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EXHIBIT 10.1
NON-QUALIFIED STOCK OPTION AGREEMENT
DATED AUGUST 24, 2000
BETWEEN
COMMUNITY BANCSHARES, INC.
AND
WILLIAM H. CAUGHRAN, JR.
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COMMUNITY BANCSHARES, INC.
2000 NONQUALIFIED STOCK OPTION AGREEMENT
FOR EMPLOYEES
THIS AGREEMENT is made and entered into as of August 24, 2000, between
grantor Community Bancshares, Inc., a Delaware corporation (the "Corporation")
and grantee, William H. Caughran, Jr. (the "Employee").
W I T N E S S E T H:
The Board of Directors of the Corporation (the "Board") on August 24,
2000 approved the grant to Employee of awards under the Corporation's long-term
incentive program 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. Employee shall have the right and option to purchase
on the terms and conditions set forth herein, all or any part of an aggregate of
5,000 shares ("Option Shares") of the $.10 par value common stock of the
Corporation (the "Common Stock") at the purchase price of $18.00 per share (the
"Option Price"). The Option Price is 100% of the fair market value of the Common
Stock on August 24, 2000, the date of the grant of the option covered by this
Agreement.
2. TERMS AND CONDITIONS. It is understood and agreed that the option
evidenced hereby is subject to the following terms and conditions:
(a) Expiration Date. The option shall expire five (5) years after
the date of grant (the "Expiration Date"). After the Expiration Date, the
parties shall have no further rights or obligations hereunder.
(b) Exercise of Option. The option covered by this Agreement may
be exercised by Employee from time to time, in whole or in part, at any time
prior to the Expiration Date subject to the restrictions in Section 2(d), (e)
and (f) and Section 8.
(c) Method of Exercise and Payment of Purchase Price Upon
Exercise. The Employee may elect to exercise the option by giving written notice
of such election to the Corporation, in such form as the Board may require,
accompanied by payment in cash or in such other manner as may be approved by the
Board, of the full purchase price of the Option Shares for which the election is
made. As determined by the Board, in its sole discretion, payment in full or in
part may be made in the form of unrestricted Common Stock already owned by the
Employee (provided that the shares of Common Stock which are tendered must have
been held by the Employee for at least six (6) months prior to their tender to
satisfy the exercise price) or in the form of a withholding of sufficient shares
of Common Stock otherwise issuable upon the exercise of the option to constitute
payment of the purchase price, based, in each case, on the fair market value of
the Common Stock on the date the option is exercised. Further, upon written
request and authorization of the Employee and to the extent permitted by
applicable law, the Board may allow arrangements whereby an option may be
exercised and the exercise price (together with any tax withholding obligations
of the Employee) paid pursuant to arrangements with brokerage forms permitted
under Regulation T of the Board of Governors of the Federal Reserve System (or
successor regulations or statutes).
(d) Exercise Upon Death. In the event that Employee ceases to be
employed by Corporation or its subsidiaries by reason of death, the option may
thereafter be exercised as to all shares subject to the option by the legal
representative of the estate or by the person or persons entitled to the option
under the Employee's will or the laws of descent and distribution, as
appropriate, until the earlier of (i) the expiration of the stated term of the
option or (ii) the first anniversary of the date of the Employee's death.
(e) Exercise Upon Termination of Employment by Reason of
Disability. In the event that Employee ceases to be employed by the Corporation
or its subsidiaries by reason of Disability (as defined below), the option may
thereafter be exercised as to all shares subject to the option until the earlier
of (i) the expiration of the stated term of the option or (ii) the first
anniversary of the date that Employee is determined by the Corporation to be
disabled.
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(f) Exercise Upon Termination of Employment by Reason Other than
Death or Disability. The option or any unexercised portions thereof shall expire
upon the earlier of (i) the expiration of the stated term of the option or (ii)
the 90th day after the termination of Employee's employment with the Corporation
and its subsidiaries for any reason other than death or Disability. Provided,
however, if the Employee's employment is terminated for Cause (as defined
below), the option shall expire on the date of the termination of the Employee's
employment.
3. TAX LIABILITY. Upon exercise of the option and request by the Employee
of the Corporation, the Corporation shall pay to Employee the applicable federal
and state income tax liability resulting from any gain to be recognized by the
Employee from the exercise. The Corporation shall have the right to base payment
upon the highest marginal tax rates annualizing the Employee's compensation from
the Corporation and adding the gain recognized from the exercise assuming a
standard deduction and the most favorable filing status for the minimization of
tax liability to the Employee. If, upon subsequent filing of the Employee's tax
returns for the tax year encompassing the date of the exercise of the option,
the amount paid to Employee by the Corporation varies by more that $500.00, the
Employee shall have the right to make written demand upon the Corporation for
additional reimbursement within 90 days of the date of filing of the returns.
Such written demand shall be accompanied by a certified copy of the filed tax
returns and all supporting forms and schedules thereto for review by the
Corporation. The Corporation shall pay any additional amounts due within 30 days
of receipt of proper demand from the Employee. Provided, however, that nothing
in this Section 3 shall apply to the Employee if at the time the option is
exercised the Employee's employment with the Corporation or its subsidiaries has
terminated except for terminations on account of the Employee's Retirement (as
defined below), death or Disability or terminations following a Change in
Control of the Corporation.
4. NO RIGHTS AS SHAREHOLDER OR TO EMPLOYMENT. 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. Furthermore, the option shall not
confer upon the Employee any rights of employment with the Corporation of any of
its subsidiaries or affect the right of the Corporation or its subsidiaries to
terminate the employment of the Employee at any time, with or without cause.
5. RESTRICTIONS ON TRANSFER OF SHARES. Employee hereby agrees for himself
or herself and his or her legal 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"), at the time of such exercise, or if some other exemption from the
provisions of the Act is not available, 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 acceptable in scope and form to counsel to the
Corporation and signed by Employee or Employee's 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, and
as the same may be amended or replaced and subject to restrictions upon sale or
other disposition.
6. REGISTRATION OF SHARES. If at any time the Board shall determine that
the listing, registration or qualification of any shares subject to the 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, the option may not be exercised in whole or in part unless such
listing, registration, qualification, consent, or approval has been effected or
obtained free of any conditions not acceptable to the Board.
7. TRANSFER OF RIGHTS. This option is not transferable except by will or
by the laws of descent and distribution and shall be exercisable during
Employee's lifetime only by Employee. After the death of Employee, this option
may be exercised only by Employee's estate or by the person or persons entitled
to the option under Employee's will or the laws of descent and distribution, as
appropriate. In the event the option is transferred to the Employee's estate,
the option may be exercised by the estate only to the extent that the Employee
would have been entitled had the option not been transferred.
8. COMPETITION WITH EMPLOYER - COVENANT NOT TO COMPETE. In consideration of
the grant by the Corporation of the option, Employee agrees with the Corporation
as follows:
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(a) While Employee is employed by the Corporation or one or more
of its subsidiaries (hereinafter collectively referred to as the "Company"),
Employee will devote his or her entire time, energy and skills to the service of
the Company. Such employment shall be at the pleasure of the board of directors
of each employing corporation. Except as provided in Section 2 hereof, no option
granted under this Agreement shall be exercised after the termination of
Employee's employment with the Company.
(b) Employee will not, during the term of his or her employment
with the Company, or for a period of two years after termination for any reason
of his or her employment with the Company, directly or indirectly, either
individually or as a stockholder (except for passive investments of less than
one percent of the outstanding shares), director, officer, consultant,
independent contractor, employee, agent, member or otherwise of or through any
corporation, partnership, association, joint venture, firm, individual or
otherwise (hereinafter "Firm"), or in any other capacity:
(i) Carry on or engage in a business like or similar to any
business engaged in by the Company either (A) in the county in
which the Employee has primarily been employed by the Company
at the time of termination of employment or (B) within a
25-mile radius of the location where the Employee has
primarily been employed by the Company at the time of
termination of employment; or
(ii) Solicit or do business (like or similar to any business
engaged in by the Company) with any customer of the Company
either (A)in the county in which the Employee has primarily
been employed by the Company at the time of termination of
employment or (B) within a 25-mile radius of the location
where the Employee has primarily been employed by the Company
at the time of termination of employment; or
(iii) Solicit, directly or indirectly, any employee of the
Company to leave their employment with the Company for any
reason. For purposes of this Agreement, the Company and
Employee agree that Employee shall be deemed to have solicited
any employee in violation of this Agreement if such employee
is hired by Employee or his or her Firm within six (6) months
of Employee's last employment date with the Company.
The above two-year period shall be extended by any period of time during
which Employee is in default of the covenants contained in this Agreement.
(c) During the term of his or her employment with the Company and
thereafter, Employee shall not divulge, or furnish or make accessible to any
third party, company, corporation or other organization (including, but not
limited to, customers, competitors or governmental agencies), without the
Corporation's prior written consent, any trade secrets, customer lists,
information regarding customers, or other confidential information concerning
the Company or its business, including without limitation, confidential methods
of operation and organization, trade secrets, confidential matters related to
pricing, markups, commissions and customer lists.
(d) In the event of a breach or threatened breach by Employee of
all or any part of the provisions of subdivisions (b) or (c) of this Section 8,
the Company shall be entitled to an injunction restraining Employee from such
breach without limiting any other rights or remedies available to the Company
for such breach or threatened breach.
(e) Employee specifically recognizes and affirms that each of the
covenants contained in subdivisions (b) and (c) of this Section 8 is a material
and important term of this Agreement which has induced the Company to provide
for the award of the option granted hereunder, and Employee further agrees that
should all or any part or application of subdivisions (b) or (c) of Section 8 of
this Agreement be held or found invalid or unenforceable for any reason
whatsoever by a court of competent jurisdiction in an action between Employee
and the Company, the Corporation shall be entitled to receive (but not obligated
to acquire) from Employee all Common Stock held by Employee which was obtained
by Employee under this Agreement (including all shares obtained by virtue of any
stock dividend or distribution, recapitalization, merger, consolidation,
split-up, combination, exchange of shares, or other transaction, hereinafter
"stock dividends") by returning to Employee for each share received the Option
Price paid by Employee (as adjusted for stock dividends). If Employee has sold,
transferred, or otherwise disposed of Common Stock
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obtained under this Agreement (including all shares obtained by virtue of any
stock dividend), the Corporation shall be entitled to receive from Employee the
difference between the Option Price paid by Employee and the fair market value
of the Common Stock (including all shares obtained by virtue of any stock
dividends) on the date of sale transfer or other disposition, and all payments
made by the Corporation for payment of federal and state income tax liability
under the provisions of paragraph "3" herein.
(f) Notwithstanding any provision to the contrary herein
contained, Section 8(b) shall not apply:
(i) Upon the termination of the Employee's employment by the
Corporation other than for Cause within one (1) year following
a Change in Control of the Corporation; and
(ii) Upon the voluntary termination of employment by the
Employee for any reason within the thirty (30) day period
immediately after the one (1) year period following a Change
in Control of the Corporation.
9. DEFINITIONS. For the purposes of this Agreement, the following terms
shall have the definitions set forth below:
(a) "Cause" means (i) any act (A) that constitutes, on the part of
the Employee, fraud, dishonesty, a felony or gross malfeasance of duty and (B)
that directly results in a material injury to the Corporation; or (ii) conduct
by the Employee in his office with the Corporation that is grossly inappropriate
and demonstrably likely to lead to material injury to the Corporation, as
determined by the Board acting reasonably and in good faith; provided, however,
that in the case of (ii) above, such conduct shall not constitute Cause unless
the Board shall have delivered to the Employee notice setting forth with
specificity (A) the conduct deemed to qualify as Cause, (B) reasonable action
that would remedy such objection, and (C) a reasonable time (not less than 30
days) within which the Employee may take such remedial action, and the Employee
shall not have taken such specified remedial action within such specified
reasonable time.
(b) "Change in Control of the Corporation" means (i) the
acquisition, directly or indirectly, by any "person" (within the meaning of
Sections 13(d) or 14(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") within any twelve-month period of securities of the Corporation
representing an aggregate of twenty percent (20%) or more of the combined voting
power of the Corporation's then outstanding securities; or (ii) during any
period of two consecutive years, individuals who at the beginning of such period
constitute the Board of Directors of the Corporation, cease for any reason to
constitute at least a majority thereof, unless the election of each new director
was approved in advance by a vote of at least a majority of the directors then
still in office who were directors at the beginning of the period; or (iii)
consummation of a merger or consolidation or other business combination of the
Corporation with any other person, other than a merger, consolidation or
business combination which would result in the outstanding Common Stock
immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into common stock of the surviving entity or a
parent or affiliate thereof) at least sixty percent (60%) of the outstanding
common stock of the Corporation or such surviving entity or parent of affiliate
thereof outstanding immediately after such merger, consolidation or business
combination; or (iv) a plan of complete liquidation of the Corporation or an
agreement for the sale or disposition by the Corporation of all or substantially
all of the Corporation's assets; or (v) the occurrence of any other event or
circumstance which is not covered by (i) through (iv) above which the Board
determines affects control of the Corporation and, in order to implement the
purposes of this agreement, adopts a resolution that such event or circumstance
constitutes a Change in Control for purposes of this agreement.
(c) "Disability" means total and permanent disability as
determined under the Corporation's long-term disability plan.
(d) "Retirement" means termination of employment under
circumstances in which the Employee is entitled to a benefit from the
Corporation's defined benefit pension plan.
10. DISPOSITION OF SHARES. Employee agrees to notify the Corporation
promptly of the disposition of any shares of Common Stock purchased pursuant to
this option which are disposed of within one year after transfer of such shares
to Employee, or within two years of the date of the grant of such option. For
purposes of such notification, "disposition" shall have the meaning assigned to
it in Section 425(c) of the Code.
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11. ADJUSTMENT OF AWARDS. In the event of any change in corporate
capitalization, such as stock split, or a corporate transaction, such as a
merger, consolidation, separation or other distribution of stock or property of
the Corporation, any reorganization (whether or not such reorganization comes
within the definition of such term in Code Section 368) or any partial or
complete liquidation of the Corporation, such adjustment shall be made in the
number and class of and/or price of the Option Shares as may be determined to be
appropriate and equitable by the Corporation's Board of Directors, in its sole
discretion, to prevent dilution or enlargement of the benefits or potential
benefits intended to be available under this agreement; provided that the number
of Option Shares shall always be a whole number.
12. INTERPRETATION. Any question of interpretation or application of this
Agreement shall be resolved by the Corporation's Board of Directors and its
determination shall be final and binding on the Corporation and Employee.
13. NOTICES. All notices hereunder shall be in writing and, if to the
Corporation, shall be delivered personally to the Chairman or mailed to the
Corporation's principal office at P.O. Box 1000, Blountsville, Alabama 35031,
addressed to the attention of the Chairman; and if to Employee, 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.
14. BINDING EFFECT. This Agreement shall bind and inure to the benefit of
the parties hereto, the successors and assigns of the Corporation and the person
to whom the rights of Employee are transferred by will or the laws of descent
and distribution.
15. AMENDMENT. This Agreement may be amended from time to time by the
Board, but no such amendment shall impair the rights of the Employee without the
Employee's consent.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
COMMUNITY BANCSHARES, INC.
By: /s/ Kennon R. Patterson, Sr.
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Kennon R. Patterson, Sr.
Chairman, President and Chief Executive Officer
WITNESS: EMPLOYEE:
/s/ Elaine E. Corvin /s/ William H. Caughran, Jr.
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