HERITAGE
Exhibit 10.16
HERITAGE
Heritage Bankshares, Inc. hereby establishes the Heritage 2006 Equity Incentive Plan upon the terms and conditions set forth below.
1. Definitions
In this Plan document, except where the context otherwise indicates, words in the masculine gender shall be deemed to include males and females, singular terms also shall refer to the plural, and the following definitions shall apply:
1.1. “Agreement” means a written agreement specifying the terms and conditions of an Award.
1.2. “Award” means any Option, Right, Restricted Stock or Other Stock Award granted under the Plan.
1.3. “Board” means the Board of Directors of the Corporation.
1.4. “Change in Control” means the occurrence of any of the following: (i) the acquisition by any “person” or “group” (as defined in or pursuant to Sections 13(d) and 14(d) of the Exchange Act) (other than the Corporation, any Subsidiary or any Corporation or Subsidiary’s employee benefit plan), directly or indirectly, as “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of securities of the Corporation representing twenty percent (20%) or more of either the then outstanding shares or the combined voting power of the then outstanding securities of the Corporation but excluding for this purpose, a merger or consolidation that is excluded from clause (iii)(a) immediately below; (ii) either a majority of the directors of the Corporation elected at the Corporation’s annual stockholders meeting shall have been nominated for election other than by or at the direction of the “incumbent directors” of the Corporation, or the “incumbent directors” shall cease to constitute a majority of the directors of the Corporation. The term “incumbent director” shall mean any director who was a director of the Corporation on July 26, 2006 and any individual who becomes a director of the Corporation subsequent to July 26, 2006 and who is elected or nominated by or at the direction of at least two-thirds of the then incumbent directors; (iii) the shareholders of the Corporation approve (a) a merger, consolidation or other business combination of the Corporation with any other “person” or “group” (as defined in or pursuant to Sections 13(d) and 14(d) of the 1934 Act) or affiliate thereof, other than a merger or consolidation that would result in the outstanding common stock of the Corporation immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into common stock of the surviving entity or a parent or affiliate thereof) more than fifty percent (50%) of the outstanding common stock of the Corporation or such surviving entity or a parent or affiliate thereof outstanding immediately after such merger, consolidation or other business combination, or (b) a plan of complete liquidation of the Corporation or an agreement for the sale or disposition by the
Corporation of all or substantially all of the Corporation’s assets; or (iv) any other event or circumstance which is not covered by the foregoing subsections of this Section 1.4 but which the Board of Directors determines to affect control of the Corporation and with respect to which the Board of Directors adopts a resolution that the event or circumstance constitutes a Change in Control for purposes of the Plan. This definition of “Change in Control” shall not be amended after (i) the occurrence of a Change in Control; (ii) the public announcement of a proposal for a transaction that, if consummated, would constitute a Change in Control; or (iii) the Board of Directors learns of a specific proposal containing the essential terms of a transaction that, if consummated, would constitute a Change in Control; provided, however, that in the case of a proposal under clause (ii) or clause (iii) immediately above, if the proposal is finally withdrawn or terminated, this definition may be amended after the withdrawal or termination. For purposes of the Plan and all related Agreements, if the employment of any Participant is terminated by the Corporation and/or any Subsidiary (other than for cause) after an event causing the definition of “Change in Control” to become nonamendable under the preceding subsections of this Section 1.4, that Participant’s termination of employment shall be considered to have occurred after a Change in Control if a Change in Control occurs with respect to and within two (2) years after the event causing the definition of “Change in Control” to become nonamendable.
1.5. “Code” means the Internal Revenue Code of 1986, as amended.
1.6. “Common Stock” means the common stock, par value $5.00 per share, of the Corporation.
1.7. “Corporation” means Heritage Bankshares, Inc.
1.8. “Date of Exercise” means the date on which the Corporation receives notice of the exercise of an Option or Right in accordance with the terms of Article 8.
1.9. “Date of Grant” means the date on which the grant of an Award is authorized under the Plan or such later date as may be specified in the authorization.
1.10. “Effective Date” means July 26, 2006.
1.11. “Exchange Act” means the Securities Exchange Act of 1934, as amended.
1.12. “Fair Market Value” of a share of Common Stock on any relevant date means: (i) the weighted average (based on daily trading volume) during the thirty (30) day period next preceding the Grant Date of the “last sale” prices of a share of Common Stock on the five (5) days nearest preceding the Date of Grant on which at least 300 shares were traded; and (ii) if (i) is inapplicable, the fair market value as determined in good faith by the Board. For purposes of this definition, “last sale” prices and trading volume shall be determined according to the OTC Market Report as reported for the applicable dates.
1.13. “Incentive Stock Option” means an Option granted as such under the Plan that is intended at the Date of Grant to qualify as an incentive stock option under Section 422 of the Code.
1.14. “Nonstatutory Stock Option” means an Option granted under the Plan that is not an Incentive Stock Option.
1.15. “Option” means an option to purchase Shares granted under the Plan in accordance with the terms of Article 6.
1.16. “Option Period” means the period during which an Option may be exercised.
1.17. “Option Price” means the price per Share at which an Option may be exercised.
1.18. “Other Stock Award” means an award of Shares granted under the Plan in accordance with the terms of Article 10.
1.19. “Participant” means an individual to whom an Award has been granted.
1.20. “Permanent Disability” means disabled within the meaning of Code Section 72(m)(7).
1.21. “Plan” means the Heritage 2006 Equity Incentive Plan.
1.22. “Related Option” means the Option granted in connection with a specified Right.
1.23. “Related Right” means the Right granted in connection with a specified Option.
1.24. “Restricted Stock” means Shares granted in accordance with the terms of Article 9.
1.25. “Retirement” means retirement of an officer or other employee from the Corporation or a Subsidiary at or after age 65, or in the case of a non-employee director, retirement from the Board at or after age 65.
1.26. “Right” means a stock appreciation right granted under the plan in accordance with the terms of Article 7.
1.27. “Right Period” means the period during which a Right may be exercised.
1.28. “Share” means a share of Common Stock that is authorized but unissued pursuant to the Plan.
1.29. “Subsidiary” means a corporation at least 50% of the total combined voting power of all classes of stock of which is owned by the Corporation, either directly or through one or more other Subsidiaries.
1.30. “Termination of Service” means termination of an officer’s or other employee’s employment with the Corporation or a Subsidiary, or in the case of a non-employee director, termination from service as a director on the Board.
2. Purpose
The Plan is intended to assist the Corporation in attracting, retaining, and motivating directors, officers, and other key employees of outstanding ability and to promote the identification of their interests with those of the shareholders of the Corporation.
3. Administration
3.1. The Board shall have the power to determine in its discretion the directors, officers, and other key employees of the Corporation or a Subsidiary to whom Awards shall be granted, the number of Shares to be subject to each Award, and the terms and conditions of each Award. Without limiting the generality of the foregoing, the Board may provide in its discretion in an Agreement:
(i) that Options or Rights will not become exercisable until a Change in Control or other specified event(s) with respect to the Corporation or the Participant;
(ii) for an agreement by the Participant to render services to the Corporation or a Subsidiary upon such terms and conditions as may be specified in the Agreement;
(iii) for restrictions on the transfer, sale or other disposition of shares of Common Stock issued to the Participant under the Plan, in which case, the Corporation may place a legend upon the applicable certificates noting the restrictions on any Shares issued pursuant to an Award.
(iv) for an agreement by the Participant to resell to the Corporation, under specified conditions, shares of Common Stock issued under the Plan; and
(v) for the payment of all or part of the Option Price upon the exercise of an Option or purchase of Common Stock pursuant to an Other Stock Award, subject to Section 9 or Section 10 below, as applicable.
3.2. The Plan shall be administered by the Board. In addition to any other powers granted to the Board hereunder, it shall have the following powers, subject to the express provisions of the Plan:
(i) to construe and interpret the Agreements and the Plan;
(ii) to require, whether or not provided for in the pertinent Agreement, of any person to whom Shares are to be issued under the Plan, the making of any representations or agreements which the Board may deem necessary or advisable in order to comply with the securities laws of the United States or of any state, including Section 16(b) of the Exchange Act;
(iii) to provide for satisfaction of a Participant’s tax liabilities arising in connection with the Plan under such terms and conditions as the Board deems appropriate, including requirements in the event of a disqualifying disposition of shares of Common Stock acquired by a Participant pursuant to exercise of an Incentive Stock Option; and
(iv) to make all other determinations and take all other actions necessary or advisable for the administration of the Plan.
3.3. Agreements shall be executed on behalf of the Corporation by the Chairman of the Board.
3.4. Any determinations or actions made or taken by the Board pursuant to this Article shall be binding and final.
4. Eligibility
Awards may be granted to those directors, officers, and other key employees of the Corporation or a Subsidiary who are selected for Awards by the Board. Only individuals who are employees of the Corporation or a Subsidiary shall be eligible for the grant of Incentive Stock Options.
5. Stock Subject to the Plan
5.1. The maximum number of Shares that may be issued under the Plan is 250,000.
5.2. If an Award expires or terminates for any reason (other than termination by virtue of the exercise of a Related Option or Related Right, as the case may be) in whole or in part, the shares of Common Stock (or applicable portion thereof) which had been subject to the Agreement relating thereto shall become Shares that are available for the grant of other Awards.
5.3. Shares of Common Stock issued upon the exercise of a Right (or if cash is payable in connection with the exercise, that number of Shares having a Fair Market Value equal to the cash payable upon exercise) shall be charged against the number of Shares
issuable under the Plan and shall not become available for the grant of other Awards. If the Right referred to in the preceding sentence is a Related Right, the Shares subject to the Related Option, to the extent not charged against the number of Shares subject to the Plan in accordance with this Section 5.3, shall become available for the grant of other Awards.
5.4. The shares of Common Stock issued under the Plan may be authorized but unissued shares, treasury shares or shares purchased by the Corporation on the open market or from private sources for use under the Plan.
6. Options
6.1. All Agreements granting Options shall specify the extent to which the Option is intended to be either (i) a Nonstatutory Stock Option or (ii) an Incentive Stock Option.
6.2. The Option Period shall be determined by the Board and specifically set forth in the Agreement, provided however, that an Option shall not be exercisable after ten years from the Date of Grant.
6.3. All Incentive Stock Options granted under the Plan shall comply with the provisions of the Code governing incentive stock options and with all other applicable rules and regulations, including the following limitation. To the extent that the aggregate Fair Market Value (determined without regard to this limitation as of the time the respective options are granted) of Common Stock with respect to which Incentive Stock Options and any other incentive stock options (within the meaning of Section 422 of the Code) are exercisable for the first time by the Optionee during any calendar year (under the Plan and any other incentive stock option plans of the Corporation or any Subsidiary), shall exceed One Hundred Thousand Dollars ($100,000), the options shall be treated as options which are not incentive stock options. This limitation shall be applied by taking options into account in the order in which they were granted. If, as a result of this limitation, an Option is to be treated in part as an Incentive Stock Option and in part as a Nonstatutory Stock Option, (i) the Corporation shall first designate shares of Common Stock that are issued pursuant to the exercise of the Option as shares acquired pursuant to the exercise of Incentive Stock Options, until the shares so designated represent the entire portion of the Option that may be treated as an Incentive Stock Option; (ii) the Corporation shall then designate all additional shares of Common Stock that are issued pursuant to the exercise of the Option as shares acquired pursuant to the exercise of Nonstatutory Stock Options; and (iii) the Corporation shall issue separate certificates for and identify the certificates as Incentive Stock Option shares or Nonstatutory Stock Option shares, as applicable, in the stock transfer records of the Corporation.
6.4. No Option shall be granted with an Option Price that is less than the Fair Market Value of the Shares covered by the Option on the Date of Grant.
6.5. Tax obligations of a Participant resulting from the exercise of an Option shall be withheld or provided for pursuant to any methods approved by the Board. The amount of taxes paid pursuant to this Section at the time of the exercise of the Option shall be equal to the statutory minimum withholding obligations that result from the exercise of the Option.
6.6. All other terms of Options granted under the Plan shall be determined by the Board in its sole discretion.
7. Rights
7.1. A Right may be granted under the Plan:
(i) in connection with, and at the same time as, the grant of an Option;
(ii) by amendment of an outstanding Nonstatutory Stock Option granted under the Plan; or
(iii) independently of any Option granted under the Plan.
A Right granted under clause (i) or (ii) of the preceding sentence is a Related Right. A Related Right may, in the Board’s discretion, apply to all or a portion of the Shares subject to the Related Option.
7.2. A Right may be exercised in whole or in part as provided in the Agreement, and subject to the provisions of the Agreement, entitles its Participant to receive, without any payment to the Corporation (other than required tax withholding amounts) either cash or that number of Shares (equal to the highest whole number of Shares), or a combination thereof, in an amount or having a Fair Market Value determined as of the Date of Exercise not to exceed the number of Shares subject to the portion of the Right exercised multiplied by an amount equal to the excess of (i) the Fair Market Value per Share on the Date of Exercise of the Right over (ii) either (A) the Fair Market Value per Share on the Date of Grant of the Right if it is not a Related Right, or (B) the Option Price as provided in the Related Option if the Right is a Related Right.
7.3. The Right Period shall be determined by the Board and specifically set forth in the Agreement, provided, however, that:
(i) a Right will expire no later than the earlier of (A) ten years from the Date of Grant or (B) in the case of a Related Right, the expiration of the Related Option;
(ii) a Right may be exercised only when the Fair Market Value of a Share exceeds either (A) the Fair Market Value per Share on the Date of Grant of the Right if it is not a Related Right, or (B) the Option Price as provided in the Related Option if the Right is a Related Right; and
(iii) a Right that is a Related Right to an Incentive Stock Option may be exercised only when and to the extent the Related Option is exercisable.
7.4. The exercise, in whole or in part, of a Related Right shall reduce the number of Shares subject to the Related Option by the number of Shares with respect to which the Related Right is exercised. Similarly, the exercise, in whole or in part, of a Related Option shall reduce the number of Shares subject to the Related Right by the number of Shares with respect to which the Related Option is exercised.
7.5. Tax obligations of a Participant resulting from the exercise of a Right shall be withheld or provided for pursuant to any methods approved by the Board. The amount of taxes paid pursuant to this Section at the time of the exercise of the Option shall be equal to the statutory minimum withholding obligations that result from the exercise of the Option.
8. Exercise
An Option or Right may, subject to the provisions of the Agreement under which it was granted, be exercised in whole or in part by the delivery to the Corporation of written notice of the exercise, in such form as the Board may prescribe, accompanied, in the case of an Option, by full payment for the Shares with respect to which the Option is exercised. A Participant may pay the purchase price either (i) in cash; (ii) with previously acquired shares of Common Stock (valued at Fair Market Value on the Date of Exercise of the Option) that have either been purchased in open market transactions or issued by the Corporation pursuant to a plan thereof or of a Subsidiary; (iii) by payment of such other consideration as the Board may specify; or (iv) a combination thereof. Notwithstanding the foregoing, an Option or Right shall not be exercised unless the exercise and the issuance of the Shares with respect thereto comply with all applicable provisions of law, including state and federal securities laws and rules and regulations thereunder, and any listing agreement with any securities exchange on which the Shares may be listed.
9. Restricted Stock
9.1. The Board may cause the Corporation to issue Restricted Stock from time to time. Whenever the Board deems it appropriate to grant Restricted Stock to a Participant, notice shall be given to the Participant stating the number of Shares granted as Restricted Stock and the terms and conditions to which the Restricted Stock is subject. That notice shall become an Agreement upon written acceptance by the Participant, and certificates representing the Restricted Stock shall be issued and delivered to the Participant as soon as practicable after execution and return of the Agreement. Restricted Stock may be granted with or without cash consideration.
9.2. Restricted Stock issued pursuant to the Plan shall be subject to the following restrictions:
(i) No Restricted Stock may be sold, assigned, transferred, pledged, hypothecated, or otherwise encumbered or disposed of until the restrictions set forth in the applicable Agreement have lapsed or been removed pursuant to Section 9.3 or Section 9.4.
(ii) In the case of a Participant’s Termination of Service for any reason (whether voluntarily or involuntarily, with or without cause), the Participant shall forfeit to the Corporation any Restricted Stock on which the restrictions have not lapsed or been removed pursuant to Section 9.3 or Section 9.4 below on the date of the Termination of Service, and the Corporation shall have no obligation to pay any amounts with respect to such Restricted Stock, unless the Board determines to the contrary.
9.3. The Board shall establish as to each Award of Restricted Stock (i) the terms and conditions upon which the restrictions set forth in Section 9.2 above shall lapse, and (ii) the extent, if any, to which the Participant shall have the voting, dividend, distribution and other rights of a shareholder with respect to the Restricted Stock. Certificates representing Restricted Stock shall bear a legend referring to the restrictions set forth in the Plan and the Participant’s Agreement. Those terms and conditions may include, without limitation, the lapsing of restrictions as a result of the death, Permanent Disability or Retirement of the Participant or the occurrence of a Change in Control.
9.4. Notwithstanding Section 9.2(i) and Section 9.2(ii) above, the Board may at any time, in its sole discretion, accelerate the time at which any or all restrictions on Restricted Stock will lapse or remove any and all such restrictions.
9.5. Tax obligations of a Participant resulting from the Participant’s earning Restricted Stock hereunder shall be withheld or provided for pursuant to any methods approved by the Board and set forth in the Agreement. The amount of taxes so paid shall be equal to the statutory minimum withholding obligations that result when the Restricted Stock is earned.
10. Other Stock Awards
The Board may cause the Corporation to issue Common Stock from time to time pursuant to an Other Stock Award in exchange for consideration from the Participant specified by the Board that is either the Participant’s cash or other direct payment to the Corporation or the Participant’s past services rendered to the Corporation or a Subsidiary on or before the date of issuance. Whenever the Board deems it appropriate to grant an Other Stock Award to a Participant, notice shall be given to the Participant stating the number of Shares to be issued pursuant to the Other Stock Award and the other terms and conditions of the Other Stock Award. That notice shall become an Agreement upon written acceptance by the Participant. Tax obligations of a Participant resulting from the Participant’s Other Stock Award shall be withheld or provided for pursuant to any methods approved by the Board and set forth in the Agreement. The amount of taxes so paid shall be equal to the applicable statutory minimum withholding obligations that result when the Common Stock is earned.
11. Nontransferability of Options and Rights
Unless otherwise determined by the Board, Options and Rights granted under the Plan shall not be transferable other than by will or the laws of descent and distribution, and an Option or Right may be exercised during the Participant’s lifetime only by him or in the event of his legal disability, by his legal representative. A Related Right is transferable only when the Related Option is transferable and only with the Related Option and under the same conditions.
12. Capital Adjustments
The number and class of Shares subject to each outstanding Award, the Option Price and the aggregate number and class of Shares for which Awards thereafter may be made shall be adjusted by the Board, as appropriate and equitable, to reflect such events as stock dividends, dividends payable other than in cash or other extraordinary dividends, stock splits, recapitalizations, mergers, consolidations or reorganizations of or by the Corporation.
13. Termination or Amendment
The Board shall have the power to terminate the Plan and to amend it in any respect, provided that, after the Plan has been approved by the shareholders of the Corporation, the Board may not, without the approval of the shareholders of the Corporation, amend the Plan so as to increase the aggregate number of Shares that may be issued under the Plan (except as provided in Article 12), to modify the requirements as to eligibility to receive Awards, or to increase materially the benefits accruing to Participants. Notwithstanding the preceding sentence, no termination or amendment of the Plan shall, without his or her consent, adversely affect the rights or obligations of a Participant with respect to any Award previously granted except as reasonably required for compliance with Rule 16b-3 under the Exchange Act or with the provisions of the Code and other applicable rules and regulations thereunder governing incentive stock options.
14. Modification, Extension and Renewal of Options and Rights
Subject to the terms and conditions and within the limitations of the Plan, the Board may modify, extend or renew outstanding Awards, or accept the surrender of outstanding options and rights (to the extent not theretofore exercised) granted under the Plan or under any other plan of the Corporation, a Subsidiary or a company or similar entity acquired by the Corporation or a Subsidiary, and authorize the granting of new Awards pursuant to the Plan in substitution therefor (to the extent not theretofore exercised), and the substituted Options and Rights may specify a lower exercise price than the surrendered options and rights, a longer term than the surrendered options and rights or have any other provisions that are authorized by the Plan. Notwithstanding the foregoing, however, no modification of an Award previously granted under the Plan shall, without the consent of the Participant, adversely affect the rights or obligations of the Participant except as reasonably required for compliance with Rule 16b-3 under the Exchange Act or with
the provisions of the Code and other applicable rules and regulations thereunder governing incentive stock options.
15. Term of the Plan
Unless sooner terminated by the Board pursuant to Article 13, the Plan shall terminate on the date ten years after its adoption by the Board, and no Awards may be granted or awarded after termination. The termination shall not affect the validity of any Award outstanding on the date of termination.
16. Indemnification of Board
In addition to any other indemnification rights they may have as directors, the members of the Board shall be indemnified by the Corporation against the reasonable expenses, including attorneys’ fees, actually incurred in connection with the defense of any action, suit or proceeding, or in connection with any appeal therein, to which they or any of them may be a party by reason of any action taken or failure to act under or in connection with the Plan or any Award granted hereunder, and against all amounts reasonably paid by them in settlement thereof or paid by them in satisfaction of a judgment in any such action, suit or proceeding, if such members acted in good faith and in a manner which they believed to be in, and not opposed to, the best interests of the Corporation.
17. General Provisions
17.1. The establishment of the Plan shall not confer upon any director, officer, or other employee of the Corporation any legal or equitable right against the Corporation, any Subsidiary or the Board, except as expressly provided in the Plan.
17.2. The Plan does not constitute inducement or consideration for the employment of any officer or other employee of the Corporation, nor is it a contract between the Corporation or any Subsidiary and any director, officer, or other employee of the Corporation. Participation in the Plan shall not give a director, officer, or other employee of the Corporation any right to be retained in the service of the Corporation or any Subsidiary.
17.3. The interests under the Plan of any Participant under the Plan are not subject to the claims of creditors and may not, in any way, be assigned, alienated or encumbered.
17.4. The Plan shall be governed, construed and administered in accordance with the laws of the Commonwealth of Virginia and the intention of the Corporation that Incentive Stock Options granted under the Plan qualify under Section 422 of the Code.
IN TESTIMONY WHEREOF, Heritage Bankshares, Inc. has caused this Plan to be executed in its name by its duly authorized officer effective the 26th day of July, 2006.
| HERITAGE BANKSHARES, INC. | ||
| By: | /s/ Xxxxx X. Xxxxxxxx, Xx. | |
| Its: | Chairman of the Board | |
