Form of Incentive Stock Option Agreement
Exhibit 10.3
| Option No.: |
SB ONE BANCORP
2019 EQUITY INCENTIVE PLAN
Incentive Stock OPTION AGREEMENT
COVER SHEET
SB One Bancorp, a New Jersey corporation (the “Company”), hereby grants an option (the “Option”) to purchase shares of its common stock, no par value per value (the “Stock”), to the Grantee named below, subject to the vesting and other conditions set forth below. Additional terms and conditions of the grant are set forth in this cover sheet and in the attached Incentive Stock Option Agreement (collectively, the “Agreement”) and in the Company’s 2019 Equity Incentive Plan (as amended from time to time, the “Plan”).
| Grantee’s Name: | ||
| Grant Date: | ||
| Number of Shares of Stock Covered by the Option: | ||
| Option Price per Share of Stock:1 | $ | |
| Vesting Start Date: | ||
| Vesting Schedule: |
By your signature below, you agree to all of the terms and conditions described in the Agreement and in the Plan. You acknowledge that you have carefully reviewed the Plan and agree that the Plan will control in the event any provision of this Agreement should appear to be inconsistent with the Plan.
| Grantee: | Date: | ||||
| (Signature) | |||||
| Company: | Date: | ||||
| (Signature) | |||||
| Name: | |||||
| Title: |
Attachment
This is not a share certificate or a negotiable instrument.
1Note to Draft: Must be At least 100% of the Fair Market Value of a share of Stock on the Grant Date or 110% of the Fair Market Value on the Grant Date if the Grantee is a Ten Percent Shareholder
SB ONE BANCORP
2019 EQUITY INCENTIVE PLAN
Incentive Stock OPTION AGREEMENT
| Incentive Stock Option | This Agreement evidences an award of an Option exercisable for that number of shares of Stock set forth on the cover sheet of this Agreement and subject to the vesting and other conditions set forth in this Agreement and in the Plan.
This Option is intended to be an “incentive stock option” under Section 422 of the Code and will be interpreted accordingly. If you cease to be an employee of the Company, its parent, or a subsidiary (an “Employee”) but continue to provide Service, this Option will be deemed a Nonqualified Stock Option as of the date three (3) months and one day after you cease to be an Employee. In addition, to the extent that all or part of this Option exceeds the “$100,000 per year limitation” rule of Section 422(d) of the Code, this Option or the lesser excess part will be deemed to be a Nonqualified Stock Option. | |
| Vesting | This Option is exercisable only before it expires and then only with respect to the vested portion of the Option.
The Option will vest in accordance with the vesting schedule shown on the cover sheet, so long as you continue in Service on each applicable vesting date set forth on the cover sheet. Fractional shares shall be rounded to the nearest whole share but, if applicable, shall be rounded up or down on the last applicable vesting date so that you are eligible to vest in the total number of shares of Stock covered by the Option; provided, you may not vest in more than the number of shares of Stock covered by the Option, as set forth on the cover sheet of this Agreement.
Except as provided under “Death” or “Disability” below, no additional shares of Stock will vest after your Service has terminated for any reason. | |
| Term | Notwithstanding anything in this Agreement to the contrary, your Option will expire in any event at the close of business at Company headquarters on the day before the tenth (10th) anniversary (or, if you are a Ten Percent Shareholder, on the day before the fifth (5th) anniversary) of the Grant Date, as shown on the cover sheet.
Your Option will expire earlier if your Service terminates, as described herein. | |
| Regular Termination | If your Service terminates for any reason other than death, Disability, or Cause, then your Option will expire at the close of business at Company headquarters on the thirtieth (30th) day after your termination of Service. | |
| Termination for Cause | If your Service is terminated for Cause, you will immediately forfeit all rights to your Option (whether vested or unvested), and the Option will immediately expire. You will be prohibited from exercising the Option from and after the time of such termination of Service. | |
| Death | If your Service terminates because of your death, then your Option will become fully vested as of your date of death and will expire at the close of business at Company headquarters on the date twelve (12) months after your date of death. During that twelve (12)-month period, your estate or heirs may exercise your Option. | |
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| Disability | If your Service terminates because of your Disability, then your Option will become fully vested as of the date of your termination of Service and will expire at the close of business at Company headquarters on the date six (6) months after the date of your termination of Service. | |
| Leaves of Absence | For purposes of this Agreement, your Service does not terminate when you go on a bona fide employee leave of absence that was approved by the Company or an Affiliate in writing, if the terms of the leave provide for continued Service crediting or when continued Service crediting is required by applicable law. However, your Service will be treated as terminating ninety (90) days after you went on employee leave, unless your right to return to active work is guaranteed by law or by a contract. Your Service terminates in any event when the approved leave ends unless you immediately return to active employee work. The Company determines, in its sole discretion, which leaves count for this purpose and when your Service terminates for all purposes under the Plan. | |
| Forfeiture of Unvested Option | Unless the termination of your Service triggers accelerated vesting or other treatment of your Option pursuant to the terms of this Agreement, the Plan, or any other written agreement between the Company or Affiliate and you, you will automatically forfeit to the Company those portions of the Option that have not yet vested in the event your Service terminates for any reason. | |
| Notice of Exercise | The Option may be exercised, in whole or in part, to purchase a whole number of vested shares of Stock of not less than one hundred (100) shares, unless the number of vested shares of Stock purchased is the total number available for purchase under the Option, by following the procedures set forth in the Plan and in this Agreement.
When you wish to exercise this Option, you must exercise in a manner required or permitted by the Company.
If someone else wants to exercise this Option after your death, that person must prove to the Company’s satisfaction that he or she is entitled to do so. | |
| Form of Payment | When you exercise your Option, you must include payment of the Option Price indicated on the cover sheet for the shares of Stock you are purchasing. Payment may be made in one (or a combination) of the following forms:
· Cash, your personal check, a cashier’s check, a money order, or another cash equivalent acceptable to the Company. · Shares of Stock that are owned by you and that are surrendered to the Company. The Fair Market Value of the shares of Stock as of the effective date of the Option exercise will be applied to the Option Price. · By delivery (on a form prescribed by the Company) of an irrevocable direction to a licensed securities broker acceptable to the Company to sell shares of Stock and to deliver all or part of the sale proceeds to the Company in payment of the aggregate Option Price and any withholding taxes (if approved in advance by the Committee or the Board if you are either an executive officer or a director of the Company). |
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| Evidence of Issuance | The issuance of the shares of Stock upon exercise of this Option will be evidenced in such a manner as the Company, in its discretion, will deem appropriate, including, without limitation, book-entry or direct registration (including transaction advices) or the issuance of one or more share certificates. | |
| Withholding Taxes | You agree as a condition of this grant that you will make acceptable arrangements to pay any withholding or other taxes that may be due as a result of the Option exercise or sale of shares of Stock acquired under this Option. In the event that the Company or any Affiliate determines that any federal, state, local, or foreign tax or withholding payment is required relating to the exercise of this Option or sale of shares of Stock arising from this Option, the Company or any Affiliate will have the right to require such payments from you or withhold such amounts from other payments due to you from the Company or any Affiliate (including withholding the delivery of vested shares of Stock otherwise deliverable upon exercise of this Option). | |
| Transfer of Option | During your lifetime, only you (or, in the event of your legal incapacity or incompetency, your guardian or legal representative) may exercise the Option. The Option may not be sold, assigned, transferred, pledged, hypothecated, or otherwise encumbered, whether by operation of law or otherwise, nor may the Option be made subject to execution, attachment, or similar process. If you attempt to do any of these things, this Option will immediately become forfeited. | |
| Retention Rights | This Agreement and the grant evidenced by this Agreement do not give you the right to be retained or employed by the Company or any Affiliate in any capacity. Unless otherwise specified in an employment or other written agreement between the Company or any Affiliate and you, the Company and any Affiliate reserve the right to terminate your Service at any time and for any reason. | |
| Stockholder Rights | You, or your estate or heirs, have no rights as a stockholder of the Company until the shares of Stock have been issued upon exercise of your Option and either a certificate evidencing your shares of Stock have been issued or an appropriate entry has been made on the Company’s books. No adjustments are made for dividends, distributions, or other rights if the applicable record date occurs before your certificate is issued (or an appropriate book entry is made), except as described in the Plan.
Your Option will be subject to the terms of any applicable agreement of merger, liquidation, or reorganization in the event the Company is subject to such corporate activity. | |
| Forfeiture of Rights | If you should take actions in violation or breach of or in conflict with (i) an employment agreement, (ii) a non-competition agreement, (iii) an agreement prohibiting solicitation of Employees or clients of the Company or an Affiliate, (iv) a confidentiality obligation with respect to the Company or an Affiliate, or (v) a Company policy or procedure, the Company has the right to cause an immediate forfeiture of the gain, if any, you have realized under this Agreement and your rights to this Option, and the Option will immediately expire. |
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| Clawback | This Option is subject to mandatory repayment by you to the Company to the extent you are or in the future become subject to (i) any Company “clawback” or recoupment policy or (ii) any law, rule, or regulation that requires the repayment by you to the Company of compensation paid by the Company to you in the event that you fail to comply with, or violate, the terms or requirements of such policy or law, rule, or regulation.
If the Company is required to prepare an accounting restatement due to the material noncompliance of the Company, as a result of misconduct, with any financial reporting requirement under the securities laws and you knowingly engaged in the misconduct, were grossly negligent in engaging in the misconduct, knowingly failed to prevent the misconduct, or were grossly negligent in failing to prevent the misconduct, you will reimburse the Company the amount of any payment in settlement of this Option earned or accrued during the twelve (12)-month period following the first public issuance or filing with the Securities and Exchange Commission (whichever first occurred) of the financial document that contained such material noncompliance. | |
| Applicable Law | This Agreement will be interpreted and enforced under the laws of the State of New Jersey, other than any conflicts or choice of law rule or principle that might otherwise refer construction or interpretation of this Agreement to the substantive law of another jurisdiction. | |
| The Plan | The text of the Plan is incorporated into the Agreement by reference.
Certain capitalized terms used in the Agreement are defined in the Plan and have the meaning set forth in the Plan.
This Agreement and the Plan constitute the entire understanding between you and the Company regarding this Option. Any prior agreements, commitments, or negotiations concerning this grant are superseded; except that any written employment, consulting, confidentiality, non-solicitation, and/or severance agreement between you and the Company or any Affiliate will supersede this Agreement with respect to its subject matter. | |
| Data Privacy | To administer the Plan, the Company may process personal data about you. Such data includes, but is not limited to, information provided in this Agreement and any changes thereto, other appropriate personal and financial data about you, such as your contact information and payroll information, and any other information that might be deemed appropriate by the Company to facilitate the administration of the Plan.
By accepting this grant, you give explicit consent to the Company to process any such personal data. | |
| Consent to Electronic Delivery | The Company may choose to deliver certain statutory materials relating to the Plan in electronic form. By accepting this grant, you agree that the Company may deliver the Plan prospectus and the Company’s annual report to you in an electronic format. If at any time you would prefer to receive paper copies of these documents, as you are entitled to, the Company would be pleased to provide copies. Please contact the Company’s Human Resources Department to request paper copies of these documents. |
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| Code Section 409A and 422 | The Option is intended to be exempt from, or to comply with, Code Section 409A to the extent subject thereto, and, accordingly, to the maximum extent permitted, this Agreement will be interpreted and administered to be in compliance with Code Section 409A. Notwithstanding anything to the contrary in the Plan or this Agreement, neither the Company, its Affiliates, the Board, nor the Committee will have any obligation to take any action to prevent the assessment of any excise tax or penalty on you under Code Section 409A, and neither the Company, an Affiliate, the Board, the Committee, nor any person acting on behalf of the Company, an Affiliate, the Board, or the Committee will be liable to you or to your estate or beneficiary by reason of any acceleration of income or any additional tax (including any interest and penalties), asserted by reason of the failure of the grant to satisfy the requirements of Code Section 422 or Code Section 409A or otherwise asserted with respect to the grant. |
By signing the Agreement, you agree to all of the terms and conditions
described above and in the Plan.
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