Exhibit 4.5
GRANT OF NON-QUALIFIED STOCK OPTION
PURSUANT TO THE BANCORP BANK
2003 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 BANK
(together with its successors and assigns, the "COMPANY").
WHEREAS, the Company's 2003 Stock Option Plan (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
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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 (the "OPTION PRICE"). 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" The Option is a nonqualified stock
option and under no circumstances shall the Option be deemed to qualify as an
incentive stock option as defined by the Code.
2. INCORPORATION OF THE PLAN BY REFERENCE
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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. Capitalized terms not
otherwise defined herein shall have the meanings set forth in the Plan. In the
event of a conflict between the terms of the Plan and this Agreement, the terms
of the Plan shall supersede the terms of this Agreement. 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.
3. VESTING
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Subject to such further limitations as are provided herein,
the Option shall vest and become exercisable in full on and after
________________.
4. TERMINATION OF OPTION
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(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 one year period following the date of such termination; or (B) the one year
period following the date of death or Disability, in the case of Grantee's death
or Disability during Xxxxxxx's employment by the Company or during the one year
period in clause (A) of this sentence. 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.
5. EXERCISE OF OPTION; DISPOSITION OF SHARES
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(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, by check, 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.
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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 within 15 days of such sale or disposition if
it 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. Such notice shall state the number of
Shares sold or otherwise disposed, the date or dates of such sale or
disposition, the selling price for each Share sold or disposed, and the Option
Price applicable to each Share sold or disposed.
(e) The Company shall deduct from each distribution of Option
Shares received by Grantee on the exercise of the Option, the amount of
withholding or other taxes required to be withheld by any governmental
authority. Such withholding shall be accomplished by the Grantee's depositing of
cash with the Company in an amount equal to the required withholding amount.
6. RESTRICTIONS ON EXERCISE
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(a) Grantee may not exercise the Option to the extent that the
issuance of Option Shares upon such exercise would constitute a violation of any
applicable federal or state laws or regulations pertaining to securities, bank
holding companies, banks or otherwise.
(b) 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.
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7. ADJUSTMENTS
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The Committee may make or provide for such adjustments in the
number of Option Shares covered by this Option, in the Option Price, and in the
kind of shares covered thereby, as the Committee, in its sole discretion,
exercised in good faith, may determine is equitably required to prevent dilution
or enlargement of the Grantee's rights that otherwise would result from (a) any
stock dividend, stock split, recapitalization, combination of shares, or other
change in the capital structure of the Company, (b) any merger, consolidation,
spin-off, split-off, spin-out, split-up, reorganization, partial or complete
liquidation, or other distribution of assets or issuance of rights or warrants
to purchase securities, or (c) any other corporate transaction or event having
an effect similar to any of the foregoing. In the event of any such transaction
or event, the Committee, in its discretion, may provide in substitution for this
Option such alternative consideration as it may determine to be equitable in the
circumstances and may require in connection therewith the surrender of this
Option.
8. NO RIGHTS AS STOCKHOLDER
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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.
9. NON-TRANSFERABILITY OF OPTION
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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.
10. EMPLOYMENT NOT AFFECTED
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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.
11. AMENDMENT OF OPTION
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The Option may be amended by the Board of Directors or the
Committee at any time 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.
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12. NOTICE
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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.
13. GOVERNING LAW
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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 BANK
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 Option granted on ______________ by The Bancorp Bank
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: _______________________________________________________
