---------------------
EXHIBIT 10.4
INCENTIVE STOCK OPTION AGREEMENT BETWEEN
FRONTIER NATIONAL CORPORATION AND
XXXXX X. XXXXX, XX.
SIGNED ON DECEMBER 20, 1999
EFFECTIVE AUGUST 24, 1998
---------------------
APPENDIX A
INCENTIVE STOCK OPTION AGREEMENT
THIS INCENTIVE STOCK OPTION AGREEMENT (this "Agreement") is made as of
the 20TH day of DECEMBER 1999 effective as of AUGUST 24, 1998 (the "Date of
Grant"), by and between Frontier National Corporation, an Alabama corporation
("Corporation"), and XXXXX X. XXXXX, XX. ("Participant"). [NOTE: PARTICIPANT
MUST BE AN EMPLOYEE OF CORPORATION TO BE ELIGIBLE TO RECEIVE AN ISO]
WHEREAS, Corporation has adopted its 1999 Statutory-Nonstatutory Stock
Option Plan (the "Plan"); and
WHEREAS, the committee chosen by Corporation to administer the Plan
(the "Committee") has determined that Participant is eligible to receive an
option to purchase shares of common stock of Corporation ("Stock") under an
incentive stock option and has determined that it is in the best interest of
Corporation to grant the stock option documented herein to Participant.
NOW, THEREFORE, in consideration of the foregoing, of the mutual
promises hereinafter set forth and of other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto do
hereby agree as follows:
X. Xxxxx of Option. Corporation hereby grants to Participant the right
to purchase FORTY THOUSAND (40,000) shares of Stock (the "Option Shares") at a
price of $10.00 per Option Share (the "Option Price"), in accordance with the
terms of this Agreement and the Plan (the "Option"). The Committee, exercising
good faith, has determined that the Option Price is equal to at least one
hundred percent (100%) of the fair market value of a share of Stock on the Date
of Grant. [NOTE: IF PARTICIPANT AND HIS OR HER FAMILY HOLD MORE THAN 10% OF THE
TOTAL COMBINED VOTING POWER OF ALL CLASSES OF STOCK, THEN THE OPTION PRICE MUST
NOT BE LESS THAN 110% OF THE FAIR MARKET VALUE OF THE OPTION SHARES ON THE DATE
OF GRANT. ALSO TOTAL FAIR MARKET VALUE OF ALL OPTIONS GRANTED TO PARTICIPANT
ELIGIBLE TO BE EXERCISED IN ANY ONE YEAR SHOULD NOT EXCEED $100,000.] The Option
is intended by the parties hereto to be, and shall be treated as, an incentive
stock option (as such term is defined under section 422 of the Internal Revenue
Code of 1986 (the "Code")).
II. Termination of Option.
(i) Termination Date. The Option and all rights hereunder with
respect thereto, to the extent such rights shall not have been previously
exercised or otherwise terminated, shall terminate and become null and void on
AUGUST 24, 2008 at 5:00 P.M. (the "Termination Date"). [NOTE: IF THE PARTICIPANT
AND HIS FAMILY OWN LESS THAN 10% OF THE TOTAL COMBINED VOTING POWER THEN THE
TERMINATION DATE MUST NOT BE LATER THAN 10 YEARS FROM THE DATE OF GRANT. IF THE
PARTICIPANT AND HIS FAMILY OWN 10% OR MORE THEN THE TERMINATION DATE MUST NOT BE
LATER THAN 5 YEARS FROM THE DATE OF GRANT.]
(ii) Termination of Participant's Employment. In the event of
the termination of Participant's employment by Corporation for any reason other
than Participant's death or disability, the Option, to the extent not previously
exercised, shall terminate and become void on the date occurring three months
after Participant ceases to be an employee of Corporation. Provided, however,
notwithstanding any other provisions set forth herein or in the Plan, if
Participant shall commit any act of malfeasance affecting Corporation or any
affiliated corporation or is convicted of a felony or engages in
1
conduct that would warrant Participant's discharge for cause as such is
determined by the Committee in its sole discretion, any unexercised portion of
the Option shall immediately terminate and become void. A transfer of
Participant's employment between Corporation and any subsidiary of Corporation
shall not be deemed to be a termination of Participant's employment.
(iii) Death or Disability. Upon termination of Participant's
employment by reason of Participant's death, the Option may be exercised, to the
extent not previously exercised, by Participant's estate or any distributee of
the Option under Participant's will or the applicable laws of descent and
distribution until the Termination Date. Upon termination of Participant's
employment by reason of disability (within the meaning of Section 22(e)(3) of
the Code), the Option may be exercised, to the extent not previously exercised,
until the earlier of the Termination Date or the date occurring one year from
the date of termination of Participant's employment.
III. Installment Exercise. Subject to such further limitations as are
provided herein, the Option shall become vested and exercisable in five (5)
installments, Participant having the right hereunder to purchase from
Corporation the following number of Option Shares upon exercise of the Option,
on and after the following dates, in cumulative fashion:
(i) on and after the first anniversary of the Date of Grant,
up to twenty percent (20%) (ignoring fractional shares) of the total
number of Option Shares;
(ii) on and after the second anniversary of the Date of Grant,
up to an additional twenty percent (20%) (ignoring fractional shares)
of the total number of Option Shares; and
(iii) on and after the third anniversary of the Date of Grant,
up to an additional twenty percent (20%) (ignoring fractional shares)
of the total number of Option Shares; and
(iv) on and after the fourth anniversary of the Date of Grant,
up to an additional twenty percent (20%) (ignoring fractional shares)
of the total number of Option Shares; and
e. on and after the fifth anniversary of the Date of Grant,
the remaining Option Shares.
IV. Exercise of Option. The Option, or any portion of the Option
eligible to be exercised by the Participant and not previously exercised, may be
exercised at any time or times prior to the termination of the Option pursuant
to the provisions hereof. The Option may be exercised only if compliance with
all Federal and state securities laws can be effected and only by (i)
Participant's completion, execution and delivery to Corporation of a notice of
exercise and "investment letter" in the form attached hereto as Exhibit A, and
(ii) Participant's payment to Corporation of an amount equal to the sum of the
amount obtained by multiplying the Option Price by the number of Option Shares
being purchased plus any withholding tax required by law as determined by
Corporation. Payment shall be made by check payable to Corporation or such other
medium of payment as the Committee shall approve. Upon the exercise of the
Option by Participant, or as soon thereafter as is practicable, Corporation
shall issue and deliver to Participant a certificate or certificates evidencing
such number of Option Shares as Participant has so elected to purchase. Such
certificate or certificates shall be registered in the name of Participant and
shall bear any legend required by any Federal or state securities law or
agreement as Corporation shall determine. [NOTE: IN ORDER TO RECEIVE TREATMENT
AS AN INCENTIVE STOCK OPTION, PARTICIPANT MUST NOT DISPOSE OF ANY SHARE OBTAINED
BY THE EXERCISE OF THE OPTION IF SUCH DISPOSITION
2
OCCURS WITHIN 2 YEARS OF THE DATE OF GRANT OF THE OPTION OR WITHIN 1 YEAR AFTER
THE EXERCISE OF THE OPTION]
V. Transferability of Option. The Option may not be transferred,
assigned, pledged or hypothecated (whether by operation of law or otherwise),
except that the Option may be transferred upon the death of Participant as
provided by Participant's Will or the applicable laws of descent and
distribution. The Option shall not be subject to execution, attachment or
similar process. Any attempted assignment, transfer, pledge, hypothecation or
other disposition of the Option, or levy of attachment or similar process upon
the Option not specifically permitted herein shall be null and void and without
effect. Any permitted transferee will be entitled to all of the rights of
Participant with respect to the assigned portion of the Option, and such portion
of the Option will continue to be subject to all of the then existing terms,
conditions and restrictions applicable to the Option, as set forth herein and in
the Plan.
VI. Adjustments. In the event of the declaration of any stock dividend
on the Stock or in the event of any reorganization, merger, consolidation,
acquisition, separation, recapitalization, split-up, combination or exchange of
shares of Stock, or like adjustment, the number of shares of Stock and the class
of shares of Stock available pursuant to the Option, and the Option Price, shall
be adjusted proportionately as determined by the Committee, whose determination
shall be conclusive. Notwithstanding the foregoing, in the event of such a
reorganization, merger, consolidation, acquisition, separation,
recapitalization, split-up, combination or exchange of shares of stock, or like
adjustment which results in substantially all the shares of the Stock of
Corporation being exchanged for, or converted into cash or other property, the
Committee or Corporation shall have the right to terminate the Option as of the
date of the exchange or conversion in which case the Option shall convert into
the right to receive such cash or property net of the Option Price of the
Options.
VII. Termination, Suspension or Amendment of Option. The Committee or
Corporation may, at any time, terminate, suspend or amend the Plan or this
Agreement.
VIII. Postponement of Exercise. The Committee or Corporation may
postpone any exercise of the Option for such time as it may deem necessary in
order to permit Corporation (i) to effect, amend or maintain any necessary
registration of the Plan or the shares of Stock issuable upon the exercise of
the Option under the Securities Act of 1933, as amended (the "Act"), or the
securities laws of any applicable jurisdiction, (ii) to permit any action to be
taken in order to (A) list such shares of Stock on a stock exchange if shares of
Stock are then listed on such exchange or (B) comply with restrictions or
regulations incident to the maintenance of a public market for its shares of
Stock, including any rules or regulations of any stock exchange on which the
shares of Stock are listed, or (iii) to determine that such shares of Stock and
the Plan are exempt from such registration or that no action of the kind
referred to in (ii)(B) above needs to be taken; and Corporation shall not be
obligated by virtue of any terms and conditions of this Agreement or any
provision of the Plan to recognize the exercise of the Option or to sell or
issue shares of Stock in violation of the Act or any state's securities laws.
Any such postponement shall not extend the terms of the Option and neither
Corporation nor its directors or officers or the Committee shall have any
obligation or liability to Participant or to any other person with respect to
any shares of Stock as to which the Option shall lapse because of such
postponement.
IX. Participant's Rights. The granting of the Option shall impose no
obligation upon Participant to exercise such Option. Participant shall have no
equity interest in Corporation, nor shall Participant have any voting, dividend,
liquidation or dissolution rights with respect to any capital stock of
Corporation solely by reason of having the Option or having executed this
Agreement. Upon the issuance and delivery of a certificate for Option Shares
after exercise of the Option, Participant shall have the
3
rights of a stockholder with respect to such Option Shares and to receive all
dividends or other distributions paid or made with respect thereto. Nothing in
this Agreement or the Plan shall confer upon Participant the right to continue
in the employ of Corporation or affect any right which Corporation may have to
terminate such employment at any time.
X. Elimination of Fractional Shares. If this Agreement requires a
computation of the number of shares of Stock subject to the Option, and the
number so computed is not a whole number of shares of Stock, such number of
shares of Stock shall be rounded down to the next whole number.
XI. Shareholders' Agreement. Participant agrees to execute any
Shareholders' Agreement which all other shareholders of Corporation are subject
prior to delivery of any Stock upon the exercise of the Option. All Stock
delivered to Participant pursuant to the exercise of the Option shall be subject
to any Shareholders' Agreement previously entered into by Participant relating
to the Stock.
XII. Incorporation of Plan by Reference. The Option is granted pursuant
to the terms of the Plan, a copy of which is attached hereto as Exhibit "B" and
the terms of which are incorporated herein by reference. The Option shall in all
respects be interpreted in accordance with the Plan. The Committee shall
interpret and construe the Plan and this Agreement, and its interpretations and
determinations shall be conclusive and binding on the parties hereto and any
other person claiming an interest hereunder, with respect to any issue arising
hereunder or thereunder. The provisions of the Plan shall control in the event
of any inconsistencies between this Agreement and the Plan.
XIII. Entire Agreement. This Agreement sets forth all of the promises,
agreements, conditions, understandings, warranties and representations between
the parties hereto with respect to the Option and the Shares. This Agreement is
an integration of any and all prior agreements or understandings, oral or
written, with respect to the Option and the Shares.
XIV. Notices. Any and all notices provided for herein shall be
sufficient if in writing, and sent by hand delivery or by certified or
registered mail (return receipt requested and first class postage prepaid), in
the case of Corporation, to its principal office, and, in the case of
Participant, to Participant's address as shown on Corporation's records.
XV. Governing Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of Alabama.
XVI. Modifications. Except as otherwise provided herein, no change or
modification of this Agreement shall be valid unless the same is in writing and
signed by the parties hereto.
XVII. Successors. This Agreement shall be binding on all permitted
successors and assigns of Participant including any estate, executors or
administrators, trustees, or personal or legal representatives, and, in any such
event all references herein to Participant shall, to the extent applicable, be
deemed to refer to and include such estate, executors or administrators,
trustees or personal or legal representatives, as the case may be.
4
IN WITNESS WHEREOF, Corporation and Participant have executed this
Agreement as of the day and year first above written.
FRONTIER NATIONAL CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------
Title: Chairman, Compensation Committee
----------------------------------
PARTICIPANT:
/s/ Xxxxx X. Xxxxx, Xx.
--------------------------------------
Signature of Participant
Xxxxx X. Xxxxx, Xx.
--------------------------------------
Printed Name of Participant
5
