EXHIBIT 10.11
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BANKATLANTIC BANCORP 1999 STOCK OPTION PLAN
1. PURPOSES. The purposes of this BankAtlantic Bancorp 1999 Stock Option
Plan (the "Plan") are to attract and retain the best available personnel for
positions of substantial responsibility, to provide additional incentive to the
Employees of the Company or its Subsidiaries (as defined in Section 2 below) as
well as other individuals who perform services for the Company and its
Subsidiaries, and to promote the success of the Company's business. Options
granted hereunder may be either "incentive stock options", as defined in Section
422 of the Internal Revenue Code of 1986, as amended, or "non-qualified stock
options", at the discretion of the Committee (as defined in Section 2 below) and
as reflected in the terms of the Stock Option Agreement (as defined in Section 2
below).
2. DEFINITIONS. As used herein, the following definitions shall apply:
(a) "Board of Directors" shall mean the Board of Directors of the
Company.
(b) "Class A Common Stock" shall mean the Class A common stock, par
value $.01 per share, of the Company.
(c) "Code" shall mean the Internal Revenue Code of 1986, as amended.
(d) "Company" shall mean BankAtlantic Bancorp, Inc., a Florida
corporation, and its successors and assigns.
(e) "Committee" shall mean the Committee appointed by the Board of
Directors in accordance with paragraph (a) of Section 4 of the
Plan.
(f) "Continuous Status as an Employee" shall mean the absence of any
interruption or termination of service as an Employee. Continuous
Status as an Employee shall not be considered interrupted in the
case of sick leave, military leave, or any other leave of absence
approved by the Board of Directors of the Company or the
Committee.
(g) "Employee" shall mean any person, including officers and
directors, employed by the Company or any Parent or Subsidiary of
the Company. The payment of a director's fee by the Company shall
not be sufficient to constitute "employment" by the Company.
(h) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
(i) "Incentive Stock Option" shall mean a stock option intended to
qualify as an incentive stock option within the meaning of
Section 422 of the Code.
(j) "Nonqualified Stock Option" shall mean a stock option not
intended to qualify as an Incentive Stock Option.
(k) "Option" shall mean a stock option granted pursuant to the Plan.
(l) "Optioned Stock" shall mean the Class A Common Stock subject to
an Option.
(m) "Optionee" shall mean the recipient of an Option.
(n) "Parent" shall mean a "parent corporation", whether now or
hereafter existing, as defined in Section 424(e) of the Code.
(o) "Rule 16b-3" shall mean Rule 16b-3 promulgated by the Securities
and Exchange Commission under the Exchange Act or any successor
rule.
(p) "Share" shall mean a share of the Class A Common Stock, as
adjusted in accordance with Section 11 of the Plan.
(q) "Stock Option Agreement" shall mean the written option agreements
described in Section 16 of the Plan.
(r) "Subsidiary" shall mean a "subsidiary corporation", whether now
or hereafter existing, as defined in Section 424(f) of the Code.
(s) "Transferee" shall mean a "transferee" of the Optionee as defined
in Section 10 of the Plan.
3. STOCK. Subject to the provisions of Section 11 of the Plan, the maximum
aggregate number of shares which may be Optioned and sold under the Plan is
750,000 shares of authorized, but unissued, or reserved Class A Common Stock. If
an Option should expire or become un-exercisable for any reason without having
been exercised in full, the unpurchased Shares which were subject thereto shall,
unless the Plan shall have been terminated, become available for further grant
under the Plan.
Subject to the provisions of Section 11 of the Plan, no person shall be
granted Options under the Plan in any calendar year covering an aggregate of
more than 150,000 Shares.
4. ADMINISTRATION.
(a) Procedure. The plan shall be administered by a Committee appointed by
the Board of Directors. The Committee shall consist of not less than two members
of the Board of Directors. Once appointed, the Committee shall continue to serve
until otherwise directed by
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the Board of Directors. From time to time the Board of Directors may increase
the size of the Committee and appoint additional members thereof, remove members
(with or without cause), and appoint new members in substitution therefor, and
fill vacancies however caused; provided, however, that at no time shall a
Committee of less than two (2) members of the Board of Directors administer the
Plan. If the Committee does not exist, or for any other reason determined by the
Board of Directors, the Board may take any action under the Plan that would
otherwise be the responsibility of the Committee.
(b) Powers of the Committee. Subject to the provisions of the Plan, the
Committee shall have the authority, in its discretion: (i) to grant Incentive
Stock Options, in accordance with Section 422 of the Code, or to grant
Nonqualified Stock Options; (ii) to determine, upon review of relevant
information and in accordance with Section 8(b) of the Plan, the fair market
value of the Class A Common Stock; (iii) to determine the exercise price per
share of Options to be granted; (iv) to determine the persons to whom, and the
time or times at which, Options shall be granted and the number of shares to be
represented by each Option; (v) to determine the vesting schedule of the Options
to be granted; (vi) to interpret the Plan; (vii) to prescribe, amend and rescind
rules and regulations relating to the Plan; (viii) to determine the terms and
provisions of each Option granted (which need not be identical) and, with the
consent of the holder thereof, modify or amend each Option; (ix) to accelerate
or defer (with the consent of the holder thereof) the exercise date of any
Option; (x) to authorize any person to execute on behalf of the Company any
instrument required to effectuate the grant of an Option previously granted by
the Committee; and (xi) to make all other determinations deemed necessary or
advisable for the administration of the Plan.
(c) Effect of the Committee's Decision. All decisions, determinations and
interpretations of the Committee shall be final and binding on all Optionees or
Transferees, if applicable.
5. ELIGIBILITY. Incentive Stock Options may be granted only to Employees.
Nonqualified Stock Options may be granted to Employees as well as directors,
independent contractors and agents, as determined by the Committee. Any person
who has been granted an Option may, if he is otherwise eligible, be granted an
additional Option or Options.
Except as otherwise provided under the Code, to the extent that the
aggregate fair market value of Shares for which Incentive Stock Options (under
all stock option plans of the Company and of any Parent or Subsidiary) are
exercisable for the first time by an Employee during any calendar year exceeds
$100,000, such Options shall be treated as Nonqualified Stock Options. For
purposes of this limitation, (a) the fair market value of Shares is determined
as of the time the Option is granted and (b) the limitation is applied by taking
into account Options in the order in which they were granted.
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The plan shall not confer upon any Optionee any right with respect to
continuation of employment, nor shall it interfere in any way with his right or
the Company's or any Parent or Subsidiary's right to terminate his employment at
any time.
6. TERM OF PLAN. The Plan shall become effective upon its adoption by the
Board of Directors; provided, however, if the Plan is not approved by
shareholders of the Company in accordance with Section 17 of the Plan within
twelve months after the date of adoption by the Board of Directors, the Plan and
any Options granted thereunder shall terminate and become null and void. The
Plan shall continue in effect ten years from the effective date of the Plan,
unless sooner terminated under Section 13 of the Plan.
7. TERM OF OPTION. The term of each Option shall be ten (10) years from the
date of grant thereof or such shorter term as may be provided in the Stock
Option Agreement. However, in the case of an Incentive Stock Option granted to
an Employee who, immediately before the Incentive Stock Option is granted, owns
stock representing more than ten percent (10%) of the voting power of all
classes of stock of the Company or any Parent or Subsidiary, the term of the
Incentive Stock Option shall be five (5) years from the date of grant thereof or
such shorter time as may be provided in such Optionee's Stock Option Agreement.
8. EXERCISE PRICE AND CONSIDERATION.
(a) Price. The per Share exercise price for the Shares to be issued
pursuant to exercise of an Option shall be such price as determined by the
Committee, but shall be subject to the following:
(i) In the case of an Incentive Stock Option which is
(A) granted to an Employee who, immediately before the grant of
such Incentive Stock Option, owns stock representing more than ten
percent (10%) of the voting power of all classes of stock of the
Company or any Parent or Subsidiary, the per Share exercise price
shall be no less than 110% of the fair market value per Share on the
date of grant.
(B) granted to an Employee not within (A), the per share exercise
price shall be no less than one hundred percent (100%) of the fair
market value per Share on the date of grant.
(ii) In the case of a Nonqualified Stock Option, the per Share
exercise price shall be no less than one hundred percent (100%) of the fair
market value per Share on the date of grant.
(b) Determination of Fair Market Value. The fair market value shall be
determined by the Committee in its discretion; provided, however, that where
there is a public
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market for the Class A Common Stock, the fair market value per Share shall be
(i) if the Class A Common Stock is listed or admitted for trading on any United
States national securities exchange, or if actual transactions are otherwise
reported on a consolidated transaction reporting system, the closing price of
such stock on such exchange or reporting system, as the case may be, on the date
of grant of the Option, as reported in any newspaper of general circulation, or
(ii) if the Class A Common Stock is quoted on the National Association of
Securities Dealers Automated Quotations ("NASDAQ") System, or any similar system
of automated dissemination of quotations of securities prices in common use, the
mean between the closing bid and asked quotations for such stock on the date of
grant, as reported by a generally recognized reporting service.
(c) Certain Corporate Transactions. Notwithstanding Section 8(a) of the
Plan, in the event the Company substitutes an Option for a stock option issued
by another corporation in connection with a corporate transaction, such as a
merger, consolidation, acquisition of property or stock, separation (including a
spin-off or other distribution of stock or property), reorganization (whether or
not such reorganization comes within the definition of such term in Section 368
of the Code) or partial or complete liquidation involving the Company and such
other corporation, the exercise price of such substituted Option shall be as
determined by the Committee in its discretion (subject to the provisions of
Section 424(a) of the Code in the case of a stock option that was intended to
qualify as an "incentive stock option") to preserve, on a per Share basis
immediately after such corporate transaction, the same ratio of fair market
value per option share to exercise price per Share which existed immediately
prior to such corporate transaction under the option issued by such other
corporation.
(d) Payment. The consideration to be paid for the Shares to be issued upon
exercise of an Option, including the method of payment, shall be determined by
the Committee and may consist entirely of cash, check, promissory note, or other
shares of the Company's capital stock having a fair market value on the date of
surrender equal to the aggregate exercise price of the Shares as to which said
Option shall be exercised, or any combination of such methods of payment, or
such other consideration and method of payment for the issuance of Shares to the
extent permitted under Florida law. When payment of the exercise price for the
Shares to be issued upon exercise of an Option consists of shares of the
Company's capital stock, such shares will not be accepted as payment unless the
Optionee or Transferee, if applicable, has held such shares for the requisite
period necessary to avoid a charge to the Company's earnings for financial
reporting purposes.
9. EXERCISE OF OPTION.
(a) Procedure for Exercise; Rights as a Shareholder. Any Option granted
hereunder shall be exercisable at such times and under such conditions as
determined by the Committee, including performance criteria with respect to the
Company or its Subsidiaries and/or the Optionee, and as shall be permissible
under the terms of the Plan. An Option may not be exercised for a fraction of a
Share. An Option shall be deemed to be exercised when written
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notice of such exercise has been given to the Company in accordance with the
terms of the Option by the person entitled to exercise the Option and full
payment for the Shares with respect to which the Option is exercised has been
received by the Company. Full payment may, as authorized by the Committee,
consist of any consideration and method of payment allowable under Section 8(d)
of the Plan. Until the issuance of the stock certificate evidencing such Shares
(as evidenced by the appropriate entry on the books of the Company or of a duly
authorized transfer agent of the Company), which in no event will be delayed
more than thirty (30) days from the date of the exercise of the Option, no right
to vote or receive dividends or any other rights as a shareholder shall exist
with respect to the Optioned Stock, notwithstanding the exercise of the Option.
No adjustment will be made for a dividend or other right for which the record
date is prior to the date the stock certificate is issued, except as provided in
the Plan. Exercise of an Option in any manner shall result in a decrease in the
number of Shares which thereafter may be available, both for purposes of the
Plan and for sale under the Option, by the number of Shares as to which the
Option is exercised.
(b) Termination of Status as an Employee. Subject to this Section 9(b), if
any Employee ceases to be in Continuous Status as an Employee, he or any
Transferee may, but only within thirty (30) days (or such other period of time
not exceeding three (3) months as is determined by the Committee) after the date
he ceases to be an Employee, exercise his Option to the extent that he or any
Transferee was entitled to exercise it as of the date of such termination. To
the extent that he or any Transferee was not entitled to exercise the Option at
the date of such termination, or if he or any Transferee does not exercise such
Option (which he or any Transferee was entitled to exercise) within the time
specified herein, the Option shall terminate. If any Employee ceases to serve as
an Employee as a result of a termination for cause (as determined by the
Committee), any Option held by such Employee or any Transferee shall terminate
immediately and automatically on the date of his termination as an Employee
unless otherwise determined by the Committee.
(c) Disability of Optionee. Notwithstanding the provisions of Section 9(b)
above, in the event an Employee is unable to continue his employment as a result
of his total and permanent disability (as defined in Section 22(e)(3) of the
Code), he or any Transferee may, but only within three (3) months (or such other
period of time not exceeding twelve (12) months as is determined by the
Committee) from the date of termination of employment, exercise his Option to
the extent he or any Transferee was entitled to exercise it at the date of such
disability. To the extent that he or any Transferee was not entitled to exercise
the Option at the date of disability, or if he or any Transferee does not
exercise such Option (which he or any Transferee was entitled to exercise)
within the time specified herein, the Option shall terminate.
(d) Death of Optionee. In the event of the death of an Optionee:
(i) during the term of the Option and who is at the time of his death
an Employee and who shall have been in Continuous Status as an Employee
since the date of grant of the Option, the Option may be exercised at any
time within twelve (12) months following the
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date of death, by the Optionee's estate, by a person who acquired the right
to exercise the Option by bequest or inheritance, or by any Transferee, as
the case may be, but only to the extent of the right to exercise that would
have accrued had the Optionee continued living one (1) month after the date
of death; or
(ii) within thirty (30) days (or such other period of time not
exceeding three (3) months as is determined by the Committee) after the
termination of Continuous Status as an Employee, the Option may be
exercised, at any time within three (3) months following the date of death,
by the Optionee's estate, by a person who acquired the right to exercise
the Option by bequest or inheritance, or by any Transferee, as the case may
be, but only to the extent of the right to exercise that had accrued at the
date of termination.
10. TRANSFERABILITY OF OPTIONS. During an Optionee's lifetime, an Option
may be exercisable only by the Optionee and an Option granted under the Plan and
the rights and privileges conferred thereby shall not be subject to execution,
attachment or similar process and may not be sold, pledged, assigned,
hypothecated, transferred or otherwise disposed of in any manner (whether by
operation of law or otherwise) other than by will or by the laws of descent and
distribution. Notwithstanding the foregoing, to the extent permitted by
applicable law and Rule 16b-3, the Committee may determine that any Nonqualified
Stock Option may be transferred by an Optionee to any of the following: (1) a
family member of the Optionee; (2) a trust established primarily for the benefit
of the Optionee and/or a family member of said Optionee; or (3) any charitable
organization exempt from income tax under Section 501(c)(3) of the Code
(collectively, a "Transferee"). Any other attempt to sell, pledge, assign,
hypothecate, transfer or otherwise dispose of any Option under the Plan or of
any right or privilege conferred thereby, contrary to the provisions of the
Plan, or the sale or levy or any attachment or similar process upon the rights
and privileges conferred hereby, shall be null and void.
11. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION OR MERGER. Subject to any
required action by the shareholders of the Company, the number of shares of
Class A Common Stock covered by each outstanding Option, and the number of
shares of Class A Common Stock which have been authorized for issuance under the
Plan but as to which no Options have yet been granted or which have been
returned to the Plan upon cancellation or expiration of an Option, as well as
the price per share of Class A Common Stock covered by each such outstanding
Option, shall be proportionately adjusted for any increase or decrease in the
number of issued shares of Class A Common Stock resulting from a stock split or
the payment of a stock dividend with respect to such stock or any other increase
or decrease in the number of issued shares of such stock effected without
receipt of consideration by the Company; provided, however, that (a) each such
adjustment with respect to an Incentive Stock Option shall comply with the rules
of Section 424(a) of the Code (or any successor provision) and (b) in no event
shall any adjustment be made which would render any Incentive Stock Option
granted hereunder other than an "incentive stock option" as defined in Section
422 of the Code; and provided, further, however, that conversion of any
convertible securities of the Company shall not be deemed to have been "effected
without receipt of consideration." Such adjustment shall be
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made by the Committee or the Board of Directors, whose determination in that
respect shall be final, binding and conclusive. Except as expressly provided
herein, no issuance by the Company of shares of stock of any class, or
securities convertible into shares of stock of any class, shall affect, and no
adjustment by reason thereof shall be made with respect to, the number or price
of shares of Class A Common Stock subject to an Option.
In the event of the proposed dissolution or liquidation of the Company, or
in the event of a proposed sale of all or substantially all of the assets of the
Company, or the merger of the Company with or into another corporation, the
Committee or the Board of Directors may determine, in its discretion, that (i)
if any such transaction is effected in a manner that holders of Class A Common
Stock will be entitled to receive stock or securities in exchange for such
shares, then, as a condition of such transaction, lawful and adequate provision
shall be made whereby the provisions of the Plan and the Options granted
hereunder shall thereafter be applicable, as nearly equivalent as may be
practicable, in relation to any shares of stock or securities thereafter
deliverable upon the exercise of any Option or (ii) the Option will terminate
immediately prior to the consummation of such proposed transaction. The
Committee or the Board of Directors may, in the exercise of its sole discretion
in such instances, declare that any Option shall terminate as of a date fixed by
the Committee or the Board of Directors and give each Optionee or Transferee, if
applicable, the right to exercise his Option as to all or any part of the
Optioned Stock, including Shares as to which the Option would not otherwise be
exercisable.
Without limiting the generality of the foregoing, the existence of
outstanding Options granted under the Plan shall not affect in any manner the
right or power of the Company to make, authorize or consummate (i) any or all
adjustments, recapitalizations, reorganizations or other changes in the
Company's capital structure or its business; (ii) any merger or consolidation of
the Company; (iii) any issuance by the Company of debt securities or preferred
or preference stock that would rank above the Shares subject to outstanding
Options; (iv) the dissolution or liquidation of the Company; (v) any sale,
transfer or assignment of all or any part of the assets or business of the
Company; or (vi) any other corporate act or proceeding, whether of a similar
character or otherwise.
12. TIME FOR GRANTING OPTIONS. The date of grant of an Option shall, for
all purposes, be the date on which the Committee makes the determination
granting such Option or such later date as the Committee may specify. Notice of
the determination shall be given to each Employee to whom an Option is so
granted within a reasonable time after the date of such grant.
13. AMENDMENT AND TERMINATION OF THE PLAN.
(a) Committee Action; Shareholders' Approval. Subject to applicable laws
and regulations, the Committee or the Board of Directors may amend or terminate
the Plan from time to time in such respects as the Committee or the Board of
Directors may deem advisable, without the approval of the Company's
shareholders.
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(b) Effect of Amendment or Termination. No amendment or termination or
modification of the Plan shall in any manner affect any Option theretofore
granted without the consent of the Optionee, except that the Committee or the
Board of Directors may amend or modify the Plan in a manner that does affect
Options theretofore granted upon a finding by the Committee or the Board of
Directors that such amendment or modification is in the best interest of
Shareholders or Optionees.
14. CONDITIONS UPON ISSUANCE OF SHARES. Shares shall not be issued pursuant
to the exercise of an Option unless the exercise of such Option and the issuance
and delivery of such Shares pursuant thereto shall comply with all relevant
provisions of law, including, without limitation, the Securities Act of 1933, as
amended, the Exchange Act, the rules and regulations promulgated thereunder, and
the requirements of any stock exchange upon which the Shares may then be listed,
and shall be further subject to the approval of counsel for the Company with
respect to such compliance.
As a condition to the exercise of an Option, the Company may require the
person exercising such Option to represent and warrant at the time of any such
exercise that the Shares are being purchased only for investment and without any
present intention to sell or distribute such Shares if, in the opinion of
counsel for the Company, such a representation is required by any of the
aforementioned relevant provisions of law.
15. RESERVATION OF SHARES. The Company, during the term of this Plan, will
at all times reserve and keep available such number of Shares as shall be
sufficient to satisfy the requirements of the Plan. Inability of the Company to
obtain authority from any regulatory body having jurisdiction, which authority
is deemed by the Company's counsel to be necessary to the lawful issuance and
sale of any Shares hereunder, shall relieve the Company of any liability in
respect of the failure to issue or sell such shares as to which such requisite
authority shall not have been obtained.
16. STOCK OPTION AGREEMENT. Options shall be evidenced by written option
agreements in such form as the Board of Directors or the Committee shall
approve.
17. SHAREHOLDER APPROVAL. Continuance of the Plan shall be subject to
approval by the shareholders of the Company entitled to vote thereon within
twelve months after the date the Plan is adopted. If such shareholder approval
is obtained at a duly held shareholders' meeting, it may be obtained by the
affirmative vote of the holders of a majority of the outstanding shares of the
Company present or represented and entitled to vote thereon. The approval of the
shareholders shall be: (1) solicited substantially in accordance with Section
14(a) of the Exchange Act and the rules and regulations promulgated thereunder,
or (2) solicited after the Company has furnished in writing to the holders
entitled to vote substantially the same information concerning the Plan as that
which would be required by the rules and regulations in effect under Section
14(a) of the Exchange Act at the time such information is furnished.
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18. OTHER PROVISIONS. The Stock Option Agreement authorized under the Plan
may contain such other provisions, including, without limitation, restrictions
upon the exercise of the Option, as the Board of Directors or the Committee
shall deem advisable. Any Incentive Stock Option Agreement shall contain such
limitations and restrictions upon the exercise of the Incentive Stock Option as
shall be necessary in order that such option will be an incentive stock option
as defined in Section 422 of the Code.
19. INDEMNIFICATION OF COMMITTEE MEMBERS. In addition to such other rights
of indemnification they may have as Directors, the members of the Committee
shall be indemnified by the Company against the reasonable expenses, including
attorneys' fees actually and necessarily incurred in connection with the defense
of any action, suit or proceeding, or in connection with any appeal thereon, to
which they or any of them may be a party by reason of any action taken or
failure to act under or in connection with the Plan or any Option granted
thereunder, and against all amounts paid by them in settlement thereof (provided
such settlement is approved by independent legal counsel selected by the
Company) or paid by them in satisfaction of a judgment in any such action, suit
or proceeding, except in relation to matters as to which it shall be adjudged in
such action, suit or proceeding that such Committee member is liable for gross
negligence or misconduct in the performance of his duties; provided that within
60 days after institution of any such action, suit or proceeding a Committee
member shall in writing offer the Company the opportunity, at its own expense,
to handle and defend the same.
20. NO OBLIGATION TO EXERCISE OPTION. The granting of an Option shall
impose no obligation upon the Optionee to exercise such Option.
21. WITHHOLDINGS. The Company and any Subsidiary may, to the extent
permitted by law, deduct from any payments or transfers of any kind due to an
Optionee or Transferee the amount of any federal, state, local or foreign taxes
required by any governmental regulatory authority to be withheld or otherwise
deducted with respect to the Options or the Optioned Stock.
22. OTHER COMPENSATION PLANS. The adoption of the Plan shall not affect any
other stock option or incentive or other compensation plans in effect for the
Company or any Subsidiary, nor shall the Plan preclude the Company from
establishing any other forms of incentive or other compensation for employees
and directors of the Company or any Subsidiary.
23. SINGULAR, PLURAL; GENDER. Whenever used herein, nouns in the singular
shall include the plural, and the masculine pronoun shall include the feminine
gender.
24. HEADINGS, ETC. NO PART OF PLAN. Headings of Articles and Sections
hereof are inserted for convenience and reference; they constitute no part of
the Plan.
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