EXHIBIT 10.17
EXECUTION COPY
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ABC BANCORP
1997 OMNIBUS STOCK OWNERSHIP
AND LONG TERM INCENTIVE PLAN
INCENTIVE STOCK OPTION AGREEMENT
Number of Date of
Grantee: Shares: Xxxxx:
______________ _____________ _______________
Expiration Exercise Price
Date*: Per Share: Vesting Dates*:
______________ $____________ __________ (20% Shares)
__________ (20% Shares)
Exercisability __________ (20% Shares)
Date*: __________ (20% Shares)
__________ (20% Shares)
______________
THIS AGREEMENT (this "Agreement") is made and entered into as of the date
of the grant set forth above (the "Grant Date"), by and between ABC Bancorp, a
Georgia corporation ("ABC"), and the above named individual (the "Grantee").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, ABC has established the "ABC Bancorp 1997 Omnibus Stock Ownership
and Long Term Incentive Plan" (the "Plan") to advance the interests of ABC and
any parent or subsidiary corporation of ABC (together with ABC, referred to
collectively as the "Company") by strengthening the Company's ability to attract
and retain individuals of training, experience and ability in the employ of the
Company and to furnish additional incentive to such key employees to promote the
Company's financial success.
__________
* Subject to acceleration as provided in Section 3 hereof.
WHEREAS, pursuant to the provisions of the Plan and the respective Written
Consents executed on the Grant Date by the Board of Directors of ABC and the
Compensation Committee thereof appointed thereby (the "Committee"), the
Committee has the full power and authority to direct the execution and delivery
of this Agreement in the name and on behalf of ABC in order to evidence and to
set forth fully the terms of that certain grant of a stock option to the Grantee
as effected by said Written Consents.
NOW, THEREFORE, the parties hereto agree as follows:
1. Grant of ISO. Subject and pursuant to all terms and conditions stated
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in this Agreement and in the Plan, which is incorporated herein by this
reference and made a part hereof as though fully set forth herein, ABC grants to
the Grantee on the Grant Date an incentive stock option (the "ISO", as defined
under the Plan) within the meaning of Section 422 of the Internal Revenue Code
of 1986, as amended (the "Code"), to purchase the number of shares of ABC's
common stock, $1.00 par value per share ("Common Stock"), set forth above (the
"Option Shares"), at the exercise price per share set forth above (the "Per-
Share Price"), on or before the expiration date set forth above (the "Expiration
Date"). The Grantee hereby accepts the ISO on such terms and conditions. The
Grantee shall, subject to the limitations of this Agreement and the Plan, have
the right to exercise the ISO commencing on the exercisability date set forth
above (the "Exercisability Date") by purchasing all or any part of the Option
Shares then available for purchase under the vesting schedule set forth above.
2. Exercise of ISO. The Grantee may exercise all or any part of the ISO
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by delivering written notice to the Committee (in the form attached hereto as
Exhibit A) of the number of Option Shares (in a multiple of 100, except in the
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case of a full exercise of the remaining vested portion of the ISO) to be
purchased together with payment in an amount equal to the product of the Per-
Share Price times the number of Option Shares to be purchased (the "Exercise
Price") made in one of the following forms or a combination thereof:
(a) The Committee may require the Grantee to make a cash payment to
the Company equal to the amount of the Exercise Price; or
(b) The Grantee may request, in lieu of cash payment, that the
Company either accept shares (of the same class as the Option Shares) owned by
the Grantee or withhold Option Shares, each as more fully described below. If
the Committee grants any such request in whole or in part, in its sole and
absolute discretion, any shares so accepted or withheld by the Company under
this paragraph (b) shall be valued at their fair market value, as determined in
good faith by the Board of Directors of the Company. In no such event shall any
fractional shares be accepted or withheld, and thus any deficiency remaining
after the acceptance or withholding of whole shares shall be satisfied by the
Grantee in cash.
In the event the Committee has indicated to the Grantee that it will permit
payment of the Exercise Price to be made in whole or in part with previously
issued stock owned by the Grantee, the stock certificates evidencing the
surrendered shares shall accompany the notice of
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exercise and shall be duly endorsed or accompanied by duly executed stock powers
to transfer the same to the Company. In the event that the Committee has
indicated to the Grantee that it will permit payment of the Exercise Price to be
made in whole or in part with Option Shares, the notice of exercise need not be
accompanied by any stock certificates but shall include a statement directing
the Company to retain that number of Option Shares as shall equal the number of
shares that would have been surrendered to the Company by the Grantee if the
Exercise Price had been paid with previously issued stock.
In the event the Grantee does not make such payment when requested, the
Company may refuse to issue or cause to be delivered any shares under this
Agreement or any other incentive plan agreement entered into by the Grantee and
the Company until such payment has been made or arrangements for such payment
satisfactory to the Company have been made.
Such notice of exercise shall be sent to the Committee at ABC Bancorp, 000
Xxxxx Xxxxxx Xxxxxxxxx, Xxxxxxxx, Xxxxxxx 00000 (or P. O. Box 3668, Moultrie,
Georgia 31766), Attention: Chairman. The ISO shall be deemed to have been
exercised on the date the written notice and required consideration are received
on behalf of the Committee.
3. Vesting and Exercisability of ISO.
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(a) Employment Termination Prior to Exercisability Date of ISO. In
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the case of any termination of the Grantee's employment with the Company,
voluntarily or involuntarily, prior to the Exercisability Date, the following
provisions shall apply:
(1) Unvested Portion of ISO. Any unvested portion of the ISO
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shall immediately terminate upon the earlier of (i) the date the
employment of the Grantee with the Company terminates, or (ii) the date the
Grantee is given written notice of his or her discharge from such
employment; provided, however, that in the event such termination of
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employment occurs due to Retirement, Disability, or Death (as each such
term is defined in paragraph (c) below), then the Committee, in its sole
and absolute discretion, may cause all or any part of such unvested portion
of the ISO to become fully vested immediately upon the date of such
employment termination (and thus become immediately exercisable and
otherwise subject to the terms and conditions of subparagraph (2)
immediately below).
(2) Vested Portion of ISO. Any vested portion of the ISO
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(including any portion of the ISO that vests in the discretion of the
Committee pursuant to subparagraph (1) immediately above) shall become
immediately exercisable but shall terminate effective three (3) months
after the earlier of (i) the date the employment of the Grantee with the
Company terminates, or (ii) the date the Grantee is given written notice of
his or her discharge from such employment; provided, however, that in the
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event such termination of employment occurs due to either Disability or
Death (as each such term is defined in paragraph (c) below), such vested
portion of the ISO may be exercised at any time (i)
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within one (1) year from such Disability, or (ii) prior to the Expiration
Date in the case of employment termination by reason of Death.
(b) Employment Termination On or After Exercisability Date of ISO. In the
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case of any termination of the Grantee's employment with the Company,
voluntarily or involuntarily, on or after the Exercisability Date, the
unexercised portion of the ISO (all of which shall have previously become
vested) shall terminate effective three (3) months after the earlier of (i) the
date the employment of the Grantee with the Company terminates, or (ii) the date
the Grantee is given written notice of his or her discharge from such
employment; provided, however, that in the event such employment termination
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occurs due to Disability or Death (as each such term is defined in paragraph (c)
immediately below), the ISO may be exercised at any time (i) within one (1) year
from such Disability (but in all events prior to the Expiration Date) or (ii)
prior to the Expiration Date in the case of employment termination by reason of
Death.
(c) For purposes of this Section 3, the following initially capitalized
terms shall have the following meanings:
(1) Death. The date of death of the Grantee as established by the
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relevant death certificate.
(2) Disability. The date on which the Grantee becomes permanently
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and totally disabled within the meaning of Section 22(e)(3) of the Code,
which shall be determined by the Committee on the basis of such medical or
other evidence as it may reasonably require or deem appropriate.
(3) Retirement. The date of termination of the Grantee's employment
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either (i) under conditions which would constitute "normal retirement" or
"early retirement" under any tax qualified retirement plan maintained by
the Company, or (ii) after attaining age 65.
4. Change in Control Transaction; Discretion to Accelerate.
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At any time prior to the date of consummation of a Change in Control
Transaction (as hereinafter defined), the Committee may, in its sole and
absolute discretion, determine that all or any part of the ISO (whether or not
then otherwise vested) shall become immediately exercisable in full and may
thereafter be exercised at any time before the date of consummation of the
Change in Control Transaction (except as otherwise provided in the Plan, and
except to the extent that such acceleration of exercisability would result in an
"excess parachute payment" within the meaning of Section 280G of the Code). In
the event that the Committee exercises its discretion as set forth herein, then
to the extent the ISO has not been fully exercised before the date of
consummation of the Change in Control Transaction, it shall terminate on such
date, unless a provision has been made in writing in connection with such
transaction for the assumption of the ISO, or the substitution for the ISO of
options to acquire the voting stock of a successor employer corporation, or a
parent or a subsidiary thereof, with appropriate
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adjustments as to the number and kind of shares and prices, in which event the
ISO shall continue in the manner and under the terms so provided. For purposes
of this Section 4, a "Change in Control Transaction" shall mean dissolution or
liquidation of the Company; a reorganization, merger or consolidation of the
Company as a result of which the outstanding securities of the class then
subject to Rights hereunder are changed into or exchanged for cash or property
or securities not of the Company's issue; or a sale of all or substantially all
of the assets of the Company to, or the acquisition of the stock representing
more than twenty-five percent (25%) of the voting power of the capital stock of
the Company then outstanding by, another corporation, bank, or other entity or
person.
5. Legal Restrictions. If in the opinion of legal counsel for the
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Company the issuance or sale of any Option Shares would not be lawful for any
reason, including, without limitation, the inability of the Company to obtain
from any governmental authority or regulatory body having jurisdiction the
authority deemed by such counsel to be necessary to such issuance or sale, the
Company shall not be obligated to issue or sell any Option Shares pursuant to
the exercise of this ISO to the Grantee or any other authorized person unless a
registration statement that complies with the provisions of the Securities Act
of 1933, as amended (the "Act"), in respect of such Option Shares is in effect
at the time thereof, or other appropriate action has been taken under and
pursuant to the terms and provisions of the Act, or the Company receives
evidence satisfactory to such counsel that the issuance and sale of such Option
Shares, in the absence of an effective registration statement or other
appropriate action, would not constitute a violation of the Act or any
applicable state securities law. It is further agreed that the Company is in no
event obligated to register any Option Shares, to comply with any exemption from
registration requirements or to take any other action which may be required in
order to permit, or to remedy or remove any prohibition or limitation on, the
issuance or sale of such Option Shares to the Grantee. Grantee further
acknowledges that the Act and/or applicable state securities laws may restrict
the right and govern the manner in which the Grantee may dispose of Option
Shares, and Xxxxxxx agrees not to offer, sell or otherwise dispose of any such
shares in a manner which would violate the Act or any other federal or state
law.
6. Option Shares Delivered in Escrow. All Option Shares issued upon any
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exercise of the ISO shall be held in escrow for a period which ends on the later
of (i) two (2) years from the Grant Date or (ii) one (1) year after the issuance
of such shares pursuant to the exercise of the ISO. Such shares shall be held
by the Company or its designee. During such escrow period, the Grantee shall
have all rights of a shareholder of the Company, including, but not limited to,
the rights to vote, receive dividends and transfer such shares. The sole
purpose of the escrow is to inform the Company of any disqualifying disposition
(described in Section 422(a)(1) of the Code) of the Option Shares and it shall
be administered solely for this purpose.
7. No Rights as Shareholder or to Employment. Neither the Grantee nor
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any other person authorized to purchase Common Stock upon exercise of this ISO
shall have any interest in or shareholder rights with respect to any shares of
the Common Stock which are subject to this ISO until such shares have been
issued and delivered into escrow as provided in Section 6 hereof. Furthermore,
neither this Agreement nor the Plan shall confer upon the Grantee any
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rights of employment with the Company, including, without limitation, any right
to continue in the employ of the Company, or shall affect the right of the
Company to terminate the employment of the Grantee at any time, with or without
cause.
8. Withholding Taxes. As a condition of exercise of this ISO, the
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Committee may, in its sole discretion, withhold or require the Grantee to pay or
reimburse the Company for any taxes which the Company determines are required to
be withheld in connection with the grant or any exercise of this ISO.
9. Heirs and Successors. This Agreement and all terms and conditions
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hereof shall be binding upon the parties hereto, and their successors, heirs,
legatees and legal representatives.
10. Nontransferability; Who May Exercise. Neither this Agreement nor the
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ISO granted hereby may be transferred or assigned, other than by will or the
laws of descent and distribution, and the ISO may not be exercised by any person
other than the Grantee during the Grantee's lifetime.
11. Plan Controls. Copies of the Plan will be made available to the
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Grantee upon request. In the event of any conflict between the Plan and this
Agreement, the Plan shall control and this Agreement shall be deemed to be
modified accordingly.
12. Governing Law; Venue. To the extent not superseded by federal law,
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the laws of the State of Georgia shall control in all matters relating to this
Agreement and any action relating to this Agreement must be brought in Xxxxxxxx
County, State of Georgia.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, all as
of the Grant Date set forth herein.
ABC BANCORP
By:_________________________________
Chairman of the Committee
____________________________________
GRANTEE
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EXHIBIT A
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EXERCISE OF INCENTIVE
STOCK OPTION
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The undersigned Optionee under that certain ABC Bancorp Incentive
Stock Option Agreement dated as of _____________________________ (the
"Agreement"), hereby exercises the Incentive Stock Option granted under the
Agreement for the following number of shares of Common Stock, subject to the
terms and conditions of the Agreement:
Number of shares being purchased
(must be a multiple of 100
or full exercise)
________
Total purchase price submitted herewith: $________
_________________________
(Signature)
_________________________
(Date)
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