Exhibit 10.1


 





 


TRINITY
CAPITAL CORPORATION 2005 STOCK INCENTIVE PLAN


 


NON-QUALIFIED STOCK OPTION AWARD
TERMS


 


The
Participant specified below has been granted this Option by TRINITY CAPITAL CORPORATION, a New Mexico corporation (the “Company”) under the terms of the TRINITY CAPITAL CORPORATION 2005 STOCK INCENTIVE PLAN (the “Plan”).  The Option shall be subject
to the following terms and conditions (the “Option
Terms”):


 


Section 1.                                          Terms of Award.  The following words and
phrases relating to the grant of the Option shall have the following meanings:


 


(a)                                  The
“Participant” is
                                           .


 


(b)                                 The
“Grant Date” is
                                           .


 


(c)                                  The
number of “Covered Shares” shall
be [          ]
shares of Stock.


 


(d)                                 The
“Exercise Price” is
$                        per
share.


 


Except
where the context clearly implies to the contrary, any capitalized term in this
award shall have the meaning ascribed to that term under the Plan.


 


Section 2.                                          Non-Qualified Stock Option.  The Option is not intended
to constitute an “incentive stock option” as that term is used in Code section 422.


 


Section 3.                                          Date of Exercise.  Subject to the limitations
of the Option Terms, each installment of Covered Shares of the
Option (“Installment”) shall
become vested and exercisable on and after the “Vesting Date” for such Installment as described in the
following schedule (but only if the Participant’s Termination of Service
has not occurred before the Vesting Date):


 


Section 4.


 


	
  INSTALLMENT

  	
   

  	
  VESTING DATE

  APPLICABLE TO INSTALLMENT

  
	
  1/3 of Covered
  Shares

  	
   

  	
  1st Anniversary of the Grant Date

  
	
  1/3 of Covered
  Shares

  	
   

  	
  2nd Anniversary of the Grant Date

  
	
  1/3 of Covered
  Shares

  	
   

  	
  3rd Anniversary of the Grant Date

  



 





















 


(a)                                  Notwithstanding
the foregoing provisions of this Section 3,
the Option shall become fully exercisable upon a Change of Control that occurs
on or before the Participant’s Termination of Service.


 


(b)                                 The
Option may only be exercised on or after the Participant’s Termination of
Service only as to that portion of the Covered Shares for which it was
exercisable immediately prior to the Participant’s Termination of Service, or
became exercisable on the date of the Participant’s Termination of Service.


 


Section 5.                                          Expiration.  The Option shall not be exercisable after the Company’s
close of business on the last business day that occurs prior to the Expiration
Date.  The “Expiration Date” shall be the earliest to occur of:


 


(a)                                  the
ten-year anniversary of the Grant Date;


 


(b)                                 the
twelve (12) month anniversary of the Participant’s Termination of Service if
the termination of employment occurs due to death, Disability or Retirement;


 


(c)                                  the
90th day following Participant’s Termination of Service if the
termination of employment occurs for reasons other than death, Disability or
Retirement; or


 


(d)                                 the
day prior to Participant’s Termination of Service if due to Cause.


 


Section 6.                                          Method of Option Exercise.  Subject to the Option
Terms and the Plan, the Option may be exercised in whole or in part by filing a
written notice with the Secretary of the Company at its corporate headquarters
prior to the Company’s close of business on the last business day that occurs
prior to the Expiration Date.  Such notice shall specify the number of
shares of Stock which the Participant elects to purchase, and shall be
accompanied by payment of the Exercise Price for such shares of Stock indicated
by the Participant’s election. Payment may be by cash or, subject to
limitations imposed by applicable law, by such means as the Committee from time
to time may permit, including, (i) in Common Stock, either actually or by
attestation, valued at its Fair Market Value on the date of exercise, provided
it has been owned by the Participant for at least six (6) months prior to
exercise; (ii) in cash by an unaffiliated broker-dealer to whom the holder
of the Option has submitted an exercise notice consisting of a fully endorsed
Option; or (iii) by an combination of cash and/or clauses (i) and/or (ii) above,
as the Participant shall elect.  If
payment is made pursuant to clauses (i) or (ii) above, the
Participant’s election must be made on or prior to the date of exercise of the
Option and must be irrevocable.  The
Option shall not be exercisable if and to the extent the Company determines
that such exercise would violate applicable state or federal securities laws or
the rules and regulations of any securities exchange on which the Stock is
traded and shall not be exercisable during any blackout period established by
the Company from time to time.


 


Section 7.                                          Withholding.  The exercise of the Option is subject to withholding
of all applicable taxes.  At the election of the Participant, and subject
to such rules and limitations as may be established by the Committee from
time to time, such withholding obligations may be satisfied (i) through
cash payment by the Participant; or (ii) subject to the Committee’s
discretion, through the surrender of shares of Stock to which the Participant
is otherwise entitled under the Plan; provided,
however, that such shares under this clause (ii) may be used to
satisfy


 


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not more than the Company’s minimum statutory
withholding obligation (based on minimum statutory withholding rates for
federal and state tax purposes, including payroll taxes, that are applicable to
such supplemental taxable income).


 


Section 8.                                          Transferability.  The Option is not
transferable by the Participant other than by will or by the laws of descent
and distribution, and during the Participant’s life, may be exercised only by
the Participant.  It may not be assigned, transferred (except as
aforesaid), pledged or hypothecated by the Participant in any way whether by
operation of law or otherwise, and shall not be subject to execution,
attachment or similar process.  Any attempt at assignment, transfer,
pledge or hypothecation, or other disposition of this Option contrary to the
provisions hereof, and the levy of any attachment or similar process upon this
option, shall be null and void and without effect.  Notwithstanding the above, an Option may be
assigned, transferred, pledged or hypothecated: (i) by the Beneficiary
Designation, by will or the laws of descent and distribution; (ii) by
gifting for the benefit of descendents for estate planning purposes; or (iii) pursuant
to a qualified domestic relations order.


 


Section 9.                                          Participant’s
Representations and Shareholders Agreement. 
In the event the shares of Stock have not been registered under the
Securities Act at the time this Option is exercised, the Participant shall, if
required by the Company, concurrently with the exercise of all or any portion
of this Option (i) deliver to the Company his or her Investment
Representation Statement in the form attached hereto as Exhibit A; and (ii) agree
to execute and become a party to the Shareholders Agreement, as may be in
effect on such date.


 


Section 10.                                   Heirs and Successors.  The Option Terms 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,
purchase of assets or otherwise, all or substantially all of the Company’s
assets and business.  If any rights of
the Participant or benefits distributable to the Participant under this Agreement
have not been exercised or distributed, respectively, at the time of the
Participant’s death, such rights shall be exercisable by the Designated
Beneficiary, and such benefits shall be distributed to the Designated
Beneficiary, in accordance with the provisions of this Agreement and the
Plan.  The “Designated Beneficiary” shall be the beneficiary or
beneficiaries designated by the Participant in a writing filed with the
Committee in such form and at such time as the Committee shall require.  If a deceased Participant fails to designate
a beneficiary, or if the Designated Beneficiary does not survive the
Participant, any rights that would have been exercisable by the Participant and
any benefits distributable to the Participant shall be exercised by or distributed
to the legal representative of the estate of the Participant.  If a deceased Participant designates a
beneficiary and the Designated Beneficiary survives the Participant but dies
before the Designated Beneficiary’s exercise of all rights under this Agreement
or before the complete distribution of benefits to the Designated Beneficiary
under this Agreement, then any rights that would have been exercisable by the
Designated Beneficiary shall be exercised by the legal representative of the
estate of the Designated Beneficiary, and any benefits distributable to the
Designated Beneficiary shall be distributed to the legal representative of the
estate of the Designated Beneficiary.


 


Section 11.                                   Administration.  The authority to manage
and control the operation and administration of the Option Terms and the Plan
shall be vested in the Committee, and the Committee shall have all powers with
respect to the Option Terms as it has with respect to the


 


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Plan. Any interpretation of the Option Terms or the
Plan by the Committee and any decision made by it with respect to the Option
Terms or the Plan are final and binding on all persons.


 


Section 12.                                   Plan Governs.  Notwithstanding
anything in the Option Terms to the contrary, the Option Terms shall be subject
to the terms of the Plan, a copy of which may be obtained by the Participant
from the office of the Secretary of the Company; and the Option Terms are
subject to all interpretations, amendments, rules and regulations
promulgated by the Committee from time to time pursuant to the Plan.


 


Section 13.                                   Not An Employment Contract.  The
Option will not confer on the Participant any right with respect to continuance
of employment or other service with the Company or any Related Company, nor
will it interfere in any way with any right the Company or any Related Company
would otherwise have to terminate or modify the terms of such Participant’s
employment or other service at any time.


 


Section 14.                                   No Rights As Shareholder.  The Participant shall not
have any rights of a shareholder with respect to the Shares subject to the
Option, until a stock certificate has been duly issued following exercise of
the Option as provided herein.


 


Section 15.                                   Amendment.  The Option Terms may be amended in accordance with the
provisions of the Plan, and may otherwise be amended by written agreement of
the Participant and the Company without the consent of any other person.


 


Section 16.                                   Section 409A
Amendment.  The Committee reserves the right (including
the right to delegate such right) to unilaterally amend this Agreement without
the consent of the Participant to maintain compliance with Code Section 409A.  Participant’s acceptance of this Award
constitutes acknowledgement and consent to such rights of the Committee.


 


IN WITNESS WHEREOF, the Company has caused this Agreement to be executed on its behalf by a
duly authorized officer and Participant has executed this Agreement.


 


	
  PARTICIPANT

  	
   

  	
  TRINITY
  CAPITAL CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
  Signature

  	
   

  	
  Its:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Print Name

  	
   

  	
   

  



 


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EXHIBIT A

INVESTMENT REPRESENTATION STATEMENT


 


[This form is to be completed at the time option is exercised, 

unless stock is publicly traded at that time.]


 


Effective as of                                 
[insert date of option exercise] (the “Effective
Date”), the undersigned (“Participant”) has elected to purchase                    
shares of the Stock (the “Shares”) of Trinity Capital Corporation (the “Company”)
under and pursuant to the Trinity Capital Corporation 2005 Stock Incentive Plan
(the “Plan”) and the Non-Qualified Stock Option Terms dated                                
[insert grant date of option] (the “Option
Terms”).  The Participant hereby makes
the following certifications, representations, warranties and agreements with
respect to the purchase of the Shares:


 


The Participant
acknowledges that he or she is aware of the Company’s business affairs and
financial condition and has acquired sufficient information about the Company
to reach an informed and knowledgeable decision to acquire the Shares.  The Participant represents and warrants to
the Company that he or she is acquiring these Shares for investment for the Participant’s
own account only and not with a view to, or for resale in connection with, any “distribution”
thereof within the meaning of the Securities Act of 1933, as amended (the “Securities
Act”).


 


The Participant
further acknowledges that the Shares have not been registered under the Securities
Act, are deemed to constitute “restricted securities” under Rule 701 and Rule 144
promulgated under the Securities Act and must be held indefinitely unless they
are subsequently registered under the Securities Act and qualified under any
applicable state securities laws or an exemption from such registration and
qualification is available.  The
Participant further acknowledges that the Company is under no obligation to
register the Shares.


 


The Participant
further acknowledges that he or she is familiar with the provisions of Rule 144,
which, in substance, permits limited public resale of “restricted securities”
acquired, directly or indirectly from the issuer thereof, in a non-public
offering subject to the satisfaction of certain conditions.  The Participant further acknowledges that in
the event all of the applicable requirements of Rule 144 are not
satisfied, registration under the Securities Act, compliance with Regulation A,
or some other registration exemption will be required in order to resell the
Shares.  The Participant understands that
no assurances can be given that any such registration will be made or any such
exemption will be available in such event.


 


The Participant
further acknowledges and understands that all certificates representing any of
the Shares shall have endorsed thereon appropriate legends reflecting the
foregoing limitations, as well as any legends reflecting any other restrictions
pursuant to the Company’s Articles of Incorporation, Bylaws, the Option, the
Plan and/or applicable securities laws.


 


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The Participant
further agrees that, if so requested by the Company or any representative of
the underwriters (the “Managing Underwriter”) in connection with any
registration of the offering of any securities of the Company under the
Securities Act, the Participant shall not sell or otherwise transfer any Shares
or other securities of the Company during the 180-day period, or such other
period as may be requested in writing by the Managing Underwriter and agreed to
in writing by the Company (the “Market Standoff Period”), following the
effective date of a registration statement of the Company filed under the
Securities Act.  Such restriction shall
apply only to the first registration statement of the Company to become
effective under the Securities Act that includes securities to be sold on
behalf of the Company to the public in an underwritten public offering under
the Securities Act.  The Company may
impose stop-transfer instructions with respect to securities subject to the
foregoing restrictions until the end of such Market Standoff Period.


 


The Participant
further acknowledges and agrees that the Company shall not be required (i) to
transfer on its books any Shares that have been sold or otherwise transferred
in violation of any of the representations, warranties, agreements or other
provisions contained in this Notice of Exercise or (ii) to treat as owner
of such Shares or to accord the right to vote or pay dividends to any purchaser
or other transferee to whom such Shares shall have been so transferred.


 


	
   

  	
  Submitted by Participant:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Signature

  



 


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