Exhibit 4.4
RIDGESTONE FINANCIAL SERVICES, INC.
1996 STOCK OPTION PLAN
NON-QUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT, made and entered into as of this ___________ day
of ____________, _____, by and between Ridgestone Financial Services,
Inc., a Wisconsin corporation (the "Company"), and
____________________________________ (the "Optionee").
W I T N E S S E T H :
WHEREAS, the Company has adopted the Ridgestone Financial
Services, Inc. 1996 Stock Option Plan (the "Plan"), the terms of which, to
the extent not stated herein, are specifically incorporated by reference
in this Agreement; and
WHEREAS, one of the purposes of the Plan is to permit the
granting of options to purchase shares of the Company's Common Stock, no
par value (the "Common Stock"), to certain key employees of the Company
and its affiliates; and
WHEREAS, the Optionee is now employed by the Company or an
affiliate of the Company in a key capacity, and the Company desires the
Optionee to remain in such employ, and to secure or increase his or her
stock ownership in the Company in order to increase his or her incentive
and personal interest in the welfare of the Company.
NOW, THEREFORE, in consideration of the premises and of the
covenants and agreements herein set forth, the parties hereby mutually
covenant and agree as follows:
1. Grant of Option. Subject to the terms and conditions of
the Plan and this Agreement, the Company grants to the Optionee an option
(the "Option") to purchase from the Company all or any part of the
aggregate amount of _________ shares of Common Stock (the "Optioned
Shares"). The Option is intended to constitute a non-qualified stock
option and shall not be treated as an incentive stock option within the
meaning of Section 422 of the Internal Revenue Code of 1986, as amended.
2. Option Price. The price to be paid for the Optioned Shares
shall be $ per share, which has been determined by the Personnel
Committee of the Board of Directors of the Company (the "Committee") to
be not less than 100% of the fair market value of such stock on the date
of grant of the Option.
3. Exercisability and Termination of Option. Except as
provided herein, the Option may be exercised only while the Optionee is an
employee of either the Company or an affiliate of the Company and only if
the Optionee has been continuously so employed since the date of grant of
the Option. Subject to Paragraph 6, the Option may be exercised by the
Optionee in whole, or in part from time to time, during the period
beginning __________________ and ending __________________, but only in
accordance with the following schedule:
Cumulative Percentage of Shares
Subject to Option Which May be Purchased
Elapsed Period of Time (which number of shares shall be rounded
After Date Option is Granted down to the nearest whole number)
Less than One (1) Year 0%
One (1) Year 33-1/3%
Two (2) Years 66-2/3%
Three (3) Years 100%
provided, however, that notwitstanding the foregoing vesting schedule, the
Option shall become immediately exercisable in full following a Change of
Control of the Company (as defined below). A Change in Control of the
Company shall be deemed to have occurred if:
(i) any person (other than any employee benefit plan of
the Company or of any subsidiary of the Company, any person
organized, appointed or established pursuant to the terms of any
such benefit plan or any trustee, administrator or fiduciary of
such a plan) is or becomes the beneficial owner (as such term is
defined in Rule 13d-3 of the Exchange Act (or any successor
provision thereto)), directly or indirectly, of securities of
the Company representing at least 30% of the combined voting
power of the Company's then outstanding securities;
(ii) there shall be consummated (x) any merger of the
Company or share exchange involving the Company in which the
Company is not the continuing or surviving corporation or
pursuant to which shares of the Company's Common Stock would be
converted into cash, securities or other property, other than a
merger or share exchange involving the Company in which each of
the holders of the Company's Common Stock immediately prior to
the merger or share exchange have the same proportionate
ownership of common stock of the surviving corporation
immediately after the merger or share exchange, or (y) any sale,
lease, exchange or other transfer (in one transaction or a
series of related transactions) of all, or substantially all, of
the assets of the Company;
(iii) the shareholders of the Company approve any plan
or proposal for the liquidation or dissolution of the Company;
or
(iv) one-half or more of the members of the Board of
Directors of the Company are not Continuing Directors (as
defined below). For purposes of this Agreement, the term
"Continuing Director" means any member of the Board of Directors
of the Company who was a member of such Board as of the date of
this Agreement, and any successor of a Continuing Director who
is recommended to succeed a Continuing Director by a majority of
the Continuing Directors then on the Board.
4. Manner of Exercise and Payment. Subject to the provisions
of Paragraph 3 hereof, the Option may be exercised only by written notice
to the Company, served upon the Secretary of the Company at its office at
Brookfield, Wisconsin, specifying the number of shares in respect to which
the Option is being exercised. Subject to the provisions of this
Agreement, the notice of exercise must be accompanied by full payment of
the option price of the shares being purchased (i) in cash or by certified
check or bank draft; (ii) by tendering previously acquired shares of
Common Stock (valued at their "fair market value" as determined in the
manner provided below); or (iii) by any combination of the means of
payment set forth in subparagraphs (i) and (ii). For purposes of this
Paragraph 4, the "fair market value" of a share of Common Stock shall be
equal to the last per share sale or closing price of such Common Stock as
reflected on the over-the-counter market (or The Nasdaq Stock Market or
such other exchange on which shares of Common Stock are then traded if
such market is the principal market for the shares of Common Stock) on the
trading day next preceding the date of exercise; provided, however, if no
trading occurred on the trading date next preceding the exercise date,
then the "fair market value" per share of Common Stock shall be determined
with reference to the next preceding date on which the Common Stock was
traded. For purposes of subparagraphs (ii) and (iii) above, the term
"previously acquired shares of Common Stock" shall only include Common
Stock owned by the Optionee prior to the exercise of the Option and shall
not include shares of Common Stock which are being acquired pursuant to
the exercise of the Option. No shares shall be issued until full payment
therefor has been made.
5. Nontransferability of the Option. The Option shall not be
assignable, alienable, saleable or transferable by the Optionee other than
by will or the laws of descent and distribution; provided, however, that
the Optionee shall be entitled, in the manner provided in Paragraph 9
hereof, to designate a beneficiary to exercise his or her rights, and to
receive any shares of Common Stock issuable, with respect to the Option
upon the death of the Optionee. The Option may be exercised during the
lifetime of the Optionee only by the Optionee or, if permitted by
applicable law, the Optionee's guardian or legal representative.
6. Exercisability After Termination of Employment.
(a) Death or Disability; Retirement. In the event the Optionee
dies while he or she is in the employ of the Company or any affiliate or
if his or her employment is terminated by reason of his or her retirement
on or after attaining age 62 or by reason of his or her disability, the
Option, to the extent not theretofore exercised, may be exercised in full
as follows: (i) by the legal representative of the Optionee (who for
purposes of this Agreement may be the Optionee's beneficiary as designated
pursuant to Paragraph 9) at any time within twelve months after the date
of the Optionee's death while in the employ of the Company or any
affiliate; or (ii) by the Optionee or his or her legal representative or
guardian at any time within twelve months after the termination of the
Optionee's employment by reason of retirement on or after attaining age 62
or by reason of his or her disability, but in no event under subparagraphs
(i) or (ii) later than ten years after the date of grant of the Option.
(b) Voluntary Termination; Termination for Cause. In the event
the Optionee voluntarily terminates his or her employment with the Company
and any affiliates (other than in connection with the Optionee's
retirement after attaining age 62) or if his or her employment is
terminated for Cause (as hereinafter defined), the Option, to the extent
not theretofore exercised, shall immediately terminate upon such
termination of employment. For purposes of this Agreement, the term Cause
shall mean any termination of the Optionee by action of the Board of
Directors of the Company or any affiliate because of the failure of the
Optionee to fulfill his or her obligations with the Company or any
affiliate thereof or because of serious willful misconduct by the Optionee
in respect of his or her obligations with the Company or any affiliate
thereof which would cause a substantial and demonstrable detriment to the
Company, as, for example, the commission by the Optionee of a felony or
the perpetration by the Optionee of a common-law fraud against the Company
or any affiliate thereof, or any major material action (i.e., not
procedural or operational differences) taken against the expressed
directive of the Board of Directors of the Company or any affiliate.
(c) Other. In the event that the Optionee is discharged or
leaves the employ of the Company and its affiliates for any reason (other
than the death or disability of the Optionee, the retirement of the
Optionee on or after attaining age 62, the Optionee's voluntary
termination of his or her employment or the termination of the Optionee
for Cause), the Option, to the extent not theretofore exercised but then
permitted under the percentage limitations of Paragraph 3 hereof, may be
exercised by the Optionee or by his or her legal representative or
guardian at any time within three months after the date of termination of
employment upon the tender to the Company, in cash or its equivalent, of
the full purchase price, but in no event later than ten years after the
date of grant of the Option.
7. Tax Withholding. The Company may deduct and withhold from
any cash otherwise payable to the Optionee (whether payable as salary,
bonus or other compensation) such amount as may be required for the
purpose of satisfying the Company's obligation to withhold Federal, state
or local taxes. Further, in the event the amount so withheld is
insufficient for such purpose, the Company may require that the Optionee
pay to the Company upon its demand or otherwise make arrangements
satisfactory to the Company for payment of such amount as may be requested
by the Company in order to satisfy its obligation to withhold any such
taxes.
The Optionee shall be permitted to satisfy the Company's tax
withholding requirements by making a written election (in accordance with
such rules and regulations and in such form as the Committee may
determine) to have the Company withhold shares of Common Stock otherwise
issuable to the Optionee (the "Withholding Election") or to deliver to the
Company shares of Common Stock (the "Delivery Election") in each case
having a fair market value on the date income is recognized (the "Tax
Date") pursuant to the exercise of the Option equal to the amount required
to be withheld. If a Delivery Election is in effect at the time of the
exercise of the Option, the Optionee shall deliver the shares of Common
Stock subject to such Delivery Election on, or as soon as practicable
after, the Tax Date. If the number of shares of Common Stock withheld or
delivered to satisfy withholding tax requirements shall include a
fractional share, the number of shares withheld or delivered shall be
reduced to the next lower whole number and the Optionee shall deliver cash
in lieu of such fractional share, or otherwise make arrangements
satisfactory to the Company for payment of such amount. A Withholding
Election or Delivery Election must be received by the Secretary of the
Company on or prior to the Tax Date.
8. Capital Adjustments Affecting the Common Stock. The number
of Optioned Shares subject hereto and the related per share exercise price
shall be subject to adjustment in accordance with Section 4(b) of the
Plan.
9. Designation of Beneficiary. (a) The person whose name
appears on the signature page hereof after the caption "Beneficiary" or
any successor designated by the Optionee in accordance herewith (the
person who is the Optionee's beneficiary at the time of his or her death
is herein referred to as the "Beneficiary") shall be entitled to exercise
the Option, to the extent it is exercisable, after the death of the
Optionee. The Optionee may from time to time revoke or change his or her
beneficiary without the consent of any prior beneficiary by filing a new
designation with the Committee. The last such designation received by the
Committee shall be controlling; provided, however, that no designation, or
change or revocation thereof, shall be effective unless received by the
Committee prior to the Optionee's death, and in no event shall any
designation be effective as of a date prior to such receipt.
(b) If no such Beneficiary designation is in effect at the time
of the Optionee's death, or if no designated Beneficiary survives the
Optionee or if such designation conflicts with law, the Optionee's estate
acting through his or her legal representative shall be entitled to
exercise the Option, to the extent it is exercisable after the death of
the Optionee. If the Committee is in doubt as to the right of any person
to exercise the Option, the Company may refuse to recognize such exercise,
without liability for any interest or dividends on the Optioned Shares,
until the Committee determines the person entitled to exercise the Option,
or the Company may apply to any court of appropriate jurisdiction and such
application shall be a complete discharge of the liability of the Company
therefor.
10. Transfer Restriction. The shares to be acquired upon
exercise of the Option may not be sold or offered for sale except pursuant
to an effective registration statement under the Securities Act of 1933,
as amended, or in a transaction which, in the opinion of counsel for the
Company, is exempt from the registration provisions of said Act.
11. Status of Optionee. The Optionee shall not be deemed for
any purposes to be a shareholder of the Company with respect to any of the
Optioned Shares except to the extent that the Option shall have been
exercised with respect thereto, the shares shall have been fully paid, and
a stock certificate issued therefor. Neither the Plan nor the Option
shall confer upon the Optionee any right to continue in the employ of the
Company, nor to interfere in any way with the right of the Company to
terminate the employment of the Optionee at any time.
12. Powers of the Company Not Affected. The existence of the
Option shall not affect in any way the right or power of the Company or
its shareholders to make or authorize any or all adjustments,
recapitalizations, reorganizations or other changes in the Company's
capital structure or its business, or any merger or consolidation of the
Company, or any issuance of bonds, debentures, preferred or prior
preference stock ahead of or affecting the Common Stock or the rights
thereof, or dissolution or liquidation of the Company, or any sale or
transfer of all or any part of the Company's assets or business or any
other corporate act or proceeding, whether of a similar character or
otherwise.
13. Interpretation by Committee. As a condition of the
granting of the Option, the Optionee agrees, for himself or herself and
his or her legal representatives or guardians, that this Agreement shall
be interpreted by the Committee and that any interpretation by the
Committee of the terms of this Agreement and any determination made by the
Committee pursuant to this Agreement shall be final, binding and
conclusive.
IN WITNESS WHEREOF, the Company has caused this instrument to be
executed by its duly authorized officers and its corporate seal to be
hereunto affixed, and the Optionee has hereunto affixed his or her hand
and seal as of the day and year first above written.
RIDGESTONE FINANCIAL SERVICES, INC.
By:
[CORPORATE SEAL] Attest:
______________________, Optionee
Beneficiary:
Address of Beneficiary:
Beneficiary's Tax Identification
No.:
