Exhibit 10.6
AMERISAFE, INC.
2005 EQUITY INCENTIVE PLAN
1. PURPOSE. The purpose of the 2005 Equity Incentive Plan is to attract
and retain officers and other key employees for the Company and its Subsidiaries
and to provide to such persons appropriate incentives and rewards for superior
performance.
2. DEFINITIONS. As used in this Plan,
(a) "Award" means any award of Option Rights, Restricted Stock or
Restricted Stock Units granted under the Plan.
(b) "Award Agreement" means a written agreement setting forth the
terms, conditions and restrictions of the Award granted to the Participant. An
Award Agreement may be an "Option Award Agreement," a "Restricted Stock Award
Agreement" or a "Restricted Stock Unit Award Agreement."
(c) "Board" means the Board of Directors of the Company and, to the
extent of any delegation by the Board to a committee (or subcommittee thereof)
pursuant to Section 12 of this Plan, such committee (or subcommittee).
(d) "Change in Control" has the meaning provided in Section 9 of
this Plan.
(e) "Code" means the Internal Revenue Code of 1986, as amended from
time to time.
(f) "Common Shares" means the shares of common stock, par value
$0.01 per share, of the Company or any security into which such Common Shares
may be changed by reason of any transaction or event of the type referred to in
Section 8 of this Plan.
(g) "Company" means AMERISAFE, Inc., a Texas corporation.
(h) "Covered Employee" means a Participant who is, or is determined
by the Board to be likely to become, a "covered employee" within the meaning of
Section 162(m) of the Code (or any successor provision).
(i) "Date of Grant" means the date specified by the Board on which
an Award will become effective (which date will not be earlier than the date on
which the Board takes action with respect thereto).
(j) "Director" means a member of the Board of Directors of the
Company.
(k) "Effective Date" means _______ __, 2005.
(l) "Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder, as such law, rules and
regulations may be amended from time to time.
(m) "Incentive Stock Options" means Option Rights that are intended
to qualify as "incentive stock options" under Section 422 of the Code or any
successor provision.
(n) "Incumbent Directors" means the individuals who, as of the
Effective Date, are Directors of the Company and any individual becoming a
Director subsequent to the date thereof whose election, nomination for election
by the Company's shareholders, or appointment, was approved by a vote of at
least two-thirds of the then Incumbent Directors (either by a specific vote or
by approval of the proxy statement of the Company in which such person is named
as a nominee for Director, without objection to such nomination); provided,
however, that an individual shall not be an Incumbent Director if such
individual's election or appointment to the Board occurs as a result of an
actual or threatened election contest (as described in Rule 14a-12(c) of the
Exchange Act) with respect to the election or removal of Directors or other
actual or threatened solicitation of proxies or consents by or on behalf of a
Person other than the Board.
(o) "Management Objectives" means the measurable performance
objective or objectives established pursuant to this Plan for, when so
determined by the Board, Participants who have received grants of Option Rights,
Restricted Stock or Restricted Stock Units. Management Objectives may be
described in terms of Company-wide objectives or objectives that are related to
the performance of the individual Participant or of the Subsidiary, division,
department, region or function within the Company or Subsidiary in which the
Participant is employed. The Management Objectives may be made relative to the
performance of other companies. The Management Objectives applicable to any
Award to a Covered Employee will be based on specified levels of or growth in
one or more of the following criteria:
1. cash flow/net assets ratio;
2. return on total capital;
3. return on equity;
4. earnings per share growth;
5. revenue growth;
6. total return to shareholders;
7. loss ratio; and
8. premium volume.
If the Board determines that a change in the business, operations,
corporate structure or capital structure of the Company, or the manner in which
it conducts its business, or other events or circumstances render the Management
Objectives unsuitable, the Board may in its discretion modify such Management
Objectives or the related minimum acceptable level of achievement, in whole or
in part, as the Board deems appropriate and equitable, except in the case of a
Covered Employee where such action would result in the loss of the otherwise
available exemption of the Award under Section 162(m) of the Code. In such case,
the Board will not make any modification of the Management Objectives or minimum
acceptable level of achievement with respect to such Covered Employee.
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(p) "Market Value per Share" means, as of any particular date, (i)
the closing sale price per Common Share on that date (or if there are no sales
on that date, on the next preceding trading date during which a sale occurred)
as reported on the Nasdaq National Market System, or if the Common Shares are
not then-traded on the Nasdaq National Market System, the principal exchange on
which the Common Shares are then trading, or (ii) if clause (i) does not apply,
the fair value of the Common Shares as determined by the Board.
(q) "Optionee" means the optionee named in an Award Agreement
evidencing an outstanding Option Right.
(r) "Option Price" means the purchase price payable on exercise of
an Option Right.
(s) "Option Right" means the right to purchase Common Shares upon
exercise of an option granted pursuant to Section 4 of this Plan.
(t) "Participant" means a person who is selected by the Board to
receive benefits under this Plan and who is at the time an officer or other key
employee of the Company or any one or more of its Subsidiaries, or who has
agreed to commence serving in any of such capacities within 90 days of the Date
of Grant. The term "Participant" shall also include any person who provides
services to the Company (other than in the capacity as a member of the Board) or
a Subsidiary that are equivalent to those typically provided by an employee.
(u) "Person" means any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act).
(v) "Plan" means this 2005 Equity Incentive Plan.
(w) "Restricted Stock" means Common Shares granted or sold pursuant
to Section 5 of this Plan as to which neither the substantial risk of forfeiture
nor the prohibition on transfers has expired.
(x) "Restriction Period" means the period of time during which
Restricted Stock Units are subject to a substantial risk of forfeiture (based on
the passage of time, the achievement of performance goals, or upon the
occurrence of other events as determined by the Board, in its discretion), as
provided in Section 6 of this Plan.
(y) "Restricted Stock Unit" means an award made pursuant to Section
6 of this Plan of the right to receive Common Shares or cash at the end of a
specified period.
(z) "Subsidiary" means a corporation, company or other entity (i)
more than 50 percent of whose outstanding shares or other securities
(representing the right to vote for the election of directors or other managing
authority) are, or (ii) which does not have outstanding shares or other
securities (as may be the case in a partnership, limited liability company,
business trust or other legal entity), but more than 50 percent of whose
ownership interest representing the right generally to make decisions for such
entity is, now or hereafter, owned or controlled, directly or indirectly, by the
Company except that for purposes of determining whether any person may be a
Participant for purposes of any grant of Incentive Stock Options, "Subsidiary"
means any corporation in which the Company owns or controls, directly or
indirectly, more than
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50 percent of the total combined voting power represented by all classes of
stock issued by such corporation.
(aa) "Voting Securities" means, at any time, (i) the securities
entitled to vote generally in the election of Directors in the case of the
Company, or (ii) the securities entitled to vote generally in the election of
members of the board of directors or similar body in the case of another legal
entity.
3. SHARES AVAILABLE UNDER THE PLAN.
(a) Subject to adjustment as provided in Section 3(b) and Section 8
of this Plan, the number of Common Shares that may be issued or transferred (i)
upon the exercise of Option Rights, (ii) as Restricted Stock and released from
substantial risks of forfeiture thereof, or (iii) as Restricted Stock Units,
shall not exceed in the aggregate __________ Common Shares. Such shares may be
authorized but unissued shares or treasury shares or a combination of the
foregoing.
(b) The number of shares available in Section 3(a) above shall be
adjusted to account for shares relating to Awards that expire or are canceled or
forfeited. Upon payment in cash of the benefit provided by any Award granted
under this Plan, any shares that were covered by that Award shall again be
available for issue or transfer hereunder.
(c) Notwithstanding anything in this Section 3 or elsewhere in this
Plan to the contrary but subject to adjustment as provided in Section 8 of this
Plan, (i) the aggregate number of Common Shares actually issued or transferred
by the Company upon the exercise of Incentive Stock Options will not exceed
___________ Common Shares; (ii) no Participant will be granted Option Rights,
Restricted Stock or Restricted Stock Units during the term of the Plan, in the
aggregate, for more than ________ Common Shares during any calendar year; (iii)
the number of shares issued as Restricted Stock and Restricted Stock Units
(after taking into account any forfeitures, expirations, cancellations or
transfers upon expiration of any withholding amount) will not during the term of
the Plan in the aggregate exceed ____________ Common Shares.
4. OPTION RIGHTS. The Board may, from time to time and upon such terms and
conditions as it may determine, authorize the granting to Participants of
options to purchase Common Shares. Each such grant may utilize any or all of the
authorizations, and will be subject to all of the requirements contained in the
following provisions:
(a) Each grant will specify the number of Common Shares covered by
such grant, subject to the limitations set forth in Section 3 of this Plan.
(b) Each grant will specify an Option Price per share, which may not
be less than the Market Value per Share on the Date of Grant.
(c) Each grant will specify the date or event (which may include the
achievement of specified Management Objectives) when all or any portion of the
Option Right is to become exercisable, and may provide for the earlier exercise
of such Option Right in the event of a Change in Control. Notwithstanding the
foregoing, no Option Right will be exercisable more than 10 years from the Date
of Grant.
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(d) Each grant will specify whether the Option Price will be payable
(i) in cash or by check acceptable to the Company or by wire transfer of
immediately available funds, (ii) by the actual or constructive transfer to the
Company of Common Shares owned by the Optionee for at least 6 months having a
Market Value per Share at the time of exercise equal to the total Option Price,
or (iii) by a combination of such methods of payment.
(e) To the extent permitted by law, any grant may provide for
deferred payment of the Option Price from the proceeds of sale through a bank or
broker on a date satisfactory to the Company of some or all of the shares to
which such exercise relates.
(f) Successive grants may be made to the same Participant whether or
not any Option Rights previously granted to such Participant remain unexercised.
(g) Option Rights granted under this Plan may be (i) options,
including, without limitation, Incentive Stock Options, that are intended to
qualify under particular provisions of the Code, (ii) options that are not
intended so to qualify, or (iii) combinations of the foregoing.
(h) Each grant of Option Rights shall be evidenced by an Award
Agreement, which shall specify whether the Option Right is intended to be an
Incentive Stock Option. Each Award Agreement shall be subject to the Plan and
shall contain such terms and provisions, consistent with this Plan, as the Board
may approve, and, if the Board shall so provide, may require the satisfaction or
achievement of certain Management Objectives as a condition to the exercise
thereof.
5. RESTRICTED STOCK. The Board may also authorize the grant or sale of
Restricted Stock to Participants. Each such grant or sale may utilize any or all
of the authorizations, and will be subject to all of the requirements, contained
in the following provisions:
(a) Each such grant or sale will constitute an immediate transfer of
the ownership of Common Shares to the Participant in consideration of the
performance of services, entitling such Participant to voting, dividend and
other ownership rights, but subject to the substantial risk of forfeiture and
restrictions on transfer as provided in this Plan or the applicable Award
Agreement.
(b) Each such grant or sale may be made without additional
consideration or in consideration of a payment by such Participant that is less
than the Market Value per Share at the Date of Grant.
(c) Each such grant or sale will provide that the Restricted Stock
covered by such grant or sale will be subject to a "substantial risk of
forfeiture" within the meaning of Section 83 of the Code for a period to be
determined by the Board at the Date of Grant and set forth in an Award
Agreement. Notwithstanding the foregoing, each such grant may provide for the
earlier lapse of such substantial risk of forfeiture upon (i) the Participant
achieving Management Objectives specified in such grant, or (ii) a Change in
Control.
(d) Each such grant or sale will provide that during the period for
which such substantial risk of forfeiture is to continue, the transferability of
the Restricted Stock will be prohibited or restricted in the manner and to the
extent prescribed by the Board at the Date of
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Grant (which restrictions may include, without limitation, rights of repurchase
or first refusal in the Company or provisions subjecting the Restricted Stock to
a continuing substantial risk of forfeiture in the hands of any transferee).
(e) Any such grant or sale of Restricted Stock may require that any
or all dividends or other distributions paid thereon during the period of such
restrictions be automatically deferred and reinvested in additional shares of
Restricted Stock, which may be subject to the same restrictions as the
underlying award.
(f) Each grant or sale of Restricted Stock will be evidenced by an
Award Agreement and will contain such terms and provisions, consistent with this
Plan, as the Board may approve. Unless otherwise directed by the Board, all
certificates representing shares of Restricted Stock will be held in custody by
the Company until all restrictions thereon will have lapsed, together with a
stock power or powers executed by the Participant in whose name such
certificates are registered, endorsed in blank and covering such Shares.
6. RESTRICTED STOCK UNITS. The Board may also authorize the grant or sale
of Restricted Stock Units to Participants. Each such grant or sale may utilize
any or all of the authorizations, and will be subject to all of the requirements
contained in the following provisions:
(a) Each such grant or sale will constitute the agreement by the
Company to deliver Common Shares or cash to the Participant in the future in
consideration of the performance of services, but subject to the fulfillment of
such conditions during the Restriction Period as the Board may specify.
(b) Each such grant or sale may be made without additional
consideration or in consideration of a payment by such Participant that is less
than the Market Value per Share at the Date of Grant.
(c) Each such grant or sale will be subject to a Restriction Period
as determined by the Board at the Date of Grant, and may provide for the earlier
lapse or other modification of such Restriction Period upon (i) the Participant
achieving Management Objectives specified in such grant or (ii) a Change in
Control.
(d) During the Restriction Period, the Participant will have no
right to transfer any rights under his or her Restricted Stock Units and will
have no rights of ownership in the Restricted Stock Units and will have no right
to vote them, but the Board may, at or after the Date of Grant, authorize the
payment of dividend equivalents on such Restricted Stock Units on either a
current or deferred or contingent basis.
(e) Each grant or sale of Restricted Stock Units will be evidenced
by an Award Agreement and will contain such terms and provisions, consistent
with this Plan, as the Board may approve.
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7. TRANSFERABILITY. Except as otherwise determined by the Board, no Award
shall be transferable by a Participant other than by will or the laws of descent
and distribution. Except as otherwise determined by the Board, Option Rights
shall be exercisable during the Optionee's lifetime only by him or her or by his
or her guardian or legal representative.
8. ADJUSTMENTS. The Board may make or provide for such adjustments in the
numbers of Common Shares covered by outstanding Option Rights and Restricted
Stock Units granted hereunder and in the kind of securities covered thereby as
the Board, in its sole discretion, exercised in good faith, may determine is
equitably required to prevent dilution or enlargement of the rights of
Participants or Optionees that otherwise would result from (a) any stock
dividend, stock split, combination of shares, recapitalization or other change
in the capital structure of the Company, or (b) any merger, consolidation,
spin-off, split- off, spin-out, split-up, reorganization, partial or complete
liquidation or other distribution of assets, issuance of rights or warrants to
purchase securities, or (c) any other corporate transaction or event having an
effect similar to any of the foregoing. Moreover, in the event of any such
transaction or event, the Board, in its discretion, may provide in substitution
for any or all outstanding Awards under this Plan such alternative consideration
as it, in good faith, may determine to be equitable in the circumstances and may
require in connection therewith the surrender of all Awards so replaced. The
Board may also make or provide for such adjustments in the numbers of shares
specified in Section 3 of this Plan as the Board in its sole discretion,
exercised in good faith, may determine is appropriate to reflect any transaction
or event described in this Section 8; provided, however, that any such
adjustment to the number specified in Section 3(c)(i) will be made only if and
to the extent that such adjustment would not cause any Option intended to
qualify as an Incentive Stock Option to fail so to qualify.
9. CHANGE IN CONTROL. For purposes of this Plan, except as may be
otherwise defined in an individual Participant's Award Agreement, a "Change in
Control" shall mean the occurrence of any of the following events:
(a) the acquisition by any Person of beneficial ownership (within
the meaning of Rule 13d-3 promulgated under the Exchange Act) of 35% or more of
the then outstanding Voting Securities of the Company; provided, however, that
for purposes of this Section 9(a), the following acquisitions shall not
constitute a Change in Control: (A) any acquisition by the Company or a
Subsidiary of Voting Securities, (B) any acquisition of Voting Securities by any
employee benefit plan (or related trust) sponsored or maintained by the Company
or any Subsidiary or (C) any acquisition of Voting Securities by any Person
pursuant to a Business Combination that complies with clauses (A), (B) and (C)
of Section 9(c) below;
(b) a majority of the Board ceases to be comprised of Incumbent
Directors;
(c) consummation of a reorganization, merger or consolidation, a
sale or other disposition of all or substantially all of the assets of the
Company or other transaction (each, a "Business Combination"), unless, in each
case, immediately following the Business Combination, (A) all or substantially
all of the individuals and entities who were the beneficial owners of Voting
Securities immediately prior to the Business Combination beneficially own,
directly or indirectly, more than 50% of the combined voting power of the then
outstanding Voting Securities of the entity resulting from the Business
Combination (including, without limitation, an entity which as a result of such
transaction owns the Company or all or
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substantially all of the Company's assets either directly or through one or more
subsidiaries), (B) no Person (other than the Company, such entity resulting from
the Business Combination, or any employee benefit plan (or related trust)
sponsored or maintained by the Company, any Subsidiary or such entity resulting
from the Business Combination) beneficially owns, directly or indirectly, 35% or
more of the combined voting power of the then outstanding Voting Securities of
the entity resulting from the Business Combination; provided, however, that no
Person will be treated for purposes of this Section 9(c) as beneficially owning
35% or more of the Voting Securities of the entity resulting from the Business
Combination solely as a result of the Voting Securities held in the Company
prior to consummation of the Business Combination and (C) at least a majority of
the members of the board of directors of the entity resulting from the Business
Combination were Incumbent Directors at the time of the execution of the initial
agreement or of the action of the Board providing for the Business Combination;
or
(d) approval by the shareholders of the Company of a complete
liquidation or dissolution of the Company, except pursuant to a Business
Combination that complies with clauses (A), (B) and (C) of Section 9(c) hereof.
Notwithstanding anything to the contrary contained in this Section 9, a
Person who holds 35% or more of the Voting Securities of the Company on the
Effective Date will not be deemed to have acquired 35% or more of the Voting
Securities of the Company for purposes of Section 9(a) of this Plan (and as a
result, such circumstance shall not constitute a Change in Control) unless after
the Effective Date such person acquires, in one or more transactions, additional
Voting Securities of the Company representing 1% or more of the then outstanding
Voting Securities of the Company it being understood that an increase in the
percentage of Voting Securities held by a Person as a result of the Company's
repurchase of Voting Securities of the Company is not an acquisition of Voting
Securities by such Person.
10. FRACTIONAL SHARES. The Company will not be required to issue any
fractional Common Shares pursuant to this Plan. The Board may provide for the
elimination of fractions or for the settlement of fractions in cash.
11. WITHHOLDING TAXES. To the extent that the Company is required to
withhold federal, state, local or foreign taxes in connection with any payment
made or benefit realized by a Participant or other person under this Plan, and
the amounts available to the Company for such withholding are insufficient, it
will be a condition to the receipt of such payment or the realization of such
benefit that the Participant or such other person make arrangements satisfactory
to the Board for payment of the balance of such taxes required to be withheld,
which arrangements (in the discretion of the Board) may include relinquishment
of a portion of such benefit.
12. ADMINISTRATION OF THE PLAN.
(a) This Plan will be administered by the Board, which may from time
to time delegate all or any part of its authority under this Plan to the
Compensation Committee of the Board (or a subcommittee thereof), as constituted
from time to time. To the extent of any such delegation, references in this Plan
to the Board will be deemed to be references to such committee or subcommittee.
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(b) The interpretation and construction by the Board of any
provision of this Plan or of any Award Agreement and any determination by the
Board pursuant to any provision of this Plan or of any such Award Agreement will
be final and conclusive. No member of the Board will be liable for any such
action or determination made in good faith.
13. AMENDMENTS AND OTHER MATTERS
(a) The Board may at any time and from time to time amend the Plan
in whole or in part; provided, however, that any amendment (i) which must be
approved by the shareholders of the Company in order to comply with applicable
law or the rules of the Nasdaq National Market System or, if the Common Shares
are not traded on the Nasdaq National Market System, the principal national
securities exchange upon which the Common Shares are traded or quoted, or (ii)
which would increase the benefits accruing to Participants, increase the
aggregate number of Common Shares that may be issued under the Plan or
materially modify the eligibility requirements for participating in the Plan,
will not be effective unless and until the shareholders of the Company have
approved such amendment.
(b) The Board will not, without the further approval of the
shareholders of the Company, authorize the amendment of any outstanding Option
Right to reduce the Option Price. Furthermore, no Option Right will be cancelled
and replaced with awards having a lower Option Price without further approval of
the shareholders of the Company. This Section 13(b) is intended to prohibit the
repricing of "underwater" Option Rights and will not be construed to prohibit
the adjustments provided for in Section 8 of this Plan.
(c) The Board also may permit Participants to elect to defer the
issuance of Common Shares or the settlement of Awards in cash under the Plan
pursuant to such rules, procedures or programs as it may establish for purposes
of this Plan. The Board also may provide that deferred issuances and settlements
include the payment or crediting of dividend equivalents or interest on the
deferral amounts.
(d) In case of termination of employment by reason of death,
disability or normal or early retirement, or in the case of hardship or other
special circumstances, of a Participant who holds an Option Right not
immediately exercisable in full, or any shares of Restricted Stock as to which
the substantial risk of forfeiture or the prohibition or restriction on transfer
has not lapsed, or any Restricted Stock Units as to which the Restriction Period
has not been completed, the Board may, in its sole discretion, accelerate the
time at which such Option Right or other Award may be exercised or the time at
which such substantial risk of forfeiture or prohibition or restriction on
transfer will lapse or the time when such Restriction Period will end or may
waive any other limitation or requirement under any such Award.
(e) This Plan will not confer upon any Participant any right with
respect to continuance of employment or other service with the Company or any
Subsidiary, nor will it interfere in any way with any right the Company or any
Subsidiary would otherwise have to terminate such Participant's employment or
other service at any time.
(f) The Board may amend the terms of any Award granted under this
Plan prospectively or retroactively but, subject to Section 8, no such amendment
shall impair the rights of any holder without his or her consent.
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14. GOVERNING LAW. The Plan and all grants and Awards and actions taken
thereunder shall be governed by and construed in accordance with the internal
substantive laws of the State of Texas.
15. TERMINATION. This plan will expire on the tenth anniversary of the
Effective Date (the "Expiration Date"). No grant will be made under this Plan
after the Expiration Date, but all grants made on or prior to such date will
continue in effect thereafter subject to the terms thereof and of this Plan. The
Board may, in its discretion, terminate this Plan at any time. Termination of
this Plan will not affect the rights of Participants or their successors under
any Awards outstanding hereunder and not exercised in full on the date of
termination.
16. GENERAL PROVISIONS.
(a) No Award under this Plan may be exercised by the holder thereof
if such exercise, and the receipt of cash or stock thereunder, would be, in the
opinion of counsel selected by the Board, contrary to law or the regulations of
any duly constituted authority having jurisdiction over this Plan.
(b) Absence on leave approved by an officer of the Company or any of
its Subsidiaries shall not be considered interruption or termination of service
of any employee for any purposes of this Plan or Awards granted hereunder,
except that no Awards may be granted to an employee while he or she is absent on
leave.
(c) No Participant shall have any rights as a shareholder with
respect to any Common Shares subject to Awards granted to him or her under this
Plan prior to the date as of which he or she is actually recorded as the holder
of such Common Shares upon the stock records of the Company.
(d) All notices under this Plan will be in writing, and if to the
Company, will be delivered to the Secretary of the Company or mailed to its
principal executive office, addressed to the attention of the Secretary; and if
to a Participant, shall be delivered personally or mailed to the Participant at
the address appearing in the records of the Company or Subsidiary. Such address
may be changed at any time by written notice to the other party.
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