directors and who are "outside directors" under Section 162(m)
of the Code and the regulations thereunder. Members of the Committee shall serve
at the pleasure of the Board. In the absence at any time of a duly appointed
Committee, the Plan shall be administered by those members of the Board who are
Non-Employee Directors and "outside directors".
(b) Powers of the Committee. Except as limited by the express provisions of
the Plan or by resolutions adopted by the Board, the Committee shall have sole
and complete authority and discretion (i) to select Participants and grant
Awards, (ii) to determine the form and content of Awards to be issued in the
form of Agreements under the Plan, (iii) to interpret the Plan, (iv) to
prescribe, amend and rescind rules and regulations relating to the Plan, and (v)
to make other determinations necessary or advisable for the administration of
the Plan. The Committee shall have and may exercise such other power and
authority as may be delegated to it by the Board from time to time. A majority
of the entire Committee shall constitute a quorum and the action of a majority
of the members present at any meeting at which a quorum is present, or acts
approved in writing by a majority of the Committee without a meeting, shall be
deemed the action of the Committee.
(c) Agreement. Each Award shall be evidenced by a written agreement
containing such provisions as may be approved by the Committee. Each such
Agreement shall constitute a binding contract between the Company and the
Participant, and every Participant, upon acceptance of such Agreement, shall be
bound by the terms and restrictions of the Plan and of such Agreement. The terms
of each such Agreement shall be in accordance with the Plan, but each Agreement
may include such additional provisions and restrictions determined by the
Committee, in its discretion, provided that such additional provisions and
restrictions are not inconsistent with the terms of the Plan. In particular, the
Committee shall set forth in each Agreement (i) the Exercise Price of an Option
or SAR, (ii) the number of Shares subject to, and the expiration date of, the
Award, (iii) the manner, time and rate (cumulative or otherwise) of exercise or
vesting of such Award, and (iv) the restrictions, if any, to be placed upon such
Award, or upon Shares which may be issued upon exercise of such Award.The
Chairman of the Committee and such other Directors and officers as shall be
designated by the Committee are hereby authorized to execute Agreements on
behalf of the Company and to cause them to be delivered to the recipients of
(d) Effect of the Committee's Decisions. All decisions, determinations and
interpretations of the Committee shall be final and conclusive on all persons
(e) Indemnification. In addition to such other rights of indemnification as
they may have, the members of the Committee shall be indemnified by the Company
in connection with any claim, action, suit or proceeding relating to any action
taken or failure to act under or in connection with the Plan or any Award,
granted hereunder to the full extent provided for under the Company's governing
instruments with respect to the indemnification of Directors.
6. GRANT OF OPTIONS.
(a) General Rule. The Committee shall have the discretion to make Awards to
Employees and Directors (including members of the Committee). In selecting those
Employees and Directors to whom Awards will be granted and the number of shares
covered by such Awards, the Committee shall consider the position, duties and
responsibilities of the eligible Employees and Directors, the value of their
services to the Company and its Affiliates, and any other factors the Committee
may deem relevant.
(b) Special Rules for ISOs. The aggregate Market Value, as of the date the
Option is granted, of the Shares with respect to which ISOs are exercisable for
the first time by an Employee during any calendar year (under all incentive
stock option plans, as defined in Section 422 of the Code, of the Company or any
present or future Affiliate of the Company) shall not exceed $100,000.
Notwithstanding the foregoing, the Committee may grant Options in excess of the
foregoing limitations, in which case such Options granted in excess of such
limitation shall be Options which are Non-ISOs.
(c) Discounted Non-ISOs. Notwithstanding any provision of this Plan to the
contrary, the Committee may, at the election of a Director or Employee selected
by the Committee, grant Non-ISOs to such individual in lieu of cash compensation
otherwise payable by the Company or the Bank. An individual's election pursuant
to this Paragraph 6(c) shall be made prior to the calendar year for which such
election will be deemed effective, and in accordance with regulations prescribed
by the Committee. Elections shall be approved or disapproved in the discretion
of the Committee and in accordance with the terms of the Plan. Changes to a
Participant's election pursuant to this Paragraph 6(c) shall be prospective
only. Pursuant to an election accepted and approved by the Committee, a
Participant may elect to forgo the receipt of cash compensation otherwise
expected from the Company or the Bank and instead receive, as of the last day of
the calendar year, Non-ISOs with an aggregate difference between the Market
Value of the underlying shares and the Exercise Price (determined as of the
first day of the calendar year) equal to the amount of cash compensation forgone
by the Participant pursuant to an election covering the calendar year. Such
Non-ISOs will be at all times fully exercisable following their date of grant,
and shall otherwise be subject to the terms of the underlying Agreement and this
Plan. In no event however, may a Non-ISO be granted pursuant to this Paragraph
6(c) with an Exercise Price which is less than 50% of the Market Value of the
underlying shares on the date of grant.
A Participant's interest in receiving Non-ISOs pursuant to this Paragraph
6(c) shall not be subject in any manner to anticipation, alienation, sale,
transfer, assignment, pledge, encumbrance, or charge; and the Company shall not
be obligated to make any Awards to persons other than as specifically provided
in the Plan. A Participant shall not have a secured claim against the assets of
the Company, and such Participant shall rely solely on the unsecured promise of
the Company for the payment of any compensation deferred through an election to
receive a Non-ISO pursuant to the Plan. Nothing herein shall be construed to
give any person any right, title, interest, or claim in or to any specific
asset, fund, reserve, account, or property of any kind whatsoever owned by them
or in which it may have any right, title or interest now or in the future; but
such persons shall have the right to enforce his or her claim against the
Company in the same manner as any unsecured creditor.
7. EXERCISE PRICE FOR OPTIONS.
(a) Limits on Committee Discretion. Except as provided in Paragraph 6(c)
hereof, the Exercise Price as to any particular Option shall not be less than
100% of the Market Value of the Optioned Shares on the date of grant. In the
case of an Employee who owns Shares representing more than 10% of the Company's
outstanding Shares of Common Stock at the time an ISO is granted, the Exercise
Price shall not be less than 110% of the Market Value of the Optioned Shares at
the time the ISO is granted.
(b) Standards for Determining Exercise Price. If the Common Stock is listed
on a national securities exchange (or the NASDAQ National Market System) on the
date in question, then the Market Value per Share shall be the average of the
highest and lowest selling price on such exchange on such date, or if there were
no sales on such date, then the Exercise Price shall be the mean between the bid
and asked price on such date. If the Common Stock is traded otherwise than on a
national securities exchange on the date in question, then the Market Value per
Share shall be the mean between the bid and asked price on such date, or, if
there is no bid and asked price on such date, then on the next prior business
day on which there was a bid and asked price. If no such bid and asked price is
available, then the Market Value per Share shall be its fair market value as
determined by the Committee, in its sole and absolute discretion.
8. EXERCISE OF OPTIONS.
(a) Generally. Unless otherwise provided by the Committee pursuant to an
applicable Agreement, each Option shall be fully (100%) exercisable immediately
upon the date of its grant.
(b) Procedure for Exercise. A Participant may exercise Options, subject to
provisions relative to its termination and limitations on its exercise, only by
(1) written notice of intent to exercise the Option with respect to a specified
number of Shares, and (2) payment to the Company (contemporaneously with
delivery of such notice) in cash, in Common Stock owned for more than six
months, or a combination of cash and Common Stock owned for more than six
months, of the amount of the Exercise Price for the number of Shares with
respect to which the Option is then being exercised. Each such notice (and
payment where required) shall be delivered, or mailed by prepaid registered or
certified mail, addressed to the Treasurer of the Company at its executive
offices. Common Stock owned for more than six months utilized in full or partial
payment of the Exercise Price for Options shall be valued at its Market Value at
the date of exercise.
(c) Period of Exercisability for ISOs. Except to the extent otherwise
provided in the terms of an Agreement, an ISO may be exercised by a Participant
only while he is an Employee and has maintained Continuous Service from the date
of the grant of the ISO, or within three months after termination of such
Continuous Service (but not later than the date on which the ISO would otherwise
expire), except if the Employee's Continuous Service terminates by reason of --
(1) "Just Cause" which for purposes hereof shall have the meaning set
forth in any unexpired employment or severance agreement between the
Employee and the Bank and/or the Company (and, in the absence of any such
agreement, shall mean termination because of the Employee's personal
dishonesty, incompetence, willful misconduct, breach of fiduciary duty
involving personal profit, intentional failure to perform stated duties,
willful violation of any law, rule or regulation (other than traffic
violations or similar offenses) or final cease-and-desist order), then the
Employee's rights to exercise such ISO shall expire on the date of such
(2) death, then to the extent that the Employee would have been
entitled to exercise the ISO immediately prior to his death, such ISO of
the deceased Employee may be exercised within two years from the date of
his death (but not later than the date on which the ISO would otherwise
expire) by the personal representatives of his estate or person or persons
to whom his rights under such ISO shall have passed by will or by laws of
descent and distribution;
(3) Disability, then to the extent that the Employee would have been
entitled to exercise the ISO immediately prior to his or her Disability,
such ISO may be exercised within one year from the date of termination of
employment due to Disability, but not later than the date on which the ISO
would otherwise expire.
(d) Period of Exercisability for Non-ISOs. Except as otherwise provided in
an Agreement, a Non-ISO may be exercised by a Participant only during the period
during which he has maintained Continuous Service from the date of grant of the
Non-ISO, provided that such Non-ISO shall (i) expire immediately if the
Participant's Continuous Service terminates due to Just Cause, and (ii) continue
to be exercisable for one year following his termination of Continuous Service
for any reason other than death. In the event of the Participant's death, then
to the extent that the Participant would have been entitled to exercise the
Non-ISO immediately prior to his death, such
Non-ISO of the deceased Participant may be exercised within two years from the
date of his death (but not later than the date on which the Non-ISO would
otherwise expire) by the personal representatives of his estate or person or
persons to whom his rights under such Non-ISO shall have passed by will or by
laws of descent and distribution. Notwithstanding the foregoing, a Non-ISO may
not be exercised later than the date on which the Non-ISO would otherwise
(e) Effect of the Committee's Decisions. The Committee's determination
whether a Participant's Continuous Service has ceased, and the effective date
thereof, shall be final and conclusive on all persons affected thereby.
9. SARS (STOCK APPRECIATION RIGHTS)
(a) Granting of SARs. In its sole discretion, the Committee may from time
to time grant SARs to Employees either in conjunction with, or independently of,
any Options granted under the Plan. An SAR granted in conjunction with an Option
may be an alternative right wherein the exercise of the Option terminates the
SAR to the extent of the number of shares purchased upon exercise of the Option
and, correspondingly, the exercise of the SAR terminates the Option to the
extent of the number of Shares with respect to which the SAR is exercised.
Alternatively, an SAR granted in conjunction with an Option may be an additional
right wherein both the SAR and the Option may be exercised. An SAR may not be
granted in conjunction with an ISO under circumstances in which the exercise of
the SAR affects the right to exercise the ISO or vice versa, unless the SAR, by
its terms, meets all of the following requirements:
(1) The SAR will expire no later than the ISO;
(2) The SAR may be for no more than the difference between the Exercise
Price of the ISO and the Market Value of the Shares subject to the ISO
at the time the SAR is exercised;
(3) The SAR is transferable only when the ISO is transferable, and under
the same conditions;
(4) The SAR may be exercised only when the ISO may be exercised; and
(5) The SAR may be exercised only when the Market Value of the Shares
subject to the ISO exceeds the Exercise Price of the ISO.
(b) Exercise Price. The Exercise Price as to any particular SAR shall not
be less than the Market Value of the Optioned Shares on the date of grant.
(c) The provisions of Paragraphs 8(c) and 8(d) regarding the period of
exercisability of Options are incorporated by reference herein, and shall
determine the period of exercisability of SARs.
(d) Exercise of SARs. An SAR granted hereunder shall be exercisable at such
times and under such conditions as shall be permissible under the terms of the
Plan and of the Agreement granted to a Participant, provided that an SAR may not
be exercised for a fractional Share. Upon exercise of an SAR, the Participant
shall be entitled to receive, without payment to the Company except for
applicable withholding taxes, an amount equal to the excess of (or, in the
discretion of the Committee if provided in the Agreement, a portion of) the
excess of the then aggregate Market Value of the number of Optioned Shares with
respect to which the Participant exercises the SAR, over the aggregate Exercise
Price of such number of Optioned Shares. This amount shall be payable by the
Company, in the discretion of the Committee, in cash or in Shares valued at the
then Market Value thereof, or any combination thereof.
(e) Procedure for Exercising SARs. To the extent not inconsistent herewith,
the provisions of Paragraph 8(b) as to the procedure for exercising Options are
incorporated by reference, and shall determine the procedure for exercising
10. RESTRICTED STOCK AWARDS.
Any Share of Restricted Stock which the Committee may grant to Employees
and Directors shall be subject to the following terms and conditions, and to
such other terms and conditions as are either applicable generally to Awards, or
prescribed by the Committee in the applicable Agreement:
(a) Restriction Period. At the time of each award of Restricted Stock,
there shall be established for the Restricted Stock a restriction period, which
shall be no greater than 5 years (the "Restriction Period"). Such Restriction
Period may differ among Participants and may have different expiration dates
with respect to portions of shares of Restricted Stock covered by the same
(b) Vesting Restrictions. The Committee shall determine the restrictions
applicable to the award of Restricted Stock, including, but not limited to,
requirements of Continuous Service for a specified term, or the attainment of
specific corporate, divisional or individual performance standards or goals,
which restrictions may differ with respect to each Participant. The Agreement
shall provide for forfeiture of Shares covered thereby if the specified
restrictions are not met during the Restriction Period, and may provide for
early termination of any Restriction Period in the event of satisfaction of the
specified restrictions prior to expiration of the Restricted Period.
(c) Vesting upon Death, Disability, or Retirement. The Committee shall set
forth in the Agreement the percentage of the award of Restricted Stock which
shall vest in the Participant in the event of death, disability or retirement
prior to the expiration of the Restriction Period or the satisfaction of the
restrictions applicable to an award of Restricted Stock.
(d) Acceleration of Vesting. Notwithstanding the Restriction Period and the
restrictions imposed on the Restricted Stock, as set forth in any Agreement, the
Committee may shorten the Restriction Period or waive any restrictions, if the
Committee concludes that it is in the best interests of the Company to do so.
(e) Ownership; Voting. Stock certificates shall be issued in respect of
Restricted Stock awarded hereunder and shall be registered in the name of the
Participant, whereupon the Participant shall become a stockholder of the Company
with respect to such Restricted Stock and shall, to the extent not inconsistent
with express provisions of the Plan, have all the rights of a stockholder,
including but not limited to the right to receive all dividends paid on such
Shares and the right to vote such Shares. Said stock certificates shall be
deposited with the Company or its designee, together with a stock power endorsed
in blank, and the following legend shall be placed upon such certificates
reflecting that the shares represented thereby are subject to restrictions
against transfer and forfeiture:
"The transferability of this certificate and the shares of stock
represented thereby are subject to the terms and conditions (including
forfeiture) contained in the 2002 Stock Option and Incentive Plan of
Commercial Federal Corporation, and an agreement entered into between the
registered owner and Commercial Federal Corporation. Copies of such Plan
and Agreement are on file in the offices of the Secretary of Commercial
Federal Corporation, 450 Regency Parkway, Atrium West, Omaha, Nebraska
(f) Lapse of Restrictions. At the expiration of the Restricted Period
applicable to the Restricted Stock, the Company shall deliver to the
Participant, or the legal representative of the Participant's estate, or if the
personal representative of the Participant's estate shall have assigned the
estate's interest in the Restricted Stock, to the person or persons to whom his
rights under such Stock shall have passed by assignment pursuant to his will or
to the laws of descent and distribution, the stock certificates deposited with
it or its designee and as to which the Restricted Period has expired and the
requirements of the restrictions have been met. If a legend has been placed on
such certificates, the Company shall cause such certificates to be reissued
without the legend.
(g) Forfeiture of Restricted Stock. The Agreement shall provide for
forfeiture of any Restricted Stock which is not vested in the Participant or for
which the restrictions have not been satisfied during the Restriction Period.
11. CHANGE IN CONTROL
Notwithstanding the provisions of any Award which provides for its exercise
or vesting in installments, all Shares of Restricted Stock shall become fully
vested upon a Change in Control, and all Options and SARs shall be immediately
exercisable and fully vested. With respect to Options, at the time of a Change
in Control, the Participant shall, at the discretion of the Committee, be
entitled to receive cash in an amount equal to the excess of the Market Value of
the Common Stock subject to such Option over the Exercise Price of such Shares,
in exchange for the cancellation of such Options by the Participant.
12. EFFECT OF CHANGES IN COMMON STOCK SUBJECT TO THE PLAN.
(a) Recapitalizations; Stock Splits, Etc. The number and kind of shares
reserved for issuance under the Plan, and the number and kind of shares subject
to outstanding Awards, and the Exercise Price thereof, shall be proportionately
adjusted for any increase, decrease, change or exchange of Shares for a
different number or kind of shares or other securities of the Company which
results from a merger, consolidation, recapitalization, reorganization,
reclassification, stock dividend, split-up, combination of shares, or similar
event in which the number or kind of shares is changed without the receipt or
payment of consideration by the Company.
(b) Transactions in which the Company is Not the Surviving Entity. In the
event of (i) the liquidation or dissolution of the Company, (ii) a merger or
consolidation in which the Company is not the surviving entity, or (iii) the
sale or disposition of all or substantially all of the Company's assets (any of
the foregoing to be referred to herein as a "Transaction"), all outstanding
Awards, together with the Exercise Prices thereof, shall be equitably adjusted
for any change or exchange of Shares for a different number or kind of shares or
other securities which results from the Transaction.
(c) Special Rule for ISOs. Any adjustment made pursuant to subparagraphs
(a) or (b)(1) hereof shall be made in such a manner as not to constitute a
modification, within the meaning of Section 424(h) of the Code, of outstanding
(d) Conditions and Restrictions on New, Additional, or Different Shares or
Securities. If, by reason of any adjustment made pursuant to this Paragraph, a
Participant becomes entitled to new, additional, or different shares of stock or
securities, such new, additional, or different shares of stock or securities
shall thereupon be subject to all of the conditions and restrictions which were
applicable to the Shares pursuant to the Award before the adjustment was made.
(e) Other Issuances. Except as expressly provided in this Paragraph, the
issuance by the Company or an Affiliate of shares of stock of any class, or of
securities convertible into Shares or stock of another class, for cash or
property or for labor or services either upon direct sale or upon the exercise
of rights or warrants to subscribe therefor, shall not affect, and no adjustment
shall be made with respect to, the number, class, or Exercise Price of Shares
then subject to Awards or reserved for issuance under the Plan.
13. NON-TRANSFERABILITY OF AWARDS.
Awards may not be sold, pledged, assigned, hypothecated, transferred or
disposed of in any manner other than by will or by the laws of descent and
distribution. Notwithstanding any other provision of this Plan to the contrary,
to the extent permissible under Rule 16b-3, a Participant who is granted
Non-ISOs pursuant to this Plan may transfer such Non-ISOs to his or her spouse,
lineal ascendants, lineal descendants, or to a duly established trust, provided
that Non-ISOs so transferred may not again be transferred other than to the
Participant originally receiving the grant of Non-ISOs or to an individual or
trust to whom such Participant could have transferred Non-ISOs pursuant to this
Paragraph 13. Non-ISOs which are transferred pursuant to this Paragraph 13 shall
be exercisable by the transferee subject to the same terms and conditions as
would have applied to such Non-ISOs in the hands of the Participant originally
receiving the grant of such Non-ISOs.
14. TIME OF GRANTING AWARDS.
The date of grant of an Award shall, for all purposes, be the later of the
date on which the Committee makes the determination of granting such Award, and
the Effective Date. Notice of the determination shall be given to each
Participant to whom an Award is so granted within a reasonable time after the
date of such grant.
15. EFFECTIVE DATE.
The Plan shall become effective immediately upon its approval by a
favorable vote of stockholders owning at least a majority of the total votes
cast at a duly called meeting of the Company's stockholders held in accordance
with applicable laws. No Awards may be made prior to approval of the Plan by the
stockholders of the Company.
16. MODIFICATION OF AWARDS.
At any time, and from time to time, the Board may authorize the Committee
to direct execution of an instrument providing for the modification of any
outstanding Award, provided no such modification shall confer on the holder of
said Award any right or benefit which could not be conferred on him by the grant
of a new Award at such time, or impair the Award without the consent of the
holder of the Award. In no event, however, may the Committee or the Board
reprice any outstanding Option.
17. AMENDMENT AND TERMINATION OF THE PLAN.
The Board may from time to time amend the terms of the Plan and, with
respect to any Shares at the time not subject to Awards, suspend or terminate
the Plan. No amendment, suspension or termination of the Plan shall, without the
consent of any affected holders of an Award, alter or impair any rights or
obligations under any Award theretofore granted.
18. CONDITIONS UPON ISSUANCE OF SHARES.
(a) Compliance with Securities Laws. Shares of Common Stock shall not be
issued with respect to any Award unless the issuance and delivery of such Shares
shall comply with all relevant provisions of law, including, without limitation,
the Securities Act of 1933, as amended, the rules and regulations promulgated
thereunder, any applicable state securities law, and the requirements of any
stock exchange upon which the Shares may then be listed.
(b) Special Circumstances. The inability of the Company to obtain approval
from any regulatory body or authority deemed by the Company's counsel to be
necessary to the lawful issuance and sale of any Shares hereunder shall relieve
the Company of any liability in respect of the non-issuance or sale of such
Shares. As a condition to the exercise of an Option or SAR, the Company may
require the person exercising the Option or SAR to make such representations and
warranties as may be necessary to assure the availability of an exemption from
the registration requirements of federal or state securities law.
(c) Committee Discretion. The Committee shall have the discretionary
authority to impose in Agreements such restrictions on Shares as it may deem
appropriate or desirable, including but not limited to the authority to impose a
right of first refusal or to establish repurchase rights or both of these
19. RESERVATION OF SHARES.
The Company, during the term of the Plan, will reserve and keep available a
number of Shares sufficient to satisfy the requirements of the Plan.
20. WITHHOLDING TAX.
The Company's obligation to deliver Shares upon exercise of Options and/or
SARs or upon the vesting of Restricted Stock shall be subject to the
Participant's satisfaction of all applicable federal, state and local income and
employment tax withholding obligations. The Committee, in its discretion, may
permit the Participant to satisfy the obligation, in whole or in part, by
irrevocably electing to have the Company withhold Shares, or to deliver to the
Company Shares that he already owns, having a value equal to the amount required
to be withheld. The amount of the withholding requirement shall be the
applicable statutory minimum federal, state or local income tax with respect to
the Award on the date that the amount of tax is to be withheld. The value of the
Shares to be withheld, or delivered to the Company, shall be based on the Market
Value of the Shares on the date the amount of tax to be withheld is to be
determined. As an alternative, the Company may retain, or sell without notice, a
number of such Shares sufficient to cover the amount required to be withheld.
21. NO EMPLOYMENT OR OTHER RIGHTS.
In no event shall an Employee's or Director's eligibility to participate or
participation in the Plan create or be deemed to create any legal or equitable
right of the Employee, Director, or any other party to continue service with the
Company, the Bank, or any Affiliate of such corporations. No Employee or
Director shall have a right to be granted an Award or, having received an Award,
the right to again be granted an Award. However, an Employee or Director who has
been granted an Award may, if otherwise eligible, be granted an additional Award
22. GOVERNING LAW.
The Plan shall be governed by and construed in accordance with the laws of
the State of Nebraska, except to the extent that federal law shall be deemed to