EXHIBIT 4.6
(ISO)
FORM OF
STOCK OPTION AGREEMENT
This Stock Option Agreement ("Agreement") entered into effective as of
_________ by and between COMMERCIAL BANCSHARES, INC., a Texas corporation
("Company"), and _________ ("Employee"), witnesses as follows:
WHEREAS, the Company has adopted the Incentive Stock Option Plan For Key
Employees ("Plan"); and
WHEREAS, Employee is an employee of the Company; and
WHEREAS, Employee's affiliation with the Company is valued by the
Company and the Company believes that Employee's contributions to the
Company are important to the Company's growth and success; and
WHEREAS, the Company believes it is advisable and in its best interest
to provide Employee with additional incentive by providing him with an
opportunity to acquire a proprietary interest in the Company by granting to
Employee certain options to purchase shares of common stock, $0.10 par
value per share, of the Company ("Common Stock");
NOW, THEREFORE, the parties hereto agree as follows:
1. Grant of Option. The Company hereby grants to Employee the right,
privilege and option ("Option") to purchase up to ___________ shares of
Common Stock ("Option Shares"), in accordance with and subject to the terms
and conditions of the Plan, as it may be further limited by this Agreement.
Employee shall be entitled to exercise the Option only to the extent
provided in Section 4.
2. Purchase Price. The purchase price for each of the Option Shares
acquired pursuant to the Option shall be ________, subject to adjustment
as provided in Section 6 hereof.
3. Option Period. Subject to Section 7 of the Plan, the Option may be
exercised commencing on the later of (a) one year from the date hereof or
(b) _____. The Option shall terminate at 5:00 p.m., Houston, Texas, local
time, on _____ any Option Shares as to which the Option has not then been
duly exercised, subject to earlier termination in accordance with the Plan.
4. Exercisable Shares. The Option shall be exercisable only to the
extent that the Option Shares are vested ("Exercisable Option Shares").
Option Shares shall become vested (and, hence, Exercisable Option Shares)
in accordance with the vesting schedule attached hereto as Exhibit A or, if
no such schedule is attached (or, if attached, does not reflect a completed
schedule), shall be deemed fully vested on the date the Option is first
exercisable.
5. Method of Exercise. To exercise the Option, Employee shall deliver
written notice to the Company at its principal place of business stating
the number of Exercisable Option Shares with respect to which the Option is
being exercised and specifying a date, not less than five nor more than
thirty days after the date of such notice, as the date on which such shares
will be taken up and payment made therefor in cash to the Company. If any
law or regulation requires the Company to take any action with respect to
the shares specified in such notice, then the date for the delivery of such
shares against payment therefor shall be extended by the period necessary
to take such action. In the event of any failure to take up and pay for the
number of shares specified in such notice on the date set forth therein (as
extended by the preceding sentence), the exercise of the Option with
respect to such number of Exercisable Option Shares shall be treated as if
it had never been made. Options may be exercised, during the lifetime of
Employee, only by Employee and thereafter only by his legal representative.
6. Anti-dilution Provisions. In case at any time from time to time after
the date hereof and during the existence of this Option, any of the
following events occurs, the indicated adjustments shall be made in the
purchase price (as in effect at the time of such event and from time to
time in effect thereafter), and the number of shares of Common Stock
deliverable under this Option, as appropriate:
(a) If the Company subdivides its outstanding shares of Common Stock
into a greater number of shares, the purchase price in effect
immediately prior to such division shall be proportionately reduced and
the number of shares purchasable and exercisable under the Option shall
be proportionately increased. If the outstanding shares of Common Stock
are in any manner combined into a smaller number of shares, the
purchase price in effect immediately prior to such combination shall be
proportionately increased and the number of shares purchasable and
exercisable under the Option shall be proportionately reduced.
(b) If the Company declares any dividend on its Common Stock payable
in stock or other securities of the Company or of any other
corporation, or in property or otherwise than in cash, to the holders
of its Common Stock, Employee shall, without additional cost, be
entitled to receive upon any purchase of Option Shares exercised under
this Option, in addition to the shares of Common Stock to which he
would otherwise be entitled, the number of shares of stock or other
securities or property which he would have been entitled to receive if
Employee had been a holder, immediately prior to the record date for
such dividend, of the number of shares of Common Stock purchased
pursuant to such exercise.
(c) If there occurs any recapitalization or reclassification of the
Common Stock, as a result of which holders of the Common Stock receive
securities or property in lieu of or in addition to, but on account of,
their Common Stock, Employee, upon any exercise after the record date
for determination of shareholders entitled to such other stock,
securities or property, shall receive, in lieu of or in addition to any
shares of Common Stock, such proportionate shares of all stock,
securities or other property issued, paid or delivered for or on all of
the Common Stock as would have been allocable to the shares of Common
Stock that would have been acquired pursuant to the Option if such
acquisition had been made immediately prior to such record date.
7. Effect on Corporate Transactions. The existence of the Option shall
not affect in any way the right or power of the Company or its shareholders
to make or authorize any and all adjustments, recapitalizations,
reorganizations or other changes in the Company's capital structure or its
business, or any merger or consolidation of the Company or any issue of
common stock, bonds, debentures, preferred or prior preference stock ahead
of or affecting the Option Shares or the rights thereof and at any price
determined by the Board of Directors of the Company, or the dissolution or
liquidation of the Company or the sale or transfer of any or all of its
assets or business, or any other corporate act or proceeding, whether of a
similar character or otherwise.
If the Company is merged into or consolidated with another corporation
under circumstances where the Company is not the surviving corporation, or
if the Company is liquidated (including as the result of an involuntary
dissolution), or engages in any corporate separation or division,
including, but not limited to, split-up, split-off or spin-off, sale or
other disposition of its assets to another corporation during the period of
the Option hereunder, (a) subject to the provisions of clause (c) below,
after the effective date of such merger, consolidation, liquidation or
other transaction, as the case may be, Employee shall be entitled, upon
exercise of the Option, to receive, in lieu of Common Stock of the Company,
shares of such stock or other securities as the holders of Common Stock of
the Company received, if any, pursuant to the terms of the merger,
consolidation or other transaction; (b) the Board of Directors of the
Company may waive any limitations set forth in or imposed pursuant to
Sections 3 and 4 hereof so that the Option, from and after a date prior to
the effective date of such merger, consolidation, liquidation or other
transaction, as the case may be, specified by such Board, may be
exercisable in full; and/or (c) the Option may be cancelled by the Board of
Directors of the Company as of the effective date of any such merger,
consolidation, liquidation or other transaction provided that (i) notice of
such cancellation shall be given to
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Employee and (ii) Employee shall have the right to exercise the option in
full (without regard to any limitations set forth in or imposed pursuant to
Sections 3 or 4 hereof) during a 30-day period preceding the effective date
of such merger, consolidation, liquidation, or other transaction.
8. Certain Restrictions. Employee understands that the Option is not
registered under the Securities Act of 1933, as amended (the "Act") and the
Company has no obligation to register under the Act the Option or any of
the shares of Common Stock subject to and issuable upon the exercise of the
Option. Employee represents that the Option is being acquired by him and
that such shares of Common Stock will be acquired by him for his own
account for investment and without a view to resale or distribution in
violation of the Act or any other securities law, and, upon any such
acquisition, Employee will enter into such written representations,
warranties and agreements as the Company may reasonably request in order to
comply with the Act or any other securities law or with this Agreement. All
certificates for the shares issued upon exercise of the Option or any
related stock appreciation rights will bear the following legend unless
such shares are registered under the Act prior to their issuance:
The shares represented by this Certificate have not been
registered under the Securities Act of 1933 (the "Act"), and
are "restricted securities" as that term is defined in Rule
144 under the Act. The shares may not be offered for sale,
sold or otherwise transferred except pursuant to an effective
registration statement under the Act or pursuant to an
exemption from registration under the Act, the availability
of which is to be established to the satisfaction of the
Company.
9. No Rights in Shares. Employee shall have no rights as a shareholder
in respect of Option Shares as to which the Option shall not have been
exercised, payment made as herein provided and certificates representing
such Option shares issued in Employee's name, and shall have no rights with
respect to such option shares not expressly conferred by this Agreement.
10. Indemnity. Employee shall be solely responsible for the payment of
all withholding and other federal or state employment or other taxes (if
any) attributable to the option and will indemnity and hold harmless the
Company, its successors and assigns, against all such taxes (and any and
all related interest and penalties) and all costs and expenses, including
attorneys' fees related to defending any such claims for taxes.
11. Amendment and Termination. No amendment or termination of this
Agreement may be made except by written agreement of the Company and
Employee except as provided in Section 10 of the Plan and further except
that this Agreement may be amended unilaterally by the Company in order to
give full effect to the provisions of the Plan and to comply with federal
and state laws regulating the taxation of options and the issuance and sale
of the Company's securities.
12. Nonassignability of Option. This Agreement may not be assigned or
transferred by Employee otherwise than by will or the laws of descent and
distribution.
13. Effect on Employment. Nothing in this Agreement shall confer upon
Employee any right to continue in the employ of or other relationship with
the Company or interfere in any way with the right of the Company to
terminate such employment or other relationship between Employee and the
Company.
14. Notice. All notices, requests, demands and other communications
required or permitted hereunder shall be in writing and if by facsimile
transmission, telecopy, telex, or personal delivery shall be deemed to have
been given when sent; if sent by Federal Express or Express Mail shall be
deemed to have been given the next succeeding day; and if mailed shall be
deemed to have been given three days after the date when sent by registered
or certified mail, postage prepaid and addressed to a party at its address
as shown below its signature to this Agreement or to such other address as
he may, by written notice received by the other party, have designated as
his address for such purpose.
15. Gender and Number. Whenever required by the context of this
Agreement, the singular includes the plural, and the masculine includes the
feminine or the neuter.
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16. GOVERNING LAW. THIS AGREEMENT IS TO BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAW, AND IS PERFORMABLE IN XXXXXX COUNTY,
TEXAS. EACH PARTY HERETO HEREBY SUBMITS TO THE JURISDICTION OF THE COURTS
OF THE STATE OF TEXAS AND THE FEDERAL COURTS IN AND FOR THE SOUTHERN
DISTRICT OF TEXAS IN CONNECTION WITH ANY MATTER RELATING TO THIS AGREEMENT
AND ANY OTHER DOCUMENT EXECUTED IN CONNECTION HEREWITH.
17. Severability. This Agreement is intended to be performed in
accordance with, and only to the extent permitted by, all applicable laws,
ordinances, rules and regulations. If any provision of this Agreement, or
the application thereof to any person or circumstance, is for any reason or
to any extent invalid or unenforceable, the remainder of the Agreement and
the application of such provision to the other persons or circumstances
shall not be affected thereby, but rather is to be enforced to the greatest
extent permitted by law.
18. Captions. The captions used in this Agreement are for convenience
only and are not to be construed in interpreting this Agreement.
19. No Third Party Beneficiaries. This Agreement is intended for the
exclusive benefit of the parties to this Agreement and their respective
personal representatives, successors and permitted assigns, and nothing
contained in this Agreement shall be construed as creating any rights or
benefits in or to any third party.
20. Stock Appreciation Rights. If, in accordance with the Plan, the
Company has granted any stock appreciation rights to Employee in
conjunction with the Option, the terms of such stock appreciation rights
shall be as provided in Exhibit B attached hereto and as otherwise
described in the Plan. The grant of the Option to Employee shall not be
construed to obligate the Company to grant any stock appreciation right to
Employee. Any stock appreciation right granted to Employee shall be
exercisable only to the extent the related Option is exercisable and shall
terminate concurrent with the termination of such Option.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
EMPLOYEE COMMERCIAL BANCSHARES, INC
_____________________________________ By: ______________________________
Name: _______________________________ Name: ____________________________
Address: ____________________________ Title: ___________________________
_____________________________________ Address: _________________________
Social Security No.: ________________ __________________________________
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