EXHIBIT 10.8
COMPASS BANCSHARES, INC.
2002 INCENTIVE COMPENSATION PLAN
NON-QUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT is made and entered into as of ____________ ____, 2005,
between grantor Compass Bancshares, Inc., a Delaware corporation (the
"Corporation"), Compass Bank ("Compass"), and grantee, ____________ (the
"Employee").
W I T N E S S E T H:
The Compensation Committee of the Board of Directors of the Corporation
(the "Compensation Committee"), upon the request of Compass Bank and any other
affiliate or subsidiary of the Corporation employing Employee, approved the
grant to Employee of awards under the Corporation's 2002 Incentive Compensation
Plan (the "Plan") 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. Employee shall have the right and option to purchase
on the terms and conditions set forth herein and in the Plan, all or any part of
an aggregate of ______ shares ("Option Shares") of the $2.00 par value common
stock of the Corporation (the "Common Stock") at the purchase price of $_______
per share (the "Option Price"). The Option Price is 100% of the fair market
value of the Common Stock on _____________ ___, 2005, 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 on ____________
____, 2015 (the "Expiration Date"). After the Expiration Date, Employee shall
have no further rights to exercise any option granted hereunder. Nothing
contained in this Agreement, including without limitation no part of this
Section 2 or Section 8, shall extend the time period during which the option
can be exercised beyond the Expiration Date.
(b) Exercise of Option. The option covered by this Agreement
may be exercised by Employee from time to time, in whole or in part, up to the
amount set forth in the following schedule during the period beginning on the
date indicated below and ending on the Expiration Date:
Date Options exercisable
____________ , 2008 100% of aggregate shares
(c) Method of Exercise and Payment of Purchase Price Upon
Exercise. The method of exercise of the option shall be by giving written
notice to the Corporation. Payment shall be made at the time of exercise and
shall be in cash or in shares of Common Stock. In the event payment is made in
shares of Common Stock, such shares shall be valued at their fair market value
on the date of exercise, as indicated by the closing stock price at the close
of regular trading hours of the primary stock exchange or market on which the
Common Stock is traded on that date. The option is not exercised until both
the written notice and the payment for the shares exercised are actually
received by the Corporation.
(d) Exercise Upon Death. In the event that Employee ceases to
be employed by Corporation or its subsidiaries by reason of death, the option
shall become immediately exercisable, notwithstanding the schedule in Section
2(b) hereof, and 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 Employee's will or the laws of descent and
distribution, as appropriate, until the earlier of (i) the Expiration Date or
(ii) the first anniversary of the date of the Employee's death.
(e) Exercise Upon Termination of Employment While Disabled. In
the event that Employee ceases to be employed by the Corporation or its
subsidiaries while Disabled, as defined below, except for Cause, as defined in
Section 8, the option shall become immediately exercisable, notwithstanding the
schedule in Section 2(b) hereof, and may thereafter be exercised as to all
shares subject to the option until the earlier of (i) the Expiration Date or
(ii) the later of (A) the first anniversary of the date that Employee is
determined by the Corporation to be Disabled or (B) the first anniversary of
the end of Employee's employment by the Corporation or its subsidiaries. As an
express condition to the applicability of this Section 2(e), Employee agrees to
cooperate with the Corporation in determining whether Employee is Disabled,
including without limitation providing documentation from health care providers
and submitting to medical examinations upon request by the Corporation. For
purposes of this Agreement, Employee shall be considered to be Disabled if
Employee is totally and permanently disabled according to the standards
contained in the Corporation's long-term disability plan, as applied by the
Corporation, or according to such other reasonable standard that the
Corporation may apply, in its sole discretion.
(f) Exercise Upon Termination of Employment by Reason Other
than Death or Disability. The option or any unexercised portions thereof shall
expire upon termination of Employee's employment with the Corporation or its
subsidiaries for any reason, except as provided in Section 2(d), Section 2(e),
and this Section 2(f). If Employee's employment with the Corporation or its
subsidiaries is terminated by either party prior to 15 days after the initial
vesting of any of the options as set forth in Section 2(b), then 5% of the
Option Shares shall be deemed vested, notwithstanding the schedule in Section
2(b), and available for exercise by the employee within 30 days after the
termination of Employee's employment with the Corporation or its subsidiaries.
Additionally, the vested portion of the option may be exercised in whole or in
part within three months after Employee's termination of employment (a) at any
time after a "Sale of
the Corporation" as defined in Section 8(f) hereof, (b) within the meaning of
the Compass Bancshares, Inc. Severance Pay Plan, as such Plan may exist from
time to time (including any amendment to, modification of, addition to, deletion
from, or replacement of said Plan), that results in eligibility for benefits
under such Plan, provided that this provision is not intended to, and does not,
constitute a guarantee or promise that the Compass Bancshares, Inc. Severance
Pay Plan (in its current or any future form) will be continued and the
Corporation expressly reserves all rights to amend, modify, add to, delete from,
and terminate such Plan, or (c) upon retirement at age fifty-five or older with
at least five years of vested service under the Compass Bancshares, Inc.
Retirement Plan or the Compass Bancshares, Inc. SmartInvestor Retirement Plan.
Upon the Employee's termination in the event of (a) or (b) above, any
unexercised portion of the option shall vest and become subject to exercise
immediately and the schedule set forth in Section 2(b) hereof shall become void.
3. NON-QUALIFIED STOCK OPTION. This option is intended to be a non-
qualified stock option within the meaning of the Internal Revenue Code of 1986,
as amended (the "Code").
4. NO RIGHTS AS SHAREHOLDER. 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 option has
been exercised properly and paid for in full and the corresponding shares
issued.
5. RESTRICTIONS ON TRANSFER OF SHARES. Employee 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 Employee or Employee'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 Exchange
Commission under the Act, and as the same may be amended or replaced and
subject to restrictions upon sale or other disposition and may bear any
required legend, or other legend deemed appropriate by the Corporation, to that
effect.
6. REGISTRATION OF SHARES. If at any time the Board of Directors of
the Corporation or the Compensation Committee 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 that are not acceptable to the Board of Directors or to
the Compensation Committee.
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
Employee's lifetime only by Employee. After the death of Employee, this option
may be exercised only by Employee's estate or by the person or persons entitled
to the option under Employee's will or the laws of descent and distribution, as
appropriate. In the event the option is transferred by reason of the
Employee's death, the option may be exercised thereafter only to the extent
that the Employee would have been entitled to exercise the option had the
option not been transferred.
8. COVENANTS. In consideration of the Corporation, Compass, or one
or more of the subsidiaries or affiliates of either (hereinafter collectively
referred to as "the Company") disclosing confidential and proprietary
information, as more fully described in Section 8(c) below, after the date
hereof, the grant by the Corporation of the option, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Employee, the Corporation, and Compass, intending to be legally bound, hereby
agree as follows:
(a) While Employee is employed by the Company, Employee will
devote his or her entire time, energy and skills to the service of the Company.
Such employment shall be at the pleasure of the board of directors of each
employing corporation. Except as provided in Section 2 hereof, no option
granted under this Agreement shall be exercised after the termination of
Employee's employment with the Company. Nothing contained in this Agreement
shall extend the time period set forth in Section 2(a) during which the option
can be exercised.
(b) Employee will not, during the term of his or her employment
with the Company, or for a period of two years (and if two years is determined
by a court to be overly broad, then 18 months; and if 18 months is determined
by a court to be overly broad, then 12 months) after termination for any reason
of his or her employment with the Company, directly or indirectly, either
individually or as a stockholder, 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 that competes with
the business of the Company within 50 miles (and if 50 miles is determined by a
court to be overly broad, then 25 miles) of any city where Employee engaged in
business (measured from Employee's primary office), Employee had responsibility
(measured from Employee's office in such city or, if none, from the primary
county courthouse of such city), other employees that were supervised by
Employee worked (measured from their primary offices), or Employee otherwise
conducted business for the Company (measured from Employee's office in such
city or, if none, from the primary county courthouse of such city). For
purposes of this subsection 8(b)(i), the "business of the Company" means
that portion of the business of the Company that was conducted by Employee or
those under his or her supervision;
(ii) With respect to any type of product or service
offered by or available from the Company, solicit, directly or indirectly, or
do any such business with any customer of the Company called on, serviced by,
or contacted by the Employee in any capacity, or otherwise known to the
Employee by virtue of the Employee's employment with the Company, in any state
in which the Employee was employed by the Company or any state in which both
the customer and the Company do business. For purposes of this Section
8(b)(ii), "customer" is limited to those persons or entities that are current
customers of the Company at the time Employee's employment relationship with
the Company ends as well as those persons or entities who were customers of the
Company in the twelve months preceding the end of Employee's employment
relationship with 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 Employee agrees that Employee shall be presumed
to have solicited an employee in violation of this Agreement if such employee
is hired by Employee or his or her Firm within six (6) months of Employee's
last employment date with the Company.
(c) The Company shall provide confidential information to
Employee and, Employee agrees, during the term of his or her employment and
thereafter, not to use, 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 Company's
prior written consent, any trade secrets, customer lists, information regarding
customers, information regarding Compass' relationships with specific existing
or prospective customers, customer goodwill associated with Compass' trade
name, or other valuable confidential and proprietary 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. Employee warrants and agrees
that every customer whom Employee services in any way while employed at the
Company is a customer of the Company and not a customer of Employee,
individually. Employee agrees that such information remains confidential even
if committed to Employee's memory.
(d) Employee and the Corporation recognize that Compass and
any subsidiaries or affiliates of the Corporation or Compass which employ
Employee are third-party beneficiaries to this Agreement that are intended to
be protected by the covenants in this Agreement and that, except as otherwise
expressly provided in this Agreement, any successor or assign of the
Corporation or one of the third-party beneficiaries to this Agreement may
enforce the covenants in this Agreement as if it were a party to these
covenants. Moreover, Employee, the Corporation, and Compass acknowledge and
agree that the Company has legitimate business interests to protect relative to
Employee, including trade secrets, other valuable confidential and proprietary
business information, substantial relationships with specific prospective and
existing customers, substantial relationships with other employees of the
Company, customer goodwill associated with Compass' trade name, and the
Company's servicing of specific markets provided to Employee. Employee agrees
that the restrictions contained in this Section 8 are necessary and reasonable
for the protection of the legitimate business interests and goodwill of the
Company described above, and Employee agrees that any breach of this Section 8
will cause the Company substantial and irrevocable damage and, therefore, the
Company shall have the right, in addition to any other remedies it may have, to
seek specific performance and injunctive relief, without the need to post a bond
or other security. Employee agrees that the period during which the covenant
contained in this Section 8 shall be effective shall be computed by excluding
from such computation any time during which Employee is in violation of any
provision of Section 8. Employee agrees that if any covenant contained in
Section 8 of this Agreement is found by a court of competent jurisdiction to
contain limitations as to time, geographical area, or scope of activity that are
not reasonable and impose a greater restraint than is necessary to protect the
goodwill or other business interest of the Company, then the court shall reform
the covenant to the extent necessary to cause the limitations contained in the
covenant as to time, geographical area, and scope of activity to be restrained
to be reasonable and to impose a restraint that is not greater than necessary to
protect the goodwill and other business interests of the Company and to enforce
the covenant as reformed.
(e) Employee 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, the disclosure of
confidential information referenced herein, and the other promises made by the
Company herein. Employee further agrees that should all or any part of
subdivisions (b) or (c) of this Section 8 be held or found invalid or
unenforceable for any reason whatsoever by a court of competent jurisdiction in
an action between Employee and the Corporation, Compass, or an affiliate of
either, the Corporation shall be entitled to receive (but not obligated to
acquire) from Employee all Common Stock held by Employee which was obtained by
Employee 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 Employee for each share received the Option Price
paid by Employee (as adjusted for stock dividends). If Employee 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 Employee the difference between
the Option Price paid by Employee 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.
(f) Notwithstanding any provision to the contrary herein
contained, Section 8(b) shall not apply:
(i) Upon the termination of the Employee's employment by
the Company other than for Cause within one (1) year following a Sale of the
Corporation; and
(ii) Upon the voluntary termination of employment by the
Employee for any reason within the thirty (30) day period immediately after the
one (1) year period following a Sale of the Corporation.
For purposes of this Agreement, "Cause" shall mean (i) a willful and material
violation of applicable banking laws and regulations, (ii) dishonesty, (iii)
theft, (iv) fraud, (v) embezzlement, (vi) commission of a felony or a crime
involving moral turpitude, (vii) substantial dependence or addiction to alcohol
or any drug, (viii) conduct disloyal to the Corporation or its affiliates, or
(ix) willful dereliction of duties or disregard of lawful instructions or
directions of the officers or directors of the Corporation or its affiliates
relating to a material matter.
For purposes of this Agreement, "Sale of the Corporation" shall mean (i) the
acquisition by any individual, entity or group (within the meaning of Sections
13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act")) (a "Person") of beneficial ownership (within the meaning of
Rule 13d-3 promulgated under the Exchange Act) of more than 50% of either the
then outstanding shares of common stock of the Corporation (the "Outstanding
Common Stock") or the combined voting power of the then outstanding voting
securities of the Corporation entitled to vote generally in the election of
directors (the "Outstanding Voting Securities"), or (ii) consummation by the
Corporation of a reorganization, merger or consolidation, or sale or other
disposition of all or substantially all of the assets of the Corporation;
unless, following such acquisition of beneficial ownership or transaction, (A)
more than 60% of the then outstanding shares of common stock of the Person
resulting from such reorganization, merger or consolidation, or (B) more than
60% of the then outstanding shares of common stock of the Person acquiring such
beneficial ownership or assets, and the combined voting power of the then
Outstanding Voting Securities of such Person entitled to vote generally in the
election of directors of such Person is then beneficially owned, directly or
indirectly, by all or substantially all of the individuals or entities who were
the beneficial owners, respectively, of Outstanding Common Stock and
Outstanding Voting Securities immediately prior to such acquisition or
transaction, in substantially the same proportion as their ownership of
Outstanding Common Stock and Outstanding Voting Securities prior to such event.
(g) This Section 8 replaces section 8 in all stock option
agreements between the Corporation and the Employee entered into as of a date
prior to the date of this Agreement. All such prior agreements are hereby
amended to include this Section 8 in place of section 8 in any such prior
agreements. All other provisions in all such prior agreements are unaffected
by this amendment.
9. DISPOSITION OF SHARES. Employee shall 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 Employee.
10. PLAN TO CONTROL. The Plan is incorporated in this Agreement by
this reference. Any question of interpretation or application of the Plan or
this Agreement shall be resolved by the Compensation Committee and its
determination shall be final and binding on the Corporation and Employee. In
the event of any conflict between the provisions of the Plan and of this
Agreement, the Plan shall control. Employee hereby acknowledges receipt of a
copy of the Plan.
11. NOTICES. All notices hereunder shall be in writing and, if to the
Corporation, shall be delivered personally to the Chairman or Corporate
Secretary or mailed to the Corporation's principal office at 00 Xxxxx 00xx
Xxxxxx, Xxxxxxxxxx, Xxxxxxx 00000, addressed to the attention of the Chairman
or Corporate Secretary; and if to Employee, shall be delivered personally or
mailed to him or her at the address noted below. Such addresses may be changed
at any time by notice from one party to the other.
12. BINDING EFFECT. This Agreement shall bind and inure to the
benefit of the parties hereto, to the subsidiaries and affiliates of the
Corporation and Compass, the successors and assigns of the Corporation, Compass
or any of their subsidiaries or affiliates, and the person to whom the rights
of Employee are transferred by will or the laws of descent and distribution.
13. HEADINGS. The section headings used herein are solely for
reference only and shall not affect in any way the meaning and interpretation
of the terms and conditions set forth herein.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
COMPASS BANCSHARES, INC.
By: ___________________________________
Name: D. Xxxx Xxxxx, Xx.
Title: Chairman and Chief Executive Officer
COMPASS BANK
By: ___________________________________
Name: E. Xxx Xxxxxx, Xx.
Title: Executive Vice President and
Executive Officer, Human Resources
WITNESS: EMPLOYEE:
__________________________ ___________________________________
Signature
Date:_______________________________
___________________________________
Address
___________________________________
City State Zip
