NONQUALIFIED STOCK OPTION AWARD PURSUANT TO THE PARK STERLING CORPORATION 2010 LONG-TERM INCENTIVE PLAN
Exhibit 10.12
NONQUALIFIED STOCK OPTION AWARD
PURSUANT TO THE PARK STERLING CORPORATION
2010 LONG-TERM INCENTIVE PLAN
PURSUANT TO THE PARK STERLING CORPORATION
2010 LONG-TERM INCENTIVE PLAN
THIS NONQUALIFIED STOCK OPTION AWARD is made as of the Grant Date by and between PARK STERLING
CORPORATION (the “Company”), a bank holding company organized under the laws of the State of North
Carolina; and (the “Optionee”).
Upon and subject to the Terms and Conditions attached hereto and incorporated herein by
reference and further subject to the provisions of the Park Sterling Corporation 2010 Long-Term
Incentive Plan, the Company hereby awards as of the Grant Date to Optionee a nonqualified stock
option (the “Option”), as described below, to purchase the Option Shares.
| X. | Xxxxx Date: . |
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| B. | Type of Option: Nonqualified Stock Option. |
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| C. | Plan under which granted: Park Sterling Corporation 2010 Long-Term Incentive Plan. |
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| D. | Option Shares: All or any part of shares of the Company’s
non-voting common stock (the “Common Stock”), subject to adjustment as provided in the
attached Terms and Conditions. |
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| E. | Exercise Price: $ per share, 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 on the Grant
Date. |
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| F. | Option Period: The Option may be exercised only during the Option Period which
commences on the Grant Date and ends, generally, on the earlier of (a) the
anniversary of the Grant Date; or (b) the earliest of (i) three (3) months following
the date the Optionee’s Separation from Service from the Company (including any
Affiliate) for any reason other than the Optionee’s death or Disability, or (ii) one
(1) year following the date the Optionee’s Separation from Service from the Company
(including any Affiliate) due to death or Disability. Note that other limitations to
exercising the Option, as described in the attached Terms and Conditions, may apply. |
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| G. | Vesting Schedule: The Option may be exercised only to the extent of Vested
Option Shares (as defined in Schedule 1). Option Shares shall become vested in
accordance with Schedule 1 hereto (the “Vesting Schedule”). Any portion of the
Option which is not vested at the time of Optionee’s Separation from Service shall be
forfeited to the Company. |
IN WITNESS WHEREOF, the parties have signed this Award as of the Grant Date set forth above.
| PARK STERLING CORPORATION: | OPTIONEE: | |||
By: |
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Title: |
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TERMS AND CONDITIONS
TO THE
NONQUALIFIED STOCK OPTION AWARD
PURSUANT TO THE PARK STERLING CORPORATION
2010 LONG-TERM INCENTIVE PLAN
TO THE
NONQUALIFIED STOCK OPTION AWARD
PURSUANT TO THE PARK STERLING CORPORATION
2010 LONG-TERM INCENTIVE PLAN
1. Exercise of Option. Subject to the provisions provided in the Award, these
accompanying Terms and Conditions and the provisions of the Plan, 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:
(a) the delivery to the Company, at its principal place of business, of a written
notice of exercise in substantially the form attached hereto as Exhibit 1, which
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, unless prior notice is waived by the Committee;
(b) payment to the Company of the Exercise Price multiplied by the number of Vested
Option Shares being purchased (the “Purchase Price”), as provided in Section 3; and
(c) satisfaction of the withholding tax obligations under Section 2.
(d) Notwithstanding any other provision of this Award, in the event that the capital of
Park Sterling Bank (the “Bank”) falls below the minimum requirements determined by the
primary federal regulator of the Bank (the “Regulator”), the Regulator may direct the Bank
to require the Optionee to exercise, or otherwise forfeit, the Option in whole or in part.
If the Regulator gives such direction, the Bank will notify the Optionee within forty-five
(45) days from the date the Regulator notifies the Bank in writing that the Optionee must
exercise, or otherwise forfeit, the Option in whole or in part. If the Optionee does not
exercise the Option in accordance with the Bank’s direction within twenty-one (21) days of
the Bank’s notification to the Optionee, the Committee may provide for the cancellation of
the Option.
Upon acceptance of such notice and receipt of payment in full of the Purchase Price and, if
applicable, withholding taxes, the Company shall cause to be issued a certificate representing the
Vested Option Shares purchased.
2. Withholding. As a condition of this Award, the Optionee agrees upon exercise of
any portion of this Option (or at any other time as may be required by applicable law) to make
arrangements satisfactory to the Company regarding the withholding of federal, state, local or
foreign income and employment taxes with respect to this Option as may be required by applicable
law.
3. Purchase Price. Payment of the Purchase Price for all Vested Option Shares
purchased pursuant to the exercise of an Option shall be made:
(a) in cash or certified or bank cashier’s check;
(b) at the discretion of the Committee, by electing to have the number of shares of
Common Stock to be issued upon exercise reduced by the number of shares of Common Stock
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 check equal to the Purchase
Price; in such case, the Optionee will be deemed to have elected to receive a taxable
payment of cash equal to the excess of the Fair Market Value of the number of shares of
Common Stock withheld to pay the
Purchase Price (less any cash or check payment actually paid by the Optionee) over the
portion of the Purchase Price attributable to the shares withheld, which amount shall be
used to pay the Purchase Price, in exchange for cancellation of the portion of the vested
Option attributable to the number of shares of Common Stock the Company has withheld to
satisfy the Purchase Price; or
(c) if and when the Common Stock becomes traded by brokers, whether on a national
securities exchange or otherwise, 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 Vested Option Shares with respect to which the Option is
exercised; or
(d) in any combination of the foregoing.
4. 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.
5. Restriction on Transfer of Option.
(a) General Restrictions. The Optionee (and any subsequent holder of the
Option) may not sell, pledge or otherwise directly or indirectly transfer (whether with or
without consideration and whether voluntarily or involuntarily or by operation of law) any
interest in or any beneficial interest in the Option except pursuant to the provisions of
this Award. Any sale, pledge or other transfer (or any attempt to effect the same) of the
Option in violation of any provision of this Award shall be void, and the Company shall not
record such transfer, assignment, pledge or other disposition on its books or treat any
purported transferee or pledgee of the Option as the owner or pledgee of the Option for any
purpose.
(b) Certain Permitted Transfers of Options. The restrictions contained in this
Section will not apply with respect to transfers of the Option pursuant to applicable laws
of descent and distribution; provided that the restrictions contained in this Section will
continue to be applicable to the Option after any such transfer; and provided further that
the transferee(s) of the Option must agree in writing to be bound by the provisions of this
Award.
6. Changes in Capitalization.
(a) The number of Option Shares and the Exercise Price shall be proportionately
adjusted for nonreciprocal transactions between the Company and the holders of capital stock
of the Company that cause the per share value of the shares of Common Stock underlying the
Option to change, such as a stock dividend, stock split, spinoff, rights offering, or
recapitalization through a large, nonrecurring cash dividend (each, an “Equity
Restructuring”).
(b) In the event of a merger, consolidation, reorganization, extraordinary dividend,
sale of substantially all of the Company’s assets or other material change in the capital
structure of the Company, or a tender offer for shares of Common Stock, or a Change in
Control, that in each case is not an “Equity Restructuring,” the Committee shall take such
action to make such adjustments in the Option or the terms of this Award as the Committee,
in its sole discretion, determines in good faith is necessary or appropriate, including,
without limitation, adjusting the
number and class of securities subject to the Option, with a corresponding adjustment in the
Exercise Price, substituting a new option to replace the Option, accelerating the
termination of the Option Period or terminating the Option in consideration of a cash
payment to the Optionee in an amount equal to the excess of the then Fair Market Value of
the Option Shares over the aggregate Exercise Price of the Vested Option Shares. Any
determination made by the Committee pursuant to this Subsection (b) will be final and
binding on the Optionee. Any action taken by the Committee need not treat all optionees
equally.
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(c) The existence of the Plan and the Option granted pursuant to this Award shall not
affect in any way the right or power of the Company to make or authorize any adjustment,
reclassification, reorganization or other change in its capital or business structure, any
merger or consolidation of the Company, any issue of debt or equity securities having
preferences or priorities as to the Common Stock or the rights thereof, the dissolution or
liquidation of the Company, any sale or transfer of all or any part of its business or
assets, or any other corporate act or proceeding. Any adjustment pursuant to this Section
may provide, in the Committee’s discretion, for the elimination without payment therefor of
any fractional shares that might otherwise become subject to any Option.
(d) Any adjustments made as a result of this Section 6 shall be made so that the Option
shall continue to be exempt from Code section 409A, as provided in the regulations
thereunder, if the Option is intended to be exempt from Code section 409A.
7. Special Limitation on Exercise. No purported exercise of the Option shall be
effective without the approval of the Committee, which may be withheld to the extent that the
exercise, either individually or in the aggregate together with the exercise of other previously
exercised stock options and/or offers and sales pursuant to any prior or contemplated offering of
securities, would, in the sole and absolute judgment of the Committee, require the filing of a
registration statement with the United States Securities and Exchange Commission or with the
securities commission of any state. If a registration statement is not in effect under the
Securities Act of 1933 or any applicable state securities law with respect to shares of Common
Stock purchasable or otherwise deliverable under the Option, the Optionee (a) shall deliver to the
Company, prior to the exercise of the Option or as a condition to the delivery of Common Stock
pursuant to the exercise of an Option, such information, representations and warranties as the
Company may reasonably request in order for the Company to be able to satisfy itself that the
Option Shares are being acquired in accordance with the terms of an applicable exemption from the
securities registration requirements of applicable federal and state securities laws and (b) shall
agree that the shares of Common Stock so acquired will not be disposed of except pursuant to an
effective registration statement, unless the Company shall have received an opinion of counsel that
such disposition is exempt from such requirement under the Securities Act of 1933 and any
applicable state securities law.
8. Lock-up Agreement. The Optionee hereby agrees that Optionee will not, directly or
indirectly, sell, offer, contract to sell, grant of options for the purchase of, transfer the
economic risk of ownership in, make any short sale of, pledge or otherwise dispose of any Option
Shares during the thirty (30) days prior to and the one hundred eighty (180) days (or any shorter
period permitted by the managing underwriter) after the effectiveness of any underwritten public
offering, except as part of such underwritten public offering or if otherwise permitted by the
Company; provided, all similarly situated shareholders become subject to the same restrictions.
The Optionee hereby agrees to execute and deliver any additional document or acknowledgement
reflecting the foregoing provisions or containing similar restrictions as may be requested by the
Company or its managing underwriters in connection with the initial public offering of Common
Stock. The Company may place a legend on any stock certificates representing Option Shares and may
impose stop-transfer instructions with respect to the Option Shares in order to enforce the
foregoing restrictions.
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9. Legend on Stock Certificates. Certificates evidencing the Option Shares, to the
extent appropriate at the time, shall have noted conspicuously on the certificate legends intended
to give all persons full notice of the existence of the conditions, restrictions, rights and
obligations set forth herein and in the Plan, and the Optionee shall not make any transfer of the
Option Shares without first complying with the restrictions on transfer described in such legends.
Such legends may include the following:
transfer is restricted
The shares evidenced by this certificate have been issued pursuant to an exemption
from registration under the Securities Act of 1933, as amended (the “Securities Act”) and
applicable state securities laws and as such may only be sold or otherwise transferred: (1)
pursuant to registration or an exemption from registration under the Securities Act, including
but not limited to Rule 144 thereunder, and the securities laws of any applicable state or
other jurisdiction; or (2) if, in the opinion of counsel, in form and substance satisfactory
to the issuer, such transfer is exempt from registration or is otherwise in compliance with
applicable federal and state securities laws.
The securities evidenced by this certificate are subject to restrictions on transfer
which also apply to the transferee as set forth in a Nonqualified Stock Option Award, dated
, a copy of which is available from the Company.
10. Governing Laws. This Award and these Terms and Conditions shall be construed,
administered and enforced according to the laws of the State of North Carolina; provided, however,
the Option may not be exercised except in compliance with exemptions available under applicable
state securities laws of the state in which the Optionee resides and/or any other applicable
securities laws.
11. Successors. This Award and these Terms and Conditions shall be binding upon and
inure to the benefit of the heirs, legal representatives, successors and permitted assigns of the
Optionee and the Company.
12. Notice. Except as otherwise specified herein, all notices and other
communications required or permitted under this Award shall be in writing and, if mailed by prepaid
first-class mail or certified mail, return receipt requested, shall be deemed to have been received
on the earlier of the date shown on the receipt or three (3) business days after the postmarked
date thereof. In addition, notices hereunder may be delivered by hand, facsimile transmission or
overnight courier, in which event the notice shall be deemed effective when delivered or
transmitted. All notices and other communications under this Agreement shall be given to the
parties hereto at the following addresses: to the Company (attention of the Secretary), at 0000 X.
Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, XX 00000, or at any other address as the Company, by notice
to Optionee, may designate in writing from time to time; and to Optionee, at Optionee’s address as
shown on the records of the Company, or at any other address as Optionee, by notice to the Company,
may designate in writing from time to time.
13. Severability. In the event that any one or more of the provisions or portion
thereof contained in the Award and these Terms and Conditions shall for any reason be held to be
invalid, illegal or unenforceable in any respect, the same shall not invalidate or otherwise affect
any other provisions of the Award and these Terms and Conditions, and the Award and these Terms and
Conditions shall be construed as if the invalid, illegal or unenforceable provision or portion
thereof had never been contained herein.
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14. Entire Agreement. Subject to the terms and conditions of the Plan, the Award and
the Terms and Conditions express the entire understanding of the parties with respect to the
Option.
15. Violation. Except as provided in Section 5, any transfer, pledge, sale,
assignment, or hypothecation of the Option or any portion thereof shall be a violation of the terms
of the Award or these Terms and Conditions and shall be void and without effect.
16. Headings and Capitalized Terms. Section headings used herein are for convenience
of reference only and shall not be considered in construing the Award or these Terms and
Conditions. Capitalized terms used, but not defined, in either the Award or the Terms and
Conditions shall be given the meaning ascribed to them in the Plan.
17. Specific Performance. In the event of any actual or threatened default in, or
breach of, any of the terms, conditions and provisions of the Award and these Terms and Conditions,
the party or parties who are thereby aggrieved shall have the right to specific performance and
injunction in addition to any and all other rights and remedies at law or in equity, and all such
rights and remedies shall be cumulative.
18. No Right to Continued Service. Neither the establishment of the Plan nor the
award of Option Shares hereunder shall be construed as giving the Optionee the right to continued
service with the Company or any Affiliate.
19. Definitions. For purposes of this Award capitalized terms that are not defined
herein have the meaning set forth in the Plan or the Award, except where the context does not
reasonably permit.
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EXHIBIT 1
| Name | ||||||
| Address | ||||||
| Date | ||||||
Park Sterling Corporation
0000 X. Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attn: Corporate Secretary
0000 X. Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attn: Corporate Secretary
| Re: | Exercise of Nonqualified Stock Option |
Gentlemen:
Subject to acceptance hereof by Park Sterling Corporation (the “Company”) and pursuant to the
provisions of the Park Sterling Corporation 2010 Long-Term Incentive Plan (the “Plan”), I hereby
give notice of my election to exercise options granted to me to purchase shares of
Common Stock of the Company under the Nonqualified Stock Option Award (the “Award”) dated as of
. The purchase shall take place as of (the “Exercise Date”).
On or before the Exercise Date, I will pay the applicable purchase price as follows:
| o | by delivery of cash or a certified (or bank cashier’s) check for
$ for the full purchase price payable to the order of Park
Sterling Corporation. |
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| o | by having a number of Option Shares withheld, the Fair Market Value
of which as of the date of exercise is sufficient to satisfy the
Exercise Price; I understand that as a result of this election, I
will be deemed to have elected to receive a taxable payment of cash
equal to the excess of the Fair Market Value of the number of shares
of Common Stock withheld to pay the Purchase Price (less any payment
I make by check) over the portion of the purchase price attributable
to the shares withheld, which amount shall be used to pay the
purchase price, in exchange for a cancellation of the portion of the
vested Option attributable to the number of shares of Common Stock
the Company has withheld to satisfy the purchase price; |
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| o | by delivery of the purchase price by , a
broker, dealer or other “creditor” as defined by Regulation T issued
by the Board of Governors of the Federal Reserve System. I hereby
authorize the Company to issue a stock certificate for the number of
shares indicated above in the name of said broker, dealer or other
creditor or its nominee pursuant to instructions received by the
Company and to deliver said stock certificate directly to that
broker, dealer or other creditor (or to such other party specified in
the instructions received by the Company from the broker, dealer or
other creditor) upon receipt of the purchase price. Note: This
choice is available only if and when the Common Stock becomes traded
by brokers; or |
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| o | by delivery of shares of Common Stock that I own and that are
represented by a stock certificate I will surrender to the Company
with my endorsement. If the number of shares of Common Stock
represented by such stock certificate exceed the number to be applied against the purchase
price, I understand that a new stock certificate will be issued to me reflecting the excess
number of shares. |
Exhibit 1 – Page 1 of 3
To the extent applicable, any required federal, state, and local income tax withholding
obligations on the exercise of the Award shall be paid on or before the Exercise Date in a manner
satisfactory to the Company.
As soon as the stock certificate is registered in my name, please deliver it to me at the
above address.
If the Common Stock being acquired is not registered for issuance to and resale by the
Optionee pursuant to an effective registration statement on Form S-8 (or successor form) filed
under the Securities Act of 1933, as amended (the “1933 Act”), I hereby represent, warrant,
covenant, and agree with the Company as follows:
The shares of the Common Stock being acquired by me will be acquired for my own account
without the participation of any other person, with the intent of holding the Common Stock
for investment and without the intent of participating, directly or indirectly, in a
distribution of the Common Stock and not with a view to, or for resale in connection with,
any distribution of the Common Stock, nor am I aware of the existence of any distribution of
the Common Stock;
I am not acquiring the Common Stock based upon any representation, oral or written, by any
person with respect to the future value of, or income from, the Common Stock but rather upon
an independent examination and judgment as to the prospects of the Company;
The Common Stock was not offered to me by means of publicly disseminated advertisements or
sales literature, nor am I aware of any offers made to other persons by such means;
I am able to bear the economic risks of the investment in the Common Stock, including the
risk of a complete loss of my investment therein;
I understand and agree that the Common Stock will be issued and sold to me without
registration under any state law relating to the registration of securities for sale, and
will be issued and sold in reliance on the exemptions from registration under the 1933 Act,
provided by Sections 3(b) and/or 4(2) thereof and the rules and regulations promulgated
thereunder;
The Common Stock cannot be offered for sale, sold or transferred by me other than pursuant
to: (A) an effective registration under the 1933 Act or in a transaction otherwise in
compliance with the 1933 Act; and (B) evidence satisfactory to the Company of compliance
with the applicable securities laws of other jurisdictions. The Company shall be entitled
to rely upon an opinion of counsel satisfactory to it with respect to compliance with the
above laws;
The Company will be under no obligation to register the Common Stock or to comply with any
exemption available for sale of the Common Stock without registration or filing, and the
information or conditions necessary to permit routine sales of securities of the Company
under Rule 144 under the 1933 Act are not now available and no assurance has been given that
it or they will become available. The Company is under no obligation to act in any manner
so as to make Rule 144 available with respect to the Common Stock;
Exhibit 1 – Page 2 of 3
I have and have had complete access to and the opportunity to review and make copies of all
material documents related to the business of the Company, including, but not limited to,
contracts, financial statements, tax returns, leases, deeds and other books and records. I
have examined such of these documents as I wished and am familiar with the business and
affairs of the Company. I realize that the purchase of the Common Stock is a speculative
investment and that any possible profit therefrom is uncertain;
I have had the opportunity to ask questions of and receive answers from the Company and any
person acting on its behalf and to obtain all material information reasonably available with
respect to the Company and its affairs. I have received all information and data with
respect to the Company which I have requested and which I have deemed relevant in connection
with the evaluation of the merits and risks of my investment in the Company;
I have such knowledge and experience in financial and business matters that I am capable of
evaluating the merits and risks of the purchase of the Common Stock hereunder and I am able
to bear the economic risk of such purchase; and
The agreements, representations, warranties and covenants made by me herein extend to and
apply to all of the Common Stock of the Company issued to me pursuant to this Award.
Acceptance by me of the certificate representing such Common Stock shall constitute a
confirmation by me that all such agreements, representations, warranties and covenants made
herein shall be true and correct at that time.
I understand that the certificates representing the shares being purchased by me in accordance
with this notice shall bear a legend referring to the foregoing covenants, representations and
warranties and restrictions on transfer, and I agree that a legend to that effect may be placed on
any certificate which may be issued to me as a substitute for the certificates being acquired by me
in accordance with this notice. I further understand that capitalized terms used in this Notice of
Exercise without definition shall have the meanings given to them in the Award or the Plan, as
applicable.
Very truly yours, |
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AGREED TO AND ACCEPTED: |
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PARK STERLING CORPORATION |
By:
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Date: | |||||
Title: |
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Number of Shares Exercised:
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Number of Shares Remaining: | |||||||
Exhibit 1 – Page 3 of 3
SCHEDULE 1
VESTING SCHEDULE
NONQUALIFIED STOCK OPTION AWARD
ISSUED PURSUANT TO THE
PARK STERLING CORPORATION
2010 LONG-TERM INCENTIVE PLAN
VESTING SCHEDULE
NONQUALIFIED STOCK OPTION AWARD
ISSUED PURSUANT TO THE
PARK STERLING CORPORATION
2010 LONG-TERM INCENTIVE PLAN
| A. | “Vested Option Shares” means only that percentage of the number of Option Shares subject to
the Option as to which the Option becomes exercisable if the Optionee continues, at all times,
as director of the Company and/or an Affiliate from the Grant Date to the applicable
anniversary of the Grant Date below. |
| Percentage of Option Shares | ||||
| Vesting Date | which are Vested Option Shares | |||
| B. | The Optionee shall continue to have the opportunity to vest in Option Shares so long as the
Optionee remains in the continuous service of the Company and its Affiliates without incurring
a Separation from Service. |
The Option Shares which have satisfied (or are deemed to have satisfied) the conditions of
the Vesting Schedule are herein referred to as the “Vested Option Shares.” Any portion of
the Option Shares which have not become Vested Option Shares in accordance with this Vesting
Schedule before or at the time of Optionee’s Separation from Service shall be forfeited.
There will be no proration of the Vesting Schedule for partial years of service.
Schedule 1 – Page 1 of 1
