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EXHIBIT 10.2
SUN AMERICAN BANCORP
AMENDED AND RESTATED 2005 STOCK OPTION
AND STOCK INCENTIVE PLAN
1.
Purpose of Plan
The purpose of this Amended and Restated Amended and Restated
2005 Stock Option and Stock Incentive Plan (the "Plan") is to
provide additional incentive to officers and directors of, and
other key employees of and important consultants and/or advisors
to, Sun American Bancorp (the "Company"), and each present or
future parent or subsidiary corporation of the Company
("Affiliates"), by encouraging them to invest in shares of the
Company’s common stock (the "Common Stock") and providing for
awards in the form of options to purchase Common Stock and
restricted shares of Common Stock (collectively, "Awards") in order
to promote a proprietary interest in the Company and an increased
personal interest in the Company’s continued success and
progress.
2.
Aggregate Number of Shares
A maximum of 4,000,000 shares of Common Stock may be issued
under this Plan either in the form of restricted shares or upon the
exercise of options issued pursuant to the Plan subject to the
restrictions described below. Up to 3,000,000 shares of
Common Stock may be issued upon the exercise of Incentive Stock
Options (as defined in Section 5(a) of the Plan).
Notwithstanding the foregoing, in the event of any change in the
outstanding shares of Common Stock by reason of a stock dividend,
stock split, combination of shares, recapitalization, merger,
consolidation, transfer of assets, reorganization, conversion or
what the Committee (as defined in Section 4(a)), deems in its sole
discretion to be similar circumstances, the aggregate number of
shares which may be issued under this Plan shall be appropriately
adjusted in a manner determined in the sole discretion of the
Committee. Reacquired shares of Common Stock, as well as
unissued shares, may be used to grant Awards under this Plan.
Common Stock subject to options which have terminated
unexercised, either in whole or in part, and restricted shares
which are forfeited prior to vesting shall be available for future
grants under this Plan.
3.
Class of Persons Eligible to Receive Awards
All officers, directors and key employees of and important
consultants and/or advisors to the Company and of or to any present
or future Company parent or subsidiary corporation are eligible to
receive Awards under this Plan. The individuals who shall, in
fact, receive Awards shall be selected by the Committee, in its
sole discretion, except as otherwise specified in Section 4
hereof, and are referred to herein as participants. No
outside director may receive Awards under this Plan which in the
aggregate equal more than 20% of the total number of shares of
Common Stock authorized for issuance under this Plan and no
officer, employee or consultant may receive Awards under this Plan
which in the aggregate equal more than 60% of the total number of
shares of common stock authorized for issuance under this Plan.
4.
Administration of Plan
(a)
This Plan shall be administered either by the Company’s
Board of Directors or a Compensation Committee appointed by the
Company’s Board of Directors. The Compensation
Committee shall consist of a minimum of two and a maximum of five
members of the Board of Directors, each of whom shall be a
"Non-Employee Director" within the meaning of Rule 16b-3(b)(3)
under the Securities Exchange Act of 1934, as amended, or any
future corresponding rule, except that the failure of the
Compensation Committee for any reason to be composed solely of
Non-Employee Directors shall not prevent an Award from being
considered granted under this Plan. The term "Committee," as
used herein, shall refer to either the Company’s Board of
Directors or such Compensation Committee, depending upon who is
administering the Plan. The Committee shall, in addition to
its other authority and subject to the provisions of this Plan,
determine which individuals shall in fact be granted an option or
options, whether the option shall be an Incentive Stock Option or a
Non-Qualified Stock Option (as such terms are defined in Section
5(a)), the number of shares to be subject to each of the options,
the time or times at which the options shall be granted, the rate
of option exercisability, and, subject to Section 5 hereof,
the price at which each of the options is exercisable and the
duration of the option. The Committee shall further have full
and complete authority, subject to the provisions of the Plan, to
grant restricted shares and, in addition to the terms and
conditions contained in Sections 6 and 9 hereof, to provide such
other terms and conditions (which need not be identical among
participants) with respect to such restricted shares and the
lapsing of restrictions thereon, as the Committee shall determine
in its sole discretion. The dollar value of restricted shares
granted under the Plan shall be calculated based upon the fair
market value of the Common Stock on the date of the grant as such
term is defined in Section 5(a) of the Plan.
(b)
The Committee shall adopt such rules for the conduct of its
business and administration of this Plan as it considers desirable.
A majority of the members of the Committee shall constitute a
quorum for all purposes. The vote or written consent of a
majority of the members of the Committee on a particular matter
shall constitute the act of the Committee on such matter. The
Committee shall have the right to construe the Plan and the Awards
granted pursuant thereto, to correct defects and omissions and to
reconcile inconsistencies to the extent necessary to effectuate the
Plan and the Awards granted pursuant thereto, and such action shall
be final, binding and conclusive upon all parties concerned.
No member of the Committee or the Board of Directors shall be
liable for any act or omission (whether or not negligent) taken or
omitted in good faith, or for the exercise of an authority or
discretion granted in connection with the Plan to a Committee or
the Board of Directors, or for the acts or omissions of any other
members of a Committee or the Board of Directors. Subject to
the numerical limitations on Committee membership set forth in
Section 4(a) hereof, the Board of Directors may at any time appoint
additional members of the Committee and may at any time remove any
member of the Committee with or without cause. Vacancies in
the Committee, however caused, may be filled by the Board of
Directors, if it so desires.
5.
Incentive Stock Options and Non-Qualified Stock Options
(a)
Options issued pursuant to this Plan may be either Incentive
Stock Options granted pursuant to Section 5(b) hereof or
Non-Qualified Stock Options granted pursuant to Section 5(c)
hereof, as determined by the Committee. An "Incentive Stock
Option" is an option
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which satisfies all of the requirements of Section 422 of
the Internal Revenue Code of 1986, as amended (the "Code") and the
regulations thereunder, and a "Non-Qualified Stock Option" is an
option which either does not satisfy all of those requirements or
the terms of the option provide that it will not be treated as an
Incentive Stock Option. The Committee may grant both an
Incentive Stock Option and a Non-Qualified Stock Option to the same
person, or more than one of each type of option to the same person.
The option price for Incentive Stock Options issued under
this Plan shall be equal at least to the fair market value (as
defined below) of the Common Stock on the date of the grant of the
option. Options shall be granted at an option price equal to
at least 100% of the fair market value (as defined below) of the
common stock on the date of the grant of the option. The fair
market value of the Common Stock on any particular date shall mean
the closing price of a share of the Common Stock on any stock
exchange on which such stock is then listed or admitted to trading,
including but not limited to the American Stock Exchange, the
NASDAQ Stock Market or any other exchange, on such date, or if no
sale took place on such day, the last such date on which a sale
took place, or if the Common Stock is not then quoted on the
American Stock Exchange, NASDAQ Stock Market, or listed or admitted
to trading on any stock exchange, the average of the bid and asked
prices in the over-the-counter market on such date, or if none of
the foregoing, a price determined in good faith by the Committee to
equal the fair market value per share of the Common Stock.
(b)
Subject to the authority of the Committee set forth in Section
4(a) hereof, Incentive Stock Options issued pursuant to this Plan
shall be issued substantially in the form set forth in Appendix
I hereof, which form is hereby incorporated by reference and
made a part hereof, and shall contain substantially the terms and
conditions set forth therein. Except as otherwise provided by
the Committee in the agreement evidencing the grant of Incentive
Stock Options, all Incentive Stock Options granted under the Plan
shall vest at a rate of one-fifth (1/5) of the initial award per
year over a period of five (5) years, commencing on January 1
st of the calendar year following the calendar year in
which the Incentive Stock Options were granted. Incentive
Stock Options shall not be exercisable after the expiration of ten
years from the date such options are granted, unless terminated
earlier under the terms of the option, except that options granted
to individuals described in Section 422(b)(6) of the Code shall
conform to the provisions of Section 422(c)(5) of the Code.
At the time of the grant of an Incentive Stock Option
hereunder, the Committee may, in its discretion, amend or
supplement any of the option terms contained in
Appendix I for any particular optionee, provided that
the option as amended or supplemented satisfies the requirements of
Section 422 of the Code and the regulations thereunder.
Subject to the restrictions set forth in Section 2 hereof,
each of the options granted pursuant to this Section 5(b) is
intended, if possible, to be an "Incentive Stock Option" as that
term is defined in Section 422 of the Code and the regulations
thereunder. In the event this Plan or any option granted
pursuant to this Section 5(b) is in any way inconsistent with
the applicable legal requirements of the Code or the regulations
thereunder for an Incentive Stock Option, this Plan and such option
shall be deemed automatically amended as of the date hereof to
conform to such legal requirements, if such conformity may be
achieved by amendment. If such conformity may not be achieved
by amendment, such option shall be deemed to be a Non-Qualified
Stock Option.
(c)
Subject to the authority of the Committee set forth in Section
4(a) hereof, Non-Qualified Stock Options issued to officers and
other key employees pursuant to this Plan shall be issued
substantially in the form set forth in Appendix II
hereof, which form is hereby
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incorporated by reference and made a part hereof, and shall
contain substantially the terms and conditions set forth therein.
Except as otherwise provided by the Committee in the
agreement evidencing the grant of Non-Qualified Stock Options, all
Non-Qualified Stock Options granted under the Plan shall vest at a
rate of one-fifth (1/5) of the initial award per year over a period
of five (5) years, commencing on January 1 st of the
calendar year following the calendar year in which the
Non-Qualified Stock Options were granted. Subject to the
authority of the Committee set forth in Section 4(a) hereof,
Non-Qualified Stock Options issued to directors and important
consultants and/or advisors pursuant to this Plan shall be issued
substantially in the form set forth in Appendix III
hereof, which form is hereby incorporated by reference and made a
part hereof, and shall contain substantially the terms and
conditions set forth therein. Non-Qualified Stock Options
shall expire ten years after the date they are granted, unless
terminated earlier under the option terms. At the time of
granting a Non-Qualified Stock Option hereunder, the Committee may,
in its discretion, amend or supplement any of the option terms
contained in Appendix II or Appendix III for any
particular optionee.
(d)
Neither the Company nor any of its current or future parent,
subsidiaries or affiliates, nor their officers, directors,
shareholders, stock option plan committees, employees or agents
shall have any liability to any optionee in the event (i) an
option granted pursuant to Section 5(b) hereof does not
qualify as an "Incentive Stock Option" as that term is used in
Section 422 of the Code and the regulations thereunder;
(ii) any optionee does not obtain the tax treatment pertaining
to an "Incentive Stock Option;" or (iii) any option granted
pursuant to Section 5(c) hereof is an "Incentive Stock
Option."
(e)
Except as otherwise provided in Section 422 of the Code and
regulations thereunder or any successor provision, no Incentive
Stock Option granted pursuant to this Plan shall be transferable
other than by will or the laws of descent and distribution.
Except as otherwise provided by the Rules and Regulations of
the Securities and Exchange Commission, the Committee at the time
of grant of a Non-Qualified Stock Option may provide that such
stock option is transferable to any "family member" of the optionee
by gift or qualified domestic relations order. For purposes
of this section, a family member includes any child, stepchild,
grandchild, parent, step-parent, grandparent, spouse, former
spouse, sibling, niece, nephew, mother-in-law, father-in-law,
son-in-law, daughter-in-law, brother-in-law, or sister-in-law,
including adoptive relationships, any person sharing the
grantee’s household (other than a tenant or employee), a
trust in which these persons have more than 50% of the beneficial
interest, a foundation in which these persons (or the grantee)
controls the management of assets, and any other entity in which
these persons or the grantee own more than 50% of the voting
interests.
6.
Restricted Shares
(a)
At the time of an award of restricted shares, in addition to any
other terms and conditions the Committee shall provide, the
Committee shall establish for each participant a period of time
during which restricted shares granted under the Plan are subject
to forfeiture by the participant if the conditions established by
the Committee, if any, are not met or upon the expiration of which
the restricted shares shall vest and no longer be subject to
restriction (the "Restricted Period"). Unless otherwise
provided by the Committee in the agreement evidencing the award of
restricted shares, all restricted shares shall have a Restricted
Period of five (5) years and such restrictions shall lapse at a
rate of one-fifth (1/5) of the initial award per year,
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commencing on January 1 st of the calendar year
following the calendar year in which the restricted shares were
granted. Restricted shares may not be sold, assigned,
transferred, pledged or otherwise encumbered by the participant,
except as hereinafter provided, during the Restricted Period.
Except for such restrictions, and subject to paragraphs (d)
and (f) of this Section 6 and Section 9 hereof, the participant as
owner of such restricted shares shall have all the rights of a
shareholder, including the right to vote the shares.
(b)
Except as provided in paragraph (i) of this Section 6, if a
participant ceases to maintain Continuous Service for any reason
(other than death or disability), all restricted shares theretofore
awarded to such participant and which at the time of such
termination of Continuous Service are subject to the restrictions
imposed by paragraph (a) of this Section 6 shall upon such
termination of Continuous Service be forfeited and returned to the
Company. If a participant ceases to maintain Continuous
Service by reason of death or disability, restricted shares then
still subject to restrictions imposed by paragraph (a) of this
Section 6 will be free of those restrictions. "Continuous
Service," as used herein, means the absence of any interruption or
termination of service as an officer, director or employee of or
consultant to the Company or any Affiliate. Service shall not
be considered interrupted in the case of sick leave, military leave
or any other leave of absence approved by the Company or any
Affiliate or in the case of transfers between payroll locations of
the Company, or between the Company, or its subsidiaries.
(c)
The Committee shall have the authority, in its discretion, to
accelerate the time at which any or all of the restrictions shall
lapse with respect to restricted shares, or to remove any or all of
such restrictions, whenever it may determine that such action is
appropriate by reason of changes in applicable tax or other laws or
other changes in circumstances occurring after the commencement of
such Restricted Period.
(d)
Each certificate in respect of restricted shares awarded under
the Plan shall be registered in the name of the participant and
deposited by the participant, together with a stock power endorsed
in blank, with the Company and shall bear the following (or a
similar) restricted legend (the "Restricted Legend"):
The transferability of this certificate and the
shares of stock represented hereby are subject to the terms and
conditions (including forfeiture) contained in the Amended and
Restated 2005 Stock Option and Stock Incentive Plan of Sun American
Bancorp. Copies of such Plan are on file in the office of the
Secretary of Sun American Bancorp, 3400 Coral Way, Miami, Florida
33145.
(e)
At the time of any award of restricted shares, the participant
shall enter into an agreement with the Company in a form attached
hereto as Appendix IV , as modified by the Committee,
agreeing to the terms and conditions of the restricted shares and
such other matters as the Committee, in its sole discretion, shall
determine (the "Restricted Stock Agreement").
(f)
The payment to a participant of cash dividends declared or paid
on such restricted shares by the Company shall be deferred until
the lapsing of any restrictions imposed under paragraph (a) of this
Section 6. Such deferred dividends shall be held by the
Company for the account of the participant. In such event,
there shall be credited at the end of each year (or portion
thereof) interest on the amount of the account at the beginning of
the year at a rate per
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annum as the Committee, in its discretion, may determine.
Payment of deferred dividends, together with interest accrued
thereon, shall be made upon the earlier to occur of the lapsing of
the restrictions imposed under paragraph (a) of this Section 6 or
upon death or disability of the participant.
(g)
At the expiration of the Restricted Period, if any, imposed by
paragraph (a) of this Section 6, the Company shall redeliver to the
participant (or where the relevant provision of paragraph (b) of
this Section 6 applies in the case of a deceased participant, to
his legal representative, beneficiary or heir) the certificate(s)
and stock power deposited with it pursuant to paragraph (d) of this
Section 6 and the shares represented by such certificate(s) shall
be free of the Restricted Legend referred to in paragraph (d) of
this Section 6. Notwithstanding the foregoing, the Securities
Legend described in paragraph (g) of Section 9 shall continue to be
included on all certificates as long as registration has not
occurred.
(h)
During the Restricted Period, no Award nor any right of interest
of a participant in such Award set forth in any instrument
evidencing any Award under the Plan may be assigned, encumbered or
transferred except, in the event of the death of a participant, by
will or the laws of descent and distribution.
(i)
The Committee may provide in the Restricted Stock Agreement if
the Continuous Service of any participant (as defined in Section 6)
is involuntarily terminated for whatever reason, except for cause,
as defined by the Committee, at any time within a specified period
after a change in control, unless the Committee shall otherwise
provide, any Restricted Period with respect to restricted shares
shall lapse upon such termination and all restricted shares shall
become fully vested in the participant.
(j)
Upon the termination of any Restricted Period with respect to
restricted shares (or at any such earlier time, if any, that an
election is made by the participant under Section 83(b) of the
Code, or any successor provision thereto, to include the value of
such shares in taxable income), the Company may withhold from any
payment or distribution made under this Plan sufficient shares or
may withhold from the participant’s compensation or require
to be paid by participant sufficient cash to cover any applicable
withholding and employment taxes. The Company shall have the
right to deduct from all dividends paid with respect to restricted
shares the amount of any taxes which the Company is required to
withhold with respect to such dividend payments. No
discretion or choice shall be conferred upon any participant with
respect to the form, timing or method of any such tax
withholding.
7.
Amendment, Supplement, Suspension and Termination
Awards shall not be granted pursuant to this Plan after the
expiration of ten years from the date the Plan is adopted by the
Board of Directors of the Company. The Board of Directors
reserves the right at any time, and from time to time, to amend or
supplement this Plan, including the forms of option or restricted
stock agreement attached hereto, in any way, or to suspend or
terminate it, effective as of such date, which date may be either
before or after the taking of such action, as may be specified by
the Board of Directors; provided, however, that such action shall
not affect Awards granted under the Plan prior to the actual date
on which such action occurred. If an amendment or supplement
of this Plan is required by the Code or the regulations
thereunder
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to be approved by the shareholders of the Company in order to
permit the granting of "Incentive Stock Options" (as that term is
defined in Section 422 of the Code and regulations thereunder)
pursuant to the amended or supplemented Plan, such amendment or
supplement shall also be approved by the shareholders of the
Company in such manner as is prescribed by the Code and the
regulations thereunder. If the Board of Directors voluntarily
submits a proposed amendment, supplement, suspension or termination
for shareholder approval, such submission shall not require any
future amendments, supplements, suspensions or terminations
(whether or not relating to the same provision or subject matter)
to be similarly submitted for shareholder approval.
8.
Effectiveness of Plan
This Plan shall become effective on the date of its adoption by
the Company’s Board of Directors, subject however to approval
by the holders of the Common Stock in the manner as prescribed in
the Code and the regulations thereunder. Options may be
granted under this Plan prior to obtaining shareholder approval,
provided such options shall not be exercisable until shareholder
approval is obtained. No grants of restricted shares may be
made under the Plan prior to the receipt of shareholder approval.
9.
General Conditions
(a)
Nothing contained in this Plan or any Award granted pursuant to
this Plan shall confer upon any employee the right to continue in
the employ of the Company or any affiliated or subsidiary
corporation or interfere in any way with the rights of the Company
or any affiliated or subsidiary corporation to terminate his
employment in any way.
(b)
Nothing contained in this Plan or any Award granted pursuant to
this Plan shall confer upon any director or consultant the right to
continue as a director of, or consultant to, the Company or any
affiliated or subsidiary corporation or interfere in any way with
the rights of the Company or any affiliated or subsidiary
corporation, or their respective shareholders, to terminate the
directorship of any such director or the consultancy relationship
of any such consultant.
(c)
Corporate action constituting an offer of stock for sale to any
person under the terms of the options to be granted hereunder shall
be deemed complete as of the date when the Committee authorizes the
grant of the option to the such person, regardless of when the
option is actually delivered to such person or acknowledged or
agreed to by him.
(d)
The terms "parent corporation" and "subsidiary corporation" as
used throughout this Plan, and the options granted pursuant to this
Plan, shall (except as otherwise provided in the option form) have
the meaning that is ascribed to that term when contained in
Section 422(b) of the Code and the regulations thereunder, and
the Company shall be deemed to be the grantor corporation for
purposes of applying such meaning.
(e)
References in this Plan to the Code shall be deemed to also
refer to the corresponding provisions of any future United States
revenue law.
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(f)
The use of the masculine pronoun shall include the feminine
gender whenever appropriate.
(g)
To the extent restricted shares or Common Stock issued upon the
exercise of options granted pursuant to the Plan have not been
registered under the federal and state securities laws or an
exemption is otherwise unavailable, the certificates for Common
Stock to be issued pursuant to the Plan shall bear the following
securities legend (the "Securities Legend"):
The shares represented by this certificate have
not been registered under the Securities Act of 1933, as amended,
or under applicable state securities laws. The shares have
been acquired for investment and may not be offered, sold,
transferred, pledged or otherwise disposed of without an effective
registration statement under the Securities Act of 1933, as
amended, and under any applicable state securities laws or an
opinion of counsel acceptable to the Company that the proposed
transaction will be exempt from such registration.
The foregoing legend shall be removed upon registration of the
legended shares under the Securities Act of 1933, as amended, and
under any applicable state laws or upon receipt of any opinion of
counsel acceptable to the Company that said registration is no
longer required.
(h)
Each of the events specified in the following clauses (i) and
(ii) of this subsection (h) shall be deemed a "change in control":
(i) a change within a twelve-month period in the holders of
more than 50% of the outstanding voting stock of the Company; or
(ii) any other events deemed to constitute a "change in control" by
the Committee.
(i)
In the event of any change in the outstanding shares of the
Common Stock of the Company by reason of a stock dividend, stock
split, combination of shares, recapitalization, merger,
consolidation, transfer of assets, reorganization, conversion or
what the Committee deems in its sole discretion to be similar
circumstances, the number and kind of shares subject to options and
the option price of such shares shall be appropriately adjusted and
outstanding Awards shall be treated like all other outstanding
shares of Common Stock. Any shares of stock or other
securities received, as a result of any of the foregoing adjustment
by the Committee or as part of an adjustment provided to
shareholders in general, by a participant with respect to
restricted shares shall be subject to the same restrictions and the
certificate(s) or other instruments representing or evidencing such
shares or securities shall be legended and deposited with the
Company in the manner provided in Section 5 hereof.
Adopted by the Board of Directors this 21 st day of
September 2005.
Amended by the Board of Directors this 31 st day of
August 2006.
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APPENDIX I
INCENTIVE STOCK OPTION
To:
____________________________________________________________
Name
Address:
____________________________________________________________
Date of Grant:
____________________________________________________________
You are hereby granted an option, effective as of the date
hereof, to purchase __________ shares of common stock ("Common
Stock") of Sun American Bancorp (the "Company") at a price of
$____________ per share pursuant to the Company’s
Amended and Restated 2005 Stock Option and Stock Incentive Plan
(the "Plan").
Your Option may first be exercised at any time on or after
__________ for up to __% of the total number of shares subject to
the Option and thereafter pursuant to the following schedule until
the total number of shares subject to the Option are fully
exercisable:
Vesting Date
Percent of Initial Award Vested
%
Thus, this Option is fully exercisable on or after __ years from
the Date of Grant. This Option shall terminate and is not
exercisable after 10 years from the Date of Grant (the "Scheduled
Termination Date") This Option shall be adjusted for any
change in the outstanding shares of the Common Stock of the Company
by reason of a stock dividend or distribution, supplemental
offering of shares, stock split, combination of shares,
recapitalization, merger, consolidation, exchange of shares,
reorganization, conversion or what the Committee deems in its sole
discretion to be similar circumstances. No fractional shares
shall be issued or delivered.
In the event of a "Change of Control" (as defined below) of the
Company, your option may, from and after the date of the Change of
Control, and notwithstanding the immediately preceding paragraph,
be exercised for up to 100% of the total number of shares then
subject to the option minus the number of shares previously
purchased upon exercise of the option (as adjusted for stock
dividends, stock splits, combinations of shares and what the
Committee deems in its sole discretion to be similar circumstances)
and your vesting date may accelerate accordingly. A "Change
of Control" shall be deemed to have occurred upon the happening of
any of the following events:
1.
A change within a twelve-month period in the holders of more
than 50% of the outstanding voting stock of the Company; or
2.
Any other event deemed to constitute a "Change of Control" by
the Committee.
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You may exercise your option by giving written notice to the
Secretary of the Company on forms supplied by the Company at its
then principal executive office, accompanied by payment of the
option price for the total number of shares you specify that you
wish to purchase. The payment may be in any of the following
forms: (a) cash, which may be evidenced by a check and
includes cash received from a stock brokerage firm in a so-called
"cashless exercise"; (b) unless prohibited by the Committee,
certificates representing shares of Common Stock, which will be
valued by the Secretary of the Company at the fair market value per
share of Common Stock (as determined in accordance with the Plan)
on the date of delivery of such certificates to the Company,
accompanied by an assignment of the stock to the Company; or
(c) unless prohibited by the Committee, any combination of
cash and Common Stock valued as provided in clause (b).
The use of the so-called "attestation procedure" to exercise
a stock option may be permitted by the Committee. Any assignment of
stock shall be in a form and substance satisfactory to the
Secretary of the Company, including guarantees of signature(s) and
payment of all transfer taxes if the Secretary deems such
guarantees necessary or desirable.
Your option will, to the extent not previously exercised by you,
terminate three months after the date on which your employment by
the Company or a Company subsidiary corporation is terminated
(whether such termination be voluntary or involuntary) other than
by reason of disability as defined in Section 22(e)(3) of the
Internal Revenue Code of 1986, as amended (the "Code"), and the
regulations thereunder, or death (but in no event later than the
Scheduled Termination Date). After the date your employment
is terminated, as aforesaid, you may exercise this option only for
the number of shares which you had a right to purchase and did not
purchase on the date your employment terminated. If you are
employed by a Company subsidiary corporation, your employment shall
be deemed to have terminated on the date your employer ceases to be
a Company subsidiary corporation, unless you are on that date
transferred to the Company or another Company subsidiary
corporation. Your employment shall not be deemed to have
terminated if you are transferred from the Company to a Company
subsidiary corporation, or vice versa, or from one Company
subsidiary corporation to another Company subsidiary
corporation.
If you die while employed by the Company or a Company subsidiary
corporation, your executor or administrator, as the case may be,
may, at any time within one year after the date of your death (but
in no event later than the Scheduled Termination Date), exercise
the option as to any shares which you had a right to purchase and
did not purchase during your lifetime. If your employment
with the Company or a Company parent or subsidiary corporation is
terminated by reason of your becoming disabled (within the meaning
of Section 22(e)(3) of the Code and the regulations
thereunder), you or your legal guardian or custodian may at any
time within one year after the date of such termination (but in no
event later than the Scheduled Termination Date), exercise the
option as to any shares which you had a right to purchase and did
not purchase prior to such termination. Your executor,
administrator, guardian or custodian must present proof of his
authority satisfactory to the Company prior to being allowed to
exercise this option.
Notwithstanding anything to the contrary contained in this
option, in the event of a sale or a proposed sale of the majority
of the stock or assets of the Company or a proposed Change of
Control, the Committee shall have the right to terminate this
option upon thirty (30) days prior written notice to you, subject
to your right to exercise such option to the extent vested prior to
such termination.
I-2
This option is not transferable otherwise than by will or the
laws of descent and distribution, and is exercisable during your
lifetime only by you, including, for this purpose, your legal
guardian or custodian in the event of disability. Until the
option price has been paid in full pursuant to due exercise of this
option and the purchased shares are delivered to you, you do not
have any rights as a shareholder of the Company. The Company
reserves the right not to deliver to you the shares purchased by
virtue of the exercise of this option during any period of time in
which the Company deems, in its sole discretion, that such delivery
would violate a federal, state, local or securities exchange rule,
regulation or law.
Notwithstanding anything to the contrary contained herein, this
option is not exercisable until all the following events occur and
during the following periods of time:
(a)
Until the Plan pursuant to which this option is granted is
approved by the shareholders of the Company in the manner
prescribed by the Code and the regulations thereunder;
(b)
Until this option and the optioned shares are approved and/or
registered with such federal, state and local regulatory bodies or
agencies and securities exchanges as the Company may deem necessary
or desirable;
(c)
During any period of time in which the Company deems that the
exercisability of this option, the offer to sell the shares
optioned hereunder, or the sale thereof, may violate a federal,
state, local or securities exchange rule, regulation or law, or
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