EXHIBIT 10.5
1999 COMMERCE NATIONAL CORPORATION
DIRECTOR'S STOCK OPTION AGREEMENT
THIS AGREEMENT is made this 1st day of January, 1999, by and between
COMMERCE NATIONAL CORPORATION, a Florida corporation having offices at Orlando,
Florida (hereafter "Company"), and Xxx X. Xxxxxx, residing in Winter Park,
Florida, currently serving as a director of the Company (hereafter "Optionee").
WITNESSETH:
WHEREAS, Optionee is a valuable and trusted director of the Company,
and the Company considers it desirable and in its best interest that Optionee be
given an inducement to acquire further proprietary interest in the Company; and
WHEREAS, the Company desires to encourage, motivate, retain and
attract highly competent individuals such as Optionee upon whose judgment,
initiative, leadership and continued efforts the success of the Company in large
measure depends; and
WHEREAS, the options to purchase Stock of the Company hereunder are
granted in accordance with the 1999 Commerce National Corporation Directors'
Stock Plan.
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 herein, the following terms have the meanings hereinafter set
forth unless the context clearly indicates to the contrary:
(a) "Board" shall mean the Board of Directors of the Company.
(b) "Company" shall mean Commerce National Corporation.
(c) "Director" shall mean any individual who serves on the Board of
Directors of the Company and has entered into or is eligible to
enter into a Stock Option Agreement with the Company.
(d) "Equity Per Share" shall mean the Company's shareholders equity
per common share outstanding as of January 1, 1999.
(e) Option" shall mean an option to purchase Stock granted pursuant
to the provisions of Article IV hereof.
(f) "Plan" shall mean the 1999 Commerce National Corporation
Directors' Stock Plan.
(g) "Service" shall mean the tenure of Optionee as a director of the
Company.
(h) "Stock" or "Shares" shall mean the common stock, par value $0.10
per share, of the Company or, in the event that the outstanding
shares of Stock are hereafter changed into or exchanged for
shares of a different stock or securities of the Company or some
other corporation, such other stock or securities.
(i) "Stock Option Agreement" or "Agreement" shall mean this agreement
between the Company and the Optionee under which the Optionee may
purchase Stock hereunder, the terms of which are set forth
herein.
(j) "Subsidiary" shall mean any corporation, the majority of the
outstanding capital stock of which is owned, directly or
indirectly, by the Company.
(k) "Year" shall mean any calendar year during the term of this
Agreement from January 1 to December 31, inclusive.
ARTICLE II
Name and Effective Date
1.1 Name. This Agreement shall be known as the "1999 Commerce National
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Corporation - Xxx X. Xxxxxx Stock Option Agreement".
1.2. Effective Date. The Plan shall become effective as of the date indicated,
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above.
ARTICLE III
Shares of Stock Subject to Plan
2.1. Limitations. Subject to adjustment pursuant to the provisions of Section
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3.3 hereof, the Optionee may purchase up to Five Hundred (500) Shares
hereunder, which shall be issued and sold pursuant to the provisions of
this Agreement. Such Shares may be either authorized and unissued shares or
shares issued and thereafter acquired by the Company.
2.2. Option Granted Under Agreement. Shares with respect to which the Option
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granted hereunder shall have been exercised shall not again be available
for Option hereunder.
2.3. Antidilution. In the event that the outstanding shares of Stock hereafter
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are changed into or exchanged for a different number or kind of shares of
Stock or other securities of the Company or of another corporation by
reason of merger, consolidation, other reorganization, recapitalization,
reclassification, combination of shares, stock split-up, or stock dividend:
(7) The aggregate number and kind of shares subject to Option
granted hereunder shall be adjusted so that no dilution of the
Optionee's Shares shall result;
(8) Rights under outstanding Options granted hereunder, both as
to the number of subject shares and the Option price, shall be
adjusted so that no dilution of the Optionee's shares shall result;
and
(9) Where dissolution or liquidation of the Company or any
merger or combination in which the Company is not a surviving
corporation is involved, each outstanding Option granted hereunder
shall terminate, but the Optionee shall have the right, immediately
prior to such dissolution, liquidation, merger or combination, to
exercise his Option in whole or in part, to the extent that it shall
not have been exercised prior thereto.
ARTICLE IV
Options
9.1. Terms of Option. This Agreement shall expire December 31, 2008. The
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purchase price of each share of Stock subject to Option hereunder shall be
the Equity Per Share.
9.2. Option Exercise. This Option may be exercised in whole or in part with
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respect to whole shares only, within the period permitted for the exercise
thereof, and shall be exercised by written notice of intent to exercise the
Option with respect to a specific number of shares desired to be purchased,
and delivered to the Company at its principal office in the State of
Florida, with payment in full to the Company at said 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. Optionee shall not exercise his Option
or part thereof more often than once every sixty (60) days. In addition to
and at the time of payment of the Option price, Optionees shall pay to the
Company in cash the full amount of all federal and state withholding or
other employment taxes applicable to the taxable income of Optionee
resulting from such exercise, if any.
9.3. Nontransferability of Option. No Option shall be transferred by Optionee
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otherwise than by will or the laws of descent and distribution without
first obtaining the written consent of the Board. In the event an Option is
transferred in accordance with this section, the Optionee shall provide to
the Company all details of the terms and conditions of such transfer as may
be requested by the Company.
9.1. Effect of Termination of Service.
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(a) If Optionee's service with the Company shall be terminated
for any reason, including the disability or death of the
Optionee, his Option shall remain exercisable to the same
extent and for the same duration it was exercisable prior to
the termination for those number of Shares for which the
Option is deemed vested as described in Section 4.5 below,
and for three months after the date of such termination or
one year after the date of death, respectively, for the
number of Shares for which the Option is not deemed vested.
(b) No transfer of an Option by the Optionee by will or by the
laws of descent and distribution shall be effective to bind
the Company unless the Company shall have been furnished
with written notice thereof and an authenticated copy of the
will and/or such other evidence as the Company 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.
4.5 Vesting of Option Rights. Optionee will be deemed to be
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fully vested in his option rights under this Agreement on
the Effective date of this Agreement.
4.6 Rights as Shareholder. Optionee or transferee of an Option
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shall have no rights as a shareholder with respect to any
Shares subject to such Option prior to the purchase of such
Shares by exercise of such Option as provided herein.
ARTICLE V
Stock Certificates
The Company shall not be required to issue or deliver any certificate
for shares of Stock purchased upon the exercise of any 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 body, which
the Company shall in its sole discretion deem necessary or
advisable;
(c) The obtaining of any approval or other clearance from any
federal or state governmental agency which the Company 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 Company 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 Company may
increase the total number of shares of Stock subject to the Plan except as
contemplated in Article III hereof and provided further that no termination,
amendment or modification of the Plan shall in any manner affect this Agreement
under the Plan without the written consent of the Optionee which consent will be
deemed granted upon the Optionee's execution of a new Option Agreement
incorporating the changes.
ARTICLE VII
Miscellaneous
6.1. Service. Nothing in Stock Option Agreement shall confer upon Optionee
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the right to continue in the service of the Company or any Subsidiary.
6.2. Other Compensation Plans. The adoption of the Plan and the execution
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of this Stock Option Agreement shall not affect any other stock
option, incentive or other compensation plans in effect for the
Company or any Subsidiary, nor shall the Plan or Stock Option
Agreement preclude the Company from establishing any other forms of
incentive or other compensation for directors of the Company or any
Subsidiary.
6.3. Agreement Binding on Successors. This Agreement shall be binding upon
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the successors and assigns of the Company and the Optionee.
6.4. Singular, Plural; Gender. Whenever used herein, nouns in the singular
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shall include the plural, and the masculine pronoun shall include the
feminine gender.
6.5. Applicable Law. This Plan shall be governed by and construed in
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accordance with the laws of the State of Florida.
6.6. Headings, etc., No Part of Plan. Headings of Articles and Sections
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hereof are inserted for convenience and reference only; they
constitute no part of the Stock Option Agreement.
6.7. Severability. If any provision or provisions of the Plan or this
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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.
IN WITNESS WHEREOF, the parties hereto have set forth their hands and
seals.
Dated this _________________ day of ___________________, __________.
OPTIONEE
Witnesses:
________________________________ _________________________________
Xxx X. Xxxxxx
________________________________
(CORPORATE SEAL)
COMMERCE NATIONAL CORPORATION
Attest:
________________________________ By: _______________________________
Secretary President
