<PAGE> 1
As filed with the Securities and Exchange Commission on February 22, 1999
Registration No. 333-______
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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THE BANC CORPORATION
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 63-1201350
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification Number)
17 NORTH TWENTIETH STREET
BIRMINGHAM, ALABAMA 35203
(Address of Principal Executive Offices)
(Zip Code)
AMENDED AND RESTATED 1998 STOCK INCENTIVE PLAN OF THE BANC CORPORATION
COMMERCE BANK OF ALABAMA INCENTIVE STOCK COMPENSATION PLAN
(Full Title of the Plans)
JAMES A. TAYLOR, JR.
EXECUTIVE VICE PRESIDENT,
GENERAL COUNSEL AND SECRETARY
THE BANC CORPORATION
17 NORTH TWENTIETH STREET
BIRMINGHAM, ALABAMA 35203
(Name and Address of Agent for Service)
(205) 326-2265
(Telephone Number, including Area Code, of Agent for Service)
The Commission is requested to send copies of all notices and
other communications to:
F. HAMPTON MCFADDEN, JR., ESQ.
DONALD T. LOCKE, ESQ.
HASKELL SLAUGHTER & YOUNG, L.L.C.
1200 AMSOUTH/HARBERT PLAZA
1901 SIXTH AVENUE NORTH
BIRMINGHAM, ALABAMA 35203
TEL: (205) 251-1000
FAX: (205) 324-1133
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
========================================================================================================================
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Aggregate Offering Amount of
to be Registered Registered (1) Per Share Price Registration Fee
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<S> <C> <C> <C> <C>
Common Stock, par value $.001 1,082,396 shares $10.44 $11,300,214 $3,141.00
per share
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</TABLE>
(1) Maximum number of shares of Registrant's Common Stock which may be
issued by Registrant pursuant to stock options granted or to be granted
under the Amended and Restated 1998 Stock Incentive Plan of The Banc
Corporation and the Commerce Bank of Alabama Incentive Stock
Compensation Plan (the "Plans").
(2) In accordance with Rules 457(c) and (h) under the Securities Act of
1933, as amended, solely for the purpose of calculating the
registration fee, the maximum offering price per share is based on the
average of the high and low sales price of the Registrant's Common
Stock as reported on the Nasdaq National Market System on
February 18, 1999.
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The document(s) containing the information specified in Part I of Form
S-8 will be sent or given to specified officers and employees pursuant to Rule
428(b)(1) of the Securities Act of 1933, as amended (the "Securities Act"). The
documents and the documents incorporated by reference in this Registration
Statement pursuant to Item 3 of Part II below, taken together, constitute a
prospectus that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The Banc Corporation, a Delaware corporation (the "Company"),
incorporates by reference into this Registration Statement on Form S-8 (the
"Registration Statement") the following documents which have previously been
filed by the Company with the Securities and Exchange Commission (the
"Commission"):
(a) The Company's Prospectus filed as part of the Company's
Registration Statement on Form S-1 (Reg. No. 333-67011), as
filed with the Commission on November 9, 1998.
(b) The Company's Current Report on Form 8-K dated as of October
30, 1998.
(c) The Company's Current Report on Form 8-K dated as of December
10, 1998.
(d) The description of securities to be registered contained in
the Registration Statement filed with the Commission on Form
8-A under the Securities Exchange Act of 1934 (the "Exchange
Act") and declared effective on November 4, 1998, including
any amendment or reports filed for the purpose of updating
such description.
(e) All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act,
prior to the filing of a post-effective amendment which
indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference into this Registration
Statement and to be a part hereof from the date of filing of
such documents.
Any statements contained in a document incorporated by reference
herein shall be deemed to be modified or superseded for purposes hereof to the
extent that a statement contained herein (or in any other subsequently filed
document which is also incorporated by reference herein) modifies or supersedes
such statement. Any statement so modified or superseded shall not be deemed to
constitute a part of this Registration Statement except as so modified or
superseded.
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ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Certain legal matters with respect to the validity of the shares of
Company Common Stock offered hereby will be passed upon for the Company by
Haskell Slaughter & Young, L.L.C., Birmingham, Alabama. Representatives of
Haskell Slaughter & Young, L.L.C. beneficially own 16,650 shares of Company's
Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 102(b)(7) of the Delaware General Corporate Law ("DGCL")
permits a Delaware corporation in its certificate of incorporation to limit or
eliminate, subject to certain statutory limitations, the personal liability of
their directors in certain circumstances. The Company's Restated Certificate of
Incorporation (the "Certificate") contains a provision eliminating or limiting
director liability to the Company and its stockholders for monetary damages
arising from acts or omissions in the director's capacity as a director. The
provision does not, however, eliminate or limit the personal liability of a
director (i) for any breach of such director's fiduciary duty of loyalty to the
Company or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the DGCL making directors personally liable, under a negligence
standard, for unlawful dividends or unlawful stock purchases or redemptions, or
(iv) for any transaction from which the director derived an improper personal
benefit. This provision offers persons who serve on the Board of Directors of
the Company protection against awards of monetary damages resulting from
breaches of their duty of care (except as indicated above). As a result of this
provision, the ability of the Company or a stockholder thereof to successfully
prosecute an action against a director for a breach of his duty of care is
limited. However, this provision does not affect the availability of equitable
remedies such as an injunction or rescission based upon a director's breach of
his duty of care. The SEC has taken the position that the provision will have
no effect on claims arising under the federal securities laws.
Section 145 of the DGCL grants corporations the right to indemnify
their directors, officers, employees and agents in accordance with its
provisions. Section 9.2 of the Company's Certificate provides for mandatory
indemnification rights, subject to limited exceptions, to any director,
officer, employee, or agent of the Company who, by reason of the fact that he
or she is a director, officer, employee, or agent of the Company, is involved
in a legal proceeding of any nature. Such indemnification rights include
reimbursement for expenses incurred by such director, officer, employee, or
agent in advance of the final disposition of such proceeding in accordance with
the applicable provisions of the DGCL.
The Company intends to enter into agreements with all of its directors
and its executive officers pursuant to which the Company will agree to
indemnify such directors and executive officers against liability incurred by
them by reason of their services of a director to the fullest extent allowable
under applicable law. In addition, the Company has purchased insurance
containing customary terms and conditions as permitted
II-3
<PAGE> 4
by Delaware law on behalf of its directors and executive officers, which may
cover liabilities under the Securities Act.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
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<CAPTION>
Exhibit Number Description of Exhibit
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<S> <C>
(4)-1 The Banc Corporation Restated Certificate of Incorporation, filed as Exhibit
(3)-1 to the Company's Registration Statement on Form S-4 (Registration No.
333-58493) is incorporated herein by reference.
(4)-2 Amended and Restated 1998 Stock Incentive Plan of The Banc Corporation
(4)-3 Commerce Bank of Alabama Incentive Stock Compensation Plan
(5) Opinion of Haskell Slaughter & Young, L.L.C. as to the legality of The Banc
Corporation Common Stock being registered.
(23)-1 Consent of Ernst & Young LLP, Independent Auditors.
(23)-2 Consent of Dudley, Hopton-Jones, Sims & Freeman, PLLP, Independent
Auditors.
(23)-3 Consent of Maudlin & Jenkins, L.L.C., Independent Public Accountants.
(23)-4 Consent of Cochran, Wheeler & Kennedy, P.C., Independent Auditors.
(23)-5 Consent of Saltmarsh, Cleveland & Gund, Independent Auditors.
(23)-6 Consent of Haskell Slaughter & Young, L.L.C. (included in Exhibit 5).
24 Powers of Attorney (set forth on the signature page of this Registration
Statement).
</TABLE>
ITEM 9. UNDERTAKINGS
(a) 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:
II-4
<PAGE> 5
(i) 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, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes 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 Section 15(d) of
the Exchange Act (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions or, otherwise, the
Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the securities
being registered, the Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed
by the final adjudication of such issue.
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<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Birmingham, State of Alabama, on February 22, 1999.
THE BANC CORPORATION
By /s/ JAMES A. TAYLOR
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James A. Taylor
Chairman of the Board and
Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints James A. Taylor and David R. Carter, and
each or either of them, his 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 and all amendments (including
post-effective amendments) to this Registration Statement and any subsequent
registration statements relating to the offering to which this Registration
Statement relates, and to file the same, with all exhibits thereto and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully and to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents or either of them, or their or his
substitutes or substitute, 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.
<TABLE>
<CAPTION>
Signature Title Date
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<S> <C> <C>
Chairman of the Board and
/s/ James A. Taylor Chief Executive officer
- ------------------------------------------- (Principal Executive Officer) February 22, 1999
James A. Taylor
Executive Vice President,
/s/ David R. Carter Chief Financial Officer and Director
- ------------------------------------------- (Principal Financial and
David R. Carter Accounting Officer) February 22, 1999
/s/ Terry DuBose Vice Chairman and Director February 22, 1999
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Terry DuBose
/s/ James Mailon Kent, Jr. Vice Chairman and Director February 22, 1999
- -------------------------------------------
James Mailon Kent, Jr.
</TABLE>
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<TABLE>
<S> <C> <C>
/s/ Larry D. Striplin, Jr. Vice Chairman and Director February 22, 1999
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Larry D. Striplin, Jr.
/s/ James A. Taylor, Jr. Executive Vice President, February 22, 1999
- ------------------------------------------- General Counsel, Secretary and Director
James A. Taylor, Jr.
/s/ James R. Andrews, M.D. Director February 22, 1999
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James R. Andrews, M.D.
/s/ Charles Barkley Director February 22, 1999
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Charles Barkley
/s/ Neal R. Berte Director February 22, 1999
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Neal R. Berte
/s/ W. T. Campbell, Jr. Director February 22, 1999
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W. T. Campbell, Jr.
/s/ Peter N. Dichiara Director February 22, 1999
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Peter N. Dichiara
/s/ K. Earl Durden Director February 22, 1999
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K. Earl Durden
/s/ Steven C. Hays Director February 22, 1999
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Steven C. Hays
/s/ Larry R. House Director February 22, 1999
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Larry R. House
/s/ Thomas E. Jernigan, Jr. Director February 22, 1999
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Thomas E. Jernigan, Jr.
/s/ Randall E. Jones Director February 22, 1999
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Randall E. Jones
</TABLE>
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<TABLE>
<S> <C> <C>
/s/ Mayer Mitchell Director February 22, 1999
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Mayer Mitchell
/s/ Ronald W. Orso, M.D. Director February 22, 1999
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Ronald W. Orso, M.D.
/s/ Harold W. Ripps Director February 22, 1999
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Harold W. Ripps
/s/ Richard M. Scrushy Director February 22, 1999
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Richard M. Scrushy
/s/ Michael E. Stephens Director February 22, 1999
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Michael E. Stephens
/s/ Marie Swift Director February 22, 1999
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Marie Swift
/s/ T. Mandell Tillman Director February 22, 1999
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T. Mandell Tillman
/s/ Johnny Wallis Director February 22, 1999
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Johnny Wallis
</TABLE>
<PAGE> 9
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Sequential
Number Description of Exhibit Page Number
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<S> <C> <C>
(4)-1 The Banc Corporation Restated Certificate of Incorporation, filed as
Exhibit (3)-1 to the Company's Registration Statement on Form S-4
(Registration No. 333-58493) is incorporated herein by reference.
(4)-2 Amended and Restated 1998 Stock Incentive Plan of The Banc Corporation.
(4)-3 Commerce Bank of Alabama Incentive Stock Compensation
Plan
(5) Opinion of Haskell Slaughter & Young, L.L.C. as to the legality of The
Banc Corporation Common Stock being registered.
(23)-1 Consent of Ernst & Young LLP, Independent Auditors.
(23)-2 Consent of Dudley, Hopton-Jones, Sims & Freeman, PLLP, Independent
Auditors.
(23)-3 Consent of Maudlin & Jenkins, L.L.C., Independent Public Accountants.
(23)-4 Consent of Cochran, Wheeler & Kennedy, P.C., Independent Auditors.
(23)-5 Consent of Saltmarsh, Cleveland & Gund, Independent Auditors.
(23)-6 Consent of Haskell Slaughter & Young, L.L.C. (included in Exhibit 5).
24 Powers of Attorney (set forth on the signature page of this
Registration Statement.
</TABLE>
<PAGE> 1
EXHIBIT (4)-2
AMENDED AND RESTATED 1998 STOCK INCENTIVE PLAN OF THE BANC
CORPORATION
1. Establishment, Purpose and Duration of the Plan.
(a) Establishment and Purpose. The Banc Corporation, a Delaware corporation
(the "Company") hereby establishes an incentive compensation plan to be known as
the "Amended and Restated 1998 Stock Incentive Plan of The Banc Corporation"
(the "Plan"), as set forth herein. The purpose of the Plan is to further the
growth and development of the Company and its direct and indirect subsidiaries
(each a "Subsidiary" and collectively, "Subsidiaries") by encouraging selected
employees, directors, consultants, agents, independent contractors and other
persons who contribute or are expected to contribute materially to the Company's
success (collectively, "Participants") to obtain a proprietary interest in the
Company through the ownership of stock or receipt of performance-based
incentives, thereby providing such persons with added incentives to promote the
best interests of the Company and affording the Company a means of attracting to
its service persons of outstanding ability.
(b) Effective Date and Duration. The Plan shall be effective on June 1,
1998, the date of its adoption by the Board of Directors of the Company (the
"Effective Date"), and shall remain in effect, subject to the right of the Board
of Directors to amend or terminate the Plan at any time pursuant to the
provisions hereof, until all shares of Common Stock of the Company subject to
the Plan have been purchased or acquired pursuant to the provisions hereof;
provided, however, that in no event may an Award of an Incentive Option, as such
terms are defined herein, be granted under the Plan after June 1, 2008, although
an Incentive Option granted prior thereto may extend beyond such date.
2. Stock Subject to the Plan. An aggregate of 1,000,000 shares of the
Company's Common Stock, par value $.001 per share (the "Common Stock"), shall be
reserved for issuance under the Plan pursuant to the exercise of Options (as
defined in Section 5 hereof) or SARs (as defined in Section 6(a) hereof) or as
Restricted Stock (as defined in Section 6(b) hereof) or Performance Shares (as
defined in Section 6(c) hereof) (such Options, SARS, Restricted Stock and
Performance Shares are hereinafter collectively referred to as "Awards"). Such
shares of Common Stock may be, in whole or in part, authorized but unissued
shares or issued shares which have been reacquired by the Company. If, for any
reason, an Option or SAR shall lapse, expire or terminate without having been
exercised in full, or if Restricted Stock or Performance Shares are forfeited,
the unused shares of Common Stock covered by such Option, Restricted Stock or
Performance Shares, or the number of shares of Common Stock upon which the SAR
is based, shall again be available for Awards under the Plan.
3. Adjustments Upon Changes in Capitalization. If at any time after the
date of grant of an Award, the Company shall by stock dividend, split-up,
combination, reclassification or exchange, or through merger, consolidation or
otherwise, change its shares of Common Stock into a different number or kind or
class of shares or other securities or property, then the number of shares
<PAGE> 2
available for grant under the Plan or subject to outstanding Awards and, with
respect to an Award, the price thereof, as applicable, shall be appropriately
adjusted by the Compensation Committee (as defined in Section 4(a) hereof), in
its sole discretion, to prevent dilution or enlargement of rights; provided,
however, that the number of shares of Common Stock subject to any Award shall
always be a whole number.
4. Administration.
(a) Administration by Compensation Committee. The Plan shall be
administered by the Compensation Committee of the Board of Directors of the
Company ("Compensation Committee"). The Compensation Committee shall be composed
of at least two or more Non- Employee Directors, as defined in Rule 16b-3
promulgated pursuant to the Securities Exchange Act of 1934, or any successor
rule thereto.
(b) Powers of Compensation Committee. The Compensation Committee shall
administer the Plan and, subject to the provisions of the Plan and of the
Certificate of Incorporation and By-Laws of the Company, shall have sole
authority in its discretion to determine the types of Awards to be granted, the
persons to whom, and the time or times at which, Awards shall be granted, and
the terms, conditions, and provisions of, and restrictions relating to, each
Award, including, without limitation, vesting provisions, and applicable
performance criteria. In making such determinations, the Compensation Committee
may take into account the nature of the services rendered by such Participants,
their present and potential contributions to the Company's success and such
other factors as the Compensation Committee in its sole discretion may deem
relevant. The Compensation Committee shall also have the authority to interpret
the Plan, to prescribe, amend and rescind rules and regulations relating
thereto, to establish procedures deemed appropriate for the administration
thereof, to determine the terms and provisions of the respective agreements
which evidence the Awards which are granted (collectively, "Award Agreements"),
and to make all other determinations necessary or advisable for the
administration of the Plan, all of which determinations shall be conclusive and
not subject to review. All determinations and decisions made by the Compensation
Committee pursuant to the provisions of the Plan shall be final, conclusive and
binding on all persons, including the Company, its stockholders, directors,
officers, employees, Participants, and their respective estates and
beneficiaries.
(c) Definition of "Change in Control." For purposes of the Plan, a "Change
in Control" shall mean (A) the acquisition at any time by a "person" or "group"
(as such terms are used in Sections 13(d) and 14(d)(2) of the Securities
Exchange Act of 1934 (the "Exchange Act")) who or which are the beneficial
owners (as defined in Rule 13(d)-3 under the Exchange Act), directly or
indirectly, of securities representing more than 50% of the combined voting
power in the election of directors of the then outstanding securities of the
Company or any successor of the Company; (B) the termination of service of
directors, for any reason other than death, disability or retirement from the
Board of Directors, during any period of two consecutive years or less, of
individuals who at the beginning of such period constituted a majority of the
Board of Directors, unless the election of or nomination for election of each
new director during such period was approved by a vote of at least a majority of
the directors still in office who were directors at the beginning of the period;
(C) approval by the stockholders of the Company of any sale or disposition of
<PAGE> 3
substantially all of the assets or earning power of the Company; or (D) approval
by the stockholders of the Company of any merger, consolidation, or statutory
share exchange to which the Company is a party as a result of which the persons
who were stockholders immediately prior to the effective date of the merger,
consolidation or share exchange shall have beneficial ownership of less than 50%
of the combined voting power in the election of directors of the surviving
corporation; provided, however, that no Change in Control shall be deemed to
have occurred if, prior to such time as a Change in Control would otherwise be
deemed to have occurred in accordance with the foregoing, the Board of
Directors, by vote of at least 75% of the entire membership of the Board of
Directors, determines that the event otherwise qualifying as a Change in Control
shall not be treated as a Change in Control hereunder. Each determination
concerning whether an event constitutes a Change in Control under an Award
Agreement shall be made in a consistent manner as to the particular event with
respect to all Award Agreements of all Participants in effect at the time of the
event.
5. Options.
(a) General. The Company may grant options to purchase shares of Common
Stock ("Options") subject to the provisions of this Plan and the applicable
Award Agreement. The Compensation Committee shall determine whether all or any
portion of such Options shall be incentive stock options ("Incentive Options")
qualifying under Section 422 of the Internal Revenue Code of 1986, as amended
(the "Code"), or stock options which do not so qualify ("Nonqualified Options").
Both Incentive Options and Nonqualified Options may be granted to the same
person at the same time provided each type of Option is clearly designated.
Incentive Options shall have a term of not more than 10 years.
(b) Exercise of Options. The exercise of an Option shall be contingent upon
receipt from the holder thereof of a written representation that at the time of
such exercise it is the optionee's then present intention to acquire the shares
of Common Stock subject to the Option for investment and not with a view to the
distribution or resale thereof (unless a registration statement covering such
shares of Common Stock shall have been declared effective by the Securities and
Exchange Commission), and an Option may not be exercised for less than 10 shares
at any one time (or the remaining shares then purchasable if less than 10) and
may not be exercised for fractional shares of Common Stock. No shares of Common
Stock shall be issued upon exercise of an Option until full payment therefor has
been made and any withholding obligations of the Company have been satisfied.
The proceeds received by the Company upon exercise of an Option shall be added
to the Company's working capital and be available for general corporate
purposes.
(c) No Rights as a Stockholder. The holder of an Option shall have none of
the rights of a stockholder with respect to the shares of Common Stock
purchasable upon exercise of the Option until a certificate for such shares
shall have been issued to the holder upon due exercise of the Option.
(d) Incentive Options. Incentive Options may be granted only to employees
(including officers) of the Company or any Subsidiary; provided, however, that
Incentive Options may not be granted to any person who, at the time the
Incentive Option is granted, owns (or is considered
<PAGE> 4
as owning within the meaning of Section 424(d) of the Code) stock possessing
more than 10% of the total combined voting power of all classes of stock of the
Company or any Subsidiary (a "10% Owner"), unless at the time the Incentive
Option is granted, the exercise price is at least 110% of the Fair Market Value
(as defined in Section 7 of the Plan) of the Common Stock and such Incentive
Option by its terms is not exercisable subsequent to five years from the date of
grant. A director or other person who is not an employee of the Company or of a
Subsidiary is not eligible to receive Incentive Options under the Plan. The
aggregate Fair Market Value (determined on the date the Award is granted) of
Common Stock with respect to which Incentive Options are exercisable for the
first time by any Participant during any calendar year (under all plans of the
Company and its Subsidiaries) shall not exceed $100,000. The exercise price of
an Incentive Option shall not be less than 100% of the Fair Market Value of the
Common Stock on the date of grant or 110% of Fair Market Value in the case of
Incentive Options granted to a 10% Owner.
(e) Nonqualified Options. Options may be granted to any Company employees
(including employees who have been granted Incentive Options), directors,
consultants, agents, independent contractors and other persons whom the
Compensation Committee determines will contribute to the Company's success.
(f) Substitute Options. Notwithstanding any other provision of this Plan,
in the event that the Company or a Subsidiary consummates a transaction
described in Section 424(a) of the Code (e.g., the acquisition of property or
stock from an unrelated corporation), persons who become employees of the
Company or any Subsidiary on account of such transaction may be granted Options
in substitution for the options granted by such former employer. If such
substitute Options are granted, the Compensation Committee, in its sole
discretion and consistent with section 424(a) of the Code, shall determine the
exercise price of such substitute Options.
6. Other Awards.
(a) SARs. The Company may grant stock appreciation rights ("SARs"), subject
to the provisions of this Plan and the applicable Award Agreement. An SAR shall
constitute the right of the Participant to receive an amount equal to the
appreciation, if any, in the Fair Market Value of a share of Common Stock from
the date of grant of such right to the date of payment. Upon exercise of the
SAR, the Company shall pay such amount in cash or shares of Common Stock of
equivalent value or in some combination thereof (as determined by the
Compensation Committee) as soon as practicable after the date on which such
election is made in accordance with the Award Agreement evidencing the SAR.
(b) Restricted Stock. The Company may grant shares of restricted Common
Stock ("Restricted Stock") under the Plan, subject to the provisions of this
Plan and the applicable Award Agreement. Restricted Stock shall be subject to
forfeiture provisions and such other restrictive terms and conditions as may be
determined by the Compensation Committee in its sole discretion and set forth in
the applicable Award Agreement pursuant to which such Restricted Stock is
issued, and shall not be transferable until all such restrictions and conditions
(other than securities law restrictions) have been satisfied. Restricted Stock
shall be issued and delivered at the time of grant
<PAGE> 5
or at such other time as is determined by the Compensation Committee.
Certificates evidencing shares of Restricted Stock shall bear a restrictive
legend referencing the risk of forfeiture and the non-transferability of such
shares. The Compensation Committee may, in its sole discretion, require the
automatic deferral of dividends or reinvestment of dividends for the purchase of
additional shares of Restricted Stock. During the period of restriction as set
forth in the Award Agreement, the Participant owning shares of Restricted Stock
may exercise full voting rights with respect to such shares.
(c) Performance Shares. The Company may grant the right to receive shares
of Common Stock subject to the attainment of performance objectives determined
by the Compensation Committee in its sole discretion ("Performance Shares"),
subject to the provisions of this Plan and the applicable Award Agreement. The
performance goals to be met over a specified period (the "Performance Period"),
the amount of payment to be made if the performance goals or other conditions
are met and additional terms and conditions of the issuance of Performance
Shares shall be determined by the Compensation Committee and set forth in the
applicable Award Agreement. The value of a Performance Share at any time shall
be the Fair Market Value of a Share at such time. An Award of Performance Shares
shall be expressed in terms of shares of Common Stock. After the completion of a
Performance Period, the performance of the Company, subsidiary, division or
individual, as the case may be, shall be measured against the performance goals
or other conditions, and the Compensation Committee shall determine whether all,
none or a portion of an Award shall be paid. The Compensation Committee shall
pay any earned Performance Shares as soon as practicable after they are earned
in the form of cash, Common Stock of equivalent value or in some combination
thereof (as determined by the Compensation Committee) having an aggregate Fair
Market Value equal to the value of the earned Performance Shares as of the date
they are earned. Any Common Stock used to pay earned Performance Shares may be
issued subject to any restrictions deemed appropriate by the Compensation
Committee. In addition, the Compensation Committee, in its discretion, may
cancel any earned Performance Shares and grant Options to the Participant which
the Compensation Committee determines to be of equivalent value based on a
conversion formula stated in the applicable Award Agreement. The Compensation
Committee, in its discretion, may also grant dividend equivalent rights with
respect to earned but unpaid Performance Shares as evidenced by the applicable
Award Agreement. Performance Shares shall have no voting rights.
7. Fair Market Value.
(a) Periods During Which Common Stock is Publicly Traded. For purposes of
the Plan, the "Fair Market Value" as of any date means (i) with respect to an
Award of an Incentive Option and an Award which is intended to qualify under the
"performance-based exception" set forth in section 162(m) of the Code, the
average of the high and low sales price of a share of Common Stock on such date
as reported by any national securities exchange on which the Common Stock is
actively traded or, if no Common Stock is traded on such exchange or system on
such date, then on the next preceding date on which any Common Stock was traded
on such exchange or system; and (ii) with respect to all other Awards, the
closing sales price of a share of Common Stock on such date as reported by any
national securities exchange on which the Common Stock is actively
<PAGE> 6
traded or, if no Common Stock is traded on such exchange or system on such date,
then on the next preceding date on which any Common Stock was traded on such
exchange or system.
(b) Periods During Which Common Stock is Not Publicly Traded.
Notwithstanding subsection (a) above with respect to any date on which the
Common Stock (or Common Stock convertible therefrom) is not listed or traded as
set forth in subsection (a), above, "Fair Market Value" for a share of Common
Stock as of any date of reference hereunder (the "Determination Date") shall be
the value per share of Common Stock as determined by the most recent appraisal
conducted by a professional independent appraiser engaged by the Company for the
purpose of determining Fair Market Value under the Plan, which appraisal is as
of a date within 12 months prior to the Determination Date or, if no such
appraisal has been made during such prior 12 month period, the highest of (i)
the book value of the Common Stock as of the last day of the Company's fiscal
year next preceding the Determination Date, (ii) the average price per share of
the Common Stock paid by all persons (other than Participants) during the 12
months prior to the Determination Date in arms-length transactions with the
Company, or (iii) the fair market value per share of the Common Stock as
determined by the Compensation Committee as of the Determination Date.
Notwithstanding the preceding, in the case of the occurrence of a Change in
Control involving the Company, for the period beginning with the Change in
Control and extending until the one year period following the Change in Control,
Fair Market Value shall equal (i) in the case of a Change in Control involving
the sale of Common Stock to an entity, person or group, the average price per
share of Stock paid by the entity, person or group for the shares of Common
Stock purchased by such entity, person or group in the 12 month period ending on
the Change in Control date or, (ii) in the case of a Change in Control involving
the sale of substantially all of the assets of the Company, the amount per share
of Common Stock which each holder of record of Common Stock immediately
following such sale would receive as a liquidation distribution.
(c) Material Changes Affecting Fair Market Value. Notwithstanding
subsection (b) above, if, as of any Determination Date, subsection (a) above is
inapplicable and, because of material events occurring prior to the
Determination Date but subsequent to an event to be used to assess Fair Market
Value under subsection (b) above, the Compensation Committee believes in its
sole and absolute discretion that a business development or other event has
occurred indicating that the amount otherwise determined under subsection (b)
above does not accurately reflect the fair market value of the Common Stock as
of the Determination Date, the Compensation Committee has the right in its
discretion, but not the obligation, to obtain an independent appraisal of the
Common Stock as of the Determination Date, and such independent appraisal shall
be conclusive to determine Fair Market Value as of the Determination Date.
Pending any such determination by an independent appraiser, any payments due
hereunder that require Fair Market Value assessment shall be delayed until the
appraisal is complete.
8. Payment and Withholding.
(a) Payment. Upon the exercise of an Option or Award that requires payment
by a Participant to the Company, the amount due to the Company shall be paid in
cash or by check payable to the order of the Company for the full purchase price
of the shares of Common Stock for which such election is made. Except as
otherwise provided by the Committee before the Option is exercised
<PAGE> 7
(i) all or a part of the exercise price may be paid by the Grantee by delivery
of shares of the Company's Common Stock owned by the Grantee and acceptable to
the Committee having an aggregate Fair Market Value (valued at the date of
exercise) that is equal to the amount of cash that would otherwise be required;
and (ii) the Grantee may pay the exercise price by authorizing a third party to
sell shares of Company Common Stock (or a sufficient portion thereof) acquired
upon the exercise of the Option and remit to the Company a sufficient portion of
the sale proceeds to pay the entire exercise price and any tax withholding from
such exercise.
(b) Withholding. The Company shall have the right to deduct from all Awards
paid any federal, state, local or employment taxes which the Company deems are
required by law to be held with respect to such payments. Whenever shares of
Common Stock are to be issued in satisfaction of the exercise of an Award, the
Company shall have the right to require the Participant (or legal
representative, as applicable) to remit to the Company an amount sufficient to
satisfy federal, state and local withholding tax requirements or make other
arrangements therefor prior to the delivery of any certificate or certificates
for such shares. At the election of the Participant, and subject to such rules
and limitations as may be established by the Committee from time to time, such
withholding obligations may be satisfied through the surrender of shares of the
Company's Common Stock which the Participant already owns, or to which the
Participant is otherwise entitled under the Plan.
9. Non-Transferability of Awards. Except by the laws of descent and
distribution or as provided in an Award Agreement, no benefit provided hereunder
shall be subject to alienation, assignment or transfer by the Participant (or by
any person entitled to such benefit pursuant to the terms of this Plan), nor
shall it be subject to attachment or other legal process of whatever nature, and
any attempted alienation, assignment, attachment or transfer shall be void and
of no effect whatsoever and, upon any such attempt, the benefit shall expire and
lapse. Each Participant may, from time to time, designate any beneficiary or
beneficiaries (who may be named contingently or successively) to whom any
benefit under the Plan is to be paid in case of the Participant's death before
the participant receives any or all of such benefit. Each such designation shall
revoke all prior designations by the same Participant, shall be in a form
prescribed by the Company, and shall be effective only when filed by the
Participant in writing with the Company during the Participant's lifetime. In
the absence of such designation, benefits remaining unpaid at the Participant's
death shall be paid to the Participant's estate. Shares of Common Stock shall be
delivered only to the Participant entitled to receive the same or to the
Participant's authorized legal representative. Deposit of any sum in any
financial institution to the credit of any Participant (or of any person
entitled to such sum pursuant to the terms of this Plan) shall constitute
payment to that Participant (or such person).
10. Termination of Employment; Acceleration of Vesting
(a) Options. Upon termination of employment for any reason other than
death, Disability (as defined below), Retirement or a Change in Control, any
Incentive or Nonqualified Option held by the Participant shall expire on the
earlier of (i) the last day of the term of the Option and (ii) the date which is
three months after the date of termination of such employment. Upon
<PAGE> 8
termination of employment by reason of death, Disability or Retirement, the
Option held by such Participant shall expire on the earlier of (i) the last day
of the term of the Option and (ii) the date which is one year after the date of
termination of such employment. Upon termination of employment by reason of a
Change in Control, the Option held by such Participant shall expire on its
original expiration date. The term "Disability" with respect to a Participant
means physical or mental inability to perform the normal duties of his
employment or engagement as determined by a physician, selected by the
Compensation Committee, after examination of the Participant; provided, however,
that if such Participant fails or refuses to cooperate in such examination, the
determination of his Disability shall be made by the Compensation Committee in
its sole discretion. The term "Retirement" with respect to a Participant means
the Participants' termination of employment in a manner which qualifies the
Grantee to receive immediately payable retirement benefits under any retirement
plan adopted or hereafter adopted by the Company, or which in the absence of any
such retirement plan is determined by the Committee to constitute retirement.
An installment of a Participant's Option shall not become exercisable on the
otherwise applicable vesting date of such Award if the Participant's date of
termination occurs on or before such vesting date. Notwithstanding the foregoing
sentence, an Option shall become fully and immediately exercisable upon (1) the
death or Disability of the Participant or (2) or the occurrence of a Change of
Control.
(b) SAR's. Upon termination of employment for any reason other than death,
Disability (as defined below), Retirement or a Change in Control, an SAR held by
the Participant shall expire on the earlier of (i) the last day of the term of
the Option and (ii) the date which is three months after the date of termination
of such employment. Upon termination of employment by reason of death,
Disability or Retirement, the SAR held by such Participant shall expire on the
earlier of (i) the last day of the term of the SAR and (ii) the date which is
one year after the date of termination of such employment. Upon termination of
employment by reason of a Change in Control, the SAR held by such Participant
shall expire on its original expiration date.
An installment of an SAR shall not become exercisable on the otherwise
applicable vesting date if the Participant's date of termination occurs before
such vesting date. Notwithstanding the foregoing sentence, an SAR shall become
fully and immediately exercisable upon (1) the death or Disability of the
Participant or (2) the occurrence of a Change in Control.
(c) Restricted Stock. If the Participant's date of termination does not
occur during the restricted period set forth in the Award (the "Restricted
Period"), then, at the end of the Restricted Period, the Participant shall
become vested in the shares of Restricted Stock, and shall own the shares free
of all restrictions otherwise imposed. The Participant shall become vested in
the shares of Restricted Stock, and become owner of the shares free of all
restrictions otherwise imposed by this Agreement, prior to the end of the
Restricted Period if the Participant's date of termination occurs by reason of
the Participant's death, Disability or a Change in Control.
Shares of Restricted Stock may not be sold, assigned, transferred, pledged or
otherwise encumbered until the expiration of the Restricted Period or, if
earlier, until the Participant is
<PAGE> 9
vested in the shares. Except as otherwise provided in this paragraph 10(c), if
the Participant's date of termination occurs prior to the end of the Restricted
Period, the Participant shall forfeit the Restricted Stock as of the
Participant's date of termination.
(d) Performance Shares. If the Participant's employment with the Company
terminates during the Performance Period because of the Participant's
Retirement, Disability, or death, the Participant shall be entitled to a
prorated value of the Performance Shares earned, determined at the end of the
Performance Period, and based on the ratio of the number of days the Participant
is employed during the Performance Period to the total number of days in the
Performance Period. If a Change in Control occurs during the Performance Period,
and the Participant's date of termination does not occur before the Change in
Control date, the Participant shall earn the Performance Shares that would have
been earned by the Participant in accordance with the terms of the Award as if
100% of the Performance measures set forth in the Award Agreement for the
Performance Period had been achieved, but prorated based on the ratio of the
number of days the Participant is employed during the Performance Period through
the date of the Change in Control, to the total number of days in the
Performance Period.
(e) Forfeiture by Reason of Misconduct. Notwithstanding any other provision
hereof to the contrary, if the Compensation Committee determines that a
Participant has committed an act of embezzlement, fraud, dishonesty, breach of
fiduciary duty or deliberate disregard of any rules of the Company or any
Subsidiary which results in loss, damage or injury to the Company or any
Subsidiary, neither the Participant nor his representative or estate shall be
entitled to exercise any Award. In making such determination, the Compensation
Committee shall act fairly and shall give the Participant an opportunity to
appear before the Compensation Committee and present evidence on his behalf.
11. Deferrals. The Compensation Committee may permit a Participant to defer
such Participant's receipt of the payment of cash or the delivery of Common
Stock that would otherwise be due to such Participant by virtue of the exercise
of an Option or SAR, the lapse or waiver of restrictions with respect to
Restricted Stock or the satisfaction of any requirements or goals with respect
to Performance Shares. If any such deferral election is required or permitted
the Compensation Committee shall, in its sole discretion, establish rules and
procedures for such payment deferral.
12. No Right to Continued Employment or Engagement. Nothing contained in
the Plan or in any Award Agreement shall confer upon any Participant any right
to continue in the employ of the Company or any Subsidiary or obligate the
Company or any Subsidiary to continue the engagement of any Participant or
interfere in any way with the right of the Company or any such Subsidiary to
terminate such Participant's employment or engagement at any time.
13. Vesting of Rights Under Awards. Nothing contained in the Plan or in any
resolution adopted by the Board of Directors shall constitute the vesting of any
rights under any Award. The vesting of such rights shall take place only
pursuant to a written Award Agreement with respect to such Award, in form and
substance satisfactory to the Company, which shall be duly executed
<PAGE> 10
and delivered by and on behalf of the Company and the Participant to whom the
Award shall be granted.
14. Agreement to Refrain from Sales. Holders of Options, Restricted Stock
and Performance Shares shall agree, pursuant to the applicable Award Agreement,
to refrain from selling or offering to sell the shares of Common Stock issuable
upon exercise of the Options or the unrestricted shares of Common Stock upon
termination of the forfeiture and other restrictive provisions of the
Restrictive Stock and Performance Shares for such reasonable period of time
after the effective date of any registration statement relating to an
underwritten offering of securities of the Company, as may be requested by the
managing underwriter of such underwritten offering and approved by the Board of
Directors.
15. Termination, Amendment and Modification. The Board of Directors or the
Committee of the Company may at any time and from time to time alter, amend,
suspend or terminate this Plan in whole or in part, except (i) without such
stockholder approval as may be required by law, no such action may be taken
which changes the minimum Incentive Option price, increases the maximum term of
Incentive Options, materially increases the benefits accruing to Participants
receiving Incentive Options hereunder, materially increases the number of
securities which may be issued pursuant to Incentive Options, extends the period
for granting Incentive Options past the tenth anniversary of the initial
effective date of the Plan or materially modifies the requirements as to
eligibility for receipt of Incentive Options hereunder, and (ii) without the
consent of the Participant to whom any Award shall theretofore have been
granted, no such action may be taken which adversely affects the rights of such
Participant concerning such Award, except as such termination or amendment of
this Plan is required by statute, or rules and regulations promulgated
thereunder, or as otherwise permitted hereunder.
16. Indemnification. Each person who is or at any time serves as a member
of the Compensation Committee shall be indemnified and held harmless by the
Company against and from (i) any loss, cost, liability or expense that may be
imposed upon or reasonably incurred by such person in connection with or
resulting from any claim, action, suit or proceeding to which such person may be
a party or in which such person may be involved by reason of any action or
failure to act under this Plan; and (ii) any and all amounts paid by such person
in satisfaction of judgment in any such action, suit or proceeding relating to
the Plan. Each person covered by this indemnification shall give the Company an
opportunity, at its own expense, to handle and defend the same before such
person undertakes to handle and defend the same on such person's own behalf. The
foregoing right of indemnification shall not be exclusive of any other rights of
indemnification to which such persons may be entitled under the charter or
by-laws of the Company, as a matter of law, or otherwise, or any power that the
Company may have to indemnify such person or hold such person harmless.
17. Reliance On Reports. Each member of the Compensation Committee shall be
fully justified in relying or acting in good faith upon any report made by the
independent public accountants of the Company, any independent appraisal of the
Common Stock and any other information furnished in connection with this Plan.
In no event shall any such person be liable for any determination made or other
action taken or any omission to act in reliance upon any such report
<PAGE> 11
or information, or for any action taken, including the furnishing of
information, or failure to act, if on good faith.
18. Miscellaneous.
(a) Gender and Number. Whenever the context so requires, the singular shall
include the plural and the plural shall include the singular and the gender of
any pronoun shall include the other genders.
(b) Severability. The invalidity of this Plan with respect to one or more
persons shall not affect the rights and obligations of any other person
hereunder in any manner whatsoever. The invalidity of one or more provisions of
this Plan shall not affect the validity of any other provision of this Plan in
any manner whatsoever.
(c) Requirements of Law. The granting of Awards and the issuance of Common
Stock under the Plan shall be subject to all applicable laws, rules and
regulations, and to such approvals by any governmental agencies as may be
required.
(d) Governing Law. All matters relating to this Plan or to Awards granted
hereunder shall be governed by the laws of the State of Delaware, without regard
to the principles of conflict of laws thereof, except to the extent preempted by
the laws of the United States.
<PAGE> 1
EXHIBIT (4)-3
COMMERCE BANK OF ALABAMA
INCENTIVE STOCK COMPENSATION PLAN
<PAGE> 2
TABLE OF CONTENTS
COMMERCE BANK OF ALABAMA
INCENTIVE STOCK COMPENSATION PLAN
<TABLE>
<CAPTION>
Page
<S> <C> <C> <C>
ARTICLE I
PURPOSE, SCOPE AND ADMINISTRATION OF THE PLAN............................................................1
1.1 Successor..............................................................................1
1.2 Purpose................................................................................1
1.3 Definitions............................................................................1
1.4 Shares Available Under the Plan........................................................4
1.5 Administration of the Plan.............................................................5
1.6 Eligibility for Awards.................................................................6
1.7 Effective Date of Plan.................................................................6
ARTICLE II
STOCK OPTIONS............................................................................................6
2.1 Grant of Options.......................................................................6
2.2 Option Requirements....................................................................6
2.3 Incentive Stock Option Requirements....................................................8
ARTICLE III
RESTRICTED STOCK AWARDS..................................................................................9
3.1 Grant of Awards........................................................................9
3.2 Award Requirements....................................................................10
ARTICLE IV
GENERAL PROVISIONS......................................................................................11
4.1 Adjustment Provisions.................................................................11
4.2 Additional Conditions.................................................................12
4.3 No Rights as Shareholder or to Employment.............................................12
4.4 General Restrictions..................................................................13
4.5 Rights Unaffected.....................................................................13
4.6 Choice of Law.........................................................................14
4.7 Amendment, Suspension and Termination of Plan.........................................14
</TABLE>
<PAGE> 3
COMMERCE BANK OF ALABAMA
INCENTIVE STOCK COMPENSATION PLAN
ARTICLE I
PURPOSE, SCOPE AND ADMINISTRATION OF THE PLAN
1.1 SUCCESSOR
The Company is the successor to the Commerce Bank of Alabama
("Commerce") and the Company is vested with the rights and privileges
under the Plan pursuant to Section 2.2 of the Third Amended and
Restated Reorganization Agreement and Plan of Merger entered into as of
April 6, 1998, by and among Warrior Capital Corporation, The Banc
Corporation and Commerce.
1.2 PURPOSE
The purpose of the Plan is to promote the long-term success of the
Company by providing financial incentives to key employees who are in
positions to make significant contributions toward such success. The
Plan is designed to attract individuals of outstanding ability to
employment with the Company and to encourage key employees to acquire a
proprietary interest in the Company, to continue employment with the
Company and to render superior performance during such employment.
1.3 DEFINITIONS
Unless the context clearly indicates otherwise, for purposes of this
Plan the following terms have the respective meanings set forth below:
(a) "Board of Directors" means the Board of Directors of
the Company.
(b) "Change in Control" shall mean (A) the acquisition at
any time by a "person" or "group" (as such terms are
used in Sections 13(d) and 14(d)(2) of the Securities
Exchange Act of 1934 (the "Exchange Act")) who or
which are the beneficial owners (as defined in Rule
13(d)-3 under the Exchange Act), directly or
indirectly, of securities representing more than 50%
of the combined voting power in the election of
directors of the then outstanding securities of the
Company or any successor of the Company; (B) the
termination of service of directors, for any reason
other than death, disability or retirement from the
Board of Directors, during any period of two
consecutive years or less, of individuals who at the
beginning of such period constituted a majority of
the Board of Directors, unless the election of or
nomination for election of each new director during
such period was
1
<PAGE> 4
approved by a vote of at least a majority of the
directors still in office who were directors at the
beginning of the period; (C) approval by the
stockholders of the Company of any sale or
disposition of substantially all of the assets or
earning power of the Company; or (D) approval by the
stockholders of the Company of any merger,
consolidation, or statutory share exchange to which
the Company is a party as a result of which the
persons who were stockholders immediately prior to
the effective date of the merger, consolidation or
share exchange shall have beneficial ownership of
less than 50% of the combined voting power in the
election of directors of the surviving corporation;
provided, however, that no Change in Control shall be
deemed to have occurred in accordance with the
foregoing, if the Board of Directors, by vote of at
least 75% of the entire membership of the Board of
Directors, determines that the event otherwise
qualifying as a Change in Control shall not be
treated as a Change in Control hereunder. Each
determination concerning whether an event constitutes
a Change in Control under an Award Agreement shall be
made in a consistent manner as to the particular
event with respect to all Award Agreements of all
Participants in effect at the time of the event.
(c) "Code" means the Internal Revenue Code of 1986, as
amended.
(d) "Committee" means the Compensation Committee of the
Board of Directors (or any successor committee
thereto), which committee shall be composed of not
less than two members of the Board of Directors who
are "Non-Employee Directors" within the meaning of
Rule 16b-3 of the Securities Exchange Act of 1934, or
any successor thereto.
(e) "Common Stock" means the common stock of the Company,
par value $.001 per share, or such other class or
other securities to which the provisions of the Plan
may be applicable by reason of the operation of
Section 4.1 hereof.
(f) "Company" means The Banc Corporation, a Delaware
corporation, and such of its majority owned
subsidiaries as the Committee shall designate.
(g) "Fair Market Value" as of any date means (i) with
respect to an award of an Incentive Stock Option and
an award which is intended to qualify under the
"performance-based exception" set forth in section
162(m) of the Code, the average of the high and low
sales price of a share of Common Stock on such date
as reported by any national securities exchange on
which the Common Stock is actively traded or, if no
Common Stock is traded on such exchange or system on
such date, then on the next preceding date on which
any Common Stock was traded on such exchange or
system; and (ii) with
2
<PAGE> 5
respect to all other awards, the closing sales price
of a share of Common Stock on such date as reported
by any national securities exchange on which the
Common Stock is actively traded or, if no Common
Stock is traded on such exchange or system on such
date, then on the next preceding date on which any
Common Stock was traded on such exchange or system.
(h) "Grant Date," as used with respect to a particular
Option or Restricted Stock Award means the date as of
which such Option, Right or Award is granted by the
Committee pursuant to the Plan.
(i) "Grantee" means the employee to whom an Option or
Restricted Stock Award is granted by the Committee
pursuant to the Plan.
(j) "Incentive Stock Option" means an Option that
qualifies as an incentive stock option as described
in Section 422A of the Code.
(k) "Option" means an option granted by the Committee
pursuant to Article II to purchase shares of Common
Stock, which shall be designated at the time of grant
as either an Incentive Stock Option or a Supplemental
Stock Option, as provided in Section 2.1 hereof.
(l) "Option Agreement" means the agreement between the
Company and a Grantee under which the Grantee is
granted an Option pursuant to the Plan.
(m) "Option Period" means the period fixed by the
Committee during which an Option may be exercised,
which period may, by the Committee in its sole
discretion, be lengthened to any extent or shortened
by as much as one calendar month, provided that no
Incentive Stock Option shall, under any
circumstances, be exercisable more than ten years
after the Grant Date.
(n) "Plan" means the Commerce Bank of Alabama Incentive
Stock Compensation Plan as set forth herein and as
amended from time to time.
(o) "Restricted Stock Agreement" means the agreement
between the Company and a Grantee under which the
Grantee is granted a Restricted Stock Award pursuant
to the Plan.
(p) "Restricted Stock Award" means an award of Common
Stock which is granted by the Committee pursuant to
Article III and which is restricted against sale or
other transfer in a manner and for a specified period
of time determined by the Committee.
3
<PAGE> 6
(q) "Restriction Period" means, with respect to any
Restricted Stock Award granted hereunder, the period
beginning on the Grant Date and ending at such time
as the Committee, in its sole discretion, shall
determine and during which the shares of Restricted
Stock are subject to forfeiture, provided that after
the period is determined by the Committee, it may, in
its sole discretion, lengthen the period by as much
as one calendar month or shorten it to any extent.
(r) "Retirement," as applied to a Grantee, means the
Grantee's termination of employment in a manner which
qualifies the Grantee to receive immediately payable
retirement benefits under any retirement plan
hereafter adopted by the Company, or which in the
absence of any such retirement plan is determined by
the Committee to constitute retirement.
(s) "Supplemental Stock Option" means any Option granted
under this Plan, other than an Incentive Stock
Option.
(t) "Total and Permanent Disability," as applied to a
Grantee, means that the Grantee (1) has established
to the satisfaction of the Committee that the Grantee
is unable to engage in any substantial gainful
activity by reason of any medically determinable
physical or mental impairment which can be expected
to last for a continuous period of not less than 12
months (all within the meaning of Section 22(e)(3) of
the Code), and (2) has satisfied any requirement
imposed by the Committee in regard to evidence of
such disability.
1.4 SHARES AVAILABLE UNDER THE PLAN
(a) The number of shares of Common Stock with respect to
which Options and Restricted Stock Awards may be
granted shall be 82,396 shares of Common Stock,
subject to adjustment in accordance with the
remaining provisions of this Section 1.4 and the
provisions of Section 4.1.
(b) In the event that any Option expires or otherwise
terminates prior to being fully exercised, or any
Restricted Stock Award is forfeited, the Committee
may, without decreasing the number of shares
authorized above in this Section 1.4, grant new
Options and Restricted Stock Awards hereunder to any
eligible Grantee for the shares with respect to which
the expired or terminated Option was not exercised or
which were forfeited when the terms and conditions of
the Restricted Stock Award were not satisfied.
(c) Any shares of Common Stock to be delivered by the
Company upon the grant of Restricted Stock Awards or
the exercise of Options shall, at the
4
<PAGE> 7
discretion of the Board of Directors, be issued from
the Company's authorized but unissued shares of
Common Stock or be transferred from any available
treasury stock.
1.5 ADMINISTRATION OF THE PLAN
(a) The Plan shall be administered by the Committee which
shall have the authority:
(1) To determine those employees of the Company
to whom, and the times at which, Options
and/or Restricted Stock Awards shall be
granted and the number of shares of Common
Stock to be subject to each such Option
and/or Award, taking into consideration the
nature of the services rendered by the
particular employee, the employee's
potential contribution to the long term
success of the Company and such other
factors as the Committee in its discretion
shall deem relevant;
(2) To interpret and construe the provisions of
the Plan and to establish rules and
regulations relating to it;
(3) To prescribe the terms and conditions of the
Option Agreements for the grant of Options
(which need not be identical) in accordance
and consistent with the requirements of the
Plan including the provision in Section
1.3(m) allowing adjustments to the duration
of the Option Period after the Option
Agreement has been entered into;
(4) To prescribe the terms and conditions of the
Restricted Stock Agreements (which need not
be identical) in accordance and consistent
with the requirements of the Plan including
the provision in Section 1.3(q) allowing
adjustments to the duration of the
Restriction Period after the Restricted
Stock Agreement has been entered into; and
(5) To make all other determinations necessary
or advisable to administer the Plan in a
proper and effective manner.
(b) All decisions and determinations of the Committee in
the administration of the Plan and in response to
questions or in connection with other matters
concerning the Plan or any Option or Restricted Stock
Award shall (whether or not so stated in the
particular instance in the Plan) be final, conclusive
and binding on all persons, including, without
limitation, the Company , the shareholders and
directors of the Company and any persons
5
<PAGE> 8
having any interest in any Options or Restricted
Stock Awards which may be granted under the Plan.
1.6 ELIGIBILITY FOR AWARDS
The Committee shall designate from time to time the key employees,
directors, consultants, agents and independent contractors of the
Company who are to be granted Options and/or Restricted Stock Awards.
However, Incentive Stock Options may only be granted to employees
(including officers of the Company or any subsidiary).
1.7 EFFECTIVE DATE OF PLAN
Subject to the receipt of all required regulatory approvals, the Plan
shall become effective upon its adoption by the Committee.
ARTICLE II
STOCK OPTIONS
2.1 GRANT OF OPTIONS
(a) The Committee may from time to time, subject to the
provisions of the Plan, grant Options to key
employees, directors, consultants, agents and
independent contractors under appropriate Option
Agreements, to purchase shares of Common Stock.
(b) The Committee may designate any Option which
satisfies the requirements of Section 2.3 hereof as
an Incentive Stock Option and may designate any
Option granted hereunder as a Supplemental Stock
Option, or the Committee may designate a portion of
an Option as an Incentive Stock Option (so long as
that portion satisfies the requirements of Section
2.3 hereof) and the remaining portion as a
Supplemental Stock Option. Any portion of an Option
that is not designated as an Incentive Stock Option
shall be a Supplemental Stock Option. A Supplemental
Stock Option must satisfy the requirements of Section
2.2 hereof, but shall not be subject to the
requirements of Section 2.3.
2.2 OPTION REQUIREMENTS
(a) An Option shall be evidenced by an Option Agreement
specifying the number of shares of Common Stock that
may be purchased upon its exercise and containing
such terms and conditions not inconsistent with the
6
<PAGE> 9
Plan and based on such factors as the Committee shall
determine, in its sole discretion, to be applicable
to that particular Option.
(b) An Option shall be exercisable at such time or times
and subject to such terms and conditions as shall be
determined by the Committee and communicated in
writing to the Grantee at or after the Option is
granted; provided, however, that an Option shall
become immediately and fully exercisable (1) upon the
death of an employee, (2) upon employment with the
Company ceasing because of Total and Permanent
Disability, or (3) upon the occurrence of any Change
in Control, as defined herein. If the Committee
provides that any Option is exercisable only in
installments or provides other vesting requirements,
the Committee may waive such provisions at any time,
in whole or in part, based on such factors as the
Committee shall, in its sole discretion, determine.
(c) An Option shall expire by its terms at the expiration
of the Option Period and shall not be exercisable
thereafter; provided, however, that an Option may be
exercised immediately upon the death of the Grantee
and for a period of one year after the death of the
Grantee despite the expiration during the term of the
Option Period, except that an Incentive Stock Option
can never be exercised more than 10 years after its
Grant Date.
(d) The Committee may provide in the Option Agreement for
the expiration or termination of the Option prior to
the expiration of the Option Period upon the
occurrence of any event specified by the Committee.
(e) The option price per share of Common Stock shall be
determined by the Committee at the time of grant but
shall be not less than 100% of the Fair Market Value
of a share of Common Stock on the Grant Date.
(f) An Option shall not be transferable other than by
will, the laws of descent and distribution or as set
forth in the Option Agreement. Unless lawfully
transferred during the Grantee's lifetime, an Option
shall be exercisable only by the Grantee, or if the
Grantee is disabled and the Option remains
exercisable, by his or her duly appointed guardian or
other legal representative.
(g) Notwithstanding the Option Period applicable to a
Supplemental Stock Option granted hereunder, such
Supplemental Stock Option, to the extent that it has
not previously been exercised, shall terminate upon
the earliest to occur of (1) the expiration of the
applicable Option Period as set forth in the Option
Agreement granting such Supplemental Stock Option,
(2) the expiration of one year after the Grantee's
Retirement, (3) the expiration of
7
<PAGE> 10
one year after the Grantee ceases to be an employee
of the Company due to Total and Permanent Disability,
(4) subject to the application of the provisions of
subsection (c) above, the expiration of one year
after the Grantee ceases to be an employee of the
Company due to the death of the Grantee, (5) the
expiration of the original Option Period in the event
of a Change in Control, or (6) ninety days after the
date on which a Grantee ceases to be an employee of
the Company for any reason other than Retirement,
Total and Permanent Disability, death or a Change in
Control.
(h) A person electing to exercise an Option shall give
written notice of such election to the Company, in
such form as the Committee may require, accompanied
by payment in cash or check payable to the Company
for the full purchase price of the shares of Common
Stock for which election is made. Except as otherwise
provided by the Committee before the Option is
exercised (1) all or a portion of the exercise price
may be paid by the Grantee by delivery of shares of
the Company's Common Stock owned by the Grantee and
acceptable to the Committee having an aggregate Fair
Market Value (valued at the date of exercise) that is
equal to the amount of cash that would otherwise be
required; and (2) the Grantee may pay the exercise
price by authorizing a third party to sell shares of
Company Common Stock (or a sufficient portion
thereof) acquired upon the exercise of the Option and
remit to the Company a sufficient portion of the sale
proceeds to pay the entire exercise price and any tax
withholding from such exercise. The Option shall not
be exercisable if and to the extent the Company
determines that such exercise would violate
applicable state or federal securities laws or the
rules and regulations of any securities exchange on
which the Company's Common Stock is traded. If the
Company makes such a determination, it shall use all
reasonable efforts to obtain compliance with such
laws, rules or regulations. In making any
determination hereunder, the Company will rely on the
opinion of counsel for the Company.
2.3 INCENTIVE STOCK OPTION REQUIREMENTS
(a) An Option designated by the Committee as an Incentive
Stock Option is intended to qualify as an "incentive
stock option" within the meaning of Subsection (b) of
Section 422A of the Code and shall satisfy, in
addition to the conditions of Section 2.2 above, the
conditions set forth in this Section 2.3; provided,
however, that at any time after the granting of an
Incentive Stock Option, the Committee may, in its
sole discretion, and without the consent of, and even
if to the personal detriment of, a Grantee, take any
action or actions to disqualify the Option as an
Incentive Stock Option thereby converting said Option
into a Supplemental Stock Option.
8
<PAGE> 11
(b) An Incentive Stock Option shall not be granted to an
individual who, on the Grant Date, owns stock
possessing more than ten percent of the total
combined voting power of all classes of stock of the
Company, unless the Committee provides in the Option
Agreement with any such individual that the option
price per share of Common Stock will not be less than
110% of the Fair Market Value of a share of Common
Stock on the Grant Date and that the Option Period
will not extend beyond five years from the Grant
Date.
(c) The aggregate Fair Market Value, determined on the
Grant Date, of the shares of Common Stock as to which
Incentive Stock Options are exercisable for the first
time by any Grantee with respect to the Plan and
Incentive Stock Options (within the meaning of
Subsection (b) of Section 422A of the Code) under any
other plan of the Company or any parent or subsidiary
thereof, in any calendar year shall not exceed
$100,000.
(d) Notwithstanding the Option Period applicable to an
Incentive Stock Option granted hereunder, such
Incentive Stock Option, to the extent that it has not
been previously exercised, shall terminate upon the
earliest to occur of (1) the expiration of the
applicable Option Period as set forth in the Option
Agreement granting such Incentive Stock Option, (2)
the expiration of one year after the Grantee's
Retirement, (3) the expiration of one year after the
Grantee ceases to be an employee of the Company due
to Total and Permanent Disability, (4) subject to the
provisions of Section 2.2(c), the expiration of one
year after the Grantee ceases to be an employee of
the Company due to the death of the Grantee, (5) the
expiration of the original Option Period in the event
of a Change in Control, or (6) ninety days after the
date on which the Grantee ceases to be an employee of
the Company for any reason other than Retirement,
Total and Permanent Disability, death or a Change in
Control.
ARTICLE III
RESTRICTED STOCK AWARDS
3.1 GRANT OF AWARDS
The Committee may, from time to time, subject to the provisions of the
Plan, grant Restricted Stock Awards to key employees under an
appropriate Restricted Stock Agreement.
9
<PAGE> 12
3.2 AWARD REQUIREMENTS
(a) An award shall be evidenced by a Restricted Stock
Agreement specifying the number of shares of Common
Stock that are awarded and containing such terms and
conditions not inconsistent with the Plan as the
Committee shall determine to be applicable to that
particular award, which agreement shall contain in
substance at least the following terms and
conditions:
(1) Shares awarded pursuant to
Restricted Stock Awards shall be
subject to such conditions, terms
and restrictions (including, for
example, continuation of employment
in the same or in a higher level
position) and for such Restriction
Period or Periods (including the
lapse of restrictions in
installments) as may be determined
by the Committee.
(2) Shares awarded, and the right to
vote such shares and to receive
dividends thereon, may not be sold,
assigned, transferred, exchanged,
pledged, hypothecated, or otherwise
encumbered during the Restriction
Period applicable to such shares;
provided, that the Grantee awarded
Restricted Stock shall have the
right to execute a proxy to vote the
Restricted Stock. Notwithstanding
the foregoing, and except as
otherwise provided in the Plan, a
Grantee awarded Restricted Stock
shall have all the other rights of a
stockholder, including the right to
receive dividends and the right to
vote such shares.
(3) Each certificate issued in respect
of Common Stock awarded to a Grantee
shall be deposited with the Company,
or its designee, or in the
Committee's discretion delivered to
the Grantee, and shall bear an
appropriate legend noting the
existence of restrictions upon the
transfer of such Common Stock.
(4) The Restricted Stock Agreement shall
specify the terms and conditions
upon which any restrictions upon
shares awarded under the Plan shall
lapse, as determined by the
Committee (including, for example,
employment in the same or a higher
level position at the end of the
Restriction Period or occurrence of
a Change in Control). Upon lapse of
such restrictions, certificates
representing shares of Common Stock
free of any restrictive legend,
other than as may be
10
<PAGE> 13
required under Article III hereof,
shall be issued and delivered to the
Grantee or his legal representative.
(b) If a Grantee's employment terminates during a
Restriction Period as a result of death of the
Grantee, all restrictions upon shares awarded under
the Plan shall lapse and the certificates
representing shares awarded as a Restricted Stock
Award, free of any restrictive legend other than as
may be required under Article III hereof, shall be
issued and delivered to the Grantee's legal
representative. If a Grantee's employment terminates
during a Restriction Period as a result of death,
Retirement, Total and Permanent Disability or a
Change in Control the Committee shall in its sole
discretion determine the extent to which restrictions
shall be deemed to have lapsed, which may include the
determination that all restrictions shall have
lapsed, but in no event shall the Committee determine
that the restrictions have lapsed to a lesser extent
than is determined by multiplying the amount of the
Restricted Stock Award by a fraction, the numerator
of which is the full number of calendar months such
Grantee was employed during the Restriction Period
and the denominator of which is the total number of
full calendar months in the Restriction Period. If a
Grantee's employment terminates for any reason other
than as described in the preceding two sentences, the
Grantee shall be deemed not to have satisfied the
restrictions associated with the Restricted Stock
Award unless the Committee determines otherwise in
its sole discretion (in which event the extent to
which restrictions will be deemed to have lapsed
shall not exceed the amount determined pursuant to
the formula set forth in the preceding sentence).
ARTICLE IV
GENERAL PROVISIONS
4.1 ADJUSTMENT PROVISIONS
(a) In the event of (1) any dividend payable in shares of
Common Stock; (2) any recapitalization,
reclassification, split-up or consolidation of, or
other change in, the Common Stock; or (3) an exchange
of the outstanding shares of Common Stock, in
connection with a merger, consolidation or other
reorganization of or involving the Company or a sale
by the Company of all or a portion of its assets, for
a different number or class of shares of stock or
other securities of the Company or for shares of the
stock or other securities of any other corporation
(whether issued to the Company or to its
shareholders); the number of shares of Common Stock
available under the Plan pursuant to Section 1.4
shall be adjusted to appropriately reflect the
occurrence of the event specified in (1), (2) or (3)
above and the Committee
11
<PAGE> 14
shall, in such manner as it shall determine in its
sole discretion, appropriately adjust the number and
class of shares or other securities which shall be
subject to Options and Restricted Stock Awards and/or
the purchase price per share which must be paid
thereafter upon exercise of any Option. Any such
adjustments made by the Committee shall be final,
conclusive and binding upon all persons, including,
without limitation, the Company, the shareholders and
directors of the Company and any persons having any
interest in any Options or Restricted Stock Awards
which may be granted under the Plan.
(b) Except as provided in paragraph (a) immediately
above, issuance by the Company of shares of stock of
any class or securities convertible into shares of
stock of any class shall not affect the Options or
Restricted Stock Awards.
4.2 ADDITIONAL CONDITIONS
(a) Any shares of Common Stock issued or transferred
under any provision of the Plan may be issued or
transferred subject to such conditions, in addition
to those specifically provided in the Plan, as the
Committee or the Company may impose.
(b) If prior to the time a Grantee has exercised all
Options, the Committee or the Corporate Secretary of
the Company receives from the Company notice of
suspected dishonesty of the Grantee, or of suspected
conduct by the Grantee which causes or reasonably may
be expected to cause substantial damage to the
Company or one or more of its subsidiaries, each
Option, to the extent not previously exercised, shall
terminate immediately and neither the Grantee nor any
one claiming under him shall have any rights thereto.
4.3 NO RIGHTS AS SHAREHOLDER OR TO EMPLOYMENT
No Grantee or any other person authorized to purchase Common Stock upon
exercise of an Option shall have any interest in or shareholder rights
with respect to any shares of Common Stock which are subject to any
Option until such shares have been issued and delivered to the Grantee
or any such person pursuant to the exercise of such Option.
Furthermore, the Plan shall not confer upon any Grantee any rights of
employment with the Company, including without limitation any right to
continue in the employ of the Company, or affect the right of the
Company to terminate the employment of a Grantee at any time, with or
without cause.
12
<PAGE> 15
4.4 GENERAL RESTRICTIONS
Each award under the Plan shall be subject to the requirement that, if
at any time the Committee shall determine that (a) the listing,
registration or qualification of the shares of Common Stock subject or
related thereto upon any securities exchange or under any state or
federal law, or (b) the consent or approval of any government
regulatory body, or (c) an agreement by the recipient of an award with
respect to the disposition of shares of Common Stock, is necessary or
desirable as a condition of, or in connection with, the granting of
such award or the issue or purchase of shares of Common Stock
thereunder, such award may not be consummated in whole or in part
unless such listing, registration, qualification, consent, approval or
agreement shall have been effected or obtained free of any conditions
not acceptable to the Committee. A participant shall agree, as a
condition of receiving any award under the Plan, to execute any
documents, make any representations, agree to restrictions on stock
transferability and take any actions which in the opinion of legal
counsel to the Company are required by any applicable law, ruling or
regulation.
4.5 RIGHTS UNAFFECTED
The existence of the Options and Restricted Stock Awards shall not
affect the right or power of the Company or its shareholders to make
adjustments, recapitalizations, reorganizations or other changes in the
Company's capital structure or its business; any issue of bonds,
debentures, preferred or prior preference stocks affecting the Common
Stock or the rights thereof; the dissolution or liquidation of the
Company, or sale or transfer of any part of its assets or business; or
any other corporate act, whether of a similar character or otherwise.
(a) As a condition of grant, exercise or lapse of
restrictions on any Option or Restricted Stock Award,
the Company may, in its sole discretion, withhold or
require the Grantee to pay or reimburse the Company
for any taxes which the Company determines are
required to be withheld (including, without
limitation, any required FICA payments) in connection
with the grant of or lapse of restrictions on a
Restricted Stock Award or the grant of or any
exercise of an Option. Whenever payment or
withholding of such taxes is required, the Grantee
may satisfy the obligation, in whole or in part, by
electing to deliver to the Company shares of Common
Stock already owned by the Grantee or to which the
Grantee is otherwise entitled under the Plan, in each
case having a value equal to the amount required to
be withheld. For these purposes, the value of the
shares to be withheld is the Fair Market Value on the
date that the amount of tax to be withheld is to be
determined (the "Tax Date").
13
<PAGE> 16
(b) An election by a Grantee to deliver shares of Common
Stock already owned by the Grantee or to have shares
withheld for purposes of subsection (a) of this
section (an "Election") must meet the following
requirements in order to be effective:
(1) the Election must be made prior to
the Tax Date;
(2) the Election is irrevocable; and
(3) the Election may be disapproved by
the Committee in its sole
discretion.
4.6 CHOICE OF LAW
The validity, interpretation and administration of the Plan and of any
rules, regulations, determinations or decisions made thereunder, and
the rights of any and all persons having or claiming to have any
interest therein or thereunder, shall be determined exclusively in
accordance with the laws of the State of Delaware.
Without limiting the generality of the foregoing, the period within
which any action in connection with the Plan must be commenced shall be
governed by the Laws of the State of Delaware, without regard to the
place where the act or omission complained of took place, the residence
of any party to such action or the place where the action may be
brought or maintained.
4.7 AMENDMENT, SUSPENSION AND TERMINATION OF PLAN
(a) The Plan may be terminated, suspended or amended,
from time to time, by the Board of Directors or the
Committee in such respects as it shall deem
advisable; provided, however, that any amendment
that would change the maximum aggregate number of
shares for which Options and Restricted Stock Awards
may be granted under the Plan (except as required
under any adjustments pursuant to Sections 1.4 and
4.1 hereof) shall be subject to approval of the
shareholders of the Company.
(b) Notwithstanding any other provision herein contained,
no Incentive Stock Options shall be granted on or
after the tenth anniversary of the approval of the
Plan by the Board of Directors and the Plan shall
terminate and all Options and Restricted Stock Awards
previously granted shall terminate, in the event and
on the date of liquidation or dissolution of the
Company.
14
<PAGE> 17
(c) Whether before or after termination of the Plan, the
Committee has full authority in accordance with
Section 4.7(a) to amend the Plan, effective for
Options and Restricted Stock Awards which remain
outstanding under the Plan.
15
<PAGE> 1
EXHIBIT (5)
LAW OFFICES
HASKELL SLAUGHTER & YOUNG, L.L.C.
1200 AMSOUTH/HARBERT PLAZA
1901 SIXTH AVENUE NORTH
BIRMINGHAM, ALABAMA 35203-2618
FACSIMILE (205) 324-1133
TELEPHONE (205) 251-1000
PLEASE REPLY TO: BIRMINGHAM
February 22, 1999
The Banc Corporation
17 North 20th Street
Birmingham, Alabama 35203
RE: REGISTRATION STATEMENT ON FORM S-8 -- THE AMENDED AND RESTATED
1998 STOCK INCENTIVE PLAN OF THE BANC CORPORATION AND THE
COMMERCE BANK OF ALABAMA INCENTIVE STOCK COMPENSATION PLAN
OUR FILE NO. 05136-007
Gentlemen:
We have served as counsel for The Banc Corporation, a Delaware Corporation,
(the "Company"), in connection with the registration under the Securities Act of
1933, as amended, of an aggregate of 1,082,396 shares (the "Shares") of the
Company's authorized Common Stock, par value $.001 per share, to be issued to
participants in the Amended and Restated 1998 Stock Incentive Plan of the
Company and the Commerce Bank of Alabama Incentive Stock Compensation Plan (the
"Plans") pursuant to the Company's Registration Statement on Form S-8 (the
"Registration Statement"). This opinion is furnished to you pursuant to the
requirements of Form S-8.
In connection with this opinion, we have examined and are familiar with
originals or copies (certified or otherwise identified to our satisfaction) of
such documents, corporate records and other instruments relating to the
incorporation of the Company and to the authorization and issuance of the
Shares and the authorization and adoption of the Plans as we have deemed
necessary and appropriate.
Based upon the foregoing, and having regard for such legal considerations
as we have deemed relevant, it is our opinion that:
<PAGE> 2
The Banc Corporation
February 22, 1999
Page 2
1. The Shares have been duly authorized;
2. Upon issuance, sale and delivery of the Shares as contemplated in the
Registration Statement and the Plan, the Shares will be legally issued, fully
paid and nonassessable.
We do hereby consent to the reference to our firm in this Registration
Statement and to the filing of this Opinion as an Exhibit thereto.
Yours truly,
HASKELL SLAUGHTER & YOUNG, L.L.C.
BY: /s/ Donald T. Locke
------------------------------
Donald T. Locke
<PAGE> 1
EXHIBIT (23)-1
CONSENT OF ERNST & YOUNG LLP
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the Amended and Restated 1998 Stock Incentive Plan of the
Banc Corporation and Commerce Bank of Alabama Incentive Stock Compensation Plan
of our report dated November 6, 1998, with respect to the consolidated financial
statements of The Banc Corporation included in its Registration Statement (Form
S-1 No. 333-67011), filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Birmingham, Alabama
February 19, 1999
<PAGE> 1
EXHIBIT (23)-2
CONSENT OF INDEPENDENT AUDITORS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of The Banc Corporation 1998 Stock Incentive Plan and
Commerce Bank of Alabama Incentive Stock Compensation Plan of our reports with
respect to the various consolidated financial statements included in the
registration and prospectus on Form S-1 (Registration No. 333-67011) as follows:
<TABLE>
<CAPTION>
Report Form S-1
Date Page No.
------ --------
<S> <C>
November 6, 1998 F-5
February 5, 1998 F-34
May 6, 1998 F-94
January 8, 1998 F-115
June 11, 1998 F-158
</TABLE>
Birmingham, Alabama
February 17, 1999
/s/ Dudley, Hopton-Jones, Sims & Freeman PLLP
Dudley, Hopton-Jones, Sims & Freeman PLLP
<PAGE> 1
EXHIBIT (23)-3
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
on Form S-8 of The Banc Corporation of our report dated February 13, 1998 with
respect to the financial statements of Commerce Bank of Alabama for the year
ended December 31, 1997 included in The Banc Corporation's Registration
Statement on Form S-4 (Commission File No. 333-58493) filed with the Securities
and Exchange Commission.
/s/ Mauldin & Jenkins, LLC
--------------------------------
Mauldin & Jenkins, LLC
February 19, 1999
<PAGE> 1
EXHIBIT (23)-4
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to Amended and Restated 1988 Stock Incentive Plan of the Banc
Corporation and the Commerce Bank of Alabama Incentive Stock Compensation Plan
of our report dated January 12, 1996, with respect to financial statements of
Commerce Bank of Alabama included in the Proxy Statement of The Banc Corporation
that is made a part of the Registration Statement (Form S-1 No. 333-67011),
filed with the Securities and Exchange Commission.
/s/ Cochran, Wheeler and Kennedy, P.C.
- --------------------------------------
February 19, 1999
<PAGE> 1
EXHIBIT (23)-5
Florida Institute of
Certified Public Accountants
SC&G
- ---------------------------- American Institute of
Saltmarsh, Cleaveland & Gund Certified Public Accountants
Certified Public Accountants
and Consultants AICPA Private
Since 1944 Companies Practice Section
AICPA SEC
Practice Section
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" and to the
use of our report dated March 9, 1998, except for Note 15 as to which the date
is May 4, 1998, with respect to the consolidated financial statements of
Emerald Coast Bancshares, Inc. and Subsidiary included in the Form S-8 of The
Banc Corporation.
/s/ Saltmarsh, Cleaveland & Gund
- --------------------------------
Pensacola, Florida
February 19, 1998
<TABLE>
<S> <C> <C>
900 North 12th Avenue 501 West 19th Street 34 Walter Martin Road
P.O. Drawer 13207 P.O. Box 1100 P.O. Box 848
Pensacola, Florida 32591-3207 Panama City, Florida 32402-1100 Fort Walton Beach, Florida 32549-0848
(850) 435-8300 (850) 769-9491 (850) 243-6713
FAX: (850) 435-8352 FAX: (850) 785-9590 FAX: (850) 243-4137
</TABLE>
