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
5
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 may cause the Company to be legally obligated
to issue or sell more
