Exhibit 10.2(h)
Form of employee Incentive Stock
Option Award Pursuant to 1996 Stock Incentive Plan
(for award granted in
paper)
INCENTIVE STOCK OPTION
AWARD
PURSUANT TO NETBANK,
INC.
1996 STOCK INCENTIVE
PLAN
THIS AWARD is made as of the Grant
Date by NETBANK, INC. (the “Company”) to
(the “Optionee”).
Upon and subject to the Terms and
Conditions attached hereto and incorporated herein by reference,
the Company hereby awards as of the Grant Date to Optionee an
incentive stock option (the “Option”), as described
below, to purchase the Option Shares.
A.
Grant Date:
B.
Type of Option: Incentive
Stock Option, as defined under Section 422(b) of the Internal
Revenue Code of 1986, as amended (the “Code”), granted
pursuant to the NetBank 1996 Stock Incentive Plan (the
“Plan”).
C.
Option Shares: All or any part
of
shares of the Company’s common stock, $.01 par value per
share (“Common Stock”), subject to adjustment as
provided in the attached Terms and Conditions.
D.
Exercise Price:
$
per share of Common Stock, subject to adjustment as provided in the
attached Terms and Conditions. The Exercise Price is, in the
judgment of the Committee, not less than 100% of the Fair Market
Value of a share of Common Stock as of the Grant Date or, in the
case of an Over 10% Owner, not less than 110% of the Fair Market
Value of a share of Common Stock on the Grant Date.
E.
Option Period: The Option may
be exercised as to all or any portion of the Vested Option Shares,
but only during the Option Period, which commences following the
Grant Date and ends, generally, on the earliest of (a) the tenth
(10th) anniversary of the Grant Date; or (b) the later of the date
(i) ninety days (90) following the date the Optionee ceases to be
an employee of the Company for any reason other than death or
Disability, or (ii) twelve months following the date the Optionee
ceases to be an employee of the Company due to death or Disability;
provided that the Option may be exercised as to no more than the
Vested Option Shares, determined pursuant to the Vesting Schedule.
Note that other limitations to exercising the Option, as
described in the attached Terms and Conditions, may
apply.
F.
Vesting Schedule: The Option
Shares shall become vested in accordance with the attached Vesting
Schedule. All or a portion of the Option Shares may become vested
on an earlier date as provided in Section 3 and Section 7(b) of the
attached Terms and Conditions.
IN WITNESS WHEREOF, the Company has
executed and sealed this Award as of the Grant Date set forth
above.
VESTING SCHEDULE
TO NETBANK, INC.
1996 STOCK INCENTIVE OPTION
AWARD
Vesting Schedule
TERMS AND CONDITIONS TO
THE
INCENTIVE STOCK OPTION
AWARD
PURSUANT TO THE NETBANK,
INC.
1996 STOCK INCENTIVE
PLAN
1.
Exercise of Option . Subject to the provisions provided
herein or in the Award made pursuant to the Plan:
(a)
the Option may be exercised with respect to all or any portion of
the Vested Option Shares at any time during the Option Period by
the delivery to the Company, at its principal place of business, of
a written notice of exercise in substantially the form of
Exhibit 1 hereto, which notice shall be actually delivered to
the Company no earlier than thirty (30) days and no later than ten
(10) days prior to the date upon which Optionee desires to exercise
all or any portion of the Option; and
(b)
payment to the Company of the Exercise Price multiplied by
the number of Option Shares being purchased (the
“Purchase Price”) as provided in Section 2;
and
(c)
payment of any tax withholding liability pursuant to Section 4
below.
Upon acceptance of such notice and
receipt of payment in full of the Purchase Price and tax
withholding liability, the Company shall cause to be issued a
certificate representing the Vested Option Shares
purchased.
The Company may, from time to time,
establish other methods for exercise of Options, whether
electronically, through an agent or otherwise, as may be
communicated to the Optionee.
2.
Purchase Price . Payment of the Purchase Price for all
Vested Option Shares purchased pursuant to the exercise of an
Option shall be made in cash or certified check or, alternatively,
as follows:
(a)
by delivery to the Company of a number of shares of Common Stock
which have been owned by the Optionee for at least six (6) months
prior to the date of the Option’s exercise having a Fair
Market Value, as determined under the Plan, on the date of exercise
either equal to the Purchase Price or in combination with cash or a
certified check to equal the Purchase Price; or
(b)
by receipt of the Purchase Price in cash from a broker, dealer or
other “creditor” as defined by Regulation T issued
by the Board of Governors of the Federal Reserve System following
delivery by the Optionee to the Committee of instructions in a form
acceptable to the Committee regarding delivery to such broker,
dealer or other creditor of that number of Option Shares with
respect to which the Option is exercised; or
(c)
any combination of the foregoing.
3.
Vested Option Shares . The Option Shares shall become Vested
Option Shares in accordance with the Vesting Schedule; provided,
however, that all Option Shares may become Vested Option Shares in
accordance with Section 8(b) hereof.
4.
Withholding . The Optionee must satisfy any federal, state
and local, if any, withholding taxes imposed by reason of the
exercise of the Option by paying to the Company the full amount of
the withholding obligation in cash or by certified check. In lieu
of paying the withholding obligation in cash or by certified check,
the Optionee may elect (i) to tender to the Company the smallest
number of whole shares of Common Stock which have been owned by the
Optionee for at least six (6) months prior to the date of the
Option’s exercise having a Fair Market Value as of the date
of the Option exercise, as determined under the Plan, sufficient to
satisfy the amount of the withholding tax; or (ii) irrevocably
electing to have the actual numbers of shares of Stock issuable
upon exercise reduced by the
smallest number of whole shares of Stock which,
when multiplied by the Fair Market Value of the Common Stock as of
the date the Option is exercised, is sufficient to satisfy the
amount of the withholding tax (either election is referred to below
as a “Withholding Election”). The Optionee may make a
Withholding Election only if the following conditions are
met:
(a)
the Withholding Election is made on or prior to the date on which
the amount of tax required to be withheld is determined (the
“Tax Date”) by executing and delivering to the Company
a properly completed Withholding Election; and
(b)
any Withholding Election made will be irrevocable; however, the
Committee may, in its sole discretion, disapprove and give no
effect to any Withholding Election.
5.
Incentive Stock Option Status . In the event the aggregate
Fair Market Value (determined as of the applicable grant date) of
shares of Common Stock subject to options (under all plans of the
Company) that first become exercisable in favor of the Optionee
during any calendar year by an amount that exceeds $100,000, then
such options in excess of the limitation shall not be Incentive
Stock Options. To the extent such limitation affects all or any
portion of the Option Shares, those Option Shares shall be treated
as nonqualified stock options.
6.
Rights as Shareholder . Until the stock certificates
reflecting the Option Shares accruing to the Optionee upon exercise
of the Option are issued to the Optionee, the Optionee shall have
no rights as a shareholder with respect to such Option Shares. The
Company shall make no adjustment for any dividends or distributions
or other rights on or with respect to Option Shares for which the
record date is prior to the issuance of that stock certificate,
except as the Plan or the attached Award otherwise
provides.
7.
Restriction on Transfer of Option and of Option Shares . The
Option evidenced hereby is nontransferable other than by will or
the laws of descent and distribution and shall be exercisable
during the lifetime of the Optionee only by the Optionee (or in the
event of his disability, by his personal representative) and after
his death, only by his legatee or the executor of his
estate.
8.
Changes in Capitalization .
(a)
The number of Option Shares and the Exercise Price shall be
proportionately adjusted for any increase or decrease in the number
of issued shares of Common Stock resulting from a subdivision or
combination of shares or the payment of a stock dividend in shares
of Common Stock to holders of outstanding shares of Common Stock or
any other increase or decrease in the number of shares of Common
Stock outstanding effected without receipt of consideration by the
Company.
(b)
If the Company shall be the surviving corporation in any merger or
consolidation, recapitalization, reclassification of shares or
similar reorganization, the Optionee shall be entitled to purchase
or receive the number and class of securities to which a holder of
the number of shares of Common Stock subject to the Option at
t
