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EXHIBIT 99.2
XXXXXXXX BANCORP, INC.
EMPLOYEE STOCK OPTION AGREEMENT
Agreement, dated as of December 15, 1995, between Xxxxxxxx Bancorp,
Inc., a Delaware corporation (the "Corporation"), and Xxxx Xxxxxx ("Optionee").
W I T N E S S E T H :
1) Grant of Option. Pursuant to the provisions of the 1995 Stock
Plan (the "Plan"), the Corporation hereby grants to Optionee, subject to the
terms and conditions of the Plan and subject further to the terms and
conditions herein set forth, the right and option to purchase from the
Corporation the number of shares of Common Stock of the Corporation ("Stock")
set forth in Exhibit A hereto at the price per share set forth in Exhibit A, as
incentive stock options under Section 422 of the Internal Revenue Code of 1986,
as amended (the "Code") ("Incentive Options") or as non-incentive stock options
("Other Options"), as set forth in Exhibit A (the Incentive Options and Other
Options granted hereby being referred to together herein as the "Option" or the
"Options").
2) Terms and Conditions. The term of each respective Option
shall be for the applicable period specified in Exhibit A. The Options shall
be exercisable at any time in whole or in part and from time to time, subject
to earlier termination as provided in Paragraphs 3 and 4 of this Agreement,
from and after the applicable date(s) provided in Exhibit A. Unless otherwise
provided in Exhibit A as to Other Options, the Option may not be exercised (a)
as to fewer that 100 shares at any one time (or for the remaining shares then
purchasable under the Option, if fewer than 100 shares), (b) prior to the
expiration of the first six months after the date hereof, and (c) until
fulfillment of the conditions precedent set forth in Paragraph 7 hereof. The
holder of the Option shall not have any rights as a stockholder with respect to
the Stock issuable upon exercise of an Option until certificates for such Stock
shall have been issued and delivered to him after the exercise of the Option.
3) Termination of Employment. In the event that the employment
of Optionee shall be terminated (otherwise than by reason of death), the
Incentive Options shall be exercisable (to the extent that Optionee shall have
been entitled to do so at the termination of his employment) at any time prior
to the expiration of the period of sixty days after such termination, but not
later than the earlier of 1. the applicable expiration date specified in
Exhibit A and 2. the date which is ten years (five years in the case of an
Incentive Option granted to a 10% Stockholder, as defined in the plan) after
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the date on which the Option shall have been granted, except as may be provided
in Exhibit A with respect to Other Options. In the event that the employment of
Optionee shall be terminated, the Other Options shall be exercisable (to the
extent that Optionee shall have been entitled to do so at the termination of
his employment, at any time prior to the applicable expiration date thereof
specified in Exhibit A. Nothing in the Plan or in this Agreement shall confer
upon Optionee any right to be continued in the employ of the Corporation or its
subsidiaries or interfere in any way with the right of the Corporation or any
such subsidiary to terminate or otherwise modify the terms of Optionee's
employment; provided, however, that a change in Optionee's duties or position
shall not affect Optionee's Options so long as Optionee is still an employee of
the Corporation or its subsidiaries.
4) Death of Optionee. In the event of the death of Optionee, any
unexercised portion of any of the Incentive Options shall be exercisable (to
the extent that Optionee shall have been entitled to do so at the time of his
death) at any time prior to the earlier of the specified expiration date of
such Incentive Option or 180 days from the date of the Optionee's death, and
any unexercised portion of the Other Options shall be exercisable prior to the
applicable expiration date thereof specified in Exhibit A, and in each case
only by such person or persons to whom Optionee's rights shall pass under
Optionee's will or by the law of descent and distribution, except as may be
provided in Exhibit A with respect to Other Options.
5) Non-Transferability of Options. The Option shall not be
transferable otherwise than by will or the law of descent and distribution and
shall be exercisable during the lifetime of Optionee only by the Optionee.
6) Adjustments. In the event of changes in the outstanding stock
of the Corporation by reason of stock dividends, split-ups, recapitalizations,
mergers, consolidations, combinations or exchanges of shares, separations,
reorganizations or liquidations, the number and class of shares subject to the
Option shall be correspondingly adjusted. The provisions of paragraph 13 of
the Plan shall apply to all Options.
7) Conditions Precedent To Grant of Option. Anything in this
Agreement to the contrary notwithstanding, the effectiveness of the grant of
all Options pursuant to this Agreement are in all respects subject to, and this
Agreement and the Options granted under it shall be of no force or effect
unless and until, and no Options granted hereunder shall in any way vest or
become exercisable in any respect unless and until, approval of the Plan is
obtained by the affirmative vote of the holders of a majority of the
outstanding shares of Common Stock of the Corporation present in person or by
proxy and entitled to vote at a meeting of stockholders at which the plan is
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presented for approval, in form and substance satisfactory to counsel for the
Company. In the event that such stockholder approval as aforesaid has not been
received by the first anniversary of the date of adoption of the Plan by the
Board of Directors of the Corporation, then in such event this Agreement and
all Options granted under this Agreement shall be null and void, and upon the
occurrence of such approval, this Agreement and the Options shall become
effective as of the date of the grant of the Options.
8) Conditions Precedent To Exercise of Option. In the event that
the exercise of any of the Options or the issuance and delivery of the shares
hereunder shall be subject to, or shall require, any prior exchange listing,
prior stockholder approval, or other prior condition or act, pursuant to the
applicable laws, regulations or policies of any stock exchange, federal or
local government or its agencies or representatives, then no Option shall be
deemed to be exercisable under this Agreement until such condition is
satisfied. The Corporation shall not be liable in any manner to Optionee or
any other party for any failure or delay by the Corporation on its part to
fulfill any such condition.
9) Method of Exercising Option. Subject to the terms and
conditions of this Agreement, the Option may be exercised by written notice to
the Corporation, at its office at 000 Xxxx Xxxxxxx Xxxxxx, Xxxxx Xxx Xxxxx,
Xxxxxxxx 00000. Such notice shall 1. identify the Option to which it applies
(i.e., Incentive Option and/or Other Option), 2. state the election to exercise
the Option, 3. designate the number of shares in respect of which the Option is
being exercised, and 4. be signed by the person or persons so exercising the
Option. Such notice shall be accompanied by payment of the full purchase price
for such shares. The Corporation shall deliver to Optionee, at such address as
is provided in the notice, a certificate or certificates representing such
shares as soon as practicable after the notice shall be received. Payment of
such purchase price shall be made (a) in United States dollars in cash or by
certified or official bank check payable to the order of the Corporation.
Subject to the limitations hereinafter set forth, if Optionee requests, the
Corporation shall either lend to Optionee or arrange for a loan to Optionee of
the funds necessary to cover the portion of the purchase price of the shares
for which any Option is exercised in excess of the aggregate par value of such
shares. Such loan shall be evidenced by a personal recourse note of Optionee
to the lender, shall have a term of three years and a monthly amortization
schedule of 15 years, provided that, at the option of Optionee, interest
accruing on such loan shall not be due until the earlier of the maturity date
thereof or December 31, 2000. Each such note shall otherwise be in form and
substance reasonably required by the Corporation, and the indebtedness and
obligations evidenced thereby shall be secured by a pledge of and security
interest in the shares purchased with the proceeds thereof pursuant to a
security agreement in form and substance reasonably required by the
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Corporation. The right to obtain loans as provided in the preceding provisions
of this paragraph 9 shall terminate if Optionee shall cease to be an employee
of the Corporation's University Bank subsidiary for any reason unless such
termination of employment is a termination by the employer for the cause set
forth in clause (e) of paragraph 4 of Optionee's Employment Agreement (as
hereinafter defined), or a termination by Optionee due to a material reduction
of the responsibilities of Optionee under his Employment Agreement without
Optionee's express written consent. The certificate or certificates for the
shares as to which the Option shall have been so exercised shall be issued in
the name of the person so exercising the Option (or, if the Option shall be
exercised by Optionee and if Optionee shall so request in the notice exercising
the Option, the certificate shall be issued in the name of the Optionee and
another person jointly, with right of survivorship) and shall be delivered as
provided above to or upon the written order of the person exercising the
Option. In the event the Option shall be exercised, pursuant to Paragraph 4
hereof, by any person other than Optionee, such notice shall be accompanied by
appropriate proof of the right of such person to exercise the Option. At the
election of the Corporation, such certificate may bear such legends regarding
the limited transferability of the shares under applicable securities laws as
counsel for the Corporation may require. All shares that shall be purchased
upon the exercise of the Option as provided herein shall be fully paid and
non assessable.
10) Taxes. The Corporation may make such provisions as
it may deem appropriate for the withholding of any taxes which it determines is
required in connection with the Option granted hereunder. The Corporation may
further require notification from Optionee upon any disposition of Stock
acquired pursuant to the exercise of the Option.
11) Fair Market Value of Stock. If the Stock is publicly
traded, "fair market value" shall be determined as of the last business day for
which the prices or quotes discussed in this sentence are available prior to
the date in question and shall mean 1. the average (on that date) of the high
and low prices of the Stock on the principal national securities exchange on
which the Stock is traded, if the Stock is then traded on a national securities
exchange;or 2. the last reported sale price (on that date) of the Stock on the
NASDAQ National Market List, if the Stock is not then traded on a national
securities exchange; or 3. the closing bid price last quoted (on that date) by
an established quotation service for over-the-counter securities, if the Stock
is not reported on the NASDAQ National Market List. However, if the Stock is
not publicly traded at the time in question, "fair market value" shall be
deemed to be the fair value of the Stock as determined by the Committee after
taking into consideration all factors which it deems appropriate, including,
without limitation, recent sale and offer prices of the Stock in private
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transactions negotiated at arm's length.
12) Employment Agreement. It is expressly acknowledged
and agreed that the Options granted and provided for by this Agreement
constitute all of the options to purchase shares of capital stock of the
Corporation provided for and/or required to be granted pursuant to the
Employment Agreement, dated October 30, 1995, as amended, between University
Bank, Optionee, and the Corporation (the "Employment Agreement"), and that the
provisions of this Agreement shall supersede the provisions of the Employment
Agreement with respect thereto. This Agreement shall not, however, affect the
obligation to Optionee as to the availability of substitute stock options in
accordance with the terms of the Employment Agreement if the conditions
specified in Section 7 above are not satisfied.
13) Terms of Plan Control. The Option granted hereunder
is granted pursuant to the provisions of the Plan, the receipt of a copy of
which Optionee hereby acknowledges. Nothing contained in this Agreement shall
in any way be deemed to alter or modify the provisions of the Plan and no act
of the Corporation or its directors, officers or employees shall be deemed to
be a waiver or modification of any provision of the Plan. The provisions of
the Plan shall in all respects govern the Option. The Committee shall have
authority in its discretion, but subject to the express provisions of the Plan,
to interpret the Plan and this Agreement; to prescribe, amend and rescind rules
and regulations relating to the Plan, the Option and this Agreement; and to
make all other determinations deemed necessary or advisable for the
administration of the Plan, the Option and this Agreement. The Committee's
determination on the foregoing matters shall be conclusive.
14) Counterparts. This Agreement may be executed in
counterparts.
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IN WITNESS WHEREOF, the Corporation has caused this Agreement
to be duly executed by its Officer and Optionee as of the day and year first
above written.
XXXXXXXX BANCORP, INC.
BY: /s/ Xxxxxxx X. Xxxxxxx
---------------------------
President
/s/ Xxxx Xxxxxx (L.S.)
---------------------------
Xxxx Xxxxxx, Optionee
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Exhibit A
Incentive Options (Total Shares: 100,000) as follows:
(a) 20,000 shares of Common Stock:
(i) Exercisable immediately (subject to satisfaction of
the conditions set forth in Section 7 of the Employee
Stock Option Agreement).
(ii) Latest expiration date: December 31, 1997.
(iii) Purchase price per share: $4.50
(b) 20,000 shares of Common Stock:
(i) Exercisable on or after January 10, 1997 (subject to
satisfaction of the conditions set forth in Section 7
of the Employee Stock Option Agreement).
(ii) Latest expiration date: December 31, 1997.
(iii) Purchase price per share: $4.50
(c) 20,000 shares of Common Stock:
(i) Exercisable on or after January 10, 1998 (subject to
satisfaction of the conditions set forth in Section 7
of the Employee Stock Option Agreement).
(ii) Latest expiration date: September 30, 2000
(iii) Purchase price per share: $4.50
(d) 20,000 shares of Common Stock:
(i) Exercisable on or after January 10, 1999 (subject to
satisfaction of the conditions set forth in Section 7
of the Employee Stock Option Agreement).
(ii) Latest expiration date: September 30, 2000
(iii) Purchase price per share: $4.50
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(e) 20,000 shares of Common Stock:
(i) Exercisable on or after January 10, 2000 (subject to
satisfaction of the conditions set forth in Section 7
of the Employee Stock Option Agreement).
(ii) Latest Expiration Date: September 30, 2000
(iii) Purchase price per share: $4.50
Other Options :
(a) 80,000 shares of Common Stock:
(i) Exercisable immediately (subject to satisfaction of
the conditions set forth in Section 7 of the Employee
Stock Option Agreement)
(ii) Expiration date: December 31, 1997
(iii) Purchase price: $4.50
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