ILLINOIS 36-3873352
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
727 NORTH BANK LANE
LAKE FOREST, ILLINOIS 60045
(Address, including zip code of
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registrant's principal executive office)
WINTRUST FINANCIAL CORPORATION
1997 STOCK INCENTIVE PLAN
AND
VILLAGE BANCORP, INC.
1998 OMNIBUS STOCK INCENTIVE PLAN
(Full title of the plans)
DAVID A. DYKSTRA
SENIOR EXECUTIVE VICE PRESIDENT
AND CHIEF OPERATING OFFICER
WINTRUST FINANCIAL CORPORATION
727 NORTH BANK LANE
LAKE FOREST, ILLINOIS 60045
(847) 615-4096
(Name, address and telephone number,
including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
====================================================================================================================================
TITLE OF SECURITIES AMOUNT TO PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TO BE REGISTERED BE REGISTERED OFFERING PRICE PER SHARE AGGREGATE OFFERING PRICE REGISTRATION FEE
------------------------------------------------------------------------------------------------------------------------------------
Common Stock, par value $0.01 1,200,000 $50.16(3) $60,192,000 $7,627(3)(4)
per share*(1)(2)
Common Stock, par value $0.01 46,331 $35.05(6) $ 1,623,902 $ 206(6)
per share*(1)(5)
====================================================================================================================================
* Including the preferred share purchase rights associated therewith.
(1) Together with an indeterminate number of additional shares which may be
necessary to adjust the number of shares offered pursuant to the plan
as a result of a stock split, stock dividend or similar adjustment of
the outstanding Common Stock pursuant to Rule 416(a).
(2) Reflects shares that may be issued pursuant to the Wintrust Financial
Corporation 1997 Stock Incentive Plan.
(3) Pursuant to Rule 457(h)(1) under the Securities Act of 1933, as
amended, the proposed maximum offering price per share and the
registration fee have been estimated based on the average of the high
and low sales prices for the Common Stock on the Nasdaq National Market
of $50.50 and $49.81 on June 29, 2004.
(4) An aggregate of 2,990,559 shares (as adjusted to reflect all
stock splits and dividends to date) are being carried forward from
those shares previously registered by Registration Statements on Form
S-8 (File Nos. 333-33459, 333-52650 and 333-96983). Registration fees
of $7,497, $1,765 and $2,546, respectively, were paid with respect to
the shares registered in those filings. The previously registered
shares being carried forward, together with the shares being registered
hereby, represent the total number of shares reserved for issuance
under the Wintrust Financial Corporation 1997 Stock Incentive Plan.
(5) Reflects shares that may be issued pursuant to the Village Bancorp,
Inc. 1998 Omnibus Stock Incentive Plan.
(6) Pursuant to Rule 457(h)(1) under the Securities Act of 1933, as
amended, the proposed maximum offering price per share and the
registration fee have been estimated based on the weighted average
exercise price of $35.05 for 46,331 shares covered by options
outstanding under the plan as of June 29, 2004.
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Pursuant to Rule 429 under the Securities Act of 1933, as amended, the document containing the information required by Part I of this Registration Statement on Form S-8 also relates to the Registrant's shares of Common Stock previously registered on Registration Statements on Form S-8 (File Nos. 333-33459, 333-52650 and 333-96983).
INTRODUCTORY STATEMENT NOT FORMING PART OF THE PROSPECTUS
On May 27, 2004, the shareholders of Wintrust Financial Corporation, an Illinois corporation ("Wintrust" or the "Registrant"), approved an amendment to the Wintrust Financial Corporation 1997 Stock Incentive Plan, as amended (the "Wintrust Plan"), increasing the number of shares of Common Stock authorized for issuance under the Wintrust Plan by 1,200,000 shares. This Registration Statement registers those additional 1,200,000 shares of Common Stock reserved for issuance and delivery under the Wintrust Plan. Pursuant to the Form S-8 Registration Statements filed by the Registrant on August 12, 1997, December 22, 2000 and January 23, 2002, the Registrant has previously registered an aggregate of 4,481,038 shares of Common Stock (as adjusted to reflect all stock splits and dividends to date) of which 2,990,559 shares currently remain available for issuance. The contents of those Form S-8 Registration Statements (File Nos. 333-33459, 333-52650 and 333-96983) are incorporated by reference herein pursuant to General Instruction E of Form S-8.
This Registration Statement also registers 46,331 shares of Common Stock which may be issued upon exercise of outstanding stock options previously granted by Village Bancorp, Inc., a Delaware corporation ("Village"), under the Village Bancorp, Inc. 1998 Omnibus Stock Incentive Plan (the "Village Plan"). Effective December 5, 2003, Wintrust acquired Village through a merger (the "Merger") of Village with and into WTFC Merger Co., an Illinois corporation and wholly-owned subsidiary of Wintrust. In connection with the Merger, each outstanding share of Village common stock was converted into the right to receive 0.214 shares of Wintrust common stock. At the effective time of the Merger, previously granted options to purchase Village common stock then outstanding under the Village Plan, became exercisable for shares of Wintrust common stock in accordance with the terms of the Merger and the Village Plan. Each outstanding and unexercised stock option to purchase shares of Village common stock is deemed to constitute an option to acquire, on the same terms and conditions as were applicable under the original option prior to the Merger, the number of shares of Wintrust common stock equal to the product, rounded down to the nearest whole share, of the number of shares of Village common stock subject to the original option and 0.214, at a price per share equal to the exercise price per share of the Village common stock under the original option divided by 0.214, rounded up, if necessary, to the nearest cent.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing information required by this section, which relate to the shares of Common Stock being registered and remaining available for issuance under the Wintrust Financial Corporation 1997 Stock Incentive Plan that were previously registered under the above-referenced Registration Statements as well as the shares of Common Stock issuable pursuant to the exercise of outstanding stock options previously granted by Village Bancorp, Inc. under the Village Bancorp, Inc. 1998 Omnibus Stock Incentive Plan, will be given to those persons who participate in the Wintrust Financial Corporation 1997 Stock Incentive Plan, as amended, all of whom are employees of the Registrant or its subsidiaries, and to those persons who are currently holding options granted under the Village Bancorp, Inc. 1998 Omnibus Stock Incentive Plan, all of whom were employees or directors of Village or its affiliates immediately prior to the Merger. Such documents are not required to be filed with the Commission as a part of this Registration Statement or as Exhibits.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange Commission (the "SEC") by Wintrust Financial Corporation, an Illinois corporation ("Registrant"), are incorporated in this Registration Statement by reference:
o Annual Report on Form 10-K for the year ended December 31, 2003 (File No. 0-21923);
o Proxy statement in connection with the Registrant's 2004 annual meeting of shareholders filed with the SEC on April 23, 2004;
o Quarterly Report on Form 10-Q for the three months ended March 31, 2004 (File No. 0-21923);
o Current Report on Form 8-K filed with the SEC on January 21, 2004 (File No. 0-21923);
o Current Report on Form 8-K filed with the SEC on April 20, 2004 (File No. 0-21923);
o Current Report on Form 8-K filed with the SEC on May 11, 2004 (File No. 0-21923); and
o the description of (a) the Registrant's common stock contained in its Registration Statement on Form 8-A dated January 3, 1997 (File No. 0-21923), and (b) the associated preferred share purchase rights contained in the Registrant's Registration Statement on Form 8-A dated August 28, 1998 (File No. 0-21923).
All documents filed by Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended, prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold are incorporated by reference in this Registration Statement and are a part hereof from the date of filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
In accordance with the Illinois Business Corporation Act (being Chapter 805, Act 5 of the Illinois Compiled Statutes), Articles Eight and Nine of the Registrant's Articles of Incorporation provide as follows:
ARTICLE EIGHT: No director of the corporation shall be liable to the corporation or its shareholders for monetary damages for breach of fiduciary duty as a director except for liability (a) for any breach of the director's duty of loyalty to the corporation or its shareholders, (b) for acts or omissions not in good faith or that involve intentional misconduct of a knowing violation of law, (c) under Section 8.65 of the BCA, as the same exists or hereafter may be amended, or (d) for any transaction from which the director derived an improper personal benefit.
ARTICLE NINE, PARAGRAPH 1: The corporation shall indemnify, to the full extent that it shall have power under applicable law to do so and in a manner permitted by such law, any person made or threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he or she is or was a director, officer, employee or agent of the corporation, or who is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against liabilities and expenses reasonably incurred or paid by such person in connection with such action, suit or proceeding. The corporation may indemnify, to the full extent that it shall have power under applicable law to do so and in a manner permitted by such law, any person made or threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he or she is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against liabilities and expenses reasonably incurred or paid by such person in connection with such action, suit or proceeding. The words "liabilities" and "expenses" shall include, without limitation: liabilities, losses, damages, judgments, fines, penalties, amounts paid in settlement, expenses, attorneys' fees and costs. Expenses incurred in defending a civil, criminal, administrative, investigative or other action, suit or proceeding may be paid by the corporation in advance of the final disposition of such action, suit or proceeding in accordance with the provisions of Section 8.75 of the BCA.
The indemnification and advancement of expenses provided by this Article shall not be deemed exclusive of any other rights to which any person indemnified may be entitled under any statute, by-law, agreement, vote of shareholders, or disinterested directors or otherwise, both as to action in his official capacity and as to action in any other capacity while holding such office, and shall continue as to a person who has ceased to be such director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such person.
PARAGRAPH 2: The corporation may purchase and maintain insurance on behalf of any person referred to in the preceding paragraph against any liability asserted against him or her and incurred by him or her in any such capacity, or arising out of his or her status as such, whether or not the corporation would have the power to indemnify him or her against such liability under the provisions of this Article or otherwise.
PARAGRAPH 3: For purposes of this Article, references to "the corporation" shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, employees or agents, so that any person who is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under the provisions of this Article with respect to the resulting or surviving corporation as he or she would have with respect to such constituent corporation if its separate existence had continued.
PARAGRAPH 4: The provisions of this Article shall be deemed to be a contract between the corporation and each director or officer who serves in any such capacity at any time while this Article and the relevant provisions of the BCA, or other applicable law, if any, are in effect, and any repeal or modification of any such law or of this Article shall not affect any rights or obligations then existing with respect to any state of facts then or theretofore existing or any action, suit or proceeding theretofore or thereafter brought or threatened based in whole or in part upon any such state of facts.
PARAGRAPH 5: For purposes of this Article, references to "other enterprises" shall include employee benefit plans; references to "fines" shall include any excise taxes assessed on a person with respect to any employee benefit plan; and references to "serving at the request of the corporation" shall include any service as a director, officer, employee or agent of the corporation which imposes duties on, or involves services by, such director, officer, employee or agent with respect to any employee benefit plan, its participants, or beneficiaries; and a person who acted in good faith and in a manner he or she reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner not opposed to the best interests of the corporation.
Section 6.3 of the Registrant's By-laws provides as follows:
SECTION 6.3. MANDATORY INDEMNIFICATION. To the extent that a director, officer, employee or agent of a corporation, or any subsidiary or subsidiaries, as the case may be, has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in Sections 6.1 and 6.2, or in defense of any claim, issue or matter therein, such person shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by him or her in connection therewith.
The Illinois Business Corporation Act provides for indemnification of officers, directors, employees and agents as follows:
5/8.75 INDEMNIFICATION OF OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS; INSURANCE. (a) A corporation may indemnify any person who was or is a party, or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that he or she is or was a director, officer, employee or agent of the corporation, or who is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding, if such person acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he or she reasonably believed to be in or not opposed to the best interests of the corporation or, with respect to any criminal action or proceeding, that the person had reasonable cause to believe that his or her conduct was unlawful.
(b) A corporation may indemnify any person who was or is a party, or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that such person is or was a director, officer,
employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit, if such person acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, the best interests of the corporation, provided that no indemnification shall be made with respect to any claim, issue, or matter as to which such person has been adjudged to have been liable to the corporation, unless, and only to the extent that the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability, but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses as the court shall deem proper.
(c) To the extent that a present or former director, officer or
employee of a corporation has been successful, on the merits or otherwise, in
the defense of any action, suit or proceeding referred to in subsections (a) and
(b), or in defense of any claim, issue or matter therein, such person shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by such person in connection therewith if the person acted in good
faith and in a manner he or she reasonably believed to be in, or not opposed to,
the best interests of the corporation.
(d) Any indemnification under subsections (a) and (b) (unless ordered by a court) shall be made by the corporation only as authorized in the specific case, upon a determination that indemnification of the present or former director, officer, employee or agent is proper in the circumstances because he or she has met the applicable standard of conduct set forth in subsections (a) or (b). Such determination shall be made with respect to a person who is a director or officer at the time of the determination: (1) by the majority vote of the directors who are not parties to such action, suit or proceeding, even though less than a quorum, (2) by a committee of the directors designated by a majority vote of the directors, even though less than a quorum, (3) if there are no such directors, or if the directors so direct, by independent legal counsel in a written opinion, or (4) by the shareholders.
(e) Expenses (including attorney's fees) incurred by an officer or director in defending a civil or criminal action, suit or proceeding may be paid by the corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of the director or officer to repay such amount if it shall ultimately be determined that such person is not entitled to be indemnified by the corporation as authorized in this Section. Such expenses (including attorneys' fees) incurred by former directors and officers or other employees and agents may be so paid on such terms and conditions, if any, as the corporation deems appropriate.
(f) The indemnification and advancement of expenses provided by or granted under the other subsections of this Section shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any by-law, agreement, vote of shareholders or disinterested directors, or otherwise, both as to action in his or her official capacity and as to action in another capacity while holding such office.
(g) A corporation may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or who is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against any liability asserted against such person and incurred by such person in any such capacity, or arising out of his or her status as such, whether or not the corporation would have the power to indemnify such person against such liability under the provisions of this Section.
(h) If a corporation indemnifies or advances expenses to a director or officer under subsection (b) of this Section, the corporation shall report the indemnification or advance in writing to the shareholders with or before the notice of the next shareholders meeting.
(i) For purposes of this Section, references to "the corporation" shall include, in addition to the surviving corporation, any merging corporation (including any corporation having merged with a merging corporation) absorbed in a merger which, if its separate existence had continued, would have had the power and authority to indemnify its directors, officers, and employees or agents, so that any person who was a director, officer, employee or agent of such merging corporation, or was serving at the request of such merging corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under the provisions of this Section with respect to the surviving corporation as such person would have with respect to such merging corporation if its separate existence had continued.
(j) For purposes of this Section, reference to "other enterprises" shall include employee benefit plans; references to "fines" shall include any excise taxes assessed on a person with respect to an employee benefit plan; and references to "serving at the request of the corporation" shall include any service as a director, officer, employee or agent of the corporation which imposes duties on, or involves services by such director, officer, employee, or agent with respect to an employee benefit plan, its participants, or beneficiaries. A person who acted in good faith and in a manner he or she reasonably believed to be in the best interests of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner "not opposed to the best interest of the corporation" as referred to in this Section.
(k) The indemnification and advancement of expenses provided by or granted under this Section shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director, officer, employee, or agent and shall inure to the benefit of the heirs, executors, and administrators of that person.
(l) The changes to this Section made by this amendatory Act of the 92nd General Assembly apply only to actions commenced on or after the effective date of this amendatory Act of the 92nd General Assembly. (Last amended by P.A. 92-0033, L. '01, eff. 7-1-01.)
The Registrant has purchased $30 million of insurance policies which insure its directors and officers against liability which they may incur as a result of actions taken in such capacities. In addition, the Registrant maintains fiduciary liability coverage up to a $5 million limit and trust errors and omissions coverage up to a limit of $15 million.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 Amended and Restated Articles of Incorporation of Wintrust Financial Corporation (incorporated by reference to Exhibit 3.1 to Registrant's Form S-1 Registration Statement (No. 333-18699) filed with the SEC on December 24, 1996).
4.2 Statement of Resolution Establishing Series of Junior Serial Preferred Stock A of Wintrust Financial Corporation (incorporated by reference to Exhibit 3.2 of the Registrant's Form 10-K for the year ended December 31, 1998).
4.3 Amended and Restated By-Laws of Wintrust Financial Corporation (incorporated by reference to Exhibit 3.3 to Registrant's Quarterly Report on Form 10-Q for the quarter ended March 31, 2003).
4.4 Rights Agreement between Wintrust Financial Corporation and Illinois Stock Transfer Company, as Rights Agent, dated July 28, 1998 (incorporated by reference to Exhibit 4.1 of the Registrant's Form 8-A Registration Statement (No. 000-21923) filed with the SEC on August 28, 1998).
5.1 Opinion of Vedder, Price, Kaufman & Kammholz, P.C. regarding legality of the securities.
23.1 Consent of Ernst & Young LLP.
24.1 Powers of Attorney (included on the signature pages of the Registration Statement).
99.1 Wintrust Financial Corporation 1997 Stock Incentive Plan (incorporated by reference to Appendix A of the Registrant's proxy statement relating to its May 22, 1997 Annual Meeting of Shareholders).
99.2 First Amendment to Wintrust Financial Corporation 1997 Stock Incentive Plan (incorporated by reference to Exhibit 10.1 of the Registrant's Form 10-Q for the quarter ended June 30, 2000).
99.3 Second Amendment to the Wintrust Financial Corporation 1997 Stock Incentive Plan.
99.4 Third Amendment to the Wintrust Financial Corporation 1997 Stock Incentive Plan.
99.5 Village Bancorp, Inc. 1998 Omnibus Stock Incentive Plan.
99.6 Amendment No. 1 to Village Bancorp, Inc. 1998 Omnibus Stock Incentive Plan.
99.7 Form of Village Bancorp, Inc. 1998 Omnibus Stock Incentive Plan Conversion Agreement.
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement to include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information set forth in the Registration Statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 and each filing of the Plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in this Registration Statement shall be deemed to be a new registration statement relating to the securities
offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against policy as expressed in the Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Lake Forest, State of Illinois, on this 30th day of June, 2004.
WINTRUST FINANCIAL CORPORATION
By:/s/ David A. Dykstra
--------------------------------
David A. Dykstra
Senior Executive Vice President
and Chief Operating Officer
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We, the undersigned officers and directors of Wintrust Financial Corporation, and each of us, do hereby constitute and appoint each and any of Edward J. Wehmer and David A. Dykstra our true and lawful attorney and agent, with full power of substitution and resubstitution, to do any and all acts and things in our name and behalf in any and all capacities and to execute any and all instruments for us in our names in any and all capacities, which attorney and agent may deem necessary or advisable to enable said corporation to comply with the Securities Act of 1933, as amended, and any rules, regulations, and requirements of the Securities and Exchange Commission, in connection with this Registration Statement, including specifically, but without limitation, power and authority to sign for us or any of us in our names in the capacities indicated below, any and all amendments (including post-effective amendments) hereto; and we do hereby ratify and confirm all that said attorney and agent, or his substitute, shall do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the date indicated.
NAME TITLE DATE
---- ----- ----
/s/ Edward J. Wehmer President, Chief Executive June 30, 2004
--------------------------------------- Officer and Director
Edward J. Wehmer
/s/ David L. Stoehr Executive Vice President and June 30, 2004
--------------------------------------- Chief Financial Officer
David L. Stoehr (Principal Accounting Officer)
/s/ John S. Lillard Chairman and Director June 30, 2004
---------------------------------------
John S. Lillard
/s/ Peter D. Crist Director June 30, 2004
---------------------------------------
Peter D. Crist
/s/ Bruce K. Crowther Director June 30, 2004
---------------------------------------
Bruce K. Crowther
/s/ Bert A. Getz, Jr. Director June 30, 2004
---------------------------------------
Bert A. Getz, Jr.
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NAME TITLE DATE
---- ----- ----
/s/ Philip W. Hummer Director June 30, 2004
---------------------------------------
Philip W. Hummer
Director
---------------------------------------
Paul J. Liska
/s/ James B. McCarthy Director June 30, 2004
---------------------------------------
James B. McCarthy
/s/ Albin F. Moschner Director June 30, 2004
---------------------------------------
Albin F. Moschner
/s/ Thomas J. Neis Director June 30, 2004
---------------------------------------
Thomas J. Neis
/s/ Hollis W. Rademacher Director June 30, 2004
---------------------------------------
Hollis W. Rademacher
/s/ J. Christopher Reyes Director June 30, 2004
---------------------------------------
J. Christopher Reyes
/s/ John J. Schornack Director June 30, 2004
---------------------------------------
John J. Schornack
/s/ Ingrid S. Stafford Director June 30, 2004
---------------------------------------
Ingrid S. Stafford
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INDEX TO EXHIBITS
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
------ ----------------------
4.1 Amended and Restated Articles of Incorporation of Wintrust
Financial Corporation (incorporated by reference to Exhibit
3.1 to Registrant's Form S-1 Registration Statement (No.
333-18699) filed with the SEC on December 24, 1996).
4.2 Statement of Resolution Establishing Series of Junior Serial
Preferred Stock A of Wintrust Financial Corporation
(incorporated by reference to Exhibit 3.2 of the Registrant's
Form 10-K for the year ended December 31, 1998).
4.3 Amended and Restated By-Laws of Wintrust Financial Corporation
(incorporated by reference to Exhibit 3.3 to Registrant's
Quarterly Report on Form 10-Q for the quarter ended March 31,
2003).
4.4 Rights Agreement between Wintrust Financial Corporation and
Illinois Stock Transfer Company, as Rights Agent, dated July
28, 1998 (incorporated by reference to Exhibit 4.1 of the
Registrant's Form 8-A Registration Statement (No. 000-21923)
filed with the SEC on August 28, 1998).
5.1 Opinion of Vedder, Price, Kaufman & Kammholz, P.C. regarding
legality of the securities.
23.1 Consent of Ernst & Young LLP.
24.1 Powers of Attorney (included on the signature pages of the
Registration Statement).
99.1 Wintrust Financial Corporation 1997 Stock Incentive Plan
(incorporated by reference to Appendix A of the Registrant's
proxy statement relating to its May 22, 1997 Annual Meeting of
Shareholders).
99.2 First Amendment to Wintrust Financial Corporation 1997 Stock
Incentive Plan (incorporated by reference to Exhibit 10.1 of
the Registrant's Form 10-Q for the quarter ended June 30,
2000).
99.3 Second Amendment to the Wintrust Financial Corporation 1997
Stock Incentive Plan.
99.4 Third Amendment to the Wintrust Financial Corporation 1997
Stock Incentive Plan.
99.5 Village Bancorp, Inc. 1998 Omnibus Stock Incentive Plan.
99.6 Amendment No. 1 to Village Bancorp, Inc. 1998 Omnibus Stock
Incentive Plan.
99.7 Form of Village Bancorp, Inc. 1998 Omnibus Stock Incentive
Plan Conversion Agreement.
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EXHIBIT 5.1
VEDDER PRICE VEDDER, PRICE, KAUFMAN & KAMMHOLZ, P.C.
222 NORTH LASALLE STREET
CHICAGO, ILLINOIS 60601-1003
312-609-7500
FACSIMILE: 312-609-5005
June 30, 2004
Wintrust Financial Corporation
727 North Bank Lane
Lake Forest, Illinois 60045
Ladies and Gentlemen:
Reference is hereby made to the Registration Statement on Form S-8 (the "Registration Statement") being filed with the Securities and Exchange Commission by Wintrust Financial Corporation, an Illinois corporation (the "Company"), relating to the registration of 1,200,000 shares of the Company's common stock, no par value (the "Common Stock"), reserved for issuance under the Wintrust Financial Corporation 1997 Stock Incentive Plan, as amended, effective as of May 27, 2004 (the "Wintrust Plan"), and 46,331 shares of the Company's Common Stock that may be issued upon exercise of options previously granted by Village Bancorp, Inc., a Delaware corporation ("Village"), to employees or directors pursuant to the Village Bancorp, Inc. 1998 Omnibus Stock Incentive Plan, as amended (the "Village Plan"). Village was merged with and into WTFC Merger Co., an Illinois corporation and wholly-owned subsidiary of the Company, effective December 5, 2003. We have acted as counsel for the Company in connection with this Registration Statement.
In connection with our opinion, we have examined originals, or copies certified or otherwise identified to our satisfaction, of: (i) the Registration Statement; (ii) the Amended and Restated Articles of Incorporation of the Company; (iii) the Amended and Restated Bylaws of the Company; and (iv) such other corporate records, documents and other papers as we deemed necessary to examine for purposes of this opinion. We have assumed the authenticity, accuracy and completeness of all documents submitted to us as originals, the conformity to authentic original documents of all documents submitted to us as certified, conformed or photostatic copies and the genuineness of all signatures.
Based upon the foregoing and the number of shares of Common Stock issued and outstanding as of the date hereof, it is our opinion that the 1,200,000 shares of Common Stock of the Company, when issued in accordance with the terms of the Wintrust Plan, and the 46,331
shares of Common Stock of the Company, when issued in accordance with the terms of the Village Plan, will be validly issued, fully paid and nonassessable.
The opinion expressed herein is based on the facts in existence and the laws in effect on the date hereof and is limited to the Federal securities laws and the laws of the State of Illinois currently in effect.
We hereby consent to the use of this opinion in connection with said Registration Statement and to the references to our firm therein.
Very truly yours,
/s/ VEDDER, PRICE, KAUFMAN & KAMMHOLZ, P.C. |
EXHIBIT 23.1
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the Wintrust Financial Corporation 1997 Stock Incentive Plan and Village Bancorp, Inc. 1998 Omnibus Stock Incentive Plan of our report dated February 13, 2004, with respect to the consolidated financial statements of Wintrust Financial Corporation incorporated by reference in its Annual Report (Form 10-K) for the year ended December 31, 2003, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Chicago, Illinois
June 30, 2004
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EXHIBIT 99.3
SECOND AMENDMENT TO
WINTRUST FINANCIAL CORPORATION
1997 STOCK INCENTIVE PLAN
WHEREAS, Wintrust Financial Corporation (the "Company") maintains the Wintrust Financial Corporation 1997 Stock Incentive Plan (the "Plan");
WHEREAS, the Board of Directors and the Shareholders of the Company have approved a proposal to amend the Plan to increase the number of shares authorized for issuance thereunder by an additional 900,000 shares of Common Stock;
NOW, THEREFORE, the Board of Directors of the Company declares that the Plan, in accordance with paragraph 9 of the Plan, be and hereby is amended, effective as of May 23, 2002, as follows:
By substituting the following for paragraph 5 of the Plan:
"5. Stock Subject to the Provisions of this Plan. The stock subject to the provisions of this Plan shall be shares of authorized but unissued Common Stock. Subject to adjustment in accordance with the provisions of Section 10, the total number of shares of Common Stock which may be issued under the Plan or with respect to which Awards may be granted shall not exceed 4,481,038 shares, including for this purpose the 1,777,359 shares heretofore authorized and available for issuance under the Predecessors Plans. All shares available for issuance under the Plan may be issued with respect to incentive stock options. Upon:
(a) a payout of an Award in the form of cash;
(b) a cancellation, termination, expiration, forfeiture, or lapse for any reason (with the exception of the termination of a tandem Award upon exercise of the related Award, or the termination of a related Award upon exercise of the corresponding tandem Award) of any Award; or
(c) payment of an option price, and/or payment of any taxes arising upon exercise of an option or payout of any Award, with previously acquired shares or by withholding shares which otherwise would be acquired on exercise or issued upon such payout,
then the number of shares of Common Stock underlying any such Award which were not issued as a result of any of the foregoing actions shall again be available for the purposes of Awards under the Plan."
EXHIBIT 99.4
THIRD AMENDMENT TO
WINTRUST FINANCIAL CORPORATION
1997 STOCK INCENTIVE PLAN
WHEREAS, Wintrust Financial Corporation (the "Company") maintains the Wintrust Financial Corporation 1997 Stock Incentive Plan (the "Plan");
WHEREAS, the Board of Directors and the Shareholders of the Company have approved a proposal to amend the Plan to increase the number of shares authorized for issuance thereunder by an additional 1,200,000 shares of Common Stock;
NOW, THEREFORE, the Board of Directors of the Company declares that the Plan, in accordance with paragraph 9 of the Plan, be and hereby is amended, effective as of May 27, 2004, as follows:
By substituting the following for paragraph 5 of the Plan:
"5. Stock Subject to the Provisions of this Plan. The stock subject to the provisions of this Plan shall be shares of authorized but unissued Common Stock. Subject to adjustment in accordance with the provisions of Section 10, the total number of shares of Common Stock which may be issued under the Plan or with respect to which Awards may be granted shall not exceed 5,681,038 shares, including for this purpose the 1,777,359 shares heretofore authorized and available for issuance under the Predecessors Plans. All shares available for issuance under the Plan may be issued with respect to incentive stock options. Upon:
(a) a payout of an Award in the form of cash;
(b) a cancellation, termination, expiration, forfeiture, or lapse for any reason (with the exception of the termination of a tandem Award upon exercise of the related Award, or the termination of a related Award upon exercise of the corresponding tandem Award) of any Award; or
(c) payment of an option price, and/or payment of any taxes arising upon exercise of an option or payout of any Award, with previously acquired shares or by withholding shares which otherwise would be acquired on exercise or issued upon such payout,
then the number of shares of Common Stock underlying any such Award which were not issued as a result of any of the foregoing actions shall again be available for the purposes of Awards under the Plan."
EXHIBIT 99.5
VILLAGE BANCORP, INC.
1998 OMNIBUS
STOCK INCENTIVE PLAN
Table of Contents
Page
SECTION 1. ESTABLISHMENT, PURPOSE, AND EFFECTIVE DATE OF PLAN..........1
1.1 Establishment...............................................1
1.2 Purpose.....................................................1
1.3 Effective Date..............................................1
SECTION 2. DEFINITIONS.................................................1
2.1 Definitions.................................................1
2.2 Gender and Number...........................................3
SECTION 3. ELIGIBILITY AND PARTICIPATION...............................3
3.1 Eligibility and Participation...............................3
SECTION 4. ADMINISTRATION..............................................3
4.1 Administration..............................................3
SECTION 5. STOCK SUBJECT TO PLAN.......................................4
5.1 Number and Amount Available for Award to
Single Participant.......................................4
5.2 Reuse.......................................................4
5.3 Adjustment in Capitalization................................4
SECTION 6. DURATION OF PLAN............................................4
6.1 Duration of Plan............................................4
SECTION 7. STOCK OPTIONS...............................................5
7.1 Grant of Options............................................5
7.2 Option Agreement............................................5
7.3 Option Price................................................5
7.4 Exercise of Options.........................................5
7.5 Payment.....................................................5
7.6 Limitations on ISOs.........................................6
7.7 Restrictions on Stock Transferability.......................6
7.8 Termination of Employment Due to Death,
Disability, or Retirement................................6
7.9 Termination of Employment Due to Death,
Disability, or Retirement................................7
7.10 Nontransferability of Options...............................7
SECTION 8. STOCK APPRECIATION RIGHTS...................................8
8.1 Grant of Stock Appreciation Rights..........................8
8.2 Exercise of SARs in Lieu of Options.........................8
8.3 Exercise of SARs in Addition to Options.....................8
8.4 Exercise of SARs Independent of Options.....................8
8.5 Exercise of SARs Upon Lapse of Options......................8
8.6 Payment of SAR Amount.......................................8
8.7 Form and Timing of Payment..................................8
8.8 Limit of Appreciation.......................................9
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Table of Contents
(continued)
Page
8.9 Term of SAR.................................................9
8.10 Termination of Employment...................................9
8.11 Nontransferability of SARs..................................9
SECTION 9. RESTRICTED STOCK............................................9
9.1 Grant of Restricted Stock...................................9
9.2 Transferability.............................................9
9.3 Other Restrictions..........................................9
9.4 Voting Rights...............................................9
9.5 Dividends and Other Distributions...........................9
9.6 Termination of Employment Due to Retirement.................9
9.7 Termination of Employment Due to Death or Disability.......10
9.8 Termination of Employment for Reasons Other than
Death, Disability, or Retirement........................10
9.9 Nontransferability of Restricted Stock.....................10
SECTION 10. PERFORMANCE UNITS AND PERFORMANCE SHARES...................10
10.1 Grant of Performance Units or Performance Shares...........10
10.2 Value of Performance Units and Performance Shares..........10
10.3 Payment of Performance Units and Performance Shares........11
10.4 Form and Timing of Payment.................................11
10.5 Termination of Employment Due to Death,
Disability, or Retirement...............................11
10.6 Termination of Employment for Other Reasons................11
10.7 Nontransferability.........................................11
10.8 Performance Goals..........................................11
SECTION 11. BENEFICIARY DESIGNATION....................................12
11.1 Beneficiary Designation....................................12
SECTION 12. RIGHTS OF EMPLOYEES........................................12
12.1 Employment.................................................12
12.2 Participation..............................................12
SECTION 13. CHANGE IN CONTROL..........................................12
13.1 In General.................................................12
13.2 Definition.................................................12
SECTION 14. AMENDMENT, MODIFICATION, AND TERMINATION OF PLAN...........13
14.1 Amendment, Modification, and Termination of Plan...........13
SECTION 15. TAX WITHHOLDING............................................14
15.1 Tax Withholding............................................14
15.2 Share Withholding..........................................14
SECTION 16. INDEMNIFICATION............................................14
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Table of Contents
(continued)
Page
16.1 Indemnification............................................14
SECTION 17. REQUIREMENTS OF LAW........................................14
17.1 Requirements of Law........................................14
17.2 Governing Law..............................................14
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SECTION 1. ESTABLISHMENT, PURPOSE, AND EFFECTIVE DATE OF PLAN
1.1 Establishment. Village Bancorp, Inc., an Illinois corporation, hereby establishes the "VILLAGE BANCORP, INC. 1998 OMNIBUS STOCK INCENTIVE PLAN" for key employees and directors (the "Plan"). The Plan permits the grant of stock options, stock appreciation rights, restricted stock, common stock or cash as a payout medium for payments under the plans, specifically stock appreciation rights, performance units, and performance shares.
1.2 Purpose. The purpose of the Plan is to advance the interests of the Company, by encouraging and providing for the acquisition of an equity interest in the success of the Company by key employees and directors, by providing additional incentives and motivation toward superior performance of the Company, and by enabling the Company to attract and retain the services of key employees upon whose judgment, interest, and special effort the successful conduct of its operations is largely dependent.
1.3 Effective Date. The Plan shall become effective immediately upon its adoption by the Board of Directors of the Company, subject to ratification by the shareholders of the Company. Awards may be granted hereunder on or after the effective date but shall in no event be exercisable or payable to a Participant prior to such stockholder approval; and, if such approval is not obtained within twelve (12) months after the effective date, such Awards shall be of no force and effect.
SECTION 2. DEFINITIONS
2.1 Definitions. Whenever used herein, the following terms shall have their respective meanings set forth below:
(a) "Award" means any Stock Option, Stock Appreciation Right, Restricted Stock, Performance Unit or Performance Share granted under this Plan.
(b) "Board" means the Board of Directors of the Company.
(c) "Cause" shall mean any one of the following:
(i) gross misconduct in, or the continued and willful refusal by the Participant after written notice by the Company to make himself available for the performance of the Participant's duties for the Company or a subsidiary; or
(ii) conviction for a felony for a matter related to the Company or a subsidiary; or
(iii) suspension due to the direction of any authorized bank regulatory agency that the Participant be relieved of his duties and responsibilities to the Company or a subsidiary.
(d) "Code" means the Internal Revenue Code of 1986, as amended.
(e) "Committee" means the Compensation Committee of the Board of Directors or such other committee as may be appointed from time to time by the Board of Directors to administer this Plan. To the extent deemed appropriate by the Board, the Committee shall consist of two or more members, each of whom shall qualify as a "non-employee director," as the term (or similar or successor term) is defined by Rule 16b-3, and as an "outside director" within the meaning of Code Section 162(m) and regulations thereunder. In the absence of a Committee, the Board shall act as the Committee hereunder.
(f) "Company" means Village Bancorp, Inc., an Illinois corporation.
(g) "Director" means a director of the Company or its Subsidiaries who is not also an employee.
(h) "Disability" means totally and permanently disabled as determined by the Committee.
(i) "Employee" means a regular salaried employee (including officers and directors who are also employees) of the Company or its Subsidiaries, or any branch or division thereof.
(j) "Fair Market Value" means the value of the stock on a particular date as determined by the Committee, provided, however, that in the event the Stock is traded on an established securities market, then "Fair Market Value" shall be the average of the highest and lowest prices of the Stock as reported by such market on a particular date. In the event that there are no Stock transactions on such date, the Fair Market Value shall be determined as of the immediately preceding date on which there were Stock transactions.
(k) "Option" means the right to purchase Stock at a stated price for a specified period of time. For purposes of the Plan an Option may be either (i) an "Incentive Stock Option," or "ISO" within the meaning of Section 422A of the Code, (ii) a "Nonstatutory (Nonqualified) Stock Option," or "NSO," or (iii) any other type of option encompassed by the Code.
(l) "Participant" means any Employee or Director designated by the Committee to participate in the Plan.
(m) "Performance Unit" means a right to receive a payment equal to the value of a Performance Unit as determined by the Committee based upon performance and pursuant to Section 10 of the Plan.
(n) "Performance Share" means a right to receive a payment equal to the value of a Performance Share as determined by the Committee based on performance and pursuant to Section 10 of the Plan.
(o) "Period of Restriction" means the period during which the transfer of shares of Restricted Stock is restricted pursuant to Section 9 of the Plan.
(p) "Plan" means the Village Bancorp, Inc. 1998 Omnibus Stock Incentive Plan as set forth herein and any amendments hereto.
(q) "Restricted Stock" means Stock granted to a Participant pursuant to
Section 9 of the Plan.
(r) "Retirement" means termination of employment other than for Cause, after the Participant's sixty-fifth (65th) birthday.
(s) "Rule 16b-3" means Rule 16b-3 or any successor or comparable rule or rules applicable to Awards granted under the Plan promulgated by the Securities and Exchange Commission under Section 16(b) of the Securities Exchange Act of 1934, as amended.
(t) "Stock" means the Common Stock, par value $.25 per share, of the Company.
(u) "Stock Appreciation Right" and "SAR" mean the right to receive a payment from the Company equal to the excess of the Fair Market Value of a share of stock at the date of exercise over a specified price fixed by the Committee, which shall not be less than 100% of the Fair Market Value of the Stock on the date of grant. In the case of a Stock Appreciation Right which is granted in conjunction with an Option, the specified price shall be the Option exercise price.
2.2 Gender and Number. Except when otherwise indicated by the context, words in the masculine gender when used in the Plan shall include the feminine gender, the singular shall include the plural, and the plural shall include the singular.
SECTION 3. ELIGIBILITY AND PARTICIPATION
3.1 Eligibility and Participation. Participants in the Plan shall be selected by the Committee from among those Employees who are recommended for participation by the Chief Executive Officer and who, in the opinion of the Committee, are key employees in a position to contribute materially to the Company's continued growth and development and to its long-term financial success, and from among the Directors.
SECTION 4. ADMINISTRATION
4.1 Administration. The Committee shall be responsible for the administration of the Plan. The Committee, by majority action thereof (whether taken during a meeting or by written consent), is authorized to interpret the Plan, to prescribe, amend, and rescind rules and regulations relating to the Plan, to provide for conditions and assurances deemed necessary or advisable to protect the interests of the Company, and to make all other determinations necessary or advisable for the administration of the Plan, but only to the extent not contrary to the express provisions of the Plan. Determinations, interpretations, or other actions made or taken by the Committee pursuant to the provisions of the Plan shall be final and binding and conclusive for all purposes and upon all persons whomsoever. To the extent deemed necessary or advisable for purposes of Rule 16b-3 or otherwise, the Board may act as the Committee hereunder.
SECTION 5. STOCK SUBJECT TO PLAN
5.1 Number and Amount Available for Award to Single Participant. The total number of shares of Stock subject to Awards under the Plan may not exceed 225,000 (of this total number up to 25,000 shares of Stock may be issued in Restricted Stock), and the total number of shares of Stock which may be made subject to Awards granted under the Plan in any calendar year to any single Participant may not exceed 15,000. Such numbers of shares shall be subject to adjustment upon occurrence of any of the events described in Section 5.3. The shares to be delivered under the Plan may consist, in whole or in part, of authorized but unissued Stock or treasury Stock, not reserved for any other purpose.
5.2 Reuse. If, and to the extent:
(a) An Option shall expire or terminate for any reason without having been exercised in full (including, without limitation, cancellation and re-grant), or in the event that an Option is exercised or settled in a manner such that some or all of the shares of Stock related to the Option are not issued to the Participant (or beneficiary) including as the result of the use of shares for withholding taxes), the shares of Stock subject thereto which have not become outstanding shall (unless the Plan shall have terminated) become available for issuance under the Plan; provided, however, that with respect to a share-for-share exercise, only the net shares issued shall be deemed to have become outstanding as a result thereof.
(b) Restricted Stock, Performance Shares or Performance Units under the Plan forfeited for any reason, or settled in cash in lieu of Stock or in a manner such that some or all of the shares of Stock related to the award are not issued to the Participant (or beneficiary), such shares of Stock shall (unless the Plan shall have terminated) become available for issuance under the Plan; provided, however, that if any dividends paid with respect to shares of Restricted Stock or Performance Shares were paid to the Participant prior to the forfeiture thereof, such shares shall not be reused for grants or awards.
(c) SARs expire or terminate for any reasons without having been earned in full, an equal number of SARs shall (unless the 1998 Plan shall have terminated) become available for issuance under the Plan.
5.3 Adjustment in Capitalization. In the event of any change in the outstanding shares of Stock that occurs after ratification of the Plan by the shareholders of the Company by reason of a Stock dividend or split, recapitalization, merger, consolidation, combination, exchange of shares, or other similar corporate change, the aggregate number of shares of Stock subject to each outstanding Option, and its stated Option price, shall be adjusted appropriately by the Committee, whose determination shall be conclusive; provided, however, that fractional shares shall be rounded to the nearest whole share. In such event, the Committee also shall have discretion to make appropriate adjustments in the number and type of shares subject to Restricted Stock grants then outstanding under the Plan pursuant to the terms of such grants or otherwise.
SECTION 6. DURATION OF PLAN
6.1 Duration of Plan. The Plan shall remain in effect, subject to the Board's right to earlier terminate the Plan pursuant to Section 14 hereof, until all Stock subject to it shall have
been purchased or acquired pursuant to the provisions hereof. Notwithstanding the foregoing, no Award may be granted under the Plan on or after May 27, 2008.
SECTION 7. STOCK OPTIONS
7.1 Grant of Options. Subject to the provisions of Section 5 and 6, Options may be granted to Participants at any time and from time to time as shall be determined by the Committee. The Committee shall have complete discretion in determining the number of Options granted to each Participant. The Committee may grant any type of Option to purchase Stock that is permitted by law at the time of grant.
7.2 Option Agreement. Each Option shall be evidenced by an Option agreement that shall specify the type of Option granted, the Option price the duration of the Option, the number of shares of Stock to which the Option pertains, and such other provisions as the Committee shall determine.
7.3 Option Price. No Option granted pursuant to the Plan shall have an Option price that is less than the Fair Market Value of the Stock on the date the Option is granted.
7.4 Exercise of Options. Options awarded under the Plan shall be exercisable at such times and be subject to such restrictions and conditions as the Committee shall approve, either at the time of grant of such Options or pursuant to a general determination, and which need not be the same for all Participants, provided that, to the extent required to comply with Rule 16b-3, no Option shall be exercisable within the first six months of its term, unless death or Disability of the Participant occurs during such period. Each Option which is intended to qualify as an Incentive Stock Option pursuant to Section 422A of the Code, and each Option which is intended to qualify as another type of ISO which may subsequently be authorized by law, shall comply with the applicable provisions of the Code pertaining to such Options.
7.5 Payment. Options shall be exercised by the delivery of a written notice of exercise to the Company, setting forth the number of shares of Stock with respect to which the Option is to be exercised, accompanied by full payment for the Stock. The Option Price upon exercise of any Option shall be payable to the Company in full either:
(a) in cash or its equivalent (including, for this purpose, the proceeds from a cashless exercise as permitted under Federal Reserve Board's Regulation T, or other borrowed funds),
(b) by tendering previously-acquired Stock having an aggregate Fair Market Value at the time of exercise equal to the total Option price (including, for this purpose, Stock deemed tendered by affirmation of ownership),
(c) by any other means which the Committee determines to be consistent with the Plan's purpose and applicable law, or
(d) by a combination of (a), (b), and (c).
The exercise of an Option shall cancel any related SAR to the extent of the number of shares as to which the Option is exercised. As soon as practicable after receipt of each notice and full payment, the Company shall deliver to the Participant a certificate or certificates representing acquired shares of Stock. For purposes of the foregoing, Fair Market Value shall be determined on the date of Option exercise.
7.6 Limitations on ISOs. Notwithstanding anything in the Plan to the contrary, to the extent required from time to time by the Code, the following additional provisions shall apply to the grant of Options which are intended to qualify as Incentive Stock Options (as such term is defined in Section 422A of the Code):
(a) The aggregate Fair Market Value (determined as of the date the Option is granted) of the shares of Common Stock with respect to which Incentive Stock Options are exercisable for the first time by any Participant during any calendar year (under all plans of the Company) shall not exceed $100,000 or such other amount as may subsequently be specified by the Code; provided that, to the extent that such limitation is exceeded, any excess Options (as determined under the Code) shall be deemed to be Nonstatutory (Nonqualified) Stock Options.
(b) Any Incentive Stock Option authorized under the Plan shall contain such other provisions as the Committee shall deem advisable, but shall in all events be consistent with and contain or be deemed to contain all provisions required in order to qualify the Options as Incentive Stock Options.
(c) All Incentive Stock Options must be granted within ten years from the earlier of the date on which this Plan was adopted by the Board of Directors or the date this Plan was approved by the shareholders.
(d) Unless exercised, terminated, or cancelled sooner, all Incentive Stock Options shall expire no later than ten years after the date of grant.
(e) Directors shall not be eligible to receive Incentive Stock Options.
7.7 Restrictions on Stock Transferability. The Committee shall impose such restrictions on any shares of Stock acquired pursuant to the exercise of an Option under the Plan as it may deem advisable, including, without limitation, restrictions under the applicable Federal securities law, under the requirements of any stock exchange upon which such shares of Stock are then listed and under any blue sky or state securities laws applicable to such shares.
7.8 Termination of Employment Due to Death, Disability, or Retirement. In the event the employment of a Participant is terminated by reason of death, Disability, or Retirement, any outstanding Options then exercisable may be exercised at any time prior to the expiration date of the Options or within three (3) years after such date of termination of employment, whichever period is the shorter. However, in the case of Incentive Stock Options, the favorable tax treatment prescribed under Section 422A of the Code shall not be available if such options are not exercised within three (3) months after date of termination, or twelve (12) months in the case of Disability, provided such Disability constitutes total and permanent disability as defined in Section 22(e)(3) of the Code. If an Incentive Stock Option is not exercised within three (3)
months of termination due to Retirement, it shall be treated as a Nonstatutory (Nonqualified) Stock Option for the remainder of its allowable exercise period.
7.9 Termination of Employment Due to Death, Disability, or Retirement.
If the employment of the Participant shall terminate for any reason other than
death, Disability, Retirement, or involuntarily for Cause, the rights under any
then outstanding Option granted pursuant to the Plan shall terminate upon the
expiration date of the Option or one month after such date of termination of
employment, whichever first occurs; provided, however, that in the event such
termination of employment occurs after a change in control (as defined in
Section 13.2 of the Plan), the rights under any then outstanding Option granted
pursuant to the Plan shall terminate upon the expiration date of the Option or
one year after such date of termination of employment, whichever first occurs.
Where termination of employment is involuntarily for Cause, rights under all
Options shall terminate immediately upon termination of employment.
7.10 Nontransferability of Options. Except as provided below, no Option granted under the Plan may be sold, transferred, pledged, assigned, or otherwise alienated or hypothecated, otherwise than by will or by the laws of descent and distribution. Further, all Options granted to a Participant under the Plan shall be exercisable during his lifetime only by such Participant. Notwithstanding the foregoing, the Committee may, in its discretion, authorize all or a portion of the Options (other than Incentive Stock Options) granted to a Participant to be on terms which permit transfer by such Participant to:
(a) the spouse, children or grandchildren of the Participant ("Immediate Family Members");
(b) a trust or trusts for the exclusive benefit of such Immediate Family Members, or;
(c) a partnership in which such Immediate Family Members are the only partners,
provided that:
(i) there may be no consideration for any such transfer;
(ii) the Award Agreement pursuant to which such Options are granted expressly provides for transferability in a manner consistent with this Section 7.10; and
(iii) subsequent transfers of transferred Options shall be prohibited except those in accordance with Section 11. Following transfer, any such Options shall continue to be subject to the same terms and conditions as were applicable immediately prior to transfer, provided that for purposes of Section 11 hereof the term "Participant" shall be deemed to refer to the transferee. The provisions of Sections 7 and 13 relating to the period of exercisability and expiration of the Option shall continue to be applied with respect to the original Participant, and the Options shall be exercisable by the transferee only to the extent, and for the periods, set forth in said Sections 7 and 13.
SECTION 8. STOCK APPRECIATION RIGHTS
8.1 Grant of Stock Appreciation Rights. Subject to the provisions of Sections 5 and 6, Stock Appreciation Rights ("SARs") may be granted to Participants at any time and from time to time as shall be determined by the Committee. An SAR may be granted at the discretion of the Committee in any of the following forms:
(a) In lieu of Options,
(b) In addition to Options,
(c) Upon lapse of Options,
(d) Independent of Options,
(e) Each of the above in connection with previously awarded Options.
8.2 Exercise of SARs in Lieu of Options. SARs granted in lieu of Options may be exercised for all or part of the shares of Stock subject to the related Option upon the surrender of the right to exercise an equivalent number of Options. The SAR may be exercised only with respect to the shares of Stock for which its related Option is then exercisable. Option shares with respect to which the SAR shall have been exercised may not be subject again to an Award under this Plan. SARs granted pursuant to this Section 8.2 with respect to which the Option shares have been exercised will immediately lapse upon such exercise.
8.3 Exercise of SARs in Addition to Options. SARs granted in addition to Options shall be deemed to be exercised upon the exercise of the related Options.
8.4 Exercise of SARs Independent of Options. SARs granted independent of Options may be exercised upon whatever terms and conditions the Committee, in its sole discretion, imposes upon the SARs.
8.5 Exercise of SARs Upon Lapse of Options. SARs granted upon lapse of Options shall be deemed to have been exercised upon the lapse of the related Options as to the number of shares of Stock subject to the Options. Notwithstanding Section 5.2 above, cancelled Options in an amount equal to the related SARs shall not be available again for Awards under the Plan.
8.6 Payment of SAR Amount. Upon exercise of the SAR, the holder shall be entitled to receive payment of an amount (subject to Section 8.8 below) determined by multiplying:
(a) The difference between the Fair Market Value of a share of Stock at the date of exercise over the price fixed by the Committee at the date of grant, by
(b) The number of shares with respect to which the Stock Appreciation Right is exercised.
8.7 Form and Timing of Payment. At the discretion of the Committee, payment for SARs may be made in cash or Stock, or in a combination thereof.
8.8 Limit of Appreciation. At the time of grant, the Committee may establish in its sole discretion, a maximum amount per share which will be payable upon exercise of an SAR.
8.9 Term of SAR. The term of an SAR granted under the Plan shall not exceed ten years and one day.
8.10 Termination of Employment. In the event the employment of a Participant is terminated by reason of death, Disability, Retirement, or any other reason, any SARs outstanding shall terminate in the same manner as specified for Options under Sections 7.8 and 7.9 herein.
8.11 Nontransferability of SARs. No SAR granted under the Plan may be sold, transferred, pledged, assigned, or otherwise alienated or hypothecated, otherwise than by will or by the laws of descent and distribution. Further, all SARs granted to a Participant under the Plan shall be exercisable during his lifetime only by such Participant.
SECTION 9. RESTRICTED STOCK
9.1 Grant of Restricted Stock. Subject to the provisions of Sections 5 and 6, the Committee, at any time and from time to time, may grant shares of Restricted Stock under the Plan to such Participants and in such amounts as it shall determine. Each grant of Restricted Stock shall be in writing.
9.2 Transferability. Except as provided in Sections 9.8 and 9.9 hereof, the shares of Restricted Stock granted hereunder may not be sold, transferred, pledged, assigned, or otherwise alienated or hypothecated for such period of time as shall be determined by the Committee and shall be specified in the Restricted Stock grant, or upon earlier satisfaction of other conditions (which may include the attainment of performance goals as defined in Section 10.8 hereof), as specified by the Committee in its sole discretion and set forth in the Restricted Stock grant.
9.3 Other Restrictions. The Committee shall impose such other restrictions on any shares of Restricted Stock granted pursuant to the Plan as it may deem advisable including, without limitation, restrictions under applicable Federal or state securities laws, and may legend the certificates representing Restricted Stock to give appropriate notice of such restrictions.
9.4 Voting Rights. Participants holding shares of Restricted Stock granted hereunder may exercise full voting rights with respect to those shares during the Period of Restriction.
9.5 Dividends and Other Distributions. During the Period of Restriction, Participants holding shares of Restricted Stock granted hereunder shall be entitled to receive all dividends and other distributions paid with respect to those shares while they are so held. If any such dividends or distributions are paid in shares of Stock, the shares shall be subject to the same restrictions on transferability as the shares of Restricted Stock with respect to which they were paid.
9.6 Termination of Employment Due to Retirement. In the event a Participant's employment terminates on or after his Normal Retirement Date, the Period of Restriction applicable to the Restricted Stock pursuant to Subsection 9.2 hereof shall automatically terminate and, except as otherwise provided in Subsection 9.3, the shares of Restricted Stock shall thereby
be free of restrictions and freely transferable. In the event a Participant terminates employment on or after his Early Retirement Date but prior to Normal Retirement Date, any shares of Restricted Stock still subject to restrictions at the date of such termination automatically shall be forfeited and returned to the Company; provided, however, that the Committee in its sole discretion may waive the restrictions remaining on any or all shares of Restricted Stock or add such new restrictions to those shares of Restricted Stock as it deems appropriate.
9.7 Termination of Employment Due to Death or Disability. In the event a Participant terminates his employment with the Company because of death or Disability during the Period of Restriction, the restrictions applicable to the shares of Restricted Stock pursuant to Section 9.2 hereof shall automatically terminate and, except as otherwise provided in Subsection 9.3, the shares of Restricted Stock shall thereby be free and restrictions and freely transferable.
9.8 Termination of Employment for Reasons Other than Death, Disability, or Retirement. In the event that a Participant terminates his employment with the Company for any reason other than those set forth in Sections 9.6 and 9.7 hereof during the Period of Restriction, then any shares of Restricted Stock still subject to restrictions at the date of such termination automatically shall be forfeited and returned to the Company; provided, however, that, in the event of an involuntary termination of the employment of a Participant by the Company other than for Cause, the Committee in its sole discretion may waive the automatic forfeiture of any or all such shares and/or may add such new restrictions to such shares of Restricted Stock as it deems appropriate.
9.9 Nontransferability of Restricted Stock. No shares of Restricted Stock granted under the Plan may be sold, transferred, pledged, assigned, or otherwise alienated or hypothecated, otherwise than by will or by the laws of descent and distribution until the termination of the applicable Period of Restriction. All rights with respect to Restricted Stock granted to a Participant under the Plan shall be exercisable during his lifetime only by such Participant.
SECTION 10. PERFORMANCE UNITS AND PERFORMANCE SHARES
10.1 Grant of Performance Units or Performance Shares. Subject to the provisions of Sections 5 and 6, Performance Units or Performance Shares may be granted to Participants at any time and from time to time as shall be determined by the Committee. The Committee shall have complete discretion in determining the number of Performance Units or Performance Shares granted to each Participant.
10.2 Value of Performance Units and Performance Shares. Each Performance Unit shall have an initial value of one hundred dollars ($100) and each Performance Share initially shall represent one share of Stock. The Committee shall set performance goals in its discretion which, depending on the extent to which they are met, will determine the ultimate value of the Performance Unit or Performance Share to the Participant. The time period during which the performance goals must be met shall be called a performance period, and also is to be determined by the Committee.
10.3 Payment of Performance Units and Performance Shares. After a performance period has ended, the holder of a Performance Unit or Performance Share shall be entitled to receive the value thereof as determined by the extent to which performance goals discussed in Section 10.2 have been met.
10.4 Form and Timing of Payment. Payment in Section 10.3 above shall be made in cash, stock, or a combination thereof as determined by the Committee. Payment may be made in a lump sum or installments as prescribed by the Committee. If any payment is to be made on a deferred basis, the Committee may provide for the payment of dividend equivalents or interest during the deferral period.
10.5 Termination of Employment Due to Death, Disability, or Retirement. In the case of death, Disability, or Retirement, the holder of a Performance Unit or Performance Share shall receive prorata payment based on the number of months' service during the performance period but based on the achievement of performance goals during the entire performance period. Payment shall be made at the time payments are made to Participants who did not terminate service during the performance period.
10.6 Termination of Employment for Other Reasons. In the event that a Participant terminates employment with the Company for any reason other than death, Disability or Retirement, all Performance Units and Performance Shares shall be forfeited; provided, however, that in the event of an involuntary termination of the employment of the Participant by the Company other than for Cause, the Committee in its sole discretion may waive the automatic forfeiture provisions and pay out on a pro rata basis.
10.7 Nontransferability. Units or Performance Shares granted under the Plan may be sold, transferred, pledged, assigned, or otherwise alienated or hypothecated, otherwise than by will or by the laws of descent and distribution until the termination of the applicable performance period. All rights with respect to Performance Units and Performance Shares granted to a Participant under the Plan shall be exercisable during his lifetime only by such Participant.
10.8 Performance Goals. For purposes of Section 9.2 and 10.2 hereof, "performance goals" shall mean the criteria and objectives, determined by the Committee pursuant to the Plan, which shall be satisfied or met during the applicable restriction period or performance period, as the case may be, as a condition to the Participant's receipt, in the case of a grant of the Restricted Stock or a grant of Performance Shares, of the shares of Stock subject to such grant, or in the case of a Performance Unit Award, of payment with respect to such Award. Such criteria and objectives may include, but are not limited to, return on assets, return on equity, growth in net earnings, growth in earnings per share, asset growth, deposit growth, loan growth, asset quality levels, growth in the Fair Market Value of the Stock, or any combination of the foregoing or any other criteria and objectives determined by the Committee. Upon completion of the restricted period or the performance period, as the case may be, the Committee shall certify the level of the performance goals attained and the amount of the Award payable as a result thereof.
SECTION 11. BENEFICIARY DESIGNATION
11.1 Beneficiary Designation. Each Participant under the Plan may name, from time to time, any beneficiary or beneficiaries (who may be named contingently or successively) to whom any benefit under the Plan is to be paid in case of his death before he receives any or all of such benefit. Each designation will revoke all prior designations by the same Participant, shall be in a form prescribed by the Committee, and will be effective only when filed by the Participant in writing with the Committee during his lifetime. In the absence of any such designation, benefits remaining unpaid at the Participant's death shall be paid to his estate.
SECTION 12. RIGHTS OF EMPLOYEES
12.1 Employment. Nothing in the Plan shall interfere with or limit in any way the right of the Company to terminate any Participant's employment at any time, nor confer upon any Participant any right to continue in the employ of the Company.
12.2 Participation. No employee shall have a right to be selected as a Participant, or, having been so selected, to be selected again as a Participant.
SECTION 13. CHANGE IN CONTROL
13.1 In General. In the event of a change in control of the Company as defined in Section 13.2 below, all Awards under the Plan shall vest 100%, whereupon all Options shall become exercisable in full, the restrictions applicable to Restricted Stock shall terminate, and Performance Units and Performance Shares shall be paid out based upon the extent to which performance goals during the performance period have been met up to the date of the change in control, or at target, whichever is higher.
13.2 Definition. For purposes of the Plan, a "change in control" shall mean any of the following events:
(a) Any "person" (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended), other than (i) a trustee or other fiduciary holding securities under an employee benefit plan of the Company or a subsidiary, or (ii) a corporation owned directly or indirectly by the shareholders of the Company in substantially the same proportions as their ownership of stock of the Company, is or becomes the "beneficial owner" (as defined in Rule 13d-3 under said Act), directly or indirectly, of securities of the Company representing 10% or more of the total voting power of the then outstanding shares of capital stock of the Company entitled to vote generally in the election of directors (the "Voting Stock"), provided, however, that the following shall not constitute a change in control: (A) such person becomes a beneficial owner of 10% of more of the Voting Stock as the result of an acquisition of such stock directly from the Company, or (B) such person becomes a beneficial owner of 10% or more of the Voting Stock as a result of the decrease in the number of outstanding shares caused by the repurchase of shares by the Company; provided, further, that in the event a person described in clause (A) or (B) shall thereafter increase (other than in circumstances described in clause (A) or (B)) beneficial ownership of stock representing more than 1% of the Voting Stock, such person shall then be deemed to become a beneficial owner of 10% or more of the Voting
Stock for purposes of this paragraph (a), provided such person continues to beneficially own 10% or more of the Voting Stock after such subsequent increase in beneficial ownership, or
(b) During any period of two consecutive years, individuals, who at the beginning of such period constitute the Board of Directors of the Company, and any new director, whose election by the Board of Directors or nomination for election by the Company's shareholders was approved by a vote of at least two-thirds (2/3) of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof, or
(c) the shareholders of the Company approve, or if such approval is not necessary or required, the consummation of, a reorganization, merger or consolidation, the sale or other disposition of all or substantially all of the assets, or a similar transaction or series of transactions involving the Company (a "Business Combination") in each case, unless (1) all or substantially all of the individuals and entities who were the beneficial owners, respectively, of the Voting Stock immediately prior to such Business Combination beneficially own, directly or indirectly, more than 50% of the total voting power represented by the voting securities entitled to vote generally in the election of directors of the Company or the corporation resulting from the Business Combination (including, without limitation, a corporation which as a result of the Business Combination owns the Company or all or substantially all of the Company's assets either directly or through one or more subsidiaries), in substantially the same proportions as their ownership, immediately prior to the Business Combination of the Voting Stock of the Company, and (2) at least a majority of the members of the board of directors of the Company or such corporation resulting from the Business Combination were members of the Incumbent Board at the time of the execution of the initial agreement, or action of the Incumbent Board, providing for such Business Combination; or
(d) the shareholders of the Company approve a plan of complete liquidation or dissolution of the Company.
The Board has final authority to determine the exact date on which a change in control has been deemed to have occurred under (a), (b), (c) and (d) above.
SECTION 14. AMENDMENT, MODIFICATION, AND TERMINATION OF PLAN
14.1 Amendment, Modification, and Termination of Plan. The Board at any time may terminate, and from time to time may amend or modify the Plan, provided, however, that except as provided in Section 5.3 of the Plan, no such action of the Board, without approval thereof by the shareholders of the Company may:
(a) Increase the total amount of Stock which may be issued under the Plan.
(b) Extend the period during which Awards may be granted.
(c) Extend the maximum period after the date of grant during which Options may be exercised.
No amendment, modification, or termination of the Plan shall in any manner adversely affect any Award theretofore granted under the Plan, without the consent of the Participant.
SECTION 15. TAX WITHHOLDING
15.1 Tax Withholding. The Company shall have the power and the right to deduct or withhold, or require a Participant to remit to the Company, an amount sufficient to satisfy Federal, state, and local taxes, domestic or foreign, required by law or regulation to be withheld with respect to any taxable event arising as a result of the Plan.
15.2 Share Withholding. With respect to withholding required upon the exercise of Options or SARs, upon the lapse of restrictions on Restricted Stock, or upon any other taxable event arising as a result of awards granted hereunder, Participants may elect to satisfy the withholding requirement, in whole or in part, by having the Company withhold shares of Stock having a Fair Market Value on the date the tax is to be determined equal to the minimum statutory total tax which would be imposed on the transaction; provided, however, that in the event a deferral election is in effect with respect to the shares deliverable upon exercise of an Option, then the Participant may only elect to have such withholding made from the Stock tendered to exercise such Option. All such elections shall be irrevocable, made in writing, signed by the Participant, and shall be subject to any restrictions or limitations that the Committee, in its sole discretion, deems appropriate.
SECTION 16. INDEMNIFICATION
16.1 Indemnification. Each Person who is or shall have been a member of the Committee or of the Board shall be indemnified and held harmless by the Company against and from any loss, cost, liability, or expense that may be imposed upon or reasonably incurred by him in connection with or resulting from any claim, action, suit, or proceeding to which he may be a party or in which he 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 in settlement thereof, with the Company's approval, or paid by him in satisfaction of any judgment in any such action, suit, or proceeding against him, provided he shall give the Company an opportunity, at its own expense, to handle and defend the same before he undertakes to handle and defend it on his own behalf. 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 Articles of Incorporation or Bylaws, as a matter of law, or otherwise, or any power that the Company may have to indemnify them or hold them harmless.
SECTION 17. REQUIREMENTS OF LAW
17.1 Requirements of Law. The granting of Awards and the issuance of shares of Stock upon the exercise of an Option shall be subject to all applicable laws, rules, and regulations, and to such approvals by any governmental agencies or national securities exchanges as may be required.
17.2 Governing Law. The Plan, and all agreements hereunder, shall be construed in accordance with and governed by the laws of the State of Illinois.
EXHIBIT 99.6
WHEREAS, on December 4, 2003, the Board of Directors of the Company
approved the following amendment to the Plan, pursuant to its authority under
Section 14.1 of the Plan;
RESOLVED, that Section 13. Changes in Control, is hereby amended effective as of the date of adoption of the Plan to add the following sentence at the end of Section 13.1:
In the event that any change in the outstanding Stock of the Company occurs by reason of a merger, consolidation, combination, share exchange or other similar transaction, each outstanding award shall be appropriately adjusted to reflect an option to purchase the number of shares or securities which the Stock subject to the award would have been converted into or exchanged for in the transaction, at a price per share or unit appropriately adjusted to reflect the terms of conversion or exchange, and the aggregate number of Stock which may be awarded under the Plan shall be appropriately adjusted to reflect such merger, consolidation, share exchange or other similar transaction.
EXHIBIT 99.7
VILLAGE BANCORP INC.
Village Bancorp Inc. 1998 Omnibus Stock Incentive Plan
CONVERSION AGREEMENT
THIS CONVERSION AGREEMENT, made and entered into as of ________, 2003 (this "Conversion Agreement"), by and between Village Bancorp Inc., a Delaware corporation (the "Company"), and the undersigned optionee ("Optionee") under the Village Bancorp Inc. 1998 Omnibus Stock Incentive Plan (the "Plan"), amends each Option Agreement evidencing a stock option (an "Option") heretofore granted to the Optionee under the Plan and listed on the Optionee Summary attached hereto as Exhibit A, as follows:
1. CONVERSION OF OPTION. Upon the Effective Time (as defined in the Merger Agreement described below) of that certain merger of WTFC Merger Co. ("Merger Co.") with and into the Company pursuant to that certain Agreement and Plan of Merger dated as of _______, 2003, by and among Wintrust Financial Corporation ("Wintrust"), Merger Co. and the Company (the "Merger Agreement"), each outstanding Option listed on the Optionee Summary attached hereto as Exhibit A shall be amended such that the common stock to which such Option relates shall be common stock, no par value per share, of Wintrust ("Wintrust Common Stock").
2. WINTRUST OPTION. The number of shares of Wintrust Common Stock to
which each such amended Option shall relate shall be equal to the product
(rounded down to the nearest whole share) of: (a) the number of shares of
Company Common Stock (as defined in the Merger Agreement) covered by the Option
listed in the Optionee Summary attached as Exhibit A hereto (to the extent not
theretofore exercised or terminated prior to the Effective Time), multiplied by
(b) the fraction of a share of Wintrust Common Stock represented by the Exchange
Ratio (as defined in the Merger Agreement). The exercise price per share
(rounded up to the nearest whole cent) of Wintrust Common Stock under each such
Option shall be equal to the quotient obtained by dividing (x) the exercise
price per share of Company Common Stock covered by the Option by (y) the
Exchange Ratio.
3. EXERCISABILITY. The Wintrust Option shall be exercisable in full at any time during the period beginning on the Effective Time and ending on the first to occur of (a) if Optionee is an employee, the date which is three months after the date Optionee ceases to be an employee if such termination of employment is not due to death, disability or Cause, (b) the first anniversary of the date Optionee ceases to be an employee if such termination is due to death or disability, or in the case of an outside director, the first anniversary of the date the director ceases to be a director of any of Wintrust's subsidiaries for any reason other than removal for Cause, (c) the date the Optionee ceases to be an employee, or in the case of an outside director, is removed as a director, of any of Wintrust's subsidiaries, if the termination or removal is for Cause, or (d) the expiration date set forth in the Optionee Summary attached hereto as Exhibit A. Optionee acknowledges to the extent the Option is an incentive stock option under Section 422 of the Internal Revenue Code (an "ISO"), if Optionee exercises the Option more than three months after Optionee ceases to be an employee, then the Option will not qualify for ISO treatment.
4. NOTIFICATION OF DISPOSITION; TAXES. Optionee shall promptly notify Wintrust in the event that Optionee disposes of any shares of Wintrust Common Stock purchased upon exercise of the Wintrust Option prior to the second anniversary of the date of grant, or, if later, prior to the first anniversary of the date of such exercise if, at the time the Wintrust Option was exercised, the Option was eligible for treatment as an ISO. In the event that any withholding taxes apply at the time of exercise, Optionee shall promptly pay, or cause to be paid, to Wintrust cash equal to such taxes or Optionee may direct that there be withheld from the shares issuable upon exercise shares of Wintrust Common Stock
with a Fair Market Value (as defined in the Plan as amended at the Effective Time) equal to the minimum required withholding taxes.
5. EFFECT OF CONVERSION AGREEMENT. Except as expressly provided for herein, this Conversion Agreement shall effect no amendment, change or modification whatsoever of or to an Option Agreement or to the Plan. From and after the Effective Time, each Option shall be subject to the amended terms of the Plan as so amended in accordance with the Merger Agreement, but only to the extent expressly provided for herein or that does not otherwise impair the rights of the Optionee in the Option. Unless defined herein, capitalized terms used in this Conversion Agreement shall have the same meaning ascribed to them under the Plan.
IN WITNESS WHEREOF, the Company has caused this Conversion Agreement to be executed by its duly authorized officers and the Optionee has hereunto set his hand and seal, all as of the date and year first above written.
VILLAGE BANCORP INC.
By:___________________
Its:__________________
ATTEST:
OPTIONEE:
OPTIONEE SUMMARY
Optionee:__________
Option Grant Company Common Exercise Price
Date Expiration Date Stock Shares # Per Share($)
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