EXHIBIT 10.8.1
CNB HOLDINGS, INC.
INCENTIVE STOCK OPTION AGREEMENT
This Incentive Stock Option Agreement ("Agreement"), dated as of MONTH,
DATE, YEAR, (the "Date of Grant"), is made and entered into by CNB HOLDINGS,
INC., a Georgia corporation ("CNB"), and (the "Grantee"), who is an employee or
officer of CNB or one of its parents or subsidiaries (the Grantee's employer is
sometimes referred to herein as the "Employer").
WHEREAS, the Board of Directors of CNB (the "Board") has adopted the
CNB Holdings, Inc. 1998 Incentive Stock Option Plan (the "Plan") and the
shareholders of CNB have approved the Plan.
WHEREAS, the Plan provides for the granting of incentive stock options
by the Compensation Committee of the Board of Directors of CNB (the "Committee")
to employees of CNB or any parent or subsidiary of CNB to purchase shares of the
common stock of CNB, par value one dollar ($1.00) per share (the "Stock"), in
accordance with the terms and provisions thereof; and
WHEREAS, the Committee considers the Grantee to be a person who is
eligible for a grant of incentive stock options under the Plan and has
determined that it would be in the best interest of CNB to grant the incentive
stock options documented herein.
NOW, THEREFORE, the parties hereto, intending to be legally bound
hereby, agree as follows:
1. GRANT OF OPTION
Subject to the terms and conditions hereinafter set forth, CNB, with
the approval and at the direction of the Committee, hereby grants to the
Grantee, as of the Date of Grant, an option to purchase up to shares of Stock at
a price of $ per share. Such option is hereinafter referred to as the "Option",
and the shares of Stock purchasable upon exercise of the Option are hereto to
be, and shall be treated as, an incentive stock option, as such term is defined
under section 422 of the Internal Revenue Code of 1986, as amended (the "Code").
Subject to such further limitations as are provided herein, the Option is
exercisable commencing on the Date of Grant.
2. TERMINATION OF OPTION
The Option and all rights hereunder with respect thereto, to the extent
such rights shall not have been exercised, shall terminate and become null and
void upon the earlier of: (i) ten (10) years after the Date of Grant; or (ii)
the date on which the Grantee shall be convicted of any act of malfeasance or
wrongdoing directly or indirectly affecting CNB or any parent or subsidiary of
CNB.
3. EXERCISE OF OPTION
(a) At any time during the period of this Option commencing with the
first anniversary of the Date of Grant, the Grantee may purchase up to 33 1/3%
of the shares covered by this Option and may purchase up to an additional 33
1/3% on each of the second and third anniversaries from the Date of Grant so
that this Option will be fully vested on the third anniversary of the Date of
Grant.
(b) The Grantee may exercise the Option with respect to all or any part
of the number of Option Shares to the extent then exercisable hereunder, by
giving the Secretary of CNB written notice of intent to exercise. The notice of
exercise shall specify the number of Option Shares as to which the Option is to
be exercised and the date of exercise thereof.
(c) Upon a termination of the Grantee's employment for any reason other
than as set forth in Section 2(ii) of this Agreement, the Option may be
exercised during the following periods, but only to the extent that the Option
was outstanding and exercisable on any such date of termination: (i) the
one-year period following the date of the Grantee's death, in the case of the
Grantee's death during his employment by the Employer, or the one-year period
following the termination of employment due to permanent disability (as
determined by the Plan) and (ii) the three-month period following the date of
such termination in the case of termination of his employment for any reason
other than the death or permanent disability of the Grantee or pursuant to
Section 2(ii) of this Agreement. A transfer of the Grantee's employment between
CNB and any subsidiary of CNB, or between any subsidiaries of CNB, shall not be
deemed to be a termination of the Grantee's employment.
(d) Full payment (in U.S. dollars) by the Grantee of the option price
for the Option Shares purchased shall be made (i) in cash (ii) by delivery of
mature Shares having a Fair Market Value, determined as of the date of exercise,
equal to the aggregate option price payable by reason of such exercise, on or
before the exercise date specified in the notice of exercise.
(e) On the exercise date specified in the Grantee's notice or as soon
thereafter as is practicable, CNB shall cause to be delivered to the Grantee a
certificate or certificates for the Option Shares then being purchased (out of
unissued Stock or reacquired Stock, as CNB may elect) upon full payment for such
Option Shares. The obligations of CNB to deliver the Stock shall, however, be
subject to the condition that if at any time the Committee shall determine in
its discretion that the listing, registration or qualification of the Option
Shares upon any securities exchange or under any state or federal law, or the
consent or approval of any governmental regulatory body, is necessary or
desirable as a condition of, or in connection with, the Option or the issuance
or purchase of the Stock thereunder, the Option may not be exercised in whole or
in part unless such listing, registration, qualification, consent or approval
shall have been effected or obtained free of any conditions not acceptable to
the Committee.
(f) If the Grantee fails to pay for any of the Option Shares specified
in such notice or fails to accept delivery thereof, the Grantee's right to
purchase such Option Shares may be terminated by CNB. The date specified in the
Grantee's notice as the date of exercise shall be deemed the date of exercise of
the Option, provided that payment in full for the Option Shares to be purchased
upon such exercise shall have been received by such date.
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4. LIMITATION ON EXERCISE AND FORFEITURE
Notwithstanding any other provision in this Agreement, the Option must
be exercised within thirty (30) days after CNB has notified the Grantee that
CNB's primary federal regulator has determined that CNB's capital has fallen
below such regulator's minimum requirements or it shall terminate and be of no
further effect.
5. ADJUSTMENT OF AND CHANGES IN STOCK OF CNB
(a) In the event of a reorganization, recapitalization, change of
shares, stock split, spin-off, stock dividend, reclassification, subdivision or
combination of shares, rights offering or any other change in the corporate
structure or shares of capital stock of CNB, the Committee shall make such
adjustment as appropriate in the number and kind of shares of Stock subject to
the Option or in the option price; provided, however, that no such adjustment
shall give the Grantee any additional benefits under the Option.
(b) In the event that CNB shall be a party to any reorganization
involving a merger, consolidation or acquisition of the Stock or the assets of
CNB, the Committee, in its sole discretion, may:
(i) declare that the Option granted hereunder shall become
exercisable immediately notwithstanding the provisions of the Agreement
regarding exercisability and that the Option shall terminate thirty
(30) days after the Committee gives written notice to Grantee of his
immediate right to exercise the Option and of the Committee's decision
to terminate the Option if not exercised within such thirty-day period;
or
(ii) notify the Grantee that the Option granted hereunder
shall apply with appropriate adjustments as determined by the Committee
to the securities of the resulting corporation to which holders of the
number of shares of Stock subject to the Option would have been
entitled.
(c) The adoption of a plan of dissolution or liquidation by the Board
of Directors and the shareholders of CNB shall cause the Option to terminate to
the extent not exercised prior to the adoption of the plan of dissolution or
liquidation by the shareholders of CNB; provided, however, that the Committee,
in its discretion, may declare that the Option shall become exercisable
immediately notwithstanding the provisions of this Agreement regarding
exercisability; and provided further that in the event of the adoption of a plan
of dissolution or liquidation in connection with a reorganization as described
in the first sentence of subparagraph (b), the Option shall be governed by and
be subject to the provisions of such sentence.
(d) If any rights or warrants to subscribe for additional shares are
given pro rata to holders of outstanding shares of the Stock, the Grantee shall
be entitled to the same rights or warrants on the same basis as holders of the
outstanding shares with respect to such portion of the Grantee's Option that may
be exercised on or prior to the date of the expiration of such rights or
warrants.
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6. FAIR MARKET VALUE
For purposes of the Plan, the "fair market value" of the shares of
Stock shall be the mean between the high "bid" and the low "asked" prices of the
Stock in the over-the-counter market on the day on which such value is to be
determined or, if no shares were traded on such day, on the first day
immediately preceding such day on which shares were traded. If the Stock is not
regularly traded in the over-the-counter market but is registered on a national
securities exchange, the "fair market value" of the shares of Stock shall mean
the closing price of the Stock on such national securities exchange on the day
on which such value is to be determined or, if no shares were traded on such
day, on the first day immediately preceding such day on which shares were
traded. If the Stock is not regularly traded in the over-the-counter market or
registered on a national securities exchange the Committee shall determine the
fair market value of the Stock in good faith in accordance with Code section
422(c)(1) and accompanying Treasury Regulations.
7. NO RIGHTS OF SHAREHOLDERS
Neither the Grantee nor any personal representative shall be, or shall
have any of the rights and privileges of, a shareholder of CNB with respect to
any shares of Stock purchasable or issuable upon the exercise of the Option, in
whole or in part, prior to becoming the holder of record of such shares.
8. NON-TRANSFERABILITY OF OPTION
During the Grantee's lifetime, the Option hereunder shall be
exercisable only by the Grantee or a legal representative of the Grantee, and
the Option shall not be transferable except, in case of the death of the
Grantee, by will or the laws of descent and distribution, nor shall the Option
be subject to attachment, execution or other similar process. In the event of
(a) any attempt by the Grantee to alienate, assign, pledge, hypothecate or
otherwise dispose of the Option, except as provided for herein, or (b) the levy
of any attachment, execution or similar process by any third party upon the
rights or interest hereby conferred, CNB may terminate the Option by notice to
the Grantee, and it shall thereupon become null and void.
9. EMPLOYMENT NOT AFFECTED
Neither the granting of the Option nor its exercise shall be construed
as granting to the Grantee any right with respect to continuance of employment
by the Employer. Except as may otherwise be limited by a written agreement
between the Employer and the Grantee, the right of the Employer to terminate at
will the Grantee's employment with it at any time (whether by dismissal,
discharge, retirement or otherwise) is specifically reserved by CNB, as the
Employer or on behalf of the Employer (whichever the case may be), and
acknowledged by the Grantee.
10. AMENDMENT OF OPTION
This Agreement and the terms of the Option may be amended by the Board
or the Committee at any time (i) if the Board or the Committee determines, in
its sole discretion, that amendment is necessary or advisable due to any
addition to or change in the Code or in the regulations issued thereunder, or
any federal or state securities law or other law or regulation,
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which change occurs after the Date of Grant and by its terms applies to the
Option; or (ii) other than in the circumstances described in clause (i), with
the consent of CNB and the Grantee.
11. SECURITIES LAWS
This Option may not be exercised if the issuance of shares of Stock of
CNB upon such exercise would constitute a violation of any applicable Federal or
State securities or other law or valid regulation. The Grantee, as a condition
to his exercise of this Option, shall represent to CNB that the shares of Stock
of CNB that he acquires under this Option are being acquired by him for
investment and not with a present view to distribution or resale, unless counsel
for CNB is then of the opinion that such a representation is not required under
the Securities Act of 1933, as amended (the "Securities Act"), or any other
applicable law, regulation or rule of any governmental agency.
The Grantee represents and warrants that he will be acquiring the
Option Shares for investment purposes and not with a view to distribution. The
Grantee further represents and warrants that he is aware that the Option Shares
have not been registered under the Securities Act or under the provisions of
Georgia law and that the Option Shares may not be sold, transferred or otherwise
assigned without registration or an exemption therefrom. Grantee acknowledges
being informed by CNB that the Option Shares are restricted securities and that
each certificate for shares of Stock issued upon exercise of the Option shall be
stamped or otherwise imprinted with a restrictive legend in form and context
deemed necessary by CNB. The undersigned further acknowledges that he is a
shareholder of CNB and is aware of the business and operations of CNB.
12. NOTICE
Any notices or other communications to any party pursuant to or
relating to this Agreement and the transactions provided for herein shall be
deemed to be given, delivered or received when delivered personally or three
days after being deposited in the United States Mail, registered or certified,
and with proper postage and registration and certification fees prepaid,
addressed to the parties for whom intended at the addresses indicated for each
party as set forth below:
CNB: CNB Holdings, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇.▇. ▇▇▇▇▇▇, ▇▇., President
and Chief
Executive Officer
with a copy to: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esquire
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Grantee: At the latest address listed for the
Grantee in the Company's records.
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13. INCORPORATION OF PLAN BY REFERENCE
The Option is granted pursuant to the terms of the Plan, the terms of
which are incorporated herein by reference, and the Option shall in all respects
be interpreted in accordance with the Plan. The Committee shall interpret and
construe the Plan and this instrument, and its 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.
14. GOVERNING LAW
The validity, construction, interpretation and effect of this Agreement
shall exclusively be governed by and determined in accordance with the law of
the State of Georgia.
15. COUNTERPARTS
The Agreement may be executed with counterpart signature pages, all of
which together shall constitute one and the same Agreement.
16. SUCCESSORS AND ASSIGNS
This Agreement shall insure to the benefit of and be enforceable by and
binding upon the permitted successors and assigns of each party, including the
personal or legal representatives, executors, administrators, heirs and legatees
of the Grantee.
IN WITNESS WHEREOF, CNB has caused its duly authorized officers to
execute and attest this Agreement, and to apply the corporate seal hereto, and
the Grantee has placed his or her signature hereon, effective as of the date
written above.
ATTEST: CNB HOLDINGS, INC.
By: _______________________________ By: _____________________________
Its: _____________________________ Its: _______________________
[CORPORATE SEAL]
GRANTEE
----------------------------------- --------------------------------
Witness
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