Exhibit 10.6
INCENTIVE STOCK OPTION
AWARD
PURSUANT TO THE NEW SOUTHERN
BANK
2001 STOCK INCENTIVE
PLAN
THIS AWARD is
made as of the Grant Date by NEW SOUTHERN BANK (the
“Bank”) to
(the
“Optionee”).
Upon and
subject to the Terms and Conditions attached hereto and
incorporated herein by reference, the Bank hereby awards as of the
Grant Date to Optionee an incentive stock option (the
“Option”), as
described below, to purchase the Option Shares.
A.
Grant
Date: .
B.
Type of
Option: Incentive Stock Option.
C.
Plan under
which granted: New Southern Bank 2001 Stock Incentive
Plan.
D.
Option Shares:
All or any part
of
shares of the
Bank’s $5.00 par value common stock (the
“Common Stock”), subject to adjustment as provided in
the attached Terms and
Conditions.
E.
Exercise
Price: $
per share,
subject to adjustment as provided in the attached
Terms and Conditions. The Exercise Price is,
in the judgment of the Committee, not less than 100% of the Fair Market Value of a
share of Common Stock on the Grant Date or, in the case of an Over 10% Owner, not less
than 110% of the Fair Market Value of a share of Common Stock on the Grant
Date.
F.
Option
Period: The Option may be exercised only during the
Option Period which commences on the Grant
Date and ends, generally, on the earliest of (a) the tenth
(10th) anniversary of the Grant
Date (unless the Optionee is an Over 10% Owner, in which
case the
fifth (5th) anniversary of the Grant Date); (b) three (3) months
following the date the Optionee ceases to be an
employee of the Bank (including any Parent or Subsidiary)
except as
provided under clause (c); or (c) one (1) year following the date
the Optionee ceases to be an employee
of the Bank (including any Parent or Subsidiary) due to
death or Disability; provided
that the Option may be exercised as to no more than the
vested Option Shares, determined
pursuant to the Vesting Schedule. Note that other
limitations to exercising the Option,
as described in the attached Terms and Conditions, may
apply.
G.
Vesting
Schedule: The Option Shares shall become vested in accordance with
Schedule 1 hereto.
IN WITNESS
WHEREOF, the Bank has executed and sealed this Award as of the
Grant Date set forth above.
|
|
NEW SOUTHERN BANK
|
|
|
|
|
|
By:
|
|
|
|
|
|
|
|
Title:
|
|
|
|
|
|
|
TERMS AND
CONDITIONS
TO
THE
INCENTIVE STOCK OPTION
AWARD
PURSUANT TO
THE NEW SOUTHERN BANK
2001 STOCK INCENTIVE
PLAN
1.
Exercise of
Option . Subject to the
provisions provided herein or in the Award made pursuant to the New
Southern Bank 2001 Stock Incentive Plan:
(a)
the Option may
be exercised with respect to all or any portion of the
vested Option Shares at any time
during the Option Period by the delivery to the Bank, at its
principal place
of business, of a written notice of exercise in substantially the
form attached hereto as Exhibit 1, which shall be actually
delivered to the Bank no earlier than thirty (30)
days and no
later than ten (10) days prior to the date upon which Optionee
desires to exercise all or any portion of the Option;
and
(b)
payment to the
Bank of the Exercise Price multiplied by the number of
Option Shares being purchased (the
“Purchase Price”) as provided in Section 3.
(c)
Notwithstanding any other
provision of this Agreement, in the event that the
capital of the
Bank falls below the minimum requirements determined by the primary
federal regulator of the Bank (the
“Regulator”), the Regulator may direct the Bank to
require the Optionee to exercise, or
otherwise forfeit, the Option in whole or in part. If
the Regulator gives such direction, the
Bank will notify the Optionee within forty-five (45) days from
the date the Regulator
notifies the Bank in writing that the Optionee must exercise, or
otherwise forfeit, the Option in
whole or in part. If the Optionee does not exercise the
Option in accordance with the
Bank’s direction within twenty-one (21) days of the
Bank’s notification to the Optionee, the
Committee may provide for the cancellation of the
Option.
Upon acceptance
of such notice and receipt of payment in full of the Purchase Price
and, if applicable any withholding
taxes, the Bank shall cause to be issued a certificate representing
the Option Shares
purchased.
2.
Withholding
.
To the extent the Option is deemed to be a Non-Qualified
Stock Option in accordance with
Section 18 hereof, the Optionee must satisfy his federal, state
and local, if any,
withholding taxes imposed by reason of the exercise of the Option
either by paying to the Bank the
full amount of the withholding obligation (i) in cash; (ii) by
tendering shares of Common Stock which have been owned by the
Optionee for at least six (6) months prior to the
date of exercise having a Fair
Market Value (as defined in the Plan) equal to the
withholding obligation; (iii) by electing, irrevocably and
in writing in substantially the form of Exhibit 2 (the “Withholding Election”), to have
the smallest number of whole shares of Common Stock
withheld by the Bank which, when
multiplied by the Fair Market Value (as defined in the Plan)
of the Common Stock as of the date the Option is exercised, is
sufficient to satisfy the amount of minimum required withholding tax obligations;
or (iv) by any combination of the above. Optionee may make a Withholding Election
only if the following conditions are met:
2
(a)
the Withholding
Election is made on or prior to the date on which the
amount of tax
required to be withheld is determined (the “Tax Date”)
by executing and delivering to the Bank a properly completed Notice
of Withholding in substantially the form attached hereto as Exhibit 2;
and
(b)
any
Withholding Election will be irrevocable; however, the Committee
(as defined in the Plan) may,
in its sole discretion, disapprove and give no effect to the
Withholding
Election.
3.
Purchase
Price . Payment of the
Purchase Price for all Option Shares purchased pursuant to the exercise of an Option shall be
made in cash or certified check or, if and when the Common Stock becomes traded by brokers,
whether on a national securities exchange or otherwise,
by receipt of the Purchase Price
in cash from a broker, dealer or other “creditor” as
defined by Regulation T
issued by the Board of Governors of the Federal Reserve System
following delivery by the
Optionee to the Committee of instructions in a form acceptable to
the Committee regarding delivery to such broker, dealer or other
creditor of that number of Option Shares with respect to
which the Option is
exercised.
4.
Rights as
Shareholder . Until
the stock certificates reflecting the Option Shares
accruing to
the Optionee upon exercise of the Option are issued to the
Optionee, the Optionee shall have no rights as a
shareholder with respect to such Option Shares. The
Bank shall make no adjustment for any
dividends or distributions or other rights on or with respect to
Option Shares for which the record date is
prior to the issuance of that stock certificate, except as the Plan
or the attached Award otherwise
provides.
5.
Restriction
on Transfer of Option and of Option Shares . The
Option evidenced hereby is nontransferable other than by will or
the laws of descent and distribution and shall be
exercisable
during the lifetime of the Optionee only by the Optionee (or in the
event of his Disability, by his personal
representative) and after his death, only by his legatee or the
executor of his estate.
6.
Changes in
Capitalization .
(a)
If the number
of shares of Common Stock shall be increased or decreased by
reason of a
subdivision or combination of shares of Common Stock, the payment
of a stock dividend in shares of Common
Stock or any other increase or decrease in the number of
shares of
Common Stock outstanding effected without receipt of consideration
by the Bank, an appropriate adjustment
shall be made by the Committee, in a manner determined in its
sole discretion, in the number
and kind of Option Shares and in the Exercise Price.
(b)
If the Bank
shall be the surviving corporation in any merger,
consolidation, reorganization,
extraordinary dividend, spin-off, or other change in corporate
structure of the Bank or its Common Stock,
the Optionee shall be entitled to purchase the number and class
of securities to which a
holder of the number of shares of Common Stock subject to the
Option at the time of the
transaction would have been entitled to receive as a result of
such transaction, and a
corresponding adjustment, where appropriate, shall be made in the
Exercise Price. In the event
of a Change in Control or other corporate transaction pursuant to
which the Bank is not the
surviving entity, the Committee may provide for the assumption of
the Option by the surviving
entity or the substitution of a new option, adjusted in a
manner
3
similar to
that contemplated by the immediately preceding sentence; however,
if the surviving entity does not agree to the assumption or
substitution of the Option, the Committee may elect
to terminate
the Option Period as of the effective date of the Change in Control
in consideration of the
payment to the Optionee of the sum of the difference between the
then aggregate Fair Market
Value of the Common Stock and the aggregate Exercise Price for
each vested Option Share which
has not been exercised as of the effective date of the Change
in Control. A dissolution or
liquidation of the Bank shall cause the Option to terminate as to
any portion thereof not
exercised as of the effective date of the dissolution or
liquidation.
(c)
The existence of the Plan and the
Option granted pursuant to this Agreement shall not affect in any way the right or
power of the Bank to make or authorize any adjustment, reclassification, reorganization
or other change in its capital or business structure,
any merger or consolidation of
the Bank, any issue of debt or equity securities having
preferences or priorities as
to the Common Stock or the rights thereof, the dissolution or
liquidation of the Bank, any sale or transfer of all or any part of
its business or assets, or any other corporate act or proceeding. Any
adjustment pursuant to this Section may provide, in the
Committee’s discretion,
for the elimination without payment therefor of any fractional
shares that might
otherwise become subject to any Option.
7.
Special Limitation on Exercise. No purported
exercise of the Option shall be effective without the approval of
the Committee, which may be withheld to the extent that the
exercise, either in
