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Boc Financial Corp. 1999 Nonstatutory Stock Option Plan

This is an actual contract by Bank of The Carolinas.

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Sectors: Banking
Governing Law: North Carolina, View North Carolina State Laws
Effective Date: January 01, 1999
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EXHIBIT 10.09



BOC FINANCIAL CORP

1999 NONSTATUTORY STOCK OPTION PLAN



BOC Financial Corp., a North Carolina corporation (hereinafter referred to as the " Corporation" ), does herein set forth the terms of the BOC Financial Corp. 1999 Nonstatutory Stock Option Plan (hereinafter referred to as this " Plan" ), which was adopted by the Board of Directors (hereinafter referred to as the " Board" ) of the Corporation subject to approval by the Corporation' s shareholders as provided in paragraph 20 hereof.

1. Purpose of this Plan. The purpose of this Plan is to provide for the grant of Nonstatutory Stock Options (hereinafter referred to as " Options" or singularly, " Option" ) to Eligible Directors (as hereinafter defined) of the Corporation who wish to invest in the Corporation' s common stock (hereinafter referred to as " Common Stock" ). The Board believes that participation in the ownership of the Corporation by the Eligible Directors will be to the mutual benefit of the Corporation and the Eligible Directors. In addition, the existence of this Plan will make it possible for the Corporation to attract capable individuals to serve on the Board. As used herein, the term " Eligible Directors" or singularly, " Eligible Director," shall mean those members of the Board who are not employed by the Corporation and are ineligible to participate in the BOC Financial Corp. 1999 Incentive Stock Option Plan.



2. Administration of this Plan



(a) This Plan shall be administered by the Board. The Board shall have full power and authority to construe, interpret and administer this Plan. All actions, decisions, determinations, or interpretations of the Board shall be final, conclusive, and binding upon all parties.



(b) The Board may designate any officers or employees of the Corporation or of any of its subsidiaries to assist in the administration of this Plan. The Board may authorize such individuals to execute documents on its behalf and may delegate to them such other ministerial and limited discretionary duties as the Board may see fit.



3. Shares of Common Stock Subject to this Plan. The maximum number of shares of Common Stock that shall be offered under this Plan is none ( none ) shares, subject to adjustment as provided in paragraph 14. Shares subject to Options which expire or terminate prior to the issuance of the shares of Common Stock shall lapse and the shares of Common Stock originally subject to such Options shall again be available for future grants of Options under this Plan.

4. Eligibility; Grant of Options. Each Eligible Director serving on the Board shall receive an Option to purchase shares of Common Stock as determined by a majority vote of the Board at one or more meetings called for such purpose.

5. Vesting of Options. Options granted under this Plan shall immediately vest upon grant.

6. Option Price



(a) The price per share of each Option granted under this Plan (hereinafter called the " Option Price" ) shall be determined by the Board as of the effective date of grant of such Option, but in no event shall such Option Price be less than 100% of the fair market value of Common Stock on the date




of grant. An Option shall be considered as granted on the later of (i) the date that the Board acts to grant such Option, or (ii) such later date as the Board shall specify in an Option Agreement (as hereinafter defined).



(b) The fair market value of a share of Common Stock shall be determined as follows: (i) if on the date as of which such determination is being made, Common Stock being valued is admitted to trading on a securities exchange or exchanges for which actual sale prices are regularly reported, or actual sale prices are otherwise regularly published, the fair market value of a share of Common Stock shall be deemed to be equal to the mean of the closing sale price as reported for each of the five (5) trading days immediately preceding the date as of which such determination is made; provided, however, that, if a closing sale price is not reported for each of the five (5) trading days immediately preceding the date as of which such determination is made, then the fair market value shall be equal to the mean of the closing sale prices on those trading days for which such price is available, or (ii) if on the date as of which such determination is made, no such closing sale prices are reported, but quotations for Common Stock being valued are regularly listed on the National Association of Securities Dealers Automated Quotation System or another comparable system, the fair market value of a share of Common Stock shall be deemed to be equal to the mean of the average of the closing bid and asked prices for such Common Stock quoted on such system on each of the five (5) trading days preceding the date as of which such determination is made, but if a closing bid and asked price is not available for each of the five (5) trading days, then the fair market value shall be equal to the mean of the average of the closing bid and asked prices on those trading days during the five-day period for which such prices are available, or (iii) if no such quotations are available, the fair market value of a share of Common Stock shall be deemed to be the average of the closing bid and asked prices furnished by a professional securities dealer making a market in such shares, as selected by the Board, for the trading date first preceding the date as of which such determination is made. If the Board determines that the price as determined above does not represent the fair market value of a share of Common Stock, the Board may then consider such other factors as it deems appropriate and then fix the fair market value for the purposes of this Plan.



7. Payment of Option Price. Payment for shares subject to an Option may be made either in cash, or with the approval of the Board, in other stock of the Corporation owned by an Eligible Director or such other person as may be entitled to exercise such Option. Any shares of the Corporation' s stock that are delivered in payment of the aggregate Option Price shall be valued at their fair market value, as determined by the Board, on the date of the exercise of such Option.

8. Terms and Conditions of Grant of Options. Each Option granted pursuant to this Plan shall be evidenced by a written Nonstatutory Stock Option Agreement (hereinafter referred to as " Option Agreement" ) with each Eligible Director (hereinafter referred to as " Optionee" ) to whom an Option is granted; such agreement shall be substantially in the form attached hereto as " Exhibit A," unless the Board shall adopt a different form and, in each case, may contain such other, different, or additional terms and conditions as the Board may determine.

9. Option Period. Each Option Agreement shall set forth a period during which such Option may be exercised (hereinafter referred to as the " Option Period" ); provided, however, that the Option Period shall not exceed ten (10) years after the date of grant of such Option as specified in an Option Agreement.

10. Change in Control. For purposes of this Plan, the phrase " change in control" refers to (i) the acquisition by any person, group of persons or entity of the beneficial ownership or power to vote more than twenty-five (25%) percent of the Corporation' s outstanding stock, (ii) during any period of two (2) consecutive years, a change in the majority of the Board unless the election of each new Director was approved by at least two-thirds of the Directors then still in office who were Directors at the beginning of such two (2 ) year period, or (iii) a reorganization, merger, or consolidation of the Corporation with one or more other corporations in which the Corporation is not the surviving corporation, or the transfer of all or substantially all of the assets or shares of the Corporation to another person or entity.







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11. Limitation on Grant of Stock Options. If this Plan is implemented within one year following consummation of the Conversion (as defined in paragraph 5(d) of this Plan), no Eligible Director shall receive Options covering more than five percent (5%) of the Shares reserved for issuance under this Plan and any other Option Plan implemented within one year following consummation of the Conversion, and the Eligible Directors as a whole shall not receive Options covering more than thirty percent (30%) of the shares available under such Plans.



12. Exercise of Options. An Option shall be exercised by written notice to the Board signed by an Optionee or by such other person as may be entitled to exercise such Option. In the case of the exercise of an Option, the aggregate Option Price for the shares being purchased may be paid either in cash or, with the approval of the Board, in shares of the Corporation' s stock (valued as determined by the Board as of the date of exercise) or any combination thereof and the notice of exercise shall specify how payment will be made. The written notice shall state the number of shares with respect to which an Option is being exercised and shall either be accompanied by the payment of the aggregate Option Price for such shares or shall fix a date (not more than ten (10) business days after the date of such notice) by which the payment of the aggregate Option Price will be made. An Optionee shall not exercise an Option to purchase less than 100 shares, unless the Board otherwise approves or unless the partial exercise is for the remaining shares available under such Option. A certificate or certificates for the shares of Common Stock purchased by the exercise of an Option shall be issued in the regular course of business subsequent to the exercise of such Option and the payment therefor. During the Option Period, no person entitled to exercise any Option granted under this Plan shall have any of the rights or privileges of a shareholder with respect to any shares of Common Stock issuable upon exercise of such Option, until certifica tes representing such shares shall have been issued and delivered and the individual' s name entered as a shareholder of record on the books of the Corporation for such shares.



13. Effect of Leaving the Board or Death



(a) In the event that an Optionee leaves the Board for any reason other than retirement, disability, death, or following a " change in control" of the Corporation (as defined in paragraph 5(d)) any Option granted to the Optionee under this Plan, to the extent not previously exercised by the Optionee or expired, shall immediately terminate.



(b) In the event that an Optionee should leave the Board as a result of such Optionee' s retirement, such Optionee shall have the right to exercise an Option granted under this Plan, to the extent that it has not previously been exercised by the Optionee or expired, for such period of time as may be determined by the Board and specified in an Option Agreement, but in no event may any Option be exercised later than the end of the Option Period provided in the Option Agreement in accordance with paragraph 8 hereof. For purposes of this Plan, the term " retirement" shall mean termination of an Eligible Director' s membership on the Board (i) at any time after attaining age 65 with the approval of the Board; or (ii) at the election of the Eligible Director, at any time after not less than five (5) years service as a member of the Board, such service shall be computed cumulatively for purposes of this clause (ii).

(c) In the event that an Optionee should leave the Board by reason of such Optionee' s disability, such Optionee shall have the right to exercise an Option granted under this Plan, to the extent that it has not previously been exercised or expired, for such period of time as may be determined by the Board and specified in an Option Agreement, but in no event may any Option be exercised later than the end of the Option Period provided in the Option Agreement in accordance with paragraph 8 hereof. Notwithstanding any other provision contained herein, or in any Option Agreement, upon leaving by reason of disability, any Option then held by an Optionee shall be exercisable immediately in full. For purposes of this Plan, the term " disability" shall be defined as may be determined by the Board, from time to time, or as determined at any time with respect to any individual Optionee.







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(d) In the event that an Optionee should die while serving on the Board or after leaving by reason of disability or retirement or following a change in control of the Corporation during the Option Period provided in an Option Agreement in accordance with paragraph 8 hereof, an Option granted under this Plan, to the extent that it has not previously been exercised or expired, shall vest and shall be exercisable, in accordance with its terms, by the personal representative of such Optionee, the executor or administrator of such Optionee' s estate, or by any person or persons who acquired such Option by bequest or inheritance from such Optionee, notwithstanding any limitations placed on the exercise of such Option by this Plan or an Option Agreement, at any time within twelve (12) months after the date of death of such Optionee, but in no event may an Option be exercised later than the end of the Option Period provided in an Option Agreement in accordance with paragraph 8 hereof. Any references herein to an Optionee shall be deemed to include any person entitled to exercise an Option after the death of such Optionee under the terms of this Plan.



(e) In the event an Optionee shall leave the Board as a result of a " change in control" of the Corporation, such Optionee shall have the right to exercise the Option granted under this Plan, to the extent that
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