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EXHIBIT 10.9
COMMUNITY CAPITAL BANCSHARES, INC.
NON-QUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT is made as of November 15, 1999 (the "Grant Date"), by
and between COMMUNITY CAPITAL BANCSHARES, INC. (the "Company") and XXXXXXX XXXXX
(the "Optionee").
1. WITNESSETH
WHEREAS, the Company desires to grant to the Optionee a non-qualified
stock option to purchase shares of the common stock of the Company; and
WHEREAS, the Company and the Optionee wish to confirm the terms and
conditions of the option;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, it is hereby agreed between the parties hereto as follows:
(A) SECTION I
GRANT OF OPTION
1.1 Grant of Option. Subject to the terms, restrictions,
limitations and conditions stated herein, the Company hereby grants to
the Optionee a non-qualified stock option (the "Option") to purchase
all or any part of 15,000 shares (the "Option Shares") of the Company's
common stock, $1.00 par value per share (the "Common Stock"). The
exercise price for each share of Common Stock is $10.50 per share (the
"Exercise Price"), subject to adjustment as provided in Section 3.1
hereof. The Exercise Price is equal to the Fair Market Value of a share
of Common Stock on the Grant Date.
1.2 Exercise of Option.
(a) The Option shall be exercisable as to all or any portion of
the Option Shares during the Option Period (as defined in Section 1.4
hereof) by the delivery to the Company, at its principal place of
business, of a written notice of exercise in substantially the form
attached hereto as Exhibit 1, which shall be actually delivered to the
Company no earlier than thirty (30) days and no later than ten (10)
days prior to the date upon which Optionee desires to exercise all or
any portion of the Option; and
(b) payment to the Company of the Exercise Price ,
multiplied by the number of Option Shares being purchased (the
"Purchase Price"), as provided in Section 1.3.
(c) Notwithstanding any other provision herein, the
Company, at the direction of the Office of the Comptroller of the
Currency or any successor federal agency ("OCC"), may require the
Optionee to exercise the Option in whole or in part if the
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capital of any bank which is an affiliate of the Company falls below
minimum requirements, as determined by the OCC or the Georgia
Department of Banking and Finance and, if the Optionee fails to
exercise any portion of the Option as so directed, that portion of the
Option shall be forfeited.
Upon acceptance of such notice and receipt of payment in full of the Purchase
Price, the Company shall cause to be issued a certificate representing the
Option Shares purchased.
1.3 Purchase Price. Payment of the Purchase Price for all or any
part of the Option Shares purchased pursuant to the exercise of an Option shall
be made in cash or certified check or, alternatively, as follows:
(a) by delivery to the Company of a number of shares of
Common Stock which have been owned by the Optionee for at least six (6)
months prior to the date of the Option's exercise having an aggregate
Fair Market Value on the date of exercise either equal to the Purchase
Price or in combination with cash or a certified check to equal the
Purchase Price; or
(b) if and when the Common Stock becomes traded by
brokers, whether on a national securities exchange or otherwise, by
receipt of the Purchase Price in cash from a broker, dealer or other
"creditor" as defined by Regulation T issued by the Board of Governors
of the Federal Reserve System following delivery by the Optionee to the
Company of instructions in a form acceptable to the Company regarding
delivery to such broker, dealer or other creditor of that number of
Option Shares with respect to which the Option is exercised.
1.4 Term and Termination of Option. The term of the Option (the
"Option Period") shall commence on the Grant Date and end, generally, on the
earlier of (a) the tenth (10th) anniversary of the Grant Date; or (b) ninety
(90) days following the date the Optionee ceases to be a director of the Company
or an affiliate. Upon the expiration of the Option Period, the Option and all
unexercised rights granted to Optionee hereunder shall terminate, and thereafter
be null and void.
1.5 Vesting Provisions. The Option Shares shall become vested in
the manner provided in the Vesting Schedule attached hereto; provided, however,
that all Option Shares shall become vested no later than the date of a Change in
Control, or any earlier date specified by the Company in writing to the Optionee
subsequent to or contemporaneously with a determination by the Company that a
Change in Control is imminent.
1.6 Rights as Shareholder. Until the stock certificates reflecting
the Option Shares accruing to the Optionee upon exercise of the Option are
issued to the Optionee, the Optionee shall have no rights as a shareholder with
respect to such Option Shares. The Company shall make no adjustment for any
dividends or distributions or other rights on or with respect to Option Shares
for which the record date is prior to the issuance of that stock certificate.
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1.7 Special Limitation on Exercise. No purported exercise of the
Option shall be effective without the approval of the Company, which may be
withheld to the extent that the exercise, either individually or in the
aggregate together with the exercise of other previously exercised stock options
and/or offers and sales pursuant to any prior or contemplated offering of
securities, would, in the sole and absolute judgment of the Company, require the
filing of a registration statement with the United States Securities and
Exchange Commission or with the securities commission of any state. If a
registration statement is not in effect under the Securities Act of 1933 or any
applicable state securities law with respect to shares of Common Stock
purchasable or otherwise deliverable under the Option, the Optionee (a) shall
deliver to the Company, prior to the exercise of the Option or as a condition to
the delivery of Common Stock pursuant to the exercise of an Option exercise,
such information, representations and warranties as the Company may reasonably
request in order for the Company to be able to satisfy itself that the Option
Shares are being acquired in accordance with the terms of an applicable
exemption from the securities registration requirements of applicable federal
and state securities laws and (b) shall agree that the shares of Common Stock so
acquired will not be disposed of except pursuant to an effective registration
statement, unless the Company shall have received an opinion of counsel that
such disposition is exempt from such requirement under the Securities Act of
1933 and any applicable state securities law.
(A) SECTION 2
RESTRICTIONS ON TRANSFER OF OPTION SHARES
2.1 Restriction on Transfer of Option and of Option Shares. The
Option evidenced hereby is nontransferable other than by will or the laws of
descent and distribution and shall be exercisable during the lifetime of the
Optionee only by the Optionee (or in the event of his disability, by his
personal representative) and after his death, only by his legatee or the
executor of his estate.
2.2 Legend on Stock Certificates. Certificates evidencing the
Option Shares, to the extent appropriate at the time, shall have noted
conspicuously on the certificates a legend intended to give all persons full
notice of the existence of the conditions, restrictions, rights and obligations
set forth herein, such as those below:
(I) TRANSFER IS RESTRICTED
the securities evidenced by this certificate have not been registered
under the securities act of 1933, as amended, and may not be sold,
transferred, assigned or hypothecated unless (1) there is an effective
registration under such act covering such securities, (2) the transfer
is made in compliance with rule 144 promulgated under such act, or (3)
the issuer receives an opinion of counsel, reasonably satisfactory to
the company, stating that such sale, transfer, assignment or
hypothecation is exempt from the registration requirements of such act.
(A) SECTION 3
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(B) GENERAL PROVISIONS
3.1 Changes in Capitalization.
(a) If the number of shares of Common Stock shall be
increased or decreased by reason of a subdivision or combination of
shares of Common Stock, the payment of a stock dividend in shares of
Common Stock or any other increase or decrease in the number of shares
of Common Stock outstanding effected without receipt of consideration
by the Company, an appropriate adjustment shall be made by the Company,
in a manner determined in its sole discretion, in the number and kind
of Option Shares and in the Exercise Price.
(b) In the event of a Change in Control or other
corporate transaction pursuant to which the Company is not the
surviving entity and the surviving entity does not agree to the
assumption of the Option, the Company may elect to terminate the Option
Period as of the effective date of the Change in Control in
consideration of the payment to the Optionee of the sum of the
difference between the then aggregate Fair Market Value of the Common
Stock and the aggregate Exercise Price for each Option Share which has
not been exercised as of the effective date of the Change in Control.
(c) The existence of the Option granted pursuant to this
Agreement shall not affect in any way the right or power of the Company
to make or authorize any adjustment, reclassification, reorganization
or other change in its capital or business structure, any merger or
consolidation of the Company, any issue of debt or equity securities
having preferences or priorities as to the Common Stock or the rights
thereof, the dissolution or liquidation of the Company, any sale or
transfer of all or any part of its business or assets, or any other
corporate act or proceeding. Any adjustment pursuant to this Section
may provide, in the Company's discretion, for the elimination without
payment therefor of any fractional shares that might otherwise become
subject to any Option.
3.2 Governing Laws. This Agreement shall be construed,
administered and enforced according to the laws of the State of Georgia.
3.3 Successors. This Agreement shall be binding upon and inure to
the benefit of the heirs, legal representatives, successors and permitted
assigns of the Optionee and the Company.
3.4 Notice. Except as otherwise specified herein, all notices and
other communications under this Agreement shall be in writing and shall be
deemed to have been given if personally delivered or if sent by registered or
certified United States mail, return receipt requested, postage prepaid,
addressed to the proposed recipient at the last known address of the recipient.
Any party may designate any other address to which notices shall be sent by
giving notice of the address to the other parties in the same manner as provided
herein.
3.5 Severability. In the event that any one or more of the
provisions or portion
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thereof contained in this Agreement shall for any reason be held to be invalid,
illegal or unenforceable in any respect, the same shall not invalidate or
otherwise affect any other provisions of this Agreement, and this Agreement
shall be construed as if the invalid, illegal or unenforceable provision or
portion thereof had never been contained herein.
3.6 Entire Agreement. This Agreement expresses the entire
understanding of the parties with respect to the Option.
3.7 Violation. Any transfer, pledge, sale, assignment, or
hypothecation of the Option or any portion thereof shall be a violation of the
terms of this Agreement and shall be void and without effect.
3.8 Headings and Capitalized Terms. Section headings used herein
are for convenience of reference only and shall not be considered in construing
this.
3.9 Specific Performance. In the event of any actual or threatened
default in, or breach of, any of the terms, conditions and provisions of this
Agreement, the party or parties who are thereby aggrieved shall have the right
to specific performance and injunction in addition to any and all other rights
and remedies at law or in equity, and all such rights and remedies shall be
cumulative.
3.10 No Right to Continued Retention. The award of Option Shares
hereunder shall not be construed as giving the optionee the right to continue as
a member of the Board of Directors of the Company or any affiliate.
(A) SECTION 4
DEFINITIONS
4.1 "Change in Control" means any one of the following events
which may occur after the Grant Date and without the approval of the Board of
Directors of the Company:
(a) the acquisition by any individual, entity or "group",
within the meaning of Section 13(d)(3) or Section 14(d)(2) of the
Securities Exchange Act of 1934, as amended, (a "Person") of beneficial
ownership (within the meaning of Rule 13d-3 promulgated under the
Securities Exchange Act of 1934) of voting securities of the Company
where such acquisition causes any such Person to own twenty-five
percent (25%) or more or the combined voting power of the then
outstanding voting securities then entitled to vote generally in the
election of directors (the "Outstanding Voting Securities"); provided,
however, that for purposes of this Section 4.2(a), the following shall
not be deemed to result in a Change in Control, (I) any acquisition
directly from the Company, unless such a Person subsequently acquires
additional shares of Outstanding Voting Securities other than from the
Company, in which case any such subsequent acquisition shall be deemed
to be a Change in Control; or (ii) any acquisition by any employee
benefit plan (or related trust) sponsored or maintained by the Company
or any corporation controlled by the Company;
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(b) a merger, consolidation, share exchange, combination,
reorganization or like transaction involving the Company in which the
stockholders of the Company immediately prior to such transaction do
not own at least fifty percent (50%) of the value or voting power of
the issued and outstanding capital stock of the Company or its
successor immediately after such transaction;
(c) the sale or transfer (other than as security for the
Company's obligations) of more than fifty percent (50%) of the assets
of the Company in any one transaction or a series of related
transactions occurring within a one (1) year period in which the
Company, any corporation controlled by the Company or the stockholders
of the Company immediately prior to the transaction do not own at least
fifty percent (50%) of the value or voting power of the issued and
outstanding equity securities of the acquiror immediately after the
transaction;
(d) the sale or transfer of more than fifty percent (50%)
of the value or voting power of the issued and outstanding capital
stock of the Company by the holders thereof in any one transaction or a
series of related transactions occurring with a one (1) year period in
which the Company, any corporation controlled by the Company or the
stockholders of the Company immediately prior to the transaction do not
own at least fifty percent (50%) of the value or voting power of the
issued and outstanding equity securities of the acquiror immediately
after the transaction; or
(e) the dissolution or liquidation of the Company.
4.2 "Fair Market Value" refers to the determination of value of a
share of Common Stock. If the Common Stock is actively traded on any national
securities exchange or any Nasdaq quotation or market system, Fair Market Value
shall mean the closing price at which sales of Common Stock shall have been sold
on the most recent trading date immediately prior to the date of determination,
as reported by any such exchange or system selected by the Company on which the
shares of Common Stock are then traded. If the shares of Common Stock are not
actively traded on any such exchange or system, Fair Market Value shall mean the
arithmetic mean of the bid and asked prices for the shares of Common Stock on
the most recent trading date within a reasonable period prior to the
determination date as reported by such exchange or system. If there are no bid
and asked prices within a reasonable period or if the shares of Common Stock are
not traded on any exchange or system as of the determination date, Fair Market
Value shall mean the fair market value of a share of Stock as determined by the
Company taking into account such facts and circumstances deemed to be material
by the Company to the value of the Common Stock in the hands of the Optionee,
determined by the Company without regard to any restriction other than a
restriction which, by its terms, will never lapse. Fair Market Value as
determined by the Company shall be final, binding and conclusive upon the
Optionee. Fair Market Value of a share of Common Stock may be determined by the
Company by reference to the average market value determined over a period
certain or as of specified dates, to a tender offer price for the shares of
Common Stock (if settlement of an award is triggered by such an event) or to any
other reasonable measure of fair market value.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
COMMUNITY CAPITAL BANCSHARES, INC.
By:
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Title:
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ATTEST:
--------------------
Title:
--------------
OPTIONEE:
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XXXXXXX XXXXX
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EXHIBIT 1
NOTICE OF EXERCISE OF
STOCK OPTION TO PURCHASE
COMMON STOCK OF
COMMUNITY CAPITAL BANCSHARES, INC.
Name
--------------------------------
Address
-----------------------------
------------------------------------
Date
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Community Capital Bancshares, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxx, Xxxxxxx 00000
Attention: President
Re: Exercise of Non-Qualified Stock Option
Gentlemen:
Subject to acceptance hereof by Community Capital Bancshares, Inc. (the
"Company"), I hereby give notice of my election to exercise options granted to
me to purchase ______________ shares of common stock of the Company ("Common
Stock") under the Non-Qualified Stock Option Agreement (the "Agreement") dated
as of November 15, 1999. The purchase shall take place as of
______________________, 200_ (the "Exercise Date").
On or before the Exercise Date, I will pay the applicable purchase
price as follows:
[ ] by delivery of cash or a certified check for $___________ for
the full purchase price payable to the order of Community
Capital Bancshares, Inc.
[ ] by delivery of cash or a certified check for $___________
representing a portion of the purchase price with the balance
to consist of shares of Common Stock that I have owned for at
least six months and that are represented by a stock
certificate I will surrender to the Company with my
endorsement. If the number of shares of Common Stock
represented by such stock certificate exceed the number to be
applied against the purchase price, I understand that a new
stock certificate will be issued to me reflecting the excess
number of shares.
[ ] by delivery of a stock certificate representing shares of
Common Stock that I have owned for at least six months which I
will surrender to the Company with my
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endorsement as payment of the purchase price. If the number of
shares of Common Stock represented by such certificate exceed
the number to be applied against the purchase price, I
understand that a new certificate will be issued to me
reflecting the excess number of shares.
[ ]
by delivery of the purchase price by ________________________,
a broker, dealer or other "creditor" as defined by Regulation
T issued by the Board of Governors of the Federal Reserve
System. I hereby authorize the Company to issue a stock
certificate for the number of shares indicated above in the
name of said broker, dealer or other creditor or its nominee
pursuant to instructions received by the Company and to
deliver said stock certificate directly to that broker, dealer
or other creditor (or to such other party specified in the
instructions received by the Company from the broker, dealer
or other creditor) upon receipt of the purchase price.
As soon as the stock certificate is registered in my name, please
deliver it to me at the above address.
If the Common Stock being acquired is not registered for issuance to
and resale by the Optionee pursuant to an effective registration statement on
Form S-8 (or successor form) filed under the Securities Act of 1933, as amended
(the "1933 Act"), I hereby represent, warrant, covenant, and agree with the
Company as follows:
The shares of the Common Stock being acquired by me will be
acquired for my own account without the participation of any other
person, with the intent of holding the Common Stock for investment and
without the intent of participating, directly or indirectly, in a
distribution of the Common Stock and not with a view to, or for resale
in connection with, any distribution of the Common Stock, nor am I
aware of the existence of any distribution of the Common Stock;
I am not acquiring the Common Stock based upon any
representation, oral or written, by any person with respect to the
future value of, or income from, the Common Stock but rather upon an
independent examination and judgment as to the prospects of the
Company;
The Common Stock was not offered to me by means of publicly
disseminated advertisements or sales literature, nor am I aware of any
offers made to other persons by such means;
I am able to bear the economic risks of the investment in the
Common Stock, including the risk of a complete loss of my investment
therein;
I understand and agree that the Common Stock will be issued
and sold to me without registration under any state law relating to the
registration of securities for sale,
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and will be issued and sold in reliance on the exemptions from
registration under the 1933 Act, provided by Sections 3(b) and/or 4(2)
thereof and the rules and regulations promulgated thereunder;
The Common Stock cannot be offered for sale, sold or
transferred by me other than pursuant to: (A) an effective registration
under the 1933 Act or in a transaction otherwise in compliance with the
1933 Act; and (B) evidence satisfactory to the Company of compliance
with the applicable securities laws of other jurisdictions. The Company
shall be entitled to rely upon an opinion of counsel satisfactory to it
with respect to compliance with the above laws;
The Company will be under no obligation to register the Common
Stock or to comply with any exemption available for sale of the Common
Stock without registration or filing, and the information or conditions
necessary to permit routine sales of securities of the Company under
Rule 144 under the 1933 Act are not now available and no assurance has
been given that it or they will become available. The Company is under
no obligation to act in any manner so as to make Rule 144 available
with respect to the Common Stock;
I have and have had complete access to and the opportunity to
review and make copies of all material documents related to the
business of the Company, including, but not limited to, contracts,
financial statements, tax returns, leases, deeds and other books and
records. I have examined such of these documents as I wished and am
familiar with the business and affairs of the Company. I realize that
the purchase of the Common Stock is a speculative investment and that
any possible profit therefrom is uncertain;
I have had the opportunity to ask questions of and receive
answers from the Company and any person acting on its behalf and to
obtain all material information reasonably available with respect to
the Company and its affairs. I have received all information and data
with respect to the Company which I have requested and which I have
deemed relevant in connection with the evaluation of the merits and
risks of my investment in the Company;
I have such knowledge and experience in financial and business
matters that I am capable of evaluating the merits and risks of the
purchase of the Common Stock hereunder and I am able to bear the
economic risk of such purchase; and
The agreements, representations, warranties and covenants made
by me herein extend to and apply to all of the Common Stock of the
Company issued to me pursuant to this Agreement. Acceptance by me of
the certificate representing such Common Stock shall constitute a
confirmation by me that all such agreements, representations,
warranties and covenants made herein shall be true and correct at that
time.
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I understand that the certificates representing the shares being
purchased by me in accordance with this notice shall bear a legend referring to
the foregoing covenants, representations and warranties and restrictions on
transfer, and I agree that a legend to that effect may be placed on any
certificate which may be issued to me as a substitute for the certificates being
acquired by me in accordance with this notice. I further understand that
capitalized terms used in this Notice of Exercise without definition shall have
the meanings given to them in the Agreement.
Very truly yours,
----------------------------------------
AGREED TO AND ACCEPTED:
COMMUNITY CAPITAL BANCSHARES, INC.
By:
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Title:
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Number of Shares Exercised:
-------
Number of Shares Remaining: Date:
------- -------------------
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SCHEDULE I
TO COMMUNITY CAPITAL BANCSHARES, INC.
NON-QUALIFIED STOCK OPTION AWARD
Vesting Schedule
A. "Vested Shares" means only that percentage of the number of shares of
Common Stock subject to the Option as to which the Option becomes exercisable
following completion of the years of service indicated in the schedule below.
Percentage of Shares Years of Service
Which are Vested Shares after Grant Date
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20% 1 year
40% 2 years
60% 3 years
80% 4 years
100% 5 years
B. Notwithstanding the foregoing Vesting Schedule, the Option shall become
fully vested and exercisable during the Option Period if and when the Optionee
retires on or after age 65.
C. For purposes of the Vesting Schedule, Optionee shall be granted a year
of service for each consecutive twelve-consecutive-month period following the
Grant Date and during which Optionee continues, at all times, as a director of
the Company or an affiliate.
D. The right of Optionee to vest in Common Stock shall cease upon the
termination of his or her service as a director of the Company or an affiliate,
whether by reason of death, disability or otherwise and, thereafter, no further
Option Shares shall become vested; and the Option shall be exercisable only
during the Option Period.
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