EXHIBIT 10.2
UNITED COMMUNITY BANKS, INC.
2000 KEY EMPLOYEE STOCK OPTION PLAN
STOCK OPTION AGREEMENT
(NONQUALIFIED STOCK OPTION - EXECUTIVE OFFICER)
OPTIONEE: __________________________________
NUMBER OF NQSO SHARES: ______ Shares
NQSO OPTION EXERCISE PRICE: $______ per Share
DATE OF NQSO GRANT: __________________________________
NQSO VESTING SCHEDULE: Percentage Date
of Shares (from Grant Date)
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THIS OPTION AGREEMENT (the "Agreement") is entered into as of the
___ day of _______, ____, by and between UNITED COMMUNITY BANKS, INC., a Georgia
corporation (the "Company"), and the individual designated above (the
"Optionee").
W I T N E S S E T H:
WHEREAS, the United Community Banks, Inc. 2000 Key Employee Stock
Option Plan (the "Plan") was adopted by the Company, effective December 8, 1999;
WHEREAS, the Optionee performs valuable services for the Company, a
subsidiary or one of their affiliates; and
WHEREAS, the Board of Directors of the Company or the Committee
responsible for the administration of the Plan has determined to grant the
Option to the Optionee as provided herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. GRANT OF OPTION.
1.1 Option. An option to purchase shares of the Company's Common Stock,
par value $1.00 per share (the "Shares"), is hereby granted to the Optionee (the
"Option").
1.2 Number of Shares. The number of Shares that the Optionee can purchase
upon exercise of the Option is set forth above.
1.3 Option Exercise Price. The price the Optionee must pay to exercise the
Option (the "Option Exercise Price") is set forth above.
1.4 Date of Grant. The date that the Option is granted (the "Date of
Grant") is set forth above.
1.5 Type of Option. The Option is intended to be a Nonqualified Stock
Option. It is not intended to qualify as an Incentive Stock Option within the
meaning of Section 422 of the Internal Revenue Code of 1986, as amended from
time to time, or any successor provision thereto.
1.6 Construction. This Agreement shall be construed in accordance and
consistent with, and subject to, the provisions of the Plan (the provisions of
which are incorporated herein by reference) and, except as otherwise expressly
set forth herein, the capitalized terms used in this Agreement shall have the
same definitions as set forth in the Plan.
1.7 Condition. The Option is conditioned on the Optionee's execution of
this Agreement. If this Agreement is not executed by the Optionee, it may be
canceled by the Board of Directors.
2. DURATION.
The Option shall be exercisable to the extent and in the manner provided
herein for a period of ten (10) years from the Grant Date (the "Exercise Term");
provided, however, that the Option may be earlier terminated as provided in
Section 1.7 and Section 5 hereof.
3. VESTING.
The Option shall vest, and may be exercised, with respect to the Shares
subject thereto, on or after the dates set in the attached "Optionee Statement,"
provided, however, the Option may be earlier terminated as provided in Section
1.7 and Section 5 hereof or in the Plan and subject to any limitations on
exercise contained in Section 7 hereof.
4. MANNER OF EXERCISE AND PAYMENT.
4.1 Delivery. To exercise the Option, the Optionee must deliver a
completed copy of the Option Exercise Form, attached hereto as Exhibit A and
incorporated herein by reference, to the address indicated on such Form or such
other address designated by the Company from time to time. The Option may be
exercised in whole or in part with respect to the vested Shares; provided,
however, the Committee may establish a minimum number of Shares (e.g., 100) for
which an Option may be exercised at a particular time. Within thirty (30) days
of delivery of the Option Exercise Form, the Company shall deliver certificates
evidencing the Shares to the Optionee, duly endorsed for transfer to the
Optionee, free and clear of all liens, security interests, pledges or other
claims or charges, except those provided in this Agreement or the Plan, or any
other agreement affecting the Shares. Contemporaneously with the delivery of the
Option Exercise Form, Optionee shall tender the Option Exercise Price to the
Company, by cash, check, wire transfer or such other method of payment (e.g.,
delivery of, or attestation to, Shares already owned) as may be acceptable to
the Committee pursuant to the Plan. Notwithstanding the foregoing, if Optionee
is a non-exempt employee for purposes of the Fair Labor Standards Act of 1938
("FLSA"), Optionee may not exercise any Option prior to the date that is six (6)
months after the
Date of Grant unless Optionee's employment has terminated due to death,
Disability, or Retirement after the Date of Grant.
4.2 No Rights as Shareholder. The Optionee shall not be deemed to be the
holder of, or to have any of the rights of a holder with respect to any Shares
subject to the Option until (i) the Option shall have been exercised pursuant to
the terms of this Agreement and the Optionee shall have paid the full purchase
price for the number of Shares in respect of which the Option was exercised,
(ii) the Company shall have issued and delivered the Shares to the Optionee, and
(iii) the Optionee's name shall have been entered as a shareholder of record on
the books of the Company, whereupon the Optionee shall have full voting and
other ownership rights with respect to such Shares (subject to any restrictions
on transferability of the Shares).
5. TERMINATION OF EMPLOYMENT.
5.1 Termination for Cause. If the Employee's employment is terminated by
the Company for Cause (as defined in the Plan), all outstanding unvested Options
granted to the Employee shall expire immediately, and the Employee's right to
exercise any then outstanding vested Options shall terminate immediately upon
the date that the Committee determines is the Employee's date of termination of
employment.
5.2 Termination Without Cause or For Good Reason.
(1) If the Employee's employment with the Company and any Subsidiary
is terminated involuntarily by the Company without Cause (as defined in the
Plan) or is terminated by the Employee for Good Reason (as defined in subsection
(2) below), the Employee's Options shall continue to vest in accordance with the
original vesting schedule set forth in this Agreement (just as if Employee had
remained employed) and shall remain exercisable at any time prior to the
expiration of the term of the Option. In the event of Employee's death after a
termination covered by this subsection 5.2, the Options shall continue to vest
and be exercisable in accordance with this subsection 5.2 as if Employee had
lived and the Options shall be exercisable by the persons described in the Plan.
(2) For purposes of this Option, a Good Reason for Termination by
Employee of Employee's employment shall mean the occurrence (without the
Employee's express written consent) of any one of the following acts by the
Company, or failures by the Company to act, unless, in the case of any act or
failure to act described in paragraphs (i), (iii), or (iv) below, such act or
failure to act is corrected prior to the Employee's date of termination:
(i) a material reduction in Employee's responsibilities at the
Company; or
(ii) the required relocation of Employee's employment to a
location outside of the market area of the Company; or
(iii) a material reduction in the levels of coverage of
Employee under the Company's director and officer liability insurance
policy or indemnification commitments; or
(iv) a substantial reduction in Employee's base salary, a
material reduction in his incentive compensation or the taking of any
action by the Company which would, directly or indirectly, materially
reduce any of the benefits provided to Employee under any of the Company's
pension, deferred compensation, life insurance, medical, health and
accident or disability plans in which Employee is participating.
Employee's right to terminate employment for Good Reason shall not
be affected by the Employee's incapacity due to physical or mental illness,
except for a Disability as defined in the Plan. Employee's continued employment
shall not constitute consent to, or a waiver of rights with respect to, any act
or failure to act constituting Good Reason hereunder.
5.3 Termination of Employment Due to Retirement from the Company. If
the Employee's employment with the Company is terminated due to Retirement as
defined in the Plan, all outstanding unvested Options shall continue to vest in
accordance with the vesting schedule set forth in this Agreement (just as if
Employee had remained employed) and all Options (regardless of whether vested or
unvested as of the date of termination) shall remain exercisable at any time
prior to the expiration of the term of the Options.
5.4 Termination of Employment Due to Death. If the Employee's
employment is terminated by the Company as a result of death, all outstanding
unvested Options granted to the Optionee shall immediately vest, and thereafter
all vested Options shall remain exercisable at any time prior to their
expiration date or for one (1) year after the date of death, whichever period is
shorter.
5.5 Termination of Employment for Other Reasons. If the Employee's
employment is terminated by the Company as a result of Disability, or the
Employee voluntarily terminates (except for Good Reason or upon Retirement) his
or her employment, all outstanding unvested Options shall expire as of the date
of termination of employment, and any Options vested as of the date of
termination shall remain exercisable at any time prior to their expiration date
or for three (3) months (one year if termination is due to Disability) after the
date of termination of employment, whichever period is shorter.
5.6 Employment by Subsidiary. For purposes of this Option,
employment with the Company includes employment with any Subsidiary of the
Company. A change of employment between the Company and any Subsidiary or
between Subsidiaries is not a termination of employment under this Agreement.
6. NONTRANSFERABILITY.
The Option shall not be transferable other than by will or by the laws of
descent and distribution and during the lifetime of the Optionee, the Option
shall be exercisable only by the Optionee. Notwithstanding the foregoing, any
portion or all of the Option which is vested may be transferred, in whole or in
part, without consideration, to a Permitted Transferee. Appropriate evidence of
any such transfer to the Permitted Transferees shall be delivered to the Company
on such forms as the Committee or Company shall prescribe and shall comply with
and indicate the Optionee's (if during the lifetime of the Optionee) and the
Permitted Transferee's agreement to abide by the Company's then current stock
option transfer guidelines. If all or part of the Option is
transferred to a Permitted Transferee, the Permitted Transferee shall remain
subject to all terms and conditions applicable to such Option prior to the
transfer.
7. SECURITIES LAWS RESTRICTIONS.
The Option may not be exercised at any time unless, in the opinion of
counsel for the Company, the issuance and sale of the Shares issued upon such
exercise is exempt from registration under the Securities Act of 1933, as
amended, or any other applicable federal or state securities law, rule or
regulation, or the Shares have been duly registered under such laws. The Company
intends to register the Shares issuable upon the exercise of the Option;
however, until the Shares have been registered under all applicable laws, the
Optionee shall represent, warrant and agree, as a condition to the exercise of
the Option, that the Shares are being purchased for investment only and without
a view to any sale or distribution of such Shares and that such Shares shall not
be transferred or disposed of in any manner without registration under such
laws, unless it is the opinion of counsel for the Company that such a
disposition is exempt from such registration. The Optionee acknowledges that an
appropriate legend giving notice of the foregoing restrictions may appear
conspicuously on all certificates evidencing the Shares issued upon the exercise
of the Option.
8. NO RIGHT TO CONTINUED EMPLOYMENT.
Nothing in this Agreement or the Plan shall be interpreted or construed to
confer upon the Optionee any right with respect to continuance of employment by
the Company or any Subsidiary, nor shall this Agreement or the Plan interfere in
any way with the right of the Company or a Subsidiary to terminate the
Optionee's employment at any time.
9. ADJUSTMENTS.
In the event of a change in capitalization, such as a stock split, the
Committee shall make appropriate adjustments to the number and class of Shares
or other stock or securities subject to the Option and the purchase price for
such Shares or other stock or securities. The Committee's adjustment shall be
made in accordance with the provisions of Section 4.3 of the Plan and shall be
effective and final, binding and conclusive for all purposes of the Plan and
this Agreement.
10. WITHHOLDING OF TAXES.
The Company shall have the right to deduct from any distribution of cash
to the Optionee an amount equal to the federal, state, local income taxes and
other amounts as may be required by law to be withheld (the "Withholding Taxes")
with respect to the Option. If the Optionee is entitled to receive Shares upon
exercise of the Option, the Optionee shall pay the Withholding Taxes (if any) to
the Company in cash prior to the issuance of such Shares. In satisfaction of the
Withholding Taxes, the Optionee may make a written election (the "Tax
Election"), which may be accepted or rejected in the discretion of the
Committee, to have withheld a portion of the Shares issuable to him or her upon
exercise of the Option, having an aggregate Fair Market Value equal to the
withholding Taxes, provided that, if the Optionee may be subject to liability
under Section 16(b) of the Exchange Act, the election must comply with the
requirements applicable to Share transactions by such Optionee.
11. OPTIONEE BOUND BY THE PLAN.
The Optionee hereby acknowledges receipt of a copy of the Plan and agrees
to be bound by all the terms and provisions thereof.
12. MODIFICATION OF AGREEMENT.
Except as expressly otherwise provided herein, this Agreement may not be
modified, amended, suspended or terminated, and any terms or conditions may not
be waived, except by a written instrument executed by the parties hereto.
13. CANCELLATION AND RESCISSION OF AWARDS.
If, at any time during the period that any Award is or may yet become
exercisable in whole or in part, or at any time within six (6) months prior to,
or after, the termination of employment with the Company, a Participant engages
in any "Detrimental Activity" (as defined in the Plan), the Committee may,
notwithstanding any other provision in this Agreement to the contrary, cancel,
rescind, suspend, withhold or otherwise restrict or limit any unexpired, unpaid
or deferred Award as of the first date the Participant engages in the
Detrimental Activity, unless sooner terminated by operation of another term of
this Agreement or any other agreement. Without limiting the generality of the
foregoing, the Participant shall also pay to the Company any gain realized by
the Participant from exercising all or any portion of the Awards hereunder
during a period beginning six (6) months prior to the date on which the
Participant enters into such activity.
14. SEVERABILITY.
Should any provision of this Agreement be held by a court of competent
jurisdiction to be unenforceable or invalid for any reason, the remaining
provisions of this Agreement shall not be affected by such holding and shall
continue in full force in accordance with their terms.
15. GOVERNING LAW.
The validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the United States and the laws of the
State of Georgia without giving effect to the conflicts of laws principles
thereof.
16. SUCCESSORS IN INTEREST.
This Agreement shall be binding upon, and inure to the benefit of, the
Company and its successors and assigns, and upon any person acquiring, whether
by merger, consolidation, reorganization, purchase of stock or assets, or
otherwise, all or substantially all of the Company's assets and business. This
Agreement shall inure to the benefit of the Optionee's heirs and legal
representatives. All obligations imposed upon the Optionee and all rights
granted to the Company under this Agreement shall be final, binding and
conclusive upon the Optionee's heirs, executors, administrators and successors.
17. RESOLUTION OF DISPUTES.
Any dispute or disagreement which may arise under, or as a result of, or
in any way relate to, the interpretation, construction or application of this
Agreement shall be determined by the Committee. Any determination made hereunder
shall be final, binding and conclusive on the Optionee and the Company for all
purposes.
18. LEGAL CONSTRUCTION.
The legal construction and interpretation of this Agreement (including,
but not limited to, issues of gender, plural or singular, governing law and
severability) shall be governed by the provisions of Article 19 of the Plan.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
UNITED COMMUNITY BANKS, INC.
By:
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Name:
-----------------------------------
Title:
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By signing below, Optionee hereby accepts the Option subject to all its
terms and provisions and agrees to be bound by the terms and provisions of the
Plan. Optionee hereby agrees to accept as binding, conclusive and final all
decisions or interpretations of the Board of Directors of the Company, or the
Compensation Committee or other Committee responsible for the administration of
the Plan, upon any questions arising under the Plan. Optionee authorizes the
Company to withhold, in accordance with applicable law, from any compensation
payable to him or her, any taxes required to be withheld by federal, state,
local or foreign law as a result of the grant, existence or exercise of the
Option, or subsequent sale of the Shares.
OPTIONEE
Signature: _________________________________
Name: ______________________________________