EXHIBIT 10.8.3
(DIRECTOR)
NON-STATUTORY STOCK OPTION
Granted by
BENJAMIN FRANKLIN BANCORP, INC.
under the
BENJAMIN FRANKLIN BANCORP, INC. 2006 STOCK INCENTIVE PLAN
This Option is and shall be subject in every respect to the provisions of 2006
Stock Incentive Plan, as amended from time to time (the "Plan"), of Benjamin
Franklin Bancorp, Inc. (the "Company"), which is incorporated herein by
reference and made a part hereof. A copy of the Plan is available for review at
the offices of the Company and a copy of the Plan has been provided to each
person granted an Option pursuant to the Plan. The holder of this Option (the
"Holder") hereby accepts this Option subject to all the terms and provisions of
the Plan and agrees that (a) in the event of any conflict between the terms
hereof and those of the Plan, the latter shall prevail, and (b) all decisions
under and interpretations of the Plan by the Compensation Committee
("Committee") or the Board shall be final, binding and conclusive upon the
Holder and the Holder's heirs, legal representatives, successors and permitted
assigns. Except where the context otherwise requires, the term "Company" shall
include the parent and all present and future subsidiaries of the Company as
defined in Section 424(e) and 424(f) of the Internal Revenue Code of 1986, as
amended or replaced from time to time (the "Code").
1. NAME OF HOLDER: _________________________________________________________
2. DATE OF GRANT: __________________________________________________________
3. NUMBER OF SHARES OF COMPANY COMMON STOCK, NO PAR VALUE ("COMMON STOCK")
FOR WHICH THIS OPTION IS EXERCISABLE: ___________________________________
(subject to adjustment pursuant to Section 10 below)
4. EXERCISE PRICE PER SHARE: _______________________________________________
(subject to adjustment pursuant to Section 10 below)
5. EXPIRATION DATE OF OPTION: ______________________________________________
6. VESTING SCHEDULE. Except as otherwise provided in this Agreement, this
Option may be exercised prior to the Expiration Date in installments as
follows:
(i) Twenty percent (20%) of the number of shares subject to the
foregoing grant on the first anniversary of the date of grant;
and
(ii) An additional twenty percent (20%) of the number of shares
subject to the foregoing grant on the dates which are the
second through fifth annual anniversaries of the date of
grant.
The right of exercise shall be cumulative. This Option may not be
exercised at any time on or after the Expiration Date. Vesting will
automatically accelerate pursuant to Sections 9.1(i), 11.1(i), 11.1(ii)
and 11.1(iii).
7. EXERCISE PROCEDURE.
7.1. DELIVERY OF NOTICE OF EXERCISE. This Option shall be exercised in
whole or in part by the Holder's delivery to the Company of written
notice (the "Notice of Exercise") setting forth the number of shares
with respect to which this Option is to be exercised, together with
payment by cash, a bank check or other instrument acceptable to the
Committee in an amount equal to the aggregate exercise price for the
shares being purchased upon exercise, or by one or more of the
following methods, if permitted by the Committee, in its discretion:
(i) by delivery to the Company of shares of Common Stock that are
not then subject to restrictions under any Company plan, which
have a Fair Market Value (as defined in Section 7.2) equal in
amount to the aggregate exercise price of the shares of Common
Stock being purchased upon such exercise,
(ii) by delivery to the Company of a properly executed Notice of
Exercise along with irrevocable instructions to a broker to
promptly deliver to the Company cash or a check payable and
acceptable to the Company to pay the aggregate exercise price,
provided that in the event the Holder chooses to pay the
purchase price as so provided, the Holder and the broker shall
comply with such procedures and enter into such agreements of
indemnity and other agreements as the Committee shall
prescribe as a condition of such payment procedure (including,
in the case of a Holder who is an executive officer of the
Company, such procedures and agreements as the Committee deems
appropriate in order to avoid any extension of credit in the
form of a personal loan to such officer). The Company need not
act upon such Notice of Exercise until the Company receives
full payment of the exercise price,
(iii) by reducing the number of Option shares otherwise issuable to
the Holder upon exercise of the Option by a number of shares
having a Fair Market Value equal to such aggregate exercise
price, or
(iv) by delivery to the Company of such other consideration which
the Committee determines is consistent with the purpose of the
Plan and with applicable laws (including the Sarbanes-Oxley
Act of 2002) and regulations, or by any combination of the
means of payment.
7.2. "FAIR MARKET VALUE" on any given date means the closing price per
share of the Common Stock on the trading day immediately preceding
such date as quoted on NASDAQ or, if applicable, as reported by such
registered national securities exchange on which the Common Stock is
listed; provided, that, if there is no trading on such date, Fair
Market Value shall be deemed to be the closing price per share on
the last preceding date on which the Common Stock was traded. If the
Common Stock is not quoted on NASDAQ or listed on any registered
national securities exchange, the Fair Market Value of the Common
Stock shall be determined in good faith by the Committee.
8. DELIVERY OF COMMON STOCK; RESERVE.
8.1. DELIVERY OF COMMON STOCK. As promptly as practicable after receipt
by the Company of the Notice of Exercise and payment of exercise
price pursuant to Section 7 hereof, the Company shall deliver to the
Holder (or if any other individual or individuals are exercising
this Option, to such individual or individuals) a certificate
registered in the
name of the Holder (or the names of the other individual or
individuals exercising this Option) and representing the number of
shares with respect to which this Option is then being exercised;
provided, however, that if any law or regulation or order of the
Securities and Exchange Commission or any other body having
jurisdiction in the premises shall require the Company or the Holder
(or the individual or individuals exercising this Option) to take
any action in connection with the shares then being purchased, the
date for the delivery of the certificate for such shares shall be
extended for the period necessary to take and complete such action.
The Company may imprint upon said certificate such restrictive
legends as the Committee deems appropriate. Delivery by the Company
of the certificates for such shares shall be deemed effected for all
purposes when the Company or a stock transfer agent of the Company
shall have deposited such certificates in the United States mail,
addressed to the Holder, at the Holder's last known address on file
with the Company. The Company will pay all fees or expenses
necessarily incurred by the Company in connection with the issuance
and delivery of shares pursuant to the exercise of this Option.
8.2. RESERVE. The Company will, at all times while any portion of this
Option is outstanding, reserve and keep available, out of shares of
its authorized and unissued Common Stock or shares of Common Stock
held in treasury, a sufficient number of shares of its Common Stock
to satisfy the requirements of this Option.
9. CHANGE IN CONTROL.
9.1. In the event of a Change in Control while this Option is
unexercised, then
(i) the vesting of this Option shall be automatically accelerated,
effective as of the effective time of the Change in Control
(or thirty (30) days preceding the effective date of such
Change in Control, if the Committee cancels this Option
pursuant to Section 9.2 below), and
(ii) subject to Section 9.2 below, after the effective time of such
Change in Control, this Option shall remain outstanding and
shall be exercisable in full for shares of Common Stock or, if
applicable, for shares of such securities, cash or property as
the holders of shares of Common Stock received in connection
with such Change in Control.
9.2. This Option may be cancelled by the Committee as of the effective
date of any Change in Control provided that (x) prior written notice
of such cancellation shall be given to the Holder and (y) the Holder
shall have the right to exercise this Option in full during the
thirty (30) day period preceding the effective date of such Change
in Control.
9.3. "Change in Control" shall mean the occurrence of any one of the
following events:
(i) If there has occurred a change in control which the Company
would be required to report in response to Item 5.01 of Form
8-K promulgated under the Securities Exchange Act of 1934, as
amended (the "1934 Act"), or, if such regulation is no longer
in effect, any regulations promulgated by the Securities and
Exchange Commission pursuant to the 1934 Act which are
intended to serve similar purposes;
(ii) When any "person" (as such term is used in Sections 13(d) and
14(d)(2) of the 1934 Act) becomes a "beneficial owner" (as
such term is defined in Rule 13d-3 promulgated under the 1934
Act), directly or indirectly, of securities of the Company
or Benjamin Franklin Bank (the "Bank") representing
twenty-five percent (25%) or more of the total number of votes
that may be cast for the election of directors of the Company
or the Bank, as the case may be;
(iii) During any period of two consecutive years, individuals who at
the beginning of such period constitute the Board of Directors
of the Company, and any new director (other than a director
designated by a person who has entered into an agreement with
the Company to effect a transaction described in Subsection
(ii), (iv) or (v) of this Section 9.3) whose election by the
Board or nomination for election by the Company's stockholders
was approved by a vote of at least two-thirds (2/3) of the
directors then still in office who either were directors at
the beginning of the period or whose election or nomination
for election was previously so approved, cease for any reason
to constitute at least a majority of the Board of Directors of
the Company;
(iv) The stockholders of the Company approve a merger, share
exchange or consolidation ("merger or consolidation") of the
Company with any other corporation, other than (a) a merger or
consolidation which would result in the voting securities of
the Company outstanding immediately prior thereto continuing
to represent (either by remaining outstanding or by being
converted into voting securities of the surviving entity) more
than 70% of the combined voting power of the voting securities
of the Company or such surviving entity outstanding
immediately after such merger or consolidation or (b) a merger
or consolidation effected to implement a recapitalization of
the Company (or similar transaction) in which no "person" (as
hereinabove defined) acquires more than 30% of the combined
voting power of the Company's then outstanding securities; or
(v) The stockholders of the Company or the Bank approve a plan of
complete liquidation of the Company or the Bank or an
agreement for the sale or disposition by the Company or the
Bank of all or substantially all of the Company's or the
Bank's assets.
10. ADJUSTMENT PROVISIONS.
10.1. GENERAL. If the Company effects a stock dividend, stock split or
similar change in capitalization affecting the Common Stock, the
Committee will make appropriate adjustments in (i) the number and
kind of shares subject to this Option, and (ii) the option or
purchase price in respect of such shares.
10.2. MERGERS, CONSOLIDATION, DISTRIBUTIONS, LIQUIDATIONS. In the event of
any merger, consolidation, dissolution or liquidation of the
Company, the Committee in its sole discretion may make such
substitution or adjustment in the number and purchase price of
shares subject to this Option as it may determine and as may be
permitted by the terms of such transaction, or accelerate, amend or
terminate this Option upon such terms and conditions as it shall
provide (which, in the case of the termination of the vested portion
of this Option, shall require payment or other consideration which
the Committee deems equitable in the circumstances, subject,
however, to the provisions of Section 9).
11. TERMINATION OF OPTION.
11.1. This Option shall terminate upon the Expiration Date, or earlier as
follows:
(i) DEATH. This Option shall vest and become exercisable in full
if the Holder's service on the Company's Board of Directors is
terminated by reason of the Holder's death while this option
is unexercised. This Option may thereafter be exercised by the
legal representative or legatee of the Holder for a period of
one year from the date of death, subject to termination on the
Expiration Date of this Option, if earlier.
(ii) DISABILITY. This Option shall vest and become exercisable in
full if the Holder's service on the Company's Board of
Directors is terminated by reason of Disability (as defined in
the Plan) while this option is unexercised. This Option may
thereafter be exercised for a period of one year from the date
of such termination of service on the Board by reason of
Disability, subject to termination on the Expiration Date, if
earlier. The death of the Holder during the one-year period
for exercise of this Option provided in this Section 11.1(ii)
shall extend such period for one year from the date of death,
subject to termination on the Expiration Date, if earlier. The
Committee shall have sole authority and discretion to
determine whether the Holder's service has been terminated by
reason of Disability.
(iii) MANDATORY RETIREMENT FROM THE BOARD OF DIRECTORS. If the
Holder's service on the Board of Directors of the Company
terminates by reason of retirement at the mandatory retirement
age set forth in the Company's by-laws while this Option is
unexercised, this Option shall vest and become exercisable in
full, and may thereafter be exercised for a period of one year
from the date of such termination of service, subject to
termination on the Expiration Date, if earlier.
(iv) TERMINATION FOR CAUSE. If the Holder's service on the
Company's Board of Directors has been terminated for Cause (as
defined in the Plan), this Option shall immediately terminate
and be of no further force and effect; provided, however, that
the Committee may, in its sole discretion, provide that such
Option can be exercised for a period of up to ninety (90) days
from the date of termination of service, subject to
termination on the Expiration Date, if earlier. The Board of
Directors shall have sole authority and discretion to
determine whether the Holder's service has been terminated for
Cause.
(v) OTHER TERMINATION. If the Holder's service on the Company's
Board of Directors terminates for any reason other than death,
Disability, mandatory retirement or for Cause, this Option may
thereafter be exercised, to the extent it was exercisable at
the time of such termination, for a period of ninety (90) days
from the last day of the Holder's service on the Board,
subject to termination on the Expiration Date, if earlier.
12. MISCELLANEOUS.
12.1. Neither the Holder nor any other person shall, by virtue of the
granting of this Option, be deemed for any purpose to be the owner
of any shares of Common Stock subject to this Option or to be
entitled to the rights or privileges of a holder of such shares
unless and until this Option has been exercised pursuant to the
terms hereof with respect to such shares and the Company has issued
and delivered the shares to the Holder.
12.2. This Option is not transferable other than by will or by the laws of
descent and distribution, and is exercisable, during the Holder's
lifetime, only by the Holder.
12.3. Any notice to be given to the Company hereunder shall be deemed
sufficient if addressed to the Company and delivered at the office
of the President of the Company, or such other address as the
Company may hereafter designate, or when deposited in the mail,
postage prepaid, addressed to the attention of the President of the
Company at such office or other address.
12.4. Any notice to be given to the Holder hereunder shall be deemed
sufficient if addressed to and delivered in person to the Holder at
his address furnished to the Company or when deposited in the mail,
postage prepaid, addressed to the Holder at such address.
12.5. This Option shall be governed by and construed in accordance with
the laws of The Commonwealth of Massachusetts, without regard to its
principles of conflicts of laws.
12.6. In the case of a partial exercise of this Option the Holder shall
surrender his copy hereof and such partial exercise shall be noted
thereon, if the Company so requests.
12.7. This Option is subject to all laws, regulations and orders of any
governmental authority which may be applicable thereto and,
notwithstanding any of the provisions hereof, the Holder agrees that
he will not exercise the Option granted hereby nor will the Company
be obligated to issue any shares of stock hereunder if the exercise
thereof or the issuance of such shares, as the case may be, would
constitute a violation by the Holder or the Company of any such law,
regulation or order or any provision thereof.
12.8. The granting of this Option does not confer upon the Holder any
right to continued service on the Company's Board of Directors.
IN WITNESS WHEREOF, the Company has caused this instrument to be executed
in its name and on its behalf as of the date of grant of this Option set forth
above.
BENJAMIN FRANKLIN BANCORP, INC.
By:
--------------------------------
Thomas R. Venables, President
HOLDER'S ACCEPTANCE
The undersigned hereby accepts the foregoing option and agrees to the
terms and conditions thereof. The undersigned hereby acknowledges receipt of a
copy of the Company's 2006 Stock Incentive Plan.
HOLDER
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