EXHIBIT 10.2
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NONQUALIFIED STOCK OPTION AND
STOCK APPRECIATION RIGHTS AGREEMENT
THIS AGREEMENT, made and executed this 28th day of January, 1991,
between HORIZON BANCORP, an Indiana corporation and registered bank holding
company ("Company") and XXXXX X. XXXXXX, an employee of the Company or one of
its subsidiaries ("Employee").
WITNESSETH:
WHEREAS, the Board of Directors of the Company ("Board") has authorized
the Compensation Committee of the Board ("Committee") to grant options to
acquire the Company's stock and stock appreciation rights in tandem therewith,
to employees of the Company and its subsidiaries who, on the date of the grant
of such options and rights, are not subject to the provisions of Section
16(b)(3) of the Securities Exchange Act of 1934; and
WHEREAS, the grant of such options and rights will promote the
interests of the Company and its shareholders by encouraging employees, upon
whose judgment, initiative and industry the Company is largely dependent for the
successful conduct and growth of its business, to continue their association
with the Company by providing additional incentive and opportunity for industry
and efficiency through stock ownership; and
WHEREAS, it is the view of the Company that this goal may be achieved
by granting nonqualified stock options and stock appreciation rights to
employees from time to time; and
WHEREAS, the Employee has been designated by the Committee as an
employee to whom a stock option and related stock appreciation rights should be
granted, as determined from the duties performed, the initiative and industry of
the Employee, the nature of his service, and his potential contribution to the
future development, growth and prosperity of the Company;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the Company and the Employee hereby agree as
follows:
1. GRANT OF OPTION. The Company grants to the Employee the right and
option ("Option") to purchase all or any part of an aggregate of 1,200 shares of
no par value common stock of the Company subject to the terms and conditions of
this Agreement.
2. OPTION PRICE. The purchase price of the shares of common stock
represented by this Option shall be $13.50 per share.
3. TERM. The term of the Option shall be ten (10) years from the date
of this Agreement, subject to earlier termination as provided in this Agreement.
4. NONTRANSFERABILITY. The Option shall not be assignable or
transferable by the Employee except by will or by the laws of descent and
distribution. The Option shall not be pledged or hypothecated in any way, nor
shall it be subject to execution, attachment or similar process. Any attempted
assignment, transfer, pledge or other disposition of the Option in violation of
this provision or the levy of execution, attachment or similar process upon the
Option shall be null and void and without effect, and shall cause the Option to
be terminated.
5. EXERCISE OF OPTION. The Option may not be exercised in whole or in
part after the expiration of ten (10) years from the date of this Agreement.
Subject to the foregoing, the
Option may not be exercised during the first year of this Agreement; after the
first year and through the second year, the Option may be exercised as to not
more than twenty percent (20%) of the total option shares; through the third
year as to not more than forty percent (40%) of the total option shares; through
the fourth year as to not more than sixty percent (60%) of the total option
shares; through the fifth year as to not more than eighty percent (80%) of the
total option shares; and during the sixth year and at any time and from time to
time thereafter during the remaining term of the Option as to all or any part of
the option shares. Notwithstanding the preceding sentence, the Option may be
exercised in full in the event of a change in control of the Company or upon the
death of the Employee, as provided in paragraph 7(b), below. For purposes of
this Agreement, a "change in control of the Company" shall be deemed to have
occurred if any person or entity, other than the Company, any person who on the
day hereof is an officer or director of the Company or the Company's
tax-qualified employee stock ownership plan, is or becomes the beneficial owner,
directly or indirectly, of securities of the Company representing twenty-five
percent (25%) or more of the combined voting power of the Company's then
outstanding securities; or, during any period of two (2) consecutive years
during the term of this Agreement, individuals who at the beginning of such
period constitute the Board of Directors of the Company cease for any reason to
constitute at least a majority thereof, unless the election of each director who
was not a director at the beginning of such period has been approved by
directors representing at least a majority of the directors then in office who
were directors at the beginning of the period.
The Option may be exercised during the lifetime of the Employee only by
the Employee.
Full payment for the shares purchased shall be made at the time of
exercising the Option in whole or in part. Such payment may be made either (a)
in cash, or (b) in the discretion of the Committee, by delivering shares of
stock to the Company (the "Delivered Stock"), or a combination of cash and
Delivered Stock. Delivered Stock shall be valued at its fair market value
determined as of the date of the exercise of the option. No shares shall be
issued until full payment for them has been made.
6. RESTRICTIVE LEGEND. The Employee hereby declares that it is his
intention to hold all shares acquired as a result of this Option for investment
and not with a view to resale or distribution to the public and agrees that all
certificates for such shares shall bear the following legend:
"The shares represented by this certificate have been acquired for
investment and have not been registered under the Securities Exchange
Act of 1933. The shares may not be sold or transferred in the absence
of such registration or an exemption therefrom under said Act."
or such other terms as shall be approved by the Committee in conjunction with
counsel to the Company.
7. EARLY TERMINATION OF OPTION.
(a) All rights to exercise the exercisable portion of this
Option shall terminate thirty (30) days after the Employee's employment
with the Company or its subsidiaries terminates for any reason other
than death. A substantial reduction in duties and responsibilities of
the optionee from those held at the time of this grant may be
considered as termination by the Board of Directors. An optionee's
rights to exercise options may be terminated prior to the expiration of
the thirty (30) day period, or at any time during the period of this
Plan only with the written consent of the optionee. For
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purpose of this Agreement, the term "subsidiary" shall mean any banking
institution or other corporation more than fifty percent (50%) of whose
total combined voting stock of all classes is held by the Company or by
another corporation which qualifies as a subsidiary within this
definition. Transfer from the Company to a subsidiary or vice versa, or
from one subsidiary to another, shall not be deemed termination of
employment.
(b) If the Employee dies while employed by the Company or its
subsidiaries, the Option shall be exercisable in full within one (1)
year after the date of his death at which time the Option or any
portion thereof remaining unexercised shall terminate. During the one
(1) year period immediately following the death of the Employee, the
Option may be exercised in full, subject to the limitations of this
Option, by the personal representatives of his estate or by his
legatees or heirs; provided, however, this Option shall not be
exercised after the expiration of ten (10) years from the date of this
Agreement.
8. STOCK APPRECIATION RIGHTS
(a) A stock appreciation right ("SAR") as to shares of the
Company's stock is hereby granted to the Employee in conjunction with
the Option. The SAR granted hereby shall (i) expire when the Option
expires, (ii) become transferable only when the Option is transferable
and under the same conditions, and (iii) become exercisable only when
and to the extent that the Option is eligible to be exercised. The
"economic value" of the SAR (as defined in subparagraph (c) hereof) may
not exceed one hundred percent (100%) of the difference between the
exercise price of the number of shares covered by the Option and the
fair market value of such shares determined as of the date the SAR is
exercised, and the SAR may only be exercised when such fair market
value exceeds such exercise price.
(b) The SAR may be exercised by the Employee by surrendering
the Option or applicable portion thereof. As provided in subparagraph
(a) above, the SAR shall be exercisable at such time or times and only
the extent that the Option is exercisable. If the Employee is an
officer or director of the Company, the SAR may be exercised, and
elections to receive cash in settlement thereof may be made, only
during such periods of time as may be allowed under Rule 16b-3 of the
Securities Exchange Act of 1934, as amended. The Option shall no longer
be exercisable to the extent that it is surrendered upon exercise of
the SAR.
(c) Upon exercise of the SAR and surrender of the
corresponding Option, the Employee shall become entitled to receive the
economic value of the SAR. Such economic value shall be equal to the
excess of the fair market value (determined on the date of exercise of
the SAR) of one (1) share of stock over the option price per share
specified in paragraph 2 of this Agreement, multiplied by the number of
shares with respect to which the SAR shall have been exercised.
(d) Upon exercise of the SAR, the Employee shall receive the
economic value thereof in cash, in shares of Company stock, or any
combination thereof. The Committee shall have the sole discretion
either to determine the form in which such payment of economic value is
to be made or to consent to or disapprove of the election of the
Employee to receive cash in full or partial payment of such value.
(e) Upon exercise of the Option or applicable portion thereof,
the SAR or applicable portion thereof shall be deemed to have been
exercised and shall expire.
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9. CHANGE IN STOCK. In the event of any change in the common stock of
the Company through stock dividends, split-ups, recapitalizations,
reclassifications, or otherwise, or in the event that other stock shall be
substituted for the present common stock of the Company as the result of any
merger, consolidation or reorganization, then the Company shall make appropriate
adjustment or substitution in the number, kind and determination in this respect
shall be final and conclusive upon all parties.
IN WITNESS WHEREOF, the Company and the Employee have caused this
Nonqualified Stock Option and Stock Appreciation Rights Agreement to be executed
on the day and year first above written, which is the date on which the Option
is granted.
HORIZON BANCORP
ATTEST:
By: /s/ Xxxxxx X. Xxxxxxx
By: /s/ Xxxxxx X. XxXxxxxxx
Secretary
EMPLOYEE
By: /s/ Xxxxx X. Xxxxxx
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