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EXHIBIT 10.9
SOUTHERN COMMUNITY BANCORP
RESTRICTED STOCK AGREEMENT
THIS AGREEMENT, made effective as of January 1, 1999 (the "Date of
Grant"), is delivered by Southern Community Bancorp, a Florida corporation (the
"Company"), to Xxxxxxx X. Xxxxxxxx, Xx. (the "Executive"), who is the chief
executive officer of the Company.
WHEREAS, the Board of Directors of the Company (the "Board") adopted a
Restricted Stock Plan (the "Plan") on February 17, 2000, as a part of the
Executive's overall compensation; and
WHEREAS, the Plan provides for the grant of shares of restricted stock
by the Company to the Executive in an amount not to exceed, in the aggregate,
fifty thousand (50,000) shares of the Common Stock of the Company, par value
$1.00 per share (the "Stock"), in accordance with the terms and provisions of
this restricted stock agreement (the "Agreement"); and
WHEREAS, the Board has determined that it is in the best interests of
the Company to grant the restricted stock as provided herein;
NOW, THEREFORE, the Company and the Executive agree as follows:
1. GRANT OF RESTRICTED STOCK.
Subject to the terms and conditions hereinafter set forth, and in
consideration for the Executive's performance of services to the Company, the
Company, with the approval and at the direction of the Board, hereby grants to
the Executive up to an aggregate of fifty thousand (50,000) shares of the Stock
(the "Grant") pursuant to the Restricted Stock Grant and Vesting Schedule
attached hereto as Exhibit "A" (the "Vesting Schedule"). The Executive shall be
vested in and shall become the owner of record of the number of shares set forth
in the Vesting Schedule as of the date set forth in the Vesting Schedule. Such
vested shares are hereinafter referred to as the "Restricted Shares."
2. TERMS AND CONDITIONS OF THE RESTRICTED SHARES.
(a) During the term of his employment by the Company or its
subsidiary Southern Community Bank (the "Subsidiary"), Executive shall be the
owner and holder of record of such number of the Restricted Shares as shall have
become vested in accordance with the Vesting Schedule and shall be entitled to
receive all dividends and other distributions payable with respect to such
Restricted Shares, but he shall not transfer any of the Restricted Shares, and
such shares shall not be transferrable on the books and records of the Company.
The certificate or certificates evidencing such shares shall bear a legend
referring to the restrictions contained in this Agreement.
(b) Notwithstanding the foregoing and notwithstanding
the Vesting Schedule, in
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the event that a majority of the outstanding shares of the Company's Stock are
acquired in a merger or other transaction requiring prior approval under the
Bank Holding Company Act of 1956, as amended (the "BHCA"), the maximum aggregate
number of shares of the Stock that may be granted to Executive hereunder shall
be granted immediately and shall be fully vested, and Executive shall have the
right to transfer such shares to the resulting Company or other acquirer, and he
shall be entitled to receive the same consideration for the Stock so transferred
as is paid to other shareholders of the Company for their shares of the Stock.
(c) If Executive's employment by the Company is terminated
prior to January 1, 2011 other than "for cause" as defined below, all of the
shares of the Stock granted to Executive prior to the date of such termination
pursuant the Vesting Schedule shall be immediately and fully vested and shall be
transferrable by Executive without restriction.
(d) If Executive's employment is terminated by the Board of
Directors of the Company for cause, Executive shall forfeit all rights to the
Stock except for the Restricted Shares which are vested pursuant to the Vesting
Schedule as of the date of such termination.
(e) For purposes of this Section, a termination of employment
or dismissal "for cause" means termination of employment resulting from
Executive's willful violation of law or any rule, regulation or order issued by,
or any agreement with, any regulatory agency having jurisdiction over the
Company or the Subsidiary; any conduct or practice on the part of Executive
which is determined by any regulatory agency having jurisdiction over the
Company or the Subsidiary to constitute an unsafe or unsound practice; any
willful neglect or refusal to carry out the lawful policies of the Company or
the Subsidiary; or directives of the Board of Directors with respect to the
operations and management of the Company or the Subsidiary; any unexcused
absence from the Subsidiary for a period in excess of twenty (20) consecutive
business days; or any impairment of Executive's physical ability to perform his
usual duties and functions resulting from his abuse of or addiction to alcohol
or any controlled substance.
3. ISSUANCE OF CERTIFICATES.
On the date specified in the Vesting Schedule, or as soon
thereafter as is practicable, the Company shall cause to be delivered to the
Executive a certificate or certificates for the Restricted Shares in
consideration for his services to the Company in the preceding calendar year.
The obligation of the Company to deliver the certificates shall, however, be
subject to the condition that if at any time the Company shall determine in its
discretion that the consent or approval of any governmental regulatory body is
necessary or desirable as a condition of, or in connection with, the issuance of
the Restricted Shares, the certificates shall not be issued unless such consent
or approval shall have been obtained free of any conditions not acceptable to
the Board.
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4. ADJUSTMENT OF AND CHANGES IN STOCK OF THE COMPANY.
(a) Subject to the provisions of Sections 2 and 6, any shares
of the Restricted Stock which have been issued to or which have vested in the
Executive pursuant to this Agreement, shall be identical to all other shares of
the Stock, and the Executive shall be entitled to the same rights and privileges
and shall be subject to the same restrictions and conditions as are other
shareholders with respect to their shares of the Stock. In the case of any
rights offering to purchase shares of the Stock, Executive shall have the same
rights and shall be subject to the same restrictions and conditions with respect
to the Restricted Shares as are other persons with respect to their shares of
the Stock; provided, however, that any such shares purchased by Executive shall
not become Restricted Shares and shall not be subject to the provisions of this
Agreement.
(b) In the event of any reorganization, recapitalization,
reclassification, or any other change in the corporate structure or shares of
capital stock of the Company, including any stock split, reverse stock split,
stock dividend, subdivision or combination of shares, or rights offering with
respect to the capital stock of the Company, the number of shares of the Stock
covered by the Plan which have not vested in accordance with the Vesting
Schedule shall be proportionately adjusted to reflect the change and to prevent
any substantial dilution or enlargement of the benefits provided by the Plan. In
the event of any dispute between the Company and Executive as to the precise
amount of such adjustment, the determination of the certified public accountants
who customarily audit the books and records of the Company shall be
determinative.
5. RIGHTS OF EXECUTIVE.
The Executive and any personal representative or legal guardian shall
be, and shall have all of the rights and privileges of, a stockholder of the
Company with respect to any shares of the Restricted Stock which have vested in
accordance with the Vesting Schedule.
6. NON-TRANSFERABILITY OF RESTRICTED SHARES.
Except as provided in Section 2(b) of this Agreement, during the
Executive's employment by the Company or the Subsidiary the Restricted Shares
shall be held only by the Executive or any guardian or legal representative of
the Executive, and the Restricted Shares shall not be transferable except, in
case of the death of the Executive, by will or the laws of descent and
distribution; neither shall the Restricted Shares be subject to attachment,
execution or other similar process. Notwithstanding the foregoing, the Executive
may, with the prior written consent of the Company, transfer the Restricted
Shares to the trustee of any revocable trust established for the benefit of
members of his immediate family. Any such transfer shall be subject to the right
of the Company or its assignee to repurchase the Restricted Shares pursuant to
the provisions of Section 2 of this Agreement. In the event of: (a) any attempt
by the Executive to alienate, assign, pledge, hypothecate or otherwise dispose
of the Restricted Shares, except as provided herein; or (b) the levy of any
attachment, execution or similar process upon the rights or interests hereby
conferred, the Company may terminate the Grant by notice to the Executive, and
the Grant shall thereupon become null and void with respect to any non-vested
shares.
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7. AMENDMENT OF GRANT.
The Grant may be amended by the Board at any time: (a) if the Board
determines, in its sole discretion, that such amendment is necessary or
advisable in the light of any addition to or change in the Bank Holding Company
Act of 1956, as amended, or in the rules or regulations issued thereunder, or in
any federal or state securities law or other law or regulation, which change
occurs after the Date of Grant and by its terms applies to the Grant; or (b)
other than in the circumstances described in clause (a), with the consent of the
Executive.
8. TAX EFFECT ON EXECUTIVE.
The Executive acknowledges that the federal income tax treatment of his
receipt of the Restricted Shares hereunder and the subsequent sale of any
Restricted Shares are subject to change and can be affected by the Executive's
holding period of the Restricted Shares. The Company makes no representations or
warranties as to such income tax ramifications to Executive, and has advised
Executive to seek independent tax counsel prior to receipt of any Restricted
Shares or sale of any Restricted Shares received under this Agreement.
9. NOTICE.
Any notice to the Company provided for in this Agreement shall be
addressed to it in care of its Secretary at its executive offices at 000 Xxxxx
Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000, and any notice to the Executive shall be
addressed to the Executive at the address shown below. Any notice shall be
deemed to be duly given if and when properly addressed and posted by registered
or certified mail, postage prepaid.
10. GOVERNING LAW.
The validity, construction, interpretation and effect of this Agreement
shall be governed by and determined in accordance with the law of the State of
Florida, except to the extent preempted by federal law, which shall govern to
the extent of such preemption.
11. SOLE AGREEMENT; AMENDMENT.
This Agreement is the sole agreement between the Company and Executive
concerning the issuance of the Restricted Shares and supersedes any prior
agreement between them relating to shares of the Stock. This Agreement shall be
subject to any amendment or modification necessary to ensure compliance by the
Company with federal and state banking and securities laws as provided in
Section 7. In all other respects, this Agreement may be amended only by a
subsequent written agreement signed by an authorized officer of the Company and
by Executive.
IN WITNESS WHEREOF, the Company has caused its duly authorized officers
to execute and attest this Agreement, and the Executive has signed accepting the
terms of this Agreement, effective as of the Date of Grant.
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SOUTHERN COMMUNITY BANCORP
By: /s/ XXXX X. XXXXXXX
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Xxxx X. Xxxxxxx, President
ACCEPTED AND AGREED TO:
/s/ XXXXXXX X. XXXXXXXX, XX.
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Xxxxxxx X. Xxxxxxxx, Xx., Executive
000 Xxxxxx Xxxx Xxxxx
Xxxxxxxxx Xxxxxxx, Xxxxxxx 00000
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EXHIBIT "A"
VESTING SCHEDULE
If, and subject to the condition that, Executive is employed by the
Company as of the dates indicated below, the rights granted in the foregoing
Agreement shall vest in Executive, and as of such dates he shall have the rights
of a shareholder of the Company with respect to such number of the Restricted
Shares as is provided below:
SHARES OF STOCK CUMULATIVE NUMBER OF RESTRICTED
DATE OF GRANT GRANTED(1) SHARES VESTED(2)
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January 1, 1999 5,000 0
January 1, 2000 5,000 250
January 1, 2001 5,000 1,000
January 1, 2002 5,000 4,917
January 1, 2003 5,000 11,250
January 1, 2004 5,000 18,750
January 1, 2005 5,000 25,000
January 1, 2006 5,000 30,000
January 1, 2007 5,000 35,000
January 1, 2008 5,000 40,000
January 1, 2009 45,000
January 1, 2010 48,333
January 1, 2011 50,000
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(1) Shares of the Stock shall be granted after January 1, 2003, in the sole
discretion of the Board based upon the performance of the Company.
(2) Shares of the Stock granted on January 1, 1999 and January 1, 2000, shall
vest over a five year period, from the Date of Grant, with 5% of the total
number of such shares being vested on the first anniversary of the Date of
Grant, an additional 10% of such shares being vested on the second
anniversary, an additional 35% of such shares being vested on the third
anniversary, and an additional 25% of such shares being vested on the
fourth and fifth anniversaries, respectively, of the Date of Grant.
Shares of the Stock granted on or after January 1, 2001 shall vest
ratably over a three year period from the Date of Grant, with 33% of such shares
being vested on the first anniversary of such date, an additional 33% of such
shares being vested on the second anniversary, and the remainder of such shares
being vested on the third anniversary of the Date of Grant.
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