CAPITAL BANK CORPORATION EQUITY INCENTIVE PLAN STOCK AWARD AGREEMENT
Exhibit
10.1
CAPITAL
BANK CORPORATION
EQUITY
INCENTIVE PLAN
THIS
STOCK AWARD AGREEMENT (this
“Agreement”) is dated as of [date] (the “Grant Date”) by and
between Capital Bank Corporation, a North Carolina corporation (the
“Corporation”), and [participant name] (the “Participant”)
pursuant to the Capital Bank Corporation Equity Incentive Plan (the
“Plan”). All capitalized terms not otherwise defined herein shall
have the meanings set forth in the Plan.
RECITALS:
A.
Participant is an officer, employee or director of the Corporation and the
Corporation, in consideration of the Participant’s prior and future services to
the Corporation, considers it desirable to give Participant an added incentive
to advance the interests of the Corporation and its shareholders.
B.
The Corporation now desires to grant Participant shares of common stock of
the
Corporation, no par value (the “Shares”) in the form of restricted stock,
pursuant to the terms and conditions of this Agreement and the Plan (the
“Restricted Stock”).
AGREEMENT:
NOW,
THEREFORE, in consideration of the
covenants hereinafter set forth, the parties agree as follows:
1.
Grant of Restricted
Stock. The Corporation has granted Participant, and
Participant hereby accepts, [number] Shares of Restricted Stock,
having a fair market value (FMV) per Share of [price] on the
Grant Date. Pursuant to Section 10 of the Plan, the Restricted Stock
is granted as a restricted stock award and Participant shall not be obligated
to
pay a purchase price for the Shares. The Restricted Stock shall be
subject to the terms and conditions stated in this Agreement and in the
Plan.
2.
Period of
Restriction. Subject to Participant continuing to provide
continuous services to the Corporation, the restrictions set forth in this
Agreement with respect to the Restricted Stock shall lapse with respect to
one third (1/3) of the Shares on each of the first,
second and third
anniversaries of the Grant Date, so that all the restrictions shall have lapsed
three (3) years from the Grant Date (the “Period of
Restriction”). Participant acknowledges that prior to the expiration
of the applicable portion of the Period of Restriction, the Restricted Stock
may
not be sold, transferred, pledged, assigned, encumbered, alienated, hypothecated
or otherwise disposed of (whether voluntarily or involuntarily or by operation
of law by judgment, levy, attachment, garnishment or any other legal or
equitable proceedings (including bankruptcy)). Upon the expiration of
the applicable portion of the Period of Restriction, the restrictions set forth
in this Agreement with respect to the Restricted Stock initially subject to
such
expired Period of Restriction shall lapse, except as may be provided in
accordance with Section 9 hereof.
3.
Ownership. Participant
agrees that Participant’s ownership of the Restricted Stock will be evidenced
solely by a “book entry” (i.e., a computerized or manual entry) in the records
of the Corporation or its designated stock transfer agent in Participant’s
name. Upon expiration of the applicable portion of the Period of
Restriction, the Corporation shall transfer the vested shares to
Participant.
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4.
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Termination.
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(a) Death
or Disability. If Participant’s termination of
employment or other relationship with the Corporation is as a result
of
Participant’s death or Disability (as defined in Participant’s employment
agreement or, if Participant has no employment agreement, within
the
meaning of Section 22(e)(3) of the Internal Revenue Code of 1986,
as
amended (the “Code”)), then the Period of Restriction shall immediately
lapse, causing any restrictions which would otherwise remain on the
Restricted Stock to immediately
lapse.
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(b) Other Terminations. If Participant’s Termination is by the Corporation or an affiliate of the Corporation or by Participant for any reason other than death or Disability, then all Restricted Stock for which the Period of Restriction had not lapsed prior to the date of such Termination shall be immediately forfeited. |
5.
Taxes and
Withholdings. Upon the expiration of the applicable portion of
the Period of Restriction or such earlier dates as Participant elects pursuant
to Section 83(b) of the Code, or as of which the value of any Shares of
Restricted Stock first becomes includible in Participant’s gross income for
income tax purposes, Participant shall notify the Corporation if Participant
wishes to pay the Corporation in cash, check or with shares of Corporation
common stock already owned for the satisfaction of any taxes of any kind
required by law to be withheld with respect to such Shares; provided, however,
that pursuant to any procedures, and subject to any limitations as the
Compensation / Human Resources Committee of the Board of Directors of the
Corporation (the “Committee”) may prescribe and subject to applicable law, if
Participant does not notify the Corporation in writing at least fourteen (14)
days prior to the applicable lapse of the Period of Restriction, then
Participant will satisfy such withholding obligations by withholding Shares
otherwise deliverable to Participant pursuant to the Restricted Stock (provided,
however, that the amount of any Shares so withheld shall not exceed the amount
necessary to satisfy required Federal, state, local and non-United States
withholding obligations using the minimum statutory withholding rates for
Federal, state, local and/or non-U.S. tax purposes, including payroll taxes,
that are applicable to supplemental taxable income). Any such election made
by
Participant must be irrevocable, made in writing, signed by Participant, and
shall be subject to any restrictions or limitations that the Committee, in
its
sole discretion, deems appropriate. In the event that the Participant
elects immediate Federal income taxation with respect to all or any portion
of
this award of Restricted Stock pursuant to Section 83(b) of the Code,
Participant agrees to deliver a copy of such election to the Corporation within
ten (10) days after filing such election with the Internal Revenue
Service.
6.
Rights as a
Shareholder. Participant shall have all rights of a
shareholder (including, without limitation, dividend and voting rights) with
respect to the Restricted Stock, for record dates occurring on or after the
Grant Date and prior to the date any such Shares of Restricted Stock are
forfeited in accordance with this Agreement, except that any dividends or
distributions paid in Shares or other securities (including, without limitation,
any change in the shares of Restricted Stock pursuant to Section 6 of the Plan)
with respect to the Restricted Stock shall, during the Period of Restriction,
be
deposited with the Corporation or any holder appointed pursuant to Section
3
hereof, together with a stock power endorsed in blank or other appropriate
instrument of transfer, or credited to Participant’s book-entry account
established under Section 3 hereof, as applicable, and shall be subject to
the
same restrictions (including, without limitation, the Period of Restriction)
as
such Restricted Stock and otherwise considered to be such Restricted Stock
for
all purposes hereunder.
7.
No Right to Continued
Employment. Neither the Restricted Stock nor any terms
contained in this Agreement shall confer upon Participant any express or implied
right to be retained in the employment or service of the Corporation or any
affiliate for any period, nor restrict in anyway the right of the Corporation,
which right is hereby expressly reserved, to terminate Participant’s employment
or service at any time for any reason. Participant acknowledges and
agrees that any right to have restrictions on the Restricted Stock lapse is
earned only by continuing in the service of the Corporation or an affiliate
at
the will of the Corporation or such affiliate, or satisfaction of any other
applicable terms and conditions contained in the Plan and this Agreement, and
not through the act of being hired, being granted the Restricted Stock or
acquiring Shares hereunder.
8.
The
Plan. This Agreement is subject to all the terms, provisions
and conditions of the Plan which are incorporated herein by reference, and
to
such requirements as may from time to time be adopted by the
Committee. In the event of any conflict between the provisions of the
Plan and this Agreement, the provisions of the Plan shall control, and this
Agreement shall be deemed to be modified accordingly. A copy of the
Plan is available to Participant at the Corporation’s principal executive
offices upon request and without charge.
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(a) The
Restricted
Stock and the obligation of the Corporation to sell and deliver Shares
hereunder shall be subject in all respects to (i) all applicable
Federal
and state laws, rules and regulations and (ii) any registration,
qualification, approvals or other requirements imposed by any government
or regulatory agency or body which the Committee shall, in its discretion,
determine to be necessary or applicable. Moreover, the Corporation
shall
not deliver any certificates for Shares to Participant or any other
person
pursuant to this Agreement if doing so would be contrary to applicable
law. If at any time the Corporation determines, in its discretion,
that
the listing, registration or qualification of Shares upon any national
securities exchange or under any state or Federal law, or the consent
or
approval of any governmental regulatory body, is necessary or desirable,
the Corporation shall not be required to deliver any certificates
for
Shares to Participant or any other person pursuant to this Agreement
unless and until such listing, registration, qualification, consent
or
approval has been effected or obtained, or otherwise provided for,
free of
any conditions not acceptable to the Corporation.
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(b) The
Shares
received upon the expiration of the applicable portion of the Period
of
Restriction shall have been registered under the Securities Act of
1933,
as amended (“Securities Act”). If Participant is an “affiliate”
of the Corporation, as that term is defined in Rule 144 under the
Securities Act (“Rule 144”), Participant may not sell the Shares received
except in compliance with Rule 144. Certificates representing
Shares issued to an “affiliate” of the Corporation may bear a legend
setting forth such restrictions on the disposition or transfer of
the
Shares as the Corporation deems appropriate to comply with Federal
and
state securities laws.
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(c) If,
at any
time, the Shares are not registered under the Securities Act, and/or
there
is no current prospectus in effect under the Securities Act with
respect
to the Shares, Participant may be required to execute, prior to the
delivery of any Shares to Participant by the Corporation pursuant
to this
Agreement, an agreement (in such form as the Corporation may specify)
in
which Participant represents and warrants that Participant is purchasing
or acquiring the shares acquired under this Agreement for Participant’s
own account, for investment only and not with a view to the sale
or
distribution thereof, and represents and agrees that any subsequent
offer
for sale or distribution of any kind of such Shares shall be made
only
pursuant to either (i) a registration statement on an appropriate
form
under the Securities Act, which registration statement has become
effective and is current with regard to the Shares being offered
or sold,
or (ii) a specific exemption from the registration requirements of
the
Securities Act, but in claiming such exemption Participant shall,
prior to
any offer for sale of such Shares, obtain a prior favorable written
opinion, in form and substance satisfactory to the Corporation, from
counsel for or approved by the Corporation, as to the applicability
of
such exemption thereto.
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10.
Notices. All
notices by Participant or Participant’s assignees shall be addressed to Capital
Bank Corporation, 000 Xxxxxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxx Xxxxxxxx 00000,
Attention: Human Resources, or such other address as the Corporation may from
time to time specify. All notices to Participant shall be addressed
to Participant at Participant’s address in the Corporation’s
records.
11.
Other
Plans. Participant acknowledges that any income derived from
the Restricted Stock shall not affect Participant’s participation in, or
benefits under, any other benefit plan or other contract or arrangement
maintained by the Corporation or any Affiliate.
12.
Governing
Law. This Agreement shall be construed under and governed by
the laws of the State of North Carolina without regard to the conflict of law
provisions thereof.
13.
Counterparts. This
Agreement may be executed in counterparts, each of which shall be deemed an
original and both of which together shall be deemed one Agreement.
[signature
page follows]
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IN
WITNESS WHEREOF, the Corporation and
Participant have executed this Agreement as of the date first above
written.
ATTEST
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CAPITAL
BANK CORPORATION
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By:
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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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