EXHIBIT 10.(iii)
OPTION AGREEMENT
THIS OPTION AGREEMENT (this "Agreement"), dated as of July 25,
1995, is by and between GOLDEN ISLES FINANCIAL HOLDINGS, INC., a Georgia
corporation (the "Company"), and ______, (the "Optionee").
WHEREAS, the Board of Directors of the Company has determined that
the Optionee is to be granted under the Company's 1995 Stock Option Plan (the
"Plan"), on the terms and conditions set forth herein, an option (the
"Option") to purchase a specified number of shares of the common stock, no par
value, of the Company (the "Common Stock").
NOW, THEREFORE, the Company and the Optionee hereby agree as
follows:
1. Grant of Option: Number of Shares and Option Price. The
Option is for up to _____________________ (_______) shares of Common Stock
(the "Option Shares") at a price of $6.50 per share, which price is an amount
believed by the Company to be equal to the Fair Market Value (as defined in
the Plan) of a share of the Common Stock as of the date of grant. The Option
is intended to constitute an Incentive Stock Option, as defined in the Plan
and as contemplated by Section 422 of the Internal Revenue Code of 1986, as
amended (the "Code"). The Option is granted pursuant to the Plan and is
subject to the terms and conditions thereof, which are incorporated herein by
this reference. To the extent any provision in this Agreement is inconsistent
with the Plan, the provisions of the Plan shall govern. The Participant
hereby acknowledges receipt of, or access to, a copy of the Plan. Capitalized
terms used in this Agreement if not otherwise defined herein shall have the
meanings given them in the Plan.
2. Period of Option and Conditions of Exercise. (a) The
Option shall be considered granted as of the date hereof (the "Option Date").
The Option shall terminate on the earliest of (i) the date that falls ten (10)
years after the Option Date or (ii) the date specified in Section 4 hereof (in
either case, the "Expiration Date"). Upon the Expiration Date, the Optionee
shall no longer be entitled to exercise the Option.
(b) The Option may be exercised with respect to [the number of
Option Shares and at such time or times indicated on the vesting schedule
contained in Exhibit "A" hereto][or -- set forth the vesting schedule in this
paragraph]. Once the Option is exercisable with respect to a number of Option
Shares, the Optionee may exercise the Option at any time and from time to time
with respect to all or part of those Option Shares. Notwithstanding the
vesting schedule set forth [in Exhibit A -- or, above], the Option may be
immediately exercised with respect to all Option Shares subject thereto
immediately prior to the closing of: (1) any merger, consolidation,
reorganization, division or other corporate transaction in which the Common
Stock is converted into another security or into the right to receive
securities or property of the Company or of any other entity, whether or not
provision is made for assumption or substitution of comparable stock options,
other than a transaction where the holders of all of the Company's securities
before the transaction own substantially all of the securities of the
surviving entity in the transaction (e.g., a merger to change domicile would
not trigger acceleration of vesting); (2) the Company's sale of all or
substantially all of its assets, or liquidation of all or substantially all of
its assets; or (3) the sale or transfer of more than 51% of the voting
securities of the Company to persons or entities (including affiliates of such
persons or entities) who are not affiliated with persons or entities who
previously held at least 51% of the equity securities of the Company. If
requested by the Company, the Optionee shall deliver this Agreement to the
Secretary of the Company at the time of exercise of the Option so that a
notation may be made in this Agreement as to such exercise. After such
notation has been made, this Agreement shall then be returned to the Optionee.
(c) To exercise the Option, the Optionee must deliver to the
Secretary of the Company at its corporate headquarters the Notice of Exercise
attached as the Exhibit to this Agreement together with payment of the
aggregate exercise price in the manner permitted by the Plan.
(d) The Optionee shall not be deemed to be a holder of any Option
Shares following the exercise of the Option until the full exercise price for
such shares has been paid and a stock certificate has been issued and
delivered for such shares.
3. Adjustment in Number of Shares. The number of Option Shares
shall be subject to adjustment for stock dividends, stock splits, or similar
corporate change involving the Common Stock to the extent set forth in Section
1.12 of the Plan.
4. Termination of Employment.
(a) Except as provided in this Section 4, the Option may not be
exercised after the Optionee has ceased to be employed by the Company or by
one of its subsidiaries (the Company and its subsidiaries, as that term is
defined in Section 425(f) of the Code, are referred to in this Section
together as the "Company"), including by reason of death or disability. If
the Optionee ceases to be employed by the Company other than by reason of
(1) Optionee's death or disability, or
(2) Optionee's voluntary termination of his or her employment without
the Company's consent, or
(3) the Company's termination of Optionee's employment for "good
cause,"
then the Option may be exercised at any time within three (3) months after the
termination of his or her employment. As used in this Agreement, termination
for "good cause" shall mean discharge by reason of dishonesty, fraud, gross
neglect of duty, gross misfeasance in office, intentional damage to important
interests of the Company, commission of a felony or any other act of moral
turpitude, or commission of any other act materially detrimental to the
interests of the Company that the Optionee knew or should have known would
have such effect, all as determined by the Board of Directors or the Committee
in good faith based on such evidence as it deems necessary for such purpose.
(b) If the Optionee ceases to be employed by the Company by reason of
his or her death or disability (within the meaning of Section 22(e)(3) of the
Code), then the Option may be exercised (including by the person or persons to
whom such right passes pursuant to Section 5) at any time within twelve (12)
months after the termination of his or her employment, but only with respect
to Option Shares with respect to which the Option was exercisable at the time
employment ceased.
(c) If the Optionee ceases to be employed by the Company by reason of
Optionee's voluntary termination of his or her employment without the
Company's consent, or the Company's termination of Optionee's employment for
"good cause," then immediately upon such termination the Option shall cease to
be exercisable.
5. Option Not Transferable. The Option is not transferable
other than by will or under the laws of descent and distribution. During the
lifetime of the Optionee, the Option may be exercised only by the Optionee.
6. Investment Representations. (a) The Optionee acknowledges
that the Option and the Option Shares obtainable upon exercise of the Option
have not been registered under the Securities Act of 1933, as amended (the
"Securities Act"), or under applicable state securities laws.
(b) The Optionee acknowledges that, prior to the issuance of the
Option Shares, the Company may delay the delivery of certificates for the
Option Shares for such time as the Company deems necessary or desirable to
enable the Company to comply with (i) the listing requirements of any exchange
upon which the Option Shares may be listed; (ii) the requirements of the
Securities Act or the Securities Exchange Act of 1934, as amended, or any
rules or regulations of the Securities and Exchange Commission promulgated
thereunder; or (iii) the requirements of applicable state laws relating to
authorization, issuance or sale of such securities. The Optionee shall
provide such information as the Company deems necessary or desirable to secure
such compliance.
7. Legends. The share certificates evidencing the Option
Shares may contain such legends as may be desirable or required in keeping
with applicable state corporation and securities laws.
8. Holding Period for Option Shares. (a) Optionee
acknowledges that he or she will have ordinary taxable income if there is a
disposition of shares of the Common Stock received pursuant to the exercise of
this Option within two years of the Option Date or within one year from the
date on which the shares were issued pursuant to his or her Notice of Exercise
as set forth in Section 2 hereof.
(b) Optionee agrees that he or she will notify the Company in
writing of any disposition that occurs during either of the two aforementioned
holding periods. Such notice shall include the date of the disposition, the
number of shares disposed of, and the price per share received, and shall be
made within thirty days of the disposition. In the event the Company shall at
that time believe that, under applicable regulations or practice, it is
required to deliver to the Internal Revenue Service federal income withholding
taxes, in order to ensure its entitlement to a deduction (for the purposes of
the Company's federal income tax liability) relating to such premature
disposition, Optionee shall be obligated to pay the amount of such withholding
taxes (as determined by the Company) to the Company either by Optionee's check
delivered to the Company within five days after the Company has notified
Optionee of the amount of the withholding tax obligation or by deductions from
Optionee's future compensation on a schedule satisfactory to the Company.
9. Notices. Any notice or other communication required or
permitted to be given hereunder shall be in writing and shall be deemed to
have been given when delivered by personal delivery, by facsimile transmission
or by mail, to the following address:
To Optionee: _________________________
_________________________
_________________________
_________________________
To the Company: Golden Isles Financial Holdings, Inc.
000 Xxxxxxxxxx Xxxxx
Xx. Xxxxxx Xxxxxx, XX 00000
or at such other address or facsimile number as the parties hereto shall have
last designated by notice to the other party. Any notice given by personal
delivery or mail shall be deemed to have been delivered on the date of receipt
of such delivery at such address; and any notice given by facsimile
transmission shall be deemed to have been delivered on the date of
transmission if received during business hours on a business day, or the next
business day after transmission if received after business hours on a business
day or at any time on a non-business day.
10. Failure to Enforce Not a Waiver. The failure of the Company
or the Optionee to enforce at any time any provision of this Agreement shall
in no way be construed to be a waiver of such provisions or of any other
provision hereof.
11. Amendments. This Agreement may be amended or modified only
by an instrument in writing signed by the Optionee and an authorized
representative of the Company. Except as provided in Section 13, no third
party shall be entitled to claim the benefit of or enforce this Agreement.
12. Governing Law. This Agreement has been entered into, and
shall be governed by and construed according to the laws of, the State of
Georgia, without regard to the conflicts of law rules thereof.
13. Successors and Assigns. This Agreement shall inure to the
benefit of, and be binding on, the successors and assigns of the Company, and
such persons as may be permitted to succeed to the rights of the Optionee
hereunder with respect to the Option and the Option Shares. The parties shall
take such steps as reasonably may be necessary, including but not limited to
the execution and delivery of an agreement to replace this Agreement, to give
effect to the provisions of this Section 13 in a way that the relative
benefits and obligations of the parties (and their successors and assigns)
under this Agreement are preserved as closely as possible.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
GOLDEN ISLES FINANCIAL HOLDINGS, INC.
By:
(Optionee) Xxxxxxx X. Xxxxxx
Chairman and Chief Executive Officer
EXHIBIT
Notice of Exercise of Stock Options
To Golden Isles Financial Holdings, Inc.:
I hereby elect to purchase __ shares of common stock, no par
value ("Common Stock"), of Golden Isles Financial Holdings, Inc. (the
"Company") in accordance with the option ("Option") granted to me on
__________, 199__ under the Option Agreement between the Company and me, dated
as of the same date (the "Option Agreement"). Enclosed is payment in full of
the exercise price for such shares, calculated in accordance with the terms of
the Company's 1995 Stock Option Plan, consisting of a check in the amount of
$______________.
In the event any of the options being hereby exercised are not
Incentive Stock Options as of the date hereof, then also accompanying this
Notice is my check in the amount of $____________, in payment of federal and
state income withholding and employment taxes applicable to this exercise.
The amount of such payment is based on advice received from appropriate
officials of the Company responsible for the administration of its payroll and
employment tax obligations.
I hereby represent and warrant that my exercise of the Option is
in compliance with the terms and conditions set forth in the Option Agreement.
I further acknowledge and agree that the shares so purchased shall remain
subject to the applicable terms and conditions set forth in the Option
Agreement.
I hereby represent and warrant that I am purchasing the shares
for my own account for investment purposes only and not with a view to, or for
sale in connection with, a distribution of the shares except in compliance
with all Federal and applicable state securities laws.
I am fully aware of (i) the highly speculative nature of the
investment in the shares; (ii) the financial risks involved; and (iii) the
possible lack of liquidity of the investment. I am capable of evaluating the
merits and risks of this investment, I have the ability to protect my own
interests in this transaction, and I am financially capable of bearing a total
loss of this investment.
I understand that I may suffer adverse tax consequences as a
result of my purchase or disposition of the shares. I have sought such tax
counsel as I have deemed necessary, and I am not relying on the Company for
any tax advice.
Date: _______________________ ______________________________
Optionee
(Print Name):
