EXHIBIT 10.5.1
NON-QUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT, made as of the ______ day of ____________, 1994 (the "Grant
Date"), by and between FIRST CAPITAL BANCORP, INC. (the "Company") and
__________________________ (the "Optionee");
W I T N E S S E T H:
WHEREAS, the Committee has authorized the grant to Optionee of a
non-qualified stock option authorizing Optionee to purchase shares of common
stock of the Company under the First Capital Bancorp, Inc. 1994 Stock Incentive
Plan (the "Plan"); and
WHEREAS, the Company and Optionee wish to confirm the terms and conditions
of the option;
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
it is hereby agreed between the parties hereto as follows:
1. Grant of Option. Subject to the terms, restrictions, limitations and
conditions stated herein and in the Plan, the Company hereby grants to the
Optionee an option (the "Option") to purchase all or any part of 1,144 shares of
common stock, $1.00 par value per share, of the Company (the "Common Stock").
2. Term and Exercise of Option. Subject to the provisions of this
Agreement:
(a) The Option shall be exercisable during the Option Period (as
defined in Section 4 hereof) only to the extent of the number of Vested
Shares determined pursuant to the vesting schedule attached hereto as
Schedule I, reduced by the number of Vested Shares previously exercised
pursuant to this Agreement.
(b) The Option may be exercised with respect to all or any portion of
the Vested Shares at any time during the Option Period by the delivery to
the Company, at its principal place of business, of (i) a written notice of
exercise in substantially the form attached hereto as Exhibit 1, which
shall be actually delivered to the Company no earlier than thirty (30) days
and no later than ten (10) days prior to the date upon which Optionee
desires to exercise all or any portion of the Option; (ii) payment to the
Company of the Exercise Price, defined in Section 3 below, multiplied by
the number of shares being purchased (the "Purchase Price") in the manner
provided in Subsection (c) hereof; and (iii) cash or a certified check
representing payment of all withholding tax obligations (whether federal,
state or local), imposed by reason of the exercise of the Option, if any.
Upon acceptance of such notice, receipt of payment in full of the Purchase
Price, and receipt of payment of all withholding tax obligations, if any,
the
Company shall cause to be issued a certificate representing the shares
of Common Stock purchased.
(c) The Purchase Price shall be paid in full upon the exercise of an
Option and no shares of Common Stock shall be issued or delivered until
full payment therefor has been made.
Payment of the Purchase Price for all shares of Common Stock purchased
pursuant to the exercise of an Option shall be made in cash or by certified
check or, alternatively, as follows:
i. by delivery to the Company of a number of shares of Common
Stock which have been owned by the Optionee for at least six months
prior to the date of the Option's exercise having a Fair Market Value
on the date of exercise either equal to the Purchase Price or in
combination with cash to equal the Purchase Price; or
ii. if and when the Common Stock becomes traded by brokers,
whether on a national securities exchange or otherwise, by receipt of
the Purchase Price in cash from a broker, dealer or other "creditor"
as defined by Regulation T issued by the Board of Governors of the
Federal Reserve System following delivery by the Optionee to the
Committee of instructions in a form acceptable to the Committee
regarding delivery to such broker, dealer or other creditor of that
number of shares of Common Stock with respect to which the Option is
exercised.
3. Exercise Price. The exercise price for each share of Common Stock for
which the Option is exercised shall be $3.39, subject to adjustment as set forth
in Section 7 hereof (the "Exercise Price").
4. Term and Termination of Option. Except as otherwise provided below, the
term of the Option (the "Option Period") shall commence on the Grant Date and
terminate on the date of the first to occur of the following events:
(a) the tenth anniversary of the Grant Date; or
(b) twelve (12) months following the date the Optionee ceases to be a
director of the Company or a Subsidiary for any reason.
Upon the expiration of the Option Period, this Option and all unexercised rights
granted to Optionee hereunder shall terminate, and thereafter be null and void.
5. Rights as Shareholder. Until the stock certificates reflecting the
Common Stock accruing to the Optionee upon exercise of the Option are issued to
the Optionee, the Optionee shall have no rights as a shareholder with respect to
such Common Stock. The Company shall make no adjustment for any dividends or
distributions or other rights on or with respect to shares of Common Stock
purchased pursuant to the Option for which the record date is prior to the
issuance of that stock certificate, except as this Agreement otherwise provides.
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6. Restriction on Transfer of Option. The Option evidenced hereby is
nontransferable other than by will or the laws of descent and distribution, and,
shall be exercisable during the lifetime of the Optionee only by the Optionee
(or in the event of his Disability, by his personal representative) and after
his death, only by his personal representative.
7. Change in Capitalization. (a) The Exercise Price of the Option and the
number of shares of Common Stock reserved for issuance under the Option shall be
proportionately adjusted for any increase or decrease in the number of issued
shares of Common Stock resulting from a subdivision or combination of shares or
the payment of a stock dividend in shares of Common Stock to holders of
outstanding shares of Common Stock or any other increase or decrease in the
number of shares of Common Stock outstanding effected without receipt of
consideration by the Company.
(b) In the event of a merger, consolidation or other reorganization of
the Company or tender offer for shares of Common Stock, other than a Change in
Control, the Committee shall make such adjustments with respect to the Option
and take such other action as it deems necessary or appropriate to reflect (or
in anticipation of) such merger, consolidation, reorganization or tender offer.
In the event of a Change in Control, the provisions of Schedule I of this
Agreement shall be given effect; provided that, in the event the Company will
not be the surviving entity as a result of the Change in Control and the
surviving entity does not agree to the assumption of the Option, the Committee
may elect to terminate the Option Period as of the date of the Change in Control
in consideration of the payment to the Optionee of the sum of the difference
between the then Fair Market Value of the Common Stock and Exercise Price for
each share of Common Stock subject to the Option, but as to which the Option
remains unexercised, as of the date of the Change in Control.
(c) The existence of the Plan and the Option granted pursuant to this
Agreement shall not affect in any way the right or power of the Company to make
or authorize any adjustment, reclassification, reorganization or other change in
its capital or business structure, any merger or consolidation of the Company,
any issue of debt or equity securities having preferences or priorities as to
the Common Stock or the rights thereof, the dissolution or liquidation of the
Company, any sale or transfer of all or any part of its business or assets, or
any other corporate act or proceeding. Any adjustment pursuant to this Section
may provide, in the Committee's discretion, for the elimination without payment
therefor of any fractional shares that might otherwise become subject to any
Option.
8. Special Limitation on Exercise. No purported exercise of the Option
shall be effective without the approval of the Committee, which 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 shares of Common Stock purchasable or
otherwise deliverable under the Option, the Optionee (a) shall deliver to the
Company, prior to the exercise of the Option or as a condition to the delivery
of Common Stock
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pursuant to the exercise of an 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 Common Stock is 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 Common 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.
9. Legend on Stock Certificates. Certificates evidencing the Common Stock,
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 in this
Agreement and in the Plan.
10. Governing Laws. This Agreement shall be construed, administered and
enforced according to the laws of the State of Georgia; provided, however, no
option may be exercised except, in the reasonable judgment of the Committee, in
compliance with exemptions under applicable state securities laws.
11. Successors. This Agreement shall be binding upon and inure to the
benefit of the heirs, legal representatives, successors and permitted assigns of
the parties.
12. Notice. Except as otherwise specified herein, all notices and other
communications under this Agreement shall be in writing and shall be deemed to
have been given if personally delivered or if sent by registered or certified
United States mail, return receipt requested, postage prepaid, addressed to the
proposed recipient at the last known address of the recipient. Any party may
designate any other address to which notices shall be sent by giving notice of
the address to the other parties in the same manner as provided herein.
13. Severability. In the event that any one or more of the provisions or
portion thereof contained in this Agreement shall for any reason be held to be
invalid, illegal or unenforceable in any respect, the same shall not invalidate
or otherwise affect any other provisions of this Agreement, and this Agreement
shall be construed as if the invalid, illegal or unenforceable provision or
portion thereof had never been contained herein.
14. Entire Agreement. Subject to the provisions of the Plan, this Agreement
expresses the entire understanding and agreement of the parties. This Agreement
may be executed in two or more counterparts, each of which shall be deemed an
original but all of which shall constitute one and the same instrument.
15. Violation. Any transfer, pledge, sale, assignment, or hypothecation of
the Option or any portion thereof shall be a violation of the terms of this
Agreement and shall be void and without effect.
16. Headings and Capitalized Terms. Paragraph headings used herein are for
convenience of reference only and shall not be considered in construing this
Agreement. Capitalized terms used, but not defined herein, shall be given the
meaning ascribed to them under the Plan.
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17. Specific Performance. In the event of any actual or threatened default
in, or breach of, any of the terms, conditions and provisions of this Agreement,
the party or parties who are thereby aggrieved shall have the right to specific
performance and injunction in addition to any and all other rights and remedies
at law or in equity, and all such rights and remedies shall be cumulative.
18. No Rights Created. The grant of the Option shall not be construed as
giving the Optionee the right to continued service upon the Board of Directors
or the board of directors of a Subsidiary.
IN WITNESS WHEREOF, the parties have executed and sealed this Agreement on
the day and year first set forth above.
FIRST CAPITAL BANCORP, INC.
By:_________________________
Title:______________________
ATTEST:
_____________________________
Title:_______________________
[CORPORATE SEAL]
OPTIONEE
_______________________(SEAL)
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SCHEDULE I
TO FIRST CAPITAL BANCORP, INC.
NON-QUALIFIED STOCK OPTION AGREEMENT
Vesting Schedule
----------------
"Vested Shares" means only that percentage of the number of shares of
Common Stock subject to the Option as to which the Option becomes exercisable
following the dates indicated in the schedule below.
Percentage of Shares Period
Which are Vested Shares after Grant Date
----------------------- ----------------
0% prior to January 1, 1995
100% on or after January 1, 1995
Notwithstanding the foregoing Vesting Schedule, the Option shall become fully
vested and exercisable during the Option Period if and when the Optionee retires
on or after age 65 or upon the occurrence of any Change in Control or any
earlier date specified by the Committee in writing to the Optionee subsequent to
or contemporaneously with a determination by the Committee that a Change in
Control is imminent.
------------------
1. Construction. The right of Optionee to vest in Common Stock shall
cease upon the termination of his or her service as a director of the Company or
a Subsidiary, whether by reason of death, Disability or otherwise and,
thereafter, no further shares shall become Vested Shares; and the Option shall
be exercisable during the Option Period specified in Section 4 of the Agreement.
SCHEDULE 1 to Non-Qualified Stock Option Agreement - Page 1
EXHIBIT 1
---------
NOTICE OF EXERCISE OF
FIRST CAPITAL BANCORP, INC.
STOCK OPTION TO PURCHASE
COMMON STOCK OF
FIRST CAPITAL BANCORP, INC.
Name_____________________________
Address__________________________
__________________________
Date_____________________________
First Capital Bancorp, Inc.
0000 Xxxxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxx 00000
Re: Exercise of Non-Qualified Stock Option
Gentlemen:
Subject to acceptance hereof in writing by First Capital Bancorp, Inc. (the
"Company") pursuant to the provisions of the First Capital Bancorp, Inc. 1994
Stock Incentive Plan, I hereby give at least ten days but not more than thirty
days prior notice of my election to exercise options granted to me to purchase
______________ shares of Common Stock of the Company under the First Capital
Bancorp, Inc. Non-Qualified Stock Option Agreement dated as of ________________,
1994. The purchase shall take place as of ________, 199_ (the "Exercise Date").
On or before the Exercise Date, I will pay the applicable purchase price as
follows:
[ ] by delivery of cash or a certified check for $___________ for
the full purchase price payable to the order of First Capital Bancorp,
Inc.
[ ] by delivery of cash or a certified check for $_______________
representing a portion of the purchase price with the balance to
consist of shares of Common Stock that I have owned for at least six
months and that are represented by a stock certificate I will
surrender to the Company with my endorsement. If the number of shares
of Common Stock represented by such stock certificate exceed the
number to be applied against the purchase price, I understand that a
new stock certificate will be issued to me reflecting the excess
number of shares.
[ ] by delivery of a stock certificate representing shares of
Common Stock that I have owned for at least six months which I will
surrender to the Company with my endorsement as payment of the
purchase price. If the number of shares of Common Stock represented by
such certificate exceed the number to be applied
EXHIBIT 1 to Non-Qualified Stock Option Agreement - Page 1
against the purchase price, I understand that a new certificate will
be issued to me reflecting the excess number of shares.
[ ] by delivery of the purchase price by ____________________, a
broker, dealer or other "creditor" as defined by Regulation T issued
by the Board of Governors of the Federal Reserve System. I hereby
authorize the Company to issue a stock certificate in number of shares
indicated above in the name of said broker, dealer or other creditor
or its nominee pursuant to instructions received by the Company and to
deliver said stock certificate directly to that broker, dealer or
other creditor (or to such other party specified in the instructions
received by the Company from the broker, dealer or other creditor)
upon receipt of the purchase price.
The required federal, state and local income tax withholding, if any, on
the exercise of the option shall be paid on or before the Exercise Date in cash
or by certified check, or in the manner provided in the Withholding Election
previously tendered or to be tendered to the Company no later than the Exercise
Date.
As soon as the stock certificate is registered in my name, please delivery
it to me at the above address.
If the Common Stock being acquired is not registered for issuance to and
resale by the Optionee pursuant to an effective registration statement on Form
S-8 (or successor form) filed under the Securities Act of 1933, as amended (the
"1933 Act"), I hereby represent, warrant, covenant, and agree with the Company
as follows:
The shares of the Common 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 Common Stock for investment and without the intent of
participating, directly or indirectly, in a distribution of the Common
Stock and not with a view to, or for resale in connection with, any
distribution of the Common Stock, nor am I aware of the existence of any
distribution of the Common Stock; I am not acquiring the Common Stock based
upon any representation, oral or written, by any person with respect to the
future value of, or income from, the Common Stock but rather upon an
independent examination and judgment as to the prospects of the Company;
The Common 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;
I am able to bear the economic risks of the investment in the Common
Stock, including the risk of a complete loss of my investment therein;
I understand and agree that the Common Stock will be issued and sold
to me without registration under any state law relating to the registration
of securities for sale, and will be issued and sold in reliance on the
exemptions from registration under the 1933 Act,
EXHIBIT 1 to Non-Qualified Stock Option Agreement - Page 2
provided by Sections 3(b) and/or 4(2) thereof and the rules and regulations
promulgated thereunder;
The Common Stock cannot be offered for sale, sold or transferred by me
other than pursuant to: (A) an effective registration under the 1933 Act or
in a transaction otherwise in compliance with the 1933 Act; and (B)
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; The Company will be under no obligation to
register the Common Stock or to comply with any exemption available for
sale of the Common 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 1933 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 Common Stock;
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 Common Stock is
a speculative investment and that any possible profit therefrom is
uncertain;
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;
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
Common Stock hereunder and I am able to bear the economic risk of such
purchase; and The agreements, representations, warranties and covenants
made by me herein extend to and apply to all of the Common Stock of the
Company issued to me pursuant to this Option. Acceptance by me of the
certificate representing such Common 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.
EXHIBIT 1 to Non-Qualified Stock Option Agreement - Page 3
I understand that the certificates representing the shares being
purchased by me in accordance with this notice shall bear a legend
referring to the foregoing covenants, representations and warranties and
restrictions on transfer, and I agree that a legend to that effect may be
placed on any certificate which may be issued to me as a substitute for the
certificates being acquired by me in accordance with this notice.
Very truly yours,
___________________________
AGREED TO AND ACCEPTED:
FIRST CAPITAL BANCORP, INC.
By:_________________________
Title:______________________
Number of Shares
Exercised:__________________
Number of Shares
Remaining:__________________ Date:________________________
EXHIBIT 1 to Non-Qualified Stock Option Agreement - Page 4
