EXHIBIT 10.3
STOCK OPTION AGREEMENT
THIS AGREEMENT, dated as of the ____ day of ____________, 1998
(the "Agreement"), by and between Marine Bancshares, Inc. (the "Company") and
Xxxxxxx X. Xxxxx (the "Executive").
WITNESSETH:
WHEREAS, the Board of Directors of the Company, as organizers of
Marine National Bank of Naples (in organization), a proposed national bank to be
organized under the laws of the United States (the "Bank"), are seeking approval
from the Office of the Comptroller of the Currency and the Federal Deposit
Insurance Corporation to charter a national bank, the deposits of which will be
federally insured, in Naples, Florida; and
WHEREAS, the Company will seek approval from the Federal Reserve
Bank of Atlanta and the Federal Reserve Board to acquire the Bank and to become
a bank holding company; and
WHEREAS, the Company and the Bank (collectively referred to
herein as the "Employer") have agreed to employ Executive as the President and
Chief Executive Officer of the Company and the President and Chief Executive
Officer of the Bank pursuant to an Employment Agreement dated as of
_______________, 1998 by and between Employer and Executive ("Employment
Agreement"); and
WHEREAS, the Board of Directors of the Company has adopted that
certain Marine Bancshares, Inc. 1998 Stock Option Plan, as amended (the "Plan"),
a copy of which is attached hereto as Exhibit "A" and incorporated herein by
reference; and
WHEREAS, pursuant to the terms of the Plan and in consideration
of the efforts of Employee on behalf of the Company, the Board of Directors has
selected Employee to participate in the Plan and desires to grant to Employee
certain incentive stock options to purchase shares of the Company's authorized
$.01 par value common stock (the "Stock"), subject to the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing and the
covenants contained herein, the parties hereto agree as follows:
1. INCORPORATION OF PLAN PROVISIONS
This Agreement is subject to and is to be construed in all
respects in a manner which is consistent with the terms of the Plan, the
provisions of which are hereby incorporated by reference into this Agreement.
Unless specifically provided otherwise, all terms used in this Agreement shall
have the same meaning as in the Plan.
2. GRANT OF OPTIONS.
Subject to the terms and conditions set forth herein, the Company
hereby grants to Executive the right to purchase (the "Option") up to 25,000
shares of the Company's Stock, at a price of $10.00 per share, subject to
adjustment as provided in Section 5 hereof (the "Exercise Price"). This Option
is intended to be an Incentive Stock Option as provided in sectionsign 422 of
the Internal Revenue Code. The Board of Directors of the Company has determined,
in good faith and in its best judgment, that the fair market value per share of
the Stock as of the date this Option is granted is $10.00.
3. ADMINISTRATION.
3.1 COMPOSITION OF THE COMMITTEE. This Agreement shall be
administered by a committee (the "Committee") appointed by the Board of
Directors of the Company and composed of all of the Non-Employee Directors of
the Company, as defined in Rule 16b-3 promulgated under the Securities Exchange
Act of 0000 (xxx "Xxxxxxxx Xxx").
3.2 POWERS OF THE COMMITTEE. The Committee shall have the
authority to administer, construe and interpret this Agreement and to make all
determinations necessary or advisable for the administration of this Agreement.
Any determination, decision or action of the Committee in connection with the
construction, interpretation, administration or application of this Agreement
shall be final, conclusive and binding upon the Executive and any person validly
claiming under or through the Executive, provided however that the Committee may
not exercise the powers provided by this Subsection 3.2 in an arbitrary and
capricious manner.
4. VESTING OF OPTION SHARES AND EXERCISE OF PURCHASE RIGHTS.
4.1 VESTING AND EXERCISABILITY. Purchase rights under the Option
shall vest and Executive may exercise the Option only as follows:
(i) beginning on the day that the Bank opens for business (the
"Commencement Date"), the Option shall vest as to, and may be exercised to a
maximum of, 5,000 of the shares of Stock subject to this Agreement;
(ii) beginning on the first anniversary of the Commencement Date,
the Option shall vest as to, and may be exercised up to, an additional 5,000 of
the shares of Stock subject to this Agreement;
(iii) beginning on the second anniversary of the Commencement
Date, the Option shall vest as to, and may be exercised up to, an additional
5,000 of the shares of Stock subject to this Agreement;
(iv) beginning on the third anniversary of the Commencement Date,
the Option
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shall vest as to, and may be exercised up to, an additional 5,000 of the shares
of Stock subject to this Agreement; and
(v) beginning on the fourth anniversary of the Commencement Date,
the Option shall vest as to, and may be exercised up to, an additional 5,000 of
the shares of Stock subject to this Agreement.
To the extent that any portion of the Option has vested but has
not already been exercised, Executive may immediately exercise the remaining
portion of the Option upon a change of control of the Company or the Bank. To
the extent that any portion of the Option has not already vested, Executive may
exercise such portion only in accordance with notice received, if any, from the
Board of Directors. As used in this Agreement, a "change of control of the
Company or the Bank" shall mean a change in control of a nature that would be
required to be reported in response to Item 6(e) of Schedule 14A of Regulation
14A promulgated under the Exchange Act, whether or not the Company or the Bank
in fact is required to comply with Regulation 14A; provided that, without
limitation, such a change in control shall be deemed to have occurred if any
"person" (as such term is used in Sections 13(d) and 14(d) of the Exchange Act
in effect on the date first written above), other than the Company or the Bank,
respectively, is or becomes the "beneficial owner" (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of securities of the Company or
the Bank representing 20% or more of the combined voting power of the Company's
or the Bank's then outstanding securities.
Notwithstanding the foregoing, to the extent that any portion of
the Option has not been exercised, this Agreement shall terminate and be of no
further force and effect, and the Option shall expire, on the earliest of (a)
ninety (90) days after termination of Executive's employment with the Employer
for any reason except death, disability or retirement, (b) twelve months after
termination of Executive's employment with the Employer by reason of his death,
disability or retirement, or (c) the seventh (7th) anniversary of the
Commencement Date.
4.2 EXERCISE OF OPTION. Until such time as the Option shall lapse
or expire pursuant to Section 4.1 hereof, the Option may be exercised, in whole
or in part, by delivery to the Company of written notice of such exercise,
accompanied by full payment of the Exercise Price with respect to that portion
of the Option being exercised. Until the Company notifies Executive to the
contrary, the form attached to this Agreement as Exhibit A shall be used to
exercise the Option. The aggregate Exercise Price for the shares of Stock to be
purchased shall be paid either:
(i) in cash (including by certified check),
(ii) by delivery to the Company of shares of Stock valued at the
Market Price on the date of exercise of the Option,
(iii) by surrender to the Company of that portion of the Option
having an aggregate Option Value Per Share equal to the portion
of the aggregate Exercise Price which
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will not be paid in cash or by delivery of shares of Stock pursuant to (i) or
(ii) above, or
(iv) by any combination of the methods described in (i), (ii) or
(iii) above.
Upon each exercise or partial exercise of the Option, the Company
shall deliver to Executive a certificate or certificates representing the number
of shares of Stock being issued to and purchased by Executive, free and clear of
encumbrances.
For purposes of this Section 4.2, "Option Value Per Share" shall
mean, with respect to one share of Stock purchasable pursuant to this Option,
the excess of (i) the Market Price of one share of Stock issuable upon exercise
hereof, as determined with respect to the date notice of exercise is given by
Executive, over (ii) the Exercise Price therefor.
For purposes of this Section 4.2, "Market Price" shall mean the
last trade/closing price of the Stock on the date in question, as quoted by the
National Association of Securities Dealers, Inc. SmallCap Market System (or
other over-the-counter nationally recognized quotation service). If the Stock is
not traded on the Nasdaq SmallCap Market but is registered on a national
securities exchange or on the Nasdaq National Market System, "Market Price"
shall mean the closing sales price of the Stock on such national securities
exchange or National Market System. If the Stock is not traded on a national
securities exchange or through any other nationally recognized quotation
service, then "Market Price" shall mean the fair market value of the Stock as
determined by the Board of Directors of the Company or the Committee, acting in
good faith, under any method consistent with the Code, or Treasury Regulations
thereunder, as the Board of Directors of the Company or the Committee shall in
its discretion select and apply. Subject to the foregoing, the Board of
Directors of the Company or the Committee, in fixing the Market Price, shall
have full authority and discretion and be fully protected in doing so.
4.3 RESTRICTION UPON SHARES OF STOCK ISSUED UPON EXERCISE.
Executive further agrees, for himself and his successors, that, upon the
issuance of any shares of Stock upon exercise of the Option, he will, upon
request of the Company, agree in writing that he is acquiring such shares for
investment only and not with a view to resale, and that he will not sell, pledge
or otherwise dispose of such shares unless and until (a) the Company is
furnished with an opinion of counsel reasonably acceptable to the Company to the
effect that registration of such shares pursuant to the Securities Act of 1933,
as amended, is not required by that Act and the rules and regulations
thereunder; (b) the staff of the Securities and Exchange Commission has issued a
"no action" letter with respect to such disposition; or (c) such registration or
notification as is required, in the opinion of counsel for the Company, for the
lawful disposition of such shares has been filed by the Company and has become
effective; PROVIDED, HOWEVER, that the Company is not obligated hereby to file
any such registration or notification. Executive further agrees that the Company
may place a legend embodying such restriction on the certificates evidencing
such shares.
5. ADJUSTMENT UPON CHANGES IN CAPITALIZATION.
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The type and number of shares of Stock subject to the Option and
the Exercise Price with respect thereto shall be adjusted by the Committee to
reflect such events as stock dividends, stock splits, recapitalizations,
mergers, consolidations or reorganizations of or by the Company, so as to
provide to Executive as nearly as possible the same economic effect as
contemplated by the Option prior to such stock dividend, stock split,
recapitalization, merger, consolidation or reorganization.
6. RIGHTS AS STOCKHOLDER.
Executive shall have no rights as a stockholder with respect to
any shares of Stock subject to the Option until and unless a certificate or
certificates representing such shares are issued to Executive pursuant to
Section 4.2 of this Agreement. Except as provided in Section 5, no adjustment
shall be made for dividends or other rights for which the record date is prior
to the issuance of such certificate or certificates.
7. NO RIGHT TO EMPLOYMENT.
Neither the granting of the Option evidenced by this Agreement
nor any term or provision of this Agreement shall constitute or be evidence of
any understanding, express or implied, on the part of the Company or the Bank to
employ Executive for any period of time.
8. NONTRANSFERABILITY.
The Option is not transferable by Executive other than by will or
by the laws of descent and distribution, and is exercisable, during Executive's
lifetime, only by Executive or, during his disability, by his legal
representative, or, after his death, by his estate.
9. MISCELLANEOUS.
9.1 HEADINGS. The headings in this Agreement are inserted for
convenience only and shall have no affect on the interpretation of this
Agreement.
9.2 ENTIRE AGREEMENT. This Agreement, the Employment Agreement,
and the documents referred to therein contain the entire agreement between the
parties with respect to the transactions contemplated hereby and supersede all
prior arrangements or understandings, written or oral, with respect thereto.
9.3 MODIFICATION. No modification or amendment of this Agreement
shall be valid unless it is in writing and signed by the Executive and by a duly
designated member of the Committee on behalf of the Employer.
9.4 SUCCESSORS. The terms and conditions of this Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective heirs, personal representatives
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and successors.
9.5 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the state of Florida applicable to
agreements made and to be performed entirely within such jurisdiction except to
the extent that federal law may be applicable.
9.6 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original and all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, each of the parties hereto has executed this
Agreement as of the day and year first above written.
MARINE BANCSHARES, INC. XXXXXXX X. XXXXX
By:________________________ _____________________________
Name:
Title:
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EXHIBIT A
EXERCISE OF OPTION
To: The Board of Directors
Marine Bancshares, Inc.
Gentlemen:
The undersigned, as optionee under the Stock Option Agreement by
and between Marine Bancshares, Inc. (the "Company") and Xxxxxxx X. Xxxxx, dated
as of __________, 1998 (the "Agreement"), hereby irrevocably elects to exercise
the Option granted in the Agreement to purchase ______ shares of Common Stock of
the Company, par value $.01 per share, and herewith makes payment of
$___________.
Dated: _______________________ ________________________
Xxxxxxx X. Xxxxx
Date Received: ________________
Received by: __________________
Title: ________________________
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