CAPITAL BANK CORPORATION INCENTIVE STOCK OPTION AGREEMENT
Exhibit
99.3
CAPITAL
BANK CORPORATION
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GRANTED
TO
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GRANT
DATE
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NUMBER OF
SHARES
GRANTED
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VESTING
SCHEDULE**
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Vesting
Date
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Shares
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EXPIRATION
DATE*
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PRICE PER
SHARE
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*
See 3, 5, 6 and 7 below
**
Fractional shares carried over to succeeding exercise period
THIS
INCENTIVE STOCK OPTION AGREEMENT is made as of the _____day of __________,
20___, by and between Capital Bank Corporation (the "Corporation") and the
individual specified above, an employee of the Corporation or any subsidiary of
the Corporation (the "Participant").
The
Corporation desires to carry out the purposes of its Equity Incentive Plan (the
"Plan"), which is incorporated herein by reference, by affording the Participant
an opportunity to purchase shares of the Corporation's common stock (the "Common
Stock"), as provided in this Agreement. The option granted hereunder is intended
to qualify as an "Incentive Stock Option" within the meaning of Section 422 of
the Internal Revenue Code of 1986, as amended.
NOW,
THEREFORE, in consideration of the mutual covenants set forth in this Agreement,
and for other good and valuable consideration, the Corporation and the
Participant hereby agree as follows:
1. Grant
of Option. The Corporation, by this Agreement, irrevocably grants to the
Participant the right and option (the "Option") to purchase the number of shares
of Common Stock specified above (such number being subject to adjustment as
provided in paragraph 8 of this Agreement) on the terms and conditions set forth
in this Agreement.
2. Purchase
Price. The purchase price of the shares of the Common Stock covered by this
Option shall be the price specified above per share, said purchase price not
being less than the fair market value of the Common Stock at the time this
Option is granted.
3. Term
and Vesting of Option.
(a) Term.
The term of the Option shall be for a period of ten (10) years from the date of
this Agreement, subject to earlier termination as provided in paragraphs 5, 6
and 7 of this Agreement. Except as otherwise provided in this Agreement, the
Option may be exercised in whole or part at any time during its term. Except as
provided in paragraphs 5, 6 and 7 of this Agreement, the Option may not be
exercised at any time unless the Participant has maintained a continuous
employment relationship with the Corporation from the date of this Agreement to
the date of the exercise of the Option. The Participant shall not have any of
the rights of a shareholder with respect to the shares of Common Stock covered
by the Option until such shares shall be issued to him or her upon the due
exercise of the Option and payment of the purchase price.
(b) Vesting.
Except as otherwise provided in this Agreement, the Option shall become
exercisable with respect to the number of shares stated above as of each
applicable vesting date. Notwithstanding the foregoing, the Option will become
fully vested and exercisable upon a Change in Control as provided in the
Plan.
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4. Non-Transferability.
The Option shall not be transferable otherwise than by will or the laws of
descent and distribution, and during the lifetime of the Participant, may only
be exercised by the Participant or his or her duly appointed legal
representative. More particularly, but without limiting the generality of the
foregoing, the Option may not be assigned, transferred (except as provided
above), pledged, or hypothecated in any way, shall not be assignable by
operation of law, and shall not be subject to execution, attachment, or similar
processes. Any attempted assignment, transfer, pledge, hypothecation, or other
distribution of the Option contrary to the provisions of this Agreement and the
levy of any execution, attachment, or similar process upon the Option shall be
null and void and without effect.
5. Termination
of Relationship with the Corporation. In the event of any termination of the
Participant's employment relationship with the Corporation that is either (a)
for cause, or (b) voluntary on the part of the Participant and without the
written consent of the Corporation, the Option shall (except to the extent
exercised before termination of the Participant's relationship with the
Corporation) immediately terminate. For purposes of this Agreement, the term
"for cause" means (a) criminal conviction for fraud, embezzlement,
misappropriation or the like, (b) misconduct involving moral turpitude, or (c) a
failure to perform the Participant's duties faithfully, diligently, competently,
and to the best of his or her ability for reasons other than serious physical
disability or other incapacity, as determined in the sole discretion of the
committee appointed to administer the Plan by the board of directors of the
Corporation (the "Committee"). Retirement in accordance with the Corporation's
normal retirement policies or termination of employment in the event of
disability, as determined in the sole discretion of the Committee, shall not be
deemed to be voluntary on the part of the Participant.
In
the event the Participant's relationship with the Corporation otherwise
terminates (except by reason of his or her disability or death) the Participant
may exercise the Option at any time within three (3) months after such
termination to the extent of the number of shares purchasable by him or her on
the date of termination, but in no event more than ten (10) years after the date
of this Agreement. So long as the Participant shall continue to be an employee
of the Corporation, the Option shall not be affected by any change in the
Participant's duties or position.
6. Disability
of Participant. If the event of any termination of the Participant's employment
relationship with the Corporation by reason of the Participant's disability (as
determined by the Committee in its sole discretion), the Participant may
exercise the Option at any time within one (1) year after such termination to
the extent of the number of shares purchasable by him or her on the date of
termination, but in no event more than ten (10) years after the date of this
Agreement.
7. Death
of Participant. If the Participant shall die while an employee of the
Corporation or shall die within the three-month period following termination of
his relationship with the Corporation (except termination for cause or voluntary
termination by the Participant without the written consent of the Corporation)
the Option may be exercised (to the extent the Participant is entitled to do so
at his death) by any legatee of the Option under the Participant's will, by the
Participant's personal representative, or by any distributee of the Option at
any time within one (1) year after the Participant's death, but in no event more
than ten (10) years after the date of this Agreement.
8. Changes
in Capital Structure. If all or any portion of the Option shall be exercised
after any stock dividend, split-up, recapitalization, merger, consolidation,
combination, or exchange of shares, separation, reorganization, or liquidation
occurring after the date of this Agreement, as a result of which shares of any
class shall be issued in respect of outstanding shares of Common Stock, or
shares of Common Stock shall be changed into the same or a different number of
shares of the same or another class or classes, the person who exercises the
Option shall receive, for the aggregate price paid upon such exercise, the
aggregate number and class of shares which, if shares of Common Stock (as
authorized at the date of this Agreement) had been purchased by the person as of
the date of this Agreement for the same aggregate price (on the basis of the
price per share set forth in paragraph 2) and had not been disposed of, such
person would be holding, at the time of such exercise, as a result of such
purchase, and all such dividends, split-ups, recapitalization, mergers,
consolidations, combinations, or exchanges of shares, separations,
reorganizations, or liquidations; provided, however, (a) that no fractional
shares shall be issued upon any such exercise, and the aggregate price paid
shall be appropriately reduced to account for any fractional share not issued,
and (b) that no adjustment shall be made for cash dividends or the issuance to
stockholders of rights to subscribe for additional shares and other
securities.
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9. Method
of Exercising Option. Subject to the terms and conditions of this Agreement and
the Plan, the Option may be exercised by giving written notice to the
Corporation. Such notice shall state the election to exercise the Option and the
number of shares with respect to which it is being exercised and shall be signed
by the person who shall exercise the Option. (In the event that the Option shall
be exercised pursuant to paragraph 7 of this Agreement by any person other than
the Participant, the notice shall be accompanied by appropriate proof of the
right of such person to exercise the Option). Such notice shall be accompanied
by payment of the full purchase price of such shares. Subject to approval by the
Corporation, the purchase price may be paid in whole or in part in cash or by
surrendering shares of Common Stock or by surrendering the Option to the
Corporation. If shares or options are used to pay all or part of the purchase
price, the cash and any shares or options surrendered must have a fair market
value (determined as of the day preceding the date of exercise) that is not less
than the purchase price for the number of shares for which the Option is being
exercised. The shares as to which the Option shall have been so exercised shall
be registered in the name of the person who shall exercise the Option and a
certificate evidencing such shares shall be delivered to the person who shall
exercise the Option on his or her written order. All shares that shall be
purchased in the exercise of the Option shall be fully paid and
nonassessable.
As
a condition to the issuance of the shares as to which the Option shall be
exercised, the Participant authorizes the Corporation to withhold from any
regular cash compensation payable to the Participant any taxes required to be
withheld by the Corporation under federal, North Carolina, or other local law as
a result of the exercise of the Option; provided, however, if the Corporation so
requests, the person who shall exercise the Option shall in the alternative
remit to the Corporation at the time of any exercise of the Option any taxes
required to be withheld by the Corporation under federal, North Carolina, or
other local law as a result of the exercise of the Option.
10. General.
The Corporation shall make available such number of shares of Common Stock as
will be sufficient to satisfy the requirements of this Agreement. The exercise
of the Option shall be subject to the condition that if at any time the
Corporation shall determine in its discretion that (a) the listing upon any
securities exchange or the registration or qualification under any state or
federal law of any shares of Common Stock otherwise deliverable upon such
exercise, or (b) the consent or approval of any regulatory body is necessary or
desirable as a condition of, or in connection with, such exercise or the
delivery or purchase of shares of Common Stock pursuant to such exercise, then
in any such event, such exercise shall not be effected or obtained free of any
conditions not acceptable to the Corporation.
11. Severability
and Governing Law. If any provision of this Agreement or its application to any
circumstances is deemed invalid or unenforceable, the remainder of this
Agreement and the application of such provision to other circumstances shall not
be affected. This Agreement shall not be effective until executed by a duly
authorized representative of the Corporation, and shall be governed by and
construed in accordance with the laws of the State of North
Carolina.
12. Notices.
Any notices provided for under this Agreement shall be in writing and shall be
delivered in person to the party to be notified or sent by certified mail.
Notices sent to the Corporation shall be addressed to Capital Bank Corporation,
000 Xxxxxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx Xxxxxxxx 00000, Attention:
Xxxxx X. Xxxx. Notices sent to the Participant shall be addressed to the
Participant at his address as it appears in the Corporation's
records.
13. Entire
Agreement. This Agreement constitutes the entire agreement between the
Corporation and the Participant with respect to the subject matter of this
Agreement. No waiver, modification, or amendment of any of the terms or
conditions of this Agreement shall be effective unless set forth in a writing
signed by the Corporation and the Participant.
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IN
WITNESS WHEREOF, the Corporation has caused this Agreement to be executed by its
duly authorized officer, and the Participant has set his hand and seal to this
Option Agreement, all as of the day and year first above written.
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ATTEST:
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CAPITAL
BANK CORPORATION
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By:
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Secretary
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Chief
Executive Officer
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[CORPORATE
SEAL]
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PARTICIPANT
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Signature
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