UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
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Item 5.02(e) Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
On April 18, 2022, the Board of Directors (“Board”) and Compensation Committee (“Compensation Committee”) of the Board of International Bancshares Corporation (“IBC”) approved and adopted the following compensatory plans and arrangements:
2022 International Bancshares Corporation Stock Appreciation Rights Plan
The 2022 International Bancshares Corporation Stock Appreciation Rights Plan (“SAR Plan”) is designed to advance the interests of IBC and its shareholders by affording officers, employees, consultants and advisors of IBC and its subsidiaries an opportunity to participate in IBC’s growth by the grant of one or more Stock Appreciation Rights (“SARs”). In so doing, IBC seeks to motivate and retain present officers, employees, consultants and advisors of IBC and its subsidiaries as well as attract highly competent individuals whose judgment, initiative, leadership, and continued effort will contribute to the success of IBC and its subsidiaries.
SAR Plan Document
The full text of the SAR Plan is included as Exhibit 10.1 to this Form 8-K. The grant of a SAR is determined and made by the committee appointed by the Board from time to time and consisting of at least two Board members, each of whom is both a non-employee director and an outside director (“SAR Committee”). The following is a summary of the material features of the SAR Plan and is qualified in its entirety by the text of the SAR Plan attached to this Form 8-K as Exhibit 10.1.
Eligible Persons
Eligible persons include any officer, employee, consultant or advisor of IBC or any subsidiary, as may be designated from time to time by the SAR Committee as eligible to receive a SAR subject to the conditions of the SAR Plan. In determining eligibility of any individual to be granted a SAR, including the number of SARs to be granted to any individual, the SAR Committee shall take into account the position and responsibilities of the individual being considered, the nature and value to IBC or its subsidiaries of his or her service and accomplishments, his or her present and potential contribution to the success of IBC or its subsidiaries, and other factors as the SAR Committee may deem relevant.
Administration
The SAR Plan is administered by the SAR Committee, which shall be appointed by the Board from time to time and which shall consist of at least two Board members, each of whom is both a non-employee director, as defined by Rule 16b-3 promulgated under the Exchange Act, and an outside director, as defined by Section 162(m) of the Internal Revenue Code. No eligible officers or employees of IBC or its subsidiaries are permitted to serve on the SAR Committee.
The SAR Committee has full authority and absolute sole discretion, including, but not limited to, granting SARs; to determine which eligible persons are granted SARs; the form, terms, conditions, timing and amount of any SARs granted; the number of shares of IBC stock subject to each SAR and the base value of each SAR; the period over which the SAR shall vest and become and remain exercisable; to determine the forms and terms and provisions of each respective SAR Agreement (as defined below), which need not be identical; and to construe and interpret the SAR Plan and any SAR Agreements.
Terms and Limitations
The aggregate number of underlying shares of IBC stock that may be used for SAR grants under the SAR Plan shall not exceed 750,000 shares, but no shares are ever actually granted, and the grant will settle in cash upon exercise. No SAR granted under the SAR Plan shall have a term in excess of ten years from the grant date of such SAR. Each grant of a SAR under the SAR Plan shall be evidenced by a written Stock Appreciation Rights Award Agreement (“SAR Agreement”) dated as of the grant date and executed by IBC and the participant, as further described below. The SAR Committee has absolute sole discretion to determine the form and terms and provisions of each respective SAR Agreement, which need not be identical. The full text of the form of the SAR Agreement is included as Exhibit 10.2 to this Form 8-K.
Amendment and Termination of the SAR Plan
The Board may at any time terminate or suspend, and may at any time and from time to time and in any respect amend or modify, the SAR Plan including as is deemed necessary or advisable for the purpose of conforming the SAR Plan or any SAR Agreement to any present or future law relating to the SAR Plan and to the administrative regulations promulgated thereunder. All SARs granted under the SAR Plan shall be granted prior to the tenth anniversary of the effective date of the SAR Plan, such SARs shall continue under the SAR Plan in accordance with their terms, and the SAR Plan shall terminate as of the tenth anniversary of the effective date, which is the date on which the Board approved the SAR Plan.
2022 International Bancshares Corporation Stock Appreciation Rights Award Agreement
In connection with the SAR Plan, the Board and Compensation Committee also approved the form of the SAR Agreement. Participants in the SAR Plan may enter a SAR Agreement with IBC which provides for a grant of an aggregate number of stock appreciation rights.
SAR Agreement Document
The full text of the form of SAR Agreement is included as Exhibit 10.2 to this Form 8-K. The participants are entitled to exercise any granted SARs to receive the fair market value of shares of IBC stock on the date of exercise over the fair market value of shares of IBC stock on the grant date. The following is a summary of the material features of the SAR Agreement and is qualified in its entirety by the text of the form of SAR Agreement attached to this Form 8-K as Exhibit 10.2.
Terms and Conditions
The SAR Agreement shall set forth the terms and conditions of such SAR, including but not limited to the maximum duration of the SAR, the number of underlying shares of IBC stock to which the SAR pertains, and the conditions upon which the SAR shall become vested and exercisable, as may be determined by the SAR Committee consistent with the SAR Plan. The SAR Agreement shall establish the grant date of the SAR; the number of SARs granted; the base value of the SAR, defined as the fair market value of one share of IBC stock on the grant date; and the expiration date. The SAR Agreement shall additionally establish a vesting schedule for the SAR granted under the SAR Agreement, which shall be conditioned on the participant’s continuous service to IBC or its subsidiaries.
2022 International Bancshares Corporation Amended and Restated Management Incentive Plan
The purpose of the 2022 International Bancshares Corporation Amended and Restated Management Incentive Plan (“MIP”) is to promote and advance the interests of IBC and its shareholders by enabling IBC to attract, retain and reward officers of IBC and its affiliates. The MIP is an amendment and restatement of the International Bancshares Corporation 2013 Management Incentive Plan and applies to performance periods commencing on or after January 1, 2022.
MIP Document
The full text of the MIP is included as Exhibit 10.3 to this Form 8-K. The grant of any traditional incentive payment or merchant banking incentive payment (“Incentive Payment”) is determined and made by the Compensation Committee or a subcommittee thereof appointed by the Board to administer the MIP consisting of at least two Board members, each of whom is an outside director, as defined in Section 162(m) of the Internal Revenue Code (“MIP Committee”). The following is a summary of the material features of the MIP and is qualified in its entirety by the text of the MIP attached to this Form 8-K as Exhibit 10.3.
Eligible Employees
Eligible employees include any officer of IBC or an affiliate who is designated by the MIP Committee as eligible to receive an Incentive Payment under the MIP. Historically, only Dennis E. Nixon, IBC’s Chairman and CEO, has been designated as eligible to receive any Incentive Payment under the MIP.
Administration
The MIP Committee shall administer the MIP, and it shall have full authority and absolute sole discretion to construe, interpret, and administer the MIP, including, but not limited to, determinations relating to eligibility, whether to make Incentive Payments, the time or times when performance targets are established, the performance periods to which Incentive Payments relate, and the actual dollar amount of any Incentive Payment.
Performance Measures and Performance Targets – Traditional Incentive Payments
Within 90 days after the beginning of each annual performance period, the MIP Committee shall, in its sole discretion and before the outcome is substantially certain, determine and establish in writing (1) the applicable performance period; and (2) the performance measures to be used for purposes of setting the annual performance targets that must be attained during the performance period for participants to receive traditional incentive payments, and the calculation of those traditional incentive payments, based upon the relative level of attainment of the annual performance targets.
Incentive Payments
The plan includes traditional incentive payments and merchant banking incentive payments. Whether Incentive Payments are made to any officer for a given performance period is at the sole discretion of the MIP Committee.
The availability of traditional incentive payments is dependent on the attainment of performance targets, determined by the MIP Committee, for a given performance period. The maximum amount payable to any officer in a calendar year as a traditional incentive payment with respect to all performance periods completed during such calendar year shall be the lesser of 2.5% of IBC’s total income before taxes for the fiscal year or $3,000,000.
The MIP Committee shall also determine whether merchant banking incentive payments shall be made for a given performance period. The MIP Committee will select officers for merchant banking incentive payments, if applicable, and the Compensation Committee will take into account the role, time and effort devoted by each selected officer to the success of IBC’s merchant banking investments during the performance period. Aggregate merchant banking incentive payments attributable to any one transaction during the performance period may not exceed the lesser of $15,000,000 or 5% of the transaction value.
Incentive Payments shall be payable in cash as soon as administratively practicable after the end of the calendar year in which the performance period ends or is deemed to have ended in the event of a change in control of IBC, but in no event after the date that is two and a half months after the end of the calendar year in which the performance period ends or is deemed to have ended in the event of a change in control of IBC.
Certification
Pursuant to the MIP, after the end of each performance period, the MIP Committee shall:
(1) Certify in writing, prior to the unconditional payment of any traditional incentive payment, the level of attainment of the performance targets for the performance period;
(2) Determine the total amount available for traditional incentive payments based on the attainment of such performance targets; and
(3) In its sole discretion, adjust the size of, or eliminate, the total amount available for traditional incentive payments for the performance period; and in its sole discretion, determine the share, if any, of the available amount to be paid to each participant as that participant’s traditional incentive payment, and authorize payment of such amount.
Amendment and Termination of the MIP
The MIP Committee may amend, modify or terminate the MIP in any respect at any time without the consent of any participant. Any such action may be taken without the approval of IBC’s shareholders unless shareholder approval is required by applicable law. Termination of the MIP shall not affect any Incentive Payments determined by the MIP Committee to be earned prior to, but payable on or after, the date of termination, and any such Incentive Payments shall continue to be subject to the terms of the MIP notwithstanding its termination.
Item 9.01 Financial Statements and Exhibits.
| 10.1 | 2022 International Bancshares Corporation Stock Appreciation Rights Plan dated April 18, 2022 |
| 10.2 | Form of Stock Appreciation Rights Award Agreement |
| 10.3 | 2022 International Bancshares Corporation Amended and Restated Management Incentive Plan |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| INTERNATIONAL BANCSHARES CORPORATION | ||
| (Registrant) | ||
| By: | /s/ Dennis E. Nixon | |
| Dennis E. Nixon, President and | ||
| Chairman of the Board | ||
| April 19, 2022 | ||
Exhibit 10.1
2022 INTERNATIONAL BANCSHARES CORPORATION
STOCK APPRECIATION RIGHTS PLAN
The 2022 INTERNATIONAL BANCSHARES CORPORATION STOCK APPRECIATION RIGHTS PLAN (the “Plan”) is intended to advance the interests of the Company and its shareholders by affording officers, employees, consultants and advisors of the Company and its Subsidiaries an opportunity to participate in the Company’s growth by the grant of Stock Appreciation Rights under the terms set forth herein. The Company seeks to motivate and retain present officers, employees, consultants and advisors of the Company and its Subsidiaries as well as attract highly competent individuals whose judgment, initiative, leadership, and continued effort will contribute to the success of the Company and its Subsidiaries. The Company believes that this Plan will contribute to that end.
ARTICLE I
DEFINITIONS
For purposes of this Plan:
1.01 Award. The term “Award” means a grant of Stock Appreciation Rights issued under the Plan.
1.02 Award Agreement. The term “Award Agreement” means a written agreement between the Company and a Participant with respect to the terms of an Award.
1.03 Base Value. The term “Base Value” means the Fair Market Value of one share of Company Stock on the Grant Date of a Stock Appreciation Right.
1.04 Board of Directors. The term “Board” or “Board of Directors” means the Company’s Board of Directors.
1.05 Change in Control. The term “Change in Control” means the occurrence of any of the following events:
(i) Any “person” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act) other than the Company, any affiliate (as defined in Rule 144 under the Securities Act) of the Company as of the Effective Date, any trustee or other fiduciary holding securities under an employee benefit plan of the Company, or any company owned, directly or indirectly, by the shareholders of the Company in substantially the same proportions as their ownership of the Stock of the Company, is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company (not including in the securities beneficially owned by such person any securities acquired directly from the Company) representing more than 20% of the combined voting power of the Company’s then outstanding voting securities; provided, however, a Change of Control shall not be deemed to occur solely because such person acquired beneficial ownership of more than 20% of the combined voting power of the Company’s then outstanding voting securities as a result of the acquisition of voting securities by the Company, which by reducing the number of voting securities outstanding, increases the proportional number of shares beneficially owned by such person, provided that if a Change of Control would occur (but for the operation of this sentence) as a result of the acquisition of voting securities by the Company, and after such share acquisition by the Company, such person becomes the beneficial owner of any additional voting securities which increases the percentage of the then outstanding voting securities beneficially owned by such person, then a Change of Control shall occur;
(ii) During any period of 24 consecutive months (not including any period prior to the Effective Date), individuals who at the beginning of such period constitute the Board and any new director (other than a director designated by a person who has entered into an agreement with the Company to effect a transaction described in subsection (i), (iii) or (iv) of this Section 1.05) whose election by the Board or nomination for election by the Company’s shareholders was approved by a vote of at least two-thirds 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 of the Board;
(iii) The Company’s shareholders approve a merger, consolidation or reorganization of the Company with any other corporation, other than a merger, consolidation or reorganization which would result in the shareholders of the Company immediately before such merger, consolidation or reorganization, owning, directly or indirectly immediately following such merger, consolidation or reorganization, at least 50% of the combined voting power of the voting securities of the Company or such surviving entity outstanding immediately after such merger, consolidation, or reorganization in substantially the same proportion as their ownership of the voting securities immediately before such merger, consolidation, or reorganization; or
(iv) The Company’s shareholders approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or substantially all of the Company’s assets.
(v) Notwithstanding anything in the Plan to the contrary, in the event any payment made pursuant to the Plan is subject to Section 409A of the Code, the definition of “Change of Control” will be interpreted to mean a “change in control event” within the meaning of Treasury Regulation 1.409A-3(i)(5) but only to the extent necessary to prevent such payment from becoming subject to additional tax under Code Section 409A.
1.06 Change in Control Price. The term “Change in Control Price” means (a) in the event of a Change in Control described in (i), (ii) or (iv) of Section 1.05 above, the average closing per share Stock price of the 60-day period immediately preceding the date of determination of the Change in Control, and (b) in the event of a Change in Control described in (iii) above, the price per share of Stock paid in any transaction related to such Change in Control.
1.07 Code. The term “Code” means the Internal Revenue Code of 1986, as amended, or any successor statute, provided that any specific reference herein to a particular section of the Code will, to the extent applicable, refer to the corresponding section or provision of any such successor statute.
1.08 Committee. The term “Committee” means a Board committee appointed by the Board from time to time consisting of at least two Board members, each of whom is both a Non-Employee Director and an Outside Director.
1.09 Company. The term “Company” means INTERNATIONAL BANCSHARES CORPORATION, a Texas corporation, and any successor thereof.
1.10 Effective Date. The term “Effective Date” means the date on which the Plan is approved by the Board in accordance with Section 8.01.
1.11 Eligible Person. The term “Eligible Person” means any officer, employee, consultant or advisor of the Company or any Subsidiary, as may be designated from time to time by the Committee as eligible to receive a Stock Appreciation Right subject to the conditions set forth herein.
112. Exchange Act. The term “Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time.
1.13 Fair Market Value. The term “Fair Market Value” means, unless otherwise required by the Code, as of any date, the last sales price reported for the Stock on the applicable date, (i) as reported by the national securities exchange in the United States on which it is then traded or The Nasdaq Stock Market, Inc. or (ii) if not traded on any such national securities exchange or The Nasdaq Stock Market, Inc., as quoted on an automated quotation system sponsored by the National Association of Securities Dealers, Inc., or if the Stock shall not have been reported or quoted on such date, on the first day prior thereto on which the Stock was reported or quoted; provided, however, that the Committee may modify the definition of Fair Market Value to reflect any changes in the trading practices of any exchange or automated system sponsored by the National Association of Securities Dealers, Inc. on which the Stock is listed or traded. If the Stock is not readily traded on a national securities exchange, The Nasdaq Stock Market, Inc. or any system sponsored by the National Association of Securities Dealers, Inc., the Fair Market Value shall be determined under any reasonable manner and in good faith by the Committee in accordance with the Regulations and applicable guidance under Section 409A of the Code.
1.14 Grant Date. The term “Grant Date” means the date on which a Stock Appreciation Right is approved by the Board, or such later date as designated by the Board and set forth in an Award Agreement.
1.15 Non-Employee Director. The term “Non-Employee Director” has the meaning given to it by Rule 16b-3 promulgated under the Exchange Act.
1.16 Outside Director. The term “Outside Director” means the definition provided by Regulations under the Exchange Act, as may be amended from time to time.
1.17 Participant. The term “Participant” means an Eligible Person who has been granted a Stock Appreciation Right hereunder.
1.18 Plan. The term “Plan” means this 2022 International Bancshares Corporation Stock Appreciation Rights Plan, as it may be amended from time to time.
1.19 Regulations. The term “Regulations” means the Treasury Regulations promulgated under the Code.
1.20 Stock. The term “Stock” means common stock, par value $1.00 per share, issued by the Company.
1.21 Stock Appreciation Right. The term “Stock Appreciation Right” means the right pursuant to an Award granted under Section 4 to receive, upon exercise, a cash amount equal to the number of shares of Stock subject to the Stock Appreciation Right that is being exercised multiplied by the excess of (a) the Fair Market Value of a share of Stock on the date the Award is exercised, over (b) the Base Value of a share of Stock as specified in the Award Agreement.
1.21 Subsidiary. The term “Subsidiary” means any subsidiary corporation, as defined in Section 424(f) of the Code, to which the Committee has determined to extend the application of this Plan.
ARTICLE II
PARTICIPATION
2.01 Participation. A grant of a Stock Appreciation Right under this Plan may be made by the Committee to any Eligible Person. In determining the eligibility of an individual to be granted a Stock Appreciation Right, as well as in determining the number of Stock Appreciation Rights to be granted to any individual, the Committee shall take into account the position and responsibilities of the individual being considered, the nature and value to the Company or its Subsidiaries of his or her service and accomplishments, his or her present and potential contribution to the success of the Company or its Subsidiaries, and such other factors as the Committee may deem relevant.
ARTICLE III
UNDERLYING SHARES OF STOCK SUBJECT TO AWARDS
3.01 Limitations. Subject to Section 3.02 and adjustments pursuant to the provisions of Section 3.03, the aggregate number of underlying shares of Stock that may be used for Stock Appreciation Right grants under the Plan shall not exceed 750,000 shares.
3.02 Future Availability of Granted Underlying Shares. Once a Stock Appreciation Right granted under the Plan has expired or been canceled, forfeited, or terminated without payment on the Award, the underlying shares of Stock to which the Stock Appreciation Right Award related shall again be available for Awards under the Plan, and the Committee shall have the sole discretion to issue a new Stock Appreciation Right to any Eligible Person, covering the number of shares to which such expired, terminated, cancelled or forfeited Stock Appreciation Right related.
3.03 Adjustments To Outstanding Stock Appreciation Rights. In the event that the Company’s outstanding shares of Stock are changed into or exchanged for a different number or kind of shares or other securities of the Company or of another corporation or other entity by reason of any reorganization, merger, consolidation, recapitalization, reclassification, stock split-up, combination of shares, dividends payable in capital stock, or similar event affecting the Company, appropriate adjustment shall be made (i) in the aggregate number and kind of underlying shares to which Stock Appreciation Rights may be granted under the Plan, (ii) the number and kind of underlying shares that relate to outstanding Stock Appreciation Rights or portions thereof then unexercised, (iii) a corresponding adjustment in the Base Value shall be made to each outstanding Stock Appreciation Right. Such adjustments shall be made by the Committee, whose determination shall be final, binding and conclusive on all persons. Except as expressly provided herein, no issuance by the Company of shares of Stock of any class, or securities convertible into shares of Stock of any class, shall affect, and no adjustment by reason thereof shall be made with respect to, the number, type or price of Stock subject to a Stock Appreciation Right. Any such adjustments shall be made in a manner that would not cause the Stock Appreciation Right to become subject to Section 409A of the Code. No adjustment may be made to a Stock Appreciation Right that would cause the Base Value to be less than 100% of the Fair Market Value of one share of Stock as of the Grant Date.
3.04 Award Agreement. Each grant of a Stock Appreciation Right under the Plan shall be evidenced by a written Award Agreement dated as of the Grant Date and executed by the Company and the Participant. The rights of a grantee in and to a Stock Appreciation Right shall become effective only upon execution and delivery by the Company of the Award Agreement. Such Award Agreement shall set forth the terms and conditions of such Stock Appreciation Right, including but not limited to the maximum duration of the Stock Appreciation Right, the number of underlying shares of Stock to which the Stock Appreciation Right pertains, and the conditions upon which the Stock Appreciation Right shall become vested and exercisable, as may be determined by the Committee consistent with this Plan.
3.05 No Rights as an Equity Holder. No Participant shall have any rights as an equity holder from participation in the Plan and shall not be entitled to any voting, dividend or other distribution rights related to shares of Stock underlying any Stock Appreciation Right granted hereunder.
ARTICLE IV
STOCK APPRECIATION RIGHTS
4.01 Stock Appreciation Rights; Grant and Exercise. The Committee shall have full and final authority to select those Eligible Persons who will be granted Stock Appreciation Rights. Subject to Federal and state statutes then applicable and the express terms of this Plan, the terms and procedures by which a Stock Appreciation Right may be exercised shall be set forth in the Participant’s Award Agreement or in procedures established by the Committee. Certain of the procedures for the notice of the grant of a Stock Appreciation Right, the execution of the Award Agreement, and the exercise of a Stock Appreciation Right, are as follows:
(a) As soon as practicable after a determination is made by the Committee to grant a Stock Appreciation Right to an Eligible Person, as set forth in this Article IV, the appropriate officer or officers of the Company shall give notice (written or oral) to such effect to each such Eligible Person, which notice shall be accompanied by a copy or copies of the Award Agreement to be executed by such Eligible Person.
(b) Upon the due execution by such Eligible Person and the Company of an Award Agreement (on such terms as the Committee shall determine) within such number of days from the giving of such notice as shall be specified in such notice (unless waived by the Company), such Stock Appreciation Right shall be granted and such Eligible Person shall become and be a Participant.
(c) Each Stock Appreciation Right granted under the Plan shall, subject to this Section, be exercisable at such time or times and during such period as shall be set forth in the Award Agreement and as set forth herein; provided, however, that no Stock Appreciation Right granted under the Plan shall have a term in excess of 10 years from the Grant Date, and shall be exercisable only if in compliance with all applicable Federal and state securities laws can be effected.
(d) Upon exercise of a Stock Appreciation Right, the holder shall be entitled to receive from the Company a cash amount equal to the number of shares of Stock subject to the Stock Appreciation Right that is then being exercised multiplied by the excess of (i) the Fair Market Value of a share of Stock on the date the Award is exercised, over (ii) the Base Value specified in the Award Agreement. Payment with respect to the exercise of a Stock Appreciation Right shall be made on the date of exercise. Payment shall be made in cash only.
(e) The Base Value of a Stock Appreciation Right shall be determined by the Committee, but shall not be less than 100% of the Fair Market Value of one share of Stock on the Grant Date.
4.02 Vesting of Stock Appreciation Rights. The Award Agreement shall specify the date or dates on which a Stock Appreciation Right shall vest and the date or dates on which the Participant may begin to exercise all or a portion of such Stock Appreciation Right. Each Stock Appreciation Right shall vest and become exercisable no earlier than one year after the Grant Date and may not be exercised for a fraction of a share of Stock. To the extent not exercised, the vested portion of a Stock Appreciation Right shall be exercisable, in whole or in part, after becoming exercisable, but not later than the date on which the Stock Appreciation Right terminates, as set forth in the Award Agreement. Notwithstanding the terms of any Award Agreement, the Committee at any time may accelerate such date or dates and otherwise waive or amend any conditions of a Stock Appreciation Right in a manner that is not adverse to the Stock Appreciation Right holder or that would subject the Stock Appreciation Right to Code Section 409A.
4.03 Return of Stock Appreciation Right Payment.
(a) The Committee may specify in an Award Agreement that the Participant’s rights, payments, and benefits with respect to a Stock Appreciation Right shall be subject to any return of Stock Appreciation Right Payment policy then in in effect, as well as a reduction, cancellation, forfeiture, or recoupment upon the occurrence of certain specified events, in addition to any otherwise applicable vesting or performance conditions of a Stock Appreciation Right. Such events may include, but shall not be limited to: (i) upon the Participant having been charged with an act punishable by imprisonment or having committed an act of moral turpitude; (ii) breach (or anticipated breach), as determined in the Company’s sole and absolute discretion, of the Non-Disclosure and Non-Solicitation Agreement (“NDA”) signed by Participant in substantially the form attached to the Participant’s Stock Appreciation Rights Agreement; (iii) directly or indirectly rendering services to or engagement with any individual or business which is competitive with IBC’s Business (as defined in the NDA) within twelve months after Participant’s Separation of Service; or (iv) other conduct by the Participant that is detrimental to the business and/or reputation of the Company or its Subsidiaries, as determined in the sole and absolute discretion of the Company.
(b) If the Company is required to prepare an accounting restatement due to the material noncompliance of the Company with any financial reporting requirement under the securities laws, a Participant shall reimburse the Company for the amount of any benefit received under the Plan during the three year period preceding the date on which the Company is required to prepare the accounting restatement which is in excess of the amount that would have been received under the accounting restatement as required by the Dodd-Frank Wall Street Reform and Consumer Protection Act and the rules promulgated thereunder or as required by any other applicable law, rule or Regulation, including any applicable banking Regulations.
4.04 Section 409A. Any grant of a Stock Appreciation Right is not intended to be a deferral of compensation as defined under Section 409A of the Code and the Regulations promulgated thereunder, and the Plan is to be construed accordingly.
ARTICLE V
PLAN ADMINISTRATION
5.01 Plan Administration.
(a) The Plan and all Award Agreements under the Plan shall be administered by the Committee. In addition to the implied powers and duties that may be needed to carry out the provisions of the Plan and Award Agreements, the Committee shall have full authority and absolute sole discretion:
(i) To grant Stock Appreciation Rights;
(ii) To determine, consistent with the provisions of this Plan, which of the Eligible Persons shall be granted Stock Appreciation Rights; the form, terms, conditions, timing and amount of such Stock Appreciation Rights; the number of shares of Stock subject to each Stock Appreciation Right and the Base Value of each Stock Appreciation Right; and the period over which the Stock Appreciation Right shall vest and become and remain exercisable;
(iii) To determine the form and terms and provisions of each respective Award Agreement, which need not be identical;
(iv) To construe and interpret this Plan and the Award Agreements;
(v) To make all other determinations and take all other actions deemed necessary or advisable for the proper administration of the Plan;
(vi) To correct any defect, supply any omission or reconcile any inconsistency in this Plan or any Award Agreement, and, subject to the provisions in Section 8.02, adopt modifications or amendments to the Plan or any Award Agreement, including any modification or amendment necessary to comply with the laws of the countries and other jurisdictions in which the Company or its Subsidiaries operate;
(vii) To modify, amend, or adjust the terms or conditions of any outstanding Stock Appreciation Rights unilaterally in any manner that is not adverse to the Stock Appreciation Right holder, subject to the terms of the Plan;
(viii) To accelerate the vesting of Stock Appreciation Rights upon the occurrence of a Change in Control, subject to the provisions in Section 3.03; and adjust Award Agreements accordingly; and
(ix) To adopt, alter, and repeal such rules, guidelines, and practices for administration of the Plan and for its own acts and proceedings as it shall deem advisable; to interpret the terms and provisions of the Plan and any outstanding Stock Appreciation Rights (including related Award Agreements); to make all determinations it deems advisable for the administration of the Plan; to decide all disputes arising in connection with the Plan; and to otherwise supervise the administration of the Plan.
(b) The decision of the Committee as to all questions of interpretation and application of the Plan and the Award Agreements shall be final, binding and conclusive on all persons. The Committee may correct any defect or supply any omission or reconcile any inconsistency in the Plan or in any Award Agreement granted hereunder in the manner and to the extent it shall deem expedient to carry the Plan into effect and shall be the sole and final judge of such expediency.
5.02 Advisors to Committee. The Committee may designate employees of the Company and its Subsidiaries and professional advisors to assist the Committee in the administration of the Plan and may grant authority to employees of the Company to execute agreements or other documents on behalf of the Committee in connection with the administration of the Plan. The Committee may employ such legal counsel, consultants, and agents as it may deem desirable for the administration of the Plan and may rely upon any advice and any computation received from any such counsel, consultant, or agent. The Company shall pay all expenses and costs incurred by the Committee for the engagement of any such counsel, consultant, or agent.
5.03 Participants Outside the U.S. In order to conform with the provisions of local laws and laws and regulations in foreign countries in which the Company operates, the Committee shall have the sole discretion to (i) modify the terms and conditions of the Stock Appreciation Rights granted under the Plan to Eligible Individuals located outside the United States; (ii) establish subplans with such modifications as may be necessary or advisable under the circumstances presented by local laws and regulations; and (iii) take any action which it deems advisable to comply with or otherwise reflect any necessary governmental regulatory procedures, or to obtain any exemptions or approvals necessary with respect to the Plan or any subplan established hereunder.
ARTICLE VI
MISCELLANEOUS PROVISIONS
6.01 Applicable Law. To the extent that state law shall not have been preempted by any laws of the United States, this Plan shall be construed, regulated, interpreted and administered according to the laws of the State of Texas, without regard to conflicts of law principles.
6.02 Expenses. The cost of benefit payments from this Plan and the expenses of administering this Plan shall be borne by the Company; provided, however, that except as otherwise specifically provided in this Plan or the applicable Award Agreement, the Company shall not be obligated to pay any costs or expenses (including legal fees) incurred by any Participant in connection with the Plan, any Stock Appreciation Right granted under the Plan or any Award Agreement.
6.03 Gender and Number. Unless the context clearly requires otherwise, the masculine pronoun whenever used shall include the feminine and neuter pronoun, the singular shall include the plural, and vice versa.
6.04 Headings Not Part of Plan. Headings of Articles and Sections are inserted for convenience and reference; they constitute no part of the Plan.
6.05 Indemnification. No member of the Board of Directors or the Committee shall be liable for any action or determination taken or made in good faith with respect to the Plan. nor shall any member of the Board of Directors or the Committee be liable for any Award Agreement issued pursuant to the Plan or any grants under the Plan. Without limiting any other rights to indemnification, each member of the Board of Directors and of the Committee shall be indemnified by the Company against any losses incurred in such administration of the Plan to the fullest extent permitted by the Texas Business Corporation Act, as amended.
6.06 Limitation of Rights.
(a) Neither the adoption and maintenance of the Plan or any Award Agreement under the Plan nor anything contained herein, shall with respect to any Participant, be deemed to:
(i) limit the right of the Company or any Subsidiary to discharge or discipline any such person, or otherwise terminate or modify the terms of his or her employment at any time or for any reason not prohibited by law, nor confer upon any Participant any right to continue employment for a specified period of time, or
(ii) create any contract or other right or interest under the Plan other than as specifically provided in the Plan or an Award Agreement under the Plan.
(b) A Participant shall not be deemed for any purpose to be a shareholder of the Company with respect to any share of Stock underlying a Stock Appreciation Right.
(c) No individual shall have the right to be selected to receive a Stock Appreciation Right under the Plan, or having been so selected, to be selected to receive a future Stock Appreciation Right.
6.07 Plan Termination Date. All Stock Appreciation Rights granted under the Plan shall be granted prior to the tenth (10th) anniversary of the Effective Date. Notwithstanding the foregoing, Awards granted prior to the tenth anniversary of the Effective Date shall continue under the Plan in accordance with their terms.
6.08 Nontransferability. Except as specifically provided by a duly executed Award Agreement or approved by the Committee, a Stock Appreciation Right or any of the rights thereunder may be exercised by such Participant only, and may not be sold, transferred, assigned, pledged, hypothecated, encumbered or otherwise disposed of (whether voluntarily, involuntarily or by operation of law, including, without limitation, the laws of bankruptcy, intestacy, descent and distribution and succession) or be subject to execution, attachment or similar process. Upon any attempt to so sell, transfer, assign, pledge, hypothecate, encumber or otherwise dispose of any Stock Appreciation Right, such Stock Appreciation Right and all rights thereunder shall immediately and automatically become null and void. A domestic relations order purporting to authorize a transfer of a Stock Appreciation Right shall not be recognized as valid.
6.09 Other Compensation Plans. The adoption of this Plan shall not affect any other existing or future incentive or compensation plans for directors, officers or employees of the Company or its Subsidiaries. Further, the adoption of this Plan shall not preclude the Company or its Subsidiaries from:
(a) Establishing any other forms of incentive or other compensation for officers, employees, consultants or advisors or directors of the Company or its Subsidiaries; or
(b) Assuming any forms of incentives or other compensation of any person or entity in connection with the acquisition or the business or assets, in whole or in part, of any person or entity.
6.10 Plan Binding on Successors. This Plan shall be binding upon the successors and assigns of the Company.
6.11 Tax Withholding. Each Participant shall, no later than the date as of which the cash payment of a Stock Appreciation Right exercised hereunder first becomes includable in the gross income of the Participant for Federal income tax purposes, pay to the Company, or request the deduction of cash from the payment, or make other arrangements satisfactory to the Committee regarding payment of any Federal, state, or local taxes of any kind required by law, or deemed advisable by the Company, to be withheld with respect to such income. The Committee may permit payment of such taxes to be made through the tender of cash or securities, or any other arrangement satisfactory to the Committee. The Company and its Subsidiaries shall, to the extent permitted by law, have the right to deduct any such taxes from any payment of any kind otherwise due to the Participant.
6.14 No Golden Parachute Payments. Notwithstanding any other provision in this Plan to the contrary, the Company shall not be required to make any payment under the Plan or any Award Agreement that would constitute a golden parachute payment within the meaning of Section 18(k) of the Federal Deposit Insurance Act, as amended, that is then prohibited by applicable law.
6.15 Non-Contravention of Securities Laws. Notwithstanding anything to the contrary expressed in this Plan, any provisions hereof that vary from or conflict with any applicable Federal or state securities laws (including any regulations promulgated thereunder) shall be deemed to be modified to conform to and comply with such laws.
6.16 Unenforceability of a Particular Provision. The unenforceability of any particular Plan provision shall not affect the other provisions, and this document shall be construed in all respects as if such unenforceable provision were omitted.
ARTICLE VII
CHANGE IN CONTROL AND OTHER CORPORATE EVENTS
7.01 Change in Control. Unless otherwise provided in an Award Agreement, upon the occurrence of a Change in Control, the Committee may in its sole and absolute discretion, provide on a case by case basis that some or all outstanding Stock Appreciation Rights (i) shall become immediately exercisable or vested, without regard to any limitation imposed pursuant to the Plan, (ii) shall terminate; provided, however, that Participants shall have the right, immediately prior to the occurrence of such Change in Control and during such reasonable period as the Committee in its sole discretion shall determine and designate, to exercise any vested Stock Appreciation Rights in whole or in part, (iii) shall terminate, provided that Participants shall be entitled to a cash payment equal to the excess of the aggregate Change in Control Price with respect to shares subject to the vested portion of a Stock Appreciation Right over the aggregate Base Value of the shares subject to the vested portion of the Stock Appreciation Right; or (iv) shall be assumed by the Company’s successor in accordance with the terms of the applicable purchase agreement or merger agreement between the Company and the Company’s successor.
7.02 Change in Status of Subsidiary. Unless otherwise provided in an Award Agreement or otherwise determined by the Committee, in the event that an entity which was previously a Subsidiary is no longer a Subsidiary, as determined by the Committee in its sole discretion, the Committee may, in its sole and absolute discretion (i) provide on a case by case basis that some or all outstanding Stock Appreciation Rights held by a Participant employed by or performing service for such entity may become immediately exercisable or vested, without regard to any limitation imposed pursuant to the Plan and/or (ii) treat the employment or other services of a Participant employed by such entity as terminated, if such Participant is not employed by the Company or any Subsidiary immediately after such event.
ARTICLE VIII
PLAN PERMANENCY AND PLAN TERMINATION
8.01 Effective Date. This Plan shall become effective upon its adoption by the Board of Directors of the Company (the “Effective Date).
8.02 Termination, Amendment, and Modification of Plan. The Board of Directors may at any time terminate or suspend, and may at any time and from time to time and in any respect amend or modify, the Plan including as is deemed necessary or advisable for the purpose of conforming the Plan or any Award Agreement to any present or future law relating to the Plan and to the administrative regulations promulgated thereunder.
Exhibit 10.2
2022 INTERNATIONAL BANCSHARES CORPORATION
STOCK APPRECIATION RIGHTS PLAN
STOCK APPRECIATION RIGHTS AWARD AGREEMENT
This Stock Appreciation Rights Award Agreement (this “Agreement”) is made and entered into as of [DATE] by and between INTERNATIONAL BANCSHARES CORPORATION, a Texas corporation (the “Company”) and [EMPLOYEE NAME] (the “Participant”).
Grant Date: __________________________
Number of Stock Appreciation Rights (“SARs”): ________________________________
Base Value per SAR: $ ______________
Expiration Date: _________________________________
1. Grant of SARs.
1.1 Grant. The Company hereby grants to the Participant an aggregate of [NUMBER] stock appreciation rights (the “SARs”). Each SAR entitles the Participant to receive, upon exercise, an amount equal to the excess of (a) the Fair Market Value of one share of Company Stock on the date of exercise, over (b) the Base Value, equal to the Fair Market Value of one share of Company Stock on the Grant Date (the “Appreciation Value”). The SARs are being granted pursuant to the terms of the Company’s 2022 Stock Appreciation Rights Plan (the “Plan”).
1.2 Consideration; Subject to Plan. The grant of the SARs is made in consideration of the services to be rendered by the Participant to the Company and is subject to the terms and conditions of the Plan. Capitalized terms used but not defined herein will have the meaning ascribed to them in the Plan.
2. For purposes of this Agreement:
2.1 “Continuous Service” means the Participant has been employed by the Company/Subsidiary continuously since the Grant Date or been on leave, if preapproved by an executive officer of the Company/Subsidiary before the leave.
2.2 “Disability” means the Participant’s inability to perform the essental functions of Particpant’s job duties with or without a reasonable accommodation and such disability (i) remains in effect for any ninety-one (91) consecutive days or (ii) remains in effect for any combination of one hundred twenty (120) days (whether consecutive or not) out of any three hundred sixty (360)-day period”.
2.3 “Separation from Service” means the Participant’s termination of employment with the Company/Subsidiary for any reason whatsoever, including, without limitation, death, Disability, retirement, voluntary termination, or Termination by the Company/Subsidiary for Good Reason. A Participant on leave approved by an executive officer of the Company/Subsidiary prior to such leave, shall not be considered to have a Separation from Service to the extent such leave does not constitute an interruption or termination of the status of the Participant as an “employee” under Section 1.421-7(h) of the Regulations under the Code, and corresponding provisions of successor Regulations.
2.4 “Termination by the Company/Subsidiary for Good Reason” means termination of the Participant’s employment by the Company/Subsidiary: (a) upon failure of the Participant to satisfactorily perform such Participant’s responsibilities and duties as prescribed and changed from time to time; (b) upon the Participant having been charged with an act punishable by imprisonment or having committed an act of moral turpitude; (c) as determined in the Company’s sole and absolute discretion, upon the Participant’s engaging in conduct that is detrimental to the business and/or reputation, character and/or standing of the Company/Subsidiary, or otherwise injurious to the Company/Subsidiary, monetarily or otherwise, including, but not limited to, embezzlement, fraud, theft, dishonesty, misfeasance, malfeasance, neglect of duties, incompetence or insubordination; (d) upon any violation by the Participant of the policies and/or procedures applicable to the Participant and promulgated from time to time by the Company/Subsidiary, (e) upon breach (or anticipated breach) of the NDA (as defined herein), as determined in the Company’s sole and absolute discretion; or (f) if the Participant, directly or indirectly, renders services to or engages with any individual or business which, as determined in the Company’s sole and absolute discretion, is or becomes competitive with the Company or creates a conflict of interest. In the event of a dispute between the Participant and the Company/Subsidiary regarding whether the Participant was Terminated by the Company/Subsidiary for Good Reason, the Committee’s decision with respect to such matter, determined in good faith, shall be final and conclusive and binding on the Participant.
3. Vesting.
3.1 Vesting Schedule. Conditioned on the Participant’s Continuous Service with the Company/Subsidiary, each SAR granted under this Agreement shall vest and become exercisable as set forth below. Except as otherwise provided in this Agreement, unvested SARs shall not be exercisable on or after the Participant’s Separation from Service with the Company:
• 5% on the second anniversary of the Grant Date;
• 10% on the third anniversary of the Grant Date;
• 15% on the fourth anniversary of the Grant Date;
• 20% on the fifth anniversary of the Grant Date;
• 25% on the sixth anniversary of the Grant Date; and
• 25% on the seventh anniversary of the Grant Date.
3.2 Expiration. The SARs granted hereunder shall expire and terminate on the Expiration Date designated above, or earlier as provided herein or in the Plan.
4. Separation from Service.
4.1 Separation from Service for Other Than Death, Disability. If the Participant’s Separation from Service is for any reason other than death or Disability, the Participant may exercise his or her vested SARs under this Agreement, but only within the time-period ending on the earlier of (a) the date three months following the Participant’s Separation from Service or (b) the Expiration Date.
4.2 Separation from Service Due to Termination for Good Reason by Company/Subsidiary or Other Than Good Reason. If the Participant Separates from Service due to a Termination by the Company/Subsidiary for Good Reason or Other Than Good Reason, then except as set forth herein, the Participant’s SARs (whether vested or unvested) shall immediately terminate and cease to be exercisable.
4.3 Separation from Service Due to Disability. If the Participant Separates from Service with the Company/Subsidiary as a result of the Participant’s Disability, the Participant may exercise the Participant’s vested SARs, but only within such time-period ending on the earlier of (a) the date 12 months following the Participant’s Separation from Service or (b) the Expiration Date.
4.4 Separation from Service Due to Death. If the Participant Separates from Service with the Company/Subsidiary as a result of the Participant’s death, the Participant’s vested SARs may be exercised by the Participant’s estate, by a person who acquired the right to exercise the SARs by will or the laws of descent and distribution, or by the person designated to exercise the SARs upon the Participant’s death, but only within the time period ending on the earlier of (a) the date 12 months following the Participant’s Separation from Service or (b) the Expiration Date.
5. Manner of Exercise.
5.1 When to Exercise. Except as otherwise provided in the Plan or this Agreement, the Participant (or in the case of exercise after the Participant’s death or incapacity, the Participant’s executor, administrator, heir or legatee, as the case may be) may exercise his or her vested SARs, in whole or in part, at any time after vesting and until the Expiration Date, or earlier termination pursuant to Section 4 hereof, by following the procedures set forth in this Section 5. If partially exercised, the Participant may exercise the remaining unexercised portion of the SAR grant at any time after vesting and until the earlier of the Expiration Date or other termination event pursuant to Section 4 hereof. No SARs shall be exercisable after the Expiration Date.
5.2 Election to Exercise. To exercise a SAR, the Participant (or in the case of exercise after the Participant’s death or incapacity, the Participant’s executor, administrator, heir or legatee, as the case may be), must deliver to the Company a written notice (or notice through another previously approved method, which could include a web-based or e-mail system) to the Trust Department of the Company’s subsidiary, International Bank of Commerce, Laredo (the “Trust Department”), which sets forth the number of SARs being exercised, together with any additional documents required by the Company/Subsidiary. Each such notice must satisfy the procedures then applicable to the SARs and must contain such representations as required by the Company.
5.3 Documentation of Right to Exercise. If a person other than the Participant exercises SARs granted under this Agreement, the person must first submit documentation reasonably acceptable to the Company verifying such person’s legal right to exercise the SARs.
5.4 Date of Exercise. The SARs shall be deemed exercised on the business day when the Company receives a fully executed exercise notice. If the notice is received after business hours on such date, the SARs shall be deemed exercised on the business date immediately following the business date when such notice is received by the Company.
5.5 Special Exercise Requirements. A SAR may be exercised only if the Participant has first provided the Company with prior written notice of such Participant’s intent to exercise the SAR (the “SAR Intent Notice”), in substantially the form attached hereto as Exhibit A. Upon the expiration of 90 calendar days after the Company’s receipt of the SAR Intent Notice (the “SAR Hold Period”), the Participant shall have 15 calendar days to exercise the SAR (the “SAR Exercise Period”) in accordance with the following requirements: (i) the Participant’s completion, execution and delivery to the Company of a notice of exercise and “investment letter” (if required by the Company), in substantially the form attached hereto as Exhibit B (the “Notice of Exercise”); and (ii) if requested by the Company, the Participant’s submission to the Company of a completed and executed Non-Disclosure and Non-Solicitation Agreement (the “NDA”), in substantially the form attached hereto as Exhibit C, as amended from time to time in the Company’s sole and absolute discretion, and Participant agrees the ability to participate in the Plan constitutes good and adequate consideration for the NDA. In the event the Participant does not exercise the SAR within the SAR Exercise Period, the SAR Intent Notice shall become null and void.
6. Withholding. Prior to the payment of the Appreciation Value in connection with the exercise of a SAR, the Participant must make arrangements satisfactory to the Company to pay or provide for the deduction from the cash appreciation Value or other compensation due the Participant from the Company/Subsidiary to satisfy any applicable federal, state and local withholding obligations on the exercise. If approved by the Committee in its discretion, the required withholding obligations may be settled by the delivery to the Company of previously owned and unencumbered shares of Company Stock held by the Participant.
7. Form of Payment. Upon the exercise of all or a portion of the SARs, the Participant shall be entitled to a cash payment equal to the Appreciation Value of the SARs being exercised, less any amounts withheld pursuant to Section 6.
8. Section 409A; No Deferral of Compensation. Neither the Plan nor this Agreement is intended to provide for the deferral of compensation within the meaning of Section 409A of the Internal Revenue Code (the “Code”), and the Plan and this Agreement are to be construed accordingly. The Company reserves the right to unilaterally amend or modify the Plan or this Agreement to the extent the Company considers it necessary or advisable, in its sole discretion, to comply with, or to ensure that the SARs granted hereunder are not subject to Section 409A of the Code.
9. No Right to Continued Employment. Neither the Plan nor this Agreement shall confer upon the Participant any right to be retained in any position as an Employee of the Company. Nothing in the Plan or this Agreement shall be construed to limit the discretion of the Company/Subsidiary to terminate the Participant’s employment at any time, with or without notice, as the Participant’s employment at all times remains “at will.”
10. Transferability. The SARs granted herein are not transferable by the Participant other than to a designated beneficiary upon the Participant’s death or by will or the laws of descent and distribution, and are exercisable during the Participant’s lifetime only by the Participant. No assignment or transfer of the SARs, or the rights represented thereby, whether voluntary or involuntary, by operation of law or otherwise (except to a designated beneficiary upon death by will or the laws of descent and distribution) shall vest in the assignee or transferee any interest or rights herein, but immediately upon such assignment or transfer, the SARs automatically shall terminate with no further effect.
11. Change in Control.
11.1 Effect on SARs. In the event of a Change in Control, notwithstanding any provision in the Plan or this Agreement to the contrary, the outstanding SARs granted herein shall become immediately 100% vested and exercisable, provided that (i) the Participant has provided Continuous Service to the Company/Subsidiary as of the consummation of the Change in Control, and (ii) the Participant did not initiate the event that resulted in the occurrence of such Change in Control in a capacity other than as an officer or director of the Company.
11.2 Cash-out. In the event of a Change in Control, the Committee may, in its discretion and upon at least ten (10) days’ advance notice to the Participant, cancel any or all of the outstanding SARs granted under this Agreement and pay the Participant the cash Appreciation Value of the SARs based upon the price per share of Stock received or to be received by other shareholders of the Company in the Change in Control transaction. Notwithstanding the foregoing, if at the time of a Change in Control the Base Value of an outstanding SAR equals or exceeds the price to be paid for a share of Stock in connection with the Change in Control, the Committee may cancel the SAR without the payment of any consideration.
12. Return of SARs Payment. The Participant acknowledges and agrees that the SAR has been granted, in part, in anticipation of and to encourage the Participant’s continued employment with the Company/Subsidiary and to provide the Participant with an additional incentive to contribute to and benefit from the Company’s long-term growth, increased value of goodwill and profitability. Given the foregoing, and notwithstanding any provision in this Agreement to the contrary, upon the Participant’s (a) breach (or anticipated breach) of the NDA, as determined in the Company’s sole and absolute discretion; (b) directly or indirectly rendering services to or engagement with any individual or business which is competitive with IBC’s Business (as defined in the NDA) within twelve months after Participant’s Separation of Service; (c) having been charged with an act punishable by imprisonment or having committed an act of moral turpitude; or (d) other conduct by the Participant that is detrimental to the business and/or reputation of the Company or its Subsidiaries as determined in the sole and absolute discretion of the Company, then the Company shall, if it so elects, be entitled to:
(a) Cancel any unvested SARs granted to the Participant under this Agreement; require forfeiture of any vested, but not exercised SARs granted to the Participant under the Plan; and/or require reimbursement by the Participant for any cash SAR payments received by the Participant following exercise of SARs granted hereunder during the twelve months prior the Participant’s Separation of Service (the “Repayment”), with Repayment to occur in accordance with applicable laws, regulations or Company policies that may be adopted and/or modified from time to time. Any amounts due and owing by the Participant in connection with the Repayment shall be paid to the Company within 14 calendar days after written notice from the Company to the Participant.
(b) If Repayment is not made within 14 calendar days after written notice from the Company to the Participant, the Company and/or the Participant may file an arbitration as provided hereunder. The only claims subject to this arbitration procedure are claims regarding Repayment under this Section 12. All arbitrations will be governed by the Company’s Open Door Policy except as stated otherwise herein. If any conflict should arise between the provisions in the Open Door Policy and the provisions in this Agreement, this Agreement shall govern. If an award is made in an arbitration filed under this Section 12, the arbitrator shall award attorney’s fees and costs to the prevailing party.
(c) Upon the filing of an arbitration seeking Repayment under this Section 12, an arbitrator will be selected in accordance with the Open Door Policy and such selection shall be submitted to the American Arbitration Association (“AAA”) within three business days of receipt of the list of arbitrators. Within five business days of an arbitrator being appointed, the arbitrator shall provide the parties with a briefing schedule to include an arbitration hearing within 30 days of the arbitrator’s appointment.
(d) Within five business days of the filing of the arbitration, a party must provide written notice to the other party and the AAA of its intention to file a Motion for Summary Judgment (“MSJ”), in which case, the selected arbitrator will provide a briefing schedule within five business days of appointment to include a MSJ must be filed within five business days, a response must be filed within five business days, and any reply must be filed within five business days. The arbitrator will rule on the MSJ within 14 days of the reply, if any. If the MSJ is denied, a new arbitrator will be appointed as provided under the Open Door Policy and a hearing will be held within 30 days of the new arbitrator’s selection.
(e) By accepting this Stock Appreciation Rights Award, the Participant agrees to be bound by the Return of SARs Payment as set forth herein, as in effect and as modified from time to time by the Company in its sole and absolute discretion (including, without limitation, any provision adopted and/or modified to comply with applicable laws and regulations). The Company will provide the Participant with at least ten business days advance notice with regard to any modification of the arbitration provisions in Sections 12(c) and (d) and any changes shall not be effective until the notice period has expired.
12.1 Forfeiture. Notwithstanding any provision in this Agreement to the contrary, if the Participant ceases to be an employee due to Termination by the Company/Subsidiary for Good Reason by the Company, or there is a substantial reduction in the Participant’s responsibilities or duties as determined by the Company’s management, all SARs granted herein shall be forfeited effective as of the Separation from Service date, or on the date when the Participant’s responsibilities or duties have been substantially reduced.
13. Adjustments. The SARs may be adjusted or terminated in any manner as contemplated by Section 3.03 of the Plan.
14. Tax Liability and Withholding. Notwithstanding any action the Company takes with respect to any or all income tax, social insurance, payroll tax, or other tax-related withholding (“Tax-Related Items”), the ultimate liability for all Tax-Related Items is and remains the Participant’s responsibility and the Company (a) makes no representation or undertakings regarding the treatment of any Tax-Related Items in connection with the grant, vesting, or exercise of the SARs granted herein, and (b) does not commit to structure the SARs to reduce or eliminate the Participant’s liability for Tax-Related Items.
15. Compliance with Laws. The exercise of the SARs shall be subject to compliance by the Company and the Participant with all applicable laws. The Participant may not exercise the SARs if such exercise would violate any applicable Federal or state securities laws or other laws or regulations.
16. Notices. Any notice required to be delivered to the Company under this Agreement shall be in writing and addressed to the Trust Department at the Company’s principal corporate offices. Any notice required to be delivered to the Participant under this Agreement shall be in writing and addressed to the Participant at the Participant’s address as shown in the records of the Company. Either party may designate another address in writing (or by such other method approved by the Company) from time to time.
17. Governing Law. This Agreement will be construed and interpreted in accordance with the laws of the State of Texas without regard to conflict of law principles.
18. Interpretation. Any dispute regarding the interpretation of this Agreement shall be submitted by the Participant or the Company to the Committee for review. The resolution of such dispute by the Committee shall be final and binding on the Participant and the Company.
19. SARs Subject to Plan. This Agreement is subject to the terms and provisions of the Plan as it may be amended from time to time, and the Plan is hereby incorporated herein by reference. In the event of a conflict between any term or provision contained herein and a term or provision of the Plan, the applicable terms and provisions of the Plan shall govern and prevail.
20. Successors and Assigns. The Company may assign any of its rights under this Agreement, and this Agreement shall be binding upon and inure to the benefit of the successors and assigns of the Company. Subject to the restrictions on transfer set forth herein, this Agreement shall be binding upon the Participant and the Participant’s beneficiaries, executors, administrators and the person(s) to whom the SARs may be transferred by will or the laws of descent and distribution.
21. Severability. The invalidity or unenforceability of any provision of the Plan or this Agreement shall not affect the validity or enforceability of any other provision of the Plan or this Agreement, and each provision of the Plan and this Agreement shall be severable and enforceable to the extent permitted by law.
22. Discretionary Nature of Plan. The Plan is discretionary and may be amended, cancelled or terminated by the Company at any time, in its discretion. The grant of the SARs in this Agreement does not create any contractual right or other right to receive any SARs or other Awards in the future. Future Awards, if any, shall be at the sole discretion of the Company. Any amendment, modification, or termination of the Plan shall not constitute a change or impairment of the terms and conditions of the Participant’s employment with the Company.
23. Amendment. The Committee has the right to amend, alter, suspend, discontinue or cancel the SARs granted herein, prospectively or retroactively; provided, that, no such amendment shall adversely affect the Participant’s material rights under this Agreement without the Participant’s consent.
24. No Impact on Other Benefits. The value of the Participant’s SARs granted hereunder is not part of his or her normal or expected compensation for purposes of calculating any severance, retirement, welfare, insurance or similar employee benefit.
25. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original but all of which together will constitute one and the same instrument. Counterpart signature pages to this Agreement transmitted by electronic mail in portable document format (.pdf), or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, will have the same effect as physical delivery of the paper document bearing an original signature.
26. Acceptance. The Participant hereby acknowledges receipt of a copy of the Plan and this Agreement. The Participant has read and understands the terms and provisions thereof, and accepts the SARs subject to all of the terms and conditions of the Plan and this Agreement. The Participant acknowledges that there may be adverse tax consequences upon exercise of the SARs and that the Participant should consult a tax advisor prior to such exercise.
27. Execution. Participant agrees that this Agreement may be executed in hand-written form (“Manual Signature”) or through the use of Electronic Signature, which electronic signatures, whether digital or encrypted, are intended to authenticate this writing and to have the same force and effect as Manual Signatures for the purposes of validity, enforceability, and admissibility. “Electronic Signature” means any electronic sound, symbol, or process attached to or logically associated with a record and executed or adopted by a party with the intent to sign such record. If Participant elects to execute this Agreement with an Electronic Signature, Participant agrees that Participant and only Participant will perform the act of executing this Agreement with Participant’s Electronic Signature.
[signature page follows]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
| INTERNATIONAL BANCSHARES CORPORATION |
| By: | ||
| Name: | ||
| Title: | ||
| [EMPLOYEE NAME] |
| By: | ||
| Name: | ||
Exhibit A
Notice of Intent to Exercise Stock Appreciation Right
2022 International Bancshares Corporation Stock Appreciation Right Plan
| Date: | Printed Name: |
| To: | International Bancshares Corporation (Attention: Trust Department – Executive Vice President) |
1200 San Bernardo
Laredo, Texas 78042-1359
To whom it may concern,
Pursuant to Section 5.5 of the International Bancshares Corporation Stock Appreciation Rights Award Agreement (the “Agreement”) dated ____________ _, 202__, this letter is to inform you that I intend, but am not required, to exercise my Stock Appreciation Right(s) (“SAR(s)”) upon the expiration of the SAR Hold Period and within the SAR Exercise Period, as each of those terms is defined in the Agreement.
Sincerely,
Exhibit B
NOTICE OF EXERCISE OF STOCK APPRECIATION RIGHT
2022 International Bancshares Corporation Stock Appreciation Rights Plan
| Date: | Name: |
| To: | International Bancshares Corporation (Attention: Trust Department – Executive Vice President) |
1200 San Bernardo
Laredo, Texas 78042-1359
Information Concerning Stock Appreciation Right Exercise
| I wish to exercise my vested Stock Appreciation Rights (check box x) | |
| Date of SAR Agreement: | __________ |
|
Number of SARs to be exercised:
(See SAR agreement) |
______________________ |
|
Exercise price per SAR:
(See SAR agreement) |
$_____________________ |
| Form of Payment: Cash | $ ____________ |
The undersigned holder of a Stock Appreciation Right (the “SAR”) issued by International Bancshares Corporation, a Texas corporation (the “Company”), evidenced by the above-referenced SAR Agreement, pursuant to which the undersigned is entitled receive, upon exercise, a cash amount equal to the excess of (a) the Fair Market Value of a share of Stock on the date of exercise, over (b) the Base Value (the “Appreciation Value”), hereby: (i) irrevocably exercises the SAR for the number of shares (the “Shares”) of Stock designated above, and (ii) directs that the Appreciation Value for such Shares be paid and delivered to the undersigned at the address set forth below. The undersigned acknowledges and agrees that the undersigned’s exercise of the SAR shall not be effective unless and until the undersigned shall have fully complied with the exercise provisions of the SAR Agreement.
The undersigned additionally affirms and acknowledges that the undersigned is in full compliance with and will fully comply with the undersigned’s Non-Disclosure and Non-Solicitation Agreement, if applicable.
| Signature of SAR Holder |
| Printed Name: | ||
| Address: |
| Social Security Number: |
| Effective Date: |
Exhibit 10.3
INTERNATIONAL BANCSHARES CORPORATION
2022 MANAGEMENT INCENTIVE PLAN
SECTION I
PURPOSE
The purpose of the International Bancshares Corporation 2022 Management Incentive Plan (the “Plan”) is to promote and advance the interests of the Company and its shareholders by enabling the Company to attract, retain and reward officers of the Company and its Affiliates. The Plan is an amendment and restatement of the International Bancshares Corporation 2013 Management Incentive Plan and applies to Performance Periods commencing on and after January 1, 2022.
SECTION II
DEFINITIONS
The terms below shall have the following meanings:
A. “Affiliate” means any company controlled by, controlling or under common control with the Company as defined under rule 144 under the Securities Act.
B. “Board” means the Board of Directors of the Company.
C. “Change of Control” means the occurrence of any of the following events:
a. Any “person” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act) other than the Company, any Affiliate of the Company as of the Effective Date, any trustee or other fiduciary holding securities under an employee benefit plan of the Company, or any company owned, directly or indirectly, by the shareholders of the Company in substantially the same proportions as their ownership of the Stock of the Company, is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company (not including in the securities beneficially owned by such person any securities acquired directly from the Company) representing more than 20% of the combined voting power of the Company’s then outstanding voting securities; provided, however, a Change of Control shall not be deemed to occur solely because such person acquired beneficial ownership of more than 20% of the combined voting power of the Company’s then outstanding voting securities as a result of the acquisition of voting securities by the Company, which by reducing the number of voting securities outstanding, increases the proportional number of shares beneficially owned by such person, provided that if a Change of Control would occur (but for the operation of this sentence) as a result of the acquisition of voting securities by the Company, and after such share acquisition by the Company, such person becomes the beneficial owner of any additional voting securities which increases the percentage of the then outstanding voting securities beneficially owned by such person, then a Change of Control shall occur;
b. During any period of 24 consecutive months (not including any period prior to the Effective Date), individuals who at the beginning of such period constitute the Board and any new director (other than a director designated by a person who has entered into an agreement with the Company to effect a transaction described in subsection (a), (c) or (d) of this Section II(C)) whose election by the Board or nomination for election by the Company’s shareholders was approved by a vote of at least two-thirds 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 of the Board;
c. The Company’s shareholders approve a merger, consolidation or reorganization of the Company with any other corporation, other than a merger, consolidation or reorganization which would result in the shareholders of the Company immediately before such merger, consolidation or reorganization, owning, directly or indirectly immediately following such merger, consolidation or reorganization, at least 50% of the combined voting power of the voting securities of the Company or such surviving entity outstanding immediately after such merger, consolidation, or reorganization in substantially the same proportion as their ownership of the voting securities immediately before such merger, consolidation, or reorganization; or
d. The Company’s shareholders approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or substantially all of the Company’s assets.
e. Notwithstanding anything in the Plan to the contrary, in the event any Incentive Payment is subject to Section 409A of the Code, the definition of “Change in Control” shall be interpreted to mean a “change in control event” within the meaning of Treasury Regulation 1.409A-3(i)(5) but only to the extent necessary to prevent such Incentive Payment from becoming subject to additional tax under Code Section 409A.
D. “Code” means the Internal Revenue Code of 1986, as amended, and the regulations promulgated thereunder.
E. “Committee” means the Board’s Compensation Committee or a subcommittee thereof appointed by the Board to administer the Plan as provided herein consisting of at least two Board members, each of whom is an Outside Director.
F. “Company” means International Bancshares Corporation, a Texas corporation, and any successor thereof.
G. “Effective Date” means the terms as defined by Section VII hereof.
H. “Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time.
I. “Incentive Payment” means a Traditional Incentive Payment, based upon the attainment of set Performance Targets for a Performance Period, or a Merchant Banking Incentive Payment, based on the success of the Company’s merchant banking investments during the same Performance Period. Collectively, they are referred to as “Incentive Payments,” and the terms of the Plan shall apply uniformly to both unless specified otherwise.
J. “Merchant Banking Incentive Payment” means, with respect to each Participant, the amount he or she may receive as a payment for the applicable Performance Period as determined by the Committee pursuant to the provisions of the Plan, the payment of which shall be contingent upon the performance of the Company’s merchant banking investments and as determined by the Committee in its complete discretion.
K. “Outside Director” means as provided by the regulations promulgated under the Exchange Act, as amended from time to time.
L. “Participant” means any officer of the Company or an Affiliate who is designated by the Committee as eligible to receive an Incentive Payment under the Plan.
M. “Performance Measures” means the specific measures that are used to evaluate the attainment of Performance Targets during a designated Performance Period to determine if Traditional Incentive Payments, if any, shall be payable for the Performance Period, and the amount of such Traditional Incentive Payments.
N. “Performance Period” means the period, not to be less than 12 months, specified by the Committee during which Incentive Payments may be earned.
O. “Performance Targets” mean the specific goals that must be attained during a Performance Period for Traditional Incentive Payments to be earned.
P. “Plan” means this 2022 International Bancshares Corporation Management Incentive Plan., as it may be amended from time to time.
Q. “Stock” means the common stock, par value $1.00 per share, issued by the Company.
R. “Traditional Performance Payment” means, with respect to each Participant, the amount that the Participant may receive for an applicable Performance Period as determined by the Committee pursuant to the provisions of the Plan, the payment of which shall be contingent upon the attainment of Performance Targets with respect to the Performance Period.
SECTION III
ADMINISTRATION
The Plan shall be administered by the Committee. Subject to the express provisions of the Plan, the Committee shall have the full authority and absolute sole discretion to construe, interpret, and administer the Plan, to promulgate, amend, and rescind rules and regulations relating to the Plan and to make all other determinations deemed necessary or advisable in connection with the administration of the Plan, including, but not limited to, determinations relating to eligibility, whether to make Incentive Payments, the terms of any such Incentive Payments, the time or times when Performance Targets are established, the Performance Periods to which Incentive Payments relate, and the actual dollar amount of any Incentive Payment. The determinations of the Committee pursuant to this authority shall be conclusive and binding on all parties including without limitation the Participants, the Company and its shareholders.
SECTION IV
TRADITIONAL AND MERCHANT BANKING INCENTIVE PAYMENTS
A. Traditional Incentive Payments - Establishment of Performance Goals. Within 90 days after the beginning of each annual Performance Period, the Committee shall, in its sole discretion and before the outcome is substantially certain, determine and establish the following criteria in writing:
1. The applicable Performance Period;
2. The Performance Measures to be used for purposes of setting the annual Performance Targets that must be attained during the Performance Period for Participants to receive Traditional Incentive Payments, and the calculation of those Traditional Incentive Payments, based upon the relative level of attainment of the annual Performance Targets.
B. Certification and Payment of Traditional Incentive Payments. After the end of each Performance Period, the Committee shall:
1. Certify in writing, prior to the unconditional payment of any Traditional Incentive Payment, the level of attainment of the Performance Targets for the Performance Period;
2. Determine the total amount available for Traditional Incentive Payments based on the attainment of such Performance Targets; and
3. In its sole discretion, adjust the size of, or eliminate, the total amount available for Traditional Incentive Payments for the Performance Period; and in its sole discretion, determine the share, if any, of the available amount to be paid to each Participant as that Participant’s Traditional Incentive Payment, and authorize payment of such amount.
C. Merchant Banking Incentive Payments. At the end of each Performance Period, which is the same Performance Period as designated above by the Committee for Traditional Incentive Payments, the Committee shall evaluate the results of the Company’s merchant banking investments for the Performance Period and determine at its sole discretion, whether Merchant Banking Incentive Payments shall be made for the Performance Period. The Committee shall select the recipients of such Merchant Banking Incentive Payments and the amount of the individual Merchant Banking Incentive Payments, which need not be uniform. In making its determinations, the Committee shall take into account the role, time and effort devoted by each officer into the success of the Company’s merchant banking investments during the Performance Period. Aggregate Merchant Banking Incentive Payments attributable to any one transaction during the Performance Period cannot exceed the lesser of $15,000,000 or five percent of the transaction.
D. Other Applicable Rules.
1. No payment pursuant to this Plan shall be made to a Participant unless the Participant is employed by the Company or an Affiliate as of the date of payment; provided, however, in the event of the Participant’s (i) retirement in accordance with the policies of the Company or Affiliate which employs the Participant; (ii) death or (iii) termination of employment due to disability (as determined in the discretion of the Committee), the Company shall pay the Participant (or his or her estate or the persons to whom the right to payment under this Plan passes by will or the laws of descent and distribution) an Incentive Payment for the applicable Performance Period, at such time as Participants are generally paid Incentive Payments for such Performance Period, in an amount equal to the product of (x) the amount that the Committee determines that the Participant would have earned for the applicable Performance Period had the Participant continued in the employ of the Company for the entirety of the Performance Period and (y) a fraction, the numerator of which is the number of full months elapsed from the commencement of the applicable Performance Period through the Participant’s termination of employment and the denominator of which is the total number of months in the applicable Performance Period.
2. Incentive Payments shall be subject to applicable federal, state and local withholding taxes and other applicable withholding in accordance with the Company’s payroll practices as in effect from time to time.
3. The maximum amount that may become payable to any Participant in any calendar year as a Traditional Incentive Payment with respect to all Performance Periods completed during such calendar year shall be the lesser of 2.5% of the Company’s total income before taxes for the fiscal year or $3,000,000. The maximum amount which may become payable to any Participant in any calendar year as an additional Merchant Banking Incentive Payment with respect to all Performance Periods completed during such calendar year is at the sole discretion of the Committee but shall not exceed the aggregate cap on each transaction completed during the Performance Periods ending in such calendar year.
4. Incentive Payments shall be payable in cash as soon as administratively practicable after the end of the calendar year in which the Performance Period ends or is deemed to have ended pursuant to the provisions of Section VI(A), but in no event after the date that is two and a half months after the end of the calendar year in which such Performance Period ends or is deemed to have ended pursuant to the provisions of Section VI(A).
5. Until paid to a Participant, Incentive Payments may not be assigned, alienated, transferred or encumbered in any way.
SECTION V
AMENDMENT OR TERMINATION
The Committee may amend, modify or terminate the Plan in any respect at any time without the consent of any Participant. Any such action may be taken without the approval of the Company’s shareholders unless shareholder approval is required by applicable law. Termination of the Plan shall not affect any Incentive Payments determined by the Committee to be earned prior to, but payable on or after, the date of termination, and any such Incentive Payments shall continue to be subject to the terms of the Plan notwithstanding its termination.
SECTION VI
CHANGE IN CONTROL
Unless otherwise determined by the Committee prior to a Change in Control, in the event of a Change in Control, the following provisions shall be applicable:
A. The Performance Periods then in effect for both Traditional Incentive Payments and Merchant Banking Incentive Payments shall be deemed to have concluded immediately prior to the Change in Control of the Company. The total amount available to fund the related Traditional Incentive Payments shall be that proportion of the amount (based upon the number of full and partial months in such Performance Period elapsed through the date of the Company’s Change in Control) that would be available for funding the Traditional Incentive Payments, assuming the Company had attained the Performance Targets at a level generating maximum funding for the applicable Performance Periods; and
B. The Committee, in its sole discretion, shall no later than immediately prior to the Change in Control approve the share of the available amount payable to each Participant as that Participant’s Traditional Incentive Payment (provided that the entire available amount as calculated pursuant to Section VI(A) shall be paid to Participants as Traditional Incentive Payments), and payments shall be made to each Participant as soon thereafter as is practicable, but not later than 60 calendar days after the Change in Control.
C. The Committee, in its sole discretion, shall no later than immediately prior to the Change in Control determine if Merchant Banking Incentive Payments shall be made in accordance with the Performance Period cap established in Section IV(C), and payment shall be made to each Participant as soon thereafter as is practicable, but no later than 60 calendar days after the Change in Control.
SECTION VII
EFFECTIVE DATE OF THE PLAN
This International Bancshares Company 2022 Management Incentive Plan shall be effective as of January 1, 2022 for Performance Periods commencing on or after such date and shall remain in effect until terminated in accordance with Section V hereof. The Plan is an amendment and restatement of the International Bancshares Company 2013 Management Incentive Plan, originally effective as of January 1, 2013.
SECTION VIII
GENERAL PROVISIONS
A. The establishment of the Plan shall not confer upon any Participant any legal or equitable right against the Company or any Affiliate, except as expressly provided in the Plan.
B. The Plan shall be binding on successors and assigns of the Company. The Company shall require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Company to assume expressly and agree to perform this Plan in the same manner and to the same extent that the Company would be required to perform it if no such succession had taken place.
C. The cost of benefit payments from this Plan and the expenses of administering this Plan shall be borne by the Company.
D. No member of the Committee shall be liable for any action taken or determination made in good faith with respect to the Plan or any Incentive Payment granted or paid under the Plan.
E. The Plan does not constitute an inducement or consideration for the employment of any Participant, nor is it a contract between the Company, or any Affiliate, and any Participant. Participation in the Plan shall not give a Participant any right to be retained in the employ of the Company or any Affiliate or to receive an Incentive Payment with respect to any Performance Period.
F. The adoption of this Plan shall not affect any other existing or future incentive or compensation plans for the Company. Nothing contained in this Plan shall prevent the Board or Committee from adopting other or additional compensation arrangements, subject to shareholder approval if such approval is required and such arrangements may be either generally applicable or applicable only in specific cases.
G. To the extent that state law shall not have been preempted by any laws of the United States, the Plan shall be governed, construed, regulated, interpreted, and administered in accordance with the laws of the State of Texas without regard to principles of conflicts of law.
H. This Plan is intended to comply in all aspects with applicable law and regulations. In case any one or more of the provisions of this Plan shall be held invalid, illegal or unenforceable in any respect under applicable law or regulation, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby and the invalid, illegal or unenforceable provision shall be deemed null and void; however, to the extent permissible by law, any provision which could be deemed null and void shall first be construed, interpreted or revised retroactively to permit this Plan to be construed in compliance with all applicable laws so as to carry out the intent of this Plan.
I. It is the intent of the Company that neither the Plan nor any Incentive Payments hereunder be subject to Section 409A of the Code, and the Plan is to be construed accordingly. Incentive Payments shall be paid in a lump sum cash amount as soon as practical, but not later than March 15 of the year following the calendar year in which they are no longer subject to a “substantial risk of forfeiture” (as defined and applied in Section 409A of the Code) (the “Applicable Period”). For purposes of the Plan, the terms “termination of employment,” “employment termination” or terms of like kind are intended to mean “Separation from Service,” as defined in Code Section 409A and Regulations thereunder. If any compensation or benefits provided by this Plan may result in the application of Section 409A of the Code, the Company shall modify the Plan in the least restrictive manner necessary in order to exclude such compensation from the definition of “deferred compensation” within the meaning of such Section 409A of the Code or in order to comply with the provisions of Section 409A of the Code, other applicable provision(s) of the Code and/or any rules, regulations or other regulatory guidance issued under such statutory provisions and with as little diminution in the value of the Incentive Payments to the Participants as practicable.
J. The Plan is intended to constitute an “unfunded” plan for incentive compensation. Neither the Plan nor any Incentive Payment shall create or be construed to create a trust or separate fund of any kind or a fiduciary relationship between the Company and a Participant or any other person. To the extent that any person acquires a right to receive Incentive Payments from the Company pursuant to the Plan, such right shall be no greater than the right of any unsecured general creditor of the Company. Payments shall be made solely from the general assets of the Company.
K. Notwithstanding any other provision of this Plan to the contrary, the Company shall not be required to make any payment under this Plan that would be a golden parachute payment within the meaning of Section 18(k) of the Federal Deposit Insurance Act, as amended, that is prohibited by applicable law.
L. Notwithstanding anything to the contrary expressed in the Plan, any provisions hereof that vary from or conflict with any applicable federal or state securities law (including any regulations promulgated thereunder) shall be deemed to be modified to conform to and comply with such laws.
M. If the Company is required to prepare an accounting restatement due to the material noncompliance of the Company with any financial reporting requirement under the securities laws, a Participant shall reimburse the Company the amount of any benefit received under the Plan during the three (3) year period preceding the date on which the Company is required to prepare the accounting restatement that is in excess of the amount that would have been received under the accounting restatement as required by the Dodd-Frank Wall Street Reform and Consumer Protection Act and the rules promulgated thereunder or as required by any other applicable rule or regulation.
Cover |
Apr. 18, 2022 |
|---|---|
| Cover [Abstract] | |
| Document Type | 8-K |
| Amendment Flag | false |
| Document Period End Date | Apr. 18, 2022 |
| Entity File Number | 000-09439 |
| Entity Registrant Name | INTERNATIONAL BANCSHARES CORPORATION |
| Entity Central Index Key | 0000315709 |
| Entity Tax Identification Number | 74-2157138 |
| Entity Incorporation, State or Country Code | TX |
| Entity Address, Address Line One | 1200 San Bernardo |
| Entity Address, City or Town | Laredo |
| Entity Address, State or Province | TX |
| Entity Address, Postal Zip Code | 78040-1359 |
| City Area Code | 956 |
| Local Phone Number | 722-7611 |
| Written Communications | false |
| Soliciting Material | false |
| Pre-commencement Tender Offer | false |
| Pre-commencement Issuer Tender Offer | false |
| Title of 12(b) Security | Common Stock, $1.00 par value |
| Trading Symbol | IBOC |
| Security Exchange Name | NASDAQ |
| Entity Emerging Growth Company | false |
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