STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT (the "AGREEMENT") is made and entered into
as of the "Date of Grant" specified below by and between BANK PLUS CORPORATION,
a Delaware corporation (the "COMPANY"), and person specified below as the
"Optionee," an employee of the Company or its wholly-owned subsidiary, Fidelity
Federal Bank, A Federal Savings Bank ("FIDELITY").
WITNESSETH
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WHEREAS, the Company maintains the Bank Plus Corporation Stock Option
and Equity Incentive Plan, as amended (the "PLAN"), a copy of which is attached
hereto as Exhibit A and the terms of which are incorporated herein by reference;
and
WHEREAS, the Plan is administered by a committee (the "COMMITTEE")
appointed by the Board of Directors of the Company as provided in Section 3 of
the Plan; and
WHEREAS, the Committee has determined that the Optionee shall be
granted the option hereinafter set forth upon the terms and conditions
hereinafter contained.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants hereinafter set forth and other good and valuable consideration, the
Company and the Optionee agree as follows:
AGREEMENT
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1. Subject to the terms and conditions of this Agreement and the Plan,
and subject to the surrender and cancellation of all stock options previously
granted to the Optionee under the Plan, the Company hereby grants to the
Optionee the option (the "OPTION") to purchase, from time to time, all or a
portion of the number of shares specified below (the "OPTION SHARES") of the
Company's common stock, par value $0.01 per share (the "COMMON STOCK"), at the
purchase price per Option Share specified below (the "EXERCISE PRICE"). The
Option shall expire at the time and on the expiration date specified below
("EXPIRATION DATE"), unless sooner terminated pursuant to Sections 3 or 4 of
this Agreement.
OPTIONEE: XXXXX X. XXXXX
DATE OF GRANT: JULY 28, 1999
OPTION SHARES: 250,000
EXERCISE PRICE: $6.00
EXPIRATION DATE: 5:00 P.M. (LOS ANGELES TIME)
ON JULY 27, 2009
The Option shall be exercisable for Option Shares only on the terms specified
below:
(a) The Option shall vest and become exercisable for a
cumulative percentage (the "VESTED PERCENTAGE") of the original number of Option
Shares when the Average Share Price (as defined below) reaches specified prices.
As used herein, the "AVERAGE SHARE PRICE" shall mean the average of the closing
prices per share of Common Stock on the Nasdaq Stock Market ("NASDAQ") (or other
stock exchange on which the Common Stock then trades) for any twenty (20)
consecutive trading days on such market or exchange. The following table sets
forth the Vested Percentage attributable each of certain specified Average Share
Prices:
AVERAGE SHARE PRICE VESTED PERCENTAGE
$ 4.00 10%
5.00 25%
6.00 40%
7.00 55%
8.00 70%
9.00 85%
10.00 100%
(b) Notwithstanding Section 1(a), the Option shall become
immediately exercisable in its entirety for all Option Shares upon the earlier
of (i) the date a "CHANGE IN CONTROL" (as defined in the Plan) occurs and (ii)
July 28, 2006.
2. The Option is intended to qualify as an incentive stock option under
Section 422 of the Internal Revenue Code of 1986 (the "CODE"); PROVIDED,
HOWEVER, that if, in any calendar year, vesting were to occur under the terms of
Section 1 hereof with respect to a number of Option Shares exceeding the maximum
limit imposed by the Code for annual vesting of incentive stock options, then
this Option shall only be deemed an incentive stock option with respect to the
earliest Option Shares to vest in such year in the amount of such maximum limit,
and this Option shall be deemed to be a be non-qualified stock option with
respect to the remaining shares that vest in such year. In such event, upon each
subsequent exercise of this Option, the Optionee shall designate in writing to
the Company which, if any, of the Option Shares being acquired were subject to
an incentive stock option and which were subject to a non-qualified stock
option.
3. If Nasdaq threatens any sanctions against the Company attributable
to this Agreement or the number of Option Shares hereunder, the Company and the
Optionee agree to restructure the Optionee's compensation package to eliminate
Nasdaq's objection and yet retain the equivalent economic benefit to the
Optionee.
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4. The Option is not transferable by the Optionee otherwise than by
will or the laws of descent and distribution, and is exercisable, during the
Optionee's lifetime, only by the Optionee.
5. In the event of the termination of the employment of the Optionee
with the Company or Fidelity for any reason other than Cause (as defined below),
the Optionee may exercise the Option, to the extent that the Optionee was
entitled to do so on the date of termination, at any time until the earlier of
(i) the close of business on the 90th day following the effective date of such
termination or (ii) the date of expiration of the Option. In the event of the
termination of employment of the Optionee for Cause, the Option shall be
canceled as of the effective date of such termination. For purposes of this
Section, "CAUSE" shall mean the continued failure, either willful or due to
gross negligence, of the Optionee to substantially perform his/her duties as an
employee of the Company or its subsidiaries in a faithful and competent manner;
dishonesty; incompetence; willful misconduct; breach of fiduciary duty involving
personal profit; willful violation of any law, rule or regulation (other than
traffic violations or similar violations) or final cease-and-desist order,
PROVIDED, HOWEVER, that if the Optionee is subject to an employment agreement
with the Company or Fidelity, "Cause" shall have the meaning set forth in such
employment agreement.
6. In the event the Optionee dies while employed by the Company or
Fidelity, the person or persons to whom the Option is transferred by will or the
laws of descent and distribution may exercise the Option, to the extent that the
Optionee was entitled to do so on the date of the Optionee's death, at any time
until the earlier of (i) the first anniversary of the date of death or (ii) the
date of expiration of the Option.
7. The Option may be exercised only by written notice to the Secretary
of the Company at its office at 0000 Xxxxxxxx Xxxxxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx
00000. Such notice shall state the election to exercise the Option and the
number of Option Shares in respect of which it is being exercised and shall be
signed by the Optionee. In no event may the Option be exercised for less than
500 Option Shares unless there are fewer than 500 Option Shares remaining for
exercise under the Option. The certificate or certificates of the Option Shares
as to which the Option shall have been exercised will be registered only in the
Optionee's name. In the event the Option becomes exercisable by another person
or persons upon the death of the Optionee, the notice of exercise shall be
accompanied by appropriate proof of the right to exercise the Option.
8. At the time of exercise of the Option and prior to the delivery of
the purchased Option Shares, the Optionee shall pay in cash to the Company the
sum of the aggregate purchase price for all Option Shares purchased pursuant to
such exercise of the Option and any Withholding Liability pursuant to Section 11
hereof. All payments shall be made by check payable to the order of the Company.
In lieu of making payment in cash for the aggregate purchase price for all
Option Shares purchased pursuant to the exercise of the Option or any
Withholding Liability, the Optionee may, if the Common Stock is actively traded
on an established market, make such payment (i) by delivery to the Company of
shares of Common Stock owned by the Optionee having a fair market value of at
least equal to the aggregate purchase price for the Option Shares, (ii) partly
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in cash and partly by delivery of shares of Common Stock or (iii) such other
method permitted by the Committee so long as such method complies with the
applicable provisions of the Code for incentive stock options. The fair market
value shall be established in accordance with any reasonable valuation methods
determined by the Committee. If the fair market value of the shares of Common
Stock so delivered exceeds the aggregate purchase price for the Option Shares
(or part thereof) and such Withholding Liability, the Company will pay to the
Optionee in cash an amount equal to the fair market value of the fractional
portion of any share of Common Stock so delivered and not applied by the Company
in payment of the purchase price and such Withholding Liability and a
certificate for any whole shares of Common Stock not required to be applied by
the Company in payment of the purchase price and such Withholding Liability. The
Optionee shall not have any of the rights and privileges of a stockholder of the
Company with respect to the Option Shares deliverable upon any exercise of the
Option unless and until certificates representing such shares shall have been
delivered to the Optionee.
9. The Optionee agrees that any resale of the shares received upon any
exercise of the Option shall be made in compliance with the registration
requirements of the Securities Act of 1933 or an applicable exemption therefrom,
including without limitation the exemption provided by Rule 144 promulgated
thereunder (or any successor rule). The Optionee agrees that the Optionee will
give notice to the Company of any "disposition" (within the meaning of Section
424(c) of the Code) of the shares received upon exercise of the Option which is
made within the two-year period beginning on the Date of Grant or within the
one-year period beginning on the date of the issuance of such shares to the
Optionee. Such notice shall be given in writing within ten days after such
disposition and shall contain a representation by the Optionee of the net amount
realized by the Optionee from the disposition, or, if no amount is realized, a
representation as to the nature of the disposition.
10. In the event that, prior to the exercise of the Option with respect
to all of the Option Shares, the number of outstanding shares of Common Stock
shall be increased or decreased or changed into or exchanged for a different
number or kind of shares of stock or other securities through a merger,
consolidation, stock dividend, stock split, reverse stock split,
recapitalization or other capital restructuring affecting the outstanding Common
Stock, the number and nature of unpurchased Option Shares hereunder, the
Exercise Price, and the Average Share Price for each Vested Percentage shall be
appropriately adjusted by the Committee.
11. If the Company or any affiliate of the Company becomes obligated to
withhold an amount on account of any tax imposed as a result of the exercise of
this Option, including, without limitation, any federal, state, local or other
income tax, or any F.I.C.A., state disability insurance tax or other employment
tax (the "WITHHOLDING LIABILITY"), then the Optionee shall, on the date of
exercise and as a condition to the issuance of the Option Shares, pay the
Withholding Liability to the Company in cash or by check payable to the Company.
The Optionee hereby consents to the Company withholding the full amount of the
Withholding Liability from any compensation or other amounts otherwise payable
to the Optionee if the Optionee does not pay the Withholding Liability to the
Company on the date of exercise of the Option, and the Optionee agrees that the
withholding and payment of any such amount by the Company to the relevant taxing
authority shall constitute full satisfaction of the Company's obligation to pay
such compensation or other amounts to the Optionee.
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12. If any of the terms of this Agreement are inconsistent with the
terms of the Plan, the terms of the Plan shall be controlling. The Committee
shall have authority to interpret the Plan and this Agreement and to make any
and all determinations under them, and its decisions shall be binding and
conclusive upon the Optionee and the Optionee's legal representative in respect
of any questions arising under the Plan or this Agreement.
13. Any notice to be given to the Company shall be addressed to the
Secretary of the Company at 0000 Xxxxxxxx Xxxxxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx
00000 and any notice to be given to the Optionee shall be addressed to the
Optionee at the Optionee's residence as it may appear on the records of the
Company or at such other address as either party may hereafter designate in
writing to the other.
14. The Agreement shall be binding upon and inure to the benefit of the
parties hereto and any successors to the business of the Company and any
successors to the Optionee by will or the laws of descent and distribution, but
this Agreement shall not otherwise be assignable by the Optionee.
15. This Agreement shall be governed by, and construed in accordance
with, the internal laws, and not the laws of conflicts or choice of law, of the
State of California and applicable Federal law.
16. The Optionee hereby agrees and consents to the surrender and
cancellation of all stock options previously granted to him under the Plan.
IN WITNESS WHEREOF, this Agreement has been executed by the parties
hereto as of the date and year first above written.
BANK PLUS CORPORATION
By /S/ XXXX XXXXX
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XXXX XXXXX
Chief Executive Officer
/S/ Xxxxx X. Xxxxx
-------------------------------------
Xxxxx X. Xxxxx
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