**Exhibit 10.5**

**Option No. __**

**XENITH BANKSHARES, INC.**

**2009 STOCK INCENTIVE PLAN**

**Stock Option Agreement**

**(Executive Officer)**

 

****THIS AGREEMENT (together with Schedule A attached hereto, this**“Agreement”**), made effective the              day of                 , 20__,between Xenith Bankshares, Inc., a corporation organized under the laws of the Commonwealth of Virginia (the **“Corporation”**), and                    , an Employee of the Corporation or a Subsidiary (the **“Participant”**).****

**RECITALS :**

In furtherance of the purposes of the Xenith Bankshares, Inc. 2009 Stock Incentive Plan, as it may be hereafter amended (the**“Plan”**), and in consideration of the services of the Participant and such other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Corporation and the Participant hereby agree asfollows: 

1. Incorporation of Plan. The rights and duties of the Corporation and the Participant under this Agreementshall in all respects be subject to and governed by the provisions of the Plan, a copy of which has been made available to the Participant and the terms of which are incorporated herein by reference. In the event of any conflict between theprovisions in this Agreement and those of the Plan, the provisions of the Plan shall govern. Unless otherwise defined herein, capitalized terms in this Agreement shall have the same definitions as set forth in the Plan. 

2. Grant of Option; Term of Option. The Corporation hereby grants to the Participant, pursuant to the Plan, as a matter of separateinducement and agreement in connection with his employment with the Corporation, and not in lieu of any salary or other compensation for his services, the right and option (the **“Option**”) to purchase all or any part of an aggregateof                  (                ) shares (the**“Shares”**) of the Common Stock (the **“Common Stock”**), at a purchase price (the “Option Price”) of **            ($            ) **per Share. The Option to purchase                 (*            *) of the Shares shall be designated as an Incentive Option. To the extent that the Option is designated as an Incentive Option and such Option does not qualify asan Incentive Option, the Option (or portion thereof) shall be treated as a Nonqualified Option. Except as otherwise provided in the Plan, the Option will expire if not exercised in full before                         (the **“Expiration Date”**) (such term commencing with the Grant Date and ending onthe Expiration Date is the **“Option Period”**). 

3. Exercise of Option. 

(a) The Option shall become exercisable on the date or dates and subject to such conditions set forth in the Plan, thisAgreement and Schedule A, which is attached hereto and expressly made a part of this Agreement. 

(b) To theextent that the Option is exercisable but is not exercised, the Option shall accumulate and be exercisable by the Participant in whole or in part at any time prior to expiration of the Option, subject to the terms of the Plan and this Agreement.Upon the exercise of an Option in whole or in part, payment of the Option Price in accordance with the provisions of the Plan and this Agreement, and satisfaction of such other conditions as may be established by the Administrator, the Corporationshall promptly deliver to the Participant a certificate or certificates for the Shares purchased. The Option may be exercised only for whole shares. Payment of the Option Price may be made in cash or cash equivalent; provided that, where permittedby the Administrator and any applicable laws, rules or regulations (or similar guidance), including but not limited to the Securities Act, the Exchange Act, and the Code (**“Applicable Laws”**) (and subject to such terms and conditionsas may be established by the Administrator), payment may also be made (i) by delivery (by either actual delivery or attestation) of shares of Common Stock owned by the Participant for such time period, if any, as may be determined by theAdministrator and otherwise acceptable to the Administrator; (ii) by shares of Common Stock withheld upon exercise; (iii) with respect only to purchases upon exercise of the Option only after a public market for the Common Stock exists, bydelivery of written notice of exercise to the Corporation and delivery to a broker of written notice of exercise and irrevocable instructions to promptly deliver to the Corporation the amount of sale or loan proceeds to pay the Option Price;(iv) by such other payment methods as may be approved by the Administrator and which are acceptable under Applicable Laws; or (v) by any combination of the foregoing methods. Shares tendered or withheld in payment of the Option Price shallbe valued at their Fair Market Value on the date of exercise, as determined by the Administrator. 

4. Effect of Change inControl. 

(a) Except as may be otherwise provided under the Plan or this Agreement, in the event of aChange of Control (other than a Change in Control resulting from the acquisition or purchase of the common stock of the Corporation or First Bankshares, Inc. by BankCap Capital Partners Fund I, L.P. through its affiliates (collectively“BankCap”) or upon BankCap’s exercise of warrants or stock options), the Option, if outstanding as of the date of such Change of Control, shall become fully vested and exercisable, whether or not then otherwise vested and exercisable.

(b) In the event of a Change in Control, the Administrator may, in its sole and absolute discretion, determinethat the Option shall not vest or become exercisable on an accelerated basis, if the Administrator determines that the Option shall be treated in a different manner in accordance with the Plan, *e.g.*, if the Corporation or the surviving oracquiring corporation, as the case may be, shall have taken such action, including but not limited to the assumption of options granted under the Plan or the grant of substitute awards (in either case, with substantially similar terms or equivalenteconomic benefits as awards granted under the Plan), as in the opinion of the Administrator is equitable or appropriate to protect the rights and interest of participants under the Plan. 

 

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5. Termination of Employment. The Option shall not be exercised unless theParticipant is, at the time of exercise, an Employee and has been an Employee continuously since the date the Option was granted, subject to the following: 

(a) The employment relationship of the Participant shall be treated as continuing intact for any period that the Participant is on military or sick leave or other bona fide leave of absence, provided thatthe period of such leave does not exceed 90 days, or, if longer, as long as the Participant’s right to reemployment is guaranteed either by statute or by contract. The employment relationship of the Participant shall also be treated ascontinuing intact while the Participant is not in active service because of Disability. The Administrator shall have sole authority to determine whether the Participant has incurred a Disability, and, if applicable, the Participant’sTermination Date. 

(b) If the employment of the Participant is terminated because of Disability or death, anyportion of the Option that is unexercised and unvested on the Participant’s Termination Date shall immediately vest and become exercisable. The Option must be exercised, if at all, prior to the first to occur of the following, whichever shallbe applicable: (i) the close of the one-year period following the Termination Date; or (ii) the close of the Option Period. In the event of the Participant’s death, the Option shall be exercisable by such person or persons as shallhave acquired the right to exercise the Option by will or by the laws of intestate succession. 

(c) If theemployment of the Participant is terminated for Good Reason, as defined in the Participant’s employment agreement, or upon a termination of Participant’s employment without Cause, any portion of the Option that is unexercised and unvestedon the Participant’s Termination Date shall immediately vest and become exercisable. If the employment of the Participant is terminated for any other reason other than Disability, death or for Cause, the Option may be exercised to the extentvested and exercisable (after giving effect to any accelerated vesting and exercisability pursuant to the preceding sentence), on the Participant’s Termination Date. In either case, the Option must be exercised, if at all, prior to the first tooccur of the following, whichever shall be applicable: (i) the close of the period of three months next succeeding the Termination Date; or (ii) the close of the Option period. If the Participant dies following such termination ofemployment set forth in this Section 5(c) and prior to the earlier of the dates specified in (i) or (ii) of this Section 5(c), the Participant shall be treated as having died while employed under Section 5(b) (treating forthis purpose the Participant’s date of termination of employment as the Termination Date). In the event of the Participant’s death, the Option shall be exercisable by such person or persons as shall have acquired the right to exercise theOption by will or by the laws of intestate succession. 

(d) If the employment of the Participant is terminatedfor Cause, the Option shall lapse and no longer be exercisable as of the Participant’s Termination Date, as determined by the Administrator. 

6. No Right of Continued Employment or Service; Forfeiture of Award. Neither the Plan, the grant of the Option nor any other action related to the Plan shall confer upon the Participant any rightto continue in the employment or service of the Corporation or a Subsidiary or to interfere in any way with the right of the Corporation or a Subsidiary to terminate the Participant’s employment or service at any time. Except as otherwiseexpressly provided in the Plan or this Agreement or as determined by the Administrator, all rights of the Participant with respect to the Option shall terminate upon termination of the Participant’s employment or service. 

7. Nontransferability of Option. To the extent that this Option is designated as an Incentive Option, the Option shall not betransferable (including by sale, assignment, pledge or hypothecation) other than by will or the laws or intestate succession, or, in the Administrator’s discretion, as may otherwise be permitted in accordance with Treas. Reg.Section 1.421-1(b)(2) or any successor provision thereto. To the extent that this Option is designated as a Nonqualified Option, the Option shall not be

 

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transferable (including by sale, assignment, pledge or hypothecation) other than by will or the laws of intestate succession, except as may be permitted by the Administrator in a mannerconsistent with the registration provisions of the Securities Act. Except as may be permitted by the preceding sentences, the Option shall be exercisable during the Participant’s lifetime only by him or by the Participant’s guardian orlegal representative. 

8. Superseding Agreement; Binding Effect. This Agreement supersedes any statements,representations or agreements of the Corporation with respect to the grant of the Option or any related rights, and the Participant hereby waives any rights or claims related to any such statements, representations or agreements. This Agreementshall be binding upon and shall inure to the benefit of the parties hereto and their respective executors, administrators, next-of-kin, successors and assigns. This Agreement does not supersede or amend any non-competition agreement,non-solicitation agreement, employment agreement, consulting agreement or any other similar agreement between the Participant and the Corporation, including, but not limited to, any restrictive covenants contained in such agreements. 

9. Representations and Warranties of Participant. The Participant represents and warrants to the Corporation that: 

(a) Agrees to Terms of the Plan and Agreement. A copy of the Plan has been made available to the Participant and theParticipant has read and understands the terms of the Plan and this Agreement, and agrees to be bound by their terms and conditions. 

(b) Purchase for Own Account for Investment. Any Shares acquired pursuant to the Option shall be acquired for the Participant’s own account for investment purposes only and not with a view to,or for sale in connection with, a distribution of the Shares within the meaning of the Securities Act. The Participant has no present intention of selling or otherwise disposing of all or any portion of the Shares subject to the Option. 

(c) Access to Information. The Participant has had access to all information regarding the Corporation and itspresent and prospective business, assets, liabilities and financial condition that the Participant reasonably considers important in making a decision to acquire the Shares subject to the Option, and the Participant has had ample opportunity to askquestions of, and to receive answers from, the Corporation’s representatives concerning such matters and this investment. 

(d) Understanding of Risks. The Participant is fully aware of: (i) the speculative nature of the investment in the Common Stock; (ii) the financial hazards involved in investment in theCommon Stock; (iii) the lack of liquidity of the Shares subject to the Option and the restrictions on transferability of such Shares; (iv) the qualifications and backgrounds of the management of the Corporation; and (v) the taxconsequences of investment in the Shares of Common Stock. The Participant is capable of evaluating the merits and risks of this investment, has the ability to protect the Participant’s own interests in this transaction and is financiallycapable of bearing a total loss from this investment. 

(e) No General Solicitation. At no time was theParticipant presented with or solicited by any publicly issued or circulated newspaper, mail, radio, television or other form of general advertising or solicitation in connection with the offer, sale or purchase of the Shares subject to the Option.

 

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(f) Compliance with Securities Laws. The Shares subject to the Optionhave not been registered with the Securities and Exchange Commission (**“SEC”**) under the Securities Act and, notwithstanding any other provision of this Agreement or the Plan to the contrary, the right to acquire any Shares subject tothis Option is expressly conditioned upon compliance with all applicable federal and state securities laws. The Participant agrees to cooperate with the Corporation to ensure compliance with such laws. 

(g) No Transfer Unless Registered or Exempt; State Restrictions. None of the Corporation’s securities ispresently publicly traded, and the Corporation has made no representation, covenant or agreement as to whether there will be a public market for any of its securities. The Participant understands that the Participant may not transfer any Sharessubject to the Option unless such Shares are registered under the Securities Act and qualified under applicable state securities laws or unless, in the opinion of counsel to the Corporation, exemptions from such registration and qualificationrequirements are available. The Participant understands that only the Corporation may file a registration statement with the SEC and that the Corporation is under no obligation to do so with respect to the Shares subject to the Option. TheParticipant has also been advised that exemptions from registration and qualification may not be available or may not permit the Participant to transfer all or any of the Shares subject to the Option in the amounts or at the times proposed by him.The Participant also agrees in connection with any registration of the Corporation’s securities that, upon the request of the Corporation or the underwriters managing any public offering of the Corporation’s securities, the Participantwill not sell or otherwise dispose of any Shares without the prior written consent of the Corporation or such underwriters, as the case may be, for such period of time (not to exceed 180 days) after the effective date of such registration requestedby such managing underwriters and subject to all restrictions as the Corporation or the underwriters may specify. 

(h) Tax Consequences. The Corporation has made no warranties or representations to the Participant with respect to the tax consequences (including but not limited to income tax consequences) related to the transactions contemplatedby this Agreement, and the Participant is in no manner relying on the Corporation or its representatives for an assessment of such tax consequences. The Participant acknowledges that there may be adverse tax consequences upon acquisition ordisposition of the Shares subject to the Option and that the Participant has been advised that the Participant should consult with the Participant’s own attorney, accountant and/or tax advisor regarding the decision to enter into this Agreementand the consequences thereof. The Participant also acknowledges that the Corporation has no responsibility to take or refrain from taking any actions in order to achieve a certain tax result for the Participant. 

10. Restrictions on Option and Shares. 

(a) General. As a condition to the issuance and delivery of Shares subject to the Option, or the grant of any benefit pursuant to the terms of the Plan, the Corporation may require the Participantor other person to become a party to this Agreement, any shareholders agreement, other agreement(s) restricting the transfer, purchase or repurchase of shares of Common Stock of the Corporation, voting agreement and/or any employment agreements,consulting agreements, non-competition agreements, confidentiality agreements, non-solicitation agreements or other agreements imposing such restrictions as may be required by the Corporation. In addition, without in any way limiting the effect ofthe foregoing, the Participant or other holder of the Shares shall be permitted to transfer such Shares only if such transfer is in accordance with the terms of the Plan, this Agreement, any shareholders agreement and any other applicableagreements. The acquisition of the Shares by the Participant or any other holder of the Shares shall be subject to, and conditioned upon, the agreement of the Participant or other holder of such Shares to the restrictions described in the Plan, thisAgreement, any shareholders agreement and any other applicable agreements. 

 

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(b) Compliance with Applicable Laws. The Corporation may impose suchrestrictions on the Option, the Shares and any other benefits underlying the Option as it may deem advisable, including without limitation restrictions under the federal securities laws, the requirements of any stock exchange or similar organizationand any blue sky, state or foreign securities laws applicable to such securities. Notwithstanding any other provision in the Plan or this Agreement to the contrary, the Corporation shall not be obligated to issue, deliver or transfer shares ofCommon Stock, make any other distribution of benefits under the Plan, or take any other action, unless such delivery, distribution or action is in compliance with Applicable Laws (including but not limited to the requirements of the Securities Act).The Corporation may cause a restrictive legend to be placed on any certificate issued pursuant to the Option hereunder in such form as may be prescribed from time to time by Applicable Laws or as may be advised by legal counsel. 

11. Governing Law. Except as otherwise provided in the Plan or herein, this Agreement shall be construed and enforced according tothe laws of the Commonwealth of Virginia, without regard to the principles of conflicts of laws, and in accordance with applicable federal laws of the United States. 

12. Amendment and Termination; Waiver. Subject to the terms of the Plan, this Agreement may be amended, altered and/or terminated at any time by the Administrator; provided, however, that any suchamendment, alteration or termination of the Option shall not, without the consent of the Participant, materially adversely affect the rights of the Participant with respect to the Option. Notwithstanding the foregoing, the Administrator shall haveunilateral authority to amend the Plan and this Agreement (without Participant consent and without shareholder approval, unless such shareholder approval is required by Applicable Laws) to the extent necessary to comply with Applicable Laws orchanges to Applicable Laws (including but not limited to Section 409A of the Code, Code Section 422 and federal securities laws). The Administrator also shall have unilateral authority to make adjustments to the terms and conditions of theOption in recognition of unusual or nonrecurring events affecting the Corporation or any Parent or Subsidiary, or the financial statements of the Corporation or any Affiliate, or of changes in accounting principles, if the Administrator determinesthat such adjustments are appropriate in order to prevent dilution or enlargement of the benefits or potential benefits intended to be made available under the Plan or necessary or appropriate to comply with applicable accounting principles. Thewaiver by the Corporation of a breach of any provision of this Agreement by the Participant shall not operate or be construed as a waiver of any subsequent breach by the Participant. 

13. No Rights as a Shareholder. The Participant and the Participant’s legal representatives, legatees, distributees ortransferees shall not be deemed to be the holder of any Shares subject to the Option and shall not have any rights of a shareholder unless and until certificates for such Shares have been issued and delivered to him or them. 

14. Withholding. The Participant acknowledges that the Corporation shall require the Participant to pay the Corporation in cash theamount of any tax or other amount required by any governmental authority to be withheld and paid over by the Corporation to such authority for the account of the Participant, and the Participant agrees, as a condition to the grant of the Option anddelivery of the Shares, to satisfy such obligations. Notwithstanding the foregoing, the Administrator may establish procedures to permit the Participant to satisfy such obligations in whole or in part, and any other local, state, federal, foreign orother income tax obligations relating to the Option, by electing (the “election”) to have the Corporation withhold shares of Common Stock from the Shares the Participant is entitled to receive upon exercise of the Option. The number ofshares to be withheld shall have a Fair Market Value as of the date that the amount of tax to be withheld is determined as nearly equal as possible to (but not exceeding) the amount of such obligations being satisfied. Each election must be made inwriting to the Administrator in accordance with election procedures established by the Administrator. 

 

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15. Administration. The authority to construe and interpret this Agreement and thePlan, and to administer all aspects of the Plan, shall be vested in the Administrator, and the Administrator shall have all powers with respect to this Agreement as are provided in the Plan. Any interpretation of this Agreement by the Administratorand any decision made by it with respect to this Agreement shall be final and binding. 

16. Notices. Except as may beotherwise provided by the Plan or determined by the Administrator, any written notices provided for in this Agreement or the Plan shall be in writing and shall be deemed sufficiently given if either hand delivered or if sent by fax or overnightcourier, or by postage paid first class mail. Notices sent by mail shall be deemed received three business days after mailed but in no event later than the date of actual receipt. Notices shall be directed, if to the Participant, at theParticipant’s address indicated by the Corporation’s records, or if to the Corporation, at the Corporation’s principal office. 

17. Severability. If any provision of this Agreement shall be held illegal or invalid for any reason, such illegality or invalidity shall not affect the remaining parts of this Agreement, and thisAgreement shall be construed and enforced as if the illegal or invalid provision had not been included. 

18. Notice ofDisposition. To the extent that the Option is designated as an Incentive Option, if Shares of Common Stock acquired upon exercise of the Option are disposed of within two years following the date of grant or one year following the transfer ofsuch Shares to the Participant upon exercise, the Participant shall, promptly following such disposition, notify the Corporation in writing of the date and terms of such disposition and provide such other information regarding the disposition as theAdministrator may reasonably require. 

19. Right of Offset. Notwithstanding any other provision of the Plan or thisAgreement, the Corporation may reduce the amount of any payment or benefit otherwise payable to or on behalf of the Participant by the amount of any obligation of the Participant to or on behalf of the Corporation that is or becomes due and payable,and the Participant shall be deemed to have consented to such reduction. 

20. Counterparts; Further Instruments. ThisAgreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. The parties hereto agree to execute such further instruments and to take suchfurther action as may be reasonably necessary to carry out the purposes and intent of this Agreement. 

21. Forfeiture ofOption. 

(a) Notwithstanding any other provision of this Agreement, if, at any time during the employmentor service of the Participant or during the 12-month period following termination of employment or service (regardless of whether such termination was by the Corporation or the Participant, and whether voluntary or involuntary), the Participantengages in a Prohibited Activity (as defined herein), then the Option shall immediately be terminated and all of Participant’s rights under this Agreement shall be forfeited in their entirety. 

(b) For the purposes herein, a **“Prohibited Activity”** shall mean the Participant’s violation of theProtective Covenants set forth in Section 9 of that certain employment agreement dated as of                 , 20     between theParticipant and the Corporation (the **“Employment Agreement”**). 

 

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(c) The Participant acknowledges that the provisions of this Section 21are not intended, standing alone, to preclude any competitive activity by the Participant, and agrees that compliance with the Protective Covenants set forth in Section 9 of the Employment Agreement is a condition precedent to theParticipant’s rights under this Agreement, even if the Protective Covenants set forth in Section 9 of the Employment Agreement are deemed unenforceable under the Employment Agreement. 

(d) Notwithstanding the provisions of Section 21(a) herein, the waiver by the Corporation in any one or more instancesof any rights afforded to the Corporation pursuant to the terms of Section 21(a) herein shall not be deemed to constitute a further or continuing waiver of any rights the Corporation may have pursuant to the terms of this Agreement or the Plan(including but not limited to the rights afforded the Corporation in Section 19 herein). 

IN WITNESS WHEREOF, thisAgreement has been executed in behalf of the Corporation and by the Participant effective as of the day and year first above written. 

 
**XENITH BANKSHARES, INC.**By:  Printed Name:  Title:  **PARTICIPANT**By:  Printed Name:  
 

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**XENITH BANKSHARES, INC.**

**2009 STOCK INCENTIVE PLAN**

**Stock Option Agreement**

**(Executive Officer)**

**SCHEDULE A**

 

Name of Participant:
  _____________________  
Grant Date:
  _____________________  
Number of Shares Subject to Option:
  _____________________  
Option Price:
  $___________ per share  
Type of Option:
  Incentive Option  
Expiration Date:
  _____________________  
 

**Date Installment**