Exhibit 99.1
PROGRESS FINANCIAL CORPORATION
AMENDED AND RESTATED
1996 EMPLOYEE STOCK PURCHASE PLAN
ARTICLE I - ESTABLISHMENT OF PLAN
Progress Financial Corporation ("Company") hereby
establishes this 1996 Employee Stock Purchase Plan (the "Plan")
on the terms and conditions hereinafter set forth. The Company
intends that this Plan shall qualify as an "employee stock
purchase plan" under Section 423 of the Internal Revenue Code of
1986 (the "Code") (including any future amendments or
replacements of such section), and the Plan shall be so
construed. Any term not expressly defined in the Plan but
defined for purposes of Section 423 of the Code shall have the
same definition herein.
ARTICLE II - PURPOSE
The Plan is established to provide eligible employees of the
Company and any current or future parent and/or subsidiary
corporation(s) of the Company (collectively referred to as the
"Company") with an opportunity through payroll deductions to
acquire a proprietary interest in the Company by the purchase of
common stock, par value $1.00 per share of the Company ("Common
Stock"). For purposes of this Plan, a parent corporation and a
subsidiary corporation shall be as defined in Sections 424(e) and
424(f) of the Code. Because a participant in the Plan (a
"Participant") may withdraw the Participant's accumulated payroll
deductions and terminate participation in the Plan at any time
during an Offering Period as defined below, the Participant is,
in effect, given an option which may or may not be exercised
during any Offering Period.
ARTICLE III - SHARES SUBJECT TO THE PLAN
The number of shares which may be issued under this Plan
shall be 300,000 (the "Shares"); and such Shares may be
authorized but unissued shares of Common Stock or shares of
Common Stock reacquired by the Company from stockholders of the
Company in public or private transactions. In the event that any
option granted under the Plan (an "Option") for any reason
expires or is terminated, the Shares allocable to the unexercised
portion of such Option may again be the subject of an Option.
ARTICLE IV - ADMINISTRATION
The Plan shall be administered by a duly appointed committee
of the Board of directors of the Company having such powers as
shall be specified by the Board ("Committee"). All questions of
interpretation of the Plan or of any Options shall be determined
by the Committee and shall be final and binding upon all persons
having an interest in the Plan and/or any Option, unless
otherwise determined by the Board. Subject to the provisions of
the Plan, the Committee shall determine all of the relevant terms
and conditions of Options granted pursuant to the Plan; provided,
however, that all
Participants granted Options pursuant to the Plan shall have the
same rights and privileges within the meaning of Section 423(b)(5)
of the Code. No member of the Board of Directors or the Committee
shall be liable for any action or determination made in good faith
with respect to the Plan or any Option granted under it. All expenses
incurred in connection with the administration of the Plan shall be
held by the Company.
ARTICLE V - ELIGIBILITY
Any employee of the Company who is employed by the Company
for at least twenty-five (25) hours per week on a regular basis
is eligible to participate in the Plan, provided that employees
who own or hold options to purchase or who, as a result of
participation in this Plan, would own or hold options to purchase
stock of the Company possessing five percent (5%) or more of the
total combined voting power or value of all classes of stock of
the Company within the meaning of Section 423(b)(3) of the Code
shall not be eligible to participate in the Plan.
ARTICLE VI - OFFERING DATES
(a)Individual Offering Periods. The Committee may establish
up to two Offering Periods during which payroll deductions will
be accumulated under the Plan during any calendar year, provided,
however, that there may be only one Offering Period outstanding
at any one time. The Committee shall announce an Offering Period
by taking actions reasonably expected to notify all employees of
the Offering Period. Each Offering Period shall include only
regular paydays falling within it.
(b)Governmental Approval; Stockholder Approval.
Notwithstanding any other provision to the contrary, any Option
granted pursuant to the Plan shall be subject, in addition to the
requirements specified in Article XX, to (i) obtaining all
necessary governmental approvals and/or qualifications of the
sale and/or issuance of the Options and/or Shares, and (ii) in
the case of Options relating to an Offering Period after an
amendment to the Plan, obtaining any necessary approval of the
stockholders of the Company required by Article XIX.
ARTICLE VII - PARTICIPATION IN THE PLAN
(a)Initial Participation. An eligible employee shall become
a Participant in an Offering Period after satisfying the
eligibility requirements by delivering to the Company's Human
Resources Department a subscription agreement authorizing payroll
deductions not less than ten (10) business days prior to such
Offering Period. An eligible employee who does not deliver a
subscription agreement to the Company's Human Resources
Department ten (10) business days prior to an Offering Period
after becoming eligible to participate in the Plan shall not
participate in the Plan for that Offering Period or for any
subsequent Offering Period unless such employee subsequently
enrolls in the Plan by filing the subscription agreement with the
Company at least ten (10) business days prior to a subsequent
Offering Period.
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(b)Continued Participation. A Participant shall
automatically participate in each successive Offering Period
until such time as such Participant withdraws from the Plan
pursuant to Article XII. A Participant is not required to file
any additional subscription agreements for subsequent Offering
Periods in order to continue participation in the Plan. A
Participant may not concurrently participate in more than one
Offering Period.
ARTICLE VIII - PURCHASE PRICE
(a)Purchase Price. The purchase price at which Shares shall
be sold in any Offering Period under the Plan shall be set by the
Committee; provided, however, that the purchase price shall not
be less than ninety-five percent (95%) of the lesser of (a) the
fair market value of the Shares on the first business day in the
Offering Period, or (b) the fair market value of the Shares on
the last business day of such Offering Period. Unless otherwise
provided by the Committee prior to the commencement of an
Offering Period, the purchase price for the Offering Period shall
be ninety-five percent (95%) of the lesser of (a) the fair market
value of the Shares on the first business day in the Offering
Period or (b) the fair market value of the Shares on the last
business day of such Offering Period.
(b)Fair Market Value. The fair market value of a Share
shall be the closing sale price on the date in question of a
share of Common Stock on the principal United States securities
exchange registered under the Securities Exchange Act of 1934 on
which such stock is listed, or, if such stock is not listed on
any such exchange, the highest closing bid quotation with respect
to a share of such stock on the date in question on the National
Association of Securities Dealers Automated Quotation System or
any system then in use, or if no such quotations are available,
the fair market value on the date in question of a Share shall be
as determined by the Committee in good faith.
ARTICLE IX - PAYMENT OF PURCHASE PRICE; PAYROLL DEDUCTIONS
(a)Accumulation of Payroll Deductions. The purchase price
of the Shares shall be accumulated by payroll deductions over the
Offering Period. Deductions made from the Participant's pay on
each payday during the Offering Period shall not be less than one
percent (1%) nor more than ten percent (10%) of the Participant's
total compensation for that pay period. Total compensation means
total taxable compensation paid to an employee and reflected on
such employee's Internal Revenue Service Form W-2, as prepared by
the Company, including salary, commissions, bonuses, overtime
pay, shift differentials, vacation pay and holiday pay, and shall
also include any contributions made by the Company on behalf of
an employee pursuant to a salary deferral agreement pursuant to
Code Section 401 and/or Code Section 125. Payroll deductions
shall commence on the first payday during the Offering Period and
shall continue to the end of the Offering Period unless sooner
altered or terminated as provided in the Plan.
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(b)Change in Payroll Deduction Rate. A Participant may not
decrease or increase the rate of payroll deductions during an
Offering Period. A Participant may increase or decrease the rate
of payroll deductions for any subsequent Offering Period by
filing with the Company a new authorization for payroll
deductions not less than ten (10) business days prior to such
subsequent Offering Period.
(c)Participant Accounts. Individual accounts shall be
maintained for each Participant in the Plan. All payroll
deductions made for a Participant shall be credited to the
Participant's account under the Plan and shall be deposited with
the general funds of the Company. Interest shall be paid on, and
added to, such amounts at the same rate and in the same manner as
interest is paid on a regular passbook savings account with the
Company. All payroll deductions received or held by the Company
may be used by the Company for any corporate purpose.
ARTICLE X - PURCHASE OF SHARES
(a)Purchase. On the last business day of an Offering
Period, a Participant shall automatically purchase, subject to
the limitations in Article X(b) and X(c) below, that number of
Shares, including fractional Shares, that can be acquired based
on funds credited to the Participant's account pursuant to
Article IX(c) at the purchase price established for the Offering
Period pursuant to Article VIII. No Shares shall be purchased on
behalf of a Participant whose participation in the Plan has
terminated prior to the last day of the Offering Period.
(b)Share Limitation. The maximum number of Shares which a
Participant may purchase in each Offering Period shall be that
number of Shares arrived at by dividing the total amount of the
Participant's expected payroll deductions during the Offering
Period by the purchase price of the shares as shall be set by the
Committee pursuant to Article VIII hereof.
(c)Fair Market Value Limitation. No Participant shall be
granted an Option which permits his or her rights to purchase
shares of Common Stock under this Plan and any similar plans of
the Company to accrue at a rate which exceeds $25,000 of fair
market value of such shares (determined at the time such Option
is granted) for each calendar year in which such Option is
outstanding at any time, as determined in accordance with Section
423(b)(8) of the Code.
(d)Rights as a Stockholder and Employee. A Participant
shall have no rights as a stockholder by virtue of the
Participant's participation in the Plan until shares are
purchased and recorded to a Participant's account pursuant to the
exercise of the Participant's Option. Unless otherwise
determined by the Committee, no adjustment shall be made for
dividends or distributions or other rights for which the record
date is prior to the date such stock is purchased. Nothing
herein shall confer upon a Participant any right to continue in
the employ of the Company or interfere in any way with any right
of the Company to terminate the Participant's employment at any
time.
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ARTICLE XI - LEGENDS
Any certificate representing any Shares issued hereunder
shall have endorsed thereon such legends as may be designated by
the Company.
ARTICLE XII - WITHDRAWAL
(a)Notice of Withdrawal. A Participant may withdraw from
the Plan by signing and delivering to the Company's Human
Resources Department a written notice of withdrawal on a form
provided by the Company for such purpose. Such withdrawal may be
elected at any time prior to the end of an Offering Period.
(b)Return of Payroll Deductions; Subsequent Participant.
Upon withdrawal from the Plan, the withdrawn Participant's
accumulated payroll deductions shall be returned to the
Participant and the Participant's interest in the Plan shall
terminate. In the event a Participant voluntarily elects to
withdraw from the Plan, the Participant may not resume
participation in the Plan during the same Offering Period, but
may participate in any succeeding Offering Period under the Plan
by filing a new authorization for payroll deductions in the same
manner as set forth above for initial participation in the Plan.
(c)Issuance of Share Certificates. A Participant may
withdraw any number of whole Shares held in the Plan at any time
by notifying the Company's Human Resources Department, in
writing. The transfer agent will issue the Participant a
certificate for the number of whole Shares requested, and will
retain any whole or fractional Shares in the Participant's
account in the Plan if the Participant continues participation in
the Plan. If a Participant makes a complete withdrawal from the
Plan, the transfer agent will issue the Participant a share
certificate for all whole Shares held in a Participant's account
and remit any fractional share interest in cash.
ARTICLE XIII - TERMINATION OF EMPLOYMENT
Termination of a Participant's employment with the Company
for any reason, including retirement or death or the failure of a
Participant to remain an eligible employee, shall terminate the
Participant's participation in the Plan immediately. In such
event, the payroll deductions credited to the Participant's
account shall be returned to the Participant or, in the case of
the Participant's death, to the Participant's legal
representative, and all rights under the Plan shall terminate. A
Participant whose participation has been so terminated may again
become eligible to participate in the Plan by again satisfying
the requirements of Article V.
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ARTICLE XIV - REPAYMENT OF PAYROLL DEDUCTIONS WITH INTEREST
In the event a Participant's interest in the Plan is
terminated, the Company shall promptly deliver to the Participant
the payroll deductions credited to the Participant's account,
with interest as provided herein.
ARTICLE XV - CAPITAL CHANGES
In the event of changes in the Common Stock of the Company
due to stock dividends or other changes in capitalization, or in
the event of any merger, sale or any other reorganization,
appropriate adjustments shall be made by the Company in the
Shares subject to purchase and in the purchase price per share.
ARTICLE XVI- NONASSIGNABILITY
Only the Participant may elect to exercise the Participant's
Option by continuing participation in the Plan, and no rights or
accumulated payroll deductions of any Participant under the Plan
may be pledged, assigned or transferred for any reason and any
such attempt may be treated by the Company as an election by the
Participant to withdraw from the Plan.
ARTICLE XVII - REPORTS
Each Participant shall receive promptly after the last day
of each Offering Period a report of the Participant's account
setting forth the total payroll deductions accumulated, the
number of Shares purchased and the remaining cash balance, if
any, to be refunded or applied to a succeeding Offering Period
pursuant to Article X(a).
ARTICLE XVIII - PLAN TERM
This Plan will continue until terminated by the Board or
until all of the Shares reserved for issuance under the Plan have
been issued, whichever shall first occur.
ARTICLE XIX - AMENDMENT OR TERMINATION OF THE PLAN
The Board may at any time amend or terminate the Plan,
except that such termination cannot affect Options previously
granted under the Plan, nor may any amendment make any change in
an Option previously granted which would adversely affect the
right of any Participant, nor may any amendment be made without
approval of the stockholders of the Company within twelve (12)
months of the adoption of such amendment if such amendment would
authorize the sale of more shares than are authorized for
issuance under the Plan or would change the designation of
corporations whose employees may be offered Options under the
Plan. Notwithstanding any other provision of the Plan to the
contrary, in the event of an amendment to the Plan which affects
the
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rights or privileges of Options to be offered under the Plan,
each Participant with an outstanding Option shall have the right
to exercise such outstanding Option on the effective date of the
amendment and to participate in the Plan for the remaining term
of such outstanding Option pursuant to the terms and conditions
of the Plan as amended. If in accordance with the preceding
sentence a Participant elects to exercise such outstanding Option
and to commence participation in the Plan as amended on the
effective date of such amendment, the Participant shall be deemed
to have received a new Option on such effective date.
ARTICLE XX - APPROVAL OF STOCKHOLDERS
This Plan shall be subject to approval by the holders of the
Common Stock of the Company at a duly called meeting of
stockholders, which approval must occur within the period ending
twelve months after the date on which this Plan was adopted by
the Board of Directors. In the event that the approval of the
stockholders is not received before the last day of the first
Offering Period, any and all Options granted on the first
business day of the first Offering Period shall be rescinded, and
the Company shall promptly refund the balance of each
participating eligible employee's deductions, with interest as
provided herein.
ARTICLE XXI - GOVERNING LAW
To the extent not governed by Federal law, this Plan shall
be construed under the laws of the state of Delaware.
This Plan was amended by the Board of Directors of the Company on
January 22, 2002 to increase the number of authorized shares
available pursuant to the Plan and such amendment was approved by
the stockholders at the annual meeting of stockholders on April
23, 2002.
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