FCB Financial Holdings, Inc. Form of Incentive Stock Option Grant Agreement
Exhibit 10.3
THIS AGREEMENT, made as of the , between FCB Financial Holdings, Inc. (the
“Company”) and (the “Participant”).
WHEREAS, the Company has adopted and maintains the Bond Street Holdings LLC (now FCB Financial Holdings, Inc.) 2009 Option Plan (the “Plan”) to further the growth and development of the
Company by enabling eligible persons to obtain a proprietary interest in the Company, thereby
providing such persons with an added incentive to continue in the employ or service of the Company
or of Florida Community Bank, NA, a wholly owned subsidiary of the Company (the “Bank” and
together with the Company, the “Company Group”), and stimulating their efforts in promoting
the growth, efficiency and profitability of the Company Group, and affording the Company Group a
means of attracting to its service persons of outstanding quality;
WHEREAS, the Plan provides that a committee (the “Administrator”) shall administer the
Plan and determine the key persons to whom options shall be granted and the amount and terms of
such options; and
WHEREAS, the Administrator has determined that the purposes of the Plan would be furthered by
granting the Participant an option under the Plan as set forth in this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual covenants hereinafter set
forth, the parties hereto hereby agree as follows:
1. Grant of Option. Pursuant to, and subject to, the terms and conditions set forth
herein and in the Plan, the Administrator hereby grants to the Participant an incentive stock
option (the “Option”) with respect to _____ shares of Class A Common Stock of the Company
(“Shares”). The Option is intended to constitute an “incentive stock option”
within the meaning of Section 422 of the Internal Revenue Code of 1986, as amended (the
“Code”), to the extent allowed under the Plan and applicable law.
2. Grant Date. The grant date of the Option is (the “Grant
Date”).
3. Incorporation of Plan. All terms, conditions and restrictions of the Plan are
incorporated herein and made part hereof as if stated herein. If there is any conflict between the
terms and conditions of the Plan and this Agreement, the terms and conditions of the Plan, as
interpreted by the Administrator, shall govern. Except as otherwise provided herein, all
capitalized terms used herein shall have the respective meanings given to such terms in the Plan.
4. Vesting Date, Exercise Date. Subject to accelerated vesting as set forth in
Section 6, the Option shall first vest with respect to _____ Shares on the first anniversary of the
Grant Date, with respect to an additional _____ Shares on the second anniversary of the Grant Date,
and with respect to the remaining _____ Shares on the third anniversary of the Grant Date;
provided, however, that in each case the vested portion of the Option shall first become
exercisable on the later of (a) January 25, 2013 and (b) the date on which such portion vested.
5. Exercise Price. The exercise price-per-Share of each Share with respect to which
the Option is granted is , the Fair Market Value of a Share as of the Grant Date.
6. Expiration Date; Effect of Termination of Employment.
(a) Subject to the provisions of the Plan and this Agreement, the Option shall expire and
terminate on the tenth anniversary of the Grant Date.
(b) Upon a Change of Control (as defined herein), all unvested portions of the Option shall
immediately vest; provided, however, that the Option shall not be exercisable prior to January 25,
2013 or after the expiration of its term. For purposes of this Section 6(b), “Change of
Control” shall mean (i) the sale of all or substantially all of the assets of the Company or
the Bank, (ii) the sale of more than 50% of the outstanding equity securities of the Company or the
Bank, except in a bona fide public offering pursuant to a registration statement filed with the
Securities and Exchange Commission under the Securities Act (as defined herein), (iii) the
dissolution or liquidation of the Company or the Bank, or (iv) any merger, share exchange,
consolidation or other reorganization or business combination of the Company or the Bank if
immediately after such transaction either (A) persons who were members of the board of directors of
the Company or Bank, as applicable, immediately prior to such transaction do not constitute at
least a majority of the board of directors of the surviving entity, or (B) the holders of the
voting capital stock of the Company or the Bank immediately prior to such transaction have not
received, pursuant to the terms of such transaction, a majority of the voting equity securities of
the surviving entity.
(c) In the event that the Participant’s employment with the Company Group shall be terminated
by reason of the Participant’s disability (as defined in the Plan), (i) the unvested portion of the
Option shall expire as of the start of business on the date of such termination and thereafter be
null and void and of no further force or effect; (ii) if the date of such termination of employment
is prior to January 25, 2013, the vested portion of the Option shall be exercisable only during the
period commencing on January 25, 2013 and ending on January 24, 2014; and (iii) if the date of such
termination of employment is on or after January 25, 2013, the vested portion of the Option shall
be exercisable only during the period commencing on the date of such termination and ending on the
earlier of (x) the first anniversary of such termination date and (y) the tenth anniversary of the
Grant Date.
(d) In the event that the Participant’s employment with the Company Group shall be terminated
by reason of the Participant’s death, (i) the unvested portion of the Option shall expire as of the
start of business on the date of such termination and thereafter be null and void and of no further
force or effect; (ii) if the date of such termination of employment is prior to January 25, 2013,
the vested portion of the Option shall be exercisable only during the period commencing on January
25, 2013 and ending on January 24, 2014; and (iii) if the date of such termination of employment is
on or after January 25, 2013, the vested portion of the Option shall be exercisable only during the
period commencing on the date of such termination and ending on the earlier of (x) the first
anniversary of such termination date or (y) the tenth anniversary of the Grant Date.
- 2 -
(e) In the event that the Participant’s employment with the Company Group shall be terminated
by the Participant other than by reason of the Participant’s death or disability, or shall be
terminated by the Company other than by reason of the Participant’s death or disability and other
than for cause (as defined in the Plan), (i) the unvested portion of the Option shall expire as of
the start of business on the date of such termination and thereafter be null and void and of no
further force or effect; (ii) if the date is such termination of employment is prior to January 25,
2013, the vested portion of the Option shall be exercisable only during the period commencing on
January 25, 2013 and ending on April 24, 2013; and (iii) if the date of such termination of
employment is on or after January 25, 2013, the vested portion of the Option shall be exercisable
only during the period commencing on the date of such termination and ending on the earlier of (x)
three months after such termination date or (y) the tenth anniversary of the Grant Date.
(f) In the event that the Participant’s employment with the Company Group shall be terminated
by the Company for cause (as defined in the Plan), the Option, to the extent not previously
exercised, shall expire as of the start of business on the date of such termination and thereafter
shall be null and void and of no further force or effect.
(g) In the event that the Participant dies subsequent to terminating employment with the
Company Group but prior to the expiration period with respect to the vested portion of the Option,
the vested portion of the Option shall remain exercisable until the later of (A) the last day on
which the Option would have been exercisable if the Participant had not died or (B) the earlier of
(x) the first anniversary of the date of the Participant’s death or (y) the tenth anniversary of
the Grant Date.
7. Method of Exercise. The Option shall be exercisable in whole or in part. The
partial exercise of the Option shall not cause the expiration, termination or cancellation of the
remaining portion thereof. The Option shall be exercised by delivering notice to the Company in
the form and manner specified by the Administrator, accompanied by payment for the Shares being
purchased upon the exercise of the Option. Payment shall be made: (i) by certified or official
bank check (or the equivalent thereof acceptable to the Company or its exchange agent) for the full
option exercise price; or (ii) to the extent applicable, via a brokered cashless exercise.
Certificates for Shares purchased upon the exercise of the Option shall be issued in the name of
the Participant or his beneficiary, as the case may be, and delivered to the Participant or his
beneficiary, as the case may be, as soon as practicable following the effective date on which the
Option is exercised.
8. Securities Matters.
(a) The Company shall be under no obligation to effect the registration pursuant to the
Securities Act of 1933, as amended (the “Securities Act”), of any interests in the Plan or
any Shares to be issued thereunder or to effect similar compliance under any state laws. The
exercise of the Option shall not be effective and the Company shall not be obligated to cause to be
issued or delivered any certificates evidencing Shares pursuant hereto unless and until the Company
is advised by its counsel that the issuance and delivery of such certificates is in compliance with
all applicable laws, regulations of governmental authority and the requirements of any securities
exchange on which Shares are traded. The Administrator may
- 3 -
require, as a
condition of the issuance and delivery of certificates evidencing Shares pursuant to the terms
hereof, that the recipient of such Shares make such covenants, agreements and representations, and
that such certificates bear such legends, as the Administrator, in its sole discretion, deems
necessary or desirable. The Participant specifically understands and agrees that the Shares, if
and when issued upon exercise of the Option, may be “restricted securities,” as that term
is defined in Rule 144 under the Securities Act and, accordingly, the Participant may be required
to hold the Shares indefinitely unless they are registered under such Act or an exemption from such
registration is available.
(b) The Administrator may, in its sole discretion, defer the effectiveness of any exercise of
the Option in order to allow the issuance of Shares pursuant thereto to be made pursuant to
registration or an exemption from registration or other methods for compliance available under
federal or state securities laws. The Administrator shall inform the Participant in writing of its
decision to defer the effectiveness of the exercise of the Option. During the period that the
effectiveness of the exercise of the Option has been deferred, the Participant may, by written
notice, withdraw such exercise and obtain the refund of any amount paid with respect thereto.
(c) The Participant shall have no rights as a shareholder of the Company with respect to any
Shares subject to the Option unless and until a certificate with respect to such Shares is issued
in the name of the Participant or, in the case of uncertificated Shares, an appropriate book entry
is made on the books of the transfer agent reflecting the issuance of the Shares.
9. Transferability/Exercise After Death. During the lifetime of the Participant, the
Option may be exercised only by the Participant or the Participant’s legal representative and is
not assignable or transferable otherwise than by will or by the laws of descent and distribution.
After the Participant’s death, the Option may be exercised pursuant to Section 6(d) or (g) hereof
by the Participant’s executor or administrator or other duly appointed representative reasonably
acceptable to the Administrator, unless the Participant’s will specifically disposes of the Option,
in which case the Option may be exercised only by the recipient of such specific disposition. Any
such individual or entity that exercises the Option after the Participant’s death shall be bound by
all the terms and conditions of the Plan and this Agreement.
10. Delays or Omissions. No delay or omission to exercise any right, power or remedy
accruing to any party hereto upon any breach or default of any party under this Agreement, shall
impair any such right, power or remedy of such party, nor shall it be construed to be a waiver of
any such breach or default, or an acquiescence therein, or of or in any similar breach or default
thereafter occurring, nor shall any waiver of any single breach or default be deemed a waiver of
any other breach or default theretofore or thereafter occurring. Any waiver, permit, consent or
approval of any kind or character on the part of any party of any breach or default under this
Agreement, or any waiver on the part of any party of any provisions or conditions of this
Agreement, must be in a writing signed by such party and shall be effective only to the extent
specifically set forth in such writing.
- 4 -
11. Right of Discharge Preserved. Nothing in this Agreement shall confer upon the
Participant the right to continue in the employ or other service of the Company Group, or affect
any right which the Company Group may have to terminate such employment or service.
12. Integration. This Agreement, together with the Plan, contains the entire
understanding of the parties with respect to its subject matter. There are no restrictions,
agreements, promises, representations, warranties, covenants or undertakings with respect to the
subject matter hereof other than those expressly set forth herein or in the Plan. This Agreement,
together with the Plan, supersedes all prior agreements and understandings between the parties with
respect to its subject matter.
13. Counterparts. 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.
14. Governing Law. This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Delaware, without regard to the provisions governing
conflict of laws.
15. Notice of Certain Dispositions. In the event that the Participant disposes of any
Shares acquired upon the exercise of the Option (i) prior to the expiration of two years after the
Grant Date or prior to one year after the date the Shares were acquired or (ii) under any other
circumstances described in Section 422(a) of the Code, or any successor provision, the Participant
hereby agrees to notify the Company of such disposition within 10 days thereof.
16. Participant Acknowledgment. The Participant hereby acknowledges (i) receipt of a
copy of the Plan, (ii) that all decisions, determinations and interpretations of the Administrator
in respect of the Plan, this Agreement and the Option shall be final and conclusive and (iii) that
any Shares acquired through exercise of the Option are being acquired for the Participant’s own
account and not with a view to distribution.
- 5 -
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly executed by its duly
authorized officer, and the Participant has hereunto signed this Agreement on his own behalf,
thereby representing that he has carefully read and understands this Agreement and the Plan, as of
the day and year first written above.
| FCB FINANCIAL HOLDINGS, INC. | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| (Participant) | ||||||
- 6 -