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 Incentive Stock Option Plan
(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 28,571 $7.3228 $209,220 $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,
2
<PAGE>
reasonably believed that his or her conduct was in the corporation's best
interests, and (ii) in all other cases, reasonably believed that 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
3
<PAGE>
on behalf of the corporation itself) arising out of their status as such or
their activities in any of the foregoing capacities. However, 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 Incentive Stock Option Plan.
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 Incentive Stock Option
Plan, together with form of option
agreement with Option Holders.
<PAGE>
<PAGE>
April 1, 1995
The Board of Directors
United Carolina Bancshares Corporation
Post Office Box 632
Whiteville, North Carolina 28472
RE: Our File 80-0785(R)
Gentlemen:
You have asked for our opinion regarding 28,571 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 Incentive Stock Option Plan (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
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
<PAGE>
The Board of Directors
United Carolina Bancshares Corporation
Page 2
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>
<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 Incentive Stock Option Plan 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
<PAGE>
SEABOARD SAVINGS BANK, INC., SSB
1993 INCENTIVE STOCK OPTION PLAN
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 Incentive Stock
Option Plan (hereinafter referred to as this "Plan") which was adopted by the
Corporation's Board of Directors (hereinafter referred to as the "Board")
subject to approval by the Corporation's shareholders as provided in Paragraph
22 hereof.
1. Purpose of the Plan. The purpose of this Plan is to
provide for the grant of Incentive Stock Options (hereinafter referred to as
"Option" or "Options") qualifying for the tax treatment afforded by Section 422
of the Internal Revenue Code of 1986, as amended, and in certain circumstances
the right to surrender such Options for cash, to eligible officers and employees
of the Corporation (hereinafter referred to as "Eligible Employees") who wish to
invest in the Corporation's common stock (hereinafter referred to as "Common
Stock"). The Corporation believes that participation in the ownership of the
Corporation by Eligible Employees will be to the mutual benefit of the
Corporation and Eligible Employees. The existence of this Plan will make it
possible for the Corporation and its subsidiaries to attract capable individuals
to employment in key employee positions.
2. Administration of the Plan.
(a) This Plan shall be administered by the
Stock Option Committee of the Board (hereinafter referred to as the
"Committee"). The Committee shall consist of three (3) members of the Board all
of whom shall qualify as disinterested persons as provided in Section 16(b) and
the rules and regulations thereunder of the Securities Exchange Act of 1934, as
amended. The members of the Committee shall be appointed by the Board and shall
serve at the pleasure of the Board, which may remove members from, add members
to, or fill vacancies in the Committee.
(b) The Committee shall decide to whom Options
shall be granted under this Plan, the number of shares as to which Options shall
be granted, the Option Price (as hereinafter defined) for such shares and such
additional terms and conditions for such Options as the Committee deems
appropriate. Also, the Committee shall determine when Limited Stock Appreciation
Rights (as hereinafter described) shall be available in place of outstanding
Options.
(c) A majority of the Committee shall
constitute a quorum and the acts of a majority of the members present at any
meeting at which a quorum is present, or acts approved unanimously in writing by
the Committee, shall be considered as valid actions by the Committee.
(d) The Board may designate any officers or
employees of the Corporation 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
<PAGE>
ministerial and limited discretionary duties as the Board may deem fit.
3. Shares of Commons Stock Subject to the Plan. The number
of shares of Common Stock that shall be available initially for Options under
this Plan is twenty four thousand six hundred and twenty five (24,625) shares,
subject to adjustment as provided in Paragraph 16 hereof. Shares subject to
Options which expire or terminate prior to the issuance of the shares of Common
Stock shall again be available for future grants of Options under this Plan.
4. Eligibility. Options under this Plan may be granted to
any Eligible Employee as determined by the Committee. An individual may hold
more than one Option under this or other plans adopted by the Corporation.
5. Grant of Options.
(a) Upon the conversion of the Corporation
from a North Carolina-chartered mutual savings bank to a North
Carolina-chartered stock savings bank (hereinafter referred to as the
"Conversion"), the Committee has authorized that Options for twenty four
thousand six hundred and twenty five (24,625) shares of Common Stock shall be
granted to certain current officers and employees of the Corporation which
Options shall be granted based upon the past service and the continued
participation of those individuals in the management of the Corporation.
(b) Upon the forfeiture of an Option for
whatever reason prior to the expiration of the Option Period (as defined in
Paragraph 9 hereof) the shares of Common Stock covered by a forfeited Option
shall be available for the granting of additional Options to Eligible Employees
during the remaining term of this Plan upon such terms and conditions as may be
determined by the Committee. The number of additional Options to be granted to
specific Eligible Employees during the term of this Plan shall be determined by
the Committee as provided in Subparagraph 2(b) hereof.
6. Option Price.
(a) The price per share of each Option granted
under this Plan (hereinafter called the "Option Price") shall be determined by
the Committee as of the effective date of grant of such Option, but in no event
shall the Option Price be less than 100% of the fair market value of Common
Stock on the date of grant. If an Optionee (as hereinafter defined) at the time
that an Option is granted owns stock possessing more than ten (10%) percent of
the total combined voting power of all classes of stock of the Corporation, then
the Option Price per share of each Option granted under this Plan shall be no
less than 110% of the fair market value of Common Stock on the date of grant and
such Option shall not be exercisable more than five (5) years from the date of
grant. An Option shall be considered as granted on the date that the Committee
acts to grant such Option or such later date as the Committee shall specify in
an Option Agreement (as hereinafter defined).
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(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 on 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 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 Committee, for the trading date first preceding the date as of which such
determination is made. If the Committee determines that the price as determined
above does not represent the fair market value of a share of Common Stock, the
Committee may then consider such other factors as it deems appropriate and then
fix the fair market value for the purposes of this Plan.
7. Payment of Option Price. Payment for shares subject to an
Option may be made either in cash or, with the approval of the Committee, in
other stock of the Corporation owned by the person to whom such Option was
granted 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
Committee, on the date of the exercise of such Option.
8. Terms and Conditions of Grant of Options. Each Option
granted pursuant to this Plan shall be evidenced by a written Incentive Stock
Option Agreement (hereinafter referred to as "Option Agreement") with each
Eligible Employee (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 Committee shall adopt a different form and, in each
case, may contain such other, different, or additional terms and conditions as
the Committee may determine.
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9. 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.
10. Limitation on Grant of Incentive Stock Options.
Notwithstanding any other provision of this Plan, no person shall be granted an
Option under this Plan which would cause such person's "annual vesting amount"
to exceed $100,000.00. With respect to any calendar year, a person's "annual
vesting amount" is the aggregate fair market value of stock subject to incentive
stock options with respect to which such options are first exercisable during
such calendar year. For purposes of the foregoing, the aggregate fair market
value of stock with respect to which incentive stock options are first
exercisable during any calendar year shall be determined by taking into account
all such options granted to such person under all incentive stock option plans
of the Corporation or of any of its parent or subsidiary corporations.
11. Change in Control; Limited Stock Appreciation
Rights.
(a) In connection with the grant of any Option
under this Plan, the Committee 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
Committee) 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 twenty (20%) percent of
the Corporation's outstanding stock or (ii) during any period of two (2)
consecutive years, a 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 12
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 in the 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 9 above.
(d) Limited Stock Appreciation Rights may be
exercised only when the market value of Common Stock subject to an
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Option exceeds the aggregate Option Price determined as provided in Paragraph 6
above.
12. Exercise of Incentive Stock Options. An Option or the
right to surrender an Option for cash as provided in Paragraph 11 hereof shall
be exercised by written notice to the Committee 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 Committee, in shares of the Corporation's stock (valued as determined by the
Committee 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 from 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 Committee 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.
13. Effect of Termination of Employment, Retirement,
Disability or Death.
(a) In the event of the termination of
employment of an Optionee either by reason of (i) being discharged for cause or
(ii) voluntary separation on the part of such Optionee for a reason other than
retirement or disability, any Option or Options granted to the Optionee under
this Plan, to the extent not previously exercised or surrendered by the Optionee
or expired, shall immediately terminate. The phrase "discharged for cause" shall
include termination at the sole discretion of the Board because of such
Optionee's personal dishonesty, incompetence, willful misconduct, breach of
fiduciary duty involving personal profit, intentional failure to perform stated
duties, willful violation of any law, rule or regulation (other than traffic
violations or similar offenses), a final cease and desist order, or material
breach of any provision of any employment agreement that such Optionee may have
with the Corporation.
(b) In the event of the termination of
employment of an Optionee as a result of such Optionee's retirement, such
Optionee shall have the right to exercise any Option or Options granted to the
Optionee under this Plan, to the extent that they
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have not previously been exercised or surrendered by the Optionee or expired,
for a period of three (3) months after the date of retirement, 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 such Option Agreement in
accordance with Paragraph 9 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 (i) termination of an Optionee's
employment under conditions which would constitute retirement under any tax
qualified retirement plan maintained by the Corporation or any of its
subsidiaries or (ii) attaining age 65.
(c) In the event of the termination of
employment of an Optionee by reason of such Optionee's disability, such Optionee
shall have the right to exercise any Option or Options held by the Optionee, to
the extent that they previously have not been exercised or surrendered by the
Optionee or expired, notwithstanding any limitations placed on the exercise of
such Options by this Plan or an Option Agreement, immediately in full and at any
time within twelve (12) months after the last date on which such Optionee
provides services as an officer or an employee of the Corporation before being
disabled, but in no event may any Option be exercised later than the end of the
Option Period provided in such Option Agreement in accordance with Paragraph 9
hereof. For purposes of this Plan, the term "disability" shall be defined in the
same manner as such term is defined in Section 22(e)(3) of the Internal Revenue
Code of 1986, as amended.
(d) In the event that an Optionee should die
while employed by the Corporation or any of its subsidiaries, or within three
(3) months after retirement, any Option or Options granted to the Optionee under
this Plan and not previously exercised or surrendered by the Optionee or expired
shall vest and shall be exercisable, according to their respective terms, by the
personal representative of such Optionee or by any person or persons who
acquired such Options by bequest or inheritance from such Optionee,
notwithstanding any limitations placed on the exercise of such Options by this
Plan or an Option Agreement, immediately in full and at any time within twelve
(12) months after the date of death of such Optionee, 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 such Option Agreement in accordance with
Paragraph 9 hereof. Any references herein to an Optionee shall be deemed to
include any person entitled to exercise an Option under the terms of this Plan
after the death of such Optionee under the terms of this Plan.
14. Effect of Plan on Employment Status. The fact that the
Committee has granted an Option to an Optionee under this Plan shall not confer
on such Optionee any right to employment with the Corporation or to a position
as an officer or an employee of the Corporation, nor shall it limit the right of
the Corporation to remove such Optionee from any position held by the Optionee
or to terminate the Optionee's employment at any time.
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15. 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 Committee 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 unexercised Options
under this Plan. The adjustments to be made shall be determined by the Committee
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, if any, the
right to surrender such Options for cash as provided in Paragraph 11 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 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 Committee 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 therefor, 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
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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 15(c),
has a right to exercise or surrender any Option on account of a Termination
Event which such person otherwise would not have had at that time, such right
shall be contingent upon the consummating of such Terminating Event.
16. Non-Transferability. Any Option granted under this Plan
shall not be assignable or transferable except, in the case 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, the 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 such Option, may exercise or
surrender any Option or portion thereof to the extent not previously exercised
or surrendered by an Optionee or expired, in accordance with its terms, prior to
the expiration of the exercise period as specified in Subparagraph 13(d) hereof.
17. Tax Withholding. The employer of a person granted an
Option under this Plan 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 employer to
obtain a tax deduction otherwise available as a consequence of such grant,
exercise, surrender for cash, or sale, as the case may be.
18. Listing and Registration of Option Shares. Any Option
granted under the Plan shall be subject to the requirement that if at any time
the Committee 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
Committee.
19. Exculpation and Indemnification. In connection with this
Plan, no member of the Committee shall be personally liable for any act or
omission to act in such person's capacity as a member of the Committee, 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,
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the Corporation shall indemnify and hold harmless the members of the Committee,
and each other officer or employee of the Corporation or of any subsidiary
thereof 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.
20. Amendment and Modification of the 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 categories 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 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 theretofore granted to
an Optionee under this Plan without the consent of such Optionee or the
transferee thereof in the event of the death of such Optionee.
21. Termination and Expiration of the 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 22 hereof.
22. 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 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 of the Corporation to occur following such Board approval. Such
next meeting of shareholders shall be held within twelve (12) months after the
Conversion.
23. 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.
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24. 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 one or more of its subsidiaries.
25. 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.
26. Inspection of Plan. A copy of this Plan, and any
amendments thereto or modification 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
INCENTIVE STOCK OPTION AGREEMENT
This Incentive 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 Incentive Stock Option Plan (hereinafter referred to as the
"Plan") subject to approval by the Corporation's shareholders; and
WHEREAS, the Plan provides that the Stock Option Committee
(hereinafter referred to as the "Committee") of the Board will make available to
certain officers and employees of the Corporation and its subsidiaries (any one
of which, as may be appropriate, is hereinafter referred to as the "Employer")
the right to purchase shares of the Corporation's common stock (hereinafter
referred to as "Common Stock") and, when so notified by the Committee, the right
to surrender such shares for cash; and
WHEREAS, the Committee has determined that the Optionee
should be granted an option to purchase shares of Common Stock under the Plan;
NOW, THEREFORE, the Corporation and the Optionee agree as
follow:
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 any part of an aggregate 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 Committee as of the date of grant of this Option.
4. When and Extent to which Option may be Exercised. Subject
to any further restrictions in this Agreement, the right of the Optionee to
exercise the Option to purchase the Option Shares, either in whole or in part,
shall be conditioned upon the
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completion by the Optionee of one (1) full year of service in the employment of
the Employer following the date of grant of the Option set forth in paragraph 1
hereof. At such time as the Option shall become exercisable in accordance with
this Agreement, the Optionee, in his 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 grant of the
Option, the Committee does hereby grant to the Optionee 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
the Option or any unexercised portion thereof as the Optionee then may hold for
a cash payment equal to the amount by which the fair market value (as determined
by the Committee) 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 Corporation 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 from the date of grant of the Option 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 ten (10) business days after the date of the receipt by the Committee
of the notice of surrender of such 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 Committee 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 Committee, in
shares of the Corporation's stock (valued as determined by the Committee 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 from 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 one hundred (100)
shares, unless the Committee otherwise approves or unless the partial exercise
is for the remaining shares
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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. During the Option Period, no person entitled to exercise the
Option granted under this Agreement 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 as follows:
(a) Except as provided in subparagraphs (b),
(c) and (d) below, the Option granted under this Agreement, to the extent that
it has not been exercised, surrendered or expired, shall terminate on the
earlier of (i) the date that the Optionee is discharged for cause, (ii) the date
the Optionee gives notice that the Optionee terminates his or her employment
with the Employer for a reason other than retirement or disability or (iii) the
date which is ten (10) years from the date of grant of the Option set forth in
paragraph 1 hereof. The phrase "discharged for cause" shall include termination
at the sole discretion of the Board of Directors of the Employer of the Optionee
because of the Optionee's personal dishonesty, incompetence, willful misconduct,
breach of fiduciary duty involving personal profit, intentional failure to
perform stated duties, willful violation of any law, rule or regulation (other
than traffic violations or similar offenses) or final cease and desist order, or
material breach of any provision of any employment agreement that the Optionee
may have with the Employer.
(b) In the event the Optionee retires prior to
the date which is ten (10) years after the date of grant of the Option, the
Optionee shall have the right to exercise the Option, to the extent that it has
not been exercised or surrendered by the Optionee or expired, notwithstanding
any limitation placed on the exercise of the Option by the Plan or by this
Agreement, immediately in full and at any time within three (3) months after the
date of retirement, 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 set forth in paragraph 1 hereof. For purposes of this Agreement,
the term "retirement" shall mean (i) termination of the Optionee's employment
under conditions which would constitute retirement under any tax qualified
retirement plan maintained by the Employer or (ii) attaining age 65.
(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,
the Optionee shall have the right to exercise the Option, to the extent that it
has not been exercised or surrendered by the Optionee or expired,
notwithstanding any limitation placed on the exercise of the Option by the Plan
or by this Agreement, immediately in full and at any time within twelve (12)
months after
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the last date on which the Optionee provided services as an officer or an
employee of the Employer before being disabled, 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 set forth in paragraph 1 hereof. For
purposes of this Agreement, the term "disability" shall be defined in the same
manner as such term is defined in Section 22(e)(3) of the Internal Revenue Code
of 1986, as amended.
(d) In the event the Optionee should die while
employed by the Employer or within three (3) months after retirement but prior
to the date which is ten (10) years after the date of grant of the Option, the
Option, to the extent 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 administrator of the Optionee's estate, or any
person or persons who acquired the Option by bequest or inheritance from the
Optionee, notwithstanding any limitation placed on the exercise of the Option by
the Plan or by this Agreement, immediately in full and 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 from the date of grant of the Option as set forth in paragraph 1
hereof.
8. Effect of Agreement on Employment Status of Optionee. The
fact that the Committee has granted the Option to the Optionee under this
Agreement shall not confer on the Optionee any right to employment with the
Employer or to a position as an officer or an employee of the Employer, nor
shall it limit the right of the Employer to remove the Optionee from any
position held by the Optionee or to terminate his or her employment at any time.
9. Listing and Registration of Option Shares
(a) The Corporation's obligation to issue
shares of Common Stock upon exercise of the Option is expressly conditioned upon
(i) 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
government regulatory body or (ii) 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
Committee shall, in its sole 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 re-sale 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 Committee or a reference thereto and stating that such shares may
not be transferred except in accordance with all
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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 Change 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 Committee in
the number, kind, and the Option Price of shares subject to the unexercised
portion of the Option granted under this Agreement. The adjustments to be made
shall be determined by the Committee 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 the Option granted under this Agreement.
(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 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. Nontransferability. 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 a portion thereof, in
accordance with the terms hereof, prior to the date which is ten (10) years
after the date of grant of Option as set forth in paragraph 1 hereof.
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12. Notices. Any notice 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 when delivered personally or when
deposited in the United States mail as Certified Mail, return receipt requested,
properly addressed with postage prepaid, if to the Corporation at its principal
office at 124 East Water Street, Plymouth, North Carolina 27962; and, if to the
Optionee to his or her last address appearing on the books of the Employer. The
Employer 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.
13. 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.
14. Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such a manner as to be valid and enforceable
under applicable law, but if any provision of this Agreement is determined to be
unenforceable, invalid or illegal, the validity of any other provisions 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.
15. 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 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.
16. 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 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.
17. 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.
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18. 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.
19. 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.
20. 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 one and the
same instrument.
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
INCENTIVE STOCK OPTION
To: The Stock Option Committee of 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 Incentive Stock Option granted to the undersigned in that
certain Incentive 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 this 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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