Exhibit 10.2
Execution Copy
Supplemental Stock Option Agreement
Pursuant to the Nexity Financial Corporation Incentive Stock Compensation Plan
This SUPPLEMENTAL STOCK OPTION AGREEMENT (this "Agreement") is made as of
the ______ day of ________________, 1999, by Nexity Financial Corporation, a
Delaware corporation, and ____________________ ("Holder").
WITNESSETH:
The Company has determined that it is in the best interests of the Company
and its shareholders to encourage ownership in the Company by qualified
employees, officers, and members of the Board of Directors of the Company or
other individuals as may be determined, thereby providing additional incentive
for them to continue in the employ of or to provide services to the Company or
its affiliates. To that end, a Supplemental Stock Option is granted by the Board
of Directors to Holder pursuant, and subject to, the Company's Incentive Stock
Compensation Plan (the "Plan") on the following terms and conditions:
SECTION I
DEFINED TERMS
Unless otherwise defined herein or, unless the context requires a
different definition, capitalized terms used herein shall have the meanings
assigned to them in the Plan.
SECTION II
OPTIONS, OPTION PRICE AND TIME OF EXERCISE
Effective as of the date hereof, the Company grants to Holder, subject to
the terms and provisions set forth hereinafter and in the Plan, the right and
option to purchase all or any part of the number of shares set forth in Exhibit
A of the presently authorized but unissued common stock ("Common Stock"), of the
Company at the purchase price per share set forth as the option price in Exhibit
A.
The Option shall not be considered granted (as of the effective date
described above) or become exercisable unless and until Holder delivers to the
Company a fully executed counterpart hereof. Thereafter, the Option shall be
granted as of such effective date and the Option shall be exercisable in
accordance with the exercise schedule set forth on Exhibit A, subject to any
termination, acceleration or change in such exercise schedule set forth in this
Agreement apart from Exhibit A.
Neither the Option nor any other rights granted under this Agreement may
be exercised after the Expiration Date set forth on Exhibit A and, before that
time, the Option may be terminated as hereinafter provided. If Holder does not
purchase the full number of shares to which he is entitled in any one year, he
may purchase such shares in the next year specified in the exercise schedule
hereto, in addition to the shares which he is otherwise entitled to purchase in
the next year.
SECTION III
EXERCISE PROCEDURE; WITHHOLDING
Holder shall exercise the Option by notifying the Company of the number of
shares that he desires to purchase and by delivering with such notice the full
payment for the purchase price of the shares being purchased.
Such purchase price shall be payable in cash, in Common Stock or in a
combination of cash and Common Stock. For purposes of determining the amount, if
any, of the purchase price satisfied by payment in Common Stock, such Common
Stock shall be valued at its Fair Market Value on the date of exercise, as
determined by the Board of Directors at the time of exercise. Any Common Stock
delivered in satisfaction of all or a portion of the purchase price shall be
appropriately endorsed for transfer and assignment to the Company.
The Company will, as soon as is reasonably possible, notify the Holder of
the amount of withholding tax, if any, that must be paid under federal, state
and local law due to exercise of the Option. The Company shall have no
obligation to deliver certificates for the shares purchased until Holder pays to
the Company the amount of withholding specified in the Company's notice in cash
or in Common Stock. Alternatively, Holder may direct the Company to withhold
that number of shares of Common Stock (valued according to the procedures set
forth in this section on the date of withholding) sufficient to satisfy such
obligation subject to the minimum statutory rate.
SECTION IV
TERMINATION OF EMPLOYMENT/SERVICE
If Holder's employment (or other service not including service as a member
of the Company's Board of Directors) with the Company terminates for Cause, the
Option, to the extent not previously exercised, will terminate on the date of
such termination of employment (or service). If Holder's employment (or other
service including service as a member of the Company's Board of Directors) with
the Company terminates for reasons other than (a) termination that is for Cause,
(b) termination by reason of Total and Permanent Disability or (c) death, this
Option under the Plan may be exercised not later than 90 days after such
termination, but may be exercised only to the extent the Option was exercisable
on the date of termination, and in no event after ten (10) years from the date
of granting thereof. Except as may be otherwise provided in this Agreement, the
Option granted hereunder shall not be affected by any change of employment or
service (including service on the Board of Directors) so long as the Holder
continues to be employed by or provide services to the Company.
"Cause" shall mean, as determined only by the Board of Directors, in its
sole discretion exercised in a nondiscriminatory manner, (i) the continued
failure of the Holder to substantially perform his duties to the Company (other
than any such failure resulting from Total and Permanent Disability), (ii) the
engaging by the Holder in willful, reckless or grossly negligent misconduct
which is determined by the Board of Directors to be materially injurious to the
Company or any of its affiliates, monetarily or otherwise, or (iii) the Holder's
pleading guilty to or conviction of a felony.
SECTION V
ACCELERATION OF EXERCISE
(a) Retirement And Total And Permanent Disability. If Holder should
incur a Total and Permanent Disability while holding this Option,
this Option shall become fully exercisable as to all shares subject
to it and may be exercised at any time within 365 days following the
date of such disability. If Holder should retire with the written
consent of the Company, this Option shall become fully exercisable
as to all shares and shall expire on the 90th day after such
retirement, but in no event after the Expiration Date set forth on
Exhibit A.
(b) Death. If Holder should die while holding this Option, this Option
may be exercised at any time within 365 days following the date of
death. Such Option may be exercised by the beneficiary designated by
the Holder on Exhibit B hereto, in accordance with Section X hereto,
or, if no beneficiary is designated on Exhibit B, by the executor or
administrator of the Holder's estate, but in no event after the
earlier of (i) the date 365 days following the Holder's date of
death, or (ii) the Expiration Date set forth on Exhibit A hereto.
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(c) Change of Control. This Option shall become fully exercisable upon
the circumstances stated in Section 2.4 of the Plan.
SECTION VI
NON-ASSIGNABILITY AND TERM OF OPTION
The Option shall not be transferrable or assignable by the Holder,
otherwise than by will or the laws of descent and distribution and the Option
shall be exercisable, during the Holder's lifetime, only by him or, during
periods of legal disability, by his legal representative. No Option shall be
subject to execution, attachment, or similar process.
In no event may the Option be exercisable to any extent by anyone after
the Expiration Date specified in Exhibit A. It is expressly agreed that,
anything contained herein to the contrary notwithstanding, this Agreement shall
not constitute, or be evidence of, any agreement or understanding, express or
implied, that the Company will employ Holder for any period of time or in any
position or for any particular compensation.
SECTION VII
RIGHTS OF HOLDER IN STOCK
Neither Holder, nor his successor in interest, shall have any of the
rights of a shareholder of the Company with respect to shares subject to the
Option until such shares are issued by the Company following the exercise of the
Option.
SECTION VIII
NOTICES
Any notice to be given hereunder shall be in writing and shall be
addressed to the Company, at 0000 Xxxxx Xxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx,
Xxxxxxx 00000, attention Xxxxx X. Xxxx, and any notice to be given to the Holder
shall be addressed to the address designated below the signature appearing
hereinafter, or at such other address as either party may hereafter designate in
writing to the other. Any such notice shall have been deemed duly given upon
three (3) days of sending such notice enclosed in a properly sealed envelope,
addressed as aforesaid, registered or certified and deposited (with the proper
postage and registration or certificate fee prepaid) in the United States mail.
SECTION IX
SUCCESSORS OR ASSIGNS OF THE COMPANY
The Option shall be binding upon and shall inure to the benefit of any
successor of the Company.
SECTION X
MISCELLANEOUS
(a) Designation of Beneficiary. The Holder shall have the right to
appoint any individual or legal entity in writing, on Exhibit B
hereto, as his beneficiary to receive any Option (to the extent not
previously terminated or forfeited) under this Agreement upon the
Holder's death. Such designation under this Agreement may be revoked
by the Holder at any time and a new beneficiary may be designated by
the Holder by execution and submission to the Board of Directors of
a revised Exhibit B to this Agreement. In order to be effective, a
designation of
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beneficiary must be completed by the Holder on Exhibit B and
received by the Board of Directors, or its designee, prior to the
date of the Holder's death. In the absence of such designation, the
Holder's beneficiary shall be the legal representative of the
Holder's estate.
(b) Incapacity of Holder or Beneficiary. If any person entitled to a
distribution under this Agreement is deemed by the Board of
Directors to be incapable of making an election hereunder or of
personally receiving and giving a valid receipt for such
distribution hereunder, then, unless and until an election or claim
therefor shall have been made by a duly appointed guardian or other
legal representative of such person, the Board of Directors may
provide for such election or distribution or any part thereof to be
made to any other person or institution then contributing toward or
providing for the care and maintenance of such person. Any such
distribution shall be a distribution for the account of such person
and a complete discharge of any liability of the Board of Directors,
the Company and the Plan therefor.
(c) Incorporation of the Plan. The terms and provisions of the Plan are
hereby incorporated in this Agreement. Unless otherwise specifically
stated herein, such terms and provisions shall control in the event
of any inconsistency between the Plan and this Agreement.
(d) Gender. Reference to the masculine herein shall be deemed to include
the feminine, wherever appropriate.
(e) Counterparts. This Agreement may be executed in one or more
counterparts, which shall together constitute a valid and binding
agreement.
(f) Restrictions on Transfer. Neither this Option nor the securities to
be issued pursuant hereto have been registered for sale under the
Securities Act of 1933 or any state law. The shares of common stock
to be issued pursuant to this Option will be issued pursuant to
exemptions from registration under such laws and may not be sold or
otherwise transferred by the Holder absent such registration or an
appropriate exemption from registration.
(g) Regulatory Capital Requirements. The Employee hereby agrees that all
Options subject to this Agreement, to the extent not exercised, may
be canceled at any time by the Company, or the Employee may be
required to exercise such Options, to the extent they may be
exercised, in accordance with Section 4.9 of the Plan.
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IN WITNESS WHEREOF, this Agreement has been executed by the Company and
the Holder as of the date and year first written above.
Holder: _________________________ NEXITY FINANCIAL CORPORATION
a Delaware corporation
Address: ________________________ By: _____________________________
Xxxxx X. Xxxx
Its: President
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EXHIBIT A
SUPPLEMENTAL STOCK OPTION AGREEMENT
PURSUANT TO THE NEXITY FINANCIAL CORPORATION
INCENTIVE STOCK COMPENSATION PLAN
1. Date of Grant: ___________________________________________
2. Holder: ___________________________________________
3. Number of Shares: ______________ shares of Common Stock
4. Option Price Per Share: One Dollar ($1.00)
5. Exercise Schedule: Twenty-five percent (25%) of the Options subject
to this Agreement shall first be exercisable on the Date of Grant stated above
and twenty-five percent (25%) of the Options subject to this Agreement shall
thereafter be exercisable on each anniversary date of the Date of Grant
specified above until the Options are fully exercisable.
6. Expiration Date: Ten years from the Date of Grant stated above.
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EXHIBIT B
DESIGNATION OF BENEFICIARY FOR THE
SUPPLEMENTAL STOCK OPTION AGREEMENT
PURSUANT TO THE NEXITY FINANCIAL CORPORATION
INCENTIVE STOCK COMPENSATION PLAN
Name of Holder: ___________________________________________________
Original Date of Agreement: _______________________________________
If I shall cease to be employed or engaged as a director by the Company by
reason of my death, or if I shall die after I have terminated my employment or
engagement with the Company but, prior to the expiration of the Option (as
provided in the Agreement), then all rights to the Option granted under this
Agreement that I hereby hold upon my death, to the extent not previously
terminated or forfeited, shall be transferred to ___________________ as my
primary beneficiary, or to ____________________________, as may secondary
beneficiary if my primary beneficiary is unable to accept transfer, in the
manner provided for in the Plan and the Agreement.
______________________________________
______________________________________
Date
Receipt acknowledged by:
______________________________________
______________________________________
Date
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