EXHIBIT 10.2
COMMUNITY BANCSHARES, INC.
2003 NONQUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT is made and entered into as of August 1, 2003, between
grantor Community Bancshares, Inc., a Delaware corporation (the "Corporation")
and grantee, Xxxxxx X. Xxxx (the "Grantee").
W I T N E S S E T H:
The Board of Directors of the Corporation (the "Board") approved the
grant to Grantee 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. Grantee shall have the right and option to purchase on
the terms and conditions set forth herein, all or any part of an aggregate of
40,000 shares ("Option Shares") of the $.10 par value common stock of the
Corporation (the "Common Stock") at the purchase price of $7.00 per share (the
"Option Price"). The Option Price is 100% of the fair market value of the Common
Stock on August 1, 2003, 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 Grantee 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 7.
(c) Method of Exercise and Payment of Purchase Price Upon Exercise. The
Grantee 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 of the Option Price
shall be made in cash or Common Stock that was acquired at least six (6) months
prior to the exercise of the option, or a combination thereof. To the extent
permitted by applicable law, the option may be exercised and the exercise price
paid pursuant to arrangements with brokerage firms permitted under Regulation T
of the Federal Reserve Board or successor regulations or statutes. Any federal
or state tax withholding requirements can be satisfied by shares of Common Stock
acquired pursuant to the option exercise.
(d) Exercise Upon Death. In the event that Grantee ceases to be
affiliated with the Corporation or its subsidiaries (either as an employee or
director) 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 Grantee'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 Grantee's death.
(e) Exercise Upon Termination of Affiliation by Reason of Disability.
In the event that Grantee ceases to be affiliated with the Corporation or its
subsidiaries (either as an employee or director) 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 Grantee is determined by
the Corporation to be disabled.
1
(f) Exercise Upon Termination of Affiliation 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
first anniversary of the date of termination of Grantee's affiliation with the
Corporation and its subsidiaries (both as an employee and as a director) for any
reason other than death or Disability. Provided, however, if the Grantee's
affiliation is terminated for Cause (as defined below), the option shall expire
on the date of the termination of the Grantee's affiliation.
3. NO RIGHTS AS SHAREHOLDER OR TO EMPLOYMENT OR TO 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 Grantee any rights of employment with the
Corporation or any of its subsidiaries or any rights to be a director of the
Corporation or any of its subsidiaries or affect the right of the Corporation or
its subsidiaries to terminate the affiliation of the Grantee at any time, with
or without cause.
4. RESTRICTIONS ON TRANSFER OF SHARES AND OPTION. Grantee 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 Grantee or Grantee'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. This option has not been
registered under the Act or any applicable state securities laws in reliance
upon registration exemptions in the Act and such laws. Grantee represents that
Grantee is acquiring this option for Grantee's own account for investment and
not with a view to any resale or distribution thereof. Grantee understands and
agrees that the option (in addition to the restriction on transfer set forth in
Section 6) this option may not be sold, transferred or otherwise disposed of
without registration under the Act and applicable state securities laws except
in compliance with an exemption from such registration, the availability of
which has been confirmed by an opinion of legal counsel or other evidence
satisfactory to the Corporation.
5. 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.
6. TRANSFER OF RIGHTS. This option is not transferable except by will or
by the laws of descent and distribution and shall be exercisable during
Grantee's lifetime only by Grantee. After the death of Grantee, this option may
be exercised only by Grantee's estate or by the person or persons entitled to
the option under Grantee's will or the laws of descent and distribution, as
appropriate. In the event the option is transferred to the Grantee's estate, the
option may be exercised by the estate only to the extent that the Grantee would
have been entitled had the option not been transferred.
7. COMPETITION WITH EMPLOYER - COVENANT NOT TO COMPETE. In consideration
of the grant by the Corporation of the option, Grantee agrees with the
Corporation as follows:
(a) While Grantee is affiliated with the Corporation or one or
more of its subsidiaries (hereinafter collectively referred to as the "Company")
either as an employee or a director, Grantee will devote his or her entire time,
energy and skills to the service of the Company. Any employment shall be at the
pleasure of the board of
2
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 Grantee's affiliation (both as an employee and a director) with the Company.
(b) Grantee will not, during the term of his or her affiliation
(either as an employee or director) with the Company, or for a period of two
years after termination for any reason of his or her affiliation with the
Company, 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 Grantee has primarily been employed by the Company
at the time of termination of employment or (B) within a
25-mile radius of the location where the Grantee has primarily
been employed by the Company at the time of termination of
employment; 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 Grantee has primarily
been employed by the Company at the time of termination of
employment or (B) within a 25-mile radius of the location
where the Grantee has primarily been employed by the Company
at the time of termination of employment; 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
Grantee agree that Grantee shall be deemed to have solicited
any employee in violation of this Agreement if such employee
is hired by Grantee or his or her Firm within six (6) months
of Grantee's last date of affiliation (either as an employee
or a director) with the Company.
If Grantee is a nonemployee director, the restrictions in (i) and (ii)
above shall apply with respect to either (A) the county in which the director
resides at the time he ceases to be a director, or (B) within a 25-mile radius
of the location where the director resides at the time he ceases to be a
director.
The above two-year period shall be extended by any period of time
during which Grantee is in default of the covenants contained in this Agreement.
(c) During the term of his or her affiliation (either as an
employee or a director) with the Company and thereafter, Grantee 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 Grantee of
all or any part of the provisions of subdivisions (b) or (c) of this Section 7,
the Company shall be entitled to an injunction restraining Grantee from such
breach without limiting any other rights or remedies available to the Company
for such breach or threatened breach.
(e) Grantee specifically recognizes and affirms that each of the
covenants contained in subdivisions (b) and (c) of this Section 7 is a material
and important term of this Agreement which has induced the Company to
3
provide for the award of the option granted hereunder, and Grantee further
agrees that should all or any part or application of subdivisions (b) or (c) of
Section 7 of this Agreement be held or found invalid or unenforceable for any
reason whatsoever by a court of competent jurisdiction in an action between
Grantee and the Company, the Corporation shall be entitled to receive (but not
obligated to acquire) from Grantee all Common Stock held by Grantee which was
obtained by Grantee 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 Grantee for each share received
the Option Price paid by Grantee (as adjusted for stock dividends). If Grantee
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 Grantee the difference between the
Option Price paid by Grantee 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 7(b) shall not apply:
(i) Upon the termination of the Grantee's affiliation with the
Corporation (either as an employee or a director) other than
for Cause within one (1) year following a Change in Control of
the Corporation; or
(ii) Upon the voluntary termination of Grantee's affiliation
with the Corporation (either as an employee or a 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.
8. 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 Grantee, 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 Grantee in his office with the Corporation 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
the Board shall have delivered to the Grantee 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 Grantee may take such remedial action, and the Grantee
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
4
in Control for purposes of this agreement.
(c) "Disability" means total and permanent disability as determined
under the Corporation's long-term disability plan.
(d) "Retirement" means termination of employment under circumstances in
which the Grantee is entitled to a benefit from the Corporation's defined
benefit pension plan.
9. DISPOSITION OF SHARES. Grantee 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 Grantee, 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.
10. 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.
11. 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 Grantee.
12. 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 Grantee, shall be
delivered personally or mailed to him at the address for Grantee found in the
Corporation's records. Such addresses may be changed at any time by notice from
one party to the other.
13. 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 Grantee are transferred by will or the laws of descent and
distribution.
14. AMENDMENT. This Agreement may be amended from time to time by the
Board, but no such amendment shall impair the rights of the Grantee without the
Grantee's consent.
5
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
COMMUNITY BANCSHARES, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------
WITNESS: GRANTEE:
/s/ Xxxxxxx X. Xxxxxxxx /s/ Xxxxxx X. Xxxx
---------------------------- -------------------------------
Signature
6
