REGISTRATION STATEMENT NO. 333-_____
Filed June 27, 1996
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
FIRSTBANCORPORATION, INC.
(Exact name of registrant as specified in its charter)
South Carolina 57-1033905
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1121 Boundary Street
Beaufort, South Carolina 29901
(803) 521-5600
(Address of principal executive offices)
FirstBancorporation, Inc.
1986 Bank Incentive Stock Option Plan
1986 Amended and Restated Non-Qualified Stock Option Plan
Stock Option Agreement with Robert A. Kerr
Stock Option Agreement with Bryan K. Newton
1996 Stock Option Plan
(Full title of the Plans)
James A. Shuford, III Copies to:
President and Chief Eric S. Kracov, Esquire
Executive Officer Breyer & Aguggia
FirstBancorporation, Inc. 1300 I Street, N.W.
1121 Boundary Street Suite 470 East
Beaufort, South Carolina 29901 Washington, D.C. 20005
(803) 521-5600 (202) 737-7900
Name, address and telephone
number of agent for service
Page 1 of 7 Pages
Index to Exhibits Appears on Page 4.
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Calculation of Registration Fee
Proposed
Title of Proposed Maximum
Securities Amount Maximum Aggregate Amount of
to be to be Price Per Offering Registration
Registered Registered(1) Share(2) Price Fee
Common Stock,
$.01 par
value 107,879 $10.67 $1,151,069 $397
(1) Estimated solely for the purpose of calculating the
amount of the registration fee. Pursuant to Rule 457(h)(1)
under the Securities Act of 1933, as amended (the "Securities
Act"), the book value per share of the common stock, $.01 par
value (the "Common Stock") of FirstBancorporation, Inc. (the
"Registrant") is estimated to be $10.67 per share, as of March
31, 1996.
(2) Of this number 18,139 shares are being registered for
issuance under the 1986 Bank Incentive Stock Option Plan, 66,601
shares are being registered for issuance under the 1986 Amended
and Restated Non-Qualified Stock Option Plan, 4,054 shares are
being registered for issuance under the Stock Option Agreement
with Robert A. Kerr, dated June 15, 1988, 3,335 shares are being
registered for issuance under the Stock Option Agreement with
Bryan K. Newton, dated June 13, 1996 and 15,750 shares are being
registered for issuance under the 1996 Stock Option Plan (the
foregoing plans are referred to collectively herein as the
"Plans"); together with an indeterminate number of shares
reserved for issuance pursuant to the Plans as a result of any
future stock split, stock dividend or similar adjustment of the
outstanding Common Stock.
This Registration Statement shall become effective
automatically upon the date of filing in accordance with Section
8(a) of the Securities Act of 1933, as amended, and 17 C.F.R.
Section 230.462.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION
STATEMENT
Item 3. Incorporation of Certain Documents by Reference
The following documents filed with the Commission are
incorporated in this Registration Statement by reference:
(1) The Company's Annual Report on Form 10-KSB
(Commission No. 0-28106) for the year ended December 31, 1995;
and
(2) The description of the Common Stock contained in
The Savings Bank of Beaufort County, FSB Proxy Statement dated
April 27, 1995 filed as Exhibit 99.2 to the Registrant's Current
Report on Form 8-K dated November 7, 1995.
All other reports filed by the Registrant pursuant to
Section 13(a) or 15(d) of the Exchange Act, after the date
hereof and prior to the filing of a post-effective amendment
which indicates that all securities offered hereby have been
sold or which deregisters all securities covered hereby then
remaining unsold, shall also be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof
commencing on the respective dates on which such documents are
filed.
Any statement contained in this Registration Statement,
or in a document incorporated or deemed to be incorporated by
reference herein, shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a
statement contained herein, or in any other subsequently filed
document which also is or is deemed to be incorporated by
reference herein, modifies or supersedes such statement. Any
such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of
this Registration Statement.
Item 4. Description of Securities
Not Applicable
Item 5. Interests of Named Experts and Counsel
Not Applicable
Item 6. Indemnification of Directors and Officers
Section 33-8-560 of the South Carolina Business
Corporation Act set forth circumstances under which directors,
officers, employees and agents may be insured or indemnified
against liability which they may incur in their capacities.
Article XIV of the Registrant's Articles of Incorporation
provides for indemnification of the directors, officers,
employees and agents of the Registrant for expenses actually and
reasonably incurred in connection with the defense or settlement
of any threatened, pending or completed action or suit.
Item 7. Exemption From Registration Claimed
Not Applicable
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Item 8. Exhibits
The following exhibits are filed with or incorporated by
reference into this Registration Statement on Form S-8
(numbering corresponds to Exhibit Table in Item 601 of
Regulation S-K):
No. Exhibit
5 Opinion of Breyer & Aguggia
23(a) Consent of J.W. Hunt and Company, LLP
23(b) Consent of Deloitte & Touche LLP
23(c) Consent of Breyer & Aguggia (see Exhibit 5)
24 Power of attorney (see signature pages)
99.1 1986 Bank Incentive Stock Option Plan
99.2 1986 Amended and Restated Non-Qualified Stock
Option Plan
99.3 Stock Option Agreement with Robert A. Kerr,
dated June 15, 1988
99.4 Stock Option Agreement with Bryan K. Newton,
dated June 13, 1996
99.5 1996 Stock Option Plan
Item 9. Undertakings
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, (ii) to reflect in the
prospectus any facts or events arising after the effective date
of the Registration Statement (or 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, and (iii) to include any material
information with respect to the plan of distribution not
previously disclosed in the Registration Statement or any
material change in such information in the Registration
Statement; provided, however, that clauses (i) and (ii) do not
apply if the information required to be included in a
post-effective amendment by those clauses is contained in
periodic reports filed by the Registrant pursuant to Section 13
or Section 15(d) of the Exchange Act that are incorporated by
reference in the Registration Statement.
2. That, for the purposes of determining any liability
under the Securities Act, 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 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.
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4. That, for the purposes of determining any liability
under the Securities Act, each filing of the Registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration
statement relating to the securities offered therein, and that
offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
5. 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 Commission such
indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against liabilities (other than
the payment by 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
questions whether such indemnification by it is against public
policy expressed in the Securities Act will and will be governed
by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of
1933, FirstBancorporation, Inc. 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 Beaufort and State of
South Carolina the 26th day of June 1996.
FIRSTBANCORPORATION, INC.
By: /s/ James A. Shuford, III
James A. Shuford, III
President and Chief Executive Officer
Principal Executive Officer)
POWER OF ATTORNEY
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. Each
person whose signature appears below hereby makes, constitutes
and appoints James A. Shuford, III his true and lawful attorney,
with full power to sign for such person and in such person's
name and capacity indicated below, and with full power of
substitution any and all amendments to this Registration
Statement, hereby ratifying and confirming such person's
signature as it may be signed by said attorney to any and all
amendments.
By:/s/ James A. Shuford, III Date: June 26, 1996
James A. Shuford, III
President, Chief Executive Officer and
Director (Principal Executive Officer)
By:/s/ James L. Pate, III Date: June 26, 1996
James L. Pate, III
Senior Vice President and Chief Financial
Officer (Principal Financial and
Accounting Officer)
By:/s/ Laurance H. Davis, Jr. Date: June 26, 1996
Laurance H. Davis, Jr.
Secretary and Director
By:/s/ Colden R. Battey, Jr. Date: June 26, 1996
Colden R. Battey, Jr.
Chairman of the Board of Directors
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By:/s/ Russell L. Jeter Date: June 26, 1996
Russell L. Jeter
Director
By:/s/ James D. Neighbors Date: June 26, 1996
James D. Neighbors
Director
By:/s/ Richard L. Gray Date: June 26, 1996
Richard L. Gray
Director
By:________________________ Date: _______, 1996
Robert A. Kerr
Director
By:________________________ Date: _______, 1996
Jerry H. Reeves
Director
By:/s/ Carson H. Rentz Date: June 26, 1996
Carson H. Rentz
Director
By:/s/ William C. Robinson Date: June 26, 1996
William C. Robinson
Director
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Exhibit 5
Opinion of Breyer & Aguggia
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June 26, 1996
Board of Directors
FirstBancorporation, Inc.
1121 Boundary Street
Beaufort, South Carolina 29902
Gentlemen:
We have acted as special counsel to FirstBancorporation,
Inc. (the "Corporation"), a South Carolina corporation, in
connection with the preparation and filing with the Securities
and Exchange Commission pursuant to the Securities Act of 1933,
as amended, of a Registration Statement on Form S-8 (the
"Registration Statement"), relating to the registration of up to
107,879 shares of common stock, $.01 par value per share
("Common Stock"), to be issued pursuant to the Corporation's (i)
1986 Bank Incentive Stock Option Plan, (ii) 1986 Amended and
Restated Non-Qualified Stock Option Plan, (iii) Stock Option
Agreement with Robert A. Kerr, dated June 15, 1988, (iv) Stock
Option Agreement with Bryan K. Newton, dated June 13, 1996 and
(v) 1996 Stock Option Plan (together, the "Plans"), upon the
exercise of stock options ("Option Rights"). The Registration
Statement also registers an undeterminable number of additional
shares which may be necessary under the Plans to adjust the
number of shares reserved for issuance as the result of a stock
split, stock dividend or similar adjustment of the outstanding
Common Stock of the Corporation. We have been requested by the
Corporation to furnish an opinion to be included as an exhibit
to the Registration Statement.
We have reviewed the Registration Statement and related
Prospectus, the Articles of Incorporation and Bylaws of the
Corporation, the Plans, a specimen stock certificate evidencing
the Common Stock of the Corporation and such other corporate
records and documents as we have deemed appropriate for the
purpose of rendering this opinion. We are relying upon the
originals, or copies certified or otherwise identified to our
satisfaction, of the corporate records of the Corporation and
such other instruments, certificates and representations of
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public officials, officers and representatives of the
Corporation as we have deemed appropriate or relevant as a basis
for the opinion set forth below. In addition, we have assumed,
without independent verification, the genuineness of all
signatures and the authenticity of all documents furnished to us
and the conformity in all respects of copies to originals.
For purposes of this opinion, we have also assumed that
(i) the shares of Common Stock issuable pursuant to Option
Rights granted under the terms of the Plans will continue to be
validly authorized on the dates the Common Stock is issued
pursuant to the Option Rights; (ii) on the dates the Option
Rights are exercised, the Option Rights granted under the terms
of the Plans will constitute valid, legal and binding
obligations of the Corporation and will (subject to applicable
bankruptcy, moratorium, insolvency, reorganization and other
laws and legal principles affecting the enforceability of
creditors' rights generally) be enforceable as to the
Corporation in accordance with their terms; (iii) no change
occurs in applicable law or the pertinent facts; and (iv) the
provisions of "blue sky" and other securities laws as may be
applicable have been complied with to the extent required.
Based upon the foregoing, and subject to the
qualifications and assumptions set forth herein, we are of the
opinion as of the date hereof that the shares of Common Stock to
be issued pursuant to the Plans, when issued pursuant to and in
accordance with the Registration Statement, and with respect to
the Plans, upon receipt of the consideration required thereby,
will be legally issued, fully paid and non-assessable shares of
Common Stock of the Corporation.
We hereby consent to the filing of this opinion as an
exhibit to the Registration Statement.
Sincerely,
/s/ Breyer & Aguggia
BREYER & AGUGGIA
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Exhibit 23(a)
Consent of J.W. Hunt and Company, LLP
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INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this
Registration Statement of FirstBancorporation, Inc. on Form S-8
of our report dated January 24, 1996, incorporated by reference
in the Annual Report on Form 10-KSB of FirstBancorporation, Inc.
for the year ended December 31, 1995.
/s/ J.W. Hunt and Company, LLP
Columbia, South Carolina
June 25, 1996
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EXHIBIT 23(b)
Consent of Deloitte & Touche LLP
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INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this
Registration Statement of FirstBancorporation,Inc.on FormS-8 of
our report dated January 31, 1995 (March 26, 1996 as to the
second sentence in Note 12) with respect to the financial
statements for the years ended December 31, 1994 and 1993,
appearing in the Annual Report on Form 10-KSB of
FirstBancorporation for the year ended December 31, 1995.
/s/ Deloitte & Touche LLP
Columbia, South Carolina
June 25, 1996
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Exhibit 23(c)
Consent of Breyer & Aguggia (see Exhibit 5)
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Exhibit 24
Power of Attorney (see signature page)
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Exhibit 99.1
1986 Bank Incentive Stock Option Plan
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THE SAVINGS BANK OF BEAUFORT COUNTY, F.S.B.
INCENTIVE STOCK OPTION PLAN
1. PURPOSE. This plan, which shall be known as the
"Incentive Stock Option Plan" (hereinafter referred to as the
"Plan"), is to advance the interests of the Savings Bank of
Beaufort County, F.S.B. (hereinafter referred to as the "Bank"),
and its shareholders by strengthening the ability of the Bank
and its subsidiaries to attract and retain, in key positions
officers and key employees of training, experience, and ability,
and to furnish additional incentive to those of its officers and
key employees upon whose judgment, initiative and efforts the
successful conduct and growth of its business largely depend, by
encouraging them to become owners or increase their ownership of
common stock of the Bank.
This Plan is adopted pursuant to the requirements of
Section 422A of the Internal Revenue Code with the intention of
satisfying all provisions thereof.
2. SHARES SUBJECT TO THE PLAN. As of March 31, 1986,
50,000 authorized but unissued shares of the $5.00 per value
common stock of the Bank (hereinafter referred to as "Stock")
will be reserved for issuance upon the exercise of options
granted from time to time under the Plan (hereinafter referred
to as "Options").
3. ADMINISTRATION. The Board of Directors of the Bank
shall appoint at least 3 Board members to serve as the Stock
Option Committee (the "Committee"). No member of the Committee
shall be eligible to receive an Option. Subject to the
provisions of the Plan, the Committee shall have full and
exclusive authority to determine the officers and key employees
to whom Options shall be granted, the number of shares of stock
to be covered by each Option, and the time or times at which
Options shall be granted; to interpret the Plan; and to make,
amend, and rescind rules and regulations pertaining to the Plan.
As previously stated, the Plan is intended to conform to
the provisions of Section 422A of the Internal Revenue Code of
1954, as amended, and the Committee shall interpret and
administer it accordingly.
The members of the Committee shall serve at the pleasure
of the Board of Directors. The Committee shall select one of
its members as its chairman and shall hold its meetings at such
times and places as it shall deem advisable. A majority of its
members shall constitute a quorum, and all actions of the
Committee shall be taken by a majority of its members at a
meeting duly called and held. The Committee shall appoint a
secretary, who may be but need not be a member of the Committee,
to keep minutes of its meetings, and shall make such rules and
regulations for the conduct of its business as it shall deem
advisable.
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4. ELIGIBILITY. Options may be granted only to
officers and key employees who are in the active full-time
employment of the Bank and its wholly-owned subsidiaries who are
less than sixty-four years of age and, who immediately after
being granted an Option, do not own (including shares covered
under Options under the Plan and any other outstanding options)
more than ten percent of the outstanding shares of the Stock.
In selecting the officers and key employees to whom
Options shall be granted, the Committee shall consider length of
service, position, present and potential contribution to the
success of the Bank and its subsidiaries, and such other factors
as the Committee deems relevant to accomplish the purpose of the
Plan.
5. GRANTING OF OPTIONS. Following selection by the
Committee of an officer or key employee to whom an Option shall
be granted (hereinafter referred to as "the Optionee"), the Bank
shall tender to the Optionee for his signature a Stock Option
Agreement (hereinafter referred to as "the Agreement"). The
Agreement shall be in such form as determined by the Committee
and contain provisions consistent with the Plan. The date on
which an Option is granted is the date of the Committee's
authorization of such grant, or such later date consistent with
the Plan determined by the Committee and specified in the
Agreement. However, no Option shall be granted after the
earlier of ten years from the effective date of the Plan or ten
years from the date shareholders of the Bank approve the Plan.
6. MAXIMUM NUMBER AND MAXIMUM VALUE OF SHARES TO ANY
OPTIONEE. The aggregate fair market value, determined at the
time the Option is granted, of Stock under the Plan and all such
plans of the Bank and its subsidiaries for which an Optionee may
be granted options in any calendar year shall not exceed
$100,000 plus any unused limit carryover to such year.
7. PRICE. The purchase price of shares covered by an
Option shall be at least the fair market value on the date of
grant of such Option. The term "fair market value" shall be the
average of the lowest asked and the highest bid price of the
Common Stock, par value $5.00, of the Bank as published by the
National Quotation Bureau on the date of the grant of such
Option if the Common Stock is listed by the National Quotation
Bureau. If the Common Stock is not listed the term "fair market
value" shall be (a) the average of the fair market value
opinions of three completely independent and well-qualified
experts chosen by the Committee; or (b) the fair market value
determined by any other reasonable method selected by the
Committee.
8. TERM OF OPTION. No Option granted under the Plan
may be exercised prior to one year from the date it is granted,
except in the event of disability, death or termination of
employment as hereinafter provided. Also no Option may be
exercised while there is outstanding any Option granted
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under a plan intended to satisfy the requirements of Section
422A of the Internal Revenue Code of 1954, as amended, which was
previously granted to such Optionee to purchase stock in the
Bank or in any corporation which at the time of the granting of
the Option was a subsidiary of the Bank or in a predecessor
corporation of any such corporations. An Option shall be
treated as outstanding until the Option is exercised in full or
expires by reason of lapse of time. Further, no Option granted
under the Plan may be exercised more than ten years after the
date the Option is granted.
9. MANNER OF EXERCISE. An Option may be exercised by
written notice to the Bank at its office at 1121 Boundary
Street, Beaufort, South Carolina. The notice shall be signed by
the Optionee, or by his successor, as hereinafter described in
Paragraph 12, and shall state the number of shares with respect
to which the Option is being exercised. Such notice must be
accompanied by a certified or cashier's check, or the equivalent
thereof, satisfactory to the Bank for the full price of the
shares. As soon as practicable after the notice is received,
the Bank shall deliver to the Optionee a stock certificate
registered in his name representing the shares.
Except as provided in Paragraphs 11 and 12, the Optionee
must be an employee of the Bank or an employee of a subsidiary
corporation of the Bank at the time of his exercise of an
Option.
The Optionee shall not have any rights of a shareholder
of the Bank with respect to the shares covered by the Option.
10. NON-TRANSFERABILITY. No Option shall be
transferable by an Optionee otherwise than by will or by the
laws of descent and distribution. During the Optionee's
lifetime, his Option shall be exercisable only by him.
11. TERMINATION OF EMPLOYMENT. If the employment of an
Optionee is terminated for any reason other than disability (as
set forth in Paragraph 12), death or retirement with the consent
of the Bank, his Option shall terminate immediately. If an
Optionee retires with the consent of the Bank, or any of its
subsidiaries, he may exercise his Option to the extent that he
was entitled to exercise it as of the date of retirement but
only within three months after retirement and in no event after
the expiration of ten years from the date such Option was
granted. A temporary leave of absence approved by the Bank or
one of its subsidiary shall not be a termination of employment.
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The Plan does not confer upon any person any right with
respect to continuation of employment by the Bank or any of its
subsidiaries nor does it limit in any way the right of the Bank
or any subsidiary to terminate his employment at any time.
12. DEATH OR DISABILITY. If any Optionee becomes
disabled within the meaning of Section 105(d)(4) of the Internal
Revenue Code of 1954, as amended, or dies while an employee of
the Bank or any of its subsidiaries, or dies within three months
after retiring with the consent of the Bank, the Option may be
exercised (to the extent the Optionee would have been entitled
to exercise the Option at the time of disability or death) by
the disabled Optionee or by a legatee or legatees of said
Optionee, or by his personal representatives or distributees, at
any time within one year after his death or disability, but in
no event after the expiration of ten years after the date the
Option was granted.
13. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION. The
total shares on which Options may be granted under the Plan and
Option rights (both as to the number of shares and the Option
price) shall be appropriately adjusted for any increase or
decrease in the number of outstanding shares of Stock resulting
from payment of a stock dividend on the Stock, a subdivision or
combination of shares of Stock, or a reclassification of Stock,
and in the event of a merger or consolidation in which the Bank
shall be the acquiring Bank (pursuant to the next paragraph).
After a merger of one or more corporations into the Bank
or any subsidiary of the Bank, or after any consolidation of the
Bank of any subsidiary of the Bank and one or more other
corporations, each Optionee shall, at no additional cost, be
entitled, upon any exercise of his Option, to receive (subject
to any required action by shareholders), the number and class of
shares of stock or other securities to which such Optionee would
have been entitled to receive in the merger or consolidation if
he had been the holder of record of the shares that he is
acquiring with his option. Optionee shall receive comparable
rights in the event of successive mergers or consolidations.
Anything contained herein to the contrary
notwithstanding, upon the dissolution or liquidation of the Bank
or upon any merger or consolidation in which the Bank is not the
acquiring corporation, each Option granted under the Plan shall
terminate. If a period of one year has expired from the date of
the grant of any such Option, the Optionee shall have the right,
immediately prior to such dissolution, liquidation, merger, or
consolidation, to exercise his Option in full to the extent not
theretofore exercised regardless of the installment provisions
of Paragraph 8.
The foregoing adjustments and the manner of application
of the foregoing provisions shall be determined by the Committee
in its sole discretion. Any such adjustment may provided for
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the elimination of any fractional share which might otherwise
become subject to an Option.
14. AMENDMENT, MODIFICATION, AND TERMINATION OF THE
PLAN. The Board of Directors may amend, modify, or terminate
the Plan at any time; provided, however, that no such action of
the Board of Directors may (a) reduce the minimum option price
provided in the Plan, (b) withdraw the administration of the
Plan from the Committee or (c) permit any person while a member
of the Committee to be eligible to receive or hold an Option
under the Plan; and provided further that no amendment,
modification or termination of the Plan shall in any manner
affect any Option previously granted under the Plan without the
consent of the Optionee or his successors, as described in
Paragraph 12.
15. DETERMINATIONS FINAL. Each determination,
interpretation, or other action made or taken pursuant to the
provisions of the Plan by the Board of Directors or the
Committee shall be final and shall be binding and conclusive for
all purposes and upon all persons, including, but not limited
to, the Bank and its subsidiaries, the shareholders, the
Committee and each of the members thereof, and the Directors,
officers, and employees of the Bank and its subsidiaries, the
Optionees, and their respective successors in interest.
/s/ Laurance H. Davis, Jr.
Laurance H. Davis, Jr.
Secretary
March 6, 1986
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Exhibit 99.2
1986 Amended and Restated Non-Qualified
Stock Option Plan
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AMENDED AND RESTATED
NON-QUALIFIED STOCK OPTION PLAN
The Savings Bank of Beaufort County, FSB ("Bank") hereby
formulates and adopts the following Stock Option Plan as
approved by stockholders on April 15, 1987 and amended and
restated on March 16, 1994, subject to shareholder approval.
The Stock Option Plan is as follows:
1. Purpose of Plan.
The purpose of this plan is to promote the interest of
Bank and its stockholders by encouraging the Directors of Bank
who are not also full-time employees of Bank and participants in
a Bank Incentive Stock Option Plan ("Outside Directors") to
invest in Common Stock of Bank and thereby acquire a greater
proprietary interest in Bank and to provide additional incentive
for such Directors to promote the success of its business
through sharing in the future growth of Bank.
2. Eligibility.
Each Outside Director of Bank serving in such capacity as
of August 26, 1986 shall receive an option to acquire 7,500
shares of Common Stock of Bank upon the terms and conditions
hereinafter provided. To the extent options are available for
grant under this Plan, each Outside Director elected (or
appointed subject to shareholder ratification) for the first
time on or after January 1, 1993 shall receive an option to
acquire 2,500 shares of Common Stock of Bank, as of the date on
which such new Outside Director first begins to serve on the
Board of Directors (the "Board") of Bank. If on any date one or
more new Outside Director becomes entitled to receive an option
hereunder an insufficient number of shares are available to
provide such Outside Director with an option to acquire 2,500
shares, options for the number of shares then available shall be
divided pro rata among such Outside Directors in full
satisfaction of Bank's obligation under this Plan. Any option
to acquire shares of Bank Common Stock granted pursuant to this
paragraph shall be subject to the adjustments provided in
Paragraph 4.
3. Option Price and Exercise of Option.
The Option price of Options granted as of August 26, 1986
shall be Twelve Dollars ($12.00) per share. The Option price of
any option granted to a new Outside Director shall be 100
percent of the fair market value of the Common Stock of Bank on
the date of grant, as determined in good faith by the Board.
Subject to Paragraphs 7 and 8, an Option granted as of August
26, 1986 shall be exercisable at any time and from time to time
through August 26, 2006. Subject to Paragraphs 7 and 8, an
Option granted to a new Outside Director pursuant to Paragraph 2
shall be exercisable for a period of ten (10) years from the
date of grant.
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4. Adjustments Upon Changes in Capitalization.
In the event that any dividend or other distribution
(whether in the form of cash, Common Stock, other securities, or
other property), recapitalization, stock split, reverse stock
split, reorganization, merger, consolidation, split-up,
spin-off, combination, repurchase, or exchange of Common Stock
or other securities of Bank, issuance of warrants or other
rights to purchase Common Stock or other securities of Bank, or
other similar corporate transaction or event affects the Shares
such that an adjustment is necessary in order to prevent
dilution or enlargement of the benefits or potential benefits
intended to be made available under the Plan, then the Board of
Directors shall proportionately adjust any or all (as necessary)
of (i) the number of shares Common Stock or other securities of
Bank (or number and kind of other securities or property) with
respect to which Options may be granted, (ii) the number of
shares of Common Stock or other securities of Bank (or number
and kind of other securities or property) subject to outstanding
Options, and (iii) the grant or exercise price with respect to
any Option.
5. Non-Transferability of Option.
This Option may not be transferred in any manner
otherwise than by Will or the laws of descent or distribution
and may be exercised during the lifetime of the Optionee only by
him, or if the Optionee shall then be incompetent, by his duly
appointed personal representative on his behalf.
6. Term of Option and Restrictions on Right to Exercise.
a. Except as provided in Paragraphs 5, 7, and 8, no
Option shall be exercisable in whole or in part unless the
Optionee is then an Outside Director of Bank and shall have
served continuously as an Outside Director of Bank since the
date such Option was granted.
b. An Option granted pursuant to this Plan may be
exercised by the Optionee only by (i) delivery to the Board of
written notice of the number of shares with respect to which the
Optionee is exercising his Option to purchase, and (ii) payment
in full of the Option price thereof. No Option may at any time
be exercised with respect to a fractional share.
c. Payment of the Option prices hereunder shall be
made in cash.
d. The holder of an Option shall not have any rights
of a stockholder with respect to the share covered by an Option
until such shares have been transferred to him on the books and
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records of Bank upon the exercise of the Option.
e. No Option shall be exercised if exercise thereof
will violate any applicable federal or state law, rule or
regulation.
f. The right to exercise this Option shall be
forfeited and the right to delivery of any stock not yet
delivered pursuant to the exercise of this Option shall be
forfeited in the event that the Optionee shall resign or be
removed from the Board because of gross or willful negligence or
commission of a crime involving moral turpitude.
7. Termination of Directorship.
In the event an Outside Director to whom an Option has
been granted under the Plan shall cease to be an Outside
Director, for any cause other than by death, except as
hereinabove provided in Paragraph 3, such Option may be
exercised (to the extent that the Outside Director was entitled
to do so immediately prior to ceasing to serve as an Outside
Director), within one (1) year after such Outside Director shall
cease to be an Outside Director, but in no event after the
expiration of the period for which the Option was granted.
8. Death of Optionee.
If a person holding an Option which is not expired or
terminated shall die, then the estate of the decedent or person
or persons to whom his rights under the Option were transferred
by Will or by the laws of descent and distribution may, at any
time after the date of such death, but in no event after the
expiration of the term for which the Option was granted,
exercise such Option with respect to any shares as to which the
decedent could have exercised such Option at the time of his
death. Any such exercise shall be effected by written notice to
the Board from the person entitled to exercise and the person or
persons giving the same shall furnish to the Board such other
documents or papers as the Board may reasonably require,
including, without limitation, evidence of the authority of such
person or persons to exercise the Option and evidence
satisfactory to the Board that any death taxes payable with
respect to the shares have been paid or provided for.
9. Stock Subject to the Option.
Bank shall provide 60,000 shares of its Common Stock for
issuance to all Optionees. The shares shall be authorized but
unissued shares. If the Options shall expire or become
unexercised for any reason without have been exercised in full,
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the unpurchased shares which are subject thereto shall be free
from any restrictions.
10. Notices.
Each notice relating to this Plan shall be in writing and
delivered in person or by certified mail to the proper address.
Each notice shall be deemed to have been given on the date it is
received. Each notice to Bank shall be addressed to it at its
principal office in Beaufort, South Carolina, attention of the
Secretary. Each notice to the Optionee or other person or
persons then entitled to exercise the Option shall be addressed
to the Optionee or such other person or persons at the
Optionee's address set forth in the heading of this Plan.
Anyone to whom a notice may be given under this Plan may
designate a new address by notice to that effect.
11. Benefits of Plan.
All obligations imposed upon the Optionee and all rights
granted to Bank under this Plan shall be binding upon the
Optionee's heirs, legal representatives and successors. This
Plan shall be the sole and exclusive source of any and all
rights which the Optionee, his heirs, legal representatives, or
successors may have in respect to this Plan or any Options or
Common Stock granted or issued hereunder, whether to himself or
any other person.
12. Effective Date.
This plan shall be effective as of August 26, 1986;
provided, that this plan shall be of no force or effect unless,
within twelve (12) months after the date it is approved and
adopted by the Board, it has been approved by the holders of a
majority of the outstanding shares of common stock of the Bank.
13. Termination and Amendment.
The Plan shall terminate on August 26, 2006; provided,
however, that an unexpired Option granted pursuant to the Plan
which is outstanding on such date shall continue to be
exercisable after such date until expired, subject to the terms
of the Plan and the authority of the Board. The Board may
alter, amend, suspend or discontinue this Plan but may not,
without the approval of the holders of a majority of the shares
of stock of Bank, make any alteration or amendment thereto which
operates (a) to allow anyone other than an Outside Director to
participate under this Plan, (b) to increase the total number of
shares as to which Options may be granted under this Plan, (c)
to extend the terms of the Plan or Option terms provided in
Paragraphs 3 and 6 hereof, (d) to increase the minimum Option
Price provided in Paragraph 3 hereof, or (e) to make any other
change in the Plan which would cause the Plan not to qualify as
a Non-Qualified Stock Option Plan.
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Exhibit 99.3
Stock Option Agreement with Robert A. Kerr,
dated June 15, 1988
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<PAGE>
NON-QUALIFIED STOCK OPTION PLAN
FOR ROBERT A. KERR
1) PURPOSE AND NAME OF PLAN. The purpose of the option is
to promote the interests of the Bank and its shareholders by
encouraging Mr. Robert A. Kerr, a Director of the Bank, who is
not a full-time employee of the Bank and does not participate in
the Bank Incentive Stock Option Plan to invest in Common Stock
of the Bank and to provide additional incentive for Mr. Kerr to
promote the success of its business through sharing in the
future growth of the Bank. The title of the plan is
"NON-QUALIFIED STOCK OPTION PLAN FOR ROBERT A. KERR" (Option).
2) ELIGIBILITY. Mr. Kerr shall enjoy the Option to acquire
2,500 shares of Common Stock of the Bank subject to the terms
and conditions hereinafter provided, subject to adjustments
provided in Paragraph 4.
3) OPTION PRICE AND EXERCISE OF OPTION. The Option price
shall be Twelve Dollars ($12.00) per share. The Option shall be
exercisable at any time and from time to time during the period
commencing from the date of original grant of the Option, June
15, 1988 (the "Date of Grant"), and ending ten (10) years from
the Date of Grant, being June 15, 1998.
4) ADJUSTMENTS UPON CHANGES IN CAPITALIZATION. If all or
any portion of the Option is exercised subsequent to any stock
dividend, split-up, recapitalization, combination or exchange of
shares, merger, consolidation, acquisition of property or stock,
separation, reorganization, or other similar changes or
transaction of or by the Bank, as a result of which shares of
any class shall be issued in respect of outstanding shares of
the class covered by the Option or shares of the class covered
by the Option shall be changed into the same or a different
number of shares of the same or another class or classes, the
person or persons exercising such an Option shall receive, for
the aggregate Option price payable upon such exercise of the
Option, the aggregate number and class of shares equal to the
number and the class of shares he would have had on the date of
exercise had the shares been purchased for the same aggregate
price at the date the Option was granted and had not been
disposed of, taking into consideration any such stock dividend,
split-up, merger, consolidation, acquisition or property or
stock, separation, reorganization, or other similar changes or
transaction; provided, however, that no fractional share shall
be issued upon any such exercise, and the aggregate price paid
shall be appropriately reduced on account of any fractional
share not issued.
5) NON-TRANSFERABILITY OF OPTION. The Option may not be
transferred in any manner otherwise than by Will or the laws of
descent or distribution and may be exercised during the lifetime
of Mr. Kerr only by him, or if Mr. Kerr should then be
incompetent, by his duly appointed personal representative on
his behalf.
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<PAGE>
6) TERM OF OPTION AND RESTRICTIONS ON RIGHT TO EXERCISE.
a) The Option shall not be exercisable in whole or in
part after the expiration of ten (10) years from the date the
Option was granted, being June 15, 1988.
b) Except as provided in Paragraphs 5, 7, and 8, the
Option shall not be exercisable in whole or in part unless Mr.
Kerr is then a Director of the Bank and shall have served
continuously as Director of the Bank since the date the Option
was granted.
c) The Option granted pursuant to this plan may be
exercised by Mr. Kerr only by (i) delivery to the Corporate
Board of Directors (Board) of the Bank of written notice of the
number of shares with respect to which Mr. Kerr is exercising
his Option to purchase, and (ii) payment in full of the Option
price thereof. The Option may not at any time be exercised with
respect to a fractional share.
d) Payment of the Option prices hereunder shall be
made in cash.
e) Mr. Kerr shall not have any rights of a stockholder
with respect to the shares covered by the Option until such
shares have been transferred to him on the books and records of
the Bank upon the exercise of the Option.
f) The Option shall not be exercised if exercise
thereof will violate any applicable federal or state law, rule
or regulation.
g) The right to exercise the Option shall be forfeited
and the right to delivery of any stock not yet delivered
pursuant to the exercise of the Option shall be forfeited in the
event that Mr. Kerr should resign or be removed from the Board
because of gross or willful negligence or commission of a crime
involving moral turpitude. Additionally, should the Option
presented in Proposal (3) of the Proxy Statement not be
reapproved, Mr. Kerr has supplied the Bank with a written waiver
of his right to receive any shares under this stock option plan,
which was granted to Mr. Kerr by the Board of Directors of the
Bank and approved by the shareholders at their Annual Meeting on
April 19, 1989, or to seek any damages from the Bank on a
quantum meruit theory for services rendered, or otherwise.
7) TERMINATION OF DIRECTORSHIP. In the event Mr. Kerr
ceases to be a Director, for any cause other than by death, the
Option may be exercised under the provision of paragraph 6
above; however, the Option may be exercised within one (1) year
after Mr. Kerr ceases to be a Director in the case of disability
within the meaning of Section 105(d)(4) of the Code, but in no
event after the expiration of the period for which the Option
was granted.
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8) DEATH OF OPTIONEE. If a person holding an Option which
has not expired or terminated shall die, then the estate of the
decedent or person or persons to whom his rights under the
Option were transferred by Will or by the laws of descent and
distribution may, at any time after the date of such death, but
in no event after the expiration of the term for which the
Option was granted, may exercise the Option with respect to any
shares as to which the decedent could have exercised the Option
at the time of his death. Any such exercise shall be effected
by written notice to the Board from the person entitled to
exercise and the person or persons giving the same shall furnish
to the Board such other documents or papers as the Board may
reasonably require, including, without limitation, evidence of
the authority of such person or persons to exercise the Option
and evidence satisfactory to the Board that any death taxes
payable with respect to the shares have been paid or provided
for.
9) STOCK SUBJECT TO THE OPTION. The Bank shall provide
2,500 shares of its Common Stock for issuance to Mr. Kerr. The
shares shall be authorized but unissued shares. If the Option
shall expire or become unexercisable for any reason without
having been exercised in full, the unpurchased shares which are
subject thereto shall be free from any restrictions.
10) EFFECTIVE DATE. The Option shall be effective
retroactively as of noon, June 15, 1988; provided, that the
Option shall be of no force or effect unless it is reapproved by
the holders of a majority of the outstanding shares of common
stock of the Bank.
11) TERMINATION AND AMENDMENT. The Board may alter, amend,
suspend or discontinue the Option but may not, without the
approval of the holders of a majority of the shares of stock of
the Bank, make any alteration or amendment thereto which
operates (a) to allow anyone other than Mr. Kerr to participate
under the Option, (b) to increase the total number of shares as
to which Options may be granted under the Option, (c) to extend
the terms of the Option provided in Paragraphs 3 and 6 above,
(d) to increase the minimum Option Price provided in Paragraph 3
above, or (e) to make any other change in the Option which would
cause the Option not to qualify as a Non-Qualified Stock Option
Plan.
TAX EFFECTS
Tax counsel has advised the Bank, that there are no income tax
consequences to the Bank or to Mr. Kerr upon the grant of the
Option by adoption of the Option Plan by the Directors. Upon
the exercise of the Option, however, Mr. Kerr will realize
ordinary income on the appreciation of the stock between the
time of the grant and the exercise of the Option, to the extent
the appreciation of the stock causes the trading price to exceed
the Option price, and the Bank normally will receive an income
tax deduction equivalent to the amount of income realized by Mr.
Kerr.
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Mr. Kerr is the only person, Director or otherwise, eligible for
options under this plan. On the date of grant June 15, 1988,
the $12.00 per share option price exceeded the last recorded per
share sales price of the Bank stock, which was $10.75. The most
recent trade of the Bank's stock occurred on February 28, 1990,
and was traded at $12.00 per share. A majority of the shares
represented at the meeting is required for the adoption of this
Option. No consideration has been paid by Mr. Kerr for the
Option. The Option was originally granted by the Board of
Directors of the Bank on June 15, 1988 subject to shareholder
approval, which was obtained at the 1989 Annual Meeting of
shareholders of the Bank. As explained in the first two
paragraphs of PROPOSAL (3) of the proxy statement, this Option
was required to be resubmitted for reapproval by the
Shareholders of the Bank. The Option is resubmitted for
reapproval with the understanding that the original effective
date of June 15, 1988 would remain the effective date of the
Option, in keeping with the Board of Director's original intent
for this to be a ten year option. This has no effect on Mr.
Kerr, as he has not exercised any of the previously approved
options granted him under this Option.
<PAGE>
<PAGE>
EXHIBIT 99.4
Stock Option Agreement with Bryan K. Newton,
dated June 13, 1996
<PAGE>
<PAGE>
FIRSTBANCORPORATION, INC.
BRYAN K. NEWTON
STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT made this 13th day of June, 1996,
by and between FIRSTBANCORPORATION, INC. (the "Company"), a
South Carolina corporation, and BRYAN K. NEWTON (the
"Recipient").
In consideration of the past, present and future services
of the Recipient as an officer of FIRSTBANK, N.A., a
wholly-owned subsidiary of the Company, and for other good and
valuable consideration, the parties hereto agree as follows:
1. Grant of Option. The Company hereby grants to the
Recipient this 13th day of June, 1996 ("date of grant") the
right and option, hereinafter called the Option, to purchase all
or any part of an aggregate of THREE THOUSAND THREE HUNDRED
THIRTY FIVE (3,335) shares of its common stock, par value $0.01
per share (the "Common Stock") on the terms and conditions set
forth herein and subject to the provisions of the Plan.
2. Purchase Price. The purchase price of the shares
covered by this Option shall be NINE DOLLARS ($9.00) per share
of Common Stock.
3. Term and Exercise of the Option.
(a) The Option shall be exercisable as to (i) 2001 shares
upon the date of grant, (ii) an additional 667 shares on
December 20, 1996, and (iii) an additional 667 shares on
December 20, 1997. In the event of the Recipient's (i)
termination of employment without cause or (ii) upon a "Change
of Control" of the Company (as defined in the Company's 1996
Stock Option Plan), the Option shall be immediately exercisable
as to all shares covered thereby. The Option shall expire on
December 20, 2002.
(b) In the event of the Recipient's voluntary
termination of employment or termination of employment for
"cause," he shall forfeit all rights to any portion of the
Option that is not exercisable as of the date of the Recipient's
termination of employment. For purposes of this Agreement,
termination for "cause" shall mean termination because of the
Recipient'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.
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(c) In the event of the Recipient's termination of
employment for any reason, other than death or disability (as
defined in Section 22(e)(3) of the Internal Revenue Code of
1986, as amended), the portion of the Option which, as of the
date of the Recipient's termination of employment, is vested
pursuant to Section 3(a), shall remain exercisable until the
earlier to occur of (i) the expiration of the term of the Option
specified in Section 3(a) or (ii) three (3) months from the date
of the Recipient's termination of employment. In the event of
the Recipient's termination of employment by reason of death or
disability (as defined above), the portion of the Option which,
as of the date of the Recipient's termination of employment, is
vested pursuant to Section 3(a), shall remain exercisable until
the earlier to occur of (i) the expiration of the term of the
Option specified in Section 3(a) or (ii) one (1) year from the
date of the Recipient's termination of employment.
4. Nontransferability.
(a) This Option may not be assigned, transferred,
pledged, or hypothecated in any way, shall not be assignable by
operation of law, and shall not be subject to execution,
attachment, or similar process as long as the Recipient is
living. Any attempted assignment, transfer, pledge,
hypothecation, or other disposition of this Option by the
Recipient during her lifetime is contrary to the provisions
hereof, and the levy of any execution, attachment, or similar
process upon this Option, shall be null and void and without
effect.
(b) Shares of Common Stock acquired by the Recipient
(or his legal representative or the legal representative of his
estate) upon the exercise of all or any part of this Option may
not be sold for a period of one (1) year from the date of
exercise without the prior authorization of the Board of
Directors of the Company. Such shares of Common Stock shall
bear an appropriate legend to reflect the conditions of this
Section 4(b).
5. Adjustments Upon Changes in Capitalization. In the
event that any dividend or other distribution (whether in the
form of cash, Common Stock, other securities, or other
property), recapitalization, stock split, reverse stock split,
reorganization, merger, consolidation, split-up, spin-off,
combination, repurchase, or exchange of Common Stock or other
securities of the Company, or other similar corporate
transaction or event affects the shares such that an adjustment
is necessary in order to prevent dilution or enlargement of the
benefits or potential benefits intended to be made available
under this Agreement, then the Board of Directors of the Company
shall proportionately adjust any or all (as necessary) of (i)
the number of shares of Common Stock or other securities of the
Company (or number and kind of other securities or property)
subject to the Option, and (ii) the grant or exercise price with
respect to the Option.
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6. General. The Company shall at all times during the
term of the Option reserve and keep available such number of
shares of Common Stock as will be sufficient to satisfy the
requirements of this Agreement, shall pay all original issue and
transfer taxes with respect to the issue and transfer of shares
pursuant hereto and all other fees and expenses necessarily
incurred by the Company in connection therewith, and will from
time to time use its best efforts to comply with all laws and
regulations which, in the opinion of counsel to the Company,
shall be applicable thereto. This Agreement may not be modified
or amended except by an instrument in writing signed by the
parties hereto.
IN WITNESS WHEREOF, the Company has caused this Agreement
to be executed by a duly authorized officer and its Secretary,
and the Recipient has signed this Agreement, all on the date and
year first above-written.
ATTEST: FIRSTBANCORPORATION, INC.
/s/ By:/s/ Colden R. Battey
Its: Chairman
WITNESS:
/s/ /s/ Bryan K. Newton
Bryan K. Newton
<PAGE>
<PAGE>
Exhibit 99.5
1996 Stock Option Plan
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<PAGE>
FirstBancorporation, Inc.
1996 Stock Option Plan
SECTION 1. Purpose. The purposes of the FirstBancorporation,
Inc. 1996 Stock Option Plan are to promote the interests of the
Company, its affiliates, and its stockholders by (i) attracting
and retaining exceptional executive personnel and other key
employees and directors of the Company and its affiliates; (ii)
motivating such employees and directors by means of
performance-related incentives to achieve longer-range
performance goals; and (iii) enabling such employees and
directors to participate in the long-term growth and financial
success of the Company.
SECTION 2. Definitions. As used in the Plan, the following
terms shall have the meanings set forth below:
"Affiliate" shall mean the Bank or any present or future
corporation that would be a "parent" or "subsidiary" of the
Company as defined in Sections 424(f) and (g), respectively, of
the Code.
"Award" shall mean any grant of Options or Director
Options.
"Award Agreement" shall mean any written agreement,
contract, or other instrument or document evidencing any Award,
which may, but need not, be executed or acknowledged by a
Participant.
"Bank" shall mean FirstBank, N.A., a national banking
association.
"Board" shall mean the Board of Directors of the Company.
"Change in Control" shall mean an event deemed to occur
if and when (a) an offeror other than the Company purchases
shares of the common stock of the Company or the Bank pursuant
to a tender or exchange offer for such shares, (b) any person
(as such term is used in Sections 13(d) and 14(d)(2) of the
Exchange Act) is or becomes the beneficial owner, directly or
indirectly, of securities of the Company or the Bank
representing 25% or more of the combined voting power of the
Company's or the Bank's then outstanding securities, (c) the
membership of the board of directors of the Company or the Bank
changes as the result of a contested election, such that
individuals who were directors at the beginning of any
twenty-four month period (whether commencing before or after the
date of adoption of this Plan) do not constitute a majority of
the Board at the end of such period, or (d) shareholders of the
Company or the Bank approve a merger, consolidation, sale or
disposition of all or substantially all of the Company's assets,
or a plan of partial or complete liquidation.
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"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time.
"Committee" shall mean the committee of the Board
designated by the Board to administer the Plan and composed of
not less than the minimum number of persons from time to time
required by Rule 16b-3, each of whom, to the extent necessary to
comply with Rule 16b-3 only, is a "disinterested person" within
the meaning of Rule 16b-3.
"Company" shall mean FirstBancorporation, Inc., a South
Carolina corporation, together with any successor thereto.
"Director Option" shall mean a Non-Qualified Stock Option
granted to each Eligible Director pursuant to Section 6(e)
without any action by the Board or the Committee.
"Effective Date" shall mean the date specified in Section
9(a).
"Eligible Director" shall mean, on any date, a person who
is first elected to the Board or the Board of Directors of the
Bank at any time following the Effective Date, but shall not
include a person who is an Employee.
"Employee" shall mean an employee of the Company or any
Affiliate.
"Exchange Act" shall mean the Securities Exchange Act of
1934, as amended.
"Fair Market Value" shall be determined as follows:
(a) If the Shares are traded or quoted on the Nasdaq
stock market at the time of grant of the Award,
then the Fair Market Value shall be the average of
the highest and lowest selling price on such
exchange on the date such Award is granted or, if
there were no sales on such date, then on the next
prior business day on which there was a sale.
(b) If the Shares are not traded or quoted on the
Nasdaq stock market, then the Fair Market Value
shall be a value determined by the Committee in
good faith on such basis as it deems appropriate.
"Incentive Stock Option" shall mean a right to purchase
Shares from the Bank that is granted under Section 6 of the Plan
and that is intended to meet the requirements of Section 422 of
the Code or any successor provision thereto.
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"Non-Qualified Stock Option" shall mean a right to
purchase Shares from the Bank that is granted under Section 6 of
the Plan and that is not intended to be an Incentive Stock
Option.
"Option" shall mean an Incentive Stock Option or a
Non-Qualified Stock Option but shall not include a Director
Option.
"Participant" shall mean any Employee selected by the
Committee to receive an Award under the Plan or any Eligible
Director who receives an Award of Director Options.
"Person" shall mean any individual, corporation,
partnership, association, joint-stock company, trust,
unincorporated organization, government or political subdivision
thereof or other entity.
"Plan" shall mean the FirstBancorporation, Inc. 1996
Stock Option Plan.
"Rule 16b-3" shall mean Rule 16b-3 as promulgated and
interpreted by the SEC under the Exchange Act, or any successor
rule or regulation thereto as in effect from time to time.
"SEC" shall mean the Securities and Exchange Commission
or any successor thereto and shall include the staff thereof.
"Shares" shall mean common shares of the Bank, or such
other securities of the Bank as may be designated by the
Committee from time to time.
"Ten Percent Stockholder" shall mean any stockholder who,
at the time an Incentive Stock Option is granted to such
stockholder, owns (within the meaning of Section 424(d) of the
Code) more than ten percent of the voting power of all classes
of stock of the Bank.
"Termination for Cause" shall mean termination because of
a Participant'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
between the Bank or the Company and a Participant.
SECTION 3. Administration.
(a) The Plan shall be administered by the Committee.
Subject to the terms of the Plan and applicable law, and in
addition to other express powers and authorizations conferred on
the Committee by the Plan, the Committee shall have full power
and authority to: (i) designate Participants; (ii) determine
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the type or types of Awards to be granted to an eligible
Employee; (iii) determine the number of Shares to be covered by,
or with respect to which payments, rights, or other matters are
to be calculated in connection with, Awards; (iv) determine the
terms and conditions of any Award; (v) determine whether, to
what extent, and under what circumstances Awards may be settled
or exercised in cash, Shares, other securities, other Awards or
other property, or canceled, forfeited, or suspended; (vi)
determine whether, to what extent, and under what circumstances
cash, Shares, other securities, other Awards, other property,
and other amounts payable with respect to an Award shall be
deferred either automatically or at the election of the holder
thereof or of the Committee; (vii) interpret and administer the
Plan and any instrument or agreement relating to, or Award made
under, the Plan; (viii) establish, amend, suspend, or waive such
rules and regulations and appoint such agents as it shall deem
appropriate for the proper administration of the Plan; and (ix)
make any other determination and take any other action that the
Committee deems necessary or desirable for the administration of
the Plan. Except as provided in Section 4(a), neither the
Committee nor the Board shall have any discretion regarding
whether an Eligible Director shall receive a Director Option
pursuant to Section 6(e) or regarding the terms of any Director
Option, including without limitation, the number of Shares
subject to such Director Option, the timing of the grant or the
exercisability of such Director Option, or the exercise price
per Share of such Director Option.
(b) Unless otherwise expressly provided in the Plan,
all designations, determinations, interpretations, and other
decisions under or with respect to the Plan or any Award shall
be within the sole discretion of the Committee, may be made at
any time and shall be final, conclusive, and binding upon all
Persons, including the Bank, and Participant, any holder or
beneficiary of any Award, any shareholder and any Employee.
SECTION 4. Shares Available for Awards.
(a) Shares Available. Subject to adjustment as
provided in Section 4(b), the number of Shares with respect to
which Options and Director Options may be granted under the Plan
shall be 15,000. If, after the effective date of the Plan, any
Shares covered by an Option or Director Option granted under the
Plan, or to which such an Option or Director Option relates, are
forfeited, or if an Option or Director Option otherwise
terminates or is canceled without the delivery of Shares, then
the Shares covered by such Option or Director Option, or to
which such Option or Director Option relates, or the number of
Shares otherwise counted against the aggregate number of Shares
with respect to which Options and Director Options may be
granted, to the extent of any such settlement, forfeiture,
termination or cancellation, shall again be, or shall become,
Shares with respect to which Options and Director Options may be
granted, to the extent permissible under Rule 16b-3.
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In the event that any Option or Director Option is exercised
through the delivery of Shares, the number of Shares available
for Awards under the plan shall be increased by the number of
Shares surrendered, to the extent permissible under Rule 16b-3.
(b) Adjustments. In the event that any dividend or
other distribution (whether in the form of cash, Shares, other
securities, or other property), recapitalization, stock split,
reverse stock split, reorganization, merger, consolidation,
split-up, spin-off, combination, repurchase, or exchange of
Shares or other securities of the Company, issuance of warrants
or other rights to purchase Shares or other securities of the
Company, or other similar corporate transaction or event affects
the Shares such that an adjustment is necessary in order to
prevent dilution or enlargement of the benefits or potential
benefits intended to be made available under the Plan, then the
Committee shall proportionately adjust any or all (as necessary)
of (i) the number of Shares or other securities of the Company
(or number and kind of other securities or property) with
respect to which Awards may be granted, including an Award
pursuant to Section 6(e), (ii) the number of Shares or other
securities of the Company (or number and kind of other
securities or property) subject to outstanding Awards, and (iii)
the grant or exercise price with respect to any Award; provided,
in each case, that with respect to an Award of Incentive Stock
Options no such adjustment shall be authorized to the extent
that such authority would cause the Plan to violate Section
422(b)(1) of the Code, as from time to time amended.
(c) Sources of Shares. Any Shares delivered pursuant
to an Option or Director Option may consist, in whole or in
part, of authorized and unissued Shares or of treasury Shares.
SECTION 5. Eligibility. An Employee, including any officer or
employee-director of the Company or an Affiliate, who is not a
member of the Committee shall be eligible to be designated a
Participant. Each Eligible Director shall receive
nondiscretionary Director Options in accordance with, and only
in accordance with, Section 6(e) hereof.
SECTION 6. Options and Director Options.
(a) Grant. Subject to the provisions of the Plan, the
Committee shall have sole and complete authority to determine
the Employees to whom Options shall be granted, the number of
Shares to be covered by each Option, the option price therefor
and the conditions and limitations applicable to the exercise of
the option. The Committee shall have the authority to grant
Incentive Stock Options, or to grant Non-Qualified Stock
Options, or to grant both types of options. In the case of
Incentive Stock Options, the terms and conditions of such grants
shall be subject to and comply with such rules as may be
prescribed by Section 422 of the Code, as from time to time
amended,
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and any regulations implementing such statute, including without
limitation, the requirements of Code Section 422(d), which
limits the aggregate fair market value of Shares of which
Incentive Stock Options are exercisable for the first time to
$100,000 per calendar year. Each provision of the Plan and of
each written option agreement relating to an Option designated
an Incentive Stock Option shall be construed so that such Option
qualifies as an Incentive Stock Option, and any provision that
cannot be so construed shall be disregarded.
(b) Exercise Price. The Committee shall establish the
exercise price at the time each Option is granted, which price
shall not be less than 100% of the per Share Fair Market Value
on the date of grant. Notwithstanding any provision contained
herein, in the case of an Incentive Stock Option, the exercise
price at the time such Incentive Stock Option is granted to any
Employee who, at the time of such grant, is a Ten Percent
Stockholder, shall not be less than 110% of the per Share Fair
Market Value on the date of grant.
(c) Exercise. Each Option shall be exercisable at such
time and subject to such terms and conditions as the Committee
may, in its sole discretion, specify in the applicable Award
Agreement or thereafter; provided, in the case of an Incentive
Stock Option, a Participant may not exercise such Option as an
Incentive Stock Option after the earlier of (i) the date which
is ten years (five years in the case of a Participant who is a
Ten Percent Stockholder) after the date on which such Incentive
Stock Option is granted, or (ii) the date which is three months
(twelve months in the case of a Participant who becomes
disabled, as defined in Section 22(e)(3) of the Code, or who
dies) after the date on which he ceases to be an employee of the
Company or an Affiliate; and provided, further, that, in the
event of a Participant's Termination for Cause, his Options
shall be canceled on the date he ceases to be an Employee. The
Committee may impose such conditions with respect to the
exercise of Options, including without limitation, any relating
to the application of federal or state securities laws, as it
may deem necessary or advisable. The Committee shall have the
right to accelerate the exercisability of any Option or
outstanding Options in its discretion.
(d) Payment. No Shares shall be delivered pursuant to
any exercise of an Option or Director Option until payment in
full of the option price therefor is received by the Company.
Such payment may be made in cash or its equivalent, or, if and
to the extent permitted by the Committee, by exchanging Shares
owned by the optionee (which are not the subject of any pledge
or other security interest), or by a combination of the
foregoing, provided that the combined value of all cash and cash
equivalents and the Fair Market Value of any such Shares so
tendered to the Company as of the date of such tender is at
least equal to such option price.
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(e) Director Options. On the date that is the first to
occur of the date an Eligible Director is elected to a second
term on the Board or the Board of Directors of the Bank, an
Eligible Director shall receive a grant of Director Options to
purchase 500 Shares at an exercise price per Share equal to the
Fair Market Value on the date of grant; provided, however, that
if, on any date on which Director Options are to be granted to
an Eligible Director(s), the number of Shares remaining
available under the Plan is insufficient for the grant of
Director Options to purchase 500 Shares, then Director Options
to purchase a proportionate number of such Shares (rounded to
the greatest number of whole Shares) shall be granted to such
Eligible Director(s). Subject to shareholder approval of the
Plan, a Director Option shall be exercisable until the earlier
to occur of the following two dates (i) the tenth anniversary of
the date of grant of such Director Option or (ii) one year (two
years in the case of an Eligible Director who becomes disabled,
as defined in Section 22(e)(3) of the Code, or who dies) after
the date the Eligible Director ceased to be a member of the
Board, except that if the Eligible Director ceases to be a
member of the Board, by reason of his Termination for Cause, his
Director Options shall be canceled on the date he ceases to be a
member of the Board. An Eligible Director may pay the exercise
price of a Director Option in the manner described in Section
6(d).
(f) Effect of a Change in Control. In the event of a
Change in Control, all then outstanding Options and Director
Options, shall become one hundred percent (100%) vested and
exercisable as of the Change in Control. If, in connection with
or as a consequence of a Change in Control, the Company or the
Bank is merged into or consolidated with another corporation, of
if the Company or the Bank sells or otherwise disposes of
substantially all of its assets to another corporation, then
unless provisions are made in connection with such transaction
for the continuance of the Plan and/or the assumption or
substitution of then outstanding Options and Director Options
with new options covering the stock of the successor
corporation, or parent or subsidiary thereof, with appropriate
adjustments as to the number and kind of shares and prices, such
Options or Director Options shall be canceled as of the
effective date of the merger, consolidation, or sale and the
Participant or Eligible Director shall be paid in cash an amount
equal to the difference between the Fair Market Value of the
Shares subject to the Options or Director Options as of the
effective date of the such corporate event and the exercise
price of the Options or Director Options, as appropriate.
SECTION 7. Amendment and Termination.
(a) Amendments to the Plan. The Board may amend,
alter, suspend, discontinue, or terminate the Plan or any
portion thereof at any time; provided that no such amendment,
alteration, suspension, discontinuation or termination shall be
made without shareholder approval if such approval is
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necessary to comply with any tax or regulatory requirement,
including for these purposes any approval requirement which is a
prerequisite for exemptive relief from Section 16(b) of the
Exchange Act for which or with which the Board deems it
necessary or desirable to qualify or comply; and, provided
further that no amendment may be made to Section 6(e) or any
other provision of the Plan relating to Director Options within
six months of the last date on which any such provision was
amended, other than to comport with changes in the Code, the
Employee Retirement Income Security Act of 1974, or the rules
thereunder.
(b) Amendments to Awards. Except as provided under
Section 3, the Committee may waive any conditions or rights
under, amend any terms of, or alter, suspend, discontinue,
cancel or terminate, any Award theretofore granted,
prospectively or retroactively; provided that any such waiver,
amendment, alteration, suspension, discontinuance, cancellation
or termination that would impair the rights of any Participant
or any holder or beneficiary of any Award theretofore granted
shall not to that extent be effective without the consent of the
affected Participant, holder or beneficiary.
(c) Cancellation. Any provision of this Plan or any
Award Agreement to the contrary notwithstanding, the Committee
may cause any Award of Options granted hereunder to be canceled
in consideration of the granting to the holder of an alternative
Award of Options having a Fair Market Value equal to the Fair
Market Value of such canceled Award.
SECTION 8. General Provisions.
(a) Nontransferability.
(i) Each Award, and each right under any Award,
shall be exercisable only by the Participant's lifetime, or, if
permissible under applicable law, by the Participant's guardian
or legal representative or a transferee receiving such Award
pursuant to a domestic relations order, as determined by the
Committee.
(ii) No Award may be assigned, alienated,
pledged, attached, sold or otherwise transferred or encumbered
by a Participant otherwise than by will or by the laws of
descent and distribution or pursuant to a domestic relations
order, and any such purported assignment, alienation, pledge,
attachment, sale, transfer or encumbrance shall be void and
unenforceable against the Company; provided that the designation
of a beneficiary shall not constitute an assignment, alienation,
pledge, attachment, sale, transfer or encumbrance.
(b) No Rights to Awards. No Employee, Participant or
other Person shall have any claim to be granted any Award, and
there is no obligation for uniformity of treatment of Employees,
Participants, or holders or
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beneficiaries of Awards. The terms and conditions of Awards
need not be the same with respect to each recipient.
(c) Share Certificates. All Shares or other securities
of the Company delivered under the Plan pursuant to any Award or
the exercise thereof shall be subject to such stop transfer
orders and other restrictions as the Committee may deem
advisable under the Plan or the rules, regulations, and other
requirements of the SEC, any stock exchange or national
securities association upon which such Shares or other
securities are then listed, and any applicable Federal or state
laws, and the Committee may cause a legend or legends to be put
on any certificates representing such Shares or other securities
to make appropriate reference to such restrictions.
(d) Delegation. Subject to the terms of the Plan and
applicable law, the Committee may delegate to one or more
officers or managers of the Company, or to a committee of such
officers or managers, the authority, subject to such terms and
limitations as the Committee shall determine, to grant Awards
to, or to cancel, modify or waive rights with respect to, or to
alter, discontinue, suspend, or terminate Awards held by,
Employees who are not officers or directors of the Company for
purposes of Section 16 of the Exchange Act, or any successor
section thereto, or who are otherwise not subject to such
Section.
(e) Withholding. A Participant may be required to pay
to the Company and the Company shall have the right and is
hereby authorized to withhold from any Award, from any payment
due or transfer made under any Award or from any compensation or
other amount owing to a Participant the amount of any applicable
withholding taxes in respect of an Award, its exercise, or any
payment or transfer under an Award and take such other action as
may be necessary in the opinion of the Company to satisfy all
obligations for the payment of such taxes. With respect to
Participants who are not subject to Section 16 of the Exchange
Act, the withholding may be in the form of cash, Shares, or
other property as the Committee may allow. With respect to
Participants who are subject to Section 16 of the Exchange Act,
the withholding shall be in cash or in any other property
permitted by Rule 16b-3 as the Committee may allow.
(f) Award Agreements. Each Award hereunder shall be
evidenced by an Award Agreement which shall be delivered to the
Participant and shall specify the terms and conditions of the
Award and any rules applicable thereto.
(g) No Limit on Other Compensation Arrangements.
Nothing contained in the Plan shall prevent the Company or any
Affiliate from adopting or continuing in effect other
compensation arrangements, which may, but need not, provide for
the grant of options, restricted stock, Shares and other types
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of Awards provided for hereunder (subject to shareholder
approval if such approval is required), and such arrangements
may be either generally applicable or applicable only in
specific cases.
(h) No Right to Employment. The grant of an Award
shall not be construed as giving a Participant the right to be
retained in the employ of the Company or an Affiliate. Further,
the Company or an Affiliate may at any time dismiss a
Participant from employment, free from any liability or any
claim under the Plan, unless otherwise expressly provide in the
Plan or in any Award Agreement.
(i) No Rights as Stockholder. Subject to the
provisions of the applicable Award, no Participant or holder or
beneficiary of any Award shall have any rights as a stockholder
with respect to any Shares to be distributed under the Plan
until he or she has become the holder of such Shares.
(j) Governing Law. The validity, construction, and
effect of the Plan and any rules and regulations relating to the
Plan and any Award Agreement shall be determined in accordance
with the laws of the State of South Carolina, without giving
effect to the choice of law principles thereof.
(k) Severability. If any provisions of the Plan or any
Award is or becomes or is deemed to be invalid, illegal, or
unenforceable in any jurisdiction or as to any Person or Award,
or would disqualify the Plan or any Award under any law deemed
applicable by the Committee, such provision shall be construed
or deemed amended to conform to the applicable laws, or if it
cannot be construed or deemed amended without, in the
determination of the Committee, materially altering the intent
of the Plan or the Award, such provision shall be stricken as to
such jurisdiction, Person or Award and the remainder of the Plan
and any such Award shall remain in full force and effect.
(l) Other Laws. The Committee may refuse to issue or
transfer any Shares or other consideration under an Award if,
acting in its sole discretion, it determines that the issuance
or transfer of such Shares or such other consideration might
violate any applicable law or regulation or entitle the Company
to recovery under Section 16(b) of the Exchange Act, and any
payment tendered to the Company by a Participant, other holder
or beneficiary in connection with the exercise of such Award
shall be promptly refunded to the relevant Participant, holder
or beneficiary. Without limiting the generality of the
foregoing, no Award granted hereunder shall be construed as an
offer to sell securities of the Company, and no such offer shall
be outstanding, unless and until the Committee in its sole
discretion has determined that any such offer, if made, would be
in compliance with all applicable requirements of the U.S.
federal securities laws.
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(m) No Trust or Fund Created. Neither the Plan nor any
Award shall create or be construed to create a trust or separate
fund of any kind or a fiduciary relationship between the Company
and a Participant or any other Person. To the extent that any
Person acquires a right to receive payments from the Company
pursuant to an Award, such rights shall be no greater than the
right of any unsecured general creditor of the Company.
(n) Rule 16b-3 Compliance. With respect to persons
subject to Section 16 of the Exchange Act, transactions under
this Plan are intended to comply with all applicable terms and
conditions of Rule 16b-3 and any successor provisions. To the
extent that any provision of the Plan or action by the Committee
fails to so comply, it shall be deemed null and void, to the
extent permitted by law and deemed advisable by the Committee.
(o) Headings. Heading are given to the Sections and
subsections of the Plan solely as a convenience to facilitate
reference. Such headings shall not be deemed in any way
material or relevant to the construction or interpretation of
the Plan or any provision thereof.
(p) No Impact on Benefits. Unless specifically
provided under any other benefit plan of the Company or its
Affiliates, Awards shall not be treated as compensation for
purposes of calculating an Employee's or Eligible Director's
rights under such benefit plans.
(q) Indemnification. Each person who is or shall have
been a member of the Committee or of the Board shall be
indemnified and held harmless by the Company against and from
any loss, cost, liability, or expense that may be imposed upon
or reasonably incurred by him in connection with or resulting
from any claim, action, suit, or proceeding to which he may be
made a party or in which he may be involved by reason of any
action taken or failure to act under the Plan and against and
from any and all amounts paid by him in settlement thereof, with
the Company's approval, or paid by him in satisfaction of any
judgement in any such action, suit, or proceeding against him,
provided he shall give the Company an opportunity, at its own
expense, to handle and defend the same before he undertakes to
handle and defend it on his own behalf. The foregoing right of
indemnification shall not be exclusive and shall be independent
of any other rights of indemnification to which such persons may
be entitled under the Company's articles of incorporation or
bylaws, by contract, as a matter of law, or otherwise.
SECTION 9. Term of the Plan.
(a) Effective Date. The Plan shall be effective upon
adoption by the Board, subject to shareholder approval within
twelve (12) months of such date. In the event that the Plan is
not approved by the shareholders of the Company,
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as provided herein, the Plan and all Awards under the Plan shall
automatically terminate and shall be of no further force or
effect.
(b) Expiration Date. The Plan shall terminate on and
no Award shall be granted under the Plan after the tenth
anniversary of the Effective Date. Unless otherwise expressly
provided in the Plan or in an applicable Award Agreement, any
Award granted hereunder may, and the authority of the Board or
the Committee to amend, alter, adjust, suspend, discontinue, or
terminate any such Award or to waive any conditions or rights
under any such Award shall, continue after the tenth anniversary
of the Effective Date.
As adopted by the FIRSTBANCORPORATION, INC.
Board of Directors on
February 21, 1996 /s/Colden R. Battey
Colden R. Battey, Jr.
Chairman of the Board
