NONQUALIFIED STOCK OPTION AGREEMENT
Exhibit 4.8
POST OAK BANCSHARES, INC.
This Nonqualified Stock Option Agreement (“Option Agreement”) is between Post Oak Bancshares, Inc., (the “Company”), and __________________ (the “Optionee”), who agree as follows:
1.Introduction. The Company has heretofore adopted the Post Oak Bancshares, Inc. Stock Option Plan (the “Plan”) for the purpose of encouraging ownership of common stock of the Company by key employees, directors and advisory directors of the Company and its Affiliates (as defined in the Plan) and to provide increased incentive for such persons to render services and to exert maximum effort for the success of the Company. The Company, acting through the Compensation Committee of its Board of Directors (the “Committee”), has determined that its interests will be advanced by the issuance to Optionee of a nonqualified stock option under the Plan.
2. Option. Subject to the terms and conditions contained herein, the Company hereby irrevocably grants to Optionee the right and option (“Option”) to purchase from the Company ______ shares of the Company’s common stock, $0.01 par value (“Common Stock”), at a price of $______ per share.
3. Option Period. The Option herein granted may be exercised by Optionee in whole or in part at any time during a ten year period (the “Option Period”) beginning on ______________ (the “Date of Grant”), subject to the limitation that such Option shall be exercisable on or after the specified date for not more than the percentage of the aggregate number of shares of Common Stock granted by this Option Agreement, in accordance with the following schedule:
Date | Percentage of Shares Purchasable | |
20% 20% 20% 20% 20% | ||
Notwithstanding anything in this Option Agreement to the contrary, the Committee, in its sole discretion, may waive the foregoing schedule of vesting and upon written notice to Optionee, accelerate the earliest date or dates on which any of the Options granted hereunder are exercisable.
4. Procedure for Exercise. The Option herein granted may be exercised by the delivery by Optionee of written notice to the Secretary of the Company setting forth the number of shares of Common Stock with respect to which the Option is being exercised. The notice shall be accompanied (i) at the election of the Optionee, by cash, cashier’s check, bank draft, or postal or express money order payable to the order of the Company, (ii) as allowed by the Committee, by certificates representing shares of Common Stock theretofore owned by Optionee duly endorsed for transfer to the Company, or (iii) any combination of the preceding, equal in value to the aggregate exercise price. Notice may also be delivered by fax or telecopy provided that the exercise price of such shares is received by the Company via wire transfer on the same day the fax or telecopy transmission is received by the Company. The notice shall specify the address to which the certificates for such shares are to be mailed. An option to purchase shares of Common Stock in accordance with this Plan shall be deemed to have been exercised immediately prior to the close of business on the date (i) written notice of such exercise and (ii) payment in full of the exercise price for the number of shares for which Options are being exercised are both received by the Company and Optionee shall be treated for all purposes as the record holder of such shares of Common Stock as of such date.
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As promptly as practicable after receipt of such written notice and payment, the Company shall deliver to Optionee certificates for the number of shares with respect to which such Option has been so exercised, issued in Optionee’s name or such other name as Optionee directs; provided, however, that such delivery shall be deemed effected for all purposes when a stock transfer agent of the Company shall have deposited such certificates in the United States mail, addressed to Optionee at the address specified pursuant to this Section 4.
5. Termination of Directorship. Except as provided below, if Optionee ceases to serve on the Board of Directors or Advisory Board of Directors of the Company (as used herein, the term “Board” shall mean both the Board of Directors and the Advisory Board of Directors and the term “director” shall mean both a director and an advisory director) for any reason other than death or disability, to the extent the Option is exercisable on the date of such cessation of service on the Board the Option may be exercised during a three month period after such cessation of service on the Board and shall expire at the end of such three month period, but in no event may the Option be exercised after the end of the Option Period. To the extent the Option is not yet exercisable pursuant to Section 3 hereof on the date of such cessation, the Option shall terminate on the date of such cessation. If Optionee’s service on the Board is terminated because of Optionee’s theft or embezzlement from the Company, disclosure of trade secrets of the Company or the commission of a willful, felonious act while in service on the Board (such reasons shall hereinafter be referred to collectively as “for cause”), then any Option or unexercised portion thereof granted to Optionee shall expire upon such date of such cessation of service on the Board.
6. Disability or Death. In the event Optionee dies or is determined to be disabled while Optionee serves on the Board, the Option may be exercised (to the extent Optionee would have been entitled to do so at the date of death or the determination of disability) at any time and from time to time, within a one year period after such death or determination of disability, by the Optionee, the guardian of Optionee’s estate, the executor or administrator of Optionee’s estate or by the person or persons to whom Optionee’s rights under this Option Agreement shall pass by will or the laws of descent and distribution and shall expire at the end of such one year period, but in no event may the Option be exercised after the end of the Option Period. An Optionee shall be deemed to be disabled if, in the opinion of a physician selected by the Committee, Optionee is incapable of performing services for the Company or its Affiliates of the kind Optionee was performing at the time the disability occurred by reason of any medically determinable physical or mental impairment which can be expected to result in death or to be of long, continued and indefinite duration. The date of determination of disability for purposes hereof shall be the date of such determination by such physician. To the extent the Option is not yet exercisable pursuant to Section 3 hereof on the date of such death or date of determination of disability, the Option shall terminate on the date of death or determination of disability.
7. Transferability. This Option shall not be transferable by Optionee otherwise than by Optionee’s will or by the laws of descent and distribution. During the lifetime of Optionee, the Option shall be exercisable only by Optionee or his or her authorized legal representative. Any heir or legatee of Optionee shall take rights herein granted subject to the terms and conditions hereof. No such transfer of this Option Agreement to heirs or legatees of Optionee shall be effective to bind the Company unless the Company shall have been furnished with written notice thereof and a copy of such evidence as the Committee may deem necessary to establish the validity of the transfer and the acceptance by the transferee or transferees of the terms and conditions hereof.
8. No Rights as Stockholder. Optionee shall have no rights as a stockholder with respect to any shares of Common Stock covered by this Option Agreement until the Option is exercised by written notice and accompanied by payment as provided in Section 4 of this Option Agreement.
9. Extraordinary Corporate Transactions. The existence of outstanding Options shall not affect in any way the right or power of the Company or its stockholders to make or authorize any or 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 issuance of Common Stock or subscription rights thereto, or any issuance of bonds, debentures, preferred or prior preference stock ahead of or affecting the Common Stock or the rights thereof, or the dissolution or liquidation of the Company, or any sale or transfer of all or any part of its assets or business, or any other corporate act or proceedings, whether of a similar character or otherwise. If the Company undergoes a
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“Fundamental Change” or a “Corporate Change” (as defined in the Plan), the Options granted hereunder shall be governed by Section 6(j) of the Plan.
10. Changes in Capital Structure. If the outstanding shares of Common Stock or other securities of the Company, or both, for which the Option is then exercisable shall at any time be changed or exchanged by declaration of a stock dividend, stock split, combination of shares, recapitalization or reorganization, the number and kind of shares of Common Stock or other securities subject to the Plan or subject to the Option and the exercise price shall be appropriately and equitably adjusted so as to maintain the proportionate number of shares or other securities without changing the aggregate exercise price.
11. Compliance With Securities Laws. Upon the acquisition of any shares pursuant to the exercise of the Option herein granted, Optionee (or any person acting under Section 7) will enter into such written representations, warranties and agreements as the Company may reasonably request in order to comply with applicable securities laws or with this Option Agreement.
12. Compliance With Laws. Notwithstanding any of the other provisions hereof, Optionee agrees that he or she will not exercise the Option granted hereby, and that the Company will not be obligated to issue any shares pursuant to this Option Agreement, if the exercise of the Option or the issuance of such shares of Common Stock would constitute a violation by the Optionee or by the Company of any provision of any law or regulation of any governmental authority.
13. Withholding of Tax. To the extent that the exercise of this Option or the disposition of shares of Common Stock acquired by exercise of this Option results in compensation income to the Optionee for federal or state income tax purposes, the Optionee shall pay to the Company at the time of such exercise or disposition (or such other time as the law permits if the Optionee is subject to Section 16(b) of the Securities Exchange Act of 1934, as amended) such amount of money as the Company may require to meet its obligation under applicable tax laws or regulations; and, if the Optionee fails to do so, the Company is authorized to withhold from any cash remuneration then or thereafter payable to the Optionee, any tax required to be withheld by reason of such resulting compensation income or Company may otherwise refuse to issue or transfer any shares otherwise required to be issued or transferred pursuant to the terms hereof. Payment of the withholding tax by the Optionee shall be made in accordance with Section 10 of the Plan.
14. No Right to Directorship. Optionee who is a director shall be considered to be in service on the Board so long as he or she remains in service on the Board. Any questions as to whether and when there has been a termination of such service on the Board and the cause of such termination shall be determined by the Committee, and its determination shall be final. Nothing contained herein shall be construed as conferring upon Optionee the right to continue in service on the Board.
15. Resolution of Disputes. As a condition of the granting of the Option hereby, Optionee, and Optionee’s heirs, personal representatives and successors agree that any dispute or disagreement which may arise hereunder shall be determined by the Committee in its sole discretion and judgment, and that any such determination and any interpretation by the Committee of the terms of this Option Agreement shall be final and shall be binding and conclusive, for all purposes, upon the Company, Optionee and Optionee’s heirs, personal representatives and successors.
16. Legends on Certificate. The certificates representing the shares of Common Stock purchased by exercise of an Option will be stamped or otherwise imprinted with legends in such form as the Company or its counsel may require with respect to any applicable restrictions on sale or transfer and the stock transfer records of the Company will reflect stop-transfer instructions with respect to such shares.
17. Notices. Every notice hereunder shall be in writing and shall be given by personal delivery, registered or certified mail or by fax. All notices of the exercise of any Option hereunder shall be directed to Post Oak Bancshares, Inc., 0000 Xxxx Xxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000, Attention: Secretary. Any notice given by the Company to Optionee directed to Optionee at the address on file with the Company shall be effective to bind Optionee and any
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other person who shall acquire rights hereunder. The Company shall be under no obligation whatsoever to advise Optionee of the existence, maturity or termination of any of Optionee’s rights hereunder and Optionee shall be deemed to have familiarized himself or herself with all matters contained herein and in the Plan which may affect any of Optionee’s rights or privileges hereunder.
18. Construction and Interpretation. Whenever the term “Optionee” is used herein under circumstances applicable to any other person or persons to whom this award, in accordance with the provisions of paragraph 7 hereof, may be transferred, the word “Optionee” shall be deemed to include such person or persons. References to the masculine gender herein also include the feminine gender for all purposes.
19. Agreement Subject to Plan. This Option Agreement is subject to the Plan. The terms and provisions of the Plan (including any subsequent amendments thereto) are hereby incorporated herein by reference thereto. In the event of a conflict between any term or provision contained herein and a term or provision of the Plan, the applicable terms and provisions of the Plan will govern and prevail. All definitions of words and terms contained in the Plan shall be applicable to this Option Agreement.
20. Binding Effect. This Option Agreement shall be binding upon and inure to the benefit of any successors to the Company and all persons lawfully claiming under Optionee as provided herein.
21. Exercise or Forfeit. The Option shall be subject to the conditions provided in this Section, to which the Optionee agrees. If the capital of Post Oak Bank, NA (“Bank”) falls below the minimum requirements contained in the regulations of the applicable regulatory authority, or falls below a higher requirement as determined by such authority in connection with a cease and desist order, consent order, formal written agreement or Prompt Corrective Action directive, the regulatory authority may direct the Bank to require the Optionee to exercise or forfeit its rights pursuant to the Option. The Bank will notify the Optionee within 45 days from the date the regulatory authority notifies the Bank in writing that the Optionee must exercise or forfeit its rights pursuant to the Option. If the Option is not exercised within 21 days of the Bank’s notification, the Option will be cancelled. The Bank has agreed to comply with the regulatory authority’s request that the Bank invoke its right to require the Optionee to exercise or forfeit its rights pursuant to the Option under the circumstances stated herein.
22. Entire Agreement; Amendment. This Option Agreement and any other agreements and instruments contemplated by this Option Agreement contain the entire agreement of the parties, and this Option Agreement may be amended only in writing signed by both parties.
IN WITNESS WHEREOF, this Option Agreement has been executed as of the ___ day of _______________.
POST OAK BANCSHARES, INC.
By: ________________________________
Name:
Title:
OPTIONEE
_______________________________________
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