Exhibit 6.5
VICTORY STATE BANK
1998 DIRECTORS STOCK OPTION PLAN
1. PURPOSE
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The purpose of Victory State Bank (the "Bank") 1998 Directors Stock Option
Plan (the "Plan") is to promote the growth and profitability of the Bank by
providing outside directors of the Bank with an incentive to achieve long-term
objectives of the Bank and to attract and retain non-employee directors of
outstanding competence by providing such outside Directors with an opportunity
to acquire an equity interest in the Bank.
2. DEFINITIONS
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(a) "Affiliate" means (i) a member of a controlled group of corporations
of which the Bank is a member or (ii) an unincorporated trade or business which
is under common control with the Bank as determined in accordance with Section
414(c) of the Internal Revenue Code of 1986, as amended, (the "Code") and the
regulations issued thereunder. For purposes hereof, a "controlled group of
corporations" shall mean a controlled group of corporations as defined in
Section 1563(a) of the Code determined without regard to Section 1563(a)(4) and
(e)(3)(C).
(b) "Award" means a grant of Options under the provisions of this Plan.
(c) "Board of Directors" or "Board" means the board of directors of the
Bank.
(d) "Change in Control" of the Bank, for purposes of this Plan, means an
event of a nature that: (i) would be required to be reported in response to Item
1 of the current report on Form F-3, as in effect on the date hereof, pursuant
to Section 13 of the Securities Exchange Act of 1934 (the "Exchange Act"); or
(ii) results in a Change in Control of the Bank within the meaning of the Change
in Bank Control Act and the rules and regulations promulgated by the Federal
Deposit Insurance Corporation (the "FDIC") at 12 C.F.R. ss.303.4(a), as in
effect on the date hereof; or (iii) results in a transaction requiring prior
approval of the Federal Reserve Board ("FRB"), under the Bank Holding Company
Act of 1956 and the regulations promulgated thereunder by the FRB at 12 C.F.R.
ss.225.11, as in effect on the date hereof or (iv) without limitation, such a
Change in Control shall be deemed to have occurred at such time as (A) any
"person" (as the term is used in Sections 13(d) and 14(d) of the Exchange Act)
is or becomes the "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of the Bank representing
20% or more of the Bank's outstanding securities or (B) individuals who
constitute the Board on the date hereof (the "Incumbent Board") cease for any
reason to constitute at least a majority thereof, provided that any person
becoming a director subsequent to the date hereof whose election was approved by
a vote of a majority of the directors comprising the Incumbent Board, or whose
nomination for election by the Bank's stockholders was approved by the Incumbent
Board, shall be, for purposes of this clause (B), considered as though he or she
were a member of the Incumbent Board; or (C) a plan of reorganization, merger,
consolidation, sale of all or substantially all the assets of the Bank or
similar transaction occurs in which the Bank is not the resulting entity; or (D)
a proxy statement shall be distributed soliciting proxies from shareholders of
the Bank, by someone other than the current management of the Bank, seeking
stockholder approval of a plan of reorganization, merger or consolidation of the
Bank or similar transaction with one or more corporations as a result of which
the outstanding shares of the class of securities then subject to the plan or
transaction are exchanged for or converted into cash or property or securities
not issued by the Bank; or (E) a tender offer is made for 20% or more of the
voting securities of the Bank.
(e) "Committee" means a committee consisting of those members of the
Directors Stock Option Committee of the Bank who are Directors, none of whom are
under consideration for a grant of Options at the time the Committee acts.
(f) "Common Stock" means the Common Stock of the Bank, par value, $5.00
per share.
(g) "Date of Grant" means the date an Award granted by the Committee is
effective pursuant to the terms hereof.
(h) "Director" means a member of the Board of Directors of the Bank who is
not an employee of the Bank or any of its Affiliates.
(i) "Disability" means disability as defined in the Bank's long term
disability plan, or if not so defined, disability shall mean the permanent and
total inability by reason of mental or physical infirmity, or both,of a Director
to perform the functions of a Director. Additionally, a medical doctor selected
or approved by the Board of Directors must advise the Committee that it is
either not possible to determine when such Disability will terminate or that it
appears probable that such Disability will be permanent during the remainder of
the Participant's lifetime.
(j) "Fair Market Value" means, when used in connection with the Common
Stock on a certain date: (i) if the bid and asked price of the Common Stock is
reported by the National Association of Securities Dealers Automated Quotation
System (as published by the Wall Street Journal,if published) on such date or if
the Common Stock was not traded on such date, on the next preceding day on which
the Common Stock was traded thereon or the last previous date on which a sale is
reported, or (ii) if the bid and asked price of the Common Stock is not so
reported, but the Common Stock is traded in the over-the-counter market, the
mean of the highest bid price and the lowest asked price for the Common Stock on
the date of grant as reported by the National Quotation Bureau, Inc. or any
successor organization, or (iii) if a realistic and fair market value of such
shares is not readily determinable, an estimation of the fair market value made
by taking into consideration the market value of the shares of comparable
financial institutions and the trend of the Bank's earnings.
(k) "Option" means an Award granted under Section 6.
(l) "Participant" means a director chosen by the Committee to participate
in the Plan.
(m) "Retirement" means termination of service as a director of the Bank.
(n) "Removal for Cause" means the removal of a Director upon an
intentional failure to perform stated duties, personal dishonesty which results
in loss to the Bank or one of its Affiliates or willful violation of any law,
rules or regulation (other than traffic violations or similar offenses) or final
cease-and-desist order which results in substantial loss to the Bank or one of
its Affiliates.
3. ADMINISTRATION
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The Plan shall be administered by the Committee. The Committee is
authorized, subject to the provisions of the Plan, to establish and amend such
rules and regulations as it deems necessary for the proper administration of the
Plan and to make whatever determinations and interpretations in connection with
the Plan it deems necessary or advisable. All determinations and interpretations
made by the Committee shall be binding and conclusive on all Participants in the
plan and on their legal representatives and beneficiaries.
4. STOCK SUBJECT TO THE PLAN
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Subject to adjustment as provided in Section 10, the maximum number of
shares reserved for purchase pursuant to the exercise of options granted under
the Plan is 14,000 shares of Common Stock of the Bank, par value $5.00 per
share.
5. ELIGIBILITY
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Directors who are not employees of the Bank or its Affiliates shall be
eligible to receive Awards under the Plan. Directors who are non-employee
officers of the Bank or its Affiliates shall be eligible to receive Awards under
the Plan.
6. INCENTIVE STOCK OPTIONS
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Grant of Options
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The Committee may, from time to time, grant Stock Options to eligible
directors. Options granted pursuant to the Plan shall be subject to the
following terms and conditions:
(a) Price. The purchase price per share of Common Stock deliverable upon
the exercise of each Directors Stock Option shall be not less than 100% of the
Fair Market Value of the Bank's Common Stock on the Date of Grant. Shares may be
purchased only upon payment of the full purchase price in cash.
(b) Amounts of Options. Options may be granted to any eligible Directors
in such amounts as are determined by the Committee.
(c) Terms of Options. The term during which each Option may be exercised
shall be determined by the Committee, but in no event shall an Option be
exercisable in whole or in part more than 10 years from the Date of Grant. No
Option granted under this Plan is transferable except by will or the laws of
descent and distribution and is exercisable in his or her lifetime only by the
Director to whom it is granted.
The Committee, in its discretion, may in issuing such options, include the
following conditions in addition to those conditions otherwise set forth in this
Plan: (i) A limitation upon the times during a year when options may be
exercised; (ii) A limitation upon the portion of an optionee's options which may
be exercised in any one year; and (iii) an age limitation upon the persons who
may be granted options. The Committee shall determine the date on which each
Option shall become exercisable and may provide that an Option shall become
exercisable in installments. The shares comprising each installment may be
purchased in whole or in part at any time after such installment becomes
purchasable. The Committee may, in its sole discretion, accelerate the time at
which any Option may be exercised in whole or in part. Notwithstanding the
above, in the event of a Change in Control of the Bank, all Options shall become
immediately exercisable.
(d) Termination of Service. Upon the termination of a Participant's
service as a Director for any reason other than Disability, Retirement, Change
in Control, death or Removal for Cause, the Participant's Options shall be
exercisable only as to those shares which were immediately purchasable by the
Participant at the date of termination and only for a period of three months
following termination. In the event of Termination for Cause all rights under
the Participant's Options shall expire upon termination.
In the event of death or Disability of any Director, all Options held by
such Participant, whether or not exercisable at such time, shall be exercisable
by the Participant or the Participant's legal representatives or beneficiaries
for one year following the date of the Participant's death or cessation of
directorship due to Disability. Upon termination of the Participant's service
due to Retirement, or a Change in Control, all Options held by such Participant,
whether or not exercisable at such time, shall be exercisable for a period of
one year following the date of Participant's cessation of service. In no event
shall the exercise period extend beyond the expiration of the Option term.
7. SURRENDER OF OPTION
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In the event of a Participant's termination of directorship as a result of
death, Disability or Retirement, the Participant (or the Participant's personal
representative(s), heir(s), or devisee(s)) may, in a form acceptable to the
Committee, make application to surrender all or part of options held by such
Participant in exchange for a cash payment from the Bank of an amount equal to
the difference between the Fair Market Value of the Common Stock on the date of
termination of directorship and the exercise price per share of the option on
the Date of Grant. Whether the Committee accepts such application or the Bank
determines to make payment, in whole or part, is within the absolute and sole
discretion of the Committee and the Bank, it being expressly understood that the
Committee and the Bank are under no obligation to any Participant whatsoever to
make such payments. In the event that the Committee accepts such application and
the Bank determines to make payment, such payment shall be in lieu of the
exercise of the underlying option and such option shall cease to be exercisable.
8. RIGHTS OF A SHAREHOLDER: NONTRANSFERABILITY
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No Participant shall have any rights as a shareholder with respect to any
shares covered by Option until the date of issuance of a stock certificate for
such shares. Nothing in this Plan or in any Award granted confers on any person
any right to continue as a director of the Bank or to continue to perform
services for the Bank or its Affiliates or interferes in any way with the right
of the Bank or its Affiliates to terminate a Participant's services as a
director at any time.
No Award under the Plan shall be transferable by the optionee other than by
will or the laws of descent and distribution and may only be exercised during
his lifetime by the optionee, or by a guardian or legal representative.
9. AGREEMENT WITH GRANTEES
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Each Award will be evidenced by a written agreement, executed by the
Participant and the Bank or its Affiliates which describes the conditions for
receiving Awards including the date of Award, the number of shares that may be
acquired through its exercise, the purchase price per share, applicable periods
and any other terms and conditions as may be required by the Board of Directors
or applicable securities law.
10. MANNER OF EXERCISE
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Each exercise of an option shall be by notice in writing to the Chief
Executive Officer of the Bank, accompanied by payment in full of the option
price of the shares then being purchased. Such option price shall be payable in
U.S. Dollars upon the exercise of the option by cash, certified check, Bank
draft or money order payable to the order of the Bank.
11. DILUTION AND OTHER ADJUSTMENTS
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In the event of any change in the outstanding shares of Common Stock of the
Bank by reason of any stock dividend or split, recapitalization, merger,
consolidation, spin-off, reorganization, combination or exchange of shares, or
other share combination, or other similar corporate change, or other increase or
decrease in such shares without receipt or payment of consideration by the
Company, the Committee will make adjustments (provided those adjustments are
approved by the Superintendent of Banks) to previously granted Awards to prevent
dilution or enlargement of the rights of the Participant, including any or all
of the following:
(a) adjustments in the aggregate number or kind of shares of Common Stock
which may be awarded under the Plan;
(b) adjustments in the number of shares which may be optioned to any
single individual;
(c) adjustments in the aggregate number or kind of shares of Common Stock
covered by Awards already made under the Plan; and
(d) adjustments in the purchase price of outstanding Options.
No such adjustments may, however, materially change the value of benefits
available to a Participant under a previously granted Award.
12. TAX WITHHOLDING
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There shall be deducted from each distribution of cash and/or Common Stock
under the Plan the amount required by any governmental authority to be withheld
for income and withholding tax purposes.
13. AMENDMENT OF THE PLAN
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The Board of Directors may at any time, and from time to time, modify or
amend the Plan in any respect, subject to any required approval by the
Superintendent of Banks of the State of New York, provided however, the Board of
Directors shall not without the affirmative vote of the holders of a majority of
the outstanding Common Stock of the Bank (i) increase the maximum number of
shares for which options may be granted under the Plan, except as provided in
Section 11; (ii) reduce the minimum option price; (iii) extend the term of the
plan or the period during which options may be granted or exercised; (iv) amend
the requirements as to the Directors eligible to receive options; or (v) change
the number of shares which may be optioned to any one individual. No termination
or amendment of the Plan may, without the consent of the individual to whom any
option shall theretofore have been granted, adversely affect the rights of such
individual under such options.
Failure to ratify or approve amendments or modifications to subsections (i)
through (v) of this Section by shareholders shall be effective only as to the
specific amendment or modification requirement such ratification. Other
provisions, sections, and subsections of this Plan will remain in full force and
effect.
No such termination, modification or amendment may affect the rights of a
Participant under an outstanding Award.
14. EFFECTIVE DATE OF PLAN
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The Plan shall become effective upon the later to occur of:
(a) approval by the holders of a majority of the outstanding shares of
Common Stock of the Bank; and
(b) final approval of the Plan by the Superintendent of Banks of the State
of New York.
15. TERMINATION OF THE PLAN
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The right to grant Awards under the Plan will terminate on February 10,
2008. The Board of Directors has the right to suspend or terminate the Plan at
any time, provided that no such action will, without the consent of a
Participant, adversely affect his or her rights under a previously granted
Award.
16. APPLICABLE LAW
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The Plan will be administered in accordance with the laws of the State of
New York. The Plan, and the grant and exercise of Options hereunder, and the
Bank's obligation to sell and deliver Common Stock under such Options, shall be
subject to the provisions of Section 140-a of the Banking Law of the State of
New York and the regulations of the New York State Banking Board and to such
approvals by any other regulatory or governmental agency as may be required.
17. COMPLIANCE WITH SECTION 16
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If this Plan is qualified under 17 C.F.R. ss.240.16b-3 of the Exchange Act
Rules, with respect to persons subject to Section 16 of the Exchange Act,
transactions under this Plan are intended to comply with all applicable
conditions of Rule 16b-3 or its successors under the Exchange Act.