As filed with the Securities and Exchange Commission on April 4, 1995
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
UNITED CAROLINA
BANCSHARES CORPORATION
(Exact name of registrant as specified in its charter)
North Carolina 56-0954530
(State or other Jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
Post Office Box 682
127 West Webster Street
Whiteville, North Carolina 28472
(Address of principal executive offices, including Zip Code)
1993 Nonstatutory Stock Option Plan for Directors
(Full title of the plan)
HOWARD V. HUDSON, JR., Esq.
United Carolina Bancshares Corporation
Post Office Box 632
127 West Webster Street
Whiteville, North Carolina 28472
(910) 642-5131
(Name, address and telephone number of agent for service)
Copy to:
WILLIAM R. LATHAN, JR., Esq.
Ward and Smith, P.A.
1001 College Court
Post Office Box 867
New Bern, North Carolina 28560
(919) 633-1000
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
Maximum Maximum Amount of
Title of Securities Amount to Offering Price Aggregate Registration
to be Registered be Registered (1) Per Share (2) Offering Price (2) Fee (2)
<S> <C> <C> <C> <C>
Common Stock,
$4.00 par value 25,260 $7.3228 $184,974 $100
</TABLE>
(1) This Registration Statement registers securities offered pursuant to
terms which provide for an adjustment in the number of securities being
offered to prevent dilution resulting from stock splits, stock
dividends or similar transactions and will be deemed to cover the
additional securities offered or issued in connection with any such
provision.
(2) Pursuant to Rule 457(h)(1), the registration fee has been calculated on
the basis of the weighted average price per share at which shares could
be purchased upon the exercise of options granted under the plan.
<PAGE>
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
The following documents filed by Registrant with the Securities and Exchange
Commission (the "Commission") under the Securities Exchange Act of 1934 (the
"Exchange Act") are incorporated herein by reference:
(i) Registrant's Annual Report on Form 10-K for the year ended
December 31, 1995;
(ii) Registrant's Current Report on Form 8-K dated January 25,
1996;
(iii) Description of Registrant's common stock contained in its
Registration Statement on Form 10, as amended by Registrant's subsequent reports
riled under the Exchange Act.
All documents subsequently filed with the Commission by Registrant pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing
of a post-effective amendment which indicates that all securities being offered
have been sold or which deregisters all securities then remaining unsold shall
be deemed to be incorporated herein by reference and to be a part hereof from
the dates of filing of such documents.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Ward and Smith, P.A., New Bern, North Carolina has rendered an opinion as to
certain legal matters regarding the shares of Registrant's common stock to which
this Registration Statement relates. Certain members of that firm beneficially
own an aggregate of approximately 9,180 shares of Registrant's common stock.
Item 6. Indemnification of Directors and Officers
The North Carolina Business Corporation Act (the "NCBCA") provides for
indemnification by a corporation of its officers, directors, employees and
agents, and any person who is or was serving at the corporation's request as a
director, officer, employee or agent of another entity or enterprise or as a
trustee or administrator under an employee benefit plan, against liability and
expenses, including reasonable attorney's fees, in any proceeding (including
without limitation a proceeding brought by or on behalf of the corporation
itself) arising out of their status as such or their activities in any of the
foregoing capacities.
Permissible Indemnification. Under the NCBCA, a corporation may, but is not
required to, indemnify or agree to indemnify any such person against liability
and expenses incurred in any such proceeding, provided such person conducted
himself or herself in good faith and (i) in the case of conduct in his or her
official corporate capacity, reasonably believed that his or her conduct was in
the corporation's best interests, and (ii) in all other cases, reasonably
believed that
<PAGE>
his or her conduct was at least not opposed to the corporation's best interests;
and, in the case of a criminal proceeding, where he or she had no reasonable
cause to believe his or her conduct was unlawful. However, a corporation may not
indemnify such person either in connection with a proceeding by or in the right
of the corporation in which such person was adjudged liable to the corporation,
or in connection with any other proceeding charging improper personal benefit to
such person (whether or not involving action in an official capacity) in which
such person was adjudged liable on the basis that personal benefit was
improperly received.
Mandatory Indemnification. Unless limited by the corporation's charter, the
NCBCA requires a corporation to indemnify a director or officer of the
corporation who is wholly successful, on the merits or otherwise, in the defense
of any proceeding to which such person was a party because he or she is or was a
director or officer of the corporation against reasonable expenses incurred in
connection with the proceeding.
Advance for Expenses. Expenses incurred by a director, officer, employee or
agent of the corporation in defending a proceeding may be paid by the
corporation in advance of the final disposition of the proceeding as authorized
by the board of directors in the specific case, or as authorized by the charter
or bylaws or by any applicable resolution or contract, upon receipt of an
undertaking by or on behalf of such person to repay amounts advanced unless it
ultimately is determined that such person is entitled to be indemnified by the
corporation against such expenses.
Court-Ordered Indemnification. Unless otherwise provided in the corporation's
charter, a director or officer of the corporation who is a party to a proceeding
may apply for indemnification to the court conducting the proceeding or to
another court of competent jurisdiction. On receipt of an application, the
court, after giving any notice the court deems necessary, may order
indemnification if it determines either (i) that the director or officer is
entitled to mandatory indemnification as described above, in which case the
court also will order the corporation to pay the reasonable expenses incurred to
obtain the court-ordered indemnification, or (ii) that the director or officer
is fairly and reasonably entitled to indemnification in view of all the relevant
circumstances, whether or not such person met the requisite standard of conduct
or was adjudged liable to the corporation in connection with a proceeding by or
in the right of the corporation or on the basis that personal benefit was
improperly received in connection with any other proceeding so charging (but if
adjudged so liable, indemnification is limited to reasonable expenses incurred).
Voluntary Indemnification. In addition to and separate and apart from
"permissible" and "mandatory" indemnification described above, a corporation
may, by charter, bylaw, contract or resolution,m "indemnify or agree to
indemnify any one or more of its officers, directors, employees and agents
against liability and expenses in any proceeding (including without limitation a
proceeding brought by or on behalf of the corporation itself) arising out of
their status as such or their activities in any of the foregoing capacities.
However,
3
<PAGE>
the corporation may not indemnify or agree to indemnify a person against
liability or expenses he may incur on account of activities which were at the
time taken known or believed by such person to be clearly in conflict with the
best interests of the corporation. Any provision in a corporation's charter or
bylaws or in a contract or resolution may include provisions for recovery from
the corporation of reasonable costs, expenses and attorneys' fees in connection
with the enforcement of rights to indemnification granted therein and may
further include provisions establishing reasonable procedures for determining
and enforcing such rights.
Parties Entitled to Indemnification. The NCBCA defines "director" to include
ex-directors and the estate or personal representative of a director. Unless its
charter provides otherwise, a corporation may indemnify and advance expenses to
an officer, employee or agent of the corporation to the same extent as to a
director and also may indemnify and advance expenses to an officer, employee or
agent who is not a director to the extent, consistent with public policy, as may
be provided in its charter or bylaws, by general or specific action of its board
of directors, or by contract.
Indemnification by Registrant. Subject to such restrictions as are provided
by federal securities law, Registrant's Bylaws provide for indemnification of
its directors and officers to the fullest extent permitted by law and require
its Board of Directors to take all actions necessary and appropriate to
authorize such indemnification. In addition, Registrant currently maintain
directors' and officers' liability insurance.
Item 7. Exemption From Registration Claimed
Not applicable.
Item 8. Exhibits
The following exhibits are filed herewith or incorporated herein by reference
as part of this Registration Statement:
4 Specimen of Registrant's Common Stock certificate
(incorporated by reference from Registrant's 1988 Annual
Report on Form 10-K).
5 Opinion of Ward and Smith, P.A. as to the legality of the
securities being registered (filed herewith).
23(a) Consent of KPMG Peat Marwick LLP to incorporation by reference of
its report on Registrant's financial statements (filed herewith).
23(b) Consent of Ward and Smith, P.A. (contained in its opinion
filed herewith as Exhibit 5).
24 Power of Attorney.
99 Copy of 1993 Nonstatutory Stock Option Plan for Directors.
4
<PAGE>
Item 9. Undertakings
(a) Rule 415 Offering. The undersigned Registrant hereby
undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this
Registration Statement:
(i) to include any Prospectus required by
Section 10(a)(3) of the Securities Act of
1933;
(ii) to reflect in the Prospectus any facts
or events arising after the effective
date of the Registration Statement (or
the most recent post-effective amendment
thereof) which, individually or in the
aggregate, represent a fundamental
change in the information set forth in
the Registration Statement;
(iii) to include any material information with
respect to the plan of distribution not
previously disclosed in the Registration
Statement or any material change to such
information in the Registration
Statement;
provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the information required
to be included in a post-effective amendment by
those paragraphs is contained in periodic reports
filed by the Registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the
Registration Statement.
(2) That, for purposes of determining any liability under
the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new Registration
Statement relating to the securities offered therein,
and the offering of such securities at that time shall
be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-
effective amendment any of the securities being
registered which remain unsold at the termination of
the offering.
(b) Filings Incorporating Subsequent Exchange Act Documents by
Reference.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of
the Securities Exchange Act of 1934 that is
5
<PAGE>
incorporated by reference in the Registration Statement shall be deemed to be
a new Registration Statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(h) Request for Acceleration of Effectiveness or Filing of Registration
Statement on Form S-8
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the Registrant
will, unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
6
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Whiteville, State of North Carolina, on March 29 ,
1996.
UNITED CAROLINA BANCSHARES CORPORATION
(Registrant)
By: S/ Kenneth L. Miller
Kenneth L. Miller
President
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
Signature Title Date
S/ E. Rhone Sasser Chief Executive March 29 , 1996
- ------------------------- Officer (principal
E. Rhone Sasser executive officer)
S/ Ronald C. Monger Executive Vice March 29 , 1996
- ------------------------- President and Chief
Ronald C. Monger Financial Officer
(principal financial
officer)
S/ John F. Watson Controller (principal March 29 , 1996
- ------------------------- accounting officer)
John F. Watson
* S/ J. W. Adams Director March 29 , 1996
- -------------------------
J. W. Adams
* S/ John V. Andrews Director March 29 , 1996
- -------------------------
John V. Andrews
* S/ Russell M. Carter Director March 29 , 1996
- -------------------------
Russell M. Carter
7
<PAGE>
* S/ W. E. Carter Director March 29 , 1996
- -------------------------
W. E. Carter
* S/ Alfred E. Cleveland Director March 29 , 1996
- -------------------------
Alfred E. Cleveland
* S/ James L. Cresimore Director March 29 , 1996
- -------------------------
James L. Cresimore
* S/ Thomas P. Dillon Director March 29 , 1996
- -------------------------
Thomas P. Dillon
* S/ C. Frank Griffin Director March 29 , 1996
- -------------------------
C. Frank Griffin
* S/ James C. High Director March 29 , 1996
- -------------------------
James C. High
* S/ Jack E. Shaw Director March 29 , 1996
- -------------------------
Jack E. Shaw
* S/ Harold B. Wells Director March 29 , 1996
- -------------------------
Harold B. Wells
* S/ Charles M. Winston Director March 29 , 1996
- -------------------------
Charles M. Winston
* By: S/ Howard V. Hudson, Jr.
Howard V. Hudson, Jr.
Attorney-in-Fact
8
<PAGE>
EXHIBIT INDEX
Exhibit Sequential
Number Description Page Number
4 Specimen of Registrant's Common Stock
certificate (incorporated herein by
reference from Exhibit IV to Registrant's
1988 Annual Report on Form 10-K).
5 Opinion of Ward and Smith, P.A. as to
the legality of the securities being
registered (filed herewith).
23(a) Consent of KPMG Peat Marwick LLP to
incorporation by reference of its
report on Registrant's financial
statements (filed herewith).
23(b) Consent of Ward and Smith, P.A.
(included in its opinion filed
herewith as Exhibit 5).
24 Power of Attorney.
99 Copy of 1993 Directors' Non-Qualified
Stock Option Plan, together with form
of option agreement with Option Holders.
<PAGE>
April 1, 1996
The Board of Directors
United Carolina Bancshares Corporation
Post Office Box 632
Whiteville, North Carolina 28472
RE: Our File 80-0785(Q)
Gentlemen:
You have asked for our opinion regarding 25,260 shares of common stock, $4.00
par value (the "Shares"), of United Carolina Bancshares Corporation (the
"Corporation") that are proposed to be issued and sold to the holders and upon
the exercise of options (the "Options") previously granted by Seaboard Savings
Bank, Inc., SSB (the "Bank") under its 1993 Nonstatutory Stock Option Plan for
Directors (the "Plan") and which remained outstanding at the effective time of
the merger of the Bank into the Corporation's wholly-owned bank subsidiary,
United Carolina Bank ("UCB"). The Agreement and Plan of Reorganization and
Merger dated September 19, 1995 between the Bank, UCB and the Corporation (the
"Agreement") provided that, when the merger became effective, the Options would
be converted (as described therein) into options to purchase common stock of the
Corporation and the Corporation would assume the Bank's obligations thereunder.
We have examined the Agreement, the Plan and certified copies of resolutions
adopted by the Corporation's Board of Directors approving the Agreement,
ratifying and approving the assumption of the Options, and reserving and
authorizing the Shares for issuance upon exercise of the Options. Additionally,
we have examined such other records and documents and have had such discussions
with officers of the Corporation as we deemed necessary with respect to the
organization of the Corporation and other matters. Based upon such examination,
and provided that (i) the Options originally were properly issued by the Bank,
(ii) the Corporation's Registration Statement on Form S-8 filed with the
Securities and Exchange Commission relating to the Shares shall have become and
shall remain effective, and (iii) the Shares covered by the Registration
<PAGE>
The Board of Directors
United Carolina Bancshares Corporation
April 1, 1996
Page 2
Statement shall have been issued and sold upon the exercise and in accordance
with the terms of the Options and following receipt by the Corporation of the
purchase price of such Shares, then the Shares so issued and sold will be
validly authorized, legally issued, fully paid and nonassessable.
This opinion is furnished by us solely for your benefit and in connection with
the filing of the above Registration Statement. Without our prior express
written consent this opinion may not used for any other purpose and may not be
quoted or relied upon by, nor may copies be delivered to, any other person or
entity.
We hereby consent to the filing of this opinion as Exhibit 5 to the Registration
Statement.
Yours truly,
S/ WARD and SMITH, P.A.
WARD and SMITH, P.A.
<PAGE>
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
United Carolina Bancshares Corporation
We consent to incorporation by reference in the Registration Statement on Form
S-8 of United Carolina Bancshares Corporation (the "Corporation") relating to
the 1993 Nonstatutory Stock Option Plan for Directors of Seaboard Savings Bank,
Inc., SSB, as assumed by United Carolina Bancshares Corporation, of our report
dated January 17, 1996, relating to the consolidated balance sheets of United
Carolina Bancshares Corporation and subsidiaries as of December 31, 1995 and
1994, and the related consolidated statements of income, stockholders' equity
and cash flows for each of the years in the three-year period ended December 31,
1995, which report appears in the December 31, 1995 annual report on Form 10-K
of United Carolina Bancshares Corporation. Out report dated January 1788, 1996,
refers to the fact that on December 31, 1993, the Corporation adopted the
provisions of the Financial Accounting Standards Board's Statement of Financial
Accounting Standards No. 115, "Accounting for Certain Investments in Debt and
Equity Securities", and on January 1, 1993, the Corporation adopted the
provisions of the Financial Accounting Standards Board's Statement of Financial
Accounting Standards No. 109, "Accounting for Income Taxes." Our report also
refers to the fact that on January 1, 1994, the Corporation adopted the
provisions of the Financial Accounting Standards Board's Statement of Financial
Accounting Standards No.112, "Employers' Accounting for Postemployment
Benefits."
S/ KPMG Peat Marwick LLP
KPMG Peat Marwick LLP
Raleigh, North Carolina
April 1, 1996
<PAGE>
<PAGE>
STATE OF NORTH CAROLINA
COUNTY OF COLUMBUS
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned
directors and executive officers of UNITED CAROLINA BANCSHARES CORPORATION (the
"Corporation") has made, constituted and appointed and, by these presents,
hereby makes, constitutes and appoints HOWARD V. HUDSON, JR., RONALD C. MONGER,
WILLIAM R. LATHAN, JR. and RAYMOND W. HINES, and each of them, jointly and
severally, his true and lawful agents and attorneys-in-fact, with full power of
substitution and resubstitution, and with full power and authority for him and
in his name, place and stead, to sign for the undersigned and in his name as a
director or officer of the Corporation a Registration Statement on Form S-8, as
well as any Amendments to such Registration Statement, and to file the same with
the Securities and Exchange Commission under the Securities Act of 1933, as
amended, relating to the shares of common stock of the Corporation which will be
offered and sold upon the exercise of options to purchase previously issued by
Seaboard Savings Bank, Inc., SSB (the "Savings Bank") under the Savings Bank's
1993 Nonstatutory Stock Option Plan for Directors and 1993 Incentive Stock
Option Plan, and which options were assumed by the Corporation and converted
into options to purchase shares of the Corporation's common stock upon the
merger of the Savings Bank into and with the Corporation's wholly-owned
subsidiary bank and the conversion of the outstanding shares of the Savings
Bank's common stock into shares of the Corporation's common stock.
Further, each of the undersigned hereby grants to said agents and
attorneys-in-fact, and each of them, full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about the
premises as fully and to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said agents and
attorneys-in-fact or either of them, or their or his or her substitute or
substitutes, may lawfully do or cause to be done by virtue thereof.
IN WITNESS WHEREOF, the undersigned have hereunto signed their
names on the dates indicated.
Signature Title Date
S/ E. Rhone Sasser President and Chief February 29 , 1996
- ---------------------- Executive Officer
E. Rhone Sasser (principal executive
officer)
S/ Ronald C. Monger Executive Vice February 29 , 1996
- ---------------------- President and Chief
Ronald C. Monger Financial Officer
(principal financial
officer)
S/ John F. Watson Controller (principal February 29 , 1996
- ---------------------- accounting officer)
John F. Watson
<PAGE>
IN WITNESS WHEREOF, the undersigned has hereunto signed his name
to the foregoing Power of Attorney as of the date indicated.
Signature Title Date
S/ J. W. Adams Director February 29 , 1996
- --------------------------
J. W. Adams
2
<PAGE>
IN WITNESS WHEREOF, the undersigned has hereunto signed his name
to the foregoing Power of Attorney as of the date indicated.
Signature Title Date
S/ John V. Andrews Director February 29 , 1996
- --------------------------
John V. Andrews
3
<PAGE>
IN WITNESS WHEREOF, the undersigned has hereunto signed his name
to the foregoing Power of Attorney as of the date indicated.
Signature Title Date
S/ Russell M. Carter Director February 29 , 1996
- --------------------------
Russell M. Carter
4
<PAGE>
IN WITNESS WHEREOF, the undersigned has hereunto signed his name
to the foregoing Power of Attorney as of the date indicated.
Signature Title Date
S/ W. E. Carter Director February 29 , 1996
- --------------------------
W. E. Carter
5
<PAGE>
IN WITNESS WHEREOF, the undersigned has hereunto signed his name
to the foregoing Power of Attorney as of the date indicated.
Signature Title Date
S/ Alfred E. Cleveland Director February 29 , 1996
- --------------------------
Alfred E. Cleveland
6
<PAGE>
IN WITNESS WHEREOF, the undersigned has hereunto signed his name
to the foregoing Power of Attorney as of the date indicated.
Signature Title Date
S/ James L. Cresimore Director February 29 , 1996
- --------------------------
James L. Cresimore
7
<PAGE>
IN WITNESS WHEREOF, the undersigned has hereunto signed his name
to the foregoing Power of Attorney as of the date indicated.
Signature Title Date
S/ Thomas P. Dillon Director February 29 , 1996
- --------------------------
Thomas P. Dillon
8
<PAGE>
IN WITNESS WHEREOF, the undersigned has hereunto signed his name
to the foregoing Power of Attorney as of the date indicated.
Signature Title Date
S/ C. Frank Griffin Director February 29 , 1996
- --------------------------
C. Frank Griffin
9
<PAGE>
IN WITNESS WHEREOF, the undersigned has hereunto signed his name
to the foregoing Power of Attorney as of the date indicated.
Signature Title Date
S/ James C. High Director February 29 , 1996
- --------------------------
James C. High
10
<PAGE>
IN WITNESS WHEREOF, the undersigned has hereunto signed his name
to the foregoing Power of Attorney as of the date indicated.
Signature Title Date
S/ Jack E. Shaw Director February 29 , 1996
- --------------------------
Jack E. Shaw
11
<PAGE>
IN WITNESS WHEREOF, the undersigned has hereunto signed his name
to the foregoing Power of Attorney as of the date indicated.
Signature Title Date
S/ Harold B. Wells Director February 29 , 1996
- --------------------------
Harold B. Wells
12
<PAGE>
IN WITNESS WHEREOF, the undersigned has hereunto signed his name
to the foregoing Power of Attorney as of the date indicated.
Signature Title Date
S/ Charles M. Winston Director February 29 , 1996
- --------------------------
Charles M. Winston
13
<PAGE>
<PAGE>
SEABOARD SAVINGS BANK, INC., SSB
1993 NONSTATUTORY STOCK OPTION PLAN
FOR DIRECTORS
Seaboard Savings Bank, Inc., SSB, a North Carolina corporation (hereinafter
referred to as the "Corporation"), does herein set forth the terms of the
Seaboard Savings Bank, Inc., SSB 1993 Nonstatutory Stock Option Plan for
Directors (hereinafter referred to as this "Plan"), which was adopted by the
Board of Directors (hereinafter referred to as the "Board") of the Corporation
subject to approval by the Corporation's shareholders as provided in paragraph
20 hereof.
1. Purpose of this Plan. The purpose of this Plan is to provide for the grant
of Nonstatutory Stock Options (hereinafter referred to as "Options" or
singularly, "Option") and in certain circumstances the right to surrender such
Options for cash, to Directors (as hereinafter defined) of the Corporation who
wish to invest in the Corporation's common stock (hereinafter referred to as
"Common Stock"). The Board believes that participation in the ownership of the
Corporation by Directors will be to the mutual benefit of the Corporation and
the Directors. In addition, the existence of this Plan will make it possible for
the Corporation to attract capable individuals to serve on the Board. As used
herein, the term "Directors" or singularly, "Director", shall mean those members
of the Board who are not employed by the Corporation and are ineligible to
participate in the 1993 Incentive Stock Option Plan of the Corporation as of the
date of the Conversion (as hereinafter defined).
2. Administration of this Plan.
(a) This Plan shall be administered by the Board. The Board shall
have full power and authority to construe, interpret and administer this Plan.
All actions, decisions, determinations, or interpretations of the Board shall be
final, conclusive, and binding upon all parties.
(b) The Board shall determine when Limited Stock Appreciation
Rights (as hereinafter described) shall be available in place of outstanding
Options.
(c) The Board may designate any officers or employees of the
Corporation or of any of its subsidiaries to assist in the administration of
this Plan. The Board may authorize such individuals to execute documents on its
behalf and may delegate to them such other ministerial and limited discretionary
duties as the Board may see fit.
3. Shares of Common Stock Subject to this Plan. The maximum number of shares
of Common Stock that shall be offered under this Plan is eighteen thousand five
hundred (18,500) shares, subject to adjustment as provided in paragraph 13.
Shares subject to Options
<PAGE>
which expire or terminate prior to the issuance of the shares of Common Stock
shall lapse and the shares of Common Stock originally subject to such Options
shall again be available for future grants of Options under this Plan.
4. Eligibility; Grant of Options. Upon the conversion of the Corporation from
a North Carolina-chartered mutual savings bank to a North Carolina-chartered
stock savings bank (the "Conversion"), each Director then serving on the Board
shall receive an Option to purchase shares of Common Stock in the amount set
forth below:
Dallas G. Waters . . . . . . . . . 3,700 Shares
Robert L. Howell . . . . . . . . . 3,700 Shares
W. Braxton Voliva . . . . . . . . 3,700 Shares
E. G. Cantrell . . . . . . . . . . 3,700 Shares
John Goodwin . . . . . . . . . . 3,700 Shares
5. Option Price.
(a) The price per share of each Option granted under this Plan
(hereinafter called the "Option Price") shall be determined by the Board as of
the effective date of grant of such Option, but in no event shall such Option
Price be less than 100% of the fair market value of Common Stock on the date of
grant. An Option shall be considered as granted on the later of (i) the
effective date of the Conversion, (ii) the date that the Board acts to grant
such Option, or (iii) such later date as the Board shall specify in an Option
Agreement (as hereinafter defined).
(b) The fair market value of a share of Common Stock shall be
determined as follows: (i) if on the date as of which such determination is
being made, Common Stock being valued is admitted to trading on a securities
exchange or exchanges for which actual sale prices are regularly reported, or
actual sale prices are otherwise regularly published, the fair market value of a
share of Common Stock shall be deemed to be equal to the mean of the closing
sale price as reported for each of the five (5) trading days immediately
preceding the date as of which such determination is made; provided, however,
that, if a closing sale price is not reported for each of the five (5) trading
days immediately preceding the date as of which such determination is made, then
the fair market value shall be equal to the mean of the closing sale prices on
those trading days for which such price is available, or (ii) if on the date as
of which such determination is made, no such closing sale prices are reported,
but quotations for Common Stock being valued are regularly listed on the
National Association of Securities Dealers Automated Quotation System ("NASDAQ")
or another comparable system, the fair market value of a share of Common Stock
shall be deemed to be equal to the mean of the average of the closing bid and
asked prices for such Common Stock quoted on such system on each of the five (5)
trading days preceding the date as of which such determination is made, but if a
closing bid and asked price is not available for each of the five (5) trading
days, then the fair market value shall be equal to the mean of the average of
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the closing bid and asked prices on those trading days during the five-day
period for which such prices are available, or (iii) if no such quotations are
available, the fair market value of a share of Common Stock shall be deemed to
be the average of the closing bid and asked prices furnished by a professional
securities dealer making a market in such shares, as selected by the Board, for
the trading date first preceding the date as of which such determination is
made. If the Board Corporate determines that the price as determined above does
not represent the fair market value of a share of Common Stock, the Board may
then consider such other factors as it deems appropriate and then fix the fair
market value for the purposes of this Plan.
6. Payment of Option Price. Payment for shares subject to an Option may be
made either in cash, or with the approval of the Board, in other stock of the
Corporation owned by a Director or such other person as may be entitled to
exercise such Option. Any shares of the Corporation's stock that are delivered
in payment of the aggregate Option Price shall be valued at their fair market
value, as determined by the Board, on the date of the exercise of such Option.
7. Terms and Conditions of Grant of Options. Each Option granted pursuant to
this Plan shall be evidenced by a written Nonstatutory Stock Option Agreement
(hereinafter referred to as "Option Agreement") with each Director (hereinafter
referred to as "Optionee") to whom an Option is granted; such agreement shall be
substantially in the form attached hereto as "Exhibit A", unless the Board shall
adopt a different form and, in each case, may contain such other, different, or
additional terms and conditions as the Board may determine.
8. Option Period. Each Option Agreement shall set forth a period during which
such Option may be exercised (hereinafter referred to as the "Option Period");
provided, however, that the Option Period shall not exceed ten (10) years after
the date of grant of such Option as specified in an Option Agreement.
9. Change of Control; Limited Stock Appreciation Rights.
(a) In connection with the grant of any Option under this Plan,
the Board may, in its discretion, provide an Optionee with the right (herein
sometimes referred to as "Limited Stock Appreciation Rights"), following a
"change in control" of the Corporation and without regard to any restrictions on
exercise that would otherwise apply, to surrender any unexercised portion of
such Option as such Optionee then may have for a cash payment equal to the
amount by which the fair market value (as determined by the Board) of the number
of shares of Common Stock then subject to such Option exceeds the aggregate
Option Price therefor.
(b) When used herein, the phrase "change in control" refers to
(i) the acquisition by any person, group of persons or entity of the beneficial
ownership or power to vote more than
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twenty percent (20%) of the Corporation's outstanding stock or (ii) during any
period of two (2) consecutive years, as change in the majority of the Board
unless the election of each new Director was approved by at least two-thirds of
the Directors then still in office who were Directors at the beginning of such
two (2) year period.
(c) Limited Stock Appreciation Rights shall be exercised by
written notice to the Corporation as provided in paragraph 10 hereof at any time
prior to the earlier of (i) the date which is thirty (30) days after the date of
notice of a change in control or (ii) the last day of the Option Period provided
for in an Option Agreement, but in no event shall the expiration date be more
than ten (10) years after the date of grant of an Option as provided in
paragraph 8 above.
(d) Limited Stock Appreciation Rights may be exercised only when
the market value of Common Stock subject to an Option exceeds the aggregate
Option Price determined as provided in paragraph 5 above.
10. Exercise of Options. An Option or the right to surrender an Option for
cash as provided in paragraph 9 hereof shall be exercised by written notice to
the Board signed by an Optionee or by such other person as may be entitled to
exercise such Option or to surrender such Option. In the case of the exercise of
an Option, the aggregate Option Price for the shares being purchased may be paid
either in cash or, with the approval of the Board, in shares of the
Corporation's stock (valued as determined by the Board as of the date of
exercise) or any combination thereof and the notice of exercise shall specify
how payment will be made. The written notice shall state the number of shares
with respect to which an Option is being exercised or surrendered and, in the
case of the exercise of an Option, shall either be accompanied by the payment of
the aggregate Option Price for such shares or shall fix a date (not more than
ten (10) business days after the date of such notice) by which the payment of
the aggregate Option Price will be made. An Optionee shall not exercise an
Option to purchase less than 100 shares, unless the Board otherwise approves or
unless the partial exercise is for the remaining shares available under such
Option. A certificate or certificates for the shares of Common Stock purchased
by the exercise of an Option shall be issued in the regular course of business
subsequent to the exercise of such Option and the payment therefor. During the
Option Period, no person entitled to exercise any Option granted under this Plan
shall have any of the rights or privileges of a shareholder with respect to any
shares of Common Stock issuable upon exercise of such Option, until certificates
representing such shares shall have been issued and delivered and the
individual's name entered as a shareholder of record on the books of the
Corporation for such shares.
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11. Effect of Leaving the Board or Death.
(a) In the event that an Optionee leaves the Board for any reason
other than retirement, disability, or death, any Option granted to the Optionee
under this Plan, to the extent not previously exercised or surrendered by the
Optionee or expired, shall immediately terminate.
(b) In the event that an Optionee should leave a Board as a
result of such Optionee's retirement, such Optionee shall have the right to
exercise an Option granted under this Plan, to the extent that it has not
previously been exercised or surrendered by the Optionee or expired, for such
period of time as may be determined by the Board and specified in an Option
Agreement, but in no event may any Option or the right to surrender any Option
for cash be exercised later than the end of the Option Period provided in the
Option Agreement in accordance with paragraph 8 hereof. Notwithstanding any
other provision contained herein, or in any Option Agreement, upon retirement,
any Option then held by an Optionee shall be exercisable immediately in full.
For purposes of this Plan, the term "retirement" shall mean termination of a
Director's membership on the Board (i) at any time after attaining age 65 with
the approval of the Board; or (ii) at the election of the Director, at any time
after not less than five (5) years service as a member of the Board, such
service shall be computed cumulatively for purposes of this clause (ii).
(c) In the event that an Optionee should leave the Board by
reason of such Optionee's disability, such Optionee shall have the right to
exercise an Option granted under this Plan, to the extent that it has not
previously been exercised or surrendered by the Optionee or expired, for such
period of time as may be determined by the Board and specified in an Option
Agreement, but in no event may any Option or the right to surrender any Option
for cash be exercised later than the end of the Option Period provided in the
Option Agreement in accordance with paragraph 8 hereof. Notwithstanding any
other provision contained herein, or in any Option Agreement, upon leaving by
reason of disability, any Option then held by an Optionee shall be exercisable
immediately in full. For purposes of this Plan, the term "disability" shall be
defined as may be determined by the Board, from time to time, or as determined
at any time with respect to any individual Optionee.
(d) In the event that an Optionee should die while serving on the
Board after leaving by reason of disability during the Option Period provided in
an Option Agreement in accordance with paragraph 8 hereof, an Option granted
under this Plan, to the extent that it has not previously been exercised or
surrendered by the Optionee or expired, shall vest and shall be exercisable, in
accordance with its terms, by the personal representative of such Optionee, the
executor or administrator of such Optionee's estate, or by any person or persons
who acquired such Option by bequest or inheritance from such Optionee,
notwithstanding any limitations placed on the exercise of such Option by this
Plan or an Option Agreement, at any time within twelve (12) months after the
date of
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death of such Optionee, but in no event may an Option or the right to surrender
an Option for cash be exercised later than the end of the Option Period provided
in an Option Agreement in accordance with paragraph 8 hereof. Any references
herein to an Optionee shall be deemed to include any person entitled to exercise
an Option after the death of such Optionee under the terms of this Plan.
12. Effect of Plan on Status as Member of a Board. The fact that a Director
has been granted an Option under this Plan shall not confer on such Director any
right to continued service on the Board, nor shall it limit the right of the
Corporation to remove such Director from the Board at any time.
13. Adjustment Upon Changes in Capitalization; Dissolution
or Liquidation.
(a) In the event of a change in the number of shares of Common
Stock outstanding by reason of a stock dividend, stock split, recapitalization,
reorganization, merger, exchange of shares, or other similar capital adjustment
prior to the termination of an Optionee's rights under this Plan, equitable
proportionate adjustments shall be made by the Board in (i) the number and kind
of shares which remain available under this Plan and (ii) the number, kind, and
the Option Price of shares subject to the unexercised portion of an Option under
this Plan. The adjustments to be made shall be determined by the Board and shall
be consistent with such change or changes in the Corporation's total number of
outstanding shares; provided, however, that no adjustment shall change the
aggregate Option Price for the exercise of Options granted under this Plan.
(b) The grant of Options under this Plan shall not affect in any
way the right or power of the Corporation or its shareholders to make or
authorize any adjustment, recapitalization, reorganization, or other change in
the Corporation's capital structure or its business, or any merger or
consolidation of the Corporation, or to issue bonds, debentures, preferred or
other preference stock ahead of or affecting Common Stock or the rights thereof,
or the dissolution or liquidation of the Corporation, or any sale or transfer of
all or any part of the Corporation's assets or business.
(c) Upon the effective date of the dissolution or liquidation of
the Corporation, or of a reorganization, merger, or consolidation of the
Corporation with one or more other corporations in which the Corporation is not
the surviving corporation, or the transfer of all or substantially all of the
assets or shares of the Corporation to another person or entity (any such
transaction being hereinafter referred to as a "Terminating Event"), this Plan
and any Options granted hereunder, including the right to surrender such Options
for cash as provided in paragraph 9 hereof, shall terminate unless provision is
made in writing in connection with such Terminating Event for the continuance of
this Plan and for the assumption of Options granted
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hereunder, or the substitution for such Options of new options for the shares of
the successor corporation, or a parent or a subsidiary thereof, with such
appropriate adjustments as may be determined or approved by the Board, or the
successor to the Corporation, to the number and kind of shares subject to such
substituted options in which event this Plan and Options granted hereunder, or
the new options substituted therefore, shall continue in the manner and under
the terms so provided. Upon the occurrence of any Terminating Event in which
provision is not made for the continuance of this Plan and for the assumption of
Options granted hereunder, or the substitution for such Options of new options
for the shares of a successor corporation or a parent or a subsidiary thereof,
each Optionee to whom an Option has been granted under this Plan (or such
person's personal representative, the executor or administrator of such person's
estate, or any person who acquired the right to exercise such Option from such
person by bequest or inheritance) shall be entitled, prior to the effective date
of any such Terminating Event, (i) to exercise, in whole or in part, the
Optionee's rights under any Option granted to the Optionee without any regard to
any restrictions on exercise that would otherwise apply, or (ii) to surrender
any such Option to the Corporation in exchange for receipt of cash equivalent to
the amount by which the fair market value of the shares of Common Stock such
person would have received had such person exercised the Option in full
immediately prior to consummation of such Terminating Event exceeds the
applicable aggregate Option Price. To the extent that a person, pursuant to this
subparagraph 11(c) has a right to exercise or surrender any Option on account of
a Terminating Event which such person otherwise would not have had at that time,
such right shall be contingent upon the consummation of such Terminating Event.
14. Non-Transferability. An Option granted under this Plan shall not be
assignable or transferable except, in the event of the death of an Optionee, by
will or by the laws of descent and distribution. In the event of the death of an
Optionee, his personal representative, the executor or the administrator of such
Optionee's estate, or the person or persons who acquired by bequest or
inheritance the rights to exercise or to surrender such Options, may exercise or
surrender any Option or portion thereof to the extent not previously exercisable
or surrendered by an Optionee or expired, in accordance with its terms, prior to
the expiration of the exercise period as specified in subparagraph 11(d) hereof.
15. Tax Withholding. The Corporation or any of its subsidiaries shall have
the right to deduct or otherwise effect a withholding of any amount required by
federal or state laws to be withheld with respect to the grant, exercise or
surrender for cash of any Option or the sale of stock acquired upon the exercise
of an Option in order for the Corporation or any of its subsidiaries to obtain a
tax deduction otherwise available as a consequence of such grant, exercise,
surrender for cash, or sale, as the case may be.
16. Listing and Registration of Option Shares. Any Option granted
under this Plan shall be subject to the requirement that if
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at any time the Board shall determine, in its discretion, that the listing,
registration, or qualification of the shares covered thereby upon any securities
exchange or under any state or federal law or the consent or approval of any
governmental regulatory body is necessary or desirable as a condition of, or in
connection with, the granting of such Option or the issuance or purchase of
shares thereunder, such Option may not be exercised in whole or in part unless
and until such listing, registration, qualification, consent, or approval shall
have been effected or obtained free of any conditions not acceptable to the
Board.
17. Exculpation and Indemnification. In connection with this Plan, no member
of the Board shall be personally liable for any act or omission to act in such
person's capacity as a member of the Board, nor for any mistake in judgment made
in good faith, unless arising out of, or resulting from, such person's own bad
faith, gross negligence, willful misconduct, or criminal acts. To the extent
permitted by applicable law and regulation, the Corporation shall indemnify and
hold harmless the members of the Board, and each other officer or employee of
the Corporation or of any of its subsidiaries to whom any duty or power relating
to the administration or interpretation of this Plan may be assigned or
delegated, from and against any and all liabilities (including any amount paid
in settlement of a claim with the approval of the Board) and any costs or
expenses (including counsel fees) incurred by such persons arising out of or as
a result of, any act or omission to act in connection with the performance of
such person's duties, responsibilities, and obligations under this Plan, other
than such liabilities, costs, and expenses as may arise out of, or result from,
the bad faith, gross negligence, willful misconduct, or criminal acts of such
persons.
18. Amendment and Modification of this Plan. The Board may at any time, and
from time to time, amend or modify this Plan (including the form of Option
Agreement) in any respect; provided, however, that no amendment or modification
shall be made that increases the total number of shares covered by this Plan or
effects any change in the category of persons who may receive Options under this
Plan or materially increases the benefits accruing to Optionees under this Plan
unless such change is approved by the holders of a majority of the outstanding
shares of Common Stock present or represented at a shareholders' meeting at
which a quorum is present. Any amendment or modification of this Plan shall not
materially reduce the benefits under any Option therefore granted to an Optionee
under this Plan without the consent of such Optionee or the transferee in the
event of the death of such Optionee.
19. Termination and Expiration of this Plan. This Plan may be abandoned,
suspended, or terminated at any time by the Board; provided, however, that
abandonment, suspension, or termination of this Plan shall not affect any
Options then outstanding under this Plan. No Option shall be granted pursuant to
this Plan after ten (10) years from the effective date of this Plan as provided
in paragraph 20 hereof.
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20. Effective Date; Shareholder Approval. This Plan has been adopted by the
Board to be effective as of the date of the Conversion. This Plan shall not be
effective until approved by the holders of a majority of the outstanding shares
of Common Stock present or represented at a shareholders' meeting at which a
quorum is present; which shareholder vote shall be taken at the next meeting of
the shareholders to occur following such Board approval. Such next meeting of
shareholders shall be held not later than twelve (12) months after the
Conversion.
21. Captions and Headings; Gender and Number. Captions and paragraph headings
used herein are for convenience only, do not modify or affect the meaning of any
provision herein, are not a part hereof, and shall not serve as a basis for
interpretation or in construction of this Plan. As used herein, the masculine
gender shall include the feminine and neuter, the singular number, the plural,
and vice versa, whenever such meanings are appropriate.
22. Expenses of Administration of Plan. All costs and expenses incurred in
the operation and administration of this Plan shall be borne by the Corporation
or by one of its subsidiaries.
23. Governing Law. Without regard to the principles of conflicts of laws, the
laws of the State of North Carolina shall govern and control the validity,
interpretation, performance, and enforcement of this Plan.
24. Inspection of Plan. A copy of this Plan, and any amendments thereto or
modifications thereof, shall be maintained by the Secretary of the Corporation
and shall be shown to any proper person making inquiry about it.
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STATE OF NORTH CAROLINA EXHIBIT A
COUNTY OF WASHINGTON
NONSTATUTORY STOCK OPTION AGREEMENT
This Nonstatutory Stock Option Agreement (hereinafter referred to as this
"Agreement") is made and entered into as of this day of , 1993,
between Seaboard Savings Bank, Inc., SSB, a North Carolina corporation
(hereinafter referred to as the "Corporation"), and , a resident of
County, North Carolina (hereinafter referred to as the
"Optionee").
WHEREAS, the Board of Directors of the Corporation (hereinafter referred to
as the "Board") has adopted the Seaboard Savings Bank, Inc., SSB 1993
Nonstatutory Stock Option Plan for Directors (hereinafter referred to as the
"Plan") subject to approval by the Corporation's shareholders as provided in the
Plan; and,
WHEREAS, the Plan provides that the Board will make available to the
Directors (as defined in the Plan) of the Corporation and of its subsidiary
corporations, the right to purchase shares of the Corporation's common stock
(hereinafter referred to as "Common Stock") and, when so notified by the Board,
the right to surrender such shares for cash; and
WHEREAS, the Board has determined that the Optionee is entitled to purchase
shares of Common Stock under the Plan;
NOW, THEREFORE, the Corporation and the Optionee agree as follows:
1. Date of Grant of Option. The date of grant of the option granted under
this Agreement is the day of , 1993.
2. Grant of Option. Pursuant to the Plan, the Corporation grants to the
Optionee the right (hereinafter referred to as the "Option") to purchase from
the Corporation all or a portion of an aggregate number of ( ) shares of
Common Stock (hereinafter referred to as the "Option Shares") which shall be
authorized but unissued shares.
3. Option Price. The price to be paid for the Option Shares shall be
Dollars ($ ) per share (hereinafter referred to as the "Option Price") which is
the fair market value of the Option Shares as determined by the Board as of the
date of grant of this Option.
4. Period within which Option may be Exercised. Subject to any further
restrictions in this Agreement, the Optionee shall have the right to exercise
the Option to purchase the Option Shares at
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any time after the date of grant of this Option; and the Optionee, in his or her
discretion, may exercise all or any portion of the Option, subject to paragraph
6 hereof. The Option shall terminate as provided in paragraph 7 hereof.
5. Change in Control.
(a) In connection with the Option, the Optionee has the right,
following a "change in control" (as defined in the Plan) of the Corporation, and
without regard to any restrictions on exercise that would otherwise apply, to
surrender any unexercised portion of the Option as the Optionee then may have
for a cash payment equal to the amount by which the fair market value (as
determined by the Board) of the number of shares of Common Stock then subject to
the Option exceeds the aggregate Option Price therefor.
(b) The Optionee shall have the right to surrender the Option by
giving written notice to the Board as provided in paragraph 6 hereof at any time
prior to the earlier of (i) the date which is thirty (30) days after the date of
notice of a change in control or (ii) the date which is ten (10) years after the
date of grant of the Option as set forth in paragraph 1 hereof.
(c) The Option may be surrendered for cash pursuant to this
paragraph 5 only when the market value of Common Stock subject to the Option
exceeds the aggregate Option Price as provided in paragraph 3 above.
(d) If the Optionee surrenders the Option for cash, the cash
payment due to the Optionee shall be made by the Corporation no more than then
(10) business days after the date of the receipt by the Board of the notice of
surrender of the Option.
6. Method of Exercise. The Option or the right to surrender the Option for
cash as provided in paragraph 5 hereof shall be exercised by written notice to
the Board signed by the Optionee or by such other person as may be entitled to
exercise or to surrender the Option. In the case of the exercise of the Option,
the aggregate Option Price for the shares being purchased may be paid either in
cash or, with the approval of the Board, in shares of the Corporation's stock
(valued as determined by the Board as of the date of exercise) or any
combination thereof and the notice of exercise shall specify how payment will be
made. The written notice shall state the number of shares with respect to which
the Option is being exercised or surrendered and, in the case of the exercise of
the Option, shall either be accompanied by the payment of the aggregate Option
Price for such shares or shall fix a date (not more than ten (10) business days
after the date of such notice) by which the payment of the aggregate Option
Price will be made. The Optionee shall not exercise the Option to purchase less
than 100 shares, unless the Board otherwise approves or unless the partial
exercise is for the remaining shares available under the Option. A certificate
or certificates for the shares of Common Stock purchased by the exercise of the
Option shall be issued in the regular course of business subsequent to the
exercise of the Option and the payment therefor. Neither the Optionee, nor any
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other person who may be entitled to exercise the Option, shall have any of the
rights or privileges of a shareholder with respect to any shares of Common Stock
issuable upon exercise of the Option, until certificates representing such
shares shall have been issued and delivered and the individual's name entered as
a shareholder of record on the books of the Corporation for such shares.
7. Termination of Option. The Option and any right to surrender the Option
for cash shall terminate on the earlier of:
(a) Except as provided in subparagraphs (b), (c) and (d) below,
the Option, to the extent that it has not been exercised, surrendered or
expired, shall terminate on the earlier of (i) the date the Optionee leaves the
Board for any reason other than retirement, disability or death (ii) the date
which is ten (10) years after the date of grant of the Option as set forth in
paragraph 1 hereof.
(b) In the event the Optionee retires prior to the date which is
ten (10) years after the date of grant of the Option as set forth in paragraph 1
hereof, the Optionee shall have the right to exercise the Option, to the extent
that it has not been exercised or surrendered or expired, for the remainder of
such ten (10) year period.
(c) In the event the Optionee becomes disabled prior to the date
which is ten (10) years after the date of grant of the Option as set forth in
paragraph 1 hereof, the Optionee shall have the right to exercise the Option, to
the extent that it has not been exercised or surrendered by him or expired, for
the remainder of such ten (10) year period.
(d) In the event the Optionee dies while serving on the Board or
after his or her retirement or after his or her leaving by reason of disability,
and prior to the date which is ten (10) years after the date of grant of the
Option as set forth in paragraph 1 hereof, the Option, to the extent that it has
not been exercised or surrendered by the Optionee or expired, shall be
exercisable, according to its terms, by the personal representative, the
executor or the administrator of the Optionee's estate, or the person or persons
who acquired the Option by bequest or inheritance from the Optionee, at any time
within twelve (12) months after the date of death of the Optionee, but in no
event may the Option or the right to surrender the Option for cash be exercised
later than ten (10) years after the date of grant of the Option as set forth in
paragraph 1 hereof.
8. Effect of Agreement on Status of Optionee. The fact that the Optionee has
been granted the Option under the Plan shall not confer on the Optionee any
right to continued service on the Board, nor shall it limit the right of the
Corporation to remove the Optionee from the Board at any time.
9. Listing and Registration of Option Shares. The Corporation's obligation to
issue shares of Common Stock upon
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exercise of the Option is expressly conditioned upon the completion by the
Corporation of any registration or other qualification of such shares under any
state or federal law or regulations or rulings of any governmental regulatory
body or the making of such investment representations or other representations
and agreements by the Optionee or any person entitled to exercise the Option in
order to comply with the requirements of any exemption from any such
registration or other qualification of the Option Shares which the Board shall,
in its discretion, deem necessary or advisable. Notwithstanding the foregoing,
the Corporation shall be under no obligation to register or qualify the Option
Shares under any state or federal law. The required representations and
agreements referenced above may include representations and agreements that the
Optionee, or any other person entitled to exercise the Option, (i) is purchasing
such shares on his or her own behalf as an investment and not with a present
intention of distribution or resale and (ii) agrees to have placed upon any
certificates representing the Option Shares a legend setting forth any
representations and agreements which have been given to the Board or a reference
thereto and stating that such shares may not be transferred except in accordance
with all applicable state and federal securities laws and regulations, and
further representing that, prior to making any sale or other disposition of the
Option Shares, the Optionee, or any other person entitled to exercise the
Option, will give the Corporation notice of the intention to sell or dispose of
such shares not less than five (5) days prior to such sale or disposition.
10. Adjustment Upon Changes in Capitalization; Dissolution
or Liquidation.
(a) In the event of a change in the number of shares of Common
Stock outstanding by reason of a stock dividend, stock split, recapitalization,
reorganization, merger, exchange of shares, or other similar capital adjustment,
prior to the termination of the Optionee's rights under this Agreement,
equitable proportionate adjustments shall be made by the Board in the number,
kind, and the Option Price of shares subject to the unexercised portion of the
Option. The adjustments to be made shall be determined by the Board and shall be
consistent with such changes or changes in the Corporation's total number of
outstanding shares; provided, however, that no adjustment shall change the
aggregate Option Price for the exercise of the Option granted.
(b) The grant of the Option under this Agreement shall not affect
in any way the right or power of the Corporation or its shareholders to make or
authorize any adjustment, recapitalization, reorganization, or other change in
the Corporation's capital structure or its business, or any merger or
consolidation of the Corporation, or to issue bonds, debentures, preferred or
other preference stock ahead of or affecting Common Stock or the rights thereof,
or the dissolution or liquidation of the Corporation, or any sale or transfer of
all or any part of the Corporation's assets or business.
(c) Upon the effective date of the dissolution or
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liquidation of the Corporation, or of a reorganization, merger, or consolidation
of the Corporation with one or more other corporations in which the Corporation
is not the surviving corporation, or the transfer of all or substantially all of
the assets or shares of the Corporation to another person or entity, the Option
granted under this Agreement and the right to exercise or to surrender the
Option for cash in the event of a "Terminating Event" as provided in the Plan
shall terminate.
11. Non-Transferability. The Option granted under this Agreement shall not be
assignable or transferable except, in the event of the death of the Optionee, by
will or by the laws of descent and distribution. In the event of the death of
the Optionee, the personal representative, the executor or the administrator of
the Optionee's estate, or the person or persons who acquired by bequest or
inheritance the right to exercise or to surrender the Option may exercise or
surrender the unexercised Option or portion thereof, in accordance with the
terms hereof, prior to the date which is ten (10) years after the date of grant
of the Option as set forth in paragraph 1 hereof.
12. Tax Withholding. The grant of the Option and Option Shares delivered
pursuant to this Agreement, and any amounts distributed with respect thereto,
may be subject to applicable federal, state and local withholding for taxes. The
Optionee expressly acknowledges and agrees to such withholding, where
applicable, without regard to whether the Option Shares may then be sold or
otherwise transferred by the Optionee.
13. Notices. Any notices or other communications required or permitted to be
given under this Agreement shall be in writing and shall be deemed to have been
sufficiently given if delivered personally or when deposited in the United
States mail as Certified Mail, return receipt requested, properly addressed and
postage prepaid, if to the Corporation, at its principal office at 124 Water
Street, Plymouth, North Carolina 27962; and, if to the Optionee, at his or her
last address appearing on the books of the Corporation. The Corporation and the
Optionee may change their address or addresses by giving written notice of such
change as provided herein. Any notice or other communication hereunder shall be
deemed to have been given on the date actually delivered or as of the third
(3rd) business day following the date mailed, as the case may be.
14. Construction Controlled by Plan. This Agreement shall be construed so as
to be consistent with the Plan; and the provisions of the Plan shall be deemed
to be controlling in the event that any provision hereof should appear to be
inconsistent therewith. The Optionee hereby acknowledges receipt of a copy of
the Plan from the Corporation.
15. Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be valid and
enforceable under applicable law, but if any provision of this
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Agreement is determined to be unenforceable, invalid or illegal, the validity of
any other provision or part thereof, shall not be affected thereby and this
Agreement shall continue to be binding on the parties hereto as if such
unenforceable, invalid or illegal provision or part thereof had not been
included herein.
16. Modification of Agreement; Waiver. This Agreement may be modified,
amended, suspended or terminated, and any terms, representations or conditions
may be waived, but only by a written instrument signed by each of the parties
hereto. No waiver hereunder shall constitute a waiver with respect to any
subsequent occurrence or other transaction hereunder or of any other provision
hereof.
17. Captions and Hearings; Gender and Number. Captions and paragraph headings
used herein are for convenience only, do not modify or affect the meaning of any
provision herein, are not a part hereof, and shall not serve as a basis for
interpretation or in construction of this Agreement. As used herein, the
masculine gender shall include the feminine and neuter, the singular number, the
plural, and vice versa, whenever such meanings are appropriate.
18. Governing Law; Venue and Jurisdiction. Without regard to the principles
of conflicts of laws, the laws of the State of North Carolina shall govern and
control the validity, interpretation, performance, and enforcement of this
Agreement. The parties hereto agree that any suit or action relating to this
Agreement shall be instituted and prosecuted in the courts of the County of
Washington, State of North Carolina, and each party hereby does waive any right
or defense relating to such jurisdiction and venue.
19. Binding Effect. This Agreement shall be binding upon and shall
inure to the benefit of the Corporation, its successors and assigns, and shall
be binding upon and inure to the benefit of the Optionee, his heirs, legatees,
personal representatives, executors, and administrators.
20. Entire Agreement. This Agreement constitutes and embodies the entire
understanding and agreement of the parties hereto and, except as otherwise
provided hereunder, there are no other agreements or understandings, written or
oral, in effect between the parties hereto relating to the matters addressed
herein.
21. Counterparts. This Agreement may be executed in any number of
counterparts, each of which when executed and delivered shall be deemed an
original, but all of which taken together shall constitute but one and the same
instrument.
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IN WITNESS WHEREOF, the Corporation has caused this instrument to be executed
in its corporate name by its President, or one of its Vice Presidents, and
attested by its Secretary or one of its Assistant Secretaries, and its corporate
seal to be hereto affixed, all by authority of its Board of Directors first duly
given, and the Optionee has hereunto set his or her hand and adopted as his or
her seal the typewritten word "SEAL" appearing beside his or her name, all done
this the day and year first above written.
SEABOARD SAVINGS BANK, INC., SSB
By: ___________________________________
Samuel J. Styons, President
Attest:
________________________________
Amber Bland, Corporate Secretary
[CORPORATE SEAL]
__________________________________
________________________, Optionee
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EXHIBIT A
NOTICE OF EXERCISE OF
NONSTATUTORY STOCK OPTION
To: The Board of Directors of Seaboard Savings Bank, Inc., SSB.
The undersigned hereby elects to purchase whole shares of
Common Stock of Seaboard Savings Bank, Inc., SSB (the "Corporation") pursuant to
the Nonstatutory Stock Option granted to the undersigned in that certain
Nonstatutory Stock Option Agreement between the Corporation and the undersigned
dated the day of , 1993. The aggregate purchase price for such
shares is $ , which amount is (i) being tendered herewith, (ii) will
be tendered on or before , 199 , (cross out provision which
does not apply) in cash and/or stock of the Corporation owned by me, and I
request that a value as of the date of exercise of the Option be placed on
any stock being tendered in payment of the purchase price. The effective
date of this election shall be , 199 , or the date of receipt
of this Notice by the Corporation if later.
Executed this day of , 199 , at
.
(Social Security Number)
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