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EXHIBIT 10.23
COMMUNITY BANCSHARES, INC.
NONQUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT is made and entered into as of the 28th day of March,
1996, by and between Community Bancshares, Inc. (the "Corporation") and Xxxxxx
X. Xxxxxx, Xx. (the "Optionee").
W I T N E S S E T H
The Board of Directors of the Corporation (individually and
collectively, herein referred to as the "Board") as of March 28, 1996, approved
the grant to the Optionee of awards under 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.
The Optionee 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 13,500 shares of Corporation $.10 par value common stock ("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 the date
of the grant of the option covered by this Agreement.
It is expressly understood and agreed that this Option is not, and
shall not be treated as, an "Incentive Stock Option" as defined in the Plan or
in Section 422A of the Internal Revenue Code of 1986, as amended (the "Code")
and that this Option is and shall be a Nonqualified Stock Option (as defined in
the Amended Plan). Upon exercise, the difference between the fair market value
on the date of exercise and the option price (the "Differential") may subject
the Optionee to income tax liability. The extent the Optionee incurs Federal
and state income tax liability as a result of such Differential, Bancshares
shall, pursuant to, and to the extent provided
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in Section 11 of the Amended Plan, pay the amount of the federal and state
income tax liability resulting from such Differential to the Optionee in cash
at the time of exercise, provided the Optionee provides written notice of such
exercise. Bancshares and the Optionee shall agree on the amount of the
Differential.
2. Exercise.
(a) The Option covered by this Agreement may be exercised by the
Optionee from time to time, in whole or in part, beginning on April 1, 1996 and
ending on March 31, 2001.
(b) The foregoing provisions of Section 2(a) notwithstanding, an
option may be exercised in whole or in part in the event (1) the Corporation's
shareholders approve (an "Approved Transaction") (i) any consolidation or
merger of the Corporation in which the Corporation is not the continuing or
surviving corporation pursuant to which shares of common stock would be
converted into cash, securities or other property other than a merger of the
Corporation in which the holders of common stock immediately prior to the
merger have the same proportion of ownership of common stock of the surviving
corporation of the merger, or (ii) any sale, lease, exchange or other transfer
(in one transaction or a series of related transactions) of all, or
substantially all, of the assets of the Corporation, or the adoption of any
plan or proposal for the liquidation or dissolution of the Corporation, (2) a
tender exchange offer (an "Offer") other than one made by the Corporation is
made for shares of common stock (or securities convertible into common stock )
and such Offer results in a portion of such securities being purchased and the
offeror after the consummation of the Offer is the "beneficial owner" directly
or indirectly of at least 25% of the outstanding shares of common stock. Any
of the events described in this Section 2(b) shall be a "Change in Control" for
purposes of this Agreement. Upon such a Change in Control, the options granted
hereunder may be exercised during the period beginning on the first day
following either (i) the date of the Corporation's shareholders' vote to adopt
or approve such a transaction or (ii) the date of commencement of an Offer, an
ending in either case on the 30th day following such date.
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(c) The method of exercise of the option shall be by giving
written notice to the Corporation. Payments 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.
3. Nonqualified Stock Option.
This option is a nonqualified option, not an incentive stock option
within the meaning of Section 422A(b) of the Internal Revenue Code of 1986, as
amended (the "Code").
4. 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 shares have been paid for in full and issued.
5. Restrictions on Transfer of Shares.
The Optionee hereby agree for himself and his legal and personal
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") and
applicable state securities and blue sky laws ("State Acts") at the time of
such exercise, 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 substantially in the form attached as Exhibit A hereto and signed by
the Optionee or his 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, as the same may be amended or
replaced, and subject to restrictions upon sale or other disposition. Such
shares
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shall also be restricted by applicable State Acts and by the provisions of
Section 9 hereof. All certificates issued in respect of shares of Common Stock
purchased pursuant to this option shall bear appropriate restrictive legends,
and appropriate transfer restrictions will be placed in the Corporation's stock
transfer records.
6. Registration of Shares.
If at any time the Board shall determine that the listing,
registration or qualification of any shares subject to this 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, this option may not be exercised in whole or in part unless such
listing,registration, qualification, consent or approval has been effected or
obtained. The Board shall use its best efforts to obtain within a reasonable
time consistent with the Corporation's periodic financial reports, at the
Corporation's expense, any such listing, registration, qualification, consent
or approval reasonably necessary to the issuance or purchase of the shares
subject to this option. The foregoing notwithstanding, if any such issuance or
purchase may be effected through transactions exempt from such registration,
qualification, listing, consent or approval, then the Corporation shall have
only the obligation to issue such shares pursuant to any available exemption,
and shall have no duties to register, qualify or list such shares.
7. Transfer of Rights.
This option is not transferable except by will or the laws of descent
and distribution and shall be exercisable during the Optionee's lifetime only
by the Optionee. To the extent exercisable at the death or disability of the
Optionee, this option may be exercised only by the Optionee, any legal
custodian or guardian of the Optionee, by his estate or by the person or
persons entitled to the option under his will or the laws of descent and
distribution, as appropriate within one year after the date of disability of
the Optionee, and upon death, through the expiration date of the option if
death occurs during the time this option was exercisable and not after the
Optionee became disabled. For this purpose, the Optionee shall be considered
to
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be disabled if the Optionee is unable to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment
which can be expected to result in death or which has lasted or can by expected
to last for a continuous period of not less than twelve months. This option or
any unexercised portion thereof shall expire 60 days after termination of the
Optionee's employment with the Corporation and its subsidiaries for any reason
other than death or disability. Nothing contained in this Section 7 shall
extend the time period set forth in Section 2(a) during which the option can be
exercised.
8. Termination; Nondisclosure of Trade Secrets.
In consideration of the grant by the Corporation of the options, the
Optionee agrees as follows:
(a) During the period that the Optionee is employed by the
Corporation or one or more of its subsidiaries, the Optionee will devote his
full business time and efforts in keeping with his training and abilities to
the service of the Corporation or one or more of its subsidiaries. Except as
provided in Section 7 hereof, any termination of the Optionee's employment
during such period that is a result of (i) any regulatory agency with
jurisdiction requiring the Corporation to terminate the Optionee's employment,
(ii) any bonding or insurance company refusing to issue a fidelity bond on the
Optionee which is unrelated to such insurer or bonding companys inability or
refusal to insure or bond the Corporation or its employee's generally, or (iii)
any indictment and conviction under any bank or bank holding company statute or
regulation which is a felony and which is punishable by a fine of not less than
$5,000 and one year in jail or any theft of Corporation property, shall be
deemed to be a violation of this Agreement, and any option, to the extent not
previously exercised, shall terminate.
(b) The Optionee recognizes and acknowledges that he will have
access to certain trade secrets and confidential information (individually and
collectively "Trade Secrets") of the Corporation and entities affiliated with
the Corporation and that such information constitutes valuable, special and
unique property of the Corporation and such other entities. The Optionee
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will not disclose or directly or indirectly utilize in any manner such Trade
Secrets for the benefit of anyone other than the Corporation during the period
from the date of grant of this option through the date this option has been
exercised in full or has expired, and for a period of two (2) years after the
later of such exercise or expiration or termination of his employment. To the
extent any Trade Secrets are required to be disclosed under applicable law or
to any governmental authority, the Optionee shall use his best efforts to
protect and preserve their confidentiality and prevent their further disclosure
or dissemination. In the event of a breach or threatened breach by the
Optionee of the provisions of this Section 8(b), the Corporation or the
employing corporation shall be entitled to an injunction restraining the
Optionee from disclosing, in whole or in part, such Trade Secrets. Nothing
herein shall be construed as limiting or prohibiting the Corporation or the
employing corporation from pursuing any legal, equitable or other remedies
available to it for such breach or threatened breach, including the recovery of
damages from the Optionee.
9. Right of First Refusal.
In addition to the restrictions set forth in Section 5 hereof, the
Optionee may not sell all or any portion of his shares purchased pursuant to
this option unless the Optionee has first (1) given written notice to the
Corporation of his intention to sell all or a portion of such shares (the
"Subject Shares") and (ii) offered to sell the Subject Shares to the
Corporation or its designated affiliate at a price not greater, and on terms
and conditions not less favorable to the purchaser, than specified in a bona
fide written offer received by the Optionee from a third party. Within 30 days
after such notice is given by the Optionee or any longer period of time
necessary to obtain regulatory approvals, the Corporation or its designated
affiliate may elect to purchase the Subject Shares form the Optionee at the
price and upon the terms and conditions set forth in the Optionee's offer. If
the Corporation or its designated affiliate does not give the Optionee notice
of its election to purchase the Subject Shares within such period, the
Optionee, at any time within 30 days after the end of such period may, subject
to the provisions set forth in Section 5 hereof, sell the Subject Shares to the
person and for a purchase price not less, and on terms and conditions not more
favorable to the purchaser, than specified in such third party offer.
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10. Plan to Control
The Plan is annexed hereto and is incorporated into this Agreement by
this reference. Any question of interpretation or application of the Plan or
this Agreement shall be resolved by the Board, and its determination shall be
final and binding on the Corporation and the Optionee. In the event of any
conflict between the provisions of the Plan and of this Agreement, the Plan
shall control.
11. Notices.
All notices hereunder shall be in writing, and if to the Corporation,
shall be delivered personally to the President or mailed to the Corporation's
principal office at P. O. Xxx 0000, Xxxxxxxxxxxx, Xxxxxxx 00000, addressed to
the attention of the President, and if to the Optionee, 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.
12. Acknowledgment and Withholding.
The Optionee acknowledges receipt of a copy of the Plan, a copy of
which is annexed hereto, and represents that he is familiar with the terms and
provisions thereof. The Optionee hereby accepts the option covered by this
Agreement subject to all the terms and provisions of the Plan. As a condition
to the issuance of shares of Common Stock of the Corporation under this
Agreement, the Optionee authorizes the Corporation and the employing
corporation to withhold in accordance with applicable law from any regular cash
compensation payable to him any taxes required to be withheld by the
Corporation or the employing corporation under Federal, state, or local law as
a result of this exercise of the option covered by this Agreement.
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13. Binding Effect and Governing Law.
This Agreement shall bind and inure to the benefit of the parties
hereto, the successors and assigns of the Corporation and the persons to whom
the rights of the Optionee are transferred by will or the laws of descent and
distribution. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Alabama.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
COMMUNITY BANCSHARES, INC.
By
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Its:
OPTIONEE
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Xxxxxx X. Xxxxxx, Xx.
000 Xxxxxxxxx
Xxxxx Xxxxx, Xxxxxxx 00000
