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As filed with the Securities and Exchange Commission on June 3, 1999
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
--------------------------
SOUTHBANC SHARES, INC.
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 6035 58-2361245
(State of Incorporation) (Primary Standard Classification (IRS Employer
Code Number) Identification No.)
907 N. MAIN STREET
ANDERSON, SOUTH CAROLINA 29621
(864) 225-0241
(Address, including zip code, and telephone number including area code, of
registrant's principal executive offices)
SOUTHBANC SHARES, INC. 1998 STOCK OPTION PLAN
SOUTHBANC SHARES, INC. MANAGEMENT RECOGNITION AND DEVELOPMENT PLAN
PERPETUAL BANK 1997 STOCK OPTION PLAN
(as assumed by SouthBanc Shares, Inc.)
PERPETUAL BANK 1997 MANAGEMENT RECOGNITION AND
DEVELOPMENT PLAN
(as assumed by SouthBanc Shares, Inc.)
(Full Title of the Plans)
COPIES TO:
ROBERT W. ORR ERIC S. KRACOV, ESQ.
PRESIDENT AND DIRECTOR MULDOON, MURPHY & FAUCETTE LLP
SOUTHBANC SHARES, INC. 5101 WISCONSIN AVENUE, N.W.
907 N. MAIN STREET WASHINGTON, D.C. 20016
ANDERSON, SOUTH CAROLINA 29621 (202) 362-0840
(864) 225-0241
(Name, Address and Telephone Number of Agent for Service,
including Area Code)
<TABLE>
<CAPTION>
===========================================================================================================
CALCULATION OF REGISTRATION FEE
- -----------------------------------------------------------------------------------------------------------
Title of Class of Proposed Amount Proposed Purchase Estimated Aggregate Amount of
Securities to be Registered to be Registered 1 Amount Per Share Offering Price 2 Registration Fee
- -----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 389,940 shares 3 $ 14.58 4 $ 5,685,325 $1,581
$.01 par value
- -----------------------------------------------------------------------------------------------------------
Common Stock, 131,288 shares 5 $ 21.875 6 $ 2,871,925 $ 798
$.01 par value
- -----------------------------------------------------------------------------------------------------------
</TABLE>
(1)Together with an indeterminate number of additional shares which may be
necessary to adjust the number of shares reserved for issuance pursuant to
the SouthBanc Shares, Inc. 1998 Option Plan ("1998 Plan"), SouthBanc Shares,
Inc. Management Recognition and Development Plan, Perpetual Bank 1997 Stock
Option Plan ("1997 Plan") and the Perpetual Bank 1997 Management Recognition
and Development as the result of a stock split, stock dividend or similar
adjustment of the outstanding common stock of SouthBanc Shares, Inc. pursuant
to 17 C.F.R. Section 230.416(a).
(2)Estimated solely for purposes of calculating the registration fee.
(3)Pursuant to 17 C.F.R. Section 230.457(h)(1), represents the total number of
shares currently reserved or available for issuance upon the exercise of
stock options pursuant to the 1998 Plan, 1997 Plan and the 1993 Plan.
(4)Weighted average price determined by the average exercise price of $ 14.58
per share at which options for 389,940 shares have been granted to date under
the 1998 Plan and 1997 Plan.
(5)Pursuant to 17 C.F.R. Section 230.457(h)(1), represents the total number of
shares issued as stock awards under the SouthBanc Shares, Inc. Management
Recognition and Development Plan ("SouthBanc MDRP") and the Perpetual Bank
Management Recognition and Development Plan ("Perpetual MDRP").
(6)Calculated using the market value of the Common Stock on May 28, 1999 as
determined by the mean between the closing high bid and low asked quotation
on the Nasdaq National Market (as reported in the Wall Street Journal) for
131,288 stock awards which have been granted under the SouthBanc MDRP and
the Perpetual MDRP.
THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE IMMEDIATELY UPON FILING IN
ACCORDANCE WITH SECTION 8(A) OF THE SECURITIES ACT OF 1933, AS AMENDED, (THE
"SECURITIES ACT") AND 17 C.F.R. Section 230.462.
Number of Pages 45
Exhibit Index begins on Page 6
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SOUTHBANC SHARES, INC.
PART I INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEMS 1 & 2. The documents containing the information for the 1998 Plan and 1997
Plan, as well as the SouthBanc MDRP and the Perpetual MDRP required by Part I of
the registration statement will be sent or given to the participants in the
plans as specified by Rule 428(b)(1). Such documents are not filed with the
Securities and Exchange Commission (the "SEC") either as a part of this
registration statement or as prospectuses or prospectus supplements pursuant to
Rule 424 in reliance on Rule 428.
PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed or to be filed with the SEC are
incorporated by reference in this registration statement:
(a) SouthBanc Shares, Inc.'s (the "Company" or the "Registrant") Annual
Report on Form 10-K for the fiscal year ended September 30, 1998, which includes
the consolidated statements of financial condition of the Company and
subsidiaries as of September 30, 1998 and 1997, and the related consolidated
statements of operations, changes in stockholders' equity and cash flows for
each of the years in the three-year period ended September 30, 1998, together
with the related notes and the report of Elliot, Davis & Company, LLP,
independent auditors dated November 20, 1998 filed with the SEC on December 29,
1998 (File No. 0-23751).
(b) The Form 10-Q reports filed by the Registrant for the fiscal
quarters ended December 31, 1998 and March 31, 1999 (File No. 0-23751), filed
with the SEC on February 16, 1999 and May 17, 1999, respectively.
(c) The description of Registrant's common stock contained in
Registrant's Form 8-A (File No. 0- 23751), as filed with the SEC, pursuant to
Section 12(b) of the Securities Exchange Act of 1934 (the "Exchange Act") and
Rule 12b-15 promulgated thereunder,and as incorporated by reference from the
Registrant's Registration Statement on Form S-1 (SEC No. 333-42517) as amended
and declared effective on February 4, 1998.
(d) All documents filed by the Registrant pursuant to Section 13(a) and
(c), 14 or 15(d) of the Exchange Act after the date hereof and prior to the
filing of a post-effective amendment which deregisters all securities then
remaining unsold.
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 INCORPORATED OR 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.
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ITEM 4. DESCRIPTION OF SECURITIES
The common stock to be offered pursuant to the Plan has been registered
pursuant to Section 12 of the Exchange Act. Accordingly, a description of the
common stock is not required herein.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of the common stock offered hereby has been passed upon by
the firm of Muldoon, Murphy & Faucette LLP, Washington, D.C. for the Registrant.
The consolidated statements of financial condition of the Company and
subsidiaries as of September 30, 1998 and 1997, and the related consolidated
statements of operations, changes in stockholders' equity and cash flows for
each of the years in the three-year period ended September 30, 1998, together
with the related notes and the report of Elliot, Davis & Company, LLP,
independent certified public accountants, dated November 20, 1998, is
incorporated by reference in this registration statement, have been incorporated
herein in reliance upon the authority of said firm as experts in accounting and
auditing.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Directors and officers of the Registrant are indemnified and held harmless
against liability to the fullest extent permissible by the General Corporation
Law of Delaware as it currently exists or as it may be amended provided any such
amendment provides broader indemnification provisions than currently exists.
In accordance with the General Corporation Law of the State of Delaware
(being Chapter 1 of Title 8 of the Delaware Code), Articles 16 and 17 of the
Registrant's Certificate of Incorporation provide as follows:
ARTICLE XVI
INDEMNIFICATION
A. Persons. The Corporation shall indemnify, to the extent provided in
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paragraphs B, D or F:
1. any person who is or was a director or officer of the
Corporation; and
2. any person who serves or served at the Corporation's request as a
director, officer, employee, agent, partner or trustee of another corporation,
partnership, joint venture, trust or other enterprise.
B. Extent -- Derivative Suits. In case of a threatened, pending or
-----------------------------
completed action or suit by or in the right of the Corporation against a person
named in paragraph A by reason of his holding a position named in paragraph A,
the Corporation shall indemnify such person if such person satisfies the
standard in paragraph C, for expenses (including attorneys' fees but excluding
amounts paid in settlement) actually and reasonably incurred by such person in
connection with the defense or settlement of the action or suit.
C. Standard -- Derivative Suits. In case of a threatened, pending or
------------------------------
completed action or suit by or in the right of the Corporation, a person named
in paragraph A shall be indemnified only if:
1. such person is successful on the merits or otherwise; or
2. such person acted in good faith in the transaction which is the
subject of the suit or action, and in a manner such person reasonably believed
to be in, or not opposed to, the best interest of the Corporation, including,
3
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but not limited to, the taking of any and all actions in connection with the
Corporation's response to any tender offer or any offer or proposal of another
party to engage in a Business Combination (as defined in Article XIV) not
approved by the board of directors. However, such person shall not be
indemnified in respect of any claim, issue or matter as to which such person has
been adjudged liable to the Corporation unless (and only to the extent that) the
court in which the suit was brought shall determine, upon application, that
despite the adjudication but in view of all the circumstances, such person is
fairly and reasonably entitled to indemnity for such expenses as the court shall
deem proper.
D. Extent -- Nonderivative Suits. In case of a threatened, pending or
-------------------------------
completed suit, action or proceeding (whether civil, criminal, administrative or
investigative), other than a suit by or in the right of the Corporation,
together hereafter referred to as a nonderivative suit, against a person named
in paragraph A by reason of his holding a position named in paragraph A, the
Corporation shall indemnify such person if such person satisfies the standard in
paragraph E, for amounts actually and reasonably incurred by such person in
connection with the defense or settlement of the nonderivative suit, including,
but not limited to (i) expenses (including attorneys' fees), (ii) amounts paid
in settlement, (iii) judgments, and (iv) fines.
E. Standard -- Nonderivative Suits. In case of a nonderivative suit, a
---------------------------------
person named in paragraph A shall be indemnified only if:
1. such person is successful on the merits or otherwise; or
2. such person acted in good faith in the transaction which is the
subject of the nonderivative suit and in a manner such person reasonably
believed to be in, or not opposed to, the best interests of the Corporation,
including, but not limited to, the taking of any and all actions in connection
with the Corporation's response to any tender offer or any offer or proposal of
another party to engage in a Business Combination (as defined in Article XIV of
this Certificate) not approved by the board of directors and, with respect to
any criminal action or proceeding, such person had no reasonable cause to
believe his conduct was unlawful. The termination of a nonderivative suit by
judgment, order, settlement, conviction, or upon a plea of nolo contendere or
---------------
its equivalent shall not, in itself, create a presumption that the person failed
to satisfy the standard of this paragraph E.2.
F. Determination That Standard Has Been Met. A determination that the
------------------------------------------
standard of paragraph C or E has been satisfied may be made by a court or,
except as stated in paragraph C.2 (second sentence), the determination may be
made by:
1. a majority vote of the directors of the Corporation who are not
parties to the action, suit or proceeding, even though less than a quorum; or
2. independent legal counsel (appointed by a majority of the
disinterested directors of the Corporation, whether or not a quorum) in a
written opinion; or
3. the stockholders of the Corporation.
G. Proration. Anyone making a determination under paragraph F may
---------
determine that a person has met the standard as to some matters but not as to
others, and may reasonably prorate amounts to be indemnified.
H. Advance Payment. The Corporation may pay in advance any expenses
----------------
(including attorneys' fees) which may become subject to indemnification under
paragraphs A through G if (i) the board of directors authorizes the specific
payment and (ii) the person receiving the payment undertakes in writing to repay
the same if it is ultimately determined that such person is not entitled to
indemnification by the Corporation under paragraphs A through G.
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I. Nonexclusive. The indemnification and advance of expenses provided by
------------
paragraphs A through H shall not be exclusive of any other rights to which a
person may be entitled by law, bylaw, agreement, vote of stockholders or
disinterested directors, or otherwise.
J. Continuation. The indemnification provided by this Article XVI shall be
------------
deemed to be a contract between the Corporation and the persons entitled to
indemnification thereunder, and any repeal or modification of this Article XVI
shall not affect any rights or obligations then existing with respect to any
state of facts then or theretofore existing or any action, suit or proceeding
theretofore or thereafter brought based in whole or in part upon any such state
of facts. The indemnification and advance payment provided by paragraphs A
through H shall continue as to a person who has ceased to hold a position named
in paragraph A and shall inure to such person's heirs, executors and
administrators.
K. Insurance. The Corporation may purchase and maintain insurance on
---------
behalf of any director, officer, employee or agent of the Corporation or
subsidiary or affiliate or another corporation, partnership, joint venture,
trust or other enterprise, against any liability incurred by such person in any
such position, or arising out of such person's status as such, whether or not
the Corporation would have power to indemnify such person against such liability
under paragraphs A through H.
L. Savings Clause. If this Article XVI or any portion hereof shall be
---------------
invalidated on any ground by any court of competent jurisdiction, then the
Corporation shall nevertheless indemnify each director, officer, employee, and
agent of the Corporation as to costs, charges, and expenses (including
attorneys' fees), judgments, fines, and amounts paid in settlement with respect
to any action, suit, or proceeding, whether civil, criminal, administrative, or
investigative, including an action by or in the right of the Corporation to the
full extent permitted by any applicable portion of this Article XVI that shall
not have been invalidated and to the full extent permitted by applicable law.
ARTICLE XVII
ELIMINATION OF DIRECTORS' LIABILITY
A director of the Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except: (i) for any breach of the director's duty of loyalty
to the Corporation or its stockholders, (ii) for acts or omissions not made in
good faith or which involve intentional misconduct or a knowing violation of
law, (iii) under Section 174 of the General Corporation Law of the State of
Delaware, or (iv) for any transaction from which a director derived an improper
personal benefit. If the General Corporation Law of the State of Delaware is
amended after the date of filing of this Certificate to further eliminate or
limit the personal liability of directors, then the liability of a director of
the Corporation shall be eliminated or limited to the fullest extent permitted
by the General Corporation Law of the State of Delaware, as so amended.
Any repeal or modification of the foregoing paragraph by the stockholders
of the Corporation shall not adversely affect any right or protection of a
director of the Corporation existing at the time of such repeal or modification.
5
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ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following exhibits are filed with or incorporated by reference into
this registration statement on Form S-8 (numbering corresponds generally to the
Exhibit Table in Item 601 of Regulation S-K).
3.1 Certificate of Incorporation of SouthBanc Shares, Inc.1
3.2 Bylaws of SouthBanc Shares, Inc.1
4.1 SouthBanc Shares, Inc. 1998 Stock Option Plan
4.2 SouthBanc Shares, Inc. Management Recognition and Development
Plan
4.3 Perpetual Bank 1997 Stock Option Plan
4.4 Perpetual Bank 1997 Management Recognition and Development
Plan
5.0 Opinion of Muldoon, Murphy & Faucette LLP as to the legality
of the Common Stock registered hereby.
23.1 Consent of Muldoon, Murphy & Faucette LLP (contained in the
opinion included as Exhibit 5)
23.2 Consent of Elliot, Davis & Company, LLP
24 Powers of Attorney (contained on the signature pages).
- -----------------------
1 Incorporated herein by reference from Exhibits 3.1 and 3.2,
respectively, contained in the Registration Statement on Form S-1 (SEC
No. 333-42517), as filed with the SEC.
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 unless the
information required by (i) and (ii) is contained in periodic reports
filed by the Registrant pursuant to Section 13 or 15(d) of the Exchange
Act that are incorporated by reference into 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; 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 to such information in the
registration statement.
(2)That, for the purpose 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; and
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(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.
(4)That, for purposes of determining any liability under the Securities
Act, each filing of the Registrant's annual report pursuant to Section
13(a) or 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 the offering
of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to trustees, 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 SEC such indemnification
is against public policy as expressed in such 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 trustee, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
trustee, 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 such Act will be governed by the final adjudication of
such issue.
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SIGNATURES
THE REGISTRANT.
Pursuant to the requirements of the Securities Act of 1933, as amended,
SouthBanc Shares, 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 Anderson, State of South Carolina, on June 2,
1999.
SouthBanc Shares, Inc.
By:/s/ Robert W. "Lujack" Orr
---------------------------------------
Robert W. "Lujack" Orr
President and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENT, that each person whose signature appears
below (other than Mr. Orr) constitutes and appoints Robert W. "Lujack" Orr and
Mr. Orr hereby constitutes and appoints Harold A. Pickens, Jr., as the true and
lawful attorney-in-fact and agent with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities to sign any or all amendments to the Form S-8 registration statement,
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the U.S. Securities and Exchange Commission,
respectively, granting unto said attorney-in-fact and agent full power and
authority to do and perform each and every act and things requisite and
necessary to be done as fully to all intents and purposes as he might or could
do in person, hereby ratifying and confirming all that said attorney-in-fact and
agent or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
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.
Name Title Date
---- ----- ----
/s/ Robert W. "Lujack" Orr President and Chief Executive June 2, 1999
- ---------------------------- Officer
Robert W. "Lujack" Orr
/s/ Thomas C. Hall Treasurer and Chief Financial June 2, 1999
- ------------------ Officer (principal accounting
Thomas C. Hall officer)
/s/ Harold A. Pickens, Jr. Chairman of the Board June 2, 1999
- --------------------------
Harold A. Pickens, Jr.
/s/ Jack F. McIntosh Director June 2, 1999
- --------------------
Jack F. McIntosh
<PAGE> 9
/s/ Charles W. Fant, Jr. Director June 2, 1999
- ------------------------
Charles W. Fant, Jr.
/s/ Cordes G. Seabrook, Jr. Director June 2, 1999
- ---------------------------
Cordes G. Seabrook, Jr.
/s/ Richard C. Ballenger Director June 2, 1999
- ------------------------
Richard C. Ballenger
/s/ F. Stevon Kay Director June 2, 1999
- -----------------
F. Stevon Kay
/s/ Jim Gray Watson Director June 2, 1999
- -------------------
Jim Gray Watson
/s/ Martha S. Clamp Director June 2, 1999
- --------------------
Martha S. Clamp
<PAGE> 1
EXHIBIT 4.1
SOUTHBANC SHARES, INC. 1998 STOCK OPTION PLAN
<PAGE> 2
SOUTHBANC SHARES, INC.
1998 STOCK OPTION PLAN
SECTION 1. PURPOSE
The SouthBanc Shares, Inc. 1998 Stock Option Plan (the "Plan") is hereby
established to foster and promote the long-term success of SouthBanc Shares,
Inc. and its shareholders by providing directors, officers and employees of the
Corporation and its subsidiaries with an equity interest in the Corporation. The
Plan will assist the Corporation in attracting and retaining the highest quality
of experienced persons as directors, officers and employees and in aligning the
interests of such persons more closely with the interests of the Corporation's
shareholders by encouraging such parties to maintain an equity interest in the
Corporation.
SECTION 2. DEFINITIONS
For purposes of this Plan, the capitalized terms set forth below shall
have the following meanings:
BOARD means the Board of Directors of the Corporation.
CHANGE IN CONTROL shall mean an event deemed to occur if and when (a) an
offeror other than the Corporation purchases shares of the stock of the
Corporation 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
Corporation representing twenty-five percent (25%) or more of the combined
voting power of the Corporation's then outstanding securities, (c) the
membership of the board of directors of the Corporation changes as the result of
a contested election, such that individuals who were directors at the beginning
of any twenty-four (24) 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 Corporation approve a merger,
consolidation, sale or disposition of all or substantially all of the
Corporation's assets, or a plan of partial or complete liquidation. If any of
the events enumerated in clauses (a) - (d) occur, the Board shall determine the
effective date of the change in control resulting therefrom, for purposes of the
Plan.
CODE means the Internal Revenue Code of 1986, as amended from time to
time, and the regulations promulgated thereunder.
CORPORATION means SouthBanc Shares, Inc., a Delaware corporation.
DIRECTOR shall mean a director of the Corporation who is not also an
employee of the Corporation or its subsidiaries.
DISABILITY means any physical or mental injury or disease of a permanent
nature which renders a Participant incapable of meeting the requirements of the
employment or service performed by such Participant immediately prior to the
commencement of such disability. The determination of whether a Participant is
disabled shall be made by the Board in its sole and absolute discretion.
EXCHANGE ACT means the Securities Exchange Act of 1934, as amended from
time to time, and the rules and regulations promulgated thereunder.
FAIR MARKET VALUE shall be determined as follows:
(a) If the Stock is traded or quoted on the Nasdaq Stock Market or other
national securities exchange on any date, then the Fair Market Value shall be
the average of the highest and lowest selling price on such exchange on such
date or, if there were no sales on such date, then on the next prior business
day on which there was a sale.
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(b) If the Stock is not traded or quoted on the Nasdaq Stock Market or
other national securities exchange, then the Fair Market Value shall be a value
determined by the Board in good faith on such basis as it deems appropriate.
INCENTIVE STOCK OPTION means an option to purchase shares of Stock granted
to a Participant under the Plan which is intended to meet the requirements of
Section 422 of the Code.
NON-QUALIFIED STOCK OPTION means an option to purchase shares of Stock
granted to a Participant under the Plan which is not intended to be an Incentive
Stock Option.
OPTION means an Incentive Stock Option or a Non-Qualified Stock Option.
PARTICIPANT means a Director or employee of the Corporation or its
subsidiaries selected by the Board to receive an Option under the Plan.
PLAN means this SouthBanc Shares, Inc. 1998 Stock Option Plan.
STOCK means the common stock, $0.01 par value, of the Corporation.
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 material breach of any provision of any employment
agreement between the Corporation and/or any subsidiary of the Corporation and a
Participant.
SECTION 3. ADMINISTRATION
(a) The Plan shall be administered by the Board. Among other things, the
Board shall have authority, subject to the terms of the Plan, to grant Options,
to determine the individuals to whom and the time or times at which Options may
be granted, to determine whether such Options are to be Incentive Stock Options
or Non-Qualified Stock Options (subject to the requirements of the Code), to
determine the terms and conditions of any Option granted hereunder, and the
exercise price thereof.
(b) Subject to the other provisions of the Plan, the Board shall have
authority to adopt, amend, alter and repeal such administrative rules,
guidelines and practices governing the operation of the Plan as it shall from
time to time consider advisable, to interpret the provisions of the Plan and any
Option and to decide all disputes arising in connection with the Plan. The Board
may correct any defect or supply any omission or reconcile any inconsistency in
the Plan or in any option agreement in the manner and to the extent it shall
deem appropriate to carry the Plan into effect, in its sole and absolute
discretion. The Board's decision and interpretations shall be final and binding.
Any action of the Board with respect to the administration of the Plan shall be
taken pursuant to a majority vote or by the unanimous written consent of its
members.
SECTION 4. ELIGIBILITY AND PARTICIPATION.
Officers and employees of the Corporation and its subsidiaries and
Directors shall be eligible to participate in the Plan. The Participants under
the Plan shall be selected from time to time by the Board, in its sole
discretion, from among those eligible, and the Board shall determine, in its
sole discretion, the numbers of shares to be covered by the Option or Options
granted to each Participant. Options intended to qualify as Incentive Stock
Options shall be granted only to persons who are eligible to receive such
options under Section 422 of the Code.
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SECTION 5. SHARES OF STOCK AVAILABLE FOR OPTIONS
(a) The maximum number of shares of Stock which may be issued and
purchased pursuant to Options granted under the Plan is 228,131, subject to the
adjustments as provided in Section 5 and Section 9, to the extent applicable. If
an Option granted under this Plan expires or terminates before exercise or is
forfeited for any reason, the shares of Stock subject to such Option, to the
extent of such expiration, termination or forfeiture, shall again be available
for subsequent Option grants under Plan. Shares of Stock issued under the Plan
may consist in whole or in part of authorized but unissued shares or treasury
shares.
(b) In the event that the Board determines, in its sole discretion, that
any stock dividend, stock split, reverse stock split or combination,
extraordinary cash dividend, creation of a class of equity securities,
recapitalization, reclassification, reorganization, merger, consolidation,
split-up, spin-off, combination, exchange of shares, or other similar
transaction affects the Stock such that an adjustment is required in order to
preserve the benefits or potential benefits intended to be granted or made
available under the Plan to Participants, the Board shall have the right to
proportionately and appropriately adjust equitably any or all of (i) the maximum
number and kind of shares of Stock in respect of which Options may be granted
under the Plan to Participants, (ii) the number and kind of shares of Stock
subject to outstanding Options held by Participants, and (iii) the exercise
price with respect to any Options held by Participants, without changing the
aggregate purchase price as to which such Options remain exercisable, provided
that no adjustment shall be made pursuant to this Section if such adjustment
would cause the Plan to fail to comply with Section 422 of the Code with regard
to any Incentive Stock Options granted hereunder. No fractional Shares shall be
issued on account of any such adjustment.
(c) Any adjustments under this Section will be made by the Board, whose
determination as to what adjustments, if any, will be made and the extent
thereof will be final, binding and conclusive.
SECTION 6. NON-QUALIFIED STOCK OPTIONS
The Board may, from time to time, grant Non-Qualified Stock Options to
Participants upon such terms and conditions as the Board may determine.
Non-Qualified Stock Options granted under this Plan are subject to the following
terms and conditions:
(a) PRICE. The purchase price per share of Stock deliverable upon the
exercise of each Non-Qualified Stock Option shall be determined by the Board on
the date the option is granted. Such purchase price shall not be less than one
hundred percent (100%) of the Fair Market Value of the Stock on the date of
grant. Shares may be purchased only upon full payment of the purchase price.
Payment of the purchase price may be made, in whole or in part, through the
surrender of shares of the Stock at the Fair Market Value of such shares on the
date of surrender or through a "cashless exercise" involving a stock brokerage
firm.
(b) TERMS OF OPTIONS. The term during which each Non-Qualified Stock
Option may be exercised shall be determined by the Board, but in no event shall
a Non-Qualified Stock Option be exercisable in whole or in part more than ten
(10) years from the date of grant. Except as provided herein, no Non-Qualified
Stock Option granted under this Plan is transferable except by will or the laws
of descent and distribution. The Board shall have discretionary authority to
permit the transfer of any Non-Qualified Stock Option to members of a
Participant's immediate family, including trusts for the benefit of such family
members and partnerships in which such family members are the only partners;
provided, however, that a transferred Non-Qualified Stock Option may be
exercised by the transferee on any date only to the extent that the Participant
would have been entitled to exercise the Non-Qualified Stock Option on such date
had the Non-Qualified Stock Option not been transferred. Any transferred
Non-Qualified Stock Option shall remain subject to the terms and conditions of
the Participant's stock option agreement.
(c) TERMINATION OF SERVICE. Unless otherwise determined by the Board, upon
the termination of a Participant's employment (or, in the case of a Director,
service as a member of the Board) for any reason other than Disability, death or
Termination for Cause, the Participant's Non-Qualified Stock Options shall be
exercisable only as
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to those shares which were immediately exercisable by the Participant at the
date of termination and only for a period of one (1) year following termination.
Notwithstanding any provision set forth herein nor contained in any Agreement
relating to the award of an Option, in the event of Termination for Cause, all
rights under the Participant's Non-Qualified Stock Options shall expire upon
termination. In the event of death or termination as a result of Disability of
any Participant, all Non-Qualified Stock Options held by the Participant,
whether or not exercisable at such time, shall be exercisable by the Participant
or his legal representatives or beneficiaries of the Participant for two (2)
years or such longer period as determined by the Board following the date of the
Participant's death or termination of service due to Disability, provided that
in no event shall the period extend beyond the expiration of the Non-Qualified
Stock Option term.
SECTION 7. INCENTIVE STOCK OPTIONS
The Board may, from time to time, grant Incentive Stock Options to
eligible employees. Incentive Stock Options granted pursuant to the Plan shall
be subject to the following terms and conditions:
(a) PRICE. The purchase price per share of Stock deliverable upon the
exercise of each Incentive Stock Option shall be not less than one hundred
percent (100%) of the Fair Market Value of the Stock on the date of grant.
However, if a Participant owns (or, under Section 422(d) of the Code, is deemed
to own) stock possessing more than ten percent (10%) of the total combined
voting power of all classes of Stock, the purchase price per share of Stock
deliverable upon the exercise of each Incentive Stock Option shall not be less
than one hundred ten percent (110%) of the Fair Market Value of the Stock on the
date of grant. Shares may be purchased only upon payment of the full purchase
price. Payment of the purchase price may be made, in whole or in part, through
the surrender of shares of the Stock at the Fair Market Value of such shares on
the date of surrender or through a "cashless exercise" involving a stock
brokerage firm.
(b) AMOUNTS OF OPTIONS. Subject to Sections 4(b) and (c), Incentive Stock
Options may be granted to any eligible employee in such amounts as determined by
the Board. In the case of an option intended to qualify as an Incentive Stock
Option, the aggregate Fair Market Value (determined as of the time the option is
granted) of the Stock with respect to which Incentive Stock Options granted are
exercisable for the first time by the Participant during any calendar year shall
not exceed $100,000. The provisions of this Section 7(b) shall be construed and
applied in accordance with Section 422(d) of the Code and the regulations, if
any, promulgated thereunder. To the extent an award is in excess of such limit,
it shall be deemed a Non-Qualified Stock Option. The Board shall have discretion
to redesignate options granted as Incentive Stock Options as Non-Qualified Stock
Options.
(c) TERMS OF OPTIONS. The term during which each Incentive Stock Option
may be exercised shall be determined by the Board, but in no event shall an
Incentive Stock Option be exercisable in whole or in part more than ten (10)
years from the date of grant. If at the time an Incentive Stock Option is
granted to an employee, the employee owns Stock representing more than ten
percent (10%) of the total combined voting power of the Corporation (or, under
Section 422(d) of the Code, is deemed to own Stock representing more than ten
percent (10%) of the total combined voting power of all such classes of Stock,
by reason of the ownership of such classes of Stock, directly or indirectly, by
or for any brother, sister, spouse, ancestor or lineal descendent of such
employee, or by or for any corporation, partnership, estate or trust of which
such employee is a shareholder, partner or beneficiary), the Incentive Stock
Option granted to such employee shall not be exercisable after the expiration of
five (5) years from the date of grant. No Incentive Stock Option granted under
this Plan is transferable except by will or the laws of descent and
distribution.
(d) TERMINATION OF EMPLOYMENT. Upon the termination of a Participant's
service for any reason other than Disability, death or Termination for Cause,
the Participant's Incentive Stock Options which are then exercisable at the date
of termination may only be exercised by the Participant for a period of three
(3) months following termination, after which time they shall be void.
Notwithstanding any provisions set forth herein nor contained in any Agreement
relating to an award of an Option, in the event of Termination for Cause, all
rights under the Participant's Incentive Stock Options shall expire immediately
upon termination.
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Unless otherwise determined by the Board, in the event of death or
termination of service as a result of Disability of any Participant, all
Incentive Stock Options held by such Participant, whether or not exercisable at
such time, shall be exercisable by the Participant or the Participant's legal
representatives or the beneficiaries of the Participant for one (1) year
following the date of the Participant's death or termination of employment as a
result of Disability. In no event shall the exercise period extend beyond the
expiration of the Incentive Stock Option term.
(f) COMPLIANCE WITH CODE. The options granted under this Section 7 of the
Plan are intended to qualify as incentive stock options within the meaning of
Section 422 of the Code, but the Corporation makes no warranty as to the
qualification of any option as an incentive stock option within the meaning of
Section 422 of the Code. A Participant shall notify the Board in writing in the
event that he disposes of Stock acquired upon exercise of an Incentive Stock
Option within the two-year period following the date the Incentive Stock Option
was granted or within the one-year period following the date he received Stock
upon the exercise of an Incentive Stock Option and shall comply with any other
requirements imposed by the Corporation in order to enable the Corporation to
secure the related income tax deduction to which it will be entitled in such
event under the Code.
SECTION 8. EXTENSION
The Board may, in its sole discretion, extend the dates during which all
or any particular Option or Options granted under the Plan may be exercised;
provided, however, that no such extension shall be permitted without the
Participant's consent if it would cause Incentive Stock Options issued under the
Plan to fail to comply with Section 422 of the Code.
SECTION 9. GENERAL PROVISIONS APPLICABLE TO OPTIONS
(a) Each Option under the Plan shall be evidenced by a writing delivered
to the Participant specifying the terms and conditions thereof and containing
such other terms and conditions not inconsistent with the provisions of the Plan
as the Board considers necessary or advisable to achieve the purposes of the
Plan or comply with applicable tax and regulatory laws and accounting
principles.
(b) Each Option may be granted alone, in addition to or in relation to any
other Option. The terms of each Option need not be identical, and the Board need
not treat Participants uniformly. Except as otherwise provided by the Plan or a
particular Option, any determination with respect to an Option may be made by
the Board at the time of grant or at any time thereafter.
(c) Notwithstanding anything in this Plan to the contrary, in the event of
a Change in Control, all then outstanding Options shall become one hundred
percent vested and exercisable as of the effective date of the Change in
Control. If, in connection with or as a consequence of a Change in Control, the
Corporation is merged into or consolidated with another corporation, if the
Corporation becomes a subsidiary of another corporation or if the Corporation
sells or otherwise disposes of substantially all of its assets to another
corporation, then unless provisions are made in connection with such
transactions for the continuance of the Plan and/or the assumption or
substitution of then outstanding 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 shall
be canceled as of the effective date of the merger, consolidation, or sale and
the Participant shall be paid in cash an amount equal to the difference between
the Fair Market Value of the Stock subject to the Options on the effective date
of such corporate event and the exercise price of the Options. Notwithstanding
anything in this Section 9(c) or any Option agreement to the contrary, in the
event that the consummation of a Change in Control is contingent on using
pooling of interests accounting methodology, the Board may, in its discretion,
take any action necessary to preserve the use of pooling of interests
accounting.
(d) The Corporation shall be entitled to withhold (or secure payment from
the Participant in lieu of withholding) the amount of any withholding or other
tax required by law to be withheld or paid by the Corporation with respect to
any Options exercised under this Plan, and the Corporation may defer issuance of
Stock hereunder until and
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unless indemnified to its satisfaction against any liability for any such tax.
The amount of such withholding or tax payment shall be determined by the Board
or its delegate and shall be payable by the Participant at such time as the
Board determines. To the extent authorized by the Board, such withholding
obligation may also be satisfied by the payment of cash by the Participant to
the Corporation, the tendering of previously acquired shares of Stock of the
Participant or the withholding, at the appropriate time, of shares of Stock
otherwise issuable to the Participant, in a number sufficient, based upon the
Fair Market Value of such Stock, to satisfy such tax withholding requirements.
The Board shall be authorized, in its sole discretion, to establish such rules
and procedures relating to any such withholding methods as it deems necessary or
appropriate, including, without limitation, rules and procedures relating to
elections by Participants who are subject to the provisions of Section 16 of the
Exchange Act.
(e) Subject to the terms of the Plan, the Board may at any time, and from
time to time, amend, modify or terminate the Plan or any outstanding Option held
by a Participant, including substituting therefor another Option of the same or
a different type or changing the date of exercise or realization, provided that
the Participant's consent to each action shall be required unless the Board
determines that the action, taking into account any related action, would not
materially and adversely affect the Participant.
SECTION 10. MISCELLANEOUS
(a) No person shall have any claim or right to be granted an Option, and
the grant of an Option shall not be construed as giving a Participant the right
to continued employment or service on the Board. The Corporation expressly
reserves the right at any time to dismiss a Participant free from any liability
or claim under the Plan, except as expressly provided in the Plan or the
applicable Option.
(b) Nothing contained in the Plan shall prevent the Corporation from
adopting other or additional compensation arrangements.
(c) Subject to the provisions of the applicable Option, no Participant
shall have any rights as a shareholder (including, without limitation, any
rights to receive dividends, or non cash distributions with respect to such
shares) with respect to any shares of Stock to be distributed under the Plan
until he or she becomes the holder thereof.
(d) Notwithstanding anything to the contrary expressed in this Plan, any
provisions hereof that vary from or conflict with any applicable Federal or
State securities laws (including any regulations promulgated thereunder) shall
be deemed to be modified to conform to and comply with such laws.
(e) No member of the Board shall be liable for any action or determination
taken or granted in good faith with respect to this Plan nor shall any member of
the Board be liable for any agreement issued pursuant to this Plan or any grants
under it. Each member of the Board shall be indemnified by the Corporation
against any losses incurred in such administration of the Plan, unless his
action constitutes serious and willful misconduct.
(f) The Plan shall be effective on April 16, 1999 but only if, prior to
such date, the Plan is approved by the Corporation's shareholders. The Plan will
be so approved if at an annual or special meeting of shareholders held prior to
such date a quorum is present and the votes of the holders of a majority of the
securities of the Corporation present or represented by proxy and entitled to
vote on such matter shall be cast in favor of its approval.
(g) The Board may amend, suspend or terminate the Plan or any portion
thereof at any time, provided that no amendment shall be made without
shareholder approval if such approval is necessary to comply with any applicable
tax laws or regulatory requirement.
(h) Options may not be granted under the Plan after the tenth anniversary
of the effective date of the Plan, but then outstanding Options may extend
beyond such date.
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(i) To the extent that State laws shall not have been preempted by any
laws of the United States, the Plan shall be construed, regulated, interpreted
and administered according to the other laws of the State of Delaware.
* * *
Adopted by the Board of Directors on December 4, 1998.
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EXHIBIT 4.2
SOUTHBANC SHARES, INC. MANAGEMENT RECOGNITION AND DEVELOPMENT PLAN
<PAGE> 2
SOUTHBANC SHARES, INC.
MANAGEMENT RECOGNITION AND DEVELOPMENT PLAN
SECTION 1. PURPOSE AND ADOPTION OF THE PLAN
(a) PURPOSE. The purpose of the SouthBanc Shares, Inc. Management
Recognition and Development Plan is to assist the Corporation and its
subsidiaries in attracting, retaining and motivating key management employees
and non-employee directors who will contribute to the Corporation's success. The
Plan is intended to recognize the contributions of key management personnel to
the success of the Corporation and its subsidiaries, to link the benefits paid
to eligible employees and directors who have substantial responsibility for the
successful operation, administration and management of the Corporation with the
enhancement of shareholder value and to provide eligible employees and directors
with an opportunity to acquire a greater proprietary interest in the Corporation
through the grant of restricted shares of Stock which, in accordance with the
terms and conditions set forth below, will vest only if the employees meet the
vesting criteria established by the Board and this Plan.
(b) ADOPTION AND EFFECTIVE DATE. The Plan shall be effective on April 16,
1999 but only if, prior to such date, the Plan is approved by the Corporation's
shareholders. The Plan will be so approved if at an annual or special meeting of
shareholders held prior to such date a quorum is present and the votes of the
holders of a majority of the securities of the Corporation present or
represented by proxy and entitled to vote on such a matter shall be cast in
favor of its approval.
SECTION 2. DEFINITIONS
For purposes of this Plan, the capitalized terms set forth below shall
have the following meanings:
AWARD AGREEMENT means a written agreement between the Corporation and a
Participant specifically setting forth the terms and conditions of an award of
Restricted Stock granted to a Participant pursuant to Section 5 of the Plan.
BOARD means the Board of Directors of the Corporation.
CHANGE IN CONTROL shall mean an event deemed to occur if and when (a) an
offeror other than the Corporation purchases shares of the common stock of the
Corporation 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
Corporation representing twenty-five percent (25%) or more of the combined
voting power of the Corporation's then outstanding securities, (c) the
membership of the board of directors of the Corporation changes as the result of
a contested election, such that individuals who were directors at the beginning
of any twenty-four (24) 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 Corporation approve a merger,
consolidation, sale or disposition of all or substantially all of the
Corporation's assets or a plan of partial or complete liquidation. If any of the
events enumerated in clauses (a) - (d) occur, the Board shall determine the
effective date of the change in control resulting therefrom.
CORPORATION means SouthBanc Shares, Inc., a Delaware corporation, and its
successors.
DATE OF GRANT means the date as of which an award of Restricted Stock is
granted in accordance with Section 5.
DISABILITY means any physical or mental injury or disease of a permanent
nature which renders a Participant incapable of meeting the requirements of the
employment or service performed by such Participant immediately prior
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to the commencement of such disability. The determination of whether a
Participant is disabled shall be made by the Board in its sole and absolute
discretion.
EFFECTIVE DATE means the date as of which the Plan shall become effective,
as determined in accordance with Section 1(b).
EXCHANGE ACT means the Securities Exchange Act of 1934, as amended.
FAIR MARKET VALUE shall be determined as follows:
(a) If the stock is traded or quoted on the Nasdaq Stock Market or other
national securities exchange on any date, then the Fair Market Value shall be
the average of the highest and lowest selling price on such exchange on such
date 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 stock is not traded or quoted on the Nasdaq Stock Market or
other national securities exchange, then the Fair Market Value shall be a value
determined by the Board in good faith on such basis as it deems appropriate.
PARTICIPANT means any person selected by the Board, pursuant to Section
3(b), to participate under the Plan.
PLAN means this SouthBanc Shares, Inc. Management Recognition and
Development Plan, as the same may be amended from time to time.
RESTRICTED STOCK means shares of Stock awarded to a Participant subject to
restrictions as described in Section 5.
STOCK means the common stock, par value $0.01 per share, of the
Corporation.
SECTION 3. ADMINISTRATION AND PARTICIPATION
(a) ADMINISTRATION. The Plan shall be administered by the Board which
shall have exclusive and final authority and discretion in each determination,
interpretation or other action affecting the Plan and its Participants. The
Board shall have the sole and absolute authority and discretion to interpret the
Plan, to establish and modify administrative rules for the Plan, to select, in
accordance with Section 3(b), the persons who will be Participants hereunder, to
impose, in accordance with Section 5(a), such conditions and restrictions as it
determines appropriate and to take such other actions and make such other
determinations in connection with the Plan as it may deem necessary or
advisable.
(b) DESIGNATION OF PARTICIPANTS. Participants in the Plan shall be such
employees of the Corporation and its subsidiaries, as the Board, in its sole
discretion, may designate. The Board shall consider such factors as it deems
pertinent in selecting Participants.
SECTION 4. STOCK ISSUABLE UNDER THE PLAN
(a) NUMBER OF SHARES OF STOCK ISSUABLE. Subject to adjustments as provided
in Section 6(c), the maximum number of shares of Stock available for issuance
under the Plan shall be 91,252. The Stock to be offered under the Plan shall be
authorized and unissued Stock, Stock which shall have been reacquired by the
Corporation and held in its treasury, or Stock held in a trust established by
the Corporation for the purpose of funding awards under the Plan with shares
acquired on the open market with funds contributed by the Corporation or any
subsidiary.
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<PAGE> 4
(b) SHARES SUBJECT TO TERMINATED AWARDS. Shares of Stock forfeited as
provided in Section 5(b) may again be issued under the Plan.
SECTION 5. RESTRICTED STOCK
Subject to the terms of this Plan, the Board may grant to any Participant
an award of Restricted Stock in respect of such number of shares of Stock, and
subject to such terms and conditions relating to forfeitability and restrictions
on delivery and transfer (whether based on performance standards, periods of
service or otherwise), as the Board shall determine in its sole discretion. The
terms of all such Restricted Stock awards shall be set forth in an Award
Agreement between the Corporation and the Participant which shall contain such
provisions, not inconsistent with this Plan, as shall be determined by the
Board.
(a) ISSUANCE OF RESTRICTED STOCK. As soon as practicable after the Date of
Grant of Restricted Stock, the Corporation shall cause to be transferred on the
books of the Corporation shares of Stock, registered on behalf of the
Participant, evidencing such Restricted Stock, but subject to forfeiture to the
Corporation retroactive to the Date of Grant if an Award Agreement delivered to
the Participant by the Corporation with respect to the Restricted Stock is not
duly executed by the Participant and timely returned to the Corporation. Unless
the Board determines otherwise, until the lapse or release of all restrictions
applicable to an award of Restricted Stock, the stock certificates representing
such Restricted Stock shall be held in custody by the Corporation or its
designee. Notwithstanding the foregoing, the Corporation may, in its sole
discretion, establish a trust for the purpose of holding Restricted Stock
awarded pursuant to this Plan. In the event that a trust is established, the
Corporation may elect to hold any or all shares of Stock subject to awards in
the name of the trust for the benefit of the Participant and subject to the
forfeiture conditions applicable to the award.
(b) SHAREHOLDER RIGHTS. Beginning on the Date of Grant of the Restricted
Stock and subject to execution of the Award Agreement as provided in Section
5(a), the Participant shall become a shareholder of the Corporation with respect
to all Stock subject to the Award Agreement and shall have all of the rights of
a shareholder, including, but not limited to, the right to vote such Stock and
the right to receive dividends and other distributions paid with respect to such
Stock; provided, however, that any Stock distributed as a dividend or otherwise
with respect to any Restricted Stock as to which the restrictions have not yet
lapsed shall be subject to the same restrictions as such Restricted Stock and
shall be held as prescribed in Section 5(a). Cash dividends paid with respect to
Restricted Stock may, at the Board's discretion, be held by the Corporation in
escrow until such time as the Participant vests in such shares or distributed to
the Participant during the forfeiture period. The Corporation may credit a
reasonable rate of interest to such cash dividends prior to distribution.
(c) RESTRICTION ON TRANSFERABILITY. None of the Restricted Stock may be
assigned, transferred (other than by will or the laws of descent and
distribution), pledged, sold or otherwise disposed of prior to lapse or release
of the restrictions applicable thereto.
(d) DELIVERY OF STOCK UPON RELEASE OF RESTRICTIONS. Upon expiration or
earlier termination of the forfeiture period without a forfeiture, and the
satisfaction of or release from any other conditions prescribed by the Board,
the restrictions applicable to the Restricted Stock shall lapse. As promptly as
administratively feasible thereafter, subject to the requirements of Section
6(b), the Corporation shall deliver to the Participant or, in case of the
Participant's death, to the Participant's legal representatives, one or more
stock certificates for the appropriate number of shares of Stock, free of all
such restrictions, except for any restrictions that may be imposed by law.
(e) TERMS OF RESTRICTED STOCK; FORFEITURE OF RESTRICTED STOCK. All
Restricted Stock shall be forfeited and returned to the Corporation and all
rights of the Participant with respect to such Restricted
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Stock shall cease and terminate in their entirety if during the forfeiture
restrictions the employment (or, in the case of a Director, service) of the
Participant with the Corporation and/or its subsidiaries terminates for any
reason. Subject to the terms of the Plan, the Board, in its sole discretion,
shall establish any forfeiture period for each grant of Restricted Stock, and
may provide for the forfeiture period to lapse in installments. Notwithstanding
the foregoing, upon the termination of a Participant's employment by reason of
death or Disability, all forfeiture restrictions imposed on Restricted Stock
shall immediately and fully lapse. In addition, upon the effective date of a
Change in Control, all forfeiture restrictions imposed on outstanding Restricted
Stock awards shall immediately and fully lapse.
SECTION 6. MISCELLANEOUS
(a) LIMITATIONS ON TRANSFER. The rights and interest of a Participant
under the Plan may not be assigned or transferred other than by will or the laws
of descent and distribution. During the lifetime of a Participant, only the
Participant personally may exercise rights under the Plan.
(b) TAXES. The Corporation shall be entitled to withhold (or secure
payment from the Participant in lieu of withholding) the amount of any
withholding or other tax required by law to be withheld or paid by the
Corporation with respect to any Stock issuable under this Plan, or with respect
to any income recognized upon the lapse of restrictions applicable to Restricted
Stock and the Corporation may defer issuance of Stock hereunder until and unless
indemnified to its satisfaction against any liability for any such tax. The
amount of such withholding or tax payment shall be determined by the Board or
its delegate and shall be payable by the Participant at such time as the Board
determines. To the extent authorized by the Board, such withholding obligation
may be satisfied by the payment of cash by the Participant to the Corporation,
the tendering of previously acquired shares of Stock of the Participant or the
withholding, at the appropriate time, of shares of Stock otherwise issuable to
the Participant, in a number sufficient, based upon the Fair Market Value of
such Stock, to satisfy such tax withholding requirements. The Board shall be
authorized, in its sole discretion, to establish such rules and procedures
relating to any such withholding methods as it deems necessary or appropriate,
including, without limitation, rules and procedures relating to elections by
Participants who are subject to the provisions of Section 16 of the Exchange
Act.
(c) ADJUSTMENTS TO REFLECT CAPITAL CHANGES. The amount and kind of Stock
available for issuance under the Plan and the limit on the number of shares of
Stock in respect of which awards may be made to any Participant in any calendar
year shall be appropriately adjusted to reflect any stock dividend, stock split,
combination or exchange of shares, merger, consolidation or other change in
capitalization with a similar substantive effect upon the Plan. The Board shall
have the power and sole discretion to determine the nature and amount of the
adjustment, if any, to be made pursuant to this Section 6(c).
(d) NO RIGHT TO AWARD; NO RIGHT TO EMPLOYMENT. No employee or other person
shall have any claim of right to be permitted to participate or be granted an
award under this Plan. Neither the Plan nor any action taken hereunder shall be
construed as giving any employee any right to be retained in the employ of the
Corporation.
(e) GOVERNING LAW. The Plan and all determinations made and actions taken
pursuant to the Plan shall be governed by the laws of the State of Delaware
other than the conflict of laws provisions of such laws, and shall be construed
in accordance therewith.
(f) CAPTIONS. The captions (i.e., all Section and subsection headings)
used in the Plan are for convenience only, do not constitute a part of the Plan,
and shall not be deemed to limit, characterize or affect in any way any
provisions of the Plan, and all provisions of the Plan shall be construed as if
no captions had been used in the Plan.
(g) SEVERABILITY. Whenever possible, each provision in the Plan and every
Award Agreement shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of the Plan or any Award Agreement
shall be held to be prohibited by or invalid under applicable law, then (x) such
provision shall be deemed amended to accomplish the objectives of the provision
as originally written to the fullest extent permitted by law and (y) all other
provisions of the Plan and every Award Agreement shall remain in full force and
effect.
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(h) LEGENDS. All certificates for Stock delivered under the Plan shall be
subject to such transfer restrictions set forth in the Plan and such other
restrictions as the Board may deem advisable under the rules, regulations and
other requirements of the Securities and Exchange Commission, any stock exchange
upon which the Stock is then listed and any applicable federal or state
securities law, and the Board may cause a legend or legends to be endorsed on
any such certificates making appropriate references to such restrictions.
(i) AMENDMENT AND TERMINATION.
(A) AMENDMENT. Subject to applicable law and regulations, the Board shall
have complete power and authority to amend the Plan at any time it is deemed
necessary or appropriate; provided, however, that no amendment shall be made
without shareholder approval if such approval is necessary for the Corporation
to comply with an applicable tax law or regulatory requirement. No termination
or amendment of the Plan may, without the consent of the Participant to whom any
award shall theretofore have been granted under the Plan, adversely affect the
right of such individual under such award.
(B) TERMINATION. The Board shall have the right and the power to terminate
the Plan at any time. Unless sooner terminated by action of the Board, the Plan
shall automatically terminate, without further action of the Board or the
Corporation's shareholders, on the tenth anniversary of the Effective Date. No
award shall be granted under the Plan after the termination of the Plan, but the
termination of the Plan shall not have any other effect and any award
outstanding at the time of the termination of the Plan shall continue in effect
in accordance with its terms as if the Plan has not terminated.
* * *
Adopted by the Board of Directors on December 4, 1998.
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<PAGE> 1
EXHIBIT 4.3
PERPETUAL BANK 1997 STOCK OPTION PLAN
(AS ASSUMED BY SOUTHBANC SHARES, INC.)
<PAGE> 2
PERPETUAL BANK, A FEDERAL SAVINGS BANK
1997 STOCK OPTION PLAN
(as assumed by SouthBanc Shares, Inc.)
SECTION 1. PURPOSE. The purposes of the Perpetual Bank, A Federal Savings Bank
1997 Stock Option Plan are to promote the interests of the Bank, its affiliates,
and its stockholders by (i) attracting and retaining exceptional executive
personnel and other key employees and directors of the Bank and its affiliates;
(ii) motivating such employees and Eligible Directors by means of
performance-related incentives to achieve longer-range performance goals; and
(iii) enabling such employees and Eligible Directors to participate in the
long-term growth and financial success of the Bank.
SECTION 2. DEFINITIONS. As used in the Plan, the following terms shall have the
meanings set forth below:
"Affiliate" shall mean any present or future corporation that would be a
"subsidiary" corporation as defined in Sections 424(f), 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 or Eligible Director.
"Bank" shall mean Perpetual Bank, A Federal Savings Bank, Anderson, South
Carolina.
"Board" shall mean the Board of Directors of the Bank.
"Change in Control" shall mean an event deemed to occur if and when (a) an
offeror other than the Bank purchases shares of the common stock of 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 Bank
representing twenty-five percent (25%) or more of the combined voting power of
the Bank's then outstanding securities, (c) the membership of the board of
directors of 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 Bank approve a merger, consolidation, sale or disposition of
all or substantially all of the Bank's assets, or a plan of partial or complete
liquidation. If any of the events enumerated in clauses (a) - (d) occur, the
Board shall determine the effective date of the change in control resulting
therefrom, for purposes of the Plan. Notwithstanding anything herein to the
contrary, a "Change in Control" shall not include the acquisition of the Bank by
a stock savings and loan holding company formed at the direction of the Board.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Committee" shall mean a committee of the Board designated by the Board to
administer the Plan. If a separate committee is not designated by the Board, the
Board shall serve as the Committee for all purposes under the Plan.
"Director Option" shall mean a Non-Qualified Stock Option granted to an
Eligible Director pursuant to Section 6(e).
"Disability" shall have the meaning set forth in Section 22(e)(3) of the
Code. For purposes of the Plan, all determinations as to whether a Participant
has become disabled shall be made by a majority of the Board (or, in the
1
<PAGE> 3
case of an Eligible Director, a majority of the remaining members of the Board)
upon the basis of such evidence as its deems necessary or desirable, and shall
be final and binding on all interested persons.
"Effective Date" shall mean the date of shareholder approval of the Plan.
"Eligible Director" shall mean, on any date, a person who is serving as a
member of the Board but shall not include a person who is an Employee.
"Employee" shall mean an employee of the Bank 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.
"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 of Options 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 Perpetual Bank, A Federal Savings Bank 1997 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.
2
<PAGE> 4
"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 (10%) 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 material breach of any provision of any employment
agreement between the Bank 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 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.
(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 58,500. 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. 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.
(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 Bank, issuance of warrants or other rights to
purchase Shares or other securities of the 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 Committee shall
proportionately adjust any or all (as necessary) of (i) the number of Shares or
other securities of the Bank (or number
3
<PAGE> 5
and kind of other securities or property) with respect to which Awards may be
granted, (ii) the number of Shares or other securities of the Bank (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 Awards of Incentive Stock Option, 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 Bank, who is not a member of the Committee shall be eligible to be
designated a Participant. Each Eligible Director may receive Director Options 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
such 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, 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 one hundred
thousand dollars ($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 or Director Option is granted, which price shall not be
less than one hundred percent (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 one hundred ten percent (110%) of
the per Share Fair Market Value on the date of grant.
(c) EXERCISE. Each Option shall be exercisable at such times 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 (10) years
(five (5) 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 (3) months (twelve (12) months in the case of a Participant who
becomes Disabled, or who dies) after the date on which he ceases to be an
employee of the Bank or an Affiliate, and provided, further, that no Award of
Options under the Plan shall vest more rapidly than ratably over a five-year
period whereby twenty percent (20%) of the Award shall become exercisable on
each of the first through the fifth anniversaries of the date of grant so long
as the Participant remains an Employee; provided, further, that an Award of
Options shall be one hundred percent (100%) vested upon a Participant's death or
Disability. In the event of an Employee'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.
(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 Bank. Such payment may be made in cash or its
4
<PAGE> 6
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 Bank as of the date of such tender is at least
equal to such option price.
(e) DIRECTOR OPTIONS. Subject to the provisions of the Plan, the Committee
shall have sole and complete authority to determine the Eligible Directors to
whom Director Options shall be granted, the number of shares to be covered by
each Director Option and the condition and limitations applicable to the
exercise of each Director Option. Each Award of Director Options shall vest
ratably over a five (5) year period whereby twenty percent (20%) of the Award
shall become exercisable on each of the first through the fifth anniversaries of
the date of grant so long as the Participant remains an Eligible Director;
provided, however, that the Award shall be one hundred percent (100%) vested in
the event of the Eligible Director's death or Disability. A Director Option
shall be exercisable until the earlier to occur of the following two (2) dates
(i) the tenth anniversary of the date of grant of such Director Option or (ii)
one (1) year (two (2) years in the case of an Eligible Director who becomes
Disabled, or who dies) after the date the Eligible Director ceases to be a
member of the Board, except that if the Eligible Director ceases to be a member
of the Board upon Termination for Cause, his Director Option 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 (to the extent
authorized or not prohibited by applicable law or regulations) become one
hundred percent (100%) vested and exercisable as of the effective date of the
Change in Control. If, in connection with or as a consequence of a Change in
Control, the Bank is merged into or consolidated with another corporation, or if
the Bank 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.
(g) LIMITATION ON AWARDS. (i) No Employee shall receive an Award covering
in excess of twenty five percent (25%), (ii) no Eligible Director shall receive
in excess of five percent (5%) and (iii) Eligible Directors serving as of the
Effective Date shall not receive in excess of thirty percent (30%) in the
aggregate, of the number of shares reserved for issuance under the Plan.
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 necessary to
comply with any tax or regulatory requirement.
(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.
5
<PAGE> 7
(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 during his 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, or Section 8(a)(ii)
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 Bank;
provided, however, that the designation of a beneficiary shall not constitute an
assignment, alienation, pledge, attachment, sale, transfer or encumbrance.
Notwithstanding the preceding sentence, the Committee shall have discretionary
authority to permit the transfer of any Non-Qualified Stock Option to members of
a Participant's immediate family, including trusts for the benefit of such
family members and partnerships in which such family members are the only
partners; provided, however, that a transferred Non-Qualified Stock Option may
be exercised by the transferee on any date only to the extent that the
Participant would have been entitled to exercise the Non-Qualified Stock Option
on such date had the Non-Qualified Stock Option not been transferred. Any
transferred Non-Qualified Stock Option shall remain subject to the terms and
conditions of the Participant's Award Agreement.
(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 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 Bank
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 Bank, 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
Bank 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 shall be required to pay to the Bank and
the Bank 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 to take such
other action as may be necessary in the opinion of the Bank to satisfy all
obligations for the payment of such taxes, including, but not limited to, the
withholding of
6
<PAGE> 8
the issuance of Shares to be issued upon the exercise of any Option or Director
Option until the Participant reimburses the Bank for any amount required to be
withheld.
(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 Bank 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 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 Bank or an
Affiliate. Further, the Bank 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 Bank
to recovery under Section 16(b) of the Exchange Act, and any payment tendered to
the Bank 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
Bank, 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.
(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 Bank and a Participant or any other Person. To the
extent that any Person acquires a right to receive payments from the Bank
pursuant to an Award, such rights shall be no greater than the right of any
unsecured general creditor of the Bank.
(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.
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<PAGE> 9
(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 Bank 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 Bank
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 Bank'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 Bank 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 Bank'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 become effective on April 1, 1997 but
only if on or before such date the Plan is approved by a majority of the Bank's
stockholders (other than SouthBanc Shares, M.H.C.).
(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 of the Effective Date.
* * *
8
<PAGE> 1
EXHIBIT 4.4
PERPETUAL BANK 1997 MANAGEMENT RECOGNITION AND DEVELOPMENT PLAN
(AS ASSUMED BY SOUTHBANC SHARES, INC.)
<PAGE> 2
PERPETUAL BANK, A FEDERAL SAVINGS BANK
1997 MANAGEMENT RECOGNITION AND DEVELOPMENT PLAN
(AS ASSUMED BY SOUTHBANC SHARES, INC.)
1. PURPOSE; DEFINITIONS.
The purpose of the Plan is to increase the proprietary and vested interest
of the key Employees of the Bank and its Affiliates in the growth, development
and financial success of the Bank by granting them awards of Restricted Shares.
Whenever the following terms are used in the Plan, they shall have the
meaning specified below unless the context clearly indicated to the contrary.
"Affiliate" shall mean the Bank and any other "subsidiary" of the Bank as
defined in Section 424(f) of the Code.
"Award" shall mean an award of Restricted Shares under the Plan.
"Bank" shall mean Perpetual Bank, A Federal Savings Bank, Anderson, South
Carolina, or any successor thereto.
"Board" shall mean the Board of Directors of the Bank.
"Change in Control" shall mean an event deemed to occur if and when (a) an
offeror other than the Bank purchases shares of the common stock of 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 Bank
representing twenty-five percent (25%) or more of the combined voting power of
the Bank's then outstanding securities, (c) the membership of the board of
directors of the Bank changes as the result of a contested election, such that
individuals who were directors at the beginning of any twenty-four (24) 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 Bank approve a merger, consolidation, sale or disposition of
all or substantially all of the Bank's assets or a plan of partial or complete
liquidation. If any of the events enumerated in clauses (a) - (d) occur, the
Board shall determine the effective date of the change in control resulting
therefrom. Notwithstanding anything herein to the contrary, a "Change in
Control" shall not include the acquisition of the Bank by a stock savings and
loan holding company formed at the direction of the Board.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Committee" shall mean the committee of the Board designated by the Board
to administer the Plan. If a separate committee is not designated by the Board,
the Board shall serve as the Committee for all purposes under the Plan.
"Designated Beneficiary" shall have the meaning set forth in Section 2.2
hereof.
"Disability" shall have the meaning set forth in Section 22(e)(3) of the
Code. For purposes of the Plan, all determinations as to whether a Participant
has become disabled shall be made by a majority of the Board, a majority upon
the basis of such evidence as its deems necessary or desirable, and shall be
final and binding on all interested persons.
"Effective Date" shall have the meaning set forth in Section 5.1 hereof.
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"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
"Employee" shall mean any person who is currently employed by the Bank or
an Affiliate.
"Participant" shall mean an Employee to whom an award of Restricted Shares
is granted pursuant to the Plan.
"Plan" shall mean this Perpetual Bank, A Federal Savings Bank 1997
Management Recognition and Development Plan, as hereinafter amended from time to
time.
"Restricted Shares" shall mean Shares which are awarded to an Employee
that are subject to the transfer and forfeitability restrictions described in
Section 4.2.
"Share" shall mean a share of the Bank's common stock, par value $1.00 per
share.
2. ADMINISTRATION.
2.1 Administration
The Plan shall be administered by the Committee, which shall have the
power to interpret the Plan and to adopt such rules for the administration,
interpretation and application of the Plan and Awards thereunder as are
consistent with its terms and provisions and to interpret, amend or revoke any
such rules. All actions taken and all interpretations and determinations made by
the Committee shall be binding upon all persons, including the Bank,
stockholders, Participants and Designated Beneficiaries. The Secretary of the
Bank shall be authorized to implement the Plan in accordance with its terms, and
to take such actions of a ministerial nature as shall be necessary to effectuate
the intent and purposes thereof. No member of the Committee shall be personally
liable for any action, determination or interpretation made in good faith with
respect to the Plan or the awards hereunder, and all members of the Board shall
be fully protected by the Bank in respect to any such action, determination or
interpretation.
2.2 Designated Beneficiaries
If a Participant dies prior to receiving any payment due under the Plan,
such payment shall be made to his Designated Beneficiary. A Participant's
Designated Beneficiary shall be the beneficiary specifically designated by a
Participant in writing to receive amounts due the Participant in the event of
the Participant's death. In the absence of an effective designation by the
Participant, Designated Beneficiary shall mean the Participant's surviving
spouse or, if none, his estate.
3. SHARES SUBJECT TO THE PLAN.
3.1 Shares Subject to the Plan
The maximum number of Shares that may be the subject of Awards under this
Plan shall be 23,400. The Bank shall reserve such number of Shares for the
purposes of the Plan out of its authorized but unissued Shares or out of Shares
held in the Bank's treasury, or partly out of each. In the event that a trust is
established in connection with the Plan pursuant to Section 5.4, the Bank may
authorize the trustees of the trust to purchase Shares in the open market with
funds contributed by the Bank and such shares shall be included in the number of
shares that may be the subject of Awards. In the event that Restricted Shares
are forfeited for any reason, such Shares shall thereafter again be available
for award pursuant to the Plan.
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<PAGE> 4
3.2 Changes in the Bank's Shares
In the event that the Committee shall determine that any recapitalization,
reorganization, merger, consolidation, stock split, spin-off, combination, or
exchange of Shares, or other similar corporate event affects the Shares such
that an adjustment is required in order to preserve the benefits or potential
benefits intended under this Plan, the Committee shall, in such manner as it may
deem equitable, adjust any or all of the number and kind of Shares which
thereafter may be awarded under the Plan, or the number and kind of Shares
subject to outstanding awards; provided, however, that the number of Shares
subject to any award shall always be a whole number.
4. RESTRICTED SHARES
4.1 Eligibility; Awards Under the Plan
(a) Eligibility. Employees (including officers and employee directors of
the Bank) shall be eligible to participate in the Plan upon designation by the
Committee. To the extent that Shares are available for grant under the Plan, the
Committee may determine which of the Employees shall be granted an Award and the
number of Restricted Shares covered by each Award. In selecting those Employees
to whom Awards will be granted and the number of Shares covered by such Awards,
the Committee shall consider the position and responsibilities of the eligible
Employees, the length and value of their services to the Bank and its
Affiliates, the compensation paid to the Employees and any other factors the
Committee may deem relevant, and the Committee may request the written
recommendation of the chief executive officer and other senior executive
officers of the Bank and its Affiliates.
(b) Limitation on Awards. No Employee shall receive an Award covering in
excess of twenty five percent (25%) of the number of shares reserved for
issuance under the Plan.
(c) Fractions of Shares. Whenever under the terms of the Plan a fractional
share would be required to be issued, the fractional share shall be rounded up
to the next full share.
4.2 Terms of Awards
The Restricted Shares awarded hereunder shall be awarded only pursuant to
a written agreement, which shall be executed by the Participant and a duly
authorized officer of the Bank and which shall contain the following terms and
conditions:
(a) Acceptance of Award. An award of Restricted Shares must be accepted by
the Participant within a period of sixty (60) days (or such other period as the
Board may specify at grant) after the award date by the execution of a
Restricted Share award agreement in the form provided by the Bank.
(b) Restrictions and Conditions. The Restricted Shares awarded to a
Participant pursuant to this Section 4 shall be subject to the following
restrictions and conditions:
(i) A Participant shall not be permitted to vote, sell, transfer,
pledge, assign or otherwise encumber Restricted Shares awarded under the Plan
prior to the date on which such shares vest in accordance with clause (iii),
except in accordance with the laws of descent and distribution.
(ii) On the date an Award of Restricted Shares vests in accordance
with clause (iii), a Participant (or his beneficiary) shall be entitled to
receive any cash dividends previously paid with respect to the Restricted
Shares, together with interest accrued thereon. Prior to such date, cash
dividends shall be held by the Bank for the account of the Participant. Stock
dividends, if any, issued with respect to Restricted Shares shall be treated as
additional Restricted Shares that are subject to the same restrictions and other
terms and conditions that apply with respect to the Restricted Shares with
respect to which such dividends are paid.
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<PAGE> 5
(iii) Subject to the applicable provisions of the Restricted Share
award agreement and this Section, a Participant's interest in Shares shall
immediately become fully vested and nonforfeitable, and the restrictions set
forth in this Section 4.2 shall lapse, (x) ratably over a five (5) year period
whereby twenty percent (20%) of the Award shall vest on each of the first
through the fifth anniversaries of the date of grant so long as the Participant
remains as Employee (y) upon the Participant's death or Disability, or (z) upon
a Change in Control (to the extent such treatment is authorized or not
prohibited by applicable law or regulations).
4.3 Stock Certificates
A stock certificate registered in the name of each Participant receiving a
Restricted Share award (or in the name of a trustee for the benefit of each
Participant) shall be issued in respect of such shares. Such certificate shall
bear whatever appropriate legend referring to the terms, conditions, and
restrictions applicable to such award as the Board shall determine. The Board
may, in its sole discretion, require that the stock certificates evidencing
Restricted Shares be held in custody by the Bank (or in trust by a trustee)
until the restrictions thereon shall have lapsed.
5. MISCELLANEOUS.
5.1 Shareholder Approval; Effective Date; Term
The Plan shall become effective on April 1, 1997 but only if on or before
such date the Plan is approved by a majority of the Bank's shareholders (other
than SouthBanc Shares, M.H.C.). The Plan shall continue in effect until the
tenth anniversary of the Effective Date.
5.2 Amendment, Suspension or Termination of the Plan
The Plan may be wholly or partially amended or otherwise modified,
suspends or terminated at any time or from time to time by the Board; provided,
however, that no amendment or modification shall be made without shareholder
approval if such approval is necessary to comply with any tax or regulatory
requirement.
From and after the Effective Date, neither the amendment, suspension nor
termination of the Plan shall, without the consent of the Participant, alter or
impair any rights or obligations under any award theretofore granted. No awards
may be granted during any period of suspension nor after termination or
expiration of the Plan.
5.3 Regulations and Other Approvals
(a) The obligation of the Bank to deliver Shares with respect to any award
granted under the Plan shall be subject to all applicable laws, rules and
regulations, including all applicable federal and state securities laws, and the
obtaining of all such approvals by governmental agencies as may be deemed
necessary or appropriate by the Board.
(b) The Board may make such changes to the Plan as may be necessary or
appropriate to comply with the rules or requirements of any governmental
authority.
(c) Each award of Shares is subject to the requirement that, if at any
time the Board determines, in its sole discretion, that the listing,
registration or qualification of Shares issuable pursuant to the Plan is
required by any securities exchange or under any United States, 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, issuance of Shares, no
Shares shall be issued, in whole or in part, unless listing, registration,
qualification, consent or approval has been effected or obtained free of any
conditions as acceptable to the Board.
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<PAGE> 6
(d) In the event that the disposition of Shares acquired pursuant to the
Plan is not covered by a then current registration statement under the
Securities Act of 1933, and is not otherwise exempt from such registration, such
Shares shall be restricted against transfer to the extent required by the
Securities Act of 1933 or regulations thereunder, and the Board may require any
individual receiving Shares pursuant to the Plan, as a condition precedent to
receipt of such Shares, to represent to the Bank in writing that the Shares
acquired by such individual are acquired for investment only and not with a view
to distribution. The certificate for any Shares acquired pursuant to the Plan
shall include any legend that the Board deems appropriate to reflect any
restrictions on transfer.
(e) At the time of grant of any award, the Board may provide in the
Restricted Share award agreement that any Shares received as a result of such
grant shall be subject to a right of first refusal in favor of the Bank,
pursuant to which the Participant shall be required to offer to the Bank any
Shares that he wishes to sell, with the price being the then fair market value
of such Shares, subject to such other terms and conditions as the Board may
specify in the award agreement.
(f) 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.
(g) A Participant shall be required to pay to the Bank the amount of any
applicable withholding taxes in respect of an Award and the Bank shall be
authorized to take such other action as may be necessary in the opinion of the
Bank to satisfy all obligations for the payment of such taxes, including, but
not limited to, the withholding of the issuance of Shares to be issued upon the
vesting of any Award, until the Participant reimburses the Bank for any amount
required to be withheld.
5.4 Trust Arrangement
All benefits under the Plan represent an unsecured promise to pay by the
Bank. The Plan shall be unfunded and the benefits hereunder shall be paid only
from the general assets of the Bank resulting in the Participants having no
greater rights than the Bank's general creditors; provided, however, that
nothing herein shall prevent or prohibit the Bank from establishing a trust or
other arrangement for the purpose of providing for the payment of the benefits
payable under the Plan.
5.5 Governing Law
The Plan and the rights of all persons claiming hereunder shall be
construed and determined in accordance with the laws of the State of South
Carolina without giving effect to the choice of law principles thereof.
5.6 Titles; Construction
Titles are provided herein for convenience only and are not to serve as a
basis for interpretation or construction of the Plan. The masculine pronoun
shall include the feminine and neuter and the singular shall include the plural,
when the context so indicates.
* * *
5
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EXHIBIT 5
OPINION OF MULDOON, MURPHY & FAUCETTE LLP
AS TO THE LEGALITY OF THE COMMON STOCK REGISTERED HEREBY
<PAGE> 2
June 3, 1999
Board of Directors
SouthBanc Shares, Inc.
907 N. Main Street
Anderson, South Carolina 29621
Re: SouthBanc Shares, Inc. 1998 Option Plan, SouthBanc Shares, Inc.
Management and Recognition Plan, Perpetual Bank 1997 Stock Option
Plan, and the Perpetual Bank 1997 Management and Recognition Plan
Registration Statement on Form S-8 for Offer and Sale of 521,228
Shares of Common Stock
Ladies and Gentlemen:
We have been requested by SouthBanc Shares, Inc. (the "Company") to issue
a legal opinion in connection with the registration under the Securities Act of
1933 on Form S-8 of 521,228 shares of the Company's Common Stock, par value $.01
per share (the "Shares"), that may be issued under the SouthBanc Shares, Inc.
1998 Stock Option Plan, SouthBanc Shares, Inc. Management and Recognition Plan,
Perpetual Bank 1997 Stock Option Plan and the Perpetual Bank 1997 Management and
Recognition Plan.
We have made such legal and factual examinations and inquiries as we
deemed advisable for the purpose of rendering this opinion. In our examination,
we have assumed and have not verified (i) the genuineness of all signatures,
(ii) the authenticity of all documents submitted to us as originals, (iii) the
conformity of the originals of all documents supplied to us as copies, and (iv)
the accuracy and completeness of all corporate records and documents and of all
certificates and statements of fact, in each case given or made available to us
by the Company or its subsidiary.
Based on the foregoing and limited in all respects to Delaware law, it is
our opinion that the Shares reserved under the Plan have been duly authorized
and upon payment for and issuance of the Shares in the manner described in the
Plan, will be legally issued, fully paid and nonassessable.
The following provisions of the Certificate of Incorporation may not be
given effect by a court applying Delaware law, but in our opinion the failure to
give effect to such provisions will not affect the duly authorized, validly
issued, fully paid and nonassessable status of the Common Stock:
(a) Subsections C.3 and C.6 of Article VII which grant the Board the
authority to construe and apply the provisions of that Article and
subsection C.4 of Article VII, to the extent that subsection
obligates any person to provide the Board the information such
subsection authorizes the Board to demand, in each case to the
extent, if any, that a court applying Delaware law were to impose
equitable limitations upon such authority; and
(b) Article XV which authorizes the Board to consider the effect of any
offer to acquire the Company on constituencies other than
stockholders in evaluating any such offer.
<PAGE> 3
Board of Directors
June 3, 1999
Page 2
This opinion is rendered to you solely for your benefit in connection with
the issuance of the Shares as described above. This opinion may not be relied
upon by any other person or for any other purpose, and it should not be quoted
in whole or in part or otherwise referred to or be furnished to any governmental
agency (other than the Securities and Exchange Commission in connection with the
aforementioned registration statement on Form S-8 in which this opinion is
contained) or any other person or entity without the prior written consent of
this firm.
We note that, although certain portions of the registration statement on
Form S-8 (the financial statements and schedules) have been included therein
(through incorporation by reference) on the authority of "experts" within the
meaning of the Securities Act, we are not experts with respect to any portion of
the Registration Statement, including without limitation the financial
statements or schedules or the other financial information or data included
therein.
We hereby consent to the filing of this opinion as an exhibit to, and the
reference to this firm in, the Company's registration statement on Form S-8.
Very truly yours,
/s/ Muldoon, Murphy & Faucette LLP
MULDOON, MURPHY & FAUCETTE LLP
<PAGE> 1
EXHIBIT 23.2
CONSENT OF ELLIOT, DAVIS & COMPANY, LLP
INDEPENDENT AUDITORS
<PAGE> 2
EXHIBIT 23.1
CONSENT OF ELLIOT, DAVIS & COMPANY, LLP
INDEPENDENT AUDITORS
We consent to the reference under the caption "Interests of Named Experts and
Counsel" in the Registration Statement (Form S-8) pertaining to the SouthBanc
Shares, Inc. 1998 Stock Option Plan, SouthBanc Shares, Inc. Management
Recognition and Development Plan, Perpetual Bank. 1997 Stock Option Plan,
Perpetual Bank Management Recognition and Development Plan and Perpetual Bank
1993 Stock Option and Incentive Plan and to the incorporation by reference
therein of our report dated November 20, 1998, with respect to the consolidated
financial statements SouthBanc Shares Inc., included in its Form 10-K for the
year ended September 30, 1998 filed with the Securities and Exchange Commission.
/s/ Elliott, Davis & Company LLP
Greenville, South Carolina
June 2, 1999
