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EXHIBIT 10.33
FORM OF
1999 NONQUALIFIED
STOCK OPTION AGREEMENT
FOR NON-EMPLOYEE DIRECTORS
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COMMUNITY BANCSHARES, INC.
1999 NONQUALIFIED STOCK OPTION AGREEMENT
FOR NON-EMPLOYEE DIRECTORS
THIS AGREEMENT is made and entered into as of December 4, 1999,
between grantor Community Bancshares, Inc., a Delaware corporation (the
"Corporation") and grantee, ________________ (the "Director").
WITNESSETH:
The Board of Directors of the Corporation (the "Board") on December 4,
1999 approved the grant to Director of awards under the Corporation's long-term
incentive program and established the terms and conditions of such awards, as
contained in this Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
1. GRANT OF OPTION. Director shall have the right and option to
purchase on the terms and conditions set forth herein, all or any part of an
aggregate of ______ shares ("Option Shares") of the $.10 par value common stock
of the Corporation (the "Common Stock") at the purchase price of $20.00 per
share (the "Option Price"). The Option Price is 100% of the fair market value
of the Common Stock on December 4, 1999, the date of the grant of the option
covered by this Agreement.
2. TERMS AND CONDITIONS. It is understood and agreed that the
option evidenced hereby is subject to the following terms and conditions:
(a) Expiration Date. The option shall expire five (5) years after
the date of grant (the "Expiration Date"). After the Expiration Date, the
parties shall have no further rights or obligations hereunder.
(b) Exercise of Option. The option covered by this Agreement may
be exercised by Director from time to time, in whole or in part, at any time
prior to the Expiration Date subject to the restrictions in Section 2(d), (e)
and (f) and Section 8.
(c) Method of Exercise and Payment of Purchase Price Upon
Exercise. The Director may elect to exercise the option by giving written
notice of such election to the Corporation, in such form as the Board may
require, accompanied by payment in cash or in such other manner as may be
approved by the Board, of the full purchase price of the Option Shares for
which the election is made. As determined by the Board, in its sole discretion,
payment in full or in part may be made in the form of unrestricted Common Stock
already owned by the Director (provided that the shares of Common Stock which
are tendered must have been held by the Director for at least six (6) months
prior to their tender to satisfy the exercise price) or in the form of a
withholding of sufficient shares of Common Stock otherwise issuable upon the
exercise of the option to constitute payment of the purchase price, based, in
each case, on the fair market value of the Common Stock on the date the option
is exercised. Further, upon written request and authorization of the Director
and to the extent permitted by applicable law, the Board may allow arrangements
whereby an option may be exercised and the exercise price (together with any
tax withholding obligations of the Director) paid pursuant to arrangements with
brokerage forms permitted under Regulation T of the Board of Governors of the
Federal Reserve System (or successor regulations or statutes).
(d) Exercise Upon Death. In the event that Director ceases to
serve as a director of Corporation or its subsidiaries by reason of death, the
option may thereafter be exercised as to all shares subject to the option by
the legal representative of the estate or by the person or persons entitled to
the option under the
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Director's will or the laws of descent and distribution, as appropriate, until
the earlier of (i) the expiration of the stated term of the option or (ii) the
first anniversary of the date of the Director's death.
(e) Exercise Upon Termination of Directorship by Reason of
Disability. In the event that Director ceases to be a director of the
Corporation or its subsidiaries by reason of Disability (as defined below), the
option may thereafter be exercised as to all shares subject to the option until
the earlier of (i) the expiration of the stated term of the option or (ii) the
first anniversary of the date that Director is determined by the Corporation to
be disabled.
(f) Exercise Upon Termination of Directorship by Reason Other
than Death or Disability. The option or any unexercised portions thereof shall
expire upon the earlier of (i) the expiration of the stated term of the option
or (ii) the 90th day after the Director ceases to be a director of the
Corporation and its subsidiaries for any reason other than death or Disability.
Provided, however, if the Director ceases to be a director for Cause (as
defined below), the option shall expire on the date the Director ceases to be a
director.
3. TAX LIABILITY. Upon exercise of the option and request by the
Director of the Corporation, the Corporation shall pay to Director the
applicable federal and state income tax liability resulting from any gain to be
recognized by the Director from the exercise. The Corporation shall have the
right to base payment upon the highest marginal tax rates annualizing the
Director's compensation from the Corporation and adding the gain recognized
from the exercise assuming a standard deduction and the most favorable filing
status for the minimization of tax liability to the Director. If, upon
subsequent filing of the Director's tax returns for the tax year encompassing
the date of the exercise of the option, the amount paid to Director by the
Corporation varies by more that $500.00, the Director shall have the right to
make written demand upon the Corporation for additional reimbursement within 90
days of the date of filing of the returns. Such written demand shall be
accompanied by a certified copy of the filed tax returns and all supporting
forms and schedules thereto for review by the Corporation. The Corporation
shall pay any additional amounts due within 30 days of receipt of proper demand
from the Director. Provided, however, that nothing in this Section 3 shall
apply to the Director if at the time the option is exercised the Director has
ceased to be a director of the Corporation or its subsidiaries unless the
termination of his status as a director is on account of the Director's
Retirement (as defined below), death or Disability or occurs following a Change
in Control of the Corporation.
4. NO RIGHTS AS SHAREHOLDER OR TO EMPLOYMENT OR DIRECTORSHIP. No
option granted hereunder shall entitle the holder thereof to any rights as a
shareholder in the Corporation with respect to any shares to which the option
relates until such shares have been paid for in full and issued. Furthermore,
the option shall not confer upon the Director any rights of employment with the
Corporation of any of its subsidiaries or any rights to continue as a director
of the Corporation or any of its subsidiaries or affect the right of the
Corporation or its subsidiaries to terminate the directorship of the Director
at any time, with or without cause.
5. RESTRICTIONS ON TRANSFER OF SHARES. Director hereby agrees
for himself or herself and his or her legal representative, heirs and
distributees, that if a registration statement covering the shares issuable
upon exercise of any option hereunder is not effective under the Securities Act
of 1933, as amended (the "Act"), at the time of such exercise, or if some other
exemption from the provisions of the Act is not available, then all shares of
Common Stock then received or purchased upon such exercise shall be acquired
for investment, and that the notice of exercise delivered to the Corporation
shall be accompanied by a representation in writing acceptable in scope and
form to counsel to the Corporation and signed by Director or Director's legal
representative, heirs or distributees, as the case may be, to the effect that
the shares are being acquired in good faith for investment and not with a view
to distribution thereof. Any shares so acquired may be deemed restricted
securities under Rule 144 as promulgated by the Securities and
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Exchange Commission under the Act, and as the same may be amended or replaced
and subject to restrictions upon sale or other disposition.
6. REGISTRATION OF SHARES. If at any time the Board shall
determine that the listing, registration or qualification of any shares subject
to the option upon any securities exchange, or under any state or federal law,
or the consent or approval of any governmental or regulatory body is necessary
or desirable as a condition of or in connection with the issuance or purchase
of shares hereunder, the option may not be exercised in whole or in part unless
such listing, registration, qualification, consent, or approval has been
effected or obtained free of any conditions not acceptable to the Board.
7. TRANSFER OF RIGHTS. This option is not transferable except by
will or by the laws of descent and distribution and shall be exercisable during
Director's lifetime only by Director. After the death of Director, this option
may be exercised only by Director's estate or by the person or persons entitled
to the option under Director's will or the laws of descent and distribution, as
appropriate. In the event the option is transferred to the Director's estate,
the option may be exercised by the estate only to the extent that the Director
would have been entitled had the option not been transferred.
8. COMPETITION WITH THE CORPORATION - COVENANT NOT TO COMPETE.
In consideration of the grant by the Corporation of the option, Director agrees
with the Corporation as follows:
(a) While Director is a director of the Corporation or one or
more of its subsidiaries (hereinafter collectively referred to as the
"Company"), Director will devote his or her entire time, energy and skills to
the service of the Company. Except as provided in Section 2 hereof, no option
granted under this Agreement shall be exercised after the Director ceases to be
a director of the Company.
(b) Director will not, while he is a director of the Company, or
for a period of two years after he ceases to be a director of the Company for
any reason, directly or indirectly, either individually or as a stockholder
(except for passive investments of less than one percent of the outstanding
shares), director, officer, consultant, independent contractor, employee,
agent, member or otherwise of or through any corporation, partnership,
association, joint venture, firm, individual or otherwise (hereinafter "Firm"),
or in any other capacity:
(i) Carry on or engage in a business like or similar to any
business engaged in by the Company either (A) in the county
in which the Director resides at the time he ceases to be a
director of the Company or (B) within a 25-mile radius of the
location where the Director resides at the time he ceases to
be a director of the Company; or
(ii) Solicit or do business (like or similar to any business
engaged in by the Company) with any customer of the Company
either (A) in the county in which the Director resides at the
time he ceases to be a director of the Company or (B) within
a 25-mile radius of the location where the Director resides
at the time he ceases to be a director of the Company; or
(iii) Solicit, directly or indirectly, any employee of the
Company to leave their employment with the Company for any
reason. For purposes of this Agreement, the Company and
Director agree that Director shall be deemed to have
solicited any employee in violation of this Agreement if such
employee is hired by Director or his or her Firm within six
(6) months of Director's last employment date with the
Company.
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The above two-year period shall be extended by any period of time
during which Director is in default of the covenants contained in this
Agreement.
(c) During the term Director is a director of the Company and
thereafter, Director shall not divulge, or furnish or make accessible to any
third party, company, corporation or other organization (including, but not
limited to, customers, competitors or governmental agencies), without the
Corporation's prior written consent, any trade secrets, customer lists,
information regarding customers, or other confidential information concerning
the Company or its business, including without limitation, confidential methods
of operation and organization, trade secrets, confidential matters related to
pricing, markups, commissions and customer lists.
(d) In the event of a breach or threatened breach by Director of
all or any part of the provisions of subdivisions (b) or (c) of this Section 8,
the Company shall be entitled to an injunction restraining Director from such
breach without limiting any other rights or remedies available to the Company
for such breach or threatened breach.
(e) Director specifically recognizes and affirms that each of the
covenants contained in subdivisions (b) and (c) of this Section 8 is a material
and important term of this Agreement which has induced the Company to provide
for the award of the option granted hereunder, and Director further agrees that
should all or any part or application of subdivisions (b) or (c) of Section 8
of this Agreement be held or found invalid or unenforceable for any reason
whatsoever by a court of competent jurisdiction in an action between Director
and the Company, the Corporation shall be entitled to receive (but not
obligated to acquire) from Director all Common Stock held by Director which was
obtained by Director under this Agreement (including all shares obtained by
virtue of any stock dividend or distribution, recapitalization, merger,
consolidation, split-up, combination, exchange of shares, or other transaction,
hereinafter "stock dividends") by returning to Director for each share received
the Option Price paid by Director (as adjusted for stock dividends). If
Director has sold, transferred, or otherwise disposed of Common Stock obtained
under this Agreement (including all shares obtained by virtue of any stock
dividend), the Corporation shall be entitled to receive from Director the
difference between the Option Price paid by Director and the fair market value
of the Common Stock (including all shares obtained by virtue of any stock
dividends) on the date of sale transfer or other disposition, and all payments
made by the Corporation for payment of federal and state income tax liability
under the provisions of paragraph "3" herein.
(f) Notwithstanding any provision to the contrary herein
contained, Section 8(b) shall not apply:
(i) Upon the termination of the Director's directorship by
the Corporation other than for Cause within one (1) year
following a Change in Control of the Corporation; and
(ii) Upon the voluntary termination of the directorship by
the Director for any reason within the thirty (30) day period
immediately after the one (1) year period following a Change
in Control of the Corporation.
9. DEFINITIONS. For the purposes of this Agreement, the
following terms shall have the definitions set forth below:
(a) "Cause" means (i) any act (A) that constitutes, on the part
of the Director, fraud, dishonesty, a felony or gross malfeasance of duty and
(B) that directly results in a material injury to the Corporation; or (ii)
conduct by the Director in his capacity as a director that is grossly
inappropriate and demonstrably likely to lead to material injury to the
Corporation, as determined by the Board acting reasonably and in good faith;
provided, however, that in the case of (ii) above, such conduct shall not
constitute Cause unless
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the Board shall have delivered to the Director notice setting forth with
specificity (A) the conduct deemed to qualify as Cause, (B) reasonable action
that would remedy such objection, and (C) a reasonable time (not less than 30
days) within which the Director may take such remedial action, and the Director
shall not have taken such specified remedial action within such specified
reasonable time.
(b) "Change in Control of the Corporation" means (i) the
acquisition, directly or indirectly, by any "person" (within the meaning of
Sections 13(d) or 14(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") within any twelve-month period of securities of the Corporation
representing an aggregate of twenty percent (20%) or more of the combined
voting power of the Corporation's then outstanding securities; or (ii) during
any period of two consecutive years, individuals who at the beginning of such
period constitute the Board of Directors of the Corporation, cease for any
reason to constitute at least a majority thereof, unless the election of each
new director was approved in advance by a vote of at least a majority of the
directors then still in office who were directors at the beginning of the
period; or (iii) consummation of a merger or consolidation or other business
combination of the Corporation with any other person, other than a merger,
consolidation or business combination which would result in the outstanding
Common Stock immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into common stock of the surviving
entity or a parent or affiliate thereof) at least sixty percent (60%) of the
outstanding common stock of the Corporation or such surviving entity or parent
of affiliate thereof outstanding immediately after such merger, consolidation
or business combination; or (iv) a plan of complete liquidation of the
Corporation or an agreement for the sale or disposition by the Corporation of
all or substantially all of the Corporation's assets; or (v) the occurrence of
any other event or circumstance which is not covered by (i) through (iv) above
which the Board determines affects control of the Corporation and, in order to
implement the purposes of this agreement, adopts a resolution that such event
or circumstance constitutes a Change in Control for purposes of this agreement.
(c) "Disability" means total and permanent disability as
determined under the Corporation's long-term disability plan (whether or not
the Director is covered under the terms of such plan).
(d) "Retirement" means termination of the Director's status as a
director pursuant to the mandatory retirement provisions of the Directors
Policy or under such circumstances as the Corporation's Board of Directors
shall determine.
10. DISPOSITION OF SHARES. Director agrees to notify the
Corporation promptly of the disposition of any shares of Common Stock purchased
pursuant to this option which are disposed of within one year after transfer of
such shares to Director, or within two years of the date of the grant of such
option. For purposes of such notification, "disposition" shall have the meaning
assigned to it in Section 425(c) of the Code.
11. ADJUSTMENT OF AWARDS. In the event of any change in corporate
capitalization, such as stock split, or a corporate transaction, such as a
merger, consolidation, separation or other distribution of stock or property of
the Corporation, any reorganization (whether or not such reorganization comes
within the definition of such term in Code Section 368) or any partial or
complete liquidation of the Corporation, such adjustment shall be made in the
number and class of and/or price of the Option Shares as may be determined to
be appropriate and equitable by the Corporation's Board of Directors, in its
sole discretion, to prevent dilution or enlargement of the benefits or
potential benefits intended to be available under this agreement; provided that
the number of Option Shares shall always be a whole number.
12. INTERPRETATION. Any question of interpretation or application
of this Agreement shall be resolved by the Corporation's Board of Directors and
its determination shall be final and binding on the Corporation and Director.
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13. NOTICES. All notices hereunder shall be in writing and, if to
the Corporation, shall be delivered personally to the Chairman or mailed to the
Corporation's principal office at X.X. Xxx 0000, Xxxxxxxxxxxx, Xxxxxxx 00000,
addressed to the attention of the Chairman; and if to Director, shall be
delivered personally or mailed to him at the address noted below. Such
addresses may be changed at any time by notice from one party to the other.
14. BINDING EFFECT. This Agreement shall bind and inure to the
benefit of the parties hereto, the successors and assigns of the Corporation
and the person to whom the rights of Director are transferred by will or the
laws of descent and distribution.
15. AMENDMENT. This Agreement may be amended from time to time by
the Board, but no such amendment shall impair the rights of the Director
without the Director's consent.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
COMMUNITY BANCSHARES, INC.
By:
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Xxxxxx X. Xxxxxxxxx, Xx.
Chairman, President and Chief Executive Officer
WITNESS: DIRECTOR:
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Signature
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Address
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