EXHIBIT 10.21
VIRGINIA BEACH FEDERAL SAVINGS BANK
1991 STOCK OPTION PLAN
1. Purpose of the Plan.
The Plan shall be known as the Virginia Beach Federal Savings Bank 1991
Stock Option Plan (the "Plan"). The purpose of the Plan is to attract and
retain the best available personnel for positions of substantial
responsibility and to provide additional incentive to officers and key
employees of Virginia Beach Federal Savings Bank (the "Bank") or any present
or future parent or subsidiary of the Bank to promote the success of the
business. It is intended that options issued pursuant to this Plan may
constitute either incentive stock options within the meaning of Section 422A
of the Internal Revenue Code of 1986, as amended, or options that do not so
qualify.
2. Definitions
As used herein, the following definitions shall apply.
(a) "Bank" shall mean the Virginia Beach Federal Savings Bank.
(b) "Board" shall mean the Board of Directors of the Bank or any Parent
thereof.
(c) "Code" shall mean the Internal Revenue Code of 1986, as amended.
(d) "Committee" shall mean the Stock Option Committee appointed by the
Board in accordance with paragraph 4(a) of the Plan.
(e) "Common Stock" shall mean Common Stock, par value $.01 per share, of
the Bank.
(f) "Continuous Employment" or "Continuous Status as an Employee" shall
mean the absence of any interruption or termination of employment by the Bank
or any present or future Parent or Subsidiary of the Bank. Employment shall
not be considered interrupted in the case of sick leave, military leave or any
other leave of absence approved by the Bank or in the case of transfers
between payroll locations of the Bank or between the Bank, its Parent, its
Subsidiaries or a successor.
(g) "Director" shall mean a member of the Board of the Bank.
(h) "Effective Date" shall mean the date specified in paragraph 11 hereof.
(i) "Employee" shall mean any person employed by the Bank or any present or
future Parent or Subsidiary of the Bank.
(j) "Option" shall mean an option to purchase Common Stock granted pursuant
to this Plan.
(k) "Optioned Shares" shall mean Common Stock subject to an Option granted
pursuant to this Plan.
(l) "Optionee" shall mean any person who receives an Option pursuant to the
Plan.
(m) "Parent" shall mean any present or future corporation which would be a
"parent corporation" as defined in Subsections 425(e) and (g) of the Code.
(n) "Plan" shall mean Virginia Beach Federal Savings Bank 1991 Stock Option
Plan.
(o) "Share" shall mean one share of the Common Stock.
(p) "Subsidiary" shall mean any present or future corporation which would
be a "subsidiary corporation" as defined in Subsections 425 (f) and (g) of the
Code.
3. Shares Subject to the Plan.
Except as otherwise required by the provisions of Paragraph 11 hereof, the
aggregate number of shares of Common Stock deliverable upon the exercise of
Options pursuant to the Plan shall not exceed 499,432 Shares. Such Shares may
either be authorized but unissued Shares or treasury Shares.
If Options should expire, become unexercisable or be forfeited for any
reason without having been exercised in full, the Shares which were subject to
such Options thereto shall, unless the Plan shall have been terminated, be
available for the grant of other Options under the Plan.
4. Administration of the Plan.
(a) Composition of Committee. The Plan shall be administered by the
Committee which shall consist of not less than three Directors appointed by
the Board. All persons designated as members of the Committee shall be
"disinterested persons" within the meaning of Rule 16b-3 under the Securities
Exchange Act of 1934, as amended.
(b) Powers of the Committee. The Committee is authorized (but only to the
extent not contrary to the express provisions of the Plan or to resolutions
adopted by the Board) to interpret the Plan, to prescribe, amend and rescind
rules and regulations relating to the Plan, to determine the form and content
of Options to be issued under the Plan and to make other determinations
necessary or advisable for the administration of the Plan, and shall have and
may exercise such other power and authority as may be delegated to it by the
Board from time to time. A majority of the entire Committee shall constitute a
quorum and the action of a majority of the members present at any meeting at
which a quorum is present shall be deemed the action of the Committee.
(c) Effect of Committee's Decision. All decisions, determinations and
interpretations of the Committee shall be final and conclusive on all persons
affected thereby.
5. Eligibility.
Options may be granted to each such Employees of the Bank, or any present
or future Parent or Subsidiary, as shall be designated by the Committee. An
Optionee who has been granted an Option may, if otherwise eligible, be granted
an additional Option or Options.
The aggregate fair market value (determined pursuant to Paragraph 7 hereof
as of the date the Option is granted) of the Shares with respect to which
incentive stock options are exercisable for the first time by an Employee
during any calendar year (under all incentive stock option plans, as defined
in Section 422A of the Code, of the Bank or any present or future Parent or
Subsidiary of the Bank) shall not exceed $100,000. Notwithstanding the prior
provisions of this paragraph, the Committee may grant Options in excess of the
foregoing limitations, in which case such Options granted in excess of such
limitation shall be Options which are not incentive stock options, as defined
in Section 422A of the Code, pursuant to Section 422A(d) of the Code.
6. Term of Plan; Term of Options.
(a) The Plan shall continue in effect for a term of ten years from its
Effective Date, unless sooner terminated pursuant to Paragraph 16. No Option
shall be granted under the Plan after ten years from the Effective Date.
(b) The term of each Option granted under the Plan shall be established by
the Committee, but shall not exceed 10 years; provided, however, that in the
case of an Employee who owns Shares representing
more than 10% of the outstanding Common Stock at the time the Option is
granted, the term of such Option shall not exceed five (5) years.
7. Option Price.
The price per share at which each Option granted under the Plan may be
exercised shall not, as to any particular Option, be less than the fair market
value of the Optioned Shares at the time such Option is granted. In the case
of an Employee who owns Shares representing more than 10% of the Bank's
outstanding Shares of Common Stock at the time the Option is granted, the
Option price shall not be less than 110% of the fair market value of the
Optioned Shares at the time the Option is granted. If the Common Stock is
traded otherwise than on a national securities exchange at the time of the
granting of an Option, then the Option price per Share shall be not less than
the mean between the bid and asked price on the date the Option is granted or,
if there is no bid and asked price on said date, then on the next prior
business day on which there was a bid and asked price. If no such bid and
asked price is available, then the Option price per Share shall be determined
by the Committee. If the Common Stock is listed on a national securities
exchange (including the NASDAQ National Market System) at the time of granting
an Option, then the price per share shall be not less than the average of the
highest and lowest selling price on such exchange on the date such Option is
granted or if there were no sales on said date, then the Option price shall be
not less than the mean between the bid and asked price on such date.
Notwithstanding anything herein to the contrary, the Committee shall have
the authority to cancel outstanding Options with the consent of the Optionee
and to reissue new Options at a lower exercise price equal to the then fair
market value per share of Common Stock in the event that the fair market value
per share of Common Stock at any time prior to the date of exercise of
outstanding Options falls below the exercise price of such Options.
8. Exercise of Option.
(a) Procedure for Exercise. Any Option granted hereunder shall be
exercisable at such times and under such conditions as shall be permissible
under the terms of the Plan and of the Option granted to an Optionee. An
Option may not be exercised for a fractional Share.
An Option granted pursuant to the Plan may be exercised, subject to
provisions relative to its termination and limitations on its exercise, from
time to time, only (1) written notice of intent to exercise the Option with
respect to a specified number of shares, and (2) Payment to the Bank
(contemporaneously with delivery of such notice), in cash, in Common Stock, or
a combination of cash and Common Stock, of the amount of the Option price for
the number of Shares with respect to which the Option is then being exercised.
Each such notice and payment shall be delivered, or mailed by prepaid
registered or certified mail, addressed to the Treasurer of the Bank at the
Bank's executive offices. Common Stock utilized in full or partial payment of
the exercise price shall be valued at its fair market value at the date of
exercise.
(b) Exercise During Employment or Following Death or Disability. Except as
may be specifically provided for by the terms of an Option as may be
authorized by the Committee at the time of such grant, an Option may be
exercised by an Optionee only while he is an Employee and has maintained
Continuous Status as an Employee since the date of the grant of the Option or
within three months after termination of status as an Employee(but not later
than the date on which the Option would otherwise expire), except if his
Continuous Employment is terminated by reason of (1) "Cause" (which for
purposes hereof shall have the same meaning as defined in the then existing
employment agreement between the Optionee and the Bank or any of its Parent or
Subsidiaries and , in the absence of any such agreement, shall have the
meaning defined in 12 C.F.R. 563.39(b)(1) as in effect on the Effective Date
of the Plan), then the Optionee's rights to exercise such Option shall expire
on the date of such termination; (2) death, then to the extent that the
Optionee would have been entitled to exercise the Option immediately prior to
his death, such Option of the deceased Optionee my be exercised within two
years from the date of his death (but not later than the date on which the
Option would otherwise expire) by the personal representatives of his estate
or person or persons to whom his rights under such Option shall have passed by
will or by laws of descent and distribution; or (3) Permanent and Total
Disability (as such term is defined in Section
22(e)(3) of the Code), then to the extent that the Optionee would have been
entitled to exercise the Option immediately prior to his Permanent and Total
Disability, such Option may be exercised within one year from the date of such
Permanent and Total Disability, but not later than the date on which the
Option would otherwise expire. Notwithstanding the provisions of any Option
which provides for its exercise in installments as designated by the
Committee, such Option shall become immediately exercisable upon death or
Permanent and Total Disability, as defined herein, of the Optionee.
The Committee's determination whether an Optionee's employment has ceased,
and the effective date thereof shall be final and conclusive on all persons
affected thereby.
(c) Notwithstanding anything herein to the contrary, in no event shall any
Option granted pursuant to the Plan be exercisable for six months from the
date of grant, except in the event of the death or disability of the Optionee.
9. Change of Control
Notwithstanding the provisions of any Option or other award which provides
for its exercise in installments as designated by the Committee, such Option
shall become immediately exercisable in the event of a change in control or
offer to effect a change in control. At such time, the Optionee shall, at the
discretion of the Committee, be entitled to receive cash in an amount equal to
the excess of the fair market value of the Common Stock (determined in
accordance with Paragraph 7) subject to such Option over the Option price of
such shares, in exchange for the surrender of such Options by the Optionee.
For purposes of this Paragraph, "change in control" shall mean the acquisition
of the beneficial ownership (as that term is defined in Rule 13d-3 of the
General Rules and Regulations under the Securities Exchange Act of 1934) of
25% or more of the voting securities of the Bank by any person or by persons
acting as a group within the meaning of Section 13(d) of the Securities
Exchange Act of 1934; and "offer" shall refer to every offer to buy or
acquire, solicitation of an offer to sell, tender offer for, or request of
invitation for tenders of, the voting securities of the Bank for value, as
such term is defined under 12 C.F.R. 563b.3(i). A change in control shall not
be deemed to have occurred with respect to a transaction in which the Bank
forms a holding company without change in the respective beneficial ownership
interests of its stockholders other than pursuant to the exercise of any
dissenter and appraisal rights or the purchase of shares by underwriters in
connection with a public offering. The term "person" refers to an individual
or a corporation, partnership, trust, association, joint venture, pool,
syndicate, sole proprietorship, unincorporated organization or any other form
of entity not specifically listed herein. The decision of the Committee as to
whether a change in control, or offer to effect a change in control, has
occurred shall be conclusive and binding.
10. Non-Transferability of Options.
Options granted under the Plan may not be sold, pledged, assigned,
hypothecated, transferred or disposed of in any manner other than by will or
by the laws of descent and distribution. An Option may be exercised, during
the lifetime of the Optionee, only by the Optionee.
11. Effect of Change in Common Stock Subject to the Plan.
In the event that each of the outstanding Shares of Common Stock (other
than Shares held by dissenting shareholders) shall be changed into or
exchanged for a different number or kind of shares of capital stock of the
Bank or of another corporation (whether by reason of merger, consolidation,
recapitalization, reclassification, stock dividend, split-up, combination of
shares, or otherwise), then there shall be substituted for each share of
Common Stock then under Option or available for Option the number and kind of
shares of capital stock into which each outstanding Share of Common Stock
(other than Shares held by dissenting stockholders) shall be so changed or for
which each such share shall be so exchanged, together with an appropriate
adjustment of the Option price.
In the event there shall be any change in the number of, or kind of,
issued shares of Common Stock, or of any capital stock or other securities
into which such Common Stock shall have been changed, or for which it shall
have been exchanged,
then if the Committee shall, in its discretion, determine that such change
equitably requires an adjustment in the number, or kind, or Option price of
Shares then subject to an Option or available for Option, such adjustment
shall be made by the Board and shall be effective and binding for all purposes
of the Plan.
12. Time of Granting Options.
The date of grant of an Option under the Plan shall, for all purposes, be
the date on which the Committee makes the determination of granting such
Option. Notice of the determination shall be given to each Optionee to whom an
Option is so granted within a reasonable time after the date of such grant.
13. Effective Date.
The Plan shall become effective upon adoption by the Board. Options may be
granted prior to ratification of the Plan by the stockholders of the Bank if
the exercise of such Options is subject to such stockholder ratification. The
Plan shall continue in effect for a term of ten years from the Effective Date,
unless sooner terminated under Paragraph 16 of the Plan.
14. Approval by Stockholders.
The Plan shall be approved by stockholders of the Bank within twelve (12)
months before or after the Effective Date.
15. Modification of Options.
At any time, and from time to time, the Board may authorize the Committee
to direct execution of an instrument providing for the modification of any
outstanding Option, provided no such modification, extension or renewal shall
confer on the holder of said Option any right or benefit which could not be
conferred on him by the grant of a new Option at such time, or impair the
Option without the consent of the holder of the Option.
16. Amendment and Termination of the Plan.
The Board may amend, modify or terminate the Plan, except that no action of
the Board may materially increase (other than as provided in Paragraph 11) the
maximum number of Shares permitted to be optioned or become available for the
granting of Options under the Plan, materially increase the benefits accruing
to Optionees, or materially modify the requirements for eligibility for
participation in the Plan, unless such action of the Board shall be subject to
approval or ratification by the stockholders of the Bank.
No action of the Board may, without the consent of the holder of the
Option, impair any then outstanding Option.
17. Conditions Upon Issuance of Shares.
Shares of Common Stock shall not be issued with respect to any Option
granted under the Plan unless the issuance and delivery of such Shares shall
comply with all relevant provisions of law, including, without limitation, the
Securities Act of 1933, as amended, the rules and regulations promulgated
thereunder, any applicable state securities law, and the requirements of any
stock exchange upon which the Shares may then be listed.
Inability of the Bank to obtain approval from any regulatory body or
authority deemed by the Bank's counsel to be necessary to the lawful issuance
and sale of any Shares hereunder shall relieve the Bank of any liability in
respect of the non-issuance or sale of such Shares. As a condition to the
exercise of an Option, the Bank may require the person exercising the Option
to make such representations and warranties as may be necessary to assure the
availability of an exemption from the registration requirements of federal or
state securities law.
18. Reservation of Shares.
The Bank, during the term of the Plan, will reserve and keep available a
number of Shares sufficient to satisfy the requirements of the Plan.
19. Withholding Tax.
Where an Optionee or other person is entitled to receive Shares pursuant to
the exercise of an Option pursuant to the Plan, the Bank shall have the right
to require the Optionee or such other person to pay the Bank the amount of any
taxes which the Bank is required to withhold with respect to such Shares, or,
in lieu thereof, to retain, or sell without notice, a number of such Shares
sufficient to cover the amount required to be withheld.
20. Governing Law.
The Plan shall be governed by and construed in accordance with the laws of
the Commonwealth of Virginia, except to the extent that Federal law shall be
deemed to apply.
Amendment
to the
Virginia Beach Federal Financial Corporation
1991 Stock Option Plan
1. Revision to the Plan by addition of a new Section 21 to read as follows:
21. Options Granted to Directors.
(a) Options will be granted to each Director of the Company who is not
otherwise an employee of the Company, or any subsidiary thereof, as follows:
Effective February 25, 1993, each such director shall be granted Options to
purchase 10,000 shares of Common Stock at an exercise price equal to the
closing price of such Common Stock on the date of stockholder ratification of
this Section 21. Options granted pursuant to this Section shall not be deemed
incentive stock options within the meaning of Section 422 of the Code, will be
exercisable immediately upon the date it is granted subject to stockholder
ratification of the Plan and will remain exercisable for up to ten years from
such date of grant. For such purposes, if the Common Stock is traded otherwise
than on a national securities exchange at the time of stockholder ratification
of the Options, then the price per Share of the Optioned Stock shall be not
less than the mean between the bid and asked price on the date of stockholder
ratification or, if there is no bid and asked price on said date, then on the
next prior business day on which there was a bid and asked price. If no such
bid and asked price is available, then the price per Share shall be determined
by the Committee. If the Common Stock is listed on a national securities
exchange at the time of stockholder ratification, then the price per Share
shall be not less than the average of the highest and lowest selling price on
such exchange on such date, or if there were no sales on said date, then the
price shall be not less than the mean between the bid and asked price on such
date. Such Options may be exercised only while the Optionee is a Director of
the company, or within three (3) years after termination of the Optionee's
status as a Director but not later than the date on which such Options would
otherwise expire, or in the event of such person's death during the term of
his directorship, by the personal representative of such person's estate or
person or persons to whom his rights under such Option shall have passed by
will or by the laws of descent and distribution. Such Options of the deceased
Director may be exercised within three (3) years from the date of such
person's death, but not later than the date on which the Option would
otherwise expire. Unless otherwise inapplicable, or inconsistent with the
provisions of this paragraph, the Options to be granted to directors hereunder
shall be subject to all other provisions of this Plan. Notwithstanding
anything herein to the contrary, Options granted pursuant to this Section
shall not be exercisable for a period of six months from the date of
stockholder ratification of this Section, except in the event of death or
disability.
(b) Additional grants of Options shall be awarded to Directors of the
Company who are not otherwise employees as follows: At the first meeting of
the Board following the 1994 Annual Meeting, and annually thereafter for the
next four years, each such director then serving shall be granted additional
Options to purchase 2,000 shares of Common Stock at the fair market value of
such Common Stock on the date of grant. Such Options shall be subject to the
other related terms and conditions specified at Section 21(a), herein.
Notwithstanding the foregoing, a maximum of 160,000 Options to purchase Common
Stock shall be awarded to such directors pursuant to the terms of the Section
21. An annual grant of Options to directors shall be reduced pro rata to the
extent that such number of Options available for grant shall be limited.