EXHIBIT 10.9.1
CNB HOLDINGS, INC.
NON QUALIFIED STOCK OPTION FOR
COMMON STOCK
($1.00 PAR VALUE PER SHARE)
STOCK OPTION PLAN: CNB HOLDINGS, INC.
AMENDED AND RESTATED NON QUALIFIED STOCK
OPTION PLAN
OPTION FOR THE PURCHASE OF: ____________ SHARES
EXERCISE PRICE PER SHARE: _______________________ ($_____)
DATE OF GRANT: _______________
THIS OPTION AGREEMENT, made and entered into this __ day of ______ by
and between CNB Holdings, Inc., a Georgia corporation (the "Company"), and
___________________ (the "Grantee");
W I T N E S S E T H:
WHEREAS, the CNB HOLDINGS, INC. AMENDED AND RESTATED NON QUALIFIED
STOCK OPTION PLAN (the "Plan") has been adopted by the Company and the Company's
shareholders; and
WHEREAS, Section G of the Plan authorizes the Board of Directors of the
Company (the "Board") 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 Board; and
WHEREAS, the Board desires to make an award to the Grantee consisting
of a Non Qualified 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) "Code" shall mean the Internal Revenue Code of 1986, as
amended.
(b) "Company" shall mean CNB Holdings, Inc., a Georgia
corporation, or any parent or subsidiary.
(c) "Exercise Dates" shall mean the first three anniversaries
of the Date of Xxxxx as set forth under "Date of Grant" on page 1 of this Option
Agreement. 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 33 1/3 %
of the shares covered by this Option and may purchase an additional 33 1/3 % on
each of the second and third anniversaries from the Date of Grant so that this
Option will be fully vested on the third anniversary of the Date of Grant.
(d) "Expiration Date" shall mean the date on which this
Option expires pursuant to the provisions of paragraph 4 hereof.
(e) "Fair Market Value" of a share of Stock on a specified
date means:
(i) if the Stock is then traded on a national
securities exchange, the closing price on such date of a share
of the Stock as traded on the largest securities exchange on
which it is then traded; or
(ii) if the Stock is not then traded on a national
securities exchange, the mean between the closing composite
inter-dealer "bid" and "ask" prices for the 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 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 Board.
(f) "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, or (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.
(g) This "Option" shall mean the option evidenced by this
Option Agreement, which is intended to be a "non qualified stock option."
(h) The "Option Price" shall mean the purchase price of each
share of Stock that may be purchased by the Grantee upon the exercise of this
Option, in whole or in part. The Option
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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.
(i) "Stock" shall mean the common stock, $1.00 par value per
share, of the Company.
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 on Exercise Date and on or before the Expiration Date, to purchase the
number of shares of Stock set forth on page 1 of this Option Agreement and
vested under Paragraph 1(c), 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 Dates, to the extent then exercisable
and on or before the Expiration Date as to any part of the number of whole
shares of Stock then vested under Paragraph 1(c) and available under this
Option; provided, however, that this Option must be exercised within thirty (30)
days after the company has notified the Grantee that the Company's primary
federal regulator had determined that the Company's capital has fallen below
such regulator's requirements or it shall terminate and be of no further effect.
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 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, (ii) by delivery of mature shares having a Fair Market Value,
determined as of the date of exercise, equal to the aggregate Option Price
payable by reason of such exercise.
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 Stock so purchased. Notwithstanding the foregoing, no shares
of 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 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 (3) 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 (3) month period, the Option shall be exercisable only to the extent
that it was exercisable as of the date of resignation or termination;
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(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 the Grantee'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 as set forth under "Date
of Grant" on page 1 of this Option Agreement.
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 Stock pursuant thereto unless and until the
Grantee furnishes the Company an agreement in such form as the Board may specify
in which the Grantee (or any person acting on his behalf) represents that the
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 the Board in accordance with the advice of legal counsel,
unless the Board 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 Stock that may
be purchased hereunder shall be subject to adjustment from time to time by the
Board in accordance with the terms of the Plan in the event of certain changes
in the Stock or certain corporate transactions affecting the number or value of
the shares of 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 Stock or
kind of shares 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 or kind 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 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 Board or the
Company may impose.
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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. 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 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, subject to
the restrictions contained herein, of the Grantee.
(c) The Grantee shall not be entitled to vote or to receive
dividends with respect to any 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 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.
IN WITNESS WHEREOF, the Company and the Grantee have executed this
Option Agreement as of the day and year first above written.
CNB HOLDINGS, INC.
By:
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Title:
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GRANTEE
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EXHIBIT A
NON QUALIFIED OPTION EXERCISE FORM
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(To be executed by the Grantee
to exercise the rights to purchase Stock
evidenced by the foregoing Option Agreement)
TO: CNB HOLDINGS, INC.
The undersigned hereby exercises the right to purchase __________
shares of Stock covered by the attached Option Agreement in accordance with the
terms and conditions thereof, and herewith makes payment of the Option Price of
such shares in full. Capitalized terms used herein shall have the meanings
assigned to such terms in the attached Option Agreement.
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Signature
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Address
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Social Security Number
Date:
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