exv10w10






Exhibit 10.10




BANCTRUST FINANCIAL GROUP, INC.

AMENDED AND RESTATED OPTION AGREEMENT -

NONQUALIFIED SUPPLEMENTAL STOCK OPTION

(2001 Incentive Compensation Plan)




     THIS
AGREEMENT made and entered into on this ___ day
of                                         ,       
              , by
and between BANCTRUST FINANCIAL GROUP, INC. (called the “Company” herein), and
                                                                                 
                     (called the “Optionee” herein);



W I T N E S S E T
H :




     WHEREAS, the Board of Directors of the Company adopted the 2001 Incentive Compensation Plan
(called the “Plan” herein) of the Company, a copy of which is on file with the Secretary of the
Company, on April 17, 2001, which was amended and restated on December 17, 2008 in order to be in
compliance with Section 409A of the Code (as hereinafter defined), and the regulations and guidance
thereunder (“Section 409A”);



     WHEREAS, the shareholders of the Company approved the Plan at the Company’s 2001 annual
shareholders’ meeting; and



     WHEREAS, the Grantee desires to acquire this Option, which is granted, pursuant to the Plan,
to the Grantee as a Director of the Company or as an Employee of the Company or one of its
Subsidiary Corporations.



 









 





     NOW, THEREFORE, in consideration of the premises and the mutual covenants set forth herein and
for other good and valuable consideration, the parties hereto have agreed, and do hereby agree, as
set forth herein.



     1. DEFINITIONS



     Unless the context clearly indicates otherwise, for purposes of this Agreement, terms used
herein shall have the same meaning as they do in the Plan. Without limiting the generality of the
foregoing, the following terms shall have the respective meanings set forth below:



          (a) “Board of Directors” means the Board of Directors of the Company.




          (b) “Code” means the Internal Revenue Code of 1986, as amended.




          (c) “Committee” means the Personnel/Compensation Committee of the Board of Directors (or any
successor committee thereto), which committee shall have the responsibility of administering the
Plan.




          (d) “Common Stock” means the common stock of the Company, or such other class of shares or
other securities to which the provisions of this Agreement may be applicable by reason of the
operation of Section 9 hereof.




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          (e) “Company” means BancTrust Financial Group, Inc. or any successor corporation.




          (f) “Director” means any elected member of the Board of Directors of the Company.




          (g) “Employee” means any person employed by the Company or any Subsidiary Corporation.




          (h) “Incentive Stock Option” means an option to purchase shares of Common Stock of the Company
that is intended to qualify as an incentive stock option under Section 422 of the Code.




          (i) “Permanent Disability” means that the Grantee (1) has established to the satisfaction of
the Board of Directors that the Grantee is unable to engage in any substantial gainful activity by
reason of any medically determinable physical or mental impairment which can be expected to last
for a continuous period of not less than twelve (12) months (all within the meaning
of Section 422(c)(6) and Section 22(e)(3) of the Code), and (2) has satisfied any requirement
imposed by the Board of Directors in regard to evidence of such disability.




          (j) “Retirement”, as applied to a Grantee (i) who is an Employee, means normal or early
retirement as provided for in the applicable qualified pension plan of the Company and/or




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one or more of its Subsidiary Corporations; provided that a Grantee shall not be deemed to have retired if
his employment is terminated by the Company because of negligence or malfeasance; and (ii) who is a
Director, means ceasing to serve as an elected member of the Board of Directors, whether by
resignation, removal or failure to stand for reelection or to be reelected.




          (k) “Subsidiary Corporation” of the Company means any present or future corporation (other
than the Company) which would be a Asubsidiary corporation@ as defined in Section
424(f) and (g) of the Code and which would qualify as an eligible issuer of service recipient stock
pursuant to Section 409A of the Code.




          (l) “Supplemental Stock Option” means an Option granted under the Plan, other than an
Incentive Stock Option.




     2. GRANT



     The Company does hereby irrevocably grant to the Grantee, pursuant to the Plan and not in lieu
of salary or any other compensation for services, the right and option (called the “Option”
herein), as a Supplemental Stock Option, to purchase all or any part of an aggregate of

                                         shares of the Common Stock of the Company, only on the terms and conditions
set forth herein. The option price per share shall be the sum of $                                         , being the
Fair Market Value of the Common Stock on the date the Option is granted.



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     3. DURATION



     Anything contained herein (including Sections 5 and 9 hereof) to the contrary notwithstanding,
the Option shall be valid during only the period commencing on the date hereof and ending ten (10)
years after the date hereof, unless sooner terminated as provided herein, and the Option shall
expire and not be exercisable after the expiration of the said ten (10) year period.



     4. TIME OF EXERCISE



     The Option shall be exercisable, in whole or in part, at any time or times, on the basis of
lapse of time only, commencing after one year from the date of the grant of the Option. The Option
granted herein must be exercised, if at all, during the ten (10) year period commencing with the
date of the grant of the Option. Anything contained herein to the contrary notwithstanding, no
Option shall be exercisable in any event after the expiration of ten (10) years from the date that
such Option is granted. During the lifetime of the Grantee, the Option shall be exercisable only
by him, shall not be assignable or transferable by him, and no other person shall acquire any right
therein.



     5. TERMINATION



     (a) Employees. As to Grantee, who is an Employee, if the Grantee’s employment by the
Company and each Subsidiary Corporation thereof shall terminate, his Option shall terminate
immediately; provided, however, that if any termination of employment is due to Retirement, the
Grantee shall have the right to exercise his Option, in whole or in part, as to all shares then
subject thereto, at any time or times within three (3) months after such Retirement; and provided
further, however, that if the Grantee shall furnish proof reasonably satisfactory to the Committee
that



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termination of employment is due to a Permanent Disability, the Grantee shall have the right
to exercise his Option, in whole or in part as to all shares then subject thereto, at any time or
times within one (1) year after termination based on such Permanent Disability. Provided, further,
that if the Employee Grantee shall die while in the employment of the Company or one of its
Subsidiary Corporations, the executor or administrator of his estate shall have the right to
exercise Grantee’s Option, in whole or in part, as to all shares then subject thereto and at any
time or times within one (1) year from the date of Grantee’s death; if the Grantee shall die within
three (3) months after Retirement or within one (1) year after termination based on such Permanent
Disability the executor or administrator of his estate shall have the right to exercise said
Grantee’s Option, in whole or in part, as to all shares then subject thereto within the same period
said Grantee could have exercised said Option; provided further, that the Option shall in no event
be exercisable after the expiration of ten (10) years from the date that it is granted, whichever
shall occur first. Whether any other termination of employment shall be considered a Retirement
and whether an authorized leave of absence or absences on military or government service or for
other reasons shall constitute a termination of employment for the purposes of the Plan, shall be
determined by the Board of Directors, which determination shall be final and conclusive.




     (b) Directors. As to a Grantee who is a Director, his Option shall terminate upon the
earliest to occur of (1) the expiration of any applicable Option Period as set forth elsewhere in
this Agreement, (2) the expiration of three (3) months after the Grantee’s Retirement, (3) the
expiration of one (1) year after the Grantee ceases to serve as a Director due to the death of the
Grantee, or (4) the date the Grantee ceases to serve as a Director for any reason other than
Retirement or death.



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     6. ASSIGNMENT OR TRANSFER



     The Option shall not be assignable or transferable otherwise than by will or the laws of
descent and distribution. During the lifetime of the Grantee, the Option shall be exercisable only
by him and shall not be assignable or transferable by him and no other person shall acquire any
right therein. More particularly, but without limiting the generality of the foregoing, the Option
may not be assigned or transferred (except as noted herein), in any way (whether by operation of
law or otherwise), and shall not be subject to execution, attachment or similar process. Any
attempted assignment, transfer, or other disposition of the Option contrary to the provisions
hereof, and the levy of any attachment or similar process on the Option, shall be null and void and
without effect.



     7. MANNER OF EXERCISE



     Shares of Common Stock purchased under the Option shall at the time of purchase be paid for in
full. The Option may be exercised from time to time by written notice to the Company stating the
number of shares with respect to which the Option is being exercised, and the time of the delivery
thereof, which shall be at least seven (7) days after the delivery of such notice unless an
earlier date shall have been mutually agreed upon; except that in no event shall such date be
after the expiration of the ten (10) year period in Section 3 hereof. At such time the Company
shall, without transfer or issue tax to the Grantee (or other person entitled to exercise the
Option), deliver to the Grantee (or other person entitled to exercise the Option) at the principal
office of the Company, or such other place as shall be mutually acceptable, a certificate or
certificates for such shares against payment of the Option price in full for the number of shares
to be delivered by certified or official



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bank check or other appropriate form of payment acceptable
to the Company; provided, however, that the time of such delivery may be postponed by the Company
for such period as may be required for it with reasonable diligence to comply with any requirements
of law. If the Grantee (or other person entitled to exercise the Option) fails to accept delivery
of and pay for all or any part of the number of shares specified in such notice upon tender of
delivery thereof, his right to exercise the Option with respect to such undelivered shares may be
terminated at the election of the Committee.



     8. AGREEMENTS OF GRANTEE



     The Grantee does hereby agree as follows:



          (a) that he will not exercise the Option unless a registration statement of the Company filed
with the Securities and Exchange Commission relating to the shares has become effective or unless
counsel for the Company shall determine that exercise of the Option prior to such registration
statement having become effective would not result in a violation of the Securities Act of 1933;
and




          (b) that he will not sell any shares acquired by exercise of the Option until counsel for the
Company shall determine that such sale would not result in a violation of the Securities Act of
1933.




     9. ADJUSTMENTS; CHANGE OF CONTROL



     The aggregate number of shares of Common Stock covered by the Option, the aggregate number of
shares of Common Stock on which Options may be granted to any one such person, the number of shares
thereof covered by each outstanding Option, and the price per share thereof in each



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such Option,
shall be proportionately adjusted for any increase or decrease in the number of issued shares of
Common Stock of the Company resulting from the subdivision or consolidation of shares or other
capital adjustment, or the payment of a stock dividend after the date of this Agreement; provided
that any fractional shares resulting from any such adjustment shall be eliminated provided,
however, that any adjustments made pursuant to this Section 9 will not cause the Option to lose its
exemption from the application of Section 409A of the Code, or to violate any requirement
applicable to deferred compensation under Section 409A of the Code.



     Subject to any required action by the shareholders, if the Company shall be the surviving or
resulting corporation in any merger, consolidation, or other Reorganization, any Option granted
hereunder shall pertain to and apply to the securities to which a holder of the number of shares of
Common Stock subject to the Option would be entitled on the effective date of such merger or
consolidation; but a dissolution or complete liquidation of the Company or a merger, consolidation
or other Reorganization in which the Company is not the surviving or resulting corporation, shall
cause the Option to terminate on the effective date of such dissolution, complete liquidation,
merger, consolidation, or other Reorganization; provided, however, that the Company shall give not
less than thirty (30) days’ written notice prior to the effective date of the said transaction to
the Grantee, who shall have the right to exercise his Option during the thirty (30) day period
immediately preceding such effective date, as to all or any part of the shares covered thereby,
including, without limitation, shares as to which such Option would not otherwise be exercisable by
reason of an insufficient lapse of time (anything contained in Section 4 hereof to the contrary
notwithstanding); and provided further, that no such acceleration shall occur if any such
transaction is approved by the affirmative



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vote of not less than seventy-five percent (75%) of the
directors of the Company, and the surviving or resulting corporation shall assume such options or
tender an option or options to purchase its shares on such terms and conditions, both as to the
number of shares and otherwise, so as to provide substantially the same benefits available under
the Option.



     The term “Reorganization” as used in this Section means and refers to any statutory merger,
statutory consolidation, sale of all or substantially all of the assets of the Company or its
Subsidiary Corporations, or sale of twenty-five percent (25%) or more of the voting securities of
the Company pursuant to which the Company becomes a subsidiary of or is controlled by, another
person or is not the surviving or resulting corporation, all after the effective date of the
Reorganization. The term Aperson@ refers to an individual or a corporation,
partnership, trust, association, joint venture, pool, syndicate, sole proprietorship,
unincorporated organization, or any other form of entity not specifically listed herein.



     10. RIGHTS OF A SHAREHOLDER



     The Grantee shall have no rights as a shareholder with respect to any shares of common stock
of the Company until the date of issuance of a stock certificate to him for such shares. No
adjustment shall be made for dividends or other rights for which the record date is prior to the
date of such issuance, except as may be required under Section 9 hereof.



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     11. MODIFICATIONS



     At any time, and from time to time, the Board of Directors may modify the Option, provided no
such modification shall (i) confer on the Grantee any right or benefit which could not be conferred
on him by the grant of a new Option at such time, (ii) impair the Option without the consent of the
Grantee, (iii) cause the Option to not be exempt from the application of Section 409A of the Code
unless the Option can be amended in such a way as to satisfy the requirements of Section 409A of
the Code, or (iv) violate any requirement applicable to deferred compensation under Section 409A of
the Code.



     12. CONSTRUCTION



     If there should be any inconsistency or discrepancy between this Agreement and the Plan
itself, the Plan and its provisions shall supersede, control, govern and be binding in all events.
The provisions of the Plan shall not be merged into this Agreement but shall survive as controlling
and binding covenants of this Agreement, whether incorporated herein by specific reference or
otherwise.



     The interpretation and construction by the Board of Directors of any provisions of the Option
and any determination by the Board of Directors pursuant to any provision of the Option shall be
final and conclusive. No member of the Board of Directors shall be liable for any action or
determination made in good faith.



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     The captions or headings of the respective Sections of this Agreement are for convenient
reference only and shall not be given any consideration or effect in any construction hereof.



     13. APPROVALS



     The Option is granted subject to the approval of the Plan by the shareholders of the Company,
unless such approval has been obtained prior to the date of this Agreement.



     14. SECTION 409A



     The Option granted pursuant to this Agreement is intended to either be exempt from the
provisions of Section 409A of the Code or be treated as deferred compensation that meets the
requirements of Section 409A, and any ambiguities in construction shall be construed accordingly.
No acceleration or deceleration of any payments or benefits provided herein shall be permitted
unless allowed under the requirements of Section 409A. If any compensation or benefits provided by
this Agreement may result in the application of Section 409A, the Agreement shall be modified by
the Company in the least restrictive manner (as determined by the Company) and without any
diminution in the value of the payments to such participants as may be necessary in order to
exclude such compensation from the definition of “deferred compensation” within the meaning of
Section 409A or
in order to comply with the provisions of Section 409A, other applicable provision(s) of the
Code and/or any rules, regulations, and/or regulatory guidance issued under such statutory
provisions. In the event that, after issuance of this Option, Section 409A is amended, the Board
of Directors may modify the terms of any such previously issued option to the extent the Board of
Directors determines that such modification is necessary or advisable to remain exempt from or to
comply with the requirements of Section 409A.



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     IN WITNESS WHEREOF, the Company has caused this Agreement to be executed in its name and on
its behalf and its corporate seal to be impressed hereon and attested by its officers thereunto
duly authorized, and the Grantee has set his hand and seal hereon, all on the date first above
written.



	 	 	 	 	 	 	 
	 	 	COMPANY:	 	 
	 
	 	 	 	 	 	 
	 	 	BANCTRUST FINANCIAL GROUP, INC.	 	 
	 
	 	 	 	 	 	 
	(AFFIX

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	CORPORATE	 	            
               
                , as its President
	SEAL)
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	ATTEST:
	 	 	 	 	 	 






	 	 	 
	 	 
	 	, as its
	Secretary
	 	 






	 	 	 
	 

	 	GRANTEE:
	 
	 	 
	 

	 	                                         (SEAL)







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