As filed with the Securities and Exchange Commission on February 24, 2016.
Registration No. 333-207334
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1 ON FORM S-8
TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
F.N.B. CORPORATION
(Exact name of registrant as specified in its charter)
| Florida | 25-1255406 | |
|
(State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) |
One North Shore Center
12 Federal Street
Pittsburgh, Pennsylvania 15212
(Address of principal executive offices) (Zip Code)
Metro Bancorp, Inc. Amended and Restated 2006 Employee Stock Option and
Restricted Stock Plan
(Full Title of the Plan)
Vincent J. Delie, Jr.
President and Chief Executive Officer
F.N.B. Corporation
One North Shore Center
12 Federal Street
Pittsburgh, Pennsylvania 15212
(Name and address of agent for service)
(800) 555-5455
(Telephone number, including area code, of agent for service)
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer | x | Accelerated filer | ¨ | |||
| Non-accelerated filer | ¨ (Do not check if a smaller reporting company) | Smaller reporting company | ¨ | |||
CALCULATION OF REGISTRATION FEE
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Title of Each Class of Securities to be Registered |
Amount
to be
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Proposed
Maximum Offering Price per Unit |
Proposed
Offering Price |
Amount of Registration Fee(2) |
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Common stock, $0.01 par value per share |
130,057 shares | N/A | N/A | N/A | ||||
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(1) Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement shall also be deemed to cover any additional securities to be offered or issued in connection with the provisions of the above-referenced plans, which provide for adjustments in the amount of securities to be offered or issued to prevent dilution resulting from stock splits, stock dividends or similar transactions.
(2) This Post-Effective Amendment No. 1 covers securities that were originally registered on F.N.B. Corporation’s Registration Statement on Form S-4, as amended by Pre-Effective Amendment No. 1 (Registration No. 333-207334). All filing fees payable in connection with the issuance of these securities were previously paid in connection with the initial filing of F.N.B. Corporation’s Registration Statement on Form S-4 (Registration No. 333-207334) with the Securities and Exchange Commission (the “Commission”) on October 8, 2015.
EXPLANATORY NOTE
F.N.B. Corporation, a Florida corporation, hereby amends its Registration Statement on Form S-4, as amended by Pre-Effective Amendment No. 1 (Registration No. 333-207334) (the “Form S-4”) by filing this Post-Effective Amendment No. 1 on Form S-8. The Form S-4, as amended by this Post-Effective Amendment No. 1 on Form S-8, is referred to as the “Registration Statement.”
The Form S-4 related to 36,500,000 shares of F.N.B. common stock to be issued by F.N.B. in connection with its acquisition of Metro Bancorp, Inc., a Pennsylvania corporation. The acquisition was completed on February 13, 2016. In the acquisition, Metro was merged with and into F.N.B., with F.N.B. being the surviving corporation. At the time of the merger, each Metro common share outstanding immediately prior to the merger was cancelled.
The merger consideration payable by F.N.B. for the common shares of Metro cancelled in the merger (excepting certain shares held by F.N.B., Metro and their subsidiaries, which were cancelled without receipt of any merger consideration) was 2.373 shares of F.N.B. common stock, par value $0.01 per share, for each common share of Metro, and cash in lieu of any fractional shares of F.N.B. common stock that was otherwise payable. The shares that were registered on the Form S-4 included the maximum number of shares of F.N.B. common stock that could be issuable as merger consideration at the time of the merger, taking into account all outstanding awards under the Metro Bancorp, Inc. 2011 Directors Stock Option Plan, the Metro Bancorp, Inc. Amended and Restated 2006 Employee Stock Option and Restricted Stock Plan and the Metro Bancorp, Inc. Amended 2001 Directors Stock Option Plan (collectively, the “Plans”).
Upon completion of the merger, F.N.B. assumed the Plans, and all of the Metro stock options outstanding at the effective time of the merger became stock options with respect to shares of F.N.B. common stock, based on formulae described in the Form S-4.
This Post-Effective Amendment No. 1 relates to 130,057 shares of F.N.B.’s common stock in the aggregate that are reserved for issuance upon the exercise or settlement of currently outstanding stock options granted under the Plans, all of which options are held by current or former employees and directors of F.N.B. All such shares of common stock were originally registered on the Form S-4.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document(s) containing the information concerning the above-referenced plans required by Item 1 of Form S-8 and the statement of availability of registrant information, plan information and other information required by Item 2 of Form S-8 will be sent or given to employees as specified by Rule 428 under the Securities Act of 1933. In accordance with Rule 428 and the requirements of Part I of Form S-8, such documents are not being filed with the Commission either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act of 1933. The Registrant will maintain a file of such documents in accordance with the provisions of Rule 428. Upon request, the Registrant will furnish to the Commission or its staff a copy of any or all of the documents included in such file.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
| Item 3. | Incorporation of Documents by Reference. |
The following documents filed with the Commission by the Registrant (File No. 001-31940) pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”), are incorporated herein by reference, except for any portions of these documents that are deemed furnished but not filed for purposes of the Exchange Act:
| • | the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2014; |
| • | the portions of the Registrant’s definitive proxy statement on Schedule 14A filed on April 1, 2015 that are incorporated by reference in its Annual Report on Form 10-K for the year ended December 31, 2014; |
| • | the Registrant’s Quarterly Reports on Form 10-Q for the quarterly periods ended March 31, 2015, June 30, 2015 and September 30, 2015; |
| • | the Registrant’s Current Reports on Form 8-K filed on April 2, 2015, May 6, 2015, May 21, 2015, May 27, 2015, August 4, 2015, August 7, 2015, October 5, 2015, October 27, 2015, December 22, 2015, January 11, 2016, January 15, 2016, February 19, 2016 and February 23, 2016; |
| • | the description of the Registrant’s common stock contained in its registration statement filed pursuant to Section 12 of the Exchange Act, and any amendment or report filed for the purpose of updating such description. |
In addition, all documents filed by the Registrant pursuant to Section 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the date of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall also be deemed to be incorporated by reference into this Registration Statement and to be a part hereof commencing on the date of the filing of such documents; provided, however, that the Registrant is not incorporating by reference any information that is deemed furnished but not filed for purposes of the Exchange Act, unless the Registrant has stated that particular information is to be incorporated by reference in its registration statements.
Any statement contained herein or in a document all or a portion of which is 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 amended, 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.
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| Item 6. | Indemnification of Directors and Officers. |
The Florida Business Corporation Act, as amended (the “FBCA”), provides that, in general, a business corporation may indemnify any person who is or was a party to any proceeding, 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 or officer of the corporation, against liability incurred in connection with such proceeding, including any appeal thereof, provided certain standards are met, including that such officer or director 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 provided further that, with respect to any criminal action or proceeding, the officer or director had no reasonable cause to believe his or her conduct was unlawful. In the case of proceedings by or in the right of the corporation, the FBCA provides that, in general, a corporation may indemnify any person who was or is a party to any such proceeding by reason of the fact that he or she is or was a director or officer of the corporation against expenses and amounts paid in settlement actually and reasonably incurred in connection with the defense or settlement of such proceeding, including any appeal thereof, provided that 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, except that the amount so indemnified shall not exceed the estimated expense of litigating the matter to conclusion, and no indemnification shall be made with respect to any claim as to which such person is adjudged liable, unless a court of competent jurisdiction determines upon application that such person is fairly and reasonably entitled to indemnity. To the extent that any officer or director is successful on the merits or otherwise in the defense of any of such proceedings, the FBCA requires that the corporation indemnify such officer or director against expenses actually and reasonably incurred in connection therewith. However, the FBCA further provides that, in general, indemnification or advancement of expenses shall not be made to or on behalf of any officer or director if a judgment or other final adjudication establishes that his or her actions, or omissions to act, were material to the cause of action so adjudicated and constitute: (i) a violation of the criminal law, unless the director or officer had reasonable cause to believe his or her conduct was lawful or had no reasonable cause to believe it was unlawful; (ii) a transaction from which the director or officer derived an improper personal benefit; (iii) in the case of a director, a circumstance under which the director has voted for or assented to a distribution made in violation of the FBCA or the corporation’s articles of incorporation; or (iv) willful misconduct or a conscious disregard for the best interests of the corporation in a proceeding by or in the right of the corporation to procure a judgment in its favor or in a proceeding by or in the right of a shareholder.
The Registrant’s articles of incorporation and bylaws provide that the Registrant shall indemnify its directors and officers to the fullest extent permitted by law in connection with any actual or threatened action, suit or proceeding, civil, criminal, administrative, investigative or other, whether brought by or in the right of the Registrant or otherwise, arising out of their service to the Registrant or to another organization at the Registrant’s request, or because of their positions with the Registrant. The Registrant’s bylaws also state that the Registrant shall pay the expenses incurred by a director or officer in defending or investigating a threatened or pending action, suit or proceeding in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by the director or officer to repay those amounts if it is ultimately determined that he or she was not entitled to be indemnified. The Registrant’s articles of incorporation further provide that the Registrant may purchase and maintain insurance to protect itself and any such director or officer against any liability, cost or expense asserted against or incurred by him or her with respect to such service, whether or not the Registrant would have the power to indemnify him or her against such liability by law or under the provisions of this paragraph.
The Registrant has entered into indemnification agreements with its directors and officers and maintains insurance policies insuring directors and officers against certain liabilities they may incur in their capacity as such.
| Item 7. | Exemption from Registration Claimed. |
Not applicable.
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| Item 8. | Exhibits. |
The following exhibits are filed with or incorporated by reference in this Registration Statement:
|
Exhibit No. |
Description |
|
| 5.1 | Opinion of Reed Smith LLP (previously filed as an exhibit to the Registrant’s Registration Statement on Form S-4 (Registration No. 333-207334) | |
| 23.1 | Consent of Reed Smith LLP (contained in Exhibit 5.1) | |
| 23.2 | Consent of Ernst & Young LLP, filed herewith | |
| 24.1 | Powers of attorney (previously filed as an exhibit to the Registrant’s Registration Statement on Form S-4 (Registration No. 333-207334)) | |
| 99.1 | Metro Bancorp, Inc. Amended and Restated 2006 Employee Stock Option and Restricted Stock Plan, filed herewith | |
| Item 9. | Undertakings. |
(a) The 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:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement;
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change in such information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this 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 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, where applicable, each filing of an employee benefit plan’s annual report pursuant to
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Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement 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.
(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 Securities 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 public policy as expressed in the Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of 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 Pittsburgh, Commonwealth of Pennsylvania, on February 24, 2016.
| F.N.B. CORPORATION | ||
| By: | /s/ Vincent J. Delie, Jr. | |
| Vincent J. Delie, Jr. | ||
| President and Chief Executive Officer | ||
Pursuant to the requirements of the Securities Act of 1933, the registration statement has been signed by the following persons in the capacities and on the dates indicated.
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Signature |
Title |
Date |
||
|
/s/ Vincent J. Delie, Jr. Vincent J. Delie, Jr. |
President and Chief Executive Officer and a Director (principal executive officer) |
February 24, 2016 | ||
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/s/ Vincent J. Calabrese, Jr. Vincent J. Calabrese, Jr. |
Chief Financial Officer (principal financial officer) |
February 24, 2016 | ||
|
/s/ Timothy G. Rubritz Timothy G. Rubritz |
Corporate Controller and Senior Vice President (principal accounting officer) |
February 24, 2016 | ||
|
* William B. Campbell |
Director |
February 24, 2016 | ||
|
* James D. Chiafullo |
Director |
February 24, 2016 | ||
|
* Laura E. Ellsworth |
Director |
February 24, 2016 | ||
|
* Stephen J. Gurgovits |
Chairman of the Board and a Director |
February 24, 2016 | ||
|
* Robert A. Hormell |
Director |
February 24, 2016 | ||
|
* David J. Malone |
Director |
February 24, 2016 | ||
|
Signature |
Title |
Date |
||
|
* D. Stephen Martz |
Director |
February 24, 2016 | ||
|
* Robert J. McCarthy, Jr. |
Director |
February 24, 2016 | ||
|
Frank C. Mencini |
Director |
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David L. Motley |
Director |
|||
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* Heidi A. Nicholas |
Director |
February 24, 2016 | ||
|
Arthur J. Rooney, II |
Director |
|||
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John S. Stanik |
Director |
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* William J. Strimbu |
Director |
February 24, 2016 | ||
|
* Earl K. Wahl, Jr. |
Director |
February 24, 2016 | ||
* Vincent J. Delie, Jr., by signing his name hereto, does hereby sign this document on behalf of each of the above-noted directors of the Registrant pursuant to powers of attorney duly executed by such persons.
| By: | /s/ Vincent J. Delie, Jr. | |
| Vincent J. Delie, Jr. | ||
| Attorney-in-fact |
EXHIBIT INDEX
|
Exhibit No. |
Description |
|
| 5.1 | Opinion of Reed Smith LLP (previously filed as an exhibit to the Registrant’s Registration Statement on Form S-4 (Registration No. 333-207334)) | |
| 23.1 | Consent of Reed Smith LLP (included in Exhibit 5.1) | |
| 23.2 | Consent of Ernst & Young LLP, filed herewith | |
| 24.1 | Powers of attorney (previously filed as an exhibit to the Registrant’s Registration Statement on Form S-4 (Registration No. 333-207334)) | |
| 99.1 | Metro Bancorp, Inc. Amended and Restated 2006 Employee Stock Option and Restricted Stock Plan, filed herewith | |
Exhibit 23.2
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in the Post-Effective Amendment No. 1 on Form S-8 to the Registration Statement (Form S-4, No. 333-207334) and related prospectus of F.N.B. Corporation for the registration of 130,057 shares of common stock of our reports dated February 27, 2015, with respect to the consolidated financial statements of F.N.B Corporation and subsidiaries and the effectiveness of internal control over financial reporting of F.N.B. Corporation and subsidiaries included in its Annual Report (Form 10-K) for the year ended December 31, 2014, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Pittsburgh, Pennsylvania
February 24, 2016
Exhibit 99.1
METRO BANCORP, INC.
AMENDED AND RESTATED
2006 EMPLOYEE STOCK OPTION AND RESTRICTED STOCK PLAN
| 1. | Purpose of Plan |
The purpose of this Plan is to enable Metro Bancorp, Inc. (hereinafter referred to as “Metro”) to continue to compete successfully in attracting and retaining key employees with outstanding abilities by making it possible for them to receive awards of incentive stock options, nonqualified stock options and restricted stock and, thereby, acquire shares of Metro’s common stock on terms which will give them a more direct and continuing interest in the future success of Metro.
| 2. | Definitions |
“Award” means an award of incentive stock options, nonqualified stock options or restricted stock pursuant to this Plan.
“Board” means the Board of Directors of Metro.
“Committee” means a committee established by the Board. The Committee shall consist of three or more members of the Board. No member of the Committee may receive Options under the Plan. The Compensation Committee may be the Committee if it meets these qualifications.
“Employees” means employees, including officers, regularly employed on a salary basis by Metro or any subsidiary or affiliate of Metro. “Employment with Metro” or words to that effect, shall include employment by any subsidiary or affiliate of Metro.
“Fair Market Value” of a share of Metro’s common stock shall mean its closing sale price on the principal stock exchange on which the stock is traded on the date as of which the value is being determined. If there is no reported sale on that date, the Fair Market Value shall be the closing sale on the next preceding day for which a sale was reported.
“Metro” means Metro Bancorp, Inc., a Pennsylvania corporation and bank holding company.
“ISO” means an incentive stock option described in Section 422 of the Internal Revenue Code of 1986, as amended (the “Code”).
“NQSO” means a stock option, which is not described in Section 422 of the Code.
“Option” means an option, either in the form of an ISO or NQSO, granted in accordance with the terms of this Plan.
“Optionee” means a person to whom an option has been granted under this Plan.
“Option Price” means the per share exercise price of the shares of Metro common stock covered by each Option.
“Restricted Stock” means shares of Metro common stock that are not fully transferable until certain conditions established by the Committee have been met. Upon satisfaction of those conditions, the shares become transferable.
“Retirement” means termination of employment by an Optionee who has attained age 62 and has completed a minimum of five years of service with Metro.
“Shares” means shares of common stock of Metro.
| 3. | Aggregate Number of Shares |
The total number of Shares for which Awards may be granted under this Plan shall not exceed in the aggregate 500,000 shares, subject to appropriate adjustment if the number of issued Shares shall be increased or reduced by change in par value, combination, or split-up, reclassification, distribution of a dividend payable in stock, or similar corporate action. Shares covered by Awards, which have expired, which have been cancelled or forfeited or otherwise surrendered may again be available for Awards under this Plan. Options may be granted in the form of ISOs or NQSOs.
| 4. | Adjustment of Awards |
The number of Shares of Restricted Stock granted or Shares optioned from time to time to individual Optionee’s under the Plan, and the Option Prices therefore, shall be appropriately adjusted to reflect any changes in par value, combination, split-up, reclassification, distribution of dividend payable in stock, or the like.
| 5. | Granting of Options and Restricted Stock |
The Board, or if the Board so determines, the Committee, is authorized to grant Options and Restricted Stock to selected employees pursuant to this Plan until December 31, 2015. The number of Shares, if any, optioned or granted as restricted shares in each year, the employees to whom such Awards are granted, and the amount of each Award to each employee selected shall be wholly within the discretion of the Board or the Committee. The Board may grant both ISOs and NQSOs and award Restricted Stock to the same employee. Board action on Awards and administration of this Plan shall be only upon the advice and recommendation of the Committee if the Board has appointed a Committee.
| 6. | Terms of ISOs |
ISOs granted under this Plan shall contain the following terms:
| (a) | The ISO price shall be fixed by the Board or the Committee but shall in no event be less than 100% of the Fair Market Value of the Shares subject to the ISO on the date the ISO is granted. The ISO price, in the case of an Optionee who, at the time the Option is granted, owns more than 10% of the outstanding Shares of Metro’s common stock shall be at least 110% of the Fair Market Value of the Shares subject to the ISO on the date the ISO is granted. |
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| (b) | ISOs shall not be transferable otherwise than by will or by the laws of descent and distribution. No ISO shall be subject, in whole or in part, to attachment, execution or levy of any kind. |
| (c) | Each ISO shall expire and all rights under the ISO shall end at the expiration of the exercise period for the ISO, which shall in no event be extended beyond its original term and shall not be more than ten years after the date on which it was granted. Provided, however, that in the case of an Optionee who, at the time the Option is granted, owns more than 10% of the outstanding shares of Metro’s common stock, ISOs shall expire no more than five years after the date on which the ISO was granted. |
| (d) | ISOs may be exercised only while employed by Metro or within (i) three years after the Optionee’s death (if death occurs while employed), or (ii) except as otherwise provided in this Section 6, three months after termination of employment (but in any event not later than the end of the period fixed by the Board or the Committee of the Board in accordance with the provisions of paragraph (c) of this Section 6). In all other respects, an ISO is exercisable by terminated Optionee’s only to the extent the ISO was exercisable by the Optionee on the last day of his or her employment with Metro. If an Optionee terminates employment due to disability as defined in Section 22 (e)(3) of the Code, the ISOs granted to the Optionee shall be exercisable within 12 months after the date of termination (but in any event not later than the end of the period fixed by the Board or the Committee of the Board in accordance with the provisions of paragraph (c) of this Section 6). |
| (e) | If an Optionee dies while employed by Metro, the ISO may be exercised within three years after the Optionee’s death (but not later than the end of the period fixed by the Board or the Committee of the Board in accordance with the provisions of paragraph (c) of this Section 6) by those entitled under the Optionee’s will or the laws of descent and distribution, but only if and to the extent the ISO was exercisable by the Optionee immediately prior to the Optionee’s death. |
| (f) | If Optionee’s employment with Metro is terminated by Metro due to the misconduct of Optionee, as determined in the reasonable judgment of management of Metro, all ISOs granted to the Optionee prior to termination shall be forfeited by Optionee and rendered unexercisable. |
| (g) | ISOs may be exercised in whole or in part from time to time, subject to the provisions of this Plan and to such additional or different terms regarding the exercise of the ISOs as the Board or the Committee of the Board may fix at the time of grant. |
| (h) |
ISOs shall not be granted to any individual pursuant to this Plan, the effect of which would be to permit that individual first to exercise ISOs, in any calendar year, for the purchase of Shares having a Fair Market Value in excess of $100,000 |
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| (determined at the time of the grant of the ISOs). Any Optionee may exercise ISOs for the purchase of Shares valued in excess of $100,000 (determined at the grant of the ISOs) in any calendar year, but only if the right to exercise the ISOs shall have first become available in prior calendar years. |
| (i) | An ISO shall be automatically converted to an NQSO in the event all requirements of Section 422 of the Code are not met. |
| 7. | Terms of NQSOs |
NQSOs granted under this Plan shall contain the following terms:
| (a) | The NQSO price shall be fixed by the Board or the Committee, and may not be less than 100% of the Fair Market Value of the Shares subject to the NQSO on the date the NQSO is granted. |
| (b) | NQSOs shall not be transferable otherwise than by will or by the laws of descent and distribution. No NQSO shall be subject, in whole or in part, to attachment, execution or levy of any kind. |
| (c) | Each NQSO shall expire and all rights under the NQSO shall end at the expiration of the exercise period for the NQSO, which shall in no event be extended beyond its original term and shall not be more than ten years after the date on which it was granted. The Board or the Committee shall establish the exercise period for each NQSO, subject in all cases to paragraphs (d), (e) and (f) of this Section 7. |
| (d) | NQSOs may be exercised only while employed by Metro or within (i) three years after Retirement or death (if death occurs while employed), or (ii) except as otherwise provided in this Section 7, three months after termination of employment (but in any event not later than the end of the period fixed by the Board or the Committee of the Board in accordance with the provisions of paragraph (c) of Section 7). If an Optionee terminates employment due to disability as defined in Section 22(e)(3) of the Code, the NQSOs granted to the Optionee shall be exercisable within 12 months after the date of termination (but in any event not later than the end of the period fixed by the Board or the Committee of the Board in accordance with the provisions of paragraph (c) of this Section 7). |
| (e) | If an Optionee dies while employed, the NQSO may be exercised within three years after the Optionee’s death (but not later than the end of the period fixed by the Board or the Committee of the Board in accordance with the provisions of paragraph (c) of this Section 7) by those entitled under the Optionee’s will or the laws of descent and distribution. |
| (f) | If Optionee’s employment with Metro is terminated by Metro due to the misconduct of Optionee, as determined in the reasonable judgment of management of Metro, all NQSOs granted to the Optionee prior to termination shall be forfeited by Optionee and rendered unexercisable. |
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| (g) | NQSOs may be exercised in whole or in part from time to time, subject to the provisions of this Plan and to such additional or different terms regarding the exercise of the NQSOs as the Board or the Committee of the Board may fix at the time of grant. |
| 8. | Vesting of Options |
Except as provided in Section 9, no Option granted under this Plan may be exercised within one year from the date of the grant of the Option. Options held more than one year may be exercised based upon the Option holding period, pursuant to the following schedule:
|
Option Holding Period |
Percent Vested |
|
|
Less than 1 year |
0% | |
|
More than 1 year and less than 2 years |
25 | |
|
More than 2 years and less than 3 years |
50 | |
|
More than 3 years and less than 4 years |
75 | |
|
More than 4 years |
100 | |
| 9. | Full Vesting of Options Upon Retirement or a Change in Control |
All outstanding Options shall become fully and immediately exercisable upon Retirement (as defined herein) of an Optionee or upon a Change in Control (as defined herein), if the Optionee is employed by, or providing services to Metro as of the date of the Change in Control.
For the purposes of this Plan, a Change in Control with respect to any Optionee shall be deemed to have occurred when any of the following events shall have occurred without the prior written consent of such Optionee:
| (a) | A change in identity of at least four (4) members of the Board of Directors or the addition of four (4) or more new members to the Board of Directors, or any combination of the foregoing, within any two (2) consecutive calendar year periods. |
| (b) | A person or group acting in concert as described in Section 13(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) proposes to hold or acquire beneficial ownership within the meaning of Rule 13(d)(3) promulgated under the Exchange Act of a number of voting shares of the Company which constitutes either more than 50%, of the shares which voted in the election of Directors of Metro at the Shareholders’ Meeting immediately preceding such determination, or (ii) more than 50% of Metro’s outstanding voting shares. |
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The term “proposes to hold or acquire” shall mean the right of a person or group to acquire or merge (whether such right is exercisable immediately or only after the passage of time, or upon the receipt of such regulatory approvals as are required by applicable law) pursuant to an agreement, arrangement or understanding (whether or not in writing) or upon the exercise or conversion of rights, exchange rights, warrants or options, or otherwise.
| (c) | A person or group acting in concert as described in Section 13(d)(2) of the Exchange Act has commenced a tender or exchange offer with respect to the voting shares of Metro or securities convertible or exchangeable into voting shares of Metro. |
| (d) | A person or group acting in concert as described in Section 13(d)(2) of the Exchange Act has the right to vote shares of Metro pursuant to any agreement, arrangement or understanding (whether or not in writing), either (i) more than 50% of the shares which voted in the election of Directors of Metro at the Shareholders’ Meeting immediately preceding such determination, or (ii) more than 50% of Metro’s outstanding voting shares; provided, however, that such person or group acting in concert, shall not be deemed to have acquired such shares if the agreement, arrangement or understanding to vote such securities rises solely from a revocable proxy given in response to a Proxy Solicitation by management of Metro in connection with the Annual Meeting of the Shareholders of Metro. |
| 10. | Exercise Eligibility Period Following Termination of Employment |
Except in the event of Retirement of an Optionee or a Change in Control (as defined in Section 9), Options granted under this Plan less than one year prior to date of termination of employment are not exercisable under any circumstances. Options granted at least one year prior to termination of employment must be exercised prior to the expiration date of the Option and within the period set forth below depending upon the reason for termination:
|
Termination Reason |
Options Eligible for Exercise |
Exercise Eligibility Period |
||
| Retirement | 100% of outstanding Options | 3 years from Retirement date for NQSOs; 3 months from Retirement date for ISOs | ||
| Death while employed | 100% of outstanding Options | 3 years from date of death | ||
| Total & permanent disability | 100% of outstanding Options | 1 year from termination date | ||
| Misconduct | None | Not applicable | ||
| Any other reason | Any Option 100% vested plus the vested portion of the next oldest Option | 3 months from termination date | ||
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| 11. | Awards of Restricted Stock |
In its discretion and upon such terms as it deems appropriate, the Committee may award shares of Restricted Stock to selected employees as provided in this Section (a “Restricted Stock Award”).
| (a) | Shares issued pursuant to Restricted Stock Awards may be issued for cash consideration or for no cash consideration, at the sole discretion of the Committee. The Committee shall establish conditions under which or the time period within which restrictions on the transfer of Shares (the “Restriction Period”) shall exist as the Committee deems appropriate. |
| (b) | The Committee shall determine the number of Shares pursuant to a Restricted Stock Award in such manner as the Committee deems appropriate. |
| (c) | If the holder of the Restricted Stock Award ceases to be employed by Metro during the Restriction Period, the Restricted Stock Award shall terminate as to all Shares covered by the Award as to which restrictions on transfer have not lapsed and those Shares will be immediately returned to Metro. The Committee may, in its discretion, provide for complete or partial exceptions to this requirement. |
| (d) | During the Restriction Period, the Restricted Stock shall remain in the possession of Metro and the employee may not sell, assign, transfer, pledge or otherwise dispose of the Shares to which a Restriction Period applies. A certificate for the Shares shall be issued to the employee when all restrictions on such Shares have lapsed. |
| (e) | During the Restriction Period, unless the Committee determines otherwise, the employee shall have the right to vote the Shares and to receive any dividends or other distributions paid on such shares. |
| (f) | All restrictions imposed under the Restricted Stock Award shall lapse upon the expiration of the applicable Restriction Period and the satisfaction of any conditions imposed by the Committee. The Committee may determine, as to any or all Restricted Stock Awards, that all the restrictions shall lapse without regard to any Restriction Period. All restrictions under all outstanding Restricted Stock Awards shall automatically and immediately lapse upon a Change in Control (as defined in Section 9). |
| (g) | To the extent permitted by the Committee, the employee may make an election to satisfy his or her income tax withholding obligation with respect to a Restricted Stock Award by having Shares withheld up to an amount that does not exceed the employee’s minimum applicable tax rate for federal (including FICA), state and local tax liabilities. Such election must be in the form and manner prescribed by the Committee. If the employee is a director or officer within the meaning of Rule 16a-1(f) promulgated under the Exchange Act, such election must be irrevocable and must be made six months prior to the date on which all restrictions lapse with respect to such Shares. |
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| 12. | Reorganization of Metro |
In the event that Metro is succeeded by another corporation or bank in a reorganization, merger, consolidation, acquisition of property or stock, separation or liquidation, the successor corporation or bank shall assume the outstanding Awards granted under this Plan or shall substitute new Awards for them.
| 13. | Delivery of Shares |
No Shares shall be delivered upon the exercise of an Option until the Option price has been paid in full in cash or, at the discretion of the Board or the Committee, in whole or in part in Metro’s common stock owned by the Optionee valued at Fair Market Value on the date of exercise. If required by the Board, no Shares will be delivered upon the exercise of an Option or the lapse of a Restriction Period until the holder has given Metro a satisfactory written statement that he or she is acquiring the Shares for investment and not with a view to the sale or distribution of Shares.
| 14. | Continuation of Employment |
Neither this Plan nor any Option granted or Award of Restricted Stock under this Plan shall confer upon any employee any right to continue in the employ of Metro or limit in any respect the right of Metro to terminate the employee’s employment at any time.
| 15. | Administration |
The Board or the Committee may make rules and regulations and establish procedures as it deems appropriate for the administration of this Plan. In the event of a disagreement as to the interpretation of this Plan, any amendment thereto, any rule, regulation or procedure thereunder, or as to any right or obligation arising from or related to this Plan, the decision of the Board or the Committee shall be final and binding upon all persons in interest, including Metro, Optionees, and shareholders of Metro.
| 16. | Reservation of Shares |
Shares delivered upon the exercise of an Option or the lapse of a Restriction Period shall, in the discretion of the Board or the Committee, be either authorized but unissued Shares, or previously issued Shares acquired by Metro through purchase in the open market or otherwise, or a combination of both. Metro shall be under no obligation to reserve or to retain in its treasury any particular number of Shares at any time, and no particular Shares, whether unissued or held as treasury Shares, shall be identified as those optioned held as Restricted Stock under this Plan.
| 17. | Amendment of Plan |
The Board without further action by the shareholders may amend this Plan from time to time as it deems desirable. However, no such amendment shall increase the maximum number of Shares for which Options or Restricted Stock may be granted, reduce the minimum Option Price, extend the maximum Option period, or permit the granting of Options or Restricted Stock after December 31, 2015.
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| 18. | Termination of the Plan |
The Board may, in its discretion, terminate this Plan at any time prior to December 31, 2015. Termination of the Plan shall not deprive Optionees of Options granted prior to termination of the Plan.
| 19. | Effective Date – Shareholder Approval |
The 2006 Employee Stock Option Plan became effective as of January 1, 2006, with the approval by the holders of a majority of the shares casting a vote at a meeting of shareholders of Pennsylvania Commerce Bancorp, Inc. on May 20, 2005. The Plan was amended and restated at a meeting of shareholders of Metro on July 23, 2010 and further amended by the Board on February 21, 2014. Any amendments to the Plan shall become effective upon approval by the Board or by holders of a majority of the shares casting a vote at a meeting of shareholders of Metro, as appropriate.
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