Exhibit 10.8
1 ST F INANCIAL S ERVICES C ORPORATION
N ON -Q UALIFIED S TOCK O PTION A GREEMENT
1st Financial Services Corporation,
a North Carolina corporation, hereby grants to Roger A. Mobley (the
“Optionee”) an option (the “Option”) to
purchase the total number of shares of 1st Financial Services
Corporation common stock, par value $5.00 per share, set forth in
the attached Notice of Grant effective January 26, 2009 (the
“Notice of Grant”), at the price specified in the
Notice of Grant, subject in all respects to the terms, definitions,
and provisions of the 2008 Omnibus Equity Plan (the
“Plan”) adopted by 1st Financial Services Corporation,
which is incorporated herein by reference. Unless otherwise defined
herein, the terms defined in the Plan shall have the same defined
meanings herein.
1 . Nature of the Option . This Option does
not qualify as an incentive stock option under the Internal Revenue
Code of 1986.
2 . Exercise Price . The exercise price for
each share of common stock is set forth in the Notice of Grant and
is not less than the fair market value per share of the common
stock on the date of grant.
3 . Exercise of Option . This Option shall
be exercisable during its term in accordance with the exercise
schedule set out in the Notice of Grant and in accordance with the
terms of the Plan as follows:
(a) Right to Exercise
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1)
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this Option may
not be exercised for a fraction of a share,
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2)
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in the case of
the Optionee’s death or other termination of employment, the
exercisability of the Option is governed by sections 7 and 8 below,
subject to the limitations contained in subsection 3(a)(3),
and
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3)
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this Option may
not be exercised after expiration of its term, as provided by
section 10 below.
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(b) This Option shall be exercisable
by executing the Stock Option Notice of Exercise in the form
attached hereto as Exhibit A (the “Exercise Notice”),
which shall state the Optionee’s election to exercise the
Option, the number of shares for which the Option is being
exercised, and such other representations and agreements concerning
the holder’s investment intent as may be required by 1st
Financial Services Corporation. The written notice shall be signed
by the Optionee and shall be delivered by certified mail to the
Plan Committee or the Plan Committee’s designee. The Exercise
Notice shall be accompanied by payment of the exercise price. The
Option shall be deemed to be exercised upon receipt by 1st
Financial Services Corporation of such Exercise Notice accompanied
by payment of the exercise price in full.
(c) No shares shall be issued for
the exercise of an Option unless the issuance and exercise comply
with all relevant provisions of law and the requirements of any
stock exchange upon which 1st Financial Services Corporation common
stock may then be listed. Assuming compliance, for income tax
purposes shares shall be considered transferred to the Optionee on
the date the Option is exercised.
4 . Optionee’s Representations . If
this Option and the shares acquirable by exercise of this Option
have not been registered under the Securities Act of 1933 when this
Option is exercised, the Optionee shall, if required by 1st
Financial Services Corporation, concurrently with the exercise of
all or any portion of this Option deliver to 1st Financial Services
Corporation an investment representation statement in the customary
form, a copy of which is available for Optionee’s review from
1st Financial Services Corporation upon request. Optionee
acknowledges and agrees that a certificate or certificates
representing shares acquired by exercise of an Option may bear a
restrictive legend or legends noting the restrictions on transfer
arising under applicable securities laws and the Plan.
5 . Method of Payment . Payment of the
exercise price shall be by any of the following, or a combination
thereof, at the election of the Plan Committee, in its sole
discretion:
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(a)
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cash or a cash
equivalent,
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(b)
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by surrender or
constructive surrender of other unrestricted shares of 1st
Financial Services Corporation common stock owned for at least six
months before the exercise date,
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(c)
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a combination
of cash and shares of 1st Financial Services Corporation common
stock, or
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(d)
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cashless
exercise, unless prohibited by the Plan Committee.
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6 . Restrictions on Exercise . This Option
may not be exercised before the Plan is approved by 1st Financial
Services Corporation’s stockholders, or if the issuance of
shares upon such exercise or the method of payment of consideration
for such shares
would constitute a violation of any applicable
federal or state securities or other law or regulation, including
any rule under Part 207 of Title 12 of the Code of Federal
Regulations (“Regulation G”) as promulgated by the
Federal Reserve Board. As a condition to the exercise of this
Option, 1st Financial Services Corporation may require the Optionee
to make any representation and warranty to 1st Financial Services
Corporation as 1st Financial Services Corporation in its sole
discretion considers necessary or appropriate under applicable
law.
7 . Termination of Status as an Employee for
Cause or Other Termination of Employment . If the Optionee is
terminated for cause or if in 1st Financial Services
Corporation’s judgment a basis for termination for cause
exists, all rights under any unexercised options shall expire
immediately and the unexercised options shall be immediately
forfeited, regardless of whether the options are exercisable and
regardless of whether Optionee’s employment with 1st
Financial Services Corporation or a Related Entity actually
terminates. “Termination for cause” includes one or
more of the following acts –
(a) an act of fraud, intentional
misrepresentation, embezzlement, misappropriation, or conversion by
the Optionee of the assets or business opportunities of 1st
Financial Services Corporation or a Related Entity,
(b) conviction of the Optionee of or
plea by the Optionee of guilty or no contest to a felony or a
misdemeanor,
(c) violation by the Optionee of the
written policies or procedures of 1st Financial Services
Corporation or the Related Entity with which the Optionee is
employed, including but not limited to violation of 1st Financial
Services Corporation’s or Related Entity’s code of
conduct or code of ethics,
(d) disclosure to unauthorized
persons of any confidential information not in the public domain
relating to 1st Financial Services Corporation’s or Related
Entity’s business, including all processes, inventions, trade
secrets, computer programs, technical data, drawings or designs,
information concerning pricing and pricing policies, marketing
techniques, plans and forecasts, new product information,
information concerning methods and manner of operations, and
information relating to the identity and location of all past,
present, and prospective customers and suppliers,
(e) intentional breach of any
contract with or violation of any legal obligation owed to 1st
Financial Services Corporation or a Related Entity,
(f) dishonesty relating to the
duties owed by the Optionee to 1st Financial Services Corporation
or a Related Entity,
(g) the Optionee’s willful and
continued refusal to substantially perform assigned duties, other
than refusal resulting from sickness or illness or while suffering
from an incapacity due to physical or mental illness, including a
condition that does or may constitute a disability,
(h) the Optionee’s willful
engagement in gross misconduct materially