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EXHIBIT 10.3
NON-QUALIFIED STOCK OPTION AGREEMENT
THIS NON-QUALIFIED STOCK OPTION AGREEMENT (this "Agreement") is made
as of the 1st day of June, 2000 (the "Date of Grant"), by and between Community
Financial Group, Inc., a Tennessee corporation ("Corporation"), and J. Xxxxxx
Xxxxxx ("Participant").
WHEREAS, Corporation has adopted its 1997 Nonstatutory Stock Option
Plan (the "Plan"); as amended, and
WHEREAS, the committee chosen by Corporation to administer the Plan
(the "Committee") has determined that Participant is eligible to receive an
option to purchase shares of common stock of Corporation ("Stock") under a
non-qualified stock option and has determined that it is in the best interest of
Corporation to grant the stock option documented herein to Participant.
NOW, THEREFORE, in consideration of the foregoing, of the mutual
promises hereinafter set forth and of other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto do
hereby agree as follows:
1. Grant of Option. Corporation hereby grants to Participant the right
to purchase one hundred thousand (100,000) shares of Stock (the "Option Shares")
at a price of ($13.1376) per Option Share (the "Option Price"), in accordance
with the terms of this Agreement and the Plan (the "Option"). The Committee,
exercising good faith, has determined that the Option Price is equal to at
least one hundred percent (100%) of the fair market value of a share of Stock on
the date hereof. The Option is not intended by the parties hereto to be, and
shall not be treated as, an incentive stock option (as such term is defined
under section 422 of the Internal Revenue Code of 1986 (the "Code")).
II. Termination of Option.
(i) Termination Date. The Option and all rights hereunder with
respect thereto, to the extent such rights shall not have been previously
exercised or otherwise terminated, shall terminate and become null and void on
June 1, 2010 at 5:00 P.M. (the "Termination Date"), subject to the limitation
that any Option may not be exercisable more than three (3) months after
Participant ceases to be an employee, director, or officer of Corporation,
except as set forth in Section II (ii), and only to the extent that the Option
would otherwise have been exercisable by Participant upon the date of
termination.
(ii) Death or Disability. Upon Participant's death or disability
(within the meaning of Section 22(e)(3) of the Code), the Option may be
exercised, to the extent not previously exercised, by the Participant, the
Participant's legal representative, the legatees of the Option under
Participant's Will or the distributees of the Option under the applicable laws
of descent and
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distribution until the Termination Date, but only to the extent that the Option
would otherwise have been exercisable by Participant. At the time of
termination, the Committee may extend the exercise period for up to the earlier
of three (3) years after termination or the Termination Date.
III. Vesting. Subject to such further limitations as are provided
herein, the Option shall vest and become exercisable in five (5) installments,
Participant having the right hereunder to purchase from Corporation the
following number of Option Shares upon exercise of the Option, on and after the
following dates, in cumulative fashion:
(i) upon execution of this Agreement, up to one-fifth (ignoring
fractional shares) of the total number of Option Shares;
(ii) on and after the first anniversary of the Date of Grant, up to
an additional one-fifth (ignoring fractional shares) of the total
number of Option Shares;
(iii) on and after the second anniversary of the Date of Grant, up
to an additional one-fifth (ignoring fractional shares) of the total
number of Option Shares;
(iv) On and after the third anniversary of the Date of Grant, up to
an additional one-fifth (ignoring fractional shares) of the total
number of Option Shares; and
(v) on and after the fourth anniversary of the Date of Grant, the
remaining Option Shares.
Any portion of this Option that is not vested shall vest immediately upon any
one of the following events:
a. the participant's death or disability (within the meaning of Section
22(e)(3) of the Code); or
b. the closing of a transaction resulting in a majority change of
control of Corporation or The Bank of Nashville, including any merger, sale of
assets, transfer of stock, or any reorganization as defined in Section 368 of
the Code.
IV. Exercise of Option. The Option, or any portion of the Option
eligible to be exercised by the Participant and not previously exercised, may be
exercised at any time or times prior to the termination of the Option pursuant
to the provisions hereof. The Option may be exercised only if compliance with
all Federal and state securities and banking laws can be effected and only by
(i) Participant's completion, execution and delivery to Corporation of a notice
of exercise and "investment letter" in the form attached hereto as Exhibit A,
and (ii) Participant's payment to Corporation of an amount or with a fair market
value (the average between the bid and asked price) equal to the sum of the
amount obtained by multiplying the Option Price by the number of Option Shares
being purchased plus any withholding tax required by law as determined by
Corporation. Payment shall be made by check payable to Corporation, shares of
Common
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Stock of the Corporation, or such other medium of payment as the Committee shall
approve. Additionally, the Participant may choose a "dry option" whereby the
Participant receives a number of shares of Stock equal to the fair market value
of the Stock times the number of shares exercisable under the Option divided by
the value of the Option. The value of the Option is the difference between the
fair market value of the shares and the Option Price multiplied by the number of
shares exercisable under the Option. Upon the exercise of the Option by
Participant, or as soon thereafter as is practicable, Corporation shall issue
and deliver to Participant a certificate or certificates evidencing such number
of Option Shares as Participant has so elected to purchase, but in the event
Participant has not made a cash payment sufficient to cover applicable
withholding taxes, the Corporation may retain sufficient stock to liquidate and
pay such taxes. Such certificate or certificates shall be registered in the name
of Participant and shall bear any legend required by any Federal or state
securities law or agreement as Corporation shall determine.
V. Transferability of Option. The Option may not be transferred,
assigned, pledged or hypothecated (whether by operation of law or otherwise),
except that the Option may be transferred upon the death of Participant as
provided by Participant's Will or the applicable laws of descent or
distribution. The Option shall not be subject to execution, attachment or
similar process. Any attempted assignment, transfer, pledge, hypothecation or
other disposition of the Option, or levy of attachment or similar process upon
the Option not specifically permitted herein shall be null and void and without
effect. Notwithstanding the provisions of this Section, Participant, at any time
prior to his death, may assign all or any portion of the Option to (i) his
spouse or lineal descendant, (ii) the trustee of a trust for the primary benefit
of his spouse and lineal descendant, (iii) a partnership of which his spouse and
lineal descendants are the only partners, or (iv) a tax exempt organization as
described in Section 501(c)(3) of the Code. Any such assignment will be
permitted only if (i) Participant does not receive any consideration therefore,
and (ii) the assignment is permitted by the Plan. Any such assignment shall be
evidenced by an appropriate written document executed by Participant, and a copy
thereof shall be delivered to Corporation prior to the effective date of the
assignment. Any permitted transferee will be entitled to all of the rights of
Participant with respect to the assigned portion of the Option, and such portion
of the Option will continue to be subject to all of the then existing terms,
conditions and restrictions applicable to the Option, as set forth herein and in
the Plan.
VI. Adjustments. In the event of the declaration of any stock dividend
on the Stock or in the event of any reorganization, merger, consolidation,
acquisition, separation, recapitalization, split-up, combination or exchange of
shares of Stock, or like adjustment, the number of shares of Stock and the class
of shares of Stock available pursuant to the Option, and the Option Price, shall
be adjusted proportionately as determined by the Committee, whose determination
shall be conclusive. Notwithstanding the foregoing, in the event of such a
reorganization, merger, consolidation, acquisition, separation,
recapitalization, split-up, combination or exchange of shares of stock, or like
adjustment which results in substantially all the shares of the Stock of
Corporation being exchanged for, or converted into cash or other property, the
Committee or Corporation shall have the right to terminate the Option as of the
date of the exchange or conversion in which case
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the Option shall convert into the right to receive such cash or property net of
the Option Price of the Options.
VII. Termination, Suspension or Amendment of Option. The Committee or
Corporation may at any time terminate, suspend or amend the Plan or this
Agreement.
VIII. Postponement of Exercise. The Committee or Corporation may
postpone any exercise of the Option for such time as it may deem necessary in
order to permit Corporation (i) to obtain any required approvals of the exercise
from bank or bank holding company regulators, (ii) to effect, amend or maintain
any necessary registration of the Plan or the shares of Stock issuable upon the
exercise of the Option under the Securities Act of 1933, as amended (the "Act"),
or the securities laws of any applicable jurisdiction, (iii) to permit any
action to be taken in order to (A) list such shares of Stock on a stock exchange
if shares of Stock are then listed on such exchange or (B) comply with
restrictions or regulations incident to the maintenance of a public market for
its shares of Stock, including any rules or regulations of any stock exchange on
which the shares of Stock are listed, or (iv) to determine that such shares of
Stock and the Plan are exempt from such registration or that no action of the
kind referred to in (iii)(B) above needs to be taken; and Corporation shall not
be obligated by virtue of any terms and conditions of this Agreement or any
provision of the Plan to recognize the exercise of the Option or to sell or
issue shares of Stock in violation of the Act or any state's securities laws.
Any such postponement may, upon determination of Corporation, extend the terms
of the Option but neither Corporation nor its directors or officers or the
Committee shall have any obligation or liability to Participant or to any other
person with respect to any shares of Stock as to which the Option shall lapse
because of such postponement.
IX. Participant's Rights. The granting of the Option shall impose no
obligation upon Participant to exercise such Option. Participant shall have no
equity interest in Corporation, nor shall Participant have any voting, dividend,
liquidation or dissolution rights with respect to any capital stock of
Corporation solely by reason of having the Option or having executed this
Agreement. Upon the issuance and delivery of a certificate for Option Shares
after exercise of the Option, Participant shall have the rights of a stockholder
with respect to such Option Shares and to receive all dividends or other
distributions paid or made with respect thereto. Nothing in this Agreement or
the Plan shall confer upon Participant the right to continue as an employee,
director, or officer or affect any right which Corporation may have to remove
such Participant as such.
X. Elimination of Fractional Shares. If this Agreement requires a
computation of the number of shares of Stock subject to the Option, and the
number so computed is not a whole number of shares of Stock, such number of
shares of Stock shall be rounded down to the next whole number.
XI. Incorporation of Plan by Reference. The Option is granted pursuant
to the terms of the Plan, a copy of which is attached hereto as Exhibit "B" and
the terms of which are incorporated herein by reference. The Option shall in all
respects be interpreted in accordance with the Plan. The Committee shall
interpret and construe the Plan and this Agreement, and its
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interpretations and determinations shall be conclusive and binding on the
parties hereto and any other person claiming an interest hereunder, with respect
to any issue arising hereunder or thereunder. The provisions of the Plan shall
control in the event of any inconsistencies between this Agreement and the Plan.
XII. Reservation of Stock. Corporation covenants that while the Option
is exercisable, it will reserve from its authorized and unissued Common Stock a
sufficient number of shares to provide for the delivery of Stock pursuant to the
exercise of this Option.
XIII. Entire Agreement. This Agreement sets forth all of the promises,
agreements, conditions, understandings, warranties and representations between
the parties hereto with respect to the Option and the Shares. This Agreement is
an integration of any and all prior agreements or understandings, oral or
written, with respect to the Option and the Shares.
XIV. Notices. Any and all notices provided for herein shall be
sufficient if in writing, and sent by hand delivery or by certified or
registered mail (return receipt requested and first class postage prepaid), in
the case of Corporation, to its principal office, and, in the case of
Participant, to Participant's address as shown on Corporation's records.
XV. Governing Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of Tennessee.
XVI. Modifications. Except as otherwise provided in Section V, VI and
VII herein, no change or modification of this Agreement shall be valid unless
the same is in writing and signed by the parties hereto.
XVII. Successors. This Agreement shall be binding on all permitted
successors and assigns of Participant including any estate, executors or
administrators, trustees, or personal or legal representatives, and, in such
event all references herein to Participant shall, to the extent applicable, be
deemed to refer to and include such estate, executors or administrators,
trustees or personal or legal representatives, as the case may be.
IN WITNESS WHEREOF, Corporation and Participant have executed this
Agreement as of the day and year first above written.
COMMUNITY FINANCIAL GROUP, INC.
By: /s/ Xxxx X. Xxxxxxxxx
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Title: Chairman
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PARTICIPANT:
/s/ J. Xxxxxx Xxxxxx
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