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EXHIBIT 10.9
SOUTHERNBANK HOLDINGS, INC.
INCENTIVE STOCK OPTION
COMMON STOCK
($1.00 PAR VALUE PER SHARE)
STOCK OPTION PLAN: SOUTHERNBANK HOLDINGS, INC. STOCK OPTION PLAN
OPTION FOR THE PURCHASE OF: _______ SHARES
EXERCISE PRICE PER SHARE: __________
DATE OF GRANT: __________________
THIS OPTION AGREEMENT, made and entered into this ____ day of
__________, ____ by and between SouthernBank Holdings, Inc., a Georgia
corporation (the "Company"), and ______________________________________ (the
"Grantee");
W I T N E S S E T H:
WHEREAS, the SOUTHERNBANK HOLDINGS, INC. STOCK OPTION PLAN (the
"Plan") has been adopted by the Company; and
WHEREAS, Article II of the Plan authorizes the Committee to cause the
Company to enter into a written agreement with the Grantee setting forth the
form and the amount of any award and any conditions and restrictions of the
award imposed by the Plan and the Committee; and
WHEREAS, the Committee desires to make an award to the Grantee
consisting of an Incentive Stock Option;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and other good and valuable consideration, the receipt of which is
hereby acknowledged, the Company and the Grantee hereby agree as follows:
1. General Definitions. Any capitalized terms herein shall have
the meaning set forth in the Plan, and, in addition, for purposes of this
Option Agreement, each of the following terms, when used herein, shall have the
meaning set forth below:
(a) The "Company" shall mean SouthernBank Holdings, Inc.
(b) The "Code" shall mean the Internal Revenue Code of
1986, as amended.
(c) The "Common Stock" shall mean the common stock of
the Company, $1.00 par value per share.
(d) The "Exercise Date" shall mean the first anniversary
of the Date of Xxxxx. At any time during the period of this Option commencing
with the first anniversary of the Date of Xxxxx, the Grantee may purchase up
to 20% of the shares covered by this Option and may purchase
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an additional 20% on the second, third, fourth and fifth anniversary from
the Date of Grant so that this Option will be fully vested on the fifth
anniversary of the Date of Grant.
(e) The "Expiration Date" shall mean the date on which
this Option expires pursuant to the provisions of paragraph 4 hereof.
(f) "Fair Market Value" of a share of Common Stock on a
specified date means:
(i) if the Common Stock is then traded
on a national securities exchange, the closing price
on such date of a share of the Common Stock as
traded on the largest securities exchange on which
it is then traded; or
(ii) if the Common Stock is not then
traded on a national securities exchange, the mean
between the closing composite inter-dealer "bid" and
"ask" prices for Common Stock, as quoted on the
NASDAQ National Market System (A) on such date, or
(B) if no "bid" and "ask" prices are quoted on such
date, then on the next preceding date on which such
prices were quoted; or
(iii) if the Common Stock is not then
traded on a national securities exchange or quoted
on the NASDAQ National Market System, the value
determined in good faith by the Committee.
(g) "Good Cause," with respect to any dismissal of
Grantee from his or her employment with the Company or any of its affiliates,
shall mean the dismissal of the Grantee from such employment by the Company or
any of its affiliates by reason of (i) the Grantee's being convicted of, or
pleading guilty or confessing to, any felony or any act of fraud,
misappropriation or embezzlement, (ii) the Grantee's improperly releasing or
misappropriating trade secrets or other tangible or intangible property of the
Company or any of its affiliates or engaging in a dishonest act to the damage
or prejudice of the Company or any of its affiliates or in willful or grossly
negligent conduct or activities materially damaging to the property, business
or reputation of the Company or any of its affiliates, or (iii) the Grantee's
failing, without reasonable cause, to devote his or her full business time and
efforts to the Company or any of its affiliates.
(h) This "Option" shall mean the option evidenced by
this Option Agreement, which is intended to be an "incentive stock option"
within the meaning of Code Section 422.
(i) The "Option Price" shall mean the purchase price of
each share of Common Stock that may be purchased by the Grantee upon the
exercise of this Option, in whole or in part. The Option Price is set forth
under "Exercise Price Per Share" on page 1 of this Option Agreement as adjusted
from time to time in accordance with the provisions hereof.
2. Grant of Option. Upon the terms and subject to the conditions
and limitations hereinafter set forth, the Grantee shall have the right, at any
time after the Exercise Date and on or before the Expiration Date, to purchase
the number of shares of Common Stock set forth on page 1 of this Option
Agreement and vested under Paragraph 1(d), such number of shares and the Option
Price being subject to adjustment in accordance with the provisions set forth
below and in accordance with the terms of the Plan notwithstanding anything to
the contrary herein.
3. Manner of Exercise. Subject to the terms, conditions, and
limitations set forth herein, this Option may be exercised in whole or in part
at any time or from time to time after the Exercise Date and on or before the
Expiration Date as to any part of the number of whole shares of
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Common Stock then vested under Paragraph 1(d) and available under this Option.
Such exercise shall be effective only if the Grantee duly executes and delivers
to the Company, at the principal executive office of the Company or at such
other address as the Company may designate by notice in writing to the Grantee,
an option exercise form substantially the same as that attached hereto as
Exhibit A, indicating the number of shares of Common Stock to be purchased and
accompanied by payment of the Option Price and any withholding amounts
described below. Payment of the Option Price and any such withholding amounts
may be made (i) in cash or by the Grantee's personal check, a certified check,
a bank draft, or a postal or express money order payable to the order of the
Company in lawful money of the United States or in any combination of the
foregoing, or (ii) by delivery of mature shares of Common Stock, the Fair Value
of which is equal to the Option Price as of the Exercise Date.
Upon any effective exercise of this Option, the Company shall become
obligated to issue a certificate or certificates to the Grantee representing
the number of shares of Common Stock so purchased. Notwithstanding the
foregoing, no shares of Common Stock will be issued unless the Grantee (or his
representative as the case may be) shall pay to the Company or any affiliate,
as applicable, such amount as the Company or any affiliate may advise it is
required under applicable federal, state or local law to withhold and pay over
to governmental taxing authorities by reason of the purchase of such shares of
Common Stock pursuant to this Option. No fractional shares will be issued.
4. Expiration of Option. This Option shall expire, shall become
null and void, and shall be of no further force and effect upon the earlier to
occur of the following events:
(a) Three months after the date of the Grantee's
resignation or other voluntary termination of his or her employment with the
Company or any of its affiliates (other than by reason of his or her death or
"disability" within the meaning of Section 22(e)(3) of the Code), but during
such three month period the Option shall be exercisable only to the extent that
it was exercisable as of the date of resignation or termination;
(b) The dismissal of the Grantee from his or her
employment with the Company or any affiliate for Good Cause at any time;
(c) Three months after the date on which the Company or
any affiliate terminates the Grantee's employment for any reason other than
Good Cause, but during such three month period the Option shall be exercisable
only to the extent that it was exercisable as of the date of termination;
(d) One year after the date on which Xxxxxxx's
employment with the Company or any affiliate is terminated by reason of the
Grantee's death or "disability" within the meaning of Section 22(e)(3) of the
Code, but during such one year period the Option shall be exercisable only to
the extent that it was exercisable as of the date of death or disability; or
(e) Ten years from the Date of Xxxxx.
5. Xxxxxx's Exercise Subject to Compliance with Securities Laws.
Notwithstanding the exercise of this Option, in whole or in part, in accordance
with all other provisions of this Option, the Company shall have no obligation
to honor such exercise and to issue Common Stock pursuant thereto unless and
until the Grantee furnishes the Company an agreement in such form as the
Committee may specify) in which the Grantee (or any person acting on his
behalf) represents that the Common Stock acquired by him upon exercise are
being acquired for investment and not with a view to the sale or distribution
thereof, or such other representations as may be required by
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the Committee in accordance with the advice of legal counsel, unless the
Committee shall have received advice from legal counsel that such
representation is not required.
6. Adjustment of Option Price and Number of Shares That May be
Purchased Hereunder. The Option Price and the number of shares of Common Stock
that may be purchased hereunder shall be subject to adjustment from time to
time by the Committee in accordance with the terms of the Plan in the event of
certain changes in the Common Stock or certain corporate transactions affecting
the number or value of the shares of Common Stock.
7. Notice of Adjustments. Upon the occurrence of any adjustment
of the Option Price, or any increase or decrease in the number of shares of
Common Stock that may be purchased upon the exercise of this Option, then, and
in each such case, the Company, within 30 days thereafter, shall give written
notice thereof to the Grantee at the address of the Grantee as shown on the
books of the Company, which notice shall state the Option Price as adjusted and
the increased or decreased number of shares that may be purchased upon the
exercise of this Option, setting forth in reasonable detail the method of
calculation of each.
8. Additional Conditions. The Grantee and any person acting on
the Grantee's behalf agrees and acknowledges that any shares of Common Stock
issued or transferred under this Option may be issued or transferred subject to
such conditions, in addition to those set forth in this Option, as the
Committee or the Company may impose and may require the Grantee (or any person
acting on the Grantee's behalf) to deliver and comply in all respects with the
Company's shareholders agreement, if any, as may be in effect at the time of
any exercise of this Option. No shares shall be issued upon exercise of this
Option prior to the delivery of a properly executed shareholders agreement or
such other agreement or acknowledgment that the Committee shall deem necessary
to ensure that the Common Stock acquired pursuant to the Option will be subject
to such shareholders agreement.
9. Assignment. This Option may not be transferred or assigned by
the Grantee otherwise than by will or by the laws of descent and distribution
and, during the lifetime of the Grantee, may be exercised, in whole or in part,
only by the Grantee; provided, however, subject to paragraph 4(d) hereof, in
the event of the Grantee's death or disability, this Option may be exercised by
his or her personal representative, heirs or legatees.
10. No Right to Continued Employment. This Option does not confer
upon the Grantee the right to continued employment with the Company or any
affiliate, nor shall it interfere with the right of the Company or any
affiliate to terminate his or her employment at any time.
11. Disqualifying Disposition. If the Grantee disposes of any
shares of Common Stock acquired pursuant to exercise of this Option prior to
the later of two years after the Date of Grant of this Option or one year after
the transfer of any share to the Grantee pursuant to the exercise of this
Option, such disposition shall be treated as a disqualifying disposition under
Code Section 421(b) and not a disposition of a share acquired pursuant to the
exercise of an incentive stock option. The Grantee shall notify the Company in
writing in the event that, prior to the later of two years after the date of
grant of this Option or one year after the transfer of any share to the Grantee
pursuant to the exercise of this Option, the Grantee shall dispose of such
share. Such notice shall state the date of disposition, the nature of the
disposition and the price, if any, received for the share.
12. Miscellaneous.
(a) The Company covenants that it will at all times
reserve and keep available, solely for the purpose of issue upon the exercise
of this Option, a sufficient number of shares of
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Common Stock to permit the exercise of this Option in full.
(b) The terms of this Option shall be binding upon and
shall inure to the benefit of any successors or assigns of the Company and of
the Grantee.
(c) The Grantee shall not be entitled to vote or to
receive dividends with respect to any Common Stock that may be, but has not
been, purchased under this Option and shall not be deemed to be a shareholder
of the Company with respect to any such Common Stock for any purpose.
(d) This Option has been issued pursuant to the Plan and
shall be subject to, and governed by, the terms and provisions thereof. The
Grantee hereby agrees to be bound by all the terms and provisions of the Plan.
In the event of any conflict between the terms of the Plan and this Option
Agreement, the provisions of the Plan shall govern.
(e) This Option Agreement shall be governed by the laws
of the State of Georgia.
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IN WITNESS WHEREOF, the Company and the Grantee have executed this
Option Agreement as of the day and year first above written.
SOUTHERNBANK HOLDINGS, INC.
By:
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Its:
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GRANTEE:
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EXHIBIT A
OPTION EXERCISE FORM
(To be executed by the Grantee to
exercise the rights to purchase Common Stock
evidenced by the foregoing Option)
TO: SouthernBank Holdings, Inc.
The undersigned hereby exercises the right to purchase __________
shares of Common Stock covered by the attached Option in accordance with the
terms and conditions thereof, and herewith makes payment of the Option Price of
such shares in full.
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Signature
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Address
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Social Security Number
Date:__________
