TierOne CORPORATION INCENTIVE STOCK OPTION AGREEMENT AMENDED AND RESTATED 2003 STOCK OPTION PLAN
Exhibit
10.2
TierOne
CORPORATION
AMENDED
AND RESTATED 2003 STOCK OPTION PLAN
AN
INCENTIVE STOCK OPTION ("Option") to purchase a total of 300,000 shares of the
common stock, par value $.01 per share ("Common Stock"), of TierOne Corporation,
Lincoln, Nebraska, (the "Corporation") is hereby granted to Xxxxxxx X. Xxxxx
(the "Optionee") pursuant to the Amended and Restated 2003 Stock Option Plan
("Plan") of the Corporation. The Option granted hereby is subject to
all the terms and conditions of the Plan and this Agreement. The Plan
is incorporated by reference herein. Defined terms, unless otherwise
defined herein, shall have the same meaning as set forth in the
Plan.
1. Option
Price. The option price shall be $ 0.8701 for each share
of Common Stock eligible to the exercised hereunder, which price is 100% of the
Fair Market Value, as defined in Section 3.15 of the Plan, of the Common Stock
on the date of grant of this Option.
2. Exercise of
Option. This Option shall be exercisable pursuant to the
provisions of Article VIII, Section 8.03 of the Plan, as follows:
(a) Schedule of Right of
Exercise.
|
Years
of Continuous
Employment After Date of Grant of Option |
Percentage
of Total Shares of Common
Stock Subject to Option Which May be Exercised |
|
|
after
1 year
|
20%
|
|
|
after
2 years
|
40
|
|
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after
3 years
|
60
|
|
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after
4 years
|
80
|
|
|
after
5 years
|
100
|
|
The right
to exercise the Option pursuant to the above schedule is
cumulative.
Notwithstanding
the foregoing, the Option shall become immediately vested and exercisable in
full on the date the Optionee terminates his employment with the Corporation or
a Subsidiary Company (as defined in Section 3.25 of the Plan) because of his
death or Disability (as defined in Section 3.10 of the Plan). Notwithstanding
the provisions of Section 8.03(b) of the Plan, accelerated vesting of the Option
shall not occur in the event of a Change in Control (as such term is defined in
Section 3.04 of the Plan) of the Corporation or TierOne Bank (the “Bank”) if at
the time of a Change in Control either the Corporation or the Bank is deemed to
be in “troubled condition” as defined in 12 C.F.R. Section 563.555 (or any
successor thereto) unless, prior to or in connection with the Change in Control,
the OTS, and, to the extent required, the Federal Deposit Insurance Corporation,
has approved or not objected to the acceleration under the terms of Section
8.03(b) of the Plan of this Option pursuant to the provisions of 12 C.F.R. Part
359.
(b) Method of
Exercise. This Option shall be exercisable by written notice
to the Secretary of the Corporation on the Incentive Stock Option Exercise Form
provided herewith which shall:
(i) state
the election to exercise the Option, the number of shares with respect to which
it is being exercised, the person in whose name the stock certificate or
certificates for such shares of Common Stock is to be registered, his address
and Social Security number (or if more than one, the names, addresses and Social
Security numbers of such persons);
(ii) be
signed by the person or persons entitled to exercise the Option and, if the
Option is being exercised by any person or person other than the Optionee, be
accompanied by proof, satisfactory to counsel for the Corporation, of the right
of such person or persons to exercise the Option;
(iii) be
in writing and delivered in person or by certified mail to the Secretary of the
Corporation at its executive office located at 0000 X Xxxxxx, Xxxxxxx, Xxxxxxxx
00000, Attention: Xxxxxx X. Xxxxxxxxx; and
(iv) be
accompanied by payment for, or irrevocable instructions to a broker to sell, the
shares of Common Stock with respect to which the Option is being exercised
(payment for the Option in this manner will result in the loss of the
tax-advantaged nature of the Option).
Payment
in full of the purchase price for shares of Common Stock purchased pursuant to
the exercise of any Option shall be made to the Corporation upon exercise of the
Option. All shares sold under the Plan shall be fully paid and
nonassessable. Payment for shares may be made by the Optionee (i) in
cash or by check, (ii) by delivery of a properly executed exercise notice,
together with irrevocable instructions to a broker (which shall be unrelated to
the Corporation or the Optionee) to sell the shares and then to properly deliver
to the Corporation the amount of sale proceeds to pay the exercise price, all in
accordance with applicable laws and regulations and Emerging Issues Task Force
Issue No. 00-23 and Financial Accounting Standards Board Statement No. 123R, or
(iii) at the discretion of the Board or the Committee, by delivering shares of
Common Stock (including shares acquired pursuant to the previous exercise of an
Option) equal in Fair Market Value to the purchase price of the shares to be
acquired pursuant to the Option, by withholding some of the shares of Common
Stock which are being purchased upon exercise of an Option, or any combination
of the foregoing. With respect to subclause (iii) hereof, the shares
of Common Stock delivered to pay the purchase price must have either been (x)
purchased in open market transactions or (y) issued by the Corporation pursuant
to a plan thereof, in each case more than six months prior to the exercise date
of the Option (or one year in the case of previously exercised Incentive Stock
Options).
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(c) Restrictions on
Exercise. This Option may not be exercised if the issuance of
the shares of Common Stock upon such exercise would constitute a violation of
any applicable federal or state securities law or regulation or any other law or
valid regulation. As a condition to the exercise of this Option, the
Corporation may require the person exercising this Option to make any
representation or warranty to the Corporation as may be required by any
applicable law or regulation, and may require the Optionee to comply with the
matters set forth in Sections 4.05 and 4.06 of the Plan.
3. Non-transferability of
Option. This Option may not be transferred or assigned in any
manner otherwise than by will or the laws of descent or distribution and may be
exercised during the lifetime of the Optionee only by him. The terms of this
Option shall be binding upon the executors, administrators, heirs, successors
and assigns of the Optionee.
4. Term of
Option. This Option may not be exercised later than the
earlier to occur of (i) ten years from the date of grant of this Option, or (ii)
six (6) months after the date on which the Optionee ceases to be employed by the
Corporation and all Subsidiary Companies except as set forth below, and may be
exercised during such term only in accordance with the Plan and the terms of
this Agreement. If the Optionee terminates his employment with the
Corporation or a Subsidiary Company as a result of Disability or Retirement (as
defined in Section 3.24 of the Plan) without having fully exercised his Option,
the Optionee shall have the right, during the three (3) year period following
his termination due to Disability or Retirement, to exercise such Option to the
extent such Option has vested in accordance with the terms hereof and the Plan
at the time of termination for Disability or Retirement. If the
Optionee dies while in the employ of the Corporation or a Subsidiary Company or
terminates employment with the Corporation or a Subsidiary Company as a result
of Disability or Retirement and dies without having fully exercised his vested
Option, the executors, administrators, legatees or distributees of his estate
shall have the right, during the one (1) year period following his death, to
exercise such Option. If the Optionee terminates his employment with the
Corporation or a Subsidiary Company following a Change in Control without having
fully exercised his Option, the Optionee shall have the right to exercise such
Option to the extent vested at the time of such termination during the remainder
of the original ten (10) year term of the Option from the date of
grant. Exercise of the Option more than three (3) months (or one (1)
year in certain cases) after termination will result in the loss of the
tax-advantaged nature of the Option.
5. Tax
Status. To the extent that the aggregate Fair Market Value of
the stock with respect to which incentive stock options are exercisable by the
Optionee for the first time during any calendar year (under all stock option
plans of the Corporation and its Subsidiary Companies) exceeds $100,000, such
Options are not incentive stock options. For the purposes of this
Section 5, the Fair Market Value of stock shall be determined as of the time the
option with respect to such stock is granted. This Section 5 shall be
applied by taking options into account in the order in which they were
granted. To the extent that this Option is to become exercisable for
the first time during any calendar year with respect to a number of shares that
exceeds the foregoing limitation, this Option shall be considered to consist of
(i) an incentive stock option to acquire the maximum number of shares permitted
under this Section 5 and (ii) a compensatory stock option to acquire the excess
shares on the same terms described in this Agreement.
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6. Notice of Disposition;
Withholding; Escrow. Optionee shall immediately notify the
Corporation in writing of any sale, transfer, assignment or other disposition
(or action constituting a disqualifying disposition within the meaning of
Section 421 of the Internal Revenue Code of 1986, as amended) of any shares of
Common Stock acquired through exercise of this Option, within two (2) years
after the date of the grant of the Option or within one (1) year after the
acquisition of such shares, setting forth the date and manner of disposition,
the number of shares disposed of and the price at which such shares were
disposed of. The Corporation shall be entitled to withhold from any
compensation or other payments then or thereafter due to the Optionee such
amounts as may be necessary to satisfy any withholding requirements of federal
or state law or regulation and, further, to collect from the Optionee any
additional amounts which may be required for such purpose. The
Committee or the Board may, in their discretion, require shares of Common Stock
acquired by an Optionee upon exercise of this Option to be held in an escrow
arrangement for the purpose of enabling compliance with the provisions of
Section 8.09(c) of the Plan.
7. Administration. The
authority to manage and control the operation and administration of this
Agreement shall be vested in the Committee, and the Committee shall have all
powers with respect to this Agreement as it has with respect to the
Plan. Any interpretation of the Agreement by the Committee and any
decision made by it with respect to the Agreement is final and binding in the
absence of action by the Board.
8. Terms and
Conditions. The terms and conditions included in the Plan are
incorporated herein by reference, and to the extent that any conflict may exist
between the terms and conditions included in the Plan and the terms of this
Agreement, then the terms and conditions included in the Plan shall
control.
9. Not an Employment
Contract. The Option will not confer on the Optionee any right
with respect to continuance of employment or other service with the Corporation
or any Subsidiary Company, nor will it interfere in any way with any right the
Company or any Subsidiary Company would otherwise have to terminate or modify
the terms of the Optionee's employment or other service at any
time.
10. Notices. Any
written notices provided for in this Agreement or the Plan shall be in writing
and shall be deemed sufficiently given if either hand delivered or if sent by
fax or overnight courier, or by postage paid first class
mail. Notices sent by mail shall be deemed received three business
days after mailing but in no event later than the date of actual
receipt. Notices shall be directed, if to the Optionee, at the
Optionee's address indicated by the Corporation's records, or if to the
Corporation, at the Corporation's executive office.
11. No Rights As
Shareholder. The Optionee shall not have any rights of a
shareholder with respect to the shares subject to the Option until a stock
certificate has been duly issued following exercise of the Option as provided
herein.
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12. Amendment. This
Agreement may be amended by written agreement of the Optionee and the
Corporation, without the consent of any other person; provided, however, in no
event shall the Board or the Committee without shareholder approval amend the
Option in any manner that effectively allows the repricing of the Option either
through a reduction in the exercise price or through the cancellation and
regrant of a new Option in exchange for the cancelled Option (except as
permitted pursuant to Article IX of the Plan in connection with a change in the
Corporation's capitalization).
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ATTEST:
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TierOne CORPORATION
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/s/ Xxxxxx X. Xxxxxxxx
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By:
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/s/ Xxxxxxx X. Xxxxxxx
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Xxxxxx
X. Xxxxxxxx
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Xxxxxxx
X. Xxxxxxx
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Assistant
Secretary
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Lead
Director
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(Seal)
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OPTIONEE
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/s/ Xxxxxxx X. Xxxxx
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Name:
Xxxxxxx X. Xxxxx
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Date
of Grant: January 28,
2010
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5
TierOne CORPORATION
INCENTIVE
STOCK OPTION EXERCISE FORM
___________________________
Date
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Attn:
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Xxxxxx
X. Xxxxxxxxx, Secretary
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Dear Xx.
Xxxxxxxxx:
The
undersigned elects to exercise his/her Incentive Stock Option to purchase _____
shares, par value $.01 per share, of Common Stock of TierOne
Corporation (the “Option Shares”).
Delivered
herewith in satisfaction of the required purchase price is (select applicable
choice(s):
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____
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(a)
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Cash
or a check payable to TierOne Corporation or in the amount of
$____________ ;
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____
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(b)
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Certificate(s)
for ________ shares of Common Stock having a value of $__________ as of
the date of this notice;
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____
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(c)
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irrevocable
instructions to a broker to sell ________ Option Shares and then to
properly deliver to the Corporation the amount of sale proceeds to pay the
exercise price and any applicable tax withholding (which manner of payment
I acknowledge will result in a disqualifying disposition of my Option and
the loss of the tax-advantaged nature of the Option to the extent
exercised).
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If Common
Stock is enclosed or being used in full or partial consideration of the purchase
price pursuant to items (b) and/or (c) above, I am also attaching a written
notification from the Committee advising: (i) that such means of
payment has been authorized to be used by me with respect to the Option Shares
and (ii) as to the fair market value of the shares proposed to be tendered by me
as required by the provisions of the Plan.
6
The name
or names to be on the stock certificates and the address and Social Security
number or addresses and Social Security numbers of such person or persons is as
follows:
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Name:
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Address:
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City
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State
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Zip
Code
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Social
Security Number:
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Very
truly yours,
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(Signature
of Person or Persons
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exercising
the Option)
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(Print
Name and Address)
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Date
received by the Corporation:
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7
