EXHIBIT 10.5
OLD FLORIDA BANK
OFFICERS' AND EMPLOYEES' STOCK OPTION PLAN
ARTICLE I
Definitions
As used herein, the following terms have the meanings hereinafter set
forth unless the context clearly indicates to the contrary:
(a) "Bank" shall mean Old Florida Bank, a Florida
corporation.
(b) "Board" or "Board of Directors" shall mean the board of
directors of the Bank.
(c) "Change of Control" shall be deemed to have occurred if
an entity or person (including a "Group") as defined in Section 13(d)(3) of the
Securities Exchange Act of 1934 which is not a beneficial owner (as defined in
Rule 13d-3 promulgated thereunder) of more than 10% of the outstanding Stock as
of the date the Bank commences a banking business, becomes the beneficial owner
after such date of shares of Bank Stock having 50% or more of the total number
of votes that may be cast for the election of directors of the Bank.
(d) "Code" shall mean the Internal Revenue Code of 1986, as
amended, unless otherwise specifically provided herein.
(e) "Employee" shall mean any individual who is employed with
the Bank as an officer or employee.
(f) "Incentive Stock Option" shall have the meaning given to
it by Section 422 of the Code.
(g) "Nonemployee Director" shall mean a member of the Board
who is not an Employee,
(h) "Nonstatutory Stock Option" shall mean any Option granted
by the Bank pursuant to this Plan which is not an Incentive Stock Option.
(i) "Option" shall mean an option to purchase Stock granted
by the Bank pursuant to the provisions of this Plan.
(j) "Option Price" shall mean the purchase price of each
share of Stock subject to Option, as defined in Section 5.2 hereof.
(k) "Optionee" shall mean an Employee who has received an
Option granted by the Bank hereunder.
(l) "Plan" shall mean this Old Florida Bank Officers' and
Employees' Stock Option Plan.
(m) "Service" shall mean the tenure of an individual as an
Employee of the Bank.
(n) "Stock" shall mean the common stock of the Bank, par
value $5.00 per share, or, in the event that the outstanding shares of Stock are
hereafter changed into or exchanged for shares of a different class of stock or
securities of the Bank or some other corporation, such other stock or
securities.
(o) "Stock Option Agreement" shall mean the agreement between
the Bank and the Optionee under which the Optionee may purchase Stock pursuant
to the Plan.
(p) "Stock Option Committee" shall mean such Board committee
as may be designated by the Board to administer the Plan; provided, however,
that such committee shall be comprised solely of not less than two Nonemployee
Directors, each of whom qualifies as a "Non-Employee Director" (as such term is
used in Rule 16b-3 under the Securities Exchange Act of 1934, as amended).
ARTICLE II
The Plan
2.1 Name. This plan shall be known as the "Old Florida Bank Officers'
and Employees' Stock Option Plan."
2.2 Purpose. The purpose of the Plan is to advance the interests of
the Bank and its shareholders by affording to the Employees of the Bank an
opportunity to acquire or increase their proprietary interest in the Bank by the
grant of Options to such Employees under the terms set forth herein. By thus
encouraging such Employees to become owners of Stock of the Bank, the Bank seeks
to motivate, retain, and attract those highly competent individuals upon whose
judgment, initiative, leadership, and continued efforts the success of the Bank
in large measure depends.
2.3 Effective Date. The Plan shall become effective on the later of
the approval of this Plan by (i) the Florida Department of Banking and Finance,
or (ii) by the holders of a majority of the outstanding shares of Stock.
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2.4 Participants. Only Employees of the Bank shall be eligible to
receive Options under the Plan.
ARTICLE III
Plan Administration
3.1 Stock Option Committee. This Plan shall be administered by the
Stock Option Committee.
3.2 Power of the Stock Option Committee. The Stock Option Committee
shall have full authority and discretion: (a) except with respect to Options
covering the Employees and the shares of Stock specified on Exhibit A attached
hereto, to determine, consistent with the provisions of this Plan, which of the
Employees will be granted Options to purchase any shares of Stock which may be
issued and sold hereunder as provided in Section 4.1 hereof to the extent such
shares are not covered by the Options to be granted to the Employees specified
on Exhibit A attached hereto, the times at which Options shall be granted, and
the number of shares of Stock covered by each Option; (b) to determine whether
the Options granted pursuant to this Plan shall be Incentive Stock Options or
Nonstatutory Stock Options; (c) to construe and interpret the Plan; (d) to
determine the terms and provisions of each respective Stock Option Agreement,
which need not be identical; and (e) to make all other determinations and take
all other actions deemed necessary or advisable for the proper administration of
the Plan. All such actions and determinations shall be conclusively binding upon
all persons for all purposes. Unless otherwise indicated by the Stock Option
Committee, Options granted pursuant to this Plan shall be Incentive Stock
Options.
ARTICLE IV
Shares of Stock Subject to Plan
4.1 Limitations. Subject to adjustment pursuant to the provisions of
Section 4.3 hereof, the number of shares of Stock which may be issued and sold
hereunder pursuant to Stock Option Agreements shall not exceed One hundred
thousand, (100,000) shares. Of the One hundred thousand (100,000) shares of
Stock which may be issued and sold hereunder pursuant to Stock Option Agreements
as provided in the foregoing sentence, Forty Six Thousand shares (46,000)
shares shall be covered by the Options specified on Exhibit A attached hereto,
which Options shall be Incentive Stock Options, and shall be granted to the
Employees (and, as to each such Employee, shall cover the number of shares of
Stock) specified on Exhibit A attached hereto on the Effective Date. Shares
issued pursuant to the exercise of Options may be either authorized and unissued
shares or shares issued and thereafter acquired by the Bank.
4.2 Options Granted Under Plan. Shares of Stock with respect to which
an Option granted hereunder shall have been exercised shall not again be
available for Option hereunder.
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If Options granted hereunder shall terminate for any reason without being wholly
exercised, then the Stock Option Committee shall have the discretion to grant
new Options to Optionees hereunder covering the number of shares to which such
terminated Options related.
4.3 Stock Adjustments; Mergers and Combinations. Notwithstanding any
other provision in this Plan, if the outstanding shares of Stock are increased
or decreased or changed into or exchanged for a different number or kind of
shares or other securities of the Bank or of any other corporation by reason of
any merger, sale of stock, consolidation, liquidation, recapitalization,
reclassification, stock split up, combination of shares, or stock dividend, the
total number of shares set forth in Section 4.1 shall be proportionately and
appropriately adjusted by the Stock Option Committee. If the Bank continues in
existence, the number and kind of shares that are subject to any Option and the
Option Price per share shall be proportionately and appropriately adjusted
without any change in the aggregate price to be paid therefore upon exercise of
the Option. If the Bank will not remain in existence or a majority of its stock
will be purchased or acquired by a single purchaser or group of purchasers
acting together, then the Stock Option Committee may (i) declare that all
Options shall terminate 30 days after the Stock Option Committee gives written
notice to all Optionees of their immediate right to exercise all Options then
outstanding (without regard to limitations on exercise otherwise contained in
the Options), or (ii) notify all Optionees that all Options granted under the
Plan shall apply with appropriate adjustments as determined by the Stock Option
Committee to the securities of the successor corporation to which holders of the
numbers of shares subject to such Options would have been entitled, or (iii)
some combination of aspects of (i) and (ii). The determination by the Stock
Option Committee as to the terms of any of the foregoing adjustments shall be
conclusive and binding.
4.4 Acceleration of Option Exercise. Subject to Section 4.3, upon
dissolution or liquidation of the Bank, any merger or combination in which the
Bank is not a surviving corporation, or sale of substantially all of the assets
of the Bank is involved, or upon any Change of Control, the Optionee shall have
the right to exercise his Option thereafter in whole or in part notwithstanding
the provisions of Section 5.3 hereof, to the extent that it shall not have been
exercised.
ARTICLE V
Options
5.1 Option Grant and Agreement. Each Option granted hereunder shall
be evidenced by minutes of a meeting of the Stock Option Committee authorizing
the same and by a written Stock Option Agreement dated as of the date of grant
and executed by the Bank and the Optionee, which Stock Option Agreement shall
set forth such terms and conditions as may be determined by the Stock Option
Committee to be consistent with the Plan and shall indicate whether the Option
that it evidences is intended to be an Incentive Stock Option or a Nonstatutory
Stock Option; provided, however, that the Options to be granted to the Employees
(and, as to each such
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Employee, to cover the number of shares of Stock) specified on Exhibit A
attached hereto shall not be required to be evidenced by minutes of a meeting of
the Stock Option Committee authorizing the same.
5.2 Option Price. Subject to adjustment pursuant to the provisions of
Section 4.3 hereof, the Option Price of each share of Stock subject to Option
shall be the greater of Ten and 00/100 Dollars ($10.00) or the fair market value
of the Stock on the date of grant. The Option Price of the Options set forth on
Exhibit A shall be Ten and 00/100 Dollars ($10.00). If the Stock is publicly
held and actively traded in an established market on the date of grant, then the
fair market value of the Stock on the date of grant shall be determined by the
Board of Directors by any reasonable method using market quotations. If the
Stock is not publicly held and actively traded in an established market on the
date of grant, then the fair market value of the Stock on the date of grant
shall be determined in good faith by the Board of Directors using any reasonable
method (and the book value of such shares may be substituted for the fair market
value). Notwithstanding the foregoing, at no time shall the exercise price be
less than the fair market value of the shares on the date the Option is granted
or the par value thereof as determined by the Board of Directors.
5.3 Option Exercise. Options may be exercised in whole or in part
from time to time with respect to whole shares only, within the period permitted
for the exercise thereof. Each Option shall become exercisable in the following
manner:
(a) During the first year after the date of grant of such
Option, no portion of the Option shall be exercisable;
(b) During the second year after the date of grant of such
Option, such Option shall be exercisable only to the
extent of thirty-three percent (33%) of the shares
covered by such Option;
(c) During the third year after the date of grant of such
Option, such Option shall be exercisable only to the
extent of sixty-six percent (66%) of the shares covered
by such Option; and
(d) During the fourth and each succeeding year after the date
of grant of such Option, such Option shall be exercisable
as to all shares covered by such Option.
Notwithstanding any other provision in this Plan, no option granted under the
Plan may be exercised more than ten (10) years after the date on which it is
granted. Options shall be exercised by: (i) written notice of intent to exercise
the Option with respect to a specific number of shares of Stock which is
delivered by hand delivery or registered or certified mail, return receipt
requested, to the Bank at its principal office; and (ii) payment in full (by a
check or money order payable to "Old Florida Bank") to the Bank at such office
of the amount of the Option Price for
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the number of shares of Stock with respect to which the Option is then
being exercised. In addition to and at the time of payment of the Option Price,
the Optionee shall pay to the Bank in cash the full amount of all federal,
state, and local withholding or other employment taxes, if any, applicable to
the taxable income of the Optionee resulting from such exercise, and any sales,
transfer, or similar taxes imposed with respect to the issuance or transfer of
shares of Stock in connection with such exercise.
5.4 Nontransferability of Option. No Option shall be transferred by
an Optionee otherwise than by will or the laws of descent and distribution.
During the lifetime of an Optionee, the Option shall be exercisable only by him
or by his legal guardian or personal representative.
5.5 Effect of Death, Disability, Retirement, or Other Termination of
Service.
(a) If an Optionee's Service with the Bank shall be
terminated for "cause," as defined in Section 5.5(b)
hereof, then no Options held by such Optionee, which are
unexercised in whole or in part, may be exercised on or
after the date on which such Optionee is first notified
in writing by the Bank of such termination for cause.
(b) For purposes of this Section 5.5, termination for "cause"
shall mean termination for the Optionee's personal
dishonesty, incompetence, willful misconduct, breach of
fiduciary duty involving personal profit, violation of
any law, rule, or regulation (other than traffic
violations or similar offenses), violation of any
agreement or order with any bank regulatory agency, or
failure by the Optionee to perform his stated duties.
(c) If an Optionee's Service with the Bank shall be
terminated for any reason other than for cause (as
defined in Section 5.5(b) hereof) and other than the
retirement at age sixty-five (65) or the disability (as
defined in Section 5.5(e) hereof) or death of the
Optionee, then no Options held by such Optionee, which
are unexercised in whole or in part, may be exercised on
or after such termination of Service.
(d) If an Optionee's Service with the Bank shall be
terminated by reason of retirement at age sixty-five (65)
or the death or disability (as defined in Section 5.5(e)
hereof) of the Optionee, then the Optionee or personal
representative or administrator of the estate of the
Optionee or the person or persons to whom an Option
granted hereunder shall have been validly transferred by
the personal representative or administrator pursuant to
the Optionee's will or the laws of descent and
distribution, as the case may be, shall have the right to
exercise the Optionee's Options for ninety (90) days
after the date of such termination, but only to the
extent that such Options were exercisable at the date of
such termination.
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(e) For purposes of this Section 5.5, the terms "disability"
and "disabled" shall have the meaning set forth in the
principal disability insurance policy or similar program
then maintained by the Bank on behalf of its employees
or, if no such policy or program is then in existence,
the meaning then used by the United States Government in
determining persons eligible to receive disability
payments under the social security system of the United
States.
(f) No transfer of an Option by the Optionee by will or by
the laws of descent and distribution shall be effective
to bind the Bank unless the Bank shall have been
furnished with written notice thereof and an
authenticated copy of the will and/or such other evidence
as the Bank may deem necessary to establish the validity
of the transfer and the acceptance by the transferee or
transferees of the terms and conditions of such Option.
5.6 Rights as Shareholder. An Optionee or a transferee of an Option
shall have no rights as a shareholder with respect to any shares of Stock
subject to such Option prior to the purchase of such shares by exercise of such
Option as provided herein.
5.7 Investment Intent. Upon or prior to the exercise of all or any
portion of an Option, the Optionee shall furnish to the Bank in writing such
information or assurances as, in the Bank's opinion, may be necessary to enable
it to comply fully with the Securities Act of 1933, as amended, and the rules
and regulations thereunder and any other applicable statutes, rules, and
regulations. Without limiting the foregoing, if a registration statement is not
in effect under the Securities Act of 1933, as amended, with respect to the
shares of Stock to be issued upon exercise of an Option, the Bank shall have the
right to require, as a condition to the exercise of such Option, that the
Optionee represent to the Bank in writing that the shares to be received upon
exercise of such Option will be acquired by the Optionee for investment and not
with a view to distribution and that the Optionee agree, in writing, that such
shares will not be disposed of except pursuant to an effective registration
statement, unless the Bank shall have received an opinion of counsel reasonably
acceptable to it to the effect that such disposition is exempt from the
registration requirements of the Securities Act of 1933, as amended. The Bank
shall have the right to endorse on certificates representing shares of Stock
issued upon exercise of an Option such legends referring to the foregoing
representations and restrictions or any other applicable restrictions on resale
or disposition as the Bank, in its discretion, shall deem appropriate.
ARTICLE VI
Incentive Stock Options
6.1 Requirements. All Incentive Stock Options granted pursuant to the
terms of this Plan shall be subject to the additional limitations and
restrictions as set forth in the Code and in this Article VI. Any Option granted
pursuant to this Plan which does not fulfill all of the
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provisions of this Article VI shall not be an Incentive Stock Option and thus
shall be a Nonstatutory Stock Option.
6.2 Grant Period. All Incentive Stock Options granted hereunder must
be granted within ten (10) years from the earlier of: (a) the date the Plan is
adopted by the Board; or (b) the date the Plan is approved by the shareholders
of the Bank.
6.3 Eligibility. The Stock Option Committee shall determine which
Employees shall receive Incentive Stock Options. No member of the Stock Option
Committee is eligible to receive Incentive Stock Options. Incentive Stock
Options may not be granted to any Employee who, at the time the Incentive Stock
Option is granted: owns stock possessing more than ten percent (10%) of the
total combined voting power of all classes of stock of the Bank unless: (a) such
Incentive Stock Option by its terms is not exercisable after the expiration of
five (5) years from the date of its grant; and (b) the Option Price of the
shares covered by such Incentive Stock Option is not less than one hundred and
ten percent (110%) of the fair market value of such shares on the date that
such Incentive Stock Option is granted.
6.4 Special Rule Regarding Exercisability. If, for any reason, any
Option granted hereunder which is intended to be an Incentive Stock Option shall
exceed the limitation on exercisability contained in the Code at any time, such
Options shall nevertheless be exercisable, but: (a) any exercise of such Option
shall be deemed to be an exercise of an Incentive Stock Option first until the
portion of such Option qualifying as an Incentive Stock Option shall have been
exercised in full; and (b) the portion of such Option in excess of the foregoing
limitation on exercisability shall be deemed to be a Nonstatutory Stock Option.
ARTICLE VII
Nonstatutory Stock Options
The Stock Option Committee may grant Nonstatutory Stock Options under
this Plan. Such Nonstatutory Stock Options must fulfill all of the requirements
of all provisions of this Plan except for those contained in Article VI hereof.
Subject to the approval and acceptance of the Stock Option Committee, any
Employee who is granted a Nonstatutory Stock Option pursuant to this Plan shall
be entitled to elect to surrender ail or any part of such Nonstatutory Stock
Option to the Bank and receive, in exchange, an Incentive Stock Option covering
the same number of shares as those with respect to which the Nonstatutory Stock
Option was surrendered. Any such election shall be valid and effective only upon
its approval and acceptance by the Stock Option Committee.
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ARTICLE VIII
Stock Certificates
The Bank shall not be required to issue or deliver any certificate
for shares of Stock purchased upon the exercise of any Option granted hereunder
or of any portion thereof, prior to fulfillment of all of the following
conditions:
(a) The admission of such shares to listing on all stock
exchanges on which the Stock is then listed, if any;
(b) The completion of any registration or other qualification
of such shares under any federal or state law or under the rulings or
regulations of the Securities and Exchange Commission or any other governmental
regulatory agency, which the Bank shall in its sole discretion determine to be
necessary or advisable;
(c) The obtaining of any approval or other clearance from any
federal or state governmental agency which the Bank shall in its sole discretion
determine to be necessary or advisable; and
(d) The lapse of such reasonable period of time following the
exercise of the Option as the Bank from time to time may establish for reasons
of administrative convenience.
ARTICLE IX
Termination, Amendment, and Modification of Plan
The Board may at any time terminate, and may at any time and from
time to time and in any respect amend or modify, the Plan; provided, however,
that no such action of the Board without approval of the shareholders of the
Bank may increase the total number of shares of Stock subject to the Plan except
as contemplated in Section 4.3 hereof or alter the class of persons eligible to
receive Options under the Plan, and provided further that no termination,
amendment, or modification of the Plan shall without the written consent of the
Optionee of such Option adversely affect the rights of the Optionee with respect
to an Option or the unexercised portion thereof.
ARTICLE X
Miscellaneous
10.1 Service. Nothing in the Plan or in any Option granted hereunder
or in any Stock Option Agreement relating thereto shall confer upon any Employee
the right to continue in the Service of the Bank.
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10.2 Other Compensation Plans. The adoption of the Plan shall not
affect any other stock option or incentive or other compensation plans in effect
for the Bank, nor shall the Plan preclude the Bank from establishing any other
forms of incentive or other compensation for directors, officers, or employees
of the Bank.
10.3 Plan Binding on Successors, The Plan shall be binding upon the
successors and assigns of the Bank.
10.4 Singular, Plural: Gender. Whenever used herein, nouns in the
singular shall include the plural, and the masculine pronoun shall include the
feminine gender.
10.5 Applicable Law. This Plan shall be governed by and construed in
accordance with the laws of the State of Florida.
10.6 Headings, etc., No Part of Plan. Headings of Articles and
Sections hereof are inserted for convenience and reference; they constitute no
part of the Plan.
10.7 Severability. If any provision or provisions of this Plan shall
be held to be invalid, illegal, or unenforceable, the validity, legality, and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
IN WITNESS WHEREOF, the undersigned President and Chief Executive
Officer of the Bank has signed this Plan for and on behalf of the Bank.
/s/Larry W. Johnson
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Larry W. Johnson
President and Chief Executive Officer
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