Exhibit 10.1
COMMUNITY BANCSHARES, INC.
2005 NONQUALIFIED STOCK OPTION AGREEMENT
FOR OFFICERS
THIS AGREEMENT is made and entered into as of April 25, 2005, between
grantor Community Bancshares, Inc., a Delaware corporation (the "Corporation")
and grantee, Xxxxxx Xxxxxxxx (the "Grantee").
WITNESSETH:
The Board of Directors of the Corporation (the "Board") considers it in the
best interests of the Corporation to issue from time to time to selected
grantees options to purchase the Corporation's stock so as to more closely align
the interests of such grantees with the interests of the Corporation's
stockholders and to provide additional inducement for such grantees to remain in
the service of the Corporation with an increased incentive to work for its
long-term success. This Agreement establishes the terms and conditions
applicable to Grantee's award of options.
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 50,000
shares ("Option Shares") of the $.10 par value common stock of the Corporation
(the "Common Stock") at the purchase price of $7.68 per share (the "Option
Price"). The Option Price is 100% of the fair market value of the Common Stock
on April 25, 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 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/Vesting. The option covered by this Agreement may be
exercised by Grantee from time to time, in whole or in part, 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 of the full purchase price of the Option Shares for which the
election is made. 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 employed by
the 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 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 Employment by Reason of Disability. In the
event that Grantee ceases to be employed by the Corporation or its 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.
(f) Exercise Upon Termination of Employment 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 60th
day following the date of termination of Grantee's employment by the Corporation
and its subsidiaries for any reason other than death or Disability. Provided,
however, if the Grantee's employment is terminated for Cause (as defined below),
the option shall expire on the date of the termination of the Grantee's
employment. If Grantee resigns from his or her employment with the Corporation
and its subsidiaries under circumstances where Cause for termination exists, the
resignation will be considered a termination for Cause and the option will
expire on the date of such resignation.
3. NO RIGHTS AS SHAREHOLDER OR TO EMPLOYMENT. 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 affect the right of the Corporation or its subsidiaries to
terminate the employment 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 employed by the Corporation or one or more of its
subsidiaries (hereinafter collectively referred to as the "Company"), 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 directors of
each employing corporation.
(b) Grantee will not, during the term of his or her employment with the
Company, or for a period of two years after termination for any reason of his or
her employment by 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.
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 employment by 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 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 upon the termination of the Grantee's employment by the
other than for Cause within one (1) year following a Change in Control of the
Corporation.
8. DEFINITIONS. For the purposes of this Agreement, the following term shall
have the definition 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) a material
violation of the policies of the Corporation and/or its subsidiaries governing
the conduct of Grantee; or (iii) 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.
(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.
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.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
COMMUNITY BANCSHARES, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx
General Counsel
WITNESS: GRANTEE:
/s/ Xxxxxxx X. Xxxxxxxx, III /s/ Xxxxxx Xxxxxxxx
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Xxxxxx Xxxxxxxx
