EXHIBIT 99
1996 EMPLOYEE STOCK PURCHASE PLAN
PROGRESS FINANCIAL CORPORATION
1996 EMPLOYEE STOCK PURCHASE PLAN
ARTICLE I - ESTABLISHMENT OF PLAN
Progress Financial Corporation ("Company") hereby establishes this 1996
Employee Stock Purchase Plan (the "Plan") on the terms and conditions
hereinafter set forth. The Company intends that this Plan shall qualify as an
"employee stock purchase plan" under Section 423 of the Internal Revenue Code of
1986 (the "Code") (including any future amendments or replacements of such
section), and the Plan shall be so construed. Any term not expressly defined in
the Plan but defined for purposes of Section 423 of the Code shall have the same
definition herein.
ARTICLE II - PURPOSE
The Plan is established to provide eligible employees of the Company and
any current or future parent and/or subsidiary corporation(s) of the Company
(collectively referred to as the "Company") with an opportunity through payroll
deductions to acquire a proprietary interest in the Company by the purchase of
common stock, par value $1.00 per share of the Company ("Common Stock"). For
purposes of this Plan, a parent corporation and a subsidiary corporation shall
be as defined in Sections 424(e) and 424(f) of the Code. Because a participant
in the Plan (a "Participant") may withdraw the Participant's accumulated payroll
deductions and terminate participation in the Plan at any time during an
Offering Period as defined below, the Participant is, in effect, given an option
which may or may not be exercised during any Offering Period.
ARTICLE III - SHARES SUBJECT TO THE PLAN
The number of shares which may be issued under this Plan shall be 100,000
(the "Shares"); and such Shares may be authorized but unissued shares of Common
Stock or shares of Common Stock reacquired by the Company from stockholders of
the Company in public or private transactions. In the event that any option
granted under the Plan (an "Option") for any reason expires or is terminated,
the Shares allocable to the unexercised portion of such Option may again be the
subject of an Option.
ARTICLE IV - ADMINISTRATION
The Plan shall be administered by a duly appointed committee of the Board
of directors of the Company having such powers as shall be specified by the
Board ("Committee"). All questions of interpretation of the Plan or of any
Options shall be determined by the Committee and shall be final and binding upon
all persons having an interest in the Plan and/or any Option, unless otherwise
determined by the Board. Subject to the provisions of the Plan, the Committee
shall determine all of the relevant terms and conditions of Options granted
pursuant to the Plan; provided, however, that all Participants granted Options
pursuant to the Plan shall have the same rights and privileges within the
meaning of Section 423(b)(5) of the Code. No member of the Board of Directors
or the Committee shall be liable for any action or determination made in good
faith with respect to the Plan or any Option granted under it. All expenses
incurred in connection with the administration of the Plan shall be held by the
Company.
ARTICLE V - ELIGIBILITY
Any employee of the Company who is employed by the Company for at least
twenty-five (25) hours per week on a regular basis is eligible to participate in
the Plan, provided that employees who own or hold options to purchase or who, as
a result of participation in this Plan, would own or hold options to purchase
stock of the Company possessing five percent (5%) or more of the total combined
voting power or value of all classes of stock of the Company within the meaning
of Section 423(b)(3) of the Code shall not be eligible to participate in the
Plan.
ARTICLE VI - OFFERING DATES
(a) INDIVIDUAL OFFERING PERIODS. The Committee may establish up to two
Offering Periods during which payroll deductions will be accumulated under the
Plan during any calendar year, provided, however, that there may be only one
Offering Period outstanding at any one time. The Committee shall announce an
Offering Period by taking actions reasonably expected to notify all employees of
the Offering Period. Each Offering Period shall include only regular paydays
falling within it.
(b) GOVERNMENTAL APPROVAL; STOCKHOLDER APPROVAL. Notwithstanding any
other provision to the contrary, any Option granted pursuant to the Plan shall
be subject, in addition to the requirements specified in Article XX, to
(i) obtaining all necessary governmental approvals and/or qualifications of the
sale and/or issuance of the Options and/or Shares, and (ii) in the case of
Options relating to an Offering Period after an amendment to the Plan, obtaining
any necessary approval of the stockholders of the Company required by
Article XIX.
ARTICLE VII - PARTICIPATION IN THE PLAN
(a) INITIAL PARTICIPATION. An eligible employee shall become a
Participant in an Offering Period after satisfying the eligibility requirements
by delivering to the Company's Human Resources Department a subscription
agreement authorizing payroll deductions not less than ten (10) business days
prior to such Offering Period. An eligible employee who does not deliver a
subscription agreement to the Company's Human Resources Department ten (10)
business days prior to an Offering Period after becoming eligible to participate
in the Plan shall not participate in the Plan for that Offering Period or for
any subsequent Offering Period unless such employee subsequently enrolls in the
Plan by filing the subscription agreement with the Company at least ten (10)
business days prior to a subsequent Offering Period.
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(b) CONTINUED PARTICIPATION. A Participant shall automatically
participate in each successive Offering Period until such time as such
Participant withdraws from the Plan pursuant to Article XII. A Participant is
not required to file any additional subscription agreements for subsequent
Offering Periods in order to continue participation in the Plan. A Participant
may not concurrently participate in more than one Offering Period.
ARTICLE VIII - PURCHASE PRICE
(a) PURCHASE PRICE. The purchase price at which Shares shall be sold in
any Offering Period under the Plan shall be set by the Committee; provided,
however, that the purchase price shall not be less than ninety-five percent
(95%) of the lesser of (a) the fair market value of the Shares on the first
business day in the Offering Period, or (b) the fair market value of the Shares
on the last business day of such Offering Period. Unless otherwise provided by
the Committee prior to the commencement of an Offering Period, the purchase
price for the Offering Period shall be ninety-five percent (95%) of the lesser
of (a) the fair market value of the Shares on the first business day in the
Offering Period or (b) the fair market value of the Shares on the last business
day of such Offering Period.
(b) FAIR MARKET VALUE. The fair market value of a Share shall be the
closing sale price on the date in question of a share of Common Stock on the
principal United States securities exchange registered under the Securities
Exchange Act of 1934 on which such stock is listed, or, if such stock is not
listed on any such exchange, the highest closing bid quotation with respect to a
share of such stock on the date in question on the National Association of
Securities Dealers Automated Quotation System or any system then in use, or if
no such quotations are available, the fair market value on the date in question
of a Share shall be as determined by the Committee in good faith.
ARTICLE IX - PAYMENT OF PURCHASE PRICE; PAYROLL DEDUCTIONS
(a) ACCUMULATION OF PAYROLL DEDUCTIONS. The purchase price of the Shares
shall be accumulated by payroll deductions over the Offering Period. Deductions
made from the Participant's pay on each payday during the Offering Period shall
not be less than one percent (1%) nor more than ten percent (10%) of the
Participant's total compensation for that pay period. Total compensation means
total taxable compensation paid to an employee and reflected on such employee's
Internal Revenue Service Form W-2, as prepared by the Company, including salary,
commissions, bonuses, overtime pay, shift differentials, vacation pay and
holiday pay, and shall also include any contributions made by the Company on
behalf of an employee pursuant to a salary deferral agreement pursuant to Code
Section 401 and/or Code Section 125. Payroll deductions shall commence on the
first payday during the Offering Period and shall continue to the end of the
Offering Period unless sooner altered or terminated as provided in the Plan.
(b) CHANGE IN PAYROLL DEDUCTION RATE. A Participant may not decrease or
increase the rate of payroll deductions during an Offering Period. A
Participant may increase or
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decrease the rate of payroll deductions for any subsequent Offering Period by
filing with the Company a new authorization for payroll deductions not less than
ten (10) business days prior to such subsequent Offering Period.
(c) PARTICIPANT ACCOUNTS. Individual accounts shall be maintained for
each Participant in the Plan. All payroll deductions made for a Participant
shall be credited to the Participant's account under the Plan and shall be
deposited with the general funds of the Company. Interest shall be paid on, and
added to, such amounts at the same rate and in the same manner as interest is
paid on a regular passbook savings account with the Company. All payroll
deductions received or held by the Company may be used by the Company for any
corporate purpose.
ARTICLE X - PURCHASE OF SHARES
(a) PURCHASE. On the last business day of an Offering Period, a
Participant shall automatically purchase, subject to the limitations in
Article X(b) and X(c) below, that number of Shares, including fractional
Shares, that can be acquired based on funds credited to the Participant's
account pursuant to Article IX(c) at the purchase price established for the
Offering Period pursuant to Article VIII. No Shares shall be purchased on
behalf of a Participant whose participation in the Plan has terminated prior
to the last day of the Offering Period.
(b) SHARE LIMITATION. The maximum number of Shares which a Participant
may purchase in each Offering Period shall be that number of Shares arrived at
by dividing the total amount of the Participant's expected payroll deductions
during the Offering Period by the purchase price of the shares as shall be set
by the Committee pursuant to Article VIII hereof.
(c) FAIR MARKET VALUE LIMITATION. No Participant shall be granted an
Option which permits his or her rights to purchase shares of Common Stock under
this Plan and any similar plans of the Company to accrue at a rate which exceeds
$25,000 of fair market value of such shares (determined at the time such Option
is granted) for each calendar year in which such Option is outstanding at any
time, as determined in accordance with Section 423(b)(8) of the Code.
(d) RIGHTS AS A STOCKHOLDER AND EMPLOYEE. A Participant shall have no
rights as a stockholder by virtue of the Participant's participation in the Plan
until shares are purchased and recorded to a Participant's account pursuant to
the exercise of the Participant's Option. Unless otherwise determined by the
Committee, no adjustment shall be made for dividends or distributions or other
rights for which the record date is prior to the date such stock is purchased.
Nothing herein shall confer upon a Participant any right to continue in the
employ of the Company or interfere in any way with any right of the Company to
terminate the Participant's employment at any time.
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ARTICLE XI - LEGENDS
Any certificate representing any Shares issued hereunder shall have
endorsed thereon such legends as may be designated by the Company.
ARTICLE XII - WITHDRAWAL
(a) NOTICE OF WITHDRAWAL. A Participant may withdraw from the Plan by
signing and delivering to the Company's Human Resources Department a written
notice of withdrawal on a form provided by the Company for such purpose. Such
withdrawal may be elected at any time prior to the end of an Offering Period.
(b) RETURN OF PAYROLL DEDUCTIONS; SUBSEQUENT PARTICIPANT. Upon withdrawal
from the Plan, the withdrawn Participant's accumulated payroll deductions shall
be returned to the Participant and the Participant's interest in the Plan shall
terminate. In the event a Participant voluntarily elects to withdraw from the
Plan, the Participant may not resume participation in the Plan during the same
Offering Period, but may participate in any succeeding Offering Period under the
Plan by filing a new authorization for payroll deductions in the same manner as
set forth above for initial participation in the Plan.
(c) ISSUANCE OF SHARE CERTIFICATES. A Participant may withdraw any
number of whole Shares held in the Plan at any time by notifying the Company's
Human Resources Department, in writing. The transfer agent will issue the
Participant a certificate for the number of whole Shares requested, and will
retain any whole or fractional Shares in the Participant's account in the Plan
if the Participant continues participation in the Plan. If a Participant makes
a complete withdrawal from the Plan, the transfer agent will issue the
Participant a share certificate for all whole Shares held in a Participant's
account and remit any fractional share interest in cash.
ARTICLE XIII - TERMINATION OF EMPLOYMENT
Termination of a Participant's employment with the Company for any reason,
including retirement or death or the failure of a Participant to remain an
eligible employee, shall terminate the Participant's participation in the Plan
immediately. In such event, the payroll deductions credited to the
Participant's account shall be returned to the Participant or, in the case of
the Participant's death, to the Participant's legal representative, and all
rights under the Plan shall terminate. A Participant whose participation has
been so terminated may again become eligible to participate in the Plan by again
satisfying the requirements of Article V.
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ARTICLE XIV - REPAYMENT OF PAYROLL DEDUCTIONS WITH INTEREST
In the event a Participant's interest in the Plan is terminated, the
Company shall promptly deliver to the Participant the payroll deductions
credited to the Participant's account, with interest as provided herein.
ARTICLE XV - CAPITAL CHANGES
In the event of changes in the Common Stock of the Company due to stock
dividends or other changes in capitalization, or in the event of any merger,
sale or any other reorganization, appropriate adjustments shall be made by the
Company in the Shares subject to purchase and in the purchase price per share.
ARTICLE XVI- NONASSIGNABILITY
Only the Participant may elect to exercise the Participant's Option by
continuing participation in the Plan, and no rights or accumulated payroll
deductions of any Participant under the Plan may be pledged, assigned or
transferred for any reason and any such attempt may be treated by the Company as
an election by the Participant to withdraw from the Plan.
ARTICLE XVII - REPORTS
Each Participant shall receive promptly after the last day of each Offering
Period a report of the Participant's account setting forth the total payroll
deductions accumulated, the number of Shares purchased and the remaining cash
balance, if any, to be refunded or applied to a succeeding Offering Period
pursuant to Article X(a).
ARTICLE XVIII - PLAN TERM
This Plan will continue until terminated by the Board or until all of the
Shares reserved for issuance under the Plan have been issued, whichever shall
first occur.
ARTICLE XIX - AMENDMENT OR TERMINATION OF THE PLAN
The Board may at any time amend or terminate the Plan, except that such
termination cannot affect Options previously granted under the Plan, nor may any
amendment make any change in an Option previously granted which would adversely
affect the right of any Participant, nor may any amendment be made without
approval of the stockholders of the Company within twelve (12) months of the
adoption of such amendment if such amendment would authorize the sale of more
shares than are authorized for issuance under the Plan or would change the
designation of corporations whose employees may be offered Options under the
Plan. Notwithstanding any other provision of the Plan to the contrary, in the
event of an amendment to the Plan which affects the rights or privileges of
Options to be offered under the Plan, each Participant with an outstanding
Option shall have the right to
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exercise such outstanding Option on the effective date of the amendment and to
participate in the Plan for the remaining term of such outstanding Option
pursuant to the terms and conditions of the Plan as amended. If in accordance
with the preceding sentence a Participant elects to exercise such outstanding
Option and to commence participation in the Plan as amended on the effective
date of such amendment, the Participant shall be deemed to have received a new
Option on such effective date.
ARTICLE XX - APPROVAL OF STOCKHOLDERS
This Plan shall be subject to approval by the holders of the Common Stock
of the Company at a duly called meeting of stockholders, which approval must
occur within the period ending twelve months after the date on which this Plan
was adopted by the Board of Directors. In the event that the approval of the
stockholders is not received before the last day of the first Offering Period,
any and all Options granted on the first business day of the first Offering
Period shall be rescinded, and the Company shall promptly refund the balance of
each participating eligible employee's deductions, with interest as provided
herein.
ARTICLE XXI - GOVERNING LAW
To the extent not governed by Federal law, this Plan shall be construed
under the laws of the state of Delaware.
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