Exhibit 4.5
GRANT OF NON-QUALIFIED STOCK OPTION
PURSUANT TO THE BANCORP, INC.
1999 STOCK OPTION PLAN
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THIS Agreement is made as of the ______ day of _____, _____ (the "DATE
OF GRANT") by and between _____________ ("GRANTEE") and THE BANCORP, INC.
(together with its successors and assigns, the "COMPANY").
WHEREAS, the Company's 1999 Option Plan (as amended, the "PLAN")
provides for the granting of stock options by the compensation committee (the
"COMMITTEE") of the Board of Directors of the Company (the "BOARD OF DIRECTORS")
to employees, members of the Board of Directors and certain other persons to
purchase shares of common stock of the Company (the "SHARES"), in accordance
with the terms and provisions thereof; and
WHEREAS, the Committee considers Grantee to be a person who is eligible
for a grant of stock options under the Plan, and has determined that it would be
in the best interest of the Company to grant the stock options on the terms and
conditions hereinafter set forth.
NOW, THEREFORE, the parties hereto, intending to be legally bound
hereby, agree as follows:
1. GRANT OF OPTION
Subject to the terms and conditions hereinafter set forth, the
Company, with the approval and at the direction of the Committee, hereby grants
to Grantee, an option to purchase up to ______ Shares at a price of $_____ per
Share. Such option is hereinafter referred to as the "OPTION" and the Shares
purchasable upon exercise of the Option are hereinafter sometimes referred to as
the "OPTION SHARES."
2. INSTALLMENT EXERCISE
Subject to such further limitations as are provided herein,
the Option shall become exercisable in 4 installments, Xxxxxxx having the right
hereunder to purchase from the Company the following number of Option Shares
upon exercise of the Option, on and after the following dates, in cumulative
fashion:
(i) on and after the first anniversary of the Date of
Xxxxx, up to 25% (ignoring fractional shares) of the total number of Option
Shares;
(ii) on and after the second anniversary of the Date
of Xxxxx, up to an additional 25% (ignoring fractional shares) of the total
number of Option Shares;
(iii) on and after the third anniversary of the Date
of Xxxxx, up to an additional 25% (ignoring fractional shares) of the total
number of Option Shares; and
(iv) on the fourth anniversary of the Date of Xxxxx,
up to an additional 25% (ignoring fractional shares) of the total number of
Option Shares.
3. TERMINATION OF OPTION
(a) The Option and all rights hereunder with respect thereto,
to the extent such rights shall not have been exercised, shall terminate and
become null and void after the expiration of 10 years from the Date of Grant
(the "OPTION TERM").
(b) Upon the termination of Xxxxxxx's service on the Board of
Directors or employment for any reason, the Options may be exercised during the
following periods but only to the extent the Options were outstanding and
exercisable upon such termination of the Grantee's service or employment: (A)
the 6-month period following the date of such termination; (B) the one year
period following the date of death, in the case of Xxxxxxx's death during
Grantee's service to or employment by the Company; and (C) the 3-month period
following the date of such termination in the case of retirement on or after the
attainment of age 65, or in the case of permanent disability. In no event,
however, shall any such period extend beyond the Option Term.
(c) In the event of the death of Xxxxxxx, the Option may be
exercised by Xxxxxxx's legal representative(s), but only to the extent that the
Option would otherwise have been exercisable by Xxxxxxx.
(d) Notwithstanding any other provisions set forth herein or
in the Plan, if Grantee shall (i) commit any act of malfeasance or wrongdoing
affecting the Company or any subsidiary of Company, (ii) breach any covenant not
to compete, or employment contract, with Company or any subsidiary of Company,
or (iii) engage in conduct that would warrant Grantee's discharge for cause
(excluding general dissatisfaction with the performance of Grantee's duties, but
including any act of disloyalty or any conduct clearly tending to bring
discredit upon the Company or any subsidiary of the Company), any unexercised
portion of the Option shall immediately terminate and become null and void.
(e) During the period of 12 months immediately following the
date upon which Xxxxxxx receives a "hardship" withdrawal from a retirement plan
qualifying under ss.401(k) of the Code, all rights of Grantee to exercise the
Option shall be suspended.
(f) Notwithstanding any other provision set forth herein, the
Federal Reserve Board or the Federal Deposit Insurance Corporation ("FDIC"),
individually or in conjunction with the other, may require Grantee to exercise
or forfeit the Option if the capital of either the Company or The Bancorp Bank
falls below minimum requirements, as determined by federal or state regulators.
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4. EXERCISE OF OPTION; DISPOSITION OF SHARES
(a) Grantee may exercise the Option with respect to all or any
part of the number of Option Shares granted hereunder by giving the Secretary of
the Company written notice of intent to exercise, in the form attached hereto
(the "NOTICE OF EXERCISE"). The Notice of Exercise shall specify the number of
Option Shares as to which the Option is to be exercised and the date of exercise
thereof, which date shall be at least 5 days after the giving of such notice
unless an earlier time shall have been mutually agreed upon.
(b) Full payment (in U.S. dollars) by Grantee of the option
price for the Option Shares purchased shall be made on or before the exercise
date specified in the Notice of Exercise in cash, or, in whole or in part
through the surrender of previously acquired Shares (which Grantee has held for
at least 6 months prior to the Notice of Exercise or has purchased on the open
market and for which Grantee has good title, free and clear of all liens and
encumbrances) at their fair market value on the exercise date.
On the exercise date specified in the Notice of
Exercise or as soon thereafter as is practicable, the Company shall cause to be
delivered to Grantee a certificate or certificates for the Option Shares then
being purchased (out of theretofore unissued Shares or reacquired Shares, as the
Company may elect) upon full payment for such Option Shares. The obligation of
the Company to deliver the Option Shares shall, however, be subject to the
condition that if at any time the Committee shall determine in its discretion
that the listing upon any securities exchange or under any state or federal law,
or the consent or approval of any governmental regulatory body, is necessary or
desirable as a condition of, or in connection with, the Option or the issuance
or purchase of Option Shares thereunder, the Option may not be exercised in
whole or in part unless such listing, registration, qualification, consent or
approval shall have been effected or obtained free of any conditions not
acceptable to the Committee.
(c) If Grantee fails to pay for any of the Option Shares
specified in the Notice of Exercise or fails to accept delivery thereof,
Xxxxxxx's right to purchase such Option Shares may be terminated by the Company.
The date specified in the Notice of Exercise as the date of exercise shall be
deemed to be the date of exercise of the Option, provided that payment in full
for the Option Shares to be purchased upon such exercise shall have been
received by such date.
(d) Grantee shall notify the Company of any sale or other
disposition of the Option Shares if such sale or disposition occurs (i) within 2
years of the Date of Grant or (ii) within one year of the issuance of the Option
Shares to Grantee. Such notice shall be in writing and directed to the Secretary
of the Company.
5. NO RIGHTS AS STOCKHOLDER
Neither Grantee nor any personal representative shall be, or
shall have any of the rights and privileges of, a stockholder of the Company
with respect to any Shares purchasable or issuable upon the exercise of the
Option, in whole or in part, prior to the date of exercise of the Option.
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6. NON-TRANSFERABILITY OF OPTION
The Option may not be transferred by Grantee other than by
will or the laws of descent and distribution or pursuant to beneficiary
designation procedures approved by the Company. In the event of (a) any attempt
by the Grantee to alienate, assign, pledge, hypothecate or otherwise dispose of
the Option, except as provided for herein, or (b) the levy of any attachment,
execution or similar process upon the rights or interest hereby conferred, the
Company may terminate the Option by notice to Grantee and it shall thereupon
become null and void.
7. EMPLOYMENT NOT AFFECTED
Neither the granting of the Option nor its exercise shall be
construed as granting to Grantee any right with respect to the continuance of
employment by the Company. Except as may otherwise be limited by a written
agreement between the Company and Grantee, the right of the Company and any
employing subsidiary to terminate at will Grantee's employment by the Company or
any employing subsidiary at any time (whether by dismissal, discharge,
retirement or otherwise) is specifically reserved by the Company, or the
employing subsidiary (whichever the case may be), and acknowledged by Grantee.
8. AMENDMENT OF OPTION
The Option may be amended by the Board of Directors or the
Committee at any time (i) if the Board of Directors or the Committee determines,
in its sole discretion, that amendment is necessary or advisable in light of any
addition to or change in the Internal Revenue Code of 1986, as amended, or in
the regulations issued thereunder, or any federal or state securities law or
other law or regulation, which change occurs after the Date of Grant and by its
terms applies to the Option; or (ii) other than in the circumstances described
in clause (i), with the consent of Xxxxxxx.
9. NOTICE
Any notice to the Company provided for in this Agreement shall
be addressed to it in care of its Secretary at its executive offices at 000
Xxxxxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx 00000 or at such other address as to which
the Company shall have notified Grantee in writing and any notice to Grantee
shall be addressed to the Grantee at the current address shown on the records of
the Company. Any notice shall be deemed to be duly given if and when properly
addressed and posted by registered or certified mail, postage prepaid, overnight
delivery or confirmed telecopy.
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10. INCORPORATION OF THE PLAN BY REFERENCE
The Option is granted pursuant to the terms of the Plan, the
terms of which are incorporated herein by reference, and the Option shall in all
respects be interpreted in accordance with the Plan. The Committee shall
interpret and construe the Plan and this Agreement, and its interpretations and
determinations shall be conclusive and binding on the parties hereto and any
other person claiming an interest hereunder, with respect to any issue arising
hereunder or thereunder.
11. GOVERNING LAW
The validity, constructions, interpretations and effect of
this Agreement shall exclusively be governed by and determined in accordance
with the laws of the State of Delaware, except to the extent preempted by
federal law, which shall apply to the extent it governs.
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IN WITNESS WHEREOF, the Company has caused its duly authorized officer
to execute this Grant of Non-Qualified Stock Option and Xxxxxxx has placed his
or her signature hereon, effective as of the date first written above.
THE BANCORP, INC.
By: _______________________________
Name:
Title:
ACCEPTED AND AGREED TO:
By: ______________________________
[Name], Grantee
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NOTICE OF EXERCISE
Date:_____________, ____
The undersigned hereby irrevocably elects to exercise on
________________, ____ the Stock Option granted on ______________ by The
Bancorp, Inc. to the undersigned to the extent of purchasing ____________ Option
Shares and hereby makes payment of $____________________ in payment of the
actual exercise price thereof.
_______________________
INSTRUCTIONS FOR REGISTRATION OF SHARES
_______________________
Name: ____________________________________________________________
(Please typewrite or print in block letters)
Address: _________________________________________________________
Signature: _______________________________________________________
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