EXHIBIT 10.4
OLD FLORIDA BANK
DIRECTORS' STOCK OPTION AGREEMENT
THIS AGREEMENT (hereinafter "Agreement") is entered into effective as
of the day of (the "Grant Date"), by and between Old Florida Bank,
a Florida banking corporation (hereinafter "Bank"), and , currently
serving as a director of the Bank (the "Bank") (hereinafter "Optionee").
WITNESSETH:
WHEREAS, Optionee is a director of the Bank; and the Bank considers it
desirable and in the best interest that options to purchase the Bank's common
stock be given to the Optionee as inducement to acquire a further proprietary
interest in the Bank; and
WHEREAS, the granting of options to purchase common stock of the Bank
hereunder is in accordance with Old Florida Bank Directors' Stock Option Plan,
and as the same may be amended from time to time.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, the parties hereto agree as follows:
ARTICLE I
Definitions
As used in this Agreement, all terms which are defined in the Old
Florida Bank Directors' Stock Option Plan, as the same may from time to time be
amended (the "Plan"), shall have the meanings specified in the Plan, unless
otherwise specifically defined herein.
ARTICLE II
Effective Date
2.1 Effective Date. The effective date of this Agreement shall be the
Grant Date. For purposes of this Agreement, the term "Option" shall mean the
option to purchase Stock granted to the Optionee pursuant to the Plan.
ARTICLE III
Shares of Stock Subject to Option
3.1 Number of Shares. Subject to adjustment pursuant to the provisions
of Section 3.3 hereof, the Optionee may purchase up to (0) shares
of Stock hereunder, which shall be issued and sold by the Bank only upon
exercise (in accordance with Section 4.2(b) of this Agreement) of the Option
granted pursuant to Section 4.1 of this Agreement.
3.2 Shares Issued Pursuant to this Agreement. Shares of Stock with
respect to which the Option granted hereunder shall have been exercised shall
not again be available for Option hereunder.
3.3 Stock Adjustments; Mergers and Combinations. Notwithstanding any
other provision in this Agreement, 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 subject to Option pursuant to this
Agreement 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 therefor 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.
3.4 Acceleration of Option Exercise. Subject to Section 3.3, 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 the Option thereafter in whole or in part, notwithstanding
the provisions of Section 4.2(b) hereof and the provisions of Section 5.3 of the
Plan, to the extent that the Option shall not have been exercised prior thereto.
ARTICLE IV
Option
4.1 Grant of the Option. As of the Grant Date, the Optionee is
hereby granted an Option to purchase (0) shares of Stock, subject
to adjustment pursuant to the provisions of Section 3.3 hereof.
4.2 (a) Terms of Option. The Option shall expire on the tenth
anniversary of the Grant Date. The Option Price of
each share of Stock subject to the Option shall be
ten dollars ($10.00) per share, subject to adjustment
pursuant to the provisions of Section 3.3 hereof.
(b) Option Exercise. The Option 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. The Option shall become exercisable
in the following manner:
(i) During the first year after the Grant Date,
no portion of the Option shall be
exercisable;
(ii) During the second year after the Grant Date,
such Option shall be exercisable only to the
extent of thirty-three percent (33%) of the
shares covered by such Option;
(iii) During the third year after the Grant Date,
such Option shall be exercisable only to the
extent of sixty-six percent (66%) of the
shares covered by such Option; and
(iv) During the fourth and each succeeding year
after the Grant Date, such Option shall be
exercisable as to all shares covered by such
Option.
Notwithstanding any other provision in this Agreement, the
Option may not be exercised after the expiration of ten (10)
years from its Grant Date. The Option shall be exercised by:
(A) 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,
Attention: Corporate Secretary; and (B) 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 the
number of shares of Stock with respect to which the Option is
then being exercised. Each such notice of exercise shall be
accompanied by any documents required by the Bank under
Section 4.6 hereof. 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.
4.3 Nontransferability of Option. No Option shall be transferred by the
Optionee otherwise than by will or the laws of descent and distribution. During
the lifetime of the Optionee, the Option shall be exercisable only by him or by
his legal guardian or personal representative.
4.4 Effect of Death, Disability, Retirement, or Other Termination
of Service.
(a) If the Optionee's Service with the Bank shall be terminated
for any reason other than the retirement after age sixty-five
(65) or the disability (as defined in the Plan) or death of
the Optionee, then no unexercised portion of the Option may be
exercised on or after such termination of Services.
(b) If the Optionee's Service with the Bank shall be terminated by
reason of retirement after age sixty-five (65) or death or
disability (as defined in the Plan) or death of the Optionee,
then the Optionee or personal representative or administrator
of the estate of the Optionee or the person or persons to whom
the 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 Option for ninety (90) days after the
date of such termination, but only to the extent that the
Option were exercisable at the date of such termination.
(c) No transfer of the 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
the Option.
4.5 Rights as Shareholder. The Optionee or a transferee of the Option
shall have no rights as a shareholder with respect to any shares of Stock
subject to the Option prior to the purchase of such shares by exercise of the
Option as provided herein.
4.6 Optionee's Intent as to Stock Acquired by Exercise of Option. The
Optionee agrees that, upon or prior to the exercise of all or any portion of the
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 the Option, the Optionee further agrees that the Bank
shall have the right to require, as a condition to the exercise of the Option,
that the Optionee represent to the Bank in writing that the shares to be
received upon exercise of the 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 Optionee understands and agrees that the Bank shall have the right
to endorse on certificates representing shares of Stock issued upon exercise of
the 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 V
Stock Certificates
The Bank shall not be required to issue or deliver any certificate for
shares of Stock purchased upon the exercise of the Option granted hereunder or
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 VI
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 of
the Plan 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 adversely affect the
rights of the Optionee with respect to the Option granted hereunder or the
unexercised portion thereof.
ARTICLE VII
Miscellaneous
7.1 Service. Nothing in this Agreement or the Option shall confer upon
Optionee the right to continue in the Service of the Bank.
7.2 Other Compensation Plans. The adoption of the Plan and the
execution of this Agreement shall not affect any other stock option or incentive
or other compensation plans in effect for the Bank, nor shall the Plan or this
Agreement preclude the Bank from establishing any other forms of incentive or
other compensation for directors, officers, or employees of the Bank.
7.3 Agreement Binding on Successors. This Agreement shall be binding
upon the successors and assigns of the Bank and the Optionee.
7.4 Singular, Plural; Gender. Whenever used herein, nouns in the
singular shall include the plural, and the masculine pronoun shall include the
feminine gender.
7.5 Applicable Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Florida.
7.6 Headings. Headings of Articles and Sections hereof are inserted for
convenience and reference only; they constitute no part of this Agreement.
7.7 Severability. If any provision or provisions of this Agreement
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.
7.8 Notices. Unless otherwise specified herein, notices required or
permitted to be given hereunder shall be in writing and shall be mailed by
registered or certified mail, return receipt requested, to the principal office
of the Bank, Attention: Corporate Secretary (if notice is to the Bank) and to
the Optionee at the Optionee's address set forth below (if notice is to the
Optionee), or to such other person or such other address as any such party may
designate by like notice to the other party, and shall be deemed given as of the
date and time received.
7.9 Counterparts. This Agreement may be executed in any number of
counterparts, each of which, when so executed, shall be considered an original,
and all of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have set forth their hands and
seals.
OLD FLORIDA BANK
By:
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Frank Galeana, Chairman
OPTIONEE
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Name:
Address: