STOCK OPTION AWARD AGREEMENT PURSUANT TO FIRST METROPLEX CAPITAL, INC.
Exhibit
10.14
PURSUANT
TO FIRST METROPLEX CAPITAL, INC.
2005
STOCK INCENTIVE PLAN
Participant:
Grant
Date: (“Grant
Date”)
Plan
under which Options are Granted: First
Metroplex Capital, Inc. 2005 Stock Incentive Plan (“Plan”)
Type
of Options: Non-Qualified
Stock Options
Number
of Shares to which Options are Granted:
Exercise
Price per Share: $
Vesting
Schedule: The
Options shall become vested in accordance with Schedule 1 hereto.
THE
COMPANY RECOMMENDS THAT PARTICIPANT CONSULT WITH HIS OR HER PERSONAL TAX
ADVISOR
PRIOR TO EXERCISING ANY OPTIONS.
IN
WITNESS WHEREOF, the Company has executed and made effective this Option
as of
the Grant Date.
| FIRST METROPLEX CAPITAL, INC. | ||
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| PARTICIPANT | ||
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| Address: | ||
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TERMS
AND CONDITIONS
TO
THE STOCK OPTION AWARD
PURSUANT
TO THE FIRST METROPLEX CAPITAL, INC.
2005
STOCK INCENTIVE PLAN
1. Grant
of the Option.
The
Company hereby grants to the Participant the right and option (“Option”) to
purchase the aggregate number of shares of common stock, $.01 par value per
share, of the Company (“Stock”) as set forth on page 1 (such number being
subject to adjustment as provided herein) on the terms and conditions set
forth
in this Agreement and the Plan. The Option awarded under this Agreement may
be
exercised in whole at any time or in part from time to time, subject to the
terms and conditions of this Agreement and the Plan. The Option granted under
this Agreement is not intended to qualify as an “incentive stock option” under
section 422 of the Internal Revenue Code of 1986, as amended (“Code”), and
shall be so construed. The Participant shall have no obligation to exercise
any
Option granted by this Agreement.
2. Exercise
Price.
The
price per share at which the Participant shall be entitled to purchase shares
of
Stock upon the exercise of this Option shall be the Exercise Price per Share
set
forth on page 1, subject to adjustment as provided in
Paragraph 10
(“Exercise Price”), which Exercise Price shall be not less than the Fair Market
Value of a share of Stock on the date that the Option is granted.
3. Vesting
and Term of the Option.
(a) General.
The
right to exercise the Option shall vest in the hands of the Participant as
provided for on page 1 of this Agreement. Shares for which Options have vested
shall be referred to as “Vested Shares.” Shares for which Options have not
vested shall be referred to as “Nonvested Shares.” The respective numbers of
Vested and Nonvested Shares shall adjust proportionately in accordance with
any
adjustments made pursuant to Paragraph 10
of this
Agreement. In addition, shares may become Vested Shares in accordance with
Paragraphs 7,
13
and
14.
(b) Exercisable
for Whole Vested Shares Only.
Subject
to the relevant provisions and limitations contained herein, the Participant
may
exercise the Option to purchase all or part of whole Vested Shares. In no
event
shall the Participant be entitled to exercise the Option with respect to
Nonvested Shares or a fraction of a Vested Share.
(c) Expiration.
Notwithstanding any other provision contained herein to the contrary, the
unexercised portion of the Option(s), if any, will automatically and without
notice expire upon the earliest of: (i) ten (10) years following the
Grant
Date; (ii) the date determined pursuant to Paragraph 7
of this
Agreement; and (iii) the date determined pursuant to Paragraph 14
of this
Agreement. (“Expiration Date”) An Option will cease to be exercisable with
respect to a share of Stock when the Participant purchases the
share.
4. Method
of Exercising Option.
(a) Subject
to the provisions provided herein or incorporated by reference, the Participant
may exercise the Option at any time on or prior to the Expiration Date with
respect to all or any part of the Vested Shares by delivering to the Company,
at
its principal place of business, a written notice of exercise in substantially
the form attached hereto as Exhibit
A,
accompanied by payment to the Company of the Exercise Price multiplied by
the
number of Vested Shares then being purchased.
(b) The
notice of exercise must be signed by the Participant; provided however, that
if
the Option is being exercised by a person or persons other than the Participant
pursuant to Paragraph 7,
the
notice of exercise must be signed by such other person or persons and must
be
accompanied by proof acceptable to the Company of the legal right of such
person
or persons to exercise the Option.
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(c) Upon
acceptance of such notice and receipt of payment in full of the purchase
price
for the shares of Stock for which the Option is being exercised, the Company
shall issue (or cause to be issued) a certificate evidencing the shares of
Stock
acquired as a result of the exercise of the Option.
(d) No
purported exercise of an Option shall be effective and no shares of Stock
shall
be issued to the Participant upon exercise of the Option until: (i) the
Exercise Price for the shares of Stock being purchased is paid in full in
the
manner provided in this Agreement; (ii) all applicable taxes required
to be
withheld have been paid in full; (iii) the approvals, if any, of all
governmental authorities required in connection with the Option, or the issuance
of Shares pursuant to this Agreement, have been received by the
Company.
5. Method
of Payment for Options.
The
Exercise Price shall be payable either in (i) United States dollars in cash
or
by check, bank draft, money order or wire transfer of good funds payable
to the
Company; (ii) upon conditions established by the Committee, by delivery of
shares of Stock owned by the Participant for at least six (6) months prior
to
the date of exercise; or (iii) by a combination of (i) and (ii).
6. Tax
Withholding.
As a
condition to the exercise of this Option, the Company shall have the right
to
require that the Participant (or the recipient of any shares of Stock) remit
to
the Company an amount calculated by the Company to be sufficient to satisfy
applicable federal, state, foreign or local withholding tax requirements
(or
make other arrangements satisfactory to the Company with regard to such taxes)
prior to the delivery of any certificate evidencing shares of Stock. If
permitted by the Company, either at the time of the grant of the Option or
in
connection with its exercise, the Participant may satisfy applicable withholding
tax requirements by delivering a number of whole shares of Stock owned by
the
Participant for at least six (6) months prior to the date of exercise and
having
a Fair Market Value (determined on the date that the amount of tax to be
withheld is to be fixed) at least equal to the aggregate amount required
to be
withheld.
7. Termination
of
Employment.
(a) For
“Good Cause”.
If the
Participant’s employment agreement with the Bank, dated as of the date of this
Agreement (“Employment Agreement”), is terminated for “Good Cause,” as defined
in the Employment Agreement, during the term of this Option, any and all
Options
evidenced by this Agreement that have not vested as of the date the Employment
Agreement is terminated shall expire immediately upon the termination thereof;
and any and all Options evidenced by this Agreement that have vested as of
the
date of termination shall be exercisable for the period of time not to extend
beyond the remainder of the term of the Options or three months from the
date of
termination, whichever is earlier. Any Option or portion thereof not exercised
prior to such date shall expire at such time unless the Participant dies
during
such period, in which case the provisions of Paragraph 7(b)
below
shall govern.
(b) Death.
Upon
the death of the Participant, any and all Options granted to the Participant
pursuant to this Agreement that have not vested as of the date of the
Participant’s death shall expire as of the date of the Participant’s death, and
all Options held by the Participant that have vested as of the date of the
Participant’s death may be exercised only by the Participant’s legal
representatives, heirs, legatees, or distributees.
(c) Disability.
If the
Participant ceases to be an employee of the Bank during the term of this
Option
by reason of the Participant’s disability (as defined in section 22(e)(3) of the
Code), any and all Options granted to the Participant pursuant to this Agreement
that have not vested as of the date that the Participant ceases to be an
employee shall expire as of such date; provided, however, that the Options
held
by the Participant that are exercisable as of the date that the Participant
ceases to be an employee may be exercised only by the Participant or his
guardian or legal representative.
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(d) Resignation.
Upon
the resignation by the Participant as an employee of the Bank during the
term of
this Option, any and all Options evidenced by this Agreement that have not
vested as of the date that the Participant’s resignation becomes effective shall
expire immediately upon the effectiveness thereof; and any and all Options
evidenced by this Agreement that have vested as of the date that the
Participant’s resignation becomes effective shall continue to be exercisable for
the period of time otherwise set forth in this Agreement.
(e) Termination
Other Than For “Good Cause”.
If the
Participant’s employment with the Bank is terminated during the term of this
Option (i) by the Bank other than for “Good Cause” and (ii) other than as a
result of Participant’s death or disability or Participant’s resignation, all
Nonvested Shares shall be deemed to have become fully exercisable and vested
to
the full extent of the unexercised portion of the original grant immediately
prior to the termination of Participant’s employment; and any and all such
Options shall continue to be exercisable for the period of time otherwise
set
forth in this Agreement.
8. Nontransferability.
The
Option evidenced by this Agreement is nontransferable other than by will
or the
laws of descent and distribution and shall be exercisable during the lifetime
of
the Participant only by the Participant (or in the event of his disability
(as
defined in section 22(e)(3) of the Code), by his guardian or legal
representative) and after his death, only by the Participant’s legal
representatives, heirs, legatees, or distributees.
9. Special
Limitation on Exercise.
Notwithstanding anything herein to the contrary, no purported exercise of
this
Option shall be effective without the approval of the Committee, which shall
be
a condition to the exercise of this Option and may be withheld to the extent
that the exercise, either individually or in the aggregate together with
the
exercise of other previously exercised stock options and/or offers and sales
pursuant to any prior or contemplated offering of securities, would, in the
sole
and absolute judgment of the Committee, require the filing of a registration
statement with the United States Securities and Exchange Commission or with
the
securities commission of any state. If a registration statement is not in
effect
under the Securities Act of 1933 or any applicable state securities law with
respect to the shares of Stock purchasable or otherwise deliverable under
the
Option, the Participant (i) shall deliver to the Company, prior to the exercise
of the Option or as a condition to the delivery of Stock pursuant to the
exercise of the Option exercise, such information, representations and
warranties as the Company may reasonably request in order for the Company
to be
able to satisfy itself that the shares of Stock are being acquired in accordance
with the terms of an applicable exemption from the securities registration
requirements of applicable federal and state securities laws and (b) shall
agree
that the shares of Stock so acquired will not be disposed of except pursuant
to
an effective registration statement, unless the Company shall have received
an
opinion of counsel that such disposition is exempt from such requirement
under
the Securities Act of 1933 and any applicable state securities law.
10. Adjustments
on Changes in Shares.
In the
event of any change in the outstanding shares of Stock by reason of any merger,
reorganization, consolidation, recapitalization, stock dividend, stock split,
reverse stock split, spinoff, combination or exchange of shares or other
corporate change, the Committee, in its sole discretion, may make such
substitution or adjustment, if any, as it deems to be equitable or appropriate,
as to (i)
the
number or kind of shares subject to the Option; (ii) subject to the limitation
contained in Paragraph 15,
the
Exercise Price applicable to the Option; (iii) any measure of performance
that
relates to the Option in order to reflect such change in the Stock and/or
(iv)
any other affected terms of the Option.
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11. Amendment
and Termination.
Subject
to the terms and provisions of the Plan, this Agreement may be amended or
terminated only by a written agreement executed by the Company and the
Participant. The amendment or termination of the Plan shall not operate to
modify the terms and conditions of this Agreement or any Option evidenced
by
this Agreement without the Participant’s consent, and, notwithstanding the
termination of the Plan, such Agreement and Option shall be construed in
accordance with the substantive provisions of the Plan as necessary to give
effect this Agreement or any Option still in existence.
12. Legend
on Stock Certificates.
Certificates evidencing the shares of Stock issued upon exercise of an Option,
to the extent appropriate at the time, shall have noted conspicuously on
the
certificates a legend intended to give all persons full notice of the existence
of the conditions, restrictions, rights and obligations set forth herein
and in
the Plan.
13. Change
of Control.
Notwithstanding any provision of this Agreement to the contrary, in the event
of
a Change of Control or an agreement to effect a Change of Control, all Nonvested
Shares shall become fully exercisable and vested to the full extent of the
unexercised portion of the original grant. The
determination as to whether a Change of Control or an agreement to effect
a
Change in Control has occurred shall be made by the Committee and shall be
conclusive and binding.
14. Minimum
Capital Requirements.
Notwithstanding any provision of this Agreement to the contrary, the Option
granted under the Agreement shall expire, to the extent not exercised, within
45
days following the receipt of notice from the Bank’s state or primary federal
regulator (“Regulator”) that (i) the Bank has not maintained its minimum capital
requirements (as determined by the Regulator) and (ii) the Regulator is
requiring termination or forfeiture of options. Upon receipt of such notice
from
the Regulator, the Company shall promptly notify each Participant that the
Option issued under this Agreement has become fully exercisable and vested
to
the full extent of the grant and that the Participant must exercise the Option
granted to him prior to the end of the 45-day period or such earlier period
as
may be specified by the Regulator or forfeit the Option. In case of forfeiture,
the Participant shall have no cause of action, of any kind or nature, with
respect to the forfeiture against the Company or any Affiliate. Neither the
Company nor any Affiliate shall be liable to the Participant due to the failure
or inability of the Company or any Affiliate to provide adequate notice to
the
Participant.
15. Repricing.
The
Committee shall not, without the further approval of the Board of Directors,
(i)
authorize the amendment of this Option to reduce the Exercise Price of this
Option or (ii) grant a replacement Option upon the surrender and cancellation
of
this Option for the purpose of reducing the Exercise Price of this Option.
Nothing contained in this section shall affect the right of the Committee
to
make any adjustment permitted under Paragraph 10.
16. No
Rights as a Shareholder.
Notwithstanding the exercise of an Option, a Participant shall have no rights
as
a shareholder with respect to shares covered by an Option until the date
the
certificates evidencing the shares of Stock are issued (as evidenced by the
appropriate entry on the books of the Company or of a duly authorized transfer
agent of the Company). No adjustment will be made for dividends or other
rights
the record date for which is prior to the date of issuance. Upon issuance
of the
certificates evidencing the shares of Stock acquired upon exercise of an
Option,
such shares of Stock shall be deemed to be transferred for purposes of section
421 of the Code and the regulations promulgated thereunder.
17. Interpretation.
When
a
reference is made in this Agreement to a Paragraph, Exhibit or Schedule,
such
reference will be to a Paragraph of, or Exhibit or Schedule to, this Agreement
unless
otherwise indicated. The headings contained
in this Agreement are for convenience of reference only and will not affect
in
any way the meaning or interpretation of this Agreement or any Option. Whenever
the words “include,”“includes” or “including” are used in this Agreement, they
will be deemed to be followed by the words “without limitation.” The words
“hereof,”“herein” and “hereunder” and words of similar import when used in this
Agreement will refer to this Agreement as a whole and not to any particular
provision in this Agreement. Each use herein of the masculine, neuter or
feminine gender will be deemed to include the other genders. Each use
herein of
the
plural will include the singular and
vice
versa, in each case as the context requires or as is otherwise appropriate.
The
word “or” is used in the inclusive sense. Any agreement, instrument
or statute
defined or referred to herein or in any agreement or instrument that is referred
to herein means such agreement, instrument or statute as from time to time
amended, modified or supplemented, including (in the case of agreements or
instruments) by waiver or consent and (in the case of statutes) by succession
of comparable
successor statutes and references to all attachments thereto and instruments
incorporated therein. References to a person are also to its permitted
successors or assigns. No
provision of this Agreement is to be construed to require, directly or
indirectly, any person to take any action, or omit to take any action, which
action or omission would violate applicable law (whether statutory or common
law), rule or regulation.
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18. Governing
Law.
The
validity, construction and effect of this Agreement and any Option granted
hereunder shall be determined in accordance with the laws of the State of
Texas,
without reference to the laws that might otherwise govern under applicable
principles of conflicts of law.
19. Notices.
Any
notice or other communication required or permitted to be made hereunder
or by
reason of the provisions of this Agreement shall be in writing, duly signed
by
the party giving such notice or communication and shall be deemed to have
been
properly delivered if delivered personally or by a recognized overnight courier
service, or sent by first-class certified or registered mail, postage prepaid,
as follows (or at such other address for a party as shall be specified by
like
notice): (i) if given to the Company, at its principal place of business,
and
(ii) if to the Participant, at the address set forth on page 1.
Any
notice properly given hereunder shall be effective on the date on which it
is
actually received by the party to whom it was addressed; provided however,
that
for a notice of exercise to be effective, such notice must be in conformity
with
the Plan and this Agreement, as determined by the Committee, in its discretion.
20. Entire
Agreement.
Subject
to the terms and conditions of the Plan, this Agreement sets forth the entire
agreement and understanding of the parties with regard to the Options granted
hereby and supersedes all prior agreements, arrangements and understandings
relating to the subject matter hereof.
21. Incorporation
By Reference; Relationship to Plan.
This
Agreement is being executed and delivered pursuant to the Plan, all of the
terms
of which are incorporated by reference into, and made a part of, this Agreement.
To the extent not specifically provided in this Agreement or otherwise required
by context, all capitalized terms used in this Agreement but not defined
herein
shall have the same meanings ascribed to them in the Plan. In the event of
an
irreconcilable conflict between the terms of the Plan and this Agreement,
the
terms of the Plan shall prevail. The Company shall provide a copy of the
Plan to
the Participant upon written request to the Company at its principal place
of
business. By the execution of this Agreement, the Participant that acknowledges
this Agreement and the Options are subject to the terms and conditions of
the
Plan.
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EXHIBIT
A
NOTICE
OF EXERCISE OF
STOCK
OPTION TO PURCHASE
COMMON
STOCK OF
FIRST
METROPLEX CAPITAL, INC.
Participant
Name:
Address
_____________________________________________
____________________________________________________
Date
__________________
First
Metroplex Capital, Inc.
00000
Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx,
Xxxxx 00000
Attn:
President
Re: Exercise
of Non-Qualified Stock Option
Gentlemen:
Subject
to acceptance hereof by First Metroplex Capital, Inc. (“Company”) and pursuant
to the provisions of the First Metroplex Capital, Inc. 2005 Stock Incentive
Plan
(“Plan”), I hereby give notice of my election to exercise options granted to me
to purchase _________ shares of common stock of the Company under the Stock
Option Award Agreement (“Agreement”) dated as of ____________. The purchase
shall take place as of __________, _____ (“Exercise Date”). All capitalized
terms used, but not otherwise defined, herein shall have the meanings given
them
in the Agreement.
On
or
before the Exercise Date, I will pay the applicable purchase price as
follows:
[
] by
delivery of cash or check, bank draft, money order or wire transfer of good
funds payable to the Company in the amount of $___________, which amount
represents the full purchase price of the shares of Stock to be issued upon
exercise hereof.
[
] if
permitted by the Committee, and upon any such conditions imposed by the
Committee, by delivery of _________ whole shares of Stock owned by me for
at
least six (6) months prior to the Exercise Date.
[
] by
delivery of cash or check, bank draft, money order or wire transfer of good
funds payable to the Company in the amount of $___________, which amount
represents a portion of the purchase price of the shares of Stock to be issued
upon exercise hereof and, if permitted by the Committee, and upon any such
conditions imposed by the Committee, by delivery of _________ shares of Stock
owned by me for at least six (6) months prior to the Exercise Date.
The
required federal, state, and local income tax withholding obligations, if
any,
on the exercise of the Option shall be satisfied on or before the Exercise
Date
in the manner provided in the Agreement. As soon as the stock certificate
is
registered in my name, please deliver it to me at address set forth
above.
Unless
the shares to be issued upon the exercise of the Option evidenced by this
notice
are registered for issuance to and resale by me pursuant to an effective
registration statement on Form S-8 (or successor form) filed under the
Securities Act of 1933, as amended (“Securities Act”), I hereby represent,
warrant, covenant, and agree with the Company as follows:
1. The
shares of Stock being acquired by me will be acquired for my own account
without
the participation of any other person, with the intent of holding the Stock
for
investment and without the intent of participating, directly or indirectly,
in a
distribution of the Stock and not with a view to, or for resale in connection
with, any distribution of the Stock, nor am I aware of the existence of any
distribution of the Stock.
2. I
am not
acquiring the Stock based upon any representation, oral or written, by any
person with respect to the future value of, or income from, the Stock but
rather
upon an independent examination and judgment as to the prospects of the
Company.
3. The
Stock
was not offered to me by means of publicly disseminated advertisements or
sales
literature, nor am I aware of any offers made to other persons by such
means.
4. I
am able
to bear the economic risks of the investment in the Stock, including the
risk of
a complete loss of my investment therein.
5. I
understand and agree that the Stock will be issued and sold to me without
registration under any federal or state law relating to the registration
of
securities for sale, and will be issued and sold in reliance on the exemptions
from registration under federal and applicable state securities
laws.
6. The
Stock
cannot be offered for sale, sold or transferred by me other than pursuant
to an
effective registration under the Securities Act or in a transaction otherwise
in
compliance with the Securities Act and evidence satisfactory to the Company
of
compliance with the applicable securities laws of other jurisdictions. The
Company shall be entitled to rely upon an opinion of counsel satisfactory
to it
with respect to compliance with the above laws.
7. The
Company will be under no obligation to register the Stock or to comply with
any
exemption available for sale of the Stock without registration or filing,
and
the information or conditions necessary to permit routine sales of securities
of
the Company under Rule 144 under the Securities Act are not now available
and no
assurance has been given that it or they will become available. The Company
is
under no obligation to act in any manner so as to make Rule 144 available
with
respect to the Stock.
8. I
have
and have had complete access to and the opportunity to review and make copies
of
all material documents related to the business of the Company, including,
but
not limited to, contracts, financial statements, tax returns, leases, deeds
and
other books and records. I have examined such of these documents as I wished
and
am familiar with the business and affairs of the Company. I realize that
the
purchase of the Stock is a speculative investment.
9. I
have
had the opportunity to ask questions of and receive answers from the Company
and
any person acting on its behalf and to obtain all material information
reasonably available with respect to the Company and its affairs. I have
received all information and data with respect to the Company which I have
requested and which I have deemed relevant in connection with the evaluation
of
the merits and risks of my investment in the Company.
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10. I
have
such knowledge and experience in financial and business matters that I am
capable of evaluating the merits and risks of the purchase of the Stock
hereunder and I am able to bear the economic risk of such purchase.
11. The
agreements, representations, warranties and covenants made by me herein extend
to and apply to all of the Stock issued to me pursuant to the Agreement,
and the
Company is entitled to rely on these agreements, representations, warranties
and
covenants in issuing the shares of Stock upon the exercise of the Option
evidenced by this notice. Acceptance by me of the certificate representing
such
Stock shall constitute a confirmation by me that all such agreements,
representations, warranties and covenants made herein shall be true and correct
at that time.
| Very truly yours, | ||
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AGREED TO AND ACCEPTED:
FIRST
METROPLEX CAPITAL, INC.
By:
_____________________________________________
Name:
___________________________________________
Title:
____________________________________________
Date:__________________
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SCHEDULE
1
VESTING
SCHEDULE
STOCK
OPTION AWARD ISSUED PURSUANT TO THE
FIRST
METROPLEX CAPITAL, INC. 2005 STOCK INCENTIVE PLAN
Except
as
otherwise expressly provided in the Agreement, the Options shall become vested
in accordance with the following schedule:
|
Percent
of Shares For
Which
Options Are Vested
|
As
of
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