Exhibit 99.1
UNITED COMMUNITY BANCORP
FGB 1999 INCENTIVE STOCK OPTION PLAN
United Community Bancorp, a North Carolina corporation (hereinafter
referred to as the "Corporation"), does herein set forth the terms of the United
Community Bancorp FGB 1999 Incentive Stock Option Plan (hereinafter referred to
as this "Plan") which was adopted by the Corporation's Board of Directors
(hereinafter referred to as the "Board").
1. Purpose of the Plan. The purpose of this Plan is to provide for the
grant of Incentive Stock Options (hereinafter referred to as "Option" or
"Options") qualifying for the tax treatment afforded by Section 422 of the
Internal Revenue Code of 1986, as amended, to eligible officers and employees of
the Corporation and its subsidiaries (hereinafter referred to as "Eligible
Employees") who wish to invest in the Corporation's common stock (hereinafter
referred to as "Common Stock"). The Corporation believes that participation in
the ownership of the Corporation by Eligible Employees will be to the mutual
benefit of the Corporation and Eligible Employees. The existence of this Plan
will enhance the Corporation's ability to attract capable individuals to
employment in key employee positions.
2. Administration of the Plan.
(a) This Plan shall be administered by the Personnel Committee of
the Board (hereinafter referred to as the "Committee"). The Committee shall
consist of three (3) members of the Board all of whom shall qualify as
disinterested persons as provided in Section 16(b) and the rules and regulations
thereunder of the Securities Exchange Act of 1934, as amended. The members of
the Committee shall be appointed by the Board and shall serve at the pleasure of
the Board, which may remove members from, add members to, or fill vacancies in
the Committee. The Corporation's President and Chief Executive Officer shall be
a non-voting ex officio member of the Committee.
(b) The Committee shall decide to whom Options should be granted
under this Plan, the number of shares as to which Options should be granted
subject to the limitations set forth in Paragraph 11 of this Plan, the Option
Price (as hereinafter defined) for such shares and such additional terms and
conditions for such Options as the Committee deems appropriate.
(c) A majority of the Committee, excluding the Corporation's
President and Chief Executive Officer, shall constitute a quorum and the acts of
a majority of the members present at any meeting at which a quorum is present,
or acts approved unanimously in writing by the Committee, shall be considered as
valid actions by the Committee.
(d) The Board may designate any officers or employees of the
Corporation to assist in the administration of this Plan. The Board may
authorize such individuals to execute documents on its behalf and may delegate
to them such other ministerial and limited discretionary duties as the Board may
deem fit.
3. Shares of Common Stock Subject to the Plan. The maximum number of
shares of Common Stock that shall be available initially for Options under this
Plan is One
Hundred Six Thousand One Hundred Thirty Five (106,135) shares, subject to
adjustment as provided in Paragraph 15 hereof. Shares subject to Options which
expire or terminate prior to the issuance of the shares of Common Stock shall
again be available for future grants of Options under this Plan.
4. Eligibilily. Options under this Plan may be granted to any Eligible
Employee as determined by the Committee. An individual may hold more than one
Option under this or other plans adopted by the Corporation.
5. Grant of Options.
(a) The Committee shall authorize that Options for shares of
Common Stock shall be granted to certain Eligible Employees of the Corporation
which Options shall be granted based upon the past service and the continued
participation of those individuals in the management of the Corporation. The
allocation of said Options shall be as deterinined by a majority vote of the
Committee at one or more meetings called for such purpose.
(b) Upon the forfeiture or termination of an Option for whatever
reason prior to the expiration of the Option Period (as defined in Paragraph 10
hereof) the shares of Common Stock covered by a forfeited Option shall not be
available for the granting of additional Options to Eligible Employees. The
number of additional Options to be granted to specific Eligible Employees during
the term of this Plan shall be determined by the Committee as provided in
Subparagraph 2(b) hereof.
6. Vesting of Options.
(a) Options granted under this Plan shall vest and the right of
an Optionee to exercise an Option, subject to Paragraph 13 herein, shall be
nonforfeitable in accordance with the following schedules:
(i) With respect to the Options which are granted as of the
Effective Date (as hereinafter defined):
Date When Such Options Percentage of Such
Become Vested Options Vested
Effective Date of Plan 0%
First Anniversary of Effective Date 20%
Second Anniversary of Effective Date 20%
Third Anniversary of Effective Date 20%
Fourth Anniversary of Effective Date 20%
Fifth Anniversary of Effective Date 20%
(ii) With respect to any Options which may be granted after
the Effective Date:
Date When Such Options Percentage of Such
Become Vested Options Vested
Date of grant 0%
First Anniversary of the date of grant 20%
Second Anniversary of the date of grant 20%
Third Anniversary of the date of grant 20%
Fourth Anniversary of the date of grant 20%
Fifth Anniversary of the date of grant 20%
(b) In determining the number of shares of Common Stock under
each Option vested under the above vesting schedules, an Optionee shall not be
entitled to exercise an Option to purchase a fractional number of shares of the
Common Stock. If the product resulting from multiplying the vested percentage
times the Option results in a fractional number of shares of Common Stock, then
an Optionee's vested right shall be to the whole number of shares of Common
Stock disregarding any fractional shares of Common Stock.
(c) In the event that the employment of an Optionee with the
Corporation terminates for any reason, other than the Optionee's disability,
death, retirement, or following a "change in control" of the Corporation, the
Optionee's Options under this Plan, to the extent unexercised, shall be
forfeited and shall be available again for grant to Eligible Employees as may be
determined by the Committee. Such forfeiture shall apply whether or not any such
Options have been vested.
(d) In the event that the employment of an Optionee with the
Corporation should terminate because of such Optionee's disability, death, or
retirement, or following a "change in control" of the Corporation prior to the
date when all Options allocated to the Optionee would be 100% vested in
accordance with the applicable schedule in subparagraph 6(a) above, then,
notwithstanding the foregoing schedules in subparagraph 6(a) above, all Options
allocated to such Optionee shall immediately become fully vested and
nonforfeitable. For purposes of this Plan, the term disability shall be defined
in the same manner as such term is defined in Section 22(e)(3) of the Internal
Revenue Code of 1986, as amended. When used in this Plan, the phrase "change in
control" refers to (i) the acquisition by any person, group of persons or entity
of the beneficial ownership or power to vote more than twenty-five (25%) percent
of the Corporation's outstanding stock, (ii) during any period of two (2)
consecutive years, a change in the majority of the Board unless the election of
each new Director was approved by at least two-thirds of the Directors then
still in office who were Directors at the beginning of such two (2) year period,
or (iii) a reorganization, merger, or consolidation of the Corporation with one
or more other entities in which the Corporation is not the surviving entity, or
the transfer of all or substantially all of the assets or shares of the
Corporation to another person or entity. Notwithstanding anything else herein, a
transaction or event shall not be considered a change in control if, prior to
the consummation or occurrence of such transaction or event, the Optionee and
the Corporation agree in writing that the same shall not be treated as a change
in control for purposes of this Plan.
(e) All options granted to an Optionee prior to January 1, 2002
which have not yet become vested by the same date shall be immediately vested
and fully exercisable notwithstanding the vesting schedule set forth in
subparagraph 6(a) above.
7. Option Price.
(a) The price per share of each Option granted under this Plan
(hereinafter called the "Option Price") shall be determined by the Committee as
of the effective date of grant of such Option, but in no event shall the Option
Price be less than 100% of the fair market value of Common Stock on the date of
grant. If an Optionee (as hereinafter defined) at the time that an Option is
granted owns stock possessing more than ten (10%) percent of the total combined
voting power of all classes of stock of the Corporation, then the Option Price
per share of each Option granted under this Plan shall be no less than 110% of
the fair market value of Common Stock on the date of grant and such Option shall
not be exercisable more than five (5) years from the date of grant. An Option
shall be considered as granted on the date that the Committee acts to grant such
Option or such later date as the Committee shall specify in an Option Agreement
(as hereinafter defined).
(b) The fair market value of a share of Common Stock shall be
determined as follows: (i) if on the date as of which such determination is
being made, Common Stock being valued is admitted to trading on a securities
exchange or exchanges for which actual sale prices are regularly reported, or
actual sale prices are otherwise regularly published, the fair market value of a
share of Common Stock shall be deemed to be equal to the mean of the closing
sale price as reported on each of the five (5) trading days immediately
preceding the date as of which such determination is made; provided, however,
that, if a closing sale price is not reported for each of the five (5) trading
days immediately preceding the date as of which such determination is made, then
the fair market value shall be equal to the mean of the closing sale prices on
those trading days for which such price is available, or (ii) if on the date as
of which such determination is made, no such closing sale prices are reported,
but quotations for Common Stock being valued are regularly listed on the
National Association of Securities Dealers Automated Quotation System or another
comparable system, the fair market value of a share of Common Stock shall be
deemed to be equal to the mean of the average of the closing bid and asked
prices for such Common Stock quoted on such system on each of the five (5)
trading days preceding the date as of which such determination is made, but if a
closing bid and asked price is not available for each of the five (5) trading
days, then the fair market value shall be equal to the mean of the average of
the closing bid and asked prices on those trading days during the five-day
period for which such prices are available, or (iii) if no such quotations are
available, the fair market value of a share of Common Stock shall be deemed to
be the average of the closing bid and asked prices furnished by a professional
securities dealer making a market in such shares, as selected by the Committee,
for the trading date first preceding the date as of which such determination is
made. If the Committee determines that the price as determined above does not
represent the fair market value of a share of Common Stock, the Committee may
then consider such other factors as it deems appropriate and then fix the fair
market value for the purposes of this Plan.
8. Payment of Option Price. Payment for shares subject to an Option
may be made in cash or in issued and outstanding shares of Common Stock.
9. Terms and Conditions of Grant of Options. Each Option granted
pursuant to this Plan shall be evidenced by a written Incentive Stock Option
Agreement (hereinafter referred to as "Option Agreement") with each Eligible
Employee (hereinafter referred to as "Optionee") to whom an Option is granted;
such agreement shall be substantially in the form attached hereto as "Exhibit
A," unless the Committee shall adopt a different form and, in each case, may
contain such other, different, or additional terms and conditions as the
Committee may determine. The Option shall terminate as provided in paragraph 13
hereof. In addition to any further conditions provided herein and in the Option
Agreement, the right of an Optionee to exercise the Option to purchase the
Option Shares, either in whole or in part, shall be conditioned upon the
completion by the Optionee of one (1) full year of service in the employment of
the Corporation following the date of grant of the Option.
10. Option Period. Each Option Agreement shall set forth a period
during which such Option may be exercised (hereinafter referred to as the
"Option Period"); provided, however, that the Option Period shall not exceed ten
(10) years after the date of grant of such Option as specified in an Option
Agreement.
11. Limitation on Grant of Incentive Stock Options. Notwithstanding
any other provision of this Plan, no person shall be granted an Option under
this Plan which would cause such person's "annual vesting amount" to exceed
$100,000.00. With respect to any calendar year, a person's "annual vesting
amount" is the aggregate fair market value of stock subject to incentive stock
options with respect to which such options are first exercisable during such
calendar year. For purposes of the foregoing, the aggregate fair market value of
stock with respect to which incentive stock options are first exercisable during
any calendar year shall be determined by taking into account all such options
granted to such person under all incentive stock option plans of the Corporation
or of any of its parent or subsidiaries, if any. The fair market value of such
stock shall be determined as of the time the option covering such stock is
granted, which in the case of Options granted hereunder is set forth in
Paragraph 7.
12. Exercise of Incentive Stock Options. An Option shall be exercised
by written notice to the Committee signed by an Optionee or by such other person
as may be entitled to exercise such Option. In the exercise of an Option, the
aggregate Option Price for the shares being purchased may be paid in cash or in
issued and outstanding shares of Common Stock and must be accompanied by a
notice of exercise. The written notice shall state the number of shares with
respect to which an Option is being exercised and, shall either be accompanied
by the payment of the aggregate Option Price for such shares or shall fix a date
(not more than ten (10) business days from the date of such notice) by which the
payment of the aggregate Option Price will be made. An Optionee shall not
exercise an Option to purchase less than 100 shares, unless the Committee
otherwise approves or unless the partial exercise is for the remaining shares
available under such Option. A certificate or certificates for the shares of
Common Stock purchased by the exercise of an Option shall be issued in the
regular course of business subsequent to the exercise of such Option and the
payment therefor. During the Option Period, no person entitled to exercise any
Option granted under this Plan shall have any of the rights or privileges of a
shareholder with respect to any shares of Common Stock issuable upon exercise of
such Option, until certificates representing such shares shall have been issued
and delivered and
the individual's name entered as a shareholder of record on the books of the
Corporation for such shares.
13. Effect of Termination of Employment, Retirement, Disability or
Death.
(a) In the event that the employment of an Optionee with the
Corporation terminates for any reason, other than the Optionee's death,
retirement, disability, or following a "change of control" of the Corporation
(as defined in Paragraph 6(d)), any Option or Options granted to the Optionee
under this Plan, to the extent not previously exercised or expired, and
regardless of any vesting pursuant to Paragraph 6 hereof, shall immediately
terminate and shall not be available again for the granting of additional
Options to Eligible Employees during the remaining term of this Plan. The phrase
"discharged for cause" shall include termination at the sole discretion of the
Board because of such Optionee's personal dishonesty, incompetence, willful
misconduct, breach of fiduciary duty involving personal profit, intentional
failure to perform stated duties, willful violation of any law, rule or
regulation (other than traffic violations or similar offenses), a final cease
and desist order, or material breach of any provision of any employment
agreement that such Optionee may have with the Corporation.
(b) In the event of the termination of employment of an Optionee
as a result of such Optionee's retirement, all Options granted such Optionee
shall vest and such Optionee shall have the right to exercise an Option granted
under this Plan, to the extent that it has not previously been exercised or
expired, for a period of three (3) months after the date of retirement, but in
no event may any Option be exercised later than the end of the Option Period
provided in such Option Agreement in accordance with Paragraph 10 hereof. For
purposes of this Plan, the term "retirement" shall mean, subject to Board
approval in each instance, (i) termination of an Optionee's employment under
conditions which would constitute retirement under any tax qualified retirement
plan maintained by the Corporation or any of its subsidiaries or (ii) attaining
age 65.
(c) In the event of the termination of employment of an Optionee
by reason of such Optionee's disability, all Options granted such Optionee shall
vest and such Optionee shall have the right to exercise an Option granted under
this Plan, to the extent that it has not previously been exercised or expired,
at any time within twelve (12) months after the last date on which such Optionee
provided services as an officer or an employee of the Corporation before being
disabled, but in no event may any Option be exercised later than the end of the
Option Period provided in such Option Agreement in accordance with Paragraph 10
hereof. For purposes of this Plan, the term "disability" shall be defined in the
same manner as such term is defined in Section 22(e)(3) of the Internal Revenue
Code of 1986, as amended.
(d) Notwithstanding anything else herein, in the event that an
Optionee should die (i) while employed by the Corporation or any of its
subsidiaries, (ii) within three (3) months after retirement, (iii) within three
(3) months after Optionee's termination following a change in control, or (iv)
within twelve (12) months after Optionee's termination by reason of Optionee's
disability, any Option or Options granted to the Optionee under this Plan and
not previously exercised or expired shall vest and shall be exercisable,
according to their respective terms, by the personal representative of such
Optionee or by any person or persons who acquired
such Options by bequest or inheritance from such Optionee, notwithstanding any
limitations placed on the exercise of such Options by this Plan or an Option
Agreement, immediately in full and at any time within twelve (12) months after
the date of death of such Optionee, but in no event may any Option be exercised
later than the end of the Option Period provided in such Option Agreement in
accordance with Paragraph 10 hereof. Any references herein to an Optionee shall
be deemed to include any person entitled to exercise an Option under the terms
of this Plan after the death of such Optionee under the terms of this Plan.
(e) In the event of the termination of employment of an Optionee
following a "change in control" of the Corporation (as defined in Paragraph
6(d)), all Options granted such Optionee shall vest and such Optionee shall have
the right to exercise any Option or Options granted to the Optionee under this
Plan, to the extent they have not previously been exercised or expired, for a
period of three (3) months after the date of termination, but in no event may
any Option be exercised later than the end of the Option period provided in such
Option Agreement in accordance with Paragraph 10 hereof.
14. Effect of Plan on Employment Status. The fact that the Committee
has granted an Option to an Optionee under this Plan shall not confer on such
Optionee any right to employment with the Corporation or to a position as an
officer or an employee of the Corporation, nor shall it limit the right of the
Corporation to remove such Optionee from any position held by the Optionee or to
terminate the Optionee's employment at any time.
15. Adjustment Upon Changes in Capitalization; Dissolution or
Liquidation.
(a) In the event of a change in the number of shares of Common
Stock outstanding by reason of a stock dividend, stock split, recapitalization,
reorganization, merger, exchange of shares, or other similar capital adjustment,
prior to the termination of an Optionee's rights under this Plan, equitable
proportionate adjustments shall be made by the Committee in (i) the number and
kind of shares which remain available under this Plan and (ii) the number, kind,
and the Option Price of shares subject to unexercised Options under this Plan.
The adjustments to be made shall be determined by the Committee and shall be
consistent with such change or changes in the Corporation's total number of
outstanding shares; provided, however, that no adjustment shall change the
aggregate Option Price for the exercise of Options granted under this Plan.
(b) The grant of Options under this Plan shall not affect in any
way the right or power of the Corporation or its shareholders to make or
authorize any adjustment, recapitalization, reorganization, or other change in
the Corporation's capital structure or its business, or any merger or
consolidation of the Corporation, or to issue bonds, debentures, preferred or
other preference stock ahead of or affecting Common Stock or the rights thereof,
or the dissolution or liquidation of the Corporation, or any sale or transfer of
all or any part of the Corporation's assets or business.
(c) Except upon a "change in control" as defined in Paragraph
6(d) hereof, upon the effective date of the dissolution or liquidation of the
Corporation, this Plan and any Options granted hereunder, shall terminate.
16. Non-Transferabilfty. Any Option granted under this Plan shall not
be assignable or transferable except, in the case of the death of an Optionee,
by will or by the laws of descent and distribution. In the event of the death of
an Optionee, the personal representative, the executor or the administrator of
such Optionee's estate, or the person or persons who acquired by bequest or
inheritance the rights to exercise such Option, may exercise any Option or
portion thereof to the extent not previously exercised by an Optionee or
expired, in accordance with its terms and Subparagraph 13(d) hereof.
17. Tax Withholding . The employer of a person granted an Option under
this Plan shall have the right to deduct or otherwise effect a withholding of
any amount required by federal or state laws to be withheld with respect to the
grant, exercise or the sale of stock acquired upon the exercise of an Option in
order for the employer to obtain a tax deduction otherwise available as a
consequence of such grant, exercise or sale, as the case may be.
18. Listing and Registration of Option Shares. Any Option granted
under the Plan shall be subject to the requirement that if at any time the
Committee shall determine, in its discretion, that the listing, registration, or
qualification of the shares covered thereby upon any securities exchange or
under any state or federal law or the consent or approval of any governmental
regulatory body is necessary or desirable as a condition of, or in connection
with, the granting of such Option or the issuance or purchase of shares
thereunder, such Option may not be exercised in whole or in part unless and
until such listing, registration, qualification, consent, or approval shall have
been effected or obtained free of any conditions not acceptable to the
Committee.
19. Exculpation and Indemnification. In connection with this Plan, no
member of the Committee shall be personally liable for any act or omission to
act in such person's capacity as a member of the Committee, nor for any mistake
in judgment made in good faith, unless arising out of, or resulting from, such
person's own bad faith, gross negligence, willful misconduct, or criminal acts.
To the extent permitted by applicable law and regulation, the Corporation shall
indemnify and hold harmless the members of the Committee, and each other officer
or employee of the Corporation or of any subsidiary thereof to whom any duty or
power relating to the administration or interpretation of this Plan may be
assigned or delegated, from and against any and all liabilities (including any
amount paid in settlement of a claim with the approval of the Board) and any
costs or expenses (including counsel fees) incurred by such persons arising out
of, or as a result of, any act or omission to act in connection with the
performance of such person's duties, responsibilities, and obligations under
this Plan, other than such liabilities, costs, and expenses as may arise out of,
or result from, the bad faith, gross negligence, willful misconduct, or criminal
acts of such persons.
20. Amendment and Modification of the Plan. The Board may at any time
and from time to time amend or modify this Plan (including the form of Option
Agreement) in any respect consistent with applicable regulations; provided,
however, that no amendment or modification shall be made that increases the
total number of shares of Common Stock covered by this Plan or effects any
change in the categories of persons who may receive Options under this Plan or
materially increases the benefits accruing to Optionees under this Plan unless
such change is approved by the holders of a majority of the issued and
outstanding shares of Common
Stock entitled to vote on such proposal. Any amendment or modification of this
Plan shall not materially reduce the benefits under any Option theretofore
granted to an Optionee under this Plan without the consent of such Optionee or
the transferee thereof in the event of the death of such Optionee.
21. Termination and Expiration of the Plan. This Plan may be
abandoned, suspended, or terminated at any time by the Board; provided, however,
that abandonment, suspension, or termination of this Plan shall not affect any
Options then outstanding under this Plan. No Option shall be granted pursuant to
this Plan after ten (10) years from the effective date of this Plan as provided
in Paragraph 22 hereof.
22. [Removed]
23. Captions and Headings; Gender and Number. Captions and paragraph
headings used herein are for convenience only, do not modify or affect the
meaning of any provision herein, are not a part hereof, and shall not serve as a
basis for interpretation or in construction of this Plan. As used herein, the
masculine gender shall include the feminine and neuter, the singular number the
plural, and vice versa, whenever such meanings are appropriate.
24. Expenses of Administration of Plan. All costs and expenses
incurred in the operation and administration of this Plan shall be borne by the
Corporation or one or more of its subsidiaries.
25. Governing Law. Without regard to the principles of conflicts of
laws, the laws of the State of North Carolina shall govern and control the
validity, interpretation, performance, and enforcement of this Plan.
26. Inspection of Plan. A copy of this Plan, and any amendments
thereto or modification thereof, shall be maintained by the Secretary of the
Corporation and shall be shown to any proper person making inquiry about it.
STATE OF NORTH CAROLINA EXHIBIT A
COUNTY OF GASTON
INCENTIVE STOCK OPTION AGREEMENT
THIS INCENTIVE STOCK OPTION AGREEMENT (hereinafter referred to as this
"Agreement") is made and entered into as of this ___ day of _____________,
________, between UNITED COMMUNITY BANCORP, a North Carolina corporation
(hereinafter referred to as the "Corporation"), and ______________ a resident of
_________ County, North Carolina (hereinafter referred to as the "Optionee").
WHEREAS, the Board of Directors of the Corporation (hereinafter
referred to as the "Board") has adopted the United Community Bancorp FGB 1999
Incentive Stock Option Plan (hereinafter referred to as the "Plan"); and
WHEREAS, the Plan provides that the Personnel Committee (hereinafter
referred to as the "Committee") of the Board will make available to certain
officers and employees of the Corporation and its subsidiaries (the "Employer")
the right to purchase shares of the Corporation's common stock (hereinafter
referred to as "Common Stock"); and
WHEREAS, the Committee has determined that the Optionee should be
granted an option to purchase shares of Common Stock under the Plan;
NOW, THEREFORE, the Corporation and the Optionee agree as follows:
1. Date of Grant of Option. The date of grant of the option granted
under this Agreement is the ____ day of _____________, ________.
2. Grant of Option. Pursuant to the Plan, the Corporation grants to
the Optionee the right (hereinafter referred to as the "Option") to purchase
from the Corporation all or any part of an aggregate of ___________________
(__________ ) shares of Common Stock (hereinafter referred to as the "Option
Shares") which shall be authorized but unissued shares.
3. Vesting of Options.
(a) Periodic Vesting. Subject to subparagraphs 3(b) and 3(c)
below, the Option shall vest and become exercisable in accordance with the
following schedules as applicable:
(i) With respect to any Options which are granted under the
Plan as of Effective Date:
Effective Date of the Plan: 0% vested
First anniversary of the Effective Date of the Plan: 20% vested
Second anniversary of the Effective Date of the Plan: 40% vested
Third anniversary of the Effective Date of the Plan: 60% vested
Fourth anniversary of the Effective Date of the Plan: 80% vested
Fifth anniversary of the Effective Date of the Plan: 100% vested
(ii) With respect to any Options which may be granted after
the Effective Date:
Date of grant: 0% vested
First anniversary of the date of grant: 20% vested
Second anniversary of the date of grant: 40% vested
Third anniversary of the date of grant: 60% vested
Fourth anniversary of the date of the grant: 80% vested
Fifth anniversary of the date of grant: 100% vested
(b) Fractional Option Shares. In determining the number of Option
Shares vested under the above vesting schedule, an Optionee shall not be
entitled to exercise an Option for a fractional number of Option Shares. If the
product resulting from multiplying the vested percentage times the allocated
Option results in a fractional number of Option Shares, then the Optionee's
vested right shall be to the whole number of Option Shares, disregarding any
fractional number.
(c) Accelerated Vesting. Notwithstanding paragraph 3(a) above,
all Options previously not vested and subject to forfeiture shall become 100%
vested and the right of the Optionee to exercise such Options shall become
nonforfeitable, subject to paragraph 8 hereof, upon the death, disability or
retirement of the Optionee, or upon a "change in control" of the Corporation.
For purposes of this Agreement, the tenn "disability" shall be defined in the
same manner as such term is defined in Section 22(e)(3) of the Internal Revenue
Code of 1986, as amended (the "Code").
(d) Other Terminations of Employment. In the event any Optionee's
employment with the Corporation terminates for any reason, other than the
Optionee's death, disability, retirement, or following a change in control of
the Corporation, then the Optionee's Options, to the extent unexercised, shall
be forfeited and shall be available again for grant to other officers and
employees as may be determined by the Committee. Such forfeiture shall apply
whether or not any such Options have vested.
4. Option Price. The price to be paid for the Option Shares shall be
________________ and _____/100 Dollars ($_________) per share (hereinafter
referred to as the "Option Price") which is the fair market value of the Option
Shares as determined by the Committee as of the date of grant of this Option.
5. When and Extent to which Options may be Exercised. Subject to any
further restrictions in this Agreement, the right of the Optionee to exercise
the Option to purchase the Option Shares, either in whole or in part, shall be
conditioned upon the completion by the Optionee of one (1) full year of service
in the employment of the Employer following the date of grant of the Option set
forth in paragraph I hereof. At such time as the Option shall become exercisable
in accordance with this Agreement, the Optionee, in his discretion, may exercise
all or any portion of the Option, subject to paragraphs 3 and 7 hereof. The
Option shall terminate as provided in paragraph 8 hereof.
6. Change in Control. When used herein, the Phrase "change in control"
refers to (i) the acquisition by any person, group of persons or entity of the
beneficial ownership or power to vote more than twenty-five (25%) percent of the
Corporation's outstanding stock, (ii) during any period of two (2) consecutive
years, a change in the majority of the Board unless the election of each new
Director was approved by at least two-thirds of the Directors then still in
office who were Directors at the beginning of such two (2) year period or (iii)
a reorganization, merger, or consolidation of the Corporation with one or more
other entities in which the Corporation is not the surviving entity, or the
transfer of all or substantially all of the assets or shares of the Corporation
to another person or entity. Further, notwithstanding anything else herein, a
transaction or event shall not be considered a change in control if, prior to
the consummation or occurrence of such transaction or event, the Optionee and
the Corporation agree in writing that the same shall not be treated as a change
in control for purposes of this Agreement.
7. Method of Exercise. The Option shall be exercised by written notice
to the Committee signed by the Optionee or by such other person as may be
entitled to exercise the Option. In the exercise of the Option, the aggregate
Option Price for the shares being purchased may be paid in cash or issued and
outstanding shares of Common Stock and must be accompanied by a notice of
exercise. The written notice shall state the number of shares with respect to
which the Option is being exercised and, shall either be accompanied by the
payment of the aggregate Option Price for such shares or shall fix a date (not
more than ten (10) business days from the date of such notice) by which the
payment of the aggregate Option Price will be made. The Optionee shall not
exercise the Option to purchase less than one hundred (100) shares, unless the
Committee otherwise approves or unless the partial exercise is for the remaining
shares available under the Option. A certificate or certificates for the shares
of Common Stock purchased by the exercise of the Option shall be issued in the
regular course of business subsequent to the exercise of the Option and the
payment therefor. During the Option Period, no person entitled to exercise the
Option granted under this Agreement shall have any of the rights or privileges
of a shareholder with respect to any shares of Common Stock issuable upon
exercise of the Option, until certificates representing such shares shall have
been issued and delivered and the individual's name entered as a shareholder of
record on the books of the Corporation for such shares.
8. Termination of Option. The Option shall terminate as follows:
(a) The Option granted under this Agreement, to the extent that
it has not been exercised or expired, and regardless of any vesting pursuant to
paragraph 3 hereof, shall terminate on the earlier of (i) the termination of the
Optionee's employment with the Employer for any reason other than his or her
death, retirement, or disability or following a "change in
control" of the Corporation or (ii) the date which is ten (10) years from the
date of grant of the Option set forth in paragraph 1 hereof. Options which
terminate within ten (10) years from the date of grant set forth in paragraph 1
shall be available again for grant to certain officers and employees as may be
determined by the Committee. The phrase "discharged for cause" shall include
termination at the sole discretion of the Board of Directors of the Employer of
the Optionee because of the Optionee's personal dishonesty, incompetence,
willful misconduct, breach of fiduciary duty involving personal profit,
intentional failure to perform stated duties, willful violation of any law, rule
or regulation (other than traffic violations or similar offenses) or a final
cease and desist order, or material breach of any provision of any employment
agreement that the Optionee may have with the Employer.
(b) In the event the Optionee retires prior to the date which is
ten (10) years after the date of grant of the Option, the Optionee shall have
the right to exercise the Option, to the extent that it has not been exercised
by the Optionee or expired, immediately in full and at any time within three (3)
months after the date of retirement, but in no event may the Option be exercised
later than ten (10) years after the date of grant of the Option set forth in
paragraph 1 hereof. For purposes of this Agreement, the term "retirement" shall
mean, subject to Board approval in each instance, (i) termination of the
Optionee's employment under conditions which would constitute retirement under
any tax qualified retirement plan maintained by the Employer or (ii) attaining
age 65.
(c) In the event the Optionee becomes disabled prior to the date
which is ten (10) years after the date of grant of the Option, the Optionee
shall have the right to exercise the Option, to the extent that it has not been
exercised by the Optionee or expired, notwithstanding any limitation placed on
the exercise of the Option by the Plan or by this Agreement, immediately in full
and at any time within twelve (12) months after the last date on which the
Optionee provided services as an officer or an employee of the Employer before
being disabled, but in no event may the Option be exercised later than ten (10)
years after the date of grant of the Option set forth in paragraph 1 hereof. For
purposes of this Agreement, the term "disability" shall be defined in the same
manner as such term is defined in Section 22(e)(3) of the Code.
(d) Notwithstanding anything else herein, in the event that an
Optionee should die (i) while employed by the Corporation or any of its
subsidiaries, (ii) within three (3) months after retirement, (iii) within three
(3) months after Optionee's termination following a change in control, or (iv)
within twelve (12) months after Optionee's termination by reason of Optionee's
disability, the Option, to the extent it has not been exercised by the Optionee
or expired, shall be exercisable, according to its terms, by the personal
representative, the executor or administrator of the Optionee's estate, or any
person or persons who acquired the Option by bequest or inheritance from the
Optionee, notwithstanding any limitation placed on the exercise of the Option by
the Plan or by this Agreement, immediately in full and at any time within twelve
(12) months after the date of death of the Optionee, but in no event may the
Option be exercised later than ten (10) years from the date of grant of the
Option as set forth in paragraph 1 hereof.
(e) In the event the Optionee's employment with the Employer is
terminated following a "change in control" of the Corporation, the Optionee
shall have the right
to exercise the Option, to the extent that it has not been exercised by the
Optionee or expired, immediately in full and at any time within three (3) months
after the date of termination, but in no event may the Option be exercised later
than ten (10) years after the date of grant of the Options set forth in
paragraph 1 hereof.
9. Effect of Agreement on Emp1oyment Status of Optionee. The fact that
the Committee has granted the Option to the Optionee under this Agreement shall
not confer on the Optionee any right to employment with the Employer or to a
position as an officer. or an employee of the Employer, nor shall it limit the
right of the Employer to remove the Optionee from any position held by the
Optionee or to terminate his or her employment at any time.
10. Listing and Registration of Option Shares.
(a) The Corporation's obligation to issue shares of Common Stock
upon exercise of the Option is expressly conditioned upon (i) the completion by
the Corporation of any registration or other qualification of such shares under
any state or federal law or regulations or rulings of any goverm-nent regulatory
body or (ii) the making of such investment representations or other
representations and agreements by the Optionee or any person entitled to
exercise the Option in order to comply with the requirements of any exemption
from any such registration or other qualification of the Option Shares which the
Committee shall, in its sole discretion, deem necessary or advisable.
Notwithstanding the foregoing, the Corporation shall be under no obligation to
register or qualify the Option Shares under any state or federal law. The
required representations and agreements referenced above may include
representations and agreements that the Optionee, or any other person entitled
to exercise the Option, (i) is purchasing such shares on his or her own behalf
as an investment and not with a present intention of distribution or re-sale and
(ii) agrees to have placed upon any certificates representing the Option Shares
a legend setting forth any representations and agreements which have been given
to the Committee or a reference thereto and stating that such shares may not be
transferred except in accordance with all applicable state and federal
securities laws and regulations, and further representing that, prior to making
any sale or other disposition of the Option Shares, the Optionee, or any other
person entitled to exercise the Option, will give the Corporation notice of the
intention to sell or dispose of such shares not less than five (5) days prior to
such sale or disposition.
11. Adjustment Upon Change in Capitalization; Dissolution or
Liquidation.
(a) In the event of a change in the number of shares of Common
Stock outstanding by reason of a stock dividend, stock split, recapitalization,
reorganization, merger, exchange of shares, or other similar capital adjustment,
prior to the termination of the Optionee's rights under this Agreement,
equitable proportionate adjustments shall be made by the Committee in the
number, kind, and the Option Price of shares subject to the unexercised portion
of the Option granted under this Agreement. The adjustments to be made shall be
determined by the Committee and shall be consistent with such change or changes
in the Corporation's total number of outstanding shares; provided, however, that
no adjustment shall change the aggregate Option Price for the exercise of the
Option granted under this Agreement.
(b) The grant of the Option under this Agreement shall not affect
in any way the right or power of the Corporation or its shareholders to make or
authorize any adjustment, recapitalization, reorganization, or other change in
the Corporation's capital structure or its business, or any merger or
consolidation of the Corporation, or to issue bonds, debentures, preferred or
other preference stock ahead of or affecting Common Stock or the rights thereof,
or the dissolution or liquidation of the Corporation, or any sale or transfer of
all or any part of the Corporation's assets or business.
(c) Except upon a change in control as set forth in paragraph 6
hereof, upon the effective date of the dissolution or liquidation of the
Corporation, the Option granted under this Agreement shall terminate.
12. Nontransferabilily. The Option granted under this Agreement shall
not be assignable or transferable except, in the event of the death of the
Optionee, by will or by the laws of descent and distribution. In the event of
the death of the Optionee, the personal representative, the executor or the
administrator of the Optionee's estate, or the person or persons who acquired by
bequest or inheritance the right to exercise the Option may exercise the
unexercised Option or a portion thereof, in accordance with the terms hereof,
prior to the date which is ten (10) years after the date of grant of Option as
set forth in paragraph I hereof.
13. Notices. Any notice or other communications required or permitted
to be given under this Agreement shall be in writing and shall be deemed to have
been sufficiently given when delivered personally or when deposited in the
United States mail as Certified Mail, return receipt requested, properly
addressed with postage prepaid, if to the Corporation at its principal office at
1039 Second Street, NE, Hickory, North Carolina 28601-3843; and, if to the
Optionee to his or her last address appearing on the books of the Employer. The
Employer and the Optionee may change their address or addresses by giving
written notice of such change as provided herein. Any notice or other
communication hereunder shall be deemed to have been given on the date actually
delivered or as of the third (3rd) business day following the date mailed, as
the case may be.
14. Construction Controlled by Plan. This Agreement shall be construed
so as to be consistent with the Plan; and the provisions of the Plan shall be
deemed to be controlling in the event that any provision hereof should appear to
be inconsistent therewith. The Optionee hereby acknowledges receipt of a copy of
the Plan from the Corporation.
15. Severability. Whenever possible, each provision of this Agreement
shall be interpreted in such a manner as to be valid and enforceable under
applicable law, but if any provision of this Agreement is determined to be
unenforceable, invalid or illegal, the validity of any other provisions or part
thereof, shall not be affected thereby and this Agreement shall continue to be
binding on the parties hereto as if such unenforceable, invalid or illegal
provision or part thereof had not been included herein.
16. Modification of Agreement; Waiver. This Agreement may be modified,
amended, suspended, or terminated, and any terms, representations or conditions
may be waived, but only by written instrument signed by each of the parties
hereto. No waiver hereunder shall
constitute a waiver with respect to any subsequent occurrence or other
transaction hereunder or of any other provision hereof.
17. Captions and Headings; Gender and Number. Captions and paragraph
headings used herein are for convenience only, do not modify or affect the
meaning of any provision herein, are not a part hereof, and shall not serve as a
basis for interpretation or in construction of this Agreement. As used herein,
the masculine gender shall include the feminine and neuter, the singular number
the plural, and vice versa, whenever such meanings are appropriate.
18. Governing Law; Venue and Jurisdiction. Without regard to the
principles of conflicts of laws, the laws of the State of North Carolina shall
govern and control the validity, interpretation, performance, and enforcement of
this Agreement. The parties hereto agree that any suit or action relating to
this Agreement shall be instituted and prosecuted in the courts of the County of
Gaston, State of North Carolina, and each party hereby does waive any right or
defense relating to such jurisdiction and venue.
19. Binding Effect. This Agreement shall be binding upon and shall
inure to the benefit of the Corporation, its successors and assigns, and shall
be binding upon and inure to the benefit of the Optionee, his heirs, legatees,
personal representatives, executors, and administrators.
20. Entire Agreement. This Agreement constitutes and embodies the
entire understanding and agreement of the parties hereto and, except as
otherwise provided hereunder, there are no other agreements or understandings,
written or oral, in effect between the parties hereto relating to the matters
addressed herein.
21. Counterparts. This Agreement may be executed in any number of
counterparts, each of which when executed and delivered shall be deemed an
original, but all of which taken together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the Corporation, has caused this instrument to be
executed in its corporate name by its Chairman and attested by its Secretary or
one of its Assistant Secretaries, and its corporate seal to be hereto affixed,
all by authority of its Board of Directors first duly given, and the Optionee
has hereunto set his or her hand and adopted as his or her seal the typewritten
word "SEAL" appearing beside his or her name, all done this the day and year
first above written.
UNITED COMMUNITY BANCORP
By: ___________________________________
___________________, Chairman
ATTEST:
__________________________________
_____________, Corporate Secretary
[CORPORATE SEAL]
OPTIONEE
By: ________________________________(SEAL)
_____________________
EXHIBIT A
NOTICE OF EXERCISE OF
INCENTIVE STOCK OPTION
To: The Compensation Committee of the Board of Directors of
United Community Bancorp
The undersigned hereby elects to purchase ___________ whole shares of Common
Stock of United Community Bancorp (the "Corporation") pursuant to the Incentive
Stock Option granted to the undersigned in that certain Incentive Stock Option
Agreement between the Corporation and the undersigned dated the _________ day of
________________, _________. The aggregate purchase price for such Shares is
$__________ which amount is (i) being tendered herewith, (ii) will be tendered
on or before __________________, _________ (cross out provision which does not
apply) in (a) cash, (b) issued and outstanding shares of Common Stock (cross out
provision which does not apply). The effective date of this election shall be
___________, _______ or the date of receipt of this Notice by the Corporation if
later.
Executed this ____________________ day of _____________________, _______, at
___________________.
_______________________________________
_______________________________________
_______________________________________
(Social Security Number)