As filed with the Securities and Exchange Commission on May 4, 1999
-----------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------------------
ECB BANCORP, INC.
(Exact name of Registrant as specified in its charter)
- --------------------------------------------------------------------------------
NORTH CAROLINA 56-2090738
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
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POST OFFICE BOX 337
ENGELHARD, NORTH CAROLINA 27824
-------------------------------
(Address of principal executive offices, including zip code)
- --------------------------------------------------------------------------------
(252) 925-9411
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Registrant's telephone number, including area code
-------------------------
OMNIBUS STOCK OWNERSHIP AND LONG TERM INCENTIVE PLAN
----------------------------------------------------
(Full title of the Plan)
-------------------------
- --------------------------------------------------------------------------------
COPY TO:
ARTHUR H. KEENEY, III WILLIAM R. LATHAN, JR., ESQ.
ECB BANCORP, INC. WARD AND SMITH, P.A.
167 NORTH SECOND STREET 1001 COLLEGE COURT
ENGELHARD, NORTH CAROLINA 27824 NEW BERN, NORTH CAROLINA 28562
(252) 925-9411 (252) 633-1000
(Name and address of agent for service)
- --------------------------------------------------------------------------------
-------------------------
- --------------------------------------------------------------------------------
CALCULATION OF REGISTRATION FEE (1)
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<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED PER SHARE OFFERING PRICE FEE(1)
- -------------------- ---------------- -------------------- -------------------- ---------------
Common Stock,
$3.50 par value 159,000 $13.50 $2,146,500 $597
- -------------------- ---------------- -------------------- -------------------- ---------------
</TABLE>
(1) The shares of Common Stock are being offered to eligible employees of
Registrant and any company which is a subsidiary of Registrant, or a
subsidiary of a subsidiary, pursuant to the terms of Registrant's
Omnibus Stock Ownership and Long Term Incentive Plan. Pursuant to Rule
457(h), the Offering Price Per Share, Aggregate Offering Price and
Registration Fee have been calculated on the basis of the maximum number
of shares to be issued under the Plan and an Offering Price Per Share
equal to the average of the bid and asked prices of the Common Stock on
April 28, 1999.
<PAGE>
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by Registrant with the Securities and
Exchange Commission (the "Commission") under the Securities Exchange Act of 1934
(the "Exchange Act") are incorporated herein by reference:
(i) Registrant's Annual Report on Form 10-KSB for the year ended December
31, 1998; and,
(ii) Registrant's Current Report on Form 8-KSB dated April 21, 1999.
All documents subsequently filed with the Commission by Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold, or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated herein by reference and to be a part hereof from
the dates of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
AUTHORIZED CAPITAL. Registrant's authorized capital stock consists of
10,000,000 shares of Common Stock, $3.50 par value per share, of which 2,125,254
shares were issued and outstanding at March 31, 1999.
VOTING RIGHTS. Except as otherwise provided below, the holders of
Registrant's Common Stock are entitled to one vote per share held of record on
all matters submitted to a vote of shareholders, and are not entitled to vote
cumulatively in the election of directors.
Pursuant to the North Carolina Control Share Acquisition Act, shares of
Registrant's Common Stock acquired in a "control share acquisition" ("Control
Shares") will have no voting rights unless such rights are granted by resolution
adopted by the holders of at least a majority of the outstanding shares of
Registrant's stock entitled to vote in the election of directors, excluding
shares held by the person who has acquired or proposes to acquire the Control
Shares and excluding shares held by any officer or director who is also an
employee of Registrant. "Control Shares" are defined as shares of Registrant
acquired by any person which, when added to the shares already owned by such
person, would entitle that person (except for the application of the Act) to
voting power in the election of directors equal to or greater than (i) one-fifth
of all voting power, (ii) one-third of all voting power, or (iii) a majority of
all voting power. "Control share acquisition" means, with certain exceptions,
the acquisition by any person of beneficial ownership of Control Shares,
including an acquisition pursuant to certain agreements of merger or
consolidation to which Registrant is a party, and purchases of shares directly
from Registrant.
CHARTER AMENDMENTS. With certain exceptions, an amendment to Registrant's
charter, including a provision to increase Registrant's authorized capital
stock, may be effected if the amendment is recommended to Registrant's
shareholders by the Board of Directors and if the votes cast by shareholders in
favor of the amendment exceed the votes cast opposing the amendment.
MERGER, SHARE EXCHANGE, SALE OF ASSETS AND DISSOLUTION. In general, North
Carolina law requires that any merger, share exchange, voluntary liquidation or
transfer of substantially all Registrant's assets (other than in the ordinary
course of business) be recommended to Registrant's shareholders by its board of
directors and be approved by the affirmative vote of at least a majority of all
outstanding shares of Registrant's voting stock.
The North Carolina Shareholder Protection Act requires the affirmative
vote of the holders of 95% of the outstanding shares of Registrant's Common
Stock (excluding shares owned by an "interested
<PAGE>
shareholder") to approve certain business combinations between Registrant and an
entity which owns more than 10% of Registrant's voting shares.
DIVIDENDS. Holders of Registrant's Common Stock are entitled to dividends
when and if declared by Registrant's Board of Directors from funds legally
available, whether in cash or in stock. Under North Carolina law, the
declaration and payment of cash dividends is at the discretion of Registrant's
Board of Directors; provided, however, that no cash dividend may be paid if,
after such payment, Registrant would not be able to pay its debts as they become
due in the usual course of its business or Registrant's total assets would be
less than its total liabilities (plus the amount, if any, necessary to satisfy
certain preferential rights of shareholders).
MISCELLANEOUS. In accordance with North Carolina law, holders of
Registrant's Common Stock are entitled, upon dissolution or liquidation, to
participate ratably in the distribution of assets legally available for
distribution to shareholders after payment of debts. Registrant's shareholders
do not have preemptive rights to acquire other or additional shares which might
be issued by Registrant, or any redemption, sinking fund or conversion rights.
First-Citizens Bank & Trust Company currently acts as registrar and
transfer agent for Registrant's Common Stock.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Registrant is incorporated under the laws of the State of North Carolina.
North Carolina's Business Corporation Act (the "BCA") contains provisions
prescribing the extent to which directors and officers of a corporation shall or
may be indemnified.
PERMISSIBLE INDEMNIFICATION. The BCA allows a corporation by charter,
bylaw, contract or resolution to indemnify or agree to indemnify its officers,
directors, employees and agents and any person who is or was serving at the
corporation's request as a director, officer, employee or agent of another
entity or enterprise or as a trustee or administrator under an employee benefit
plan, against liability and expenses, including reasonable attorneys' fees, in
any proceeding (including without limitation a proceeding brought by or on
behalf of the corporation itself) arising out of their status as such or their
activities in any of the foregoing capacities as summarized herein. Any
provision in a corporation's charter or bylaws or in a contract or resolution
may include provisions for recovery from the corporation of reasonable costs,
expenses and attorneys' fees in connection with the enforcement of rights to
indemnification granted therein and may further include provisions establishing
reasonable procedures for determining and enforcing such rights.
The corporation may indemnify such person against liability expenses
incurred only where such person conducted himself or herself in good faith;
reasonably believed (i) in the case of conduct in his or her official corporate
capacity, that his or her conduct was in the corporation's best interests, and
(ii) in all other cases, that his or her conduct was at least not opposed to the
corporation's best interests; and, in the case of a criminal proceeding, he or
she had no reasonable cause to believe his or her conduct was unlawful;
provided, however, that a corporation may not indemnify such person either in
connection with a proceeding by or in the right of the corporation in which such
person was adjudged liable to the corporation, or in connection with any other
proceeding charging improper personal benefit to such person (whether or not
involving action in an official capacity) in which such person was adjudged
liable on the basis that personal benefit was improperly received.
<PAGE>
MANDATORY INDEMNIFICATION. Unless limited by the corporation's charter,
the BCA requires a corporation to indemnify a director or officer of the
corporation who is wholly successful, on the merits or otherwise, in the defense
of any proceeding to which such person was a party because he or she is or was a
director or officer of the corporation against reasonable expenses incurred in
connection with the proceeding.
ADVANCE FOR EXPENSES. Expenses incurred by a director, officer, employee
or agent of the corporation in defending a proceeding may be paid by the
corporation in advance of the final disposition of the proceeding as authorized
by the board of directors in the specific case, or as authorized by the charter
or bylaws or by any applicable resolution or contract, upon receipt of an
undertaking by or on behalf of such person to repay amounts advanced unless it
ultimately is determined that such person is entitled to be indemnified by the
corporation against such expenses.
COURT-ORDERED INDEMNIFICATION. Unless otherwise provided in the
corporation's charter, a director or officer of the corporation who is a party
to a proceeding may apply for indemnification to the court conducting the
proceeding or to another court of competent jurisdiction. On receipt of an
application, the court, after giving any notice the court deems necessary, may
order indemnification if it determines either (i) that the director or officer
is entitled to mandatory indemnification as described above, in which case the
court also will order the corporation to pay the reasonable expenses incurred to
obtain the court-ordered indemnification, or (ii) that the director or officer
is fairly and reasonably entitled to indemnification in view of all the relevant
circumstances, whether or not such person met the requisite standard of conduct
or was adjudged liable to the corporation in connection with a proceeding by or
in the right of the corporation or on the basis that personal benefit was
improperly received in connection with any other proceeding so charging (but if
adjudged so liable, indemnification is limited to reasonable expenses incurred).
PARTIES ENTITLED TO INDEMNIFICATION. The BCA defines "director" to include
ex-directors and the estate or personal representative of a director. Unless its
charter provides otherwise, a corporation may indemnify and advance expenses to
an officer, employee or agent of the corporation to the same extent as to a
director and also may indemnify and advance expenses to an officer, employee or
agent who is not a director to the extent, consistent with public policy, as may
be provided in its charter or bylaws, by general or specific action of its board
of directors, or by contract.
INDEMNIFICATION BY REGISTRANT. Registrant's bylaws provide for
indemnification of its directors and officers. In addition, Registrant maintains
a policy of directors' and officers' liability insurance.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
The following exhibits are filed herewith or incorporated herein by
reference as part of this Registration Statement:
<TABLE>
<CAPTION>
EXHIBIT NUMBER DESCRIPTION
-------------- ---------------------------------------------------------------------------------
<S> <C>
3.1 Registrant's Restated Articles of Incorporation (incorporated by reference from
Exhibit 3.1 Registrant's Registration Statement on Form SB-2, Reg. No. 333-61839).
5 Opinion of Ward and Smith, P.A. as to the legality of the securities being
registered (filed herewith).
24.1 Consent of KPMG LLP (filed herewith).
<PAGE>
EXHIBIT NUMBER DESCRIPTION
-------------- --------------------------------------------------------------------------------
24.2 Consent of Ward and Smith, P.A. (contained in its opinion filed
herewith as Exhibit 5).
99.1 Employment Agreement between Arthur H. Keeney, III and the Bank
(incorporated by reference from Exhibit 10.1 to Registrant's Registration
Statement on Form SB-2, Reg. No. 333-61839).
99.2 Omnibus Stock Ownership and Long Term Incentive Plan (incorporated by
reference from Exhibit 10.2 to Registrant's Registration Statement on Form SB-2,
Reg. No. 333-61839).
99.3 Form of Employee Stock Option Agreement (incorporated by reference from
Exhibit 10.3 to Registrant's Registration Statement on Form SB-2, Reg. No.
333-61839).
99.4 Form of Restricted Stock Award Agreement (filed herewith).
</TABLE>
ITEM 9. UNDERTAKINGS
(A) The undersigned Registrant hereby undertakes that it will:
(1) File, during any period in which it offers or sells
securities, a post-effective amendment to this
Registration Statement to:
(i) include any Prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) reflect in the Prospectus any facts or
events which, individually or together,
represent a fundamental change in the
information in the Registration Statement;
and,
(iii) include any additional or changed material
information on the plan of distribution.
(2) For determining liability under the Securities Act,
treat each post-effective amendment as a new
Registration Statement of the securities offered, and
the offering of the securities at that time to be the
initial bona fide offering.
(3) File a post-effective amendment to remove from
registration any of the securities that remain unsold
at the end of the offering.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 Engelhard, State of North Carolina, on April 28,
1999.
ECB BANCORP, INC.
BY:/S/Arthur H. Keeney,III
--------------------------
Arthur H. Keeney,III
President and Chief Executive Officer
<TABLE>
<CAPTION>
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 date indicated.
<S> <C> <C>
SIGNATURE TITLE DATE
- ------------------------------------------------ ---------------- --------------
/S/ Arthur H. Keeney, III President, Chief Executive April 28, 1999
- ------------------------------------------------ Officer and Director ----
Arthur H. Keeney, III (principal executive officer)
/S/ Gary M. Adams Senior Vice President and April 28, 1999
- ------------------------------------------------- Chief Financial Officer -----
Gary M. Adams (principal financial and
accounting officer)
/S/ R. S. Spencer, Jr. Chairman April 28, 1999
- ---------------------------------------------------- -----
R. S. Spencer, Jr.
/S/ George T. Davis, Jr. Director April 28, 1999
------------------------------------------------ -----
George T. Davis, Jr.
/S/ C. Gilbert Gibbs Director April 28, 1999
-------------------------------------------------- -----
C. Gilbert Gibbs
/S/ Gregory C. Gibbs Director April 28, 1999
------------------------------------------------ -----
Gregory C. Gibbs
<PAGE>
/S/ John F. Hughes, Jr. Director April 28, 1999
- -------------------------------------------------- -----
John F. Hughes, Jr.
/S/ J. Bryant Kittrell, III Director April 28, 1999
- ---------------------------------------------------- -----
J. Bryant Kittrell, III
/S/ Joseph T. Lamb, Jr. Director April 28, 1999
- ------------------------------------------------- -----
Joseph T. Lamb, Jr.
/S/ B. Martelle Marshall Director April 28, 1999
- ------------------------------------------------ -----
B. Martelle Marshall
/S/ Robert L. Mitchell Director April 28, 1999
- -------------------------------------------------- -----
Robert L. Mitchell
/S/ Ray M. Spencer Director April 28, 1999
- -------------------------------------------------- -----
Ray M. Spencer
</TABLE>
<PAGE>
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
------ -----------
<TABLE>
<CAPTION>
<S> <C> <C>
3.1 Registrant's Restated Articles of Incorporation (incorporated by reference from
Exhibit 3.1 Registrant's Registration Statement on Form SB-2, Reg. No. 333-61839).
5 Opinion of Ward and Smith, P.A. as to the legality of the securities being
registered (filed herewith).
24.1 Consent of KPMG LLP (filed herewith).
24.2 Consent of Ward and Smith, P.A. (contained in its opinion filed
herewith as Exhibit 5).
99.1 Employment Agreement between Arthur H. Keeney, III and the Bank
(incorporated by reference from Exhibit 10.1 to Registrant's Registration
Statement on Form SB-2, Reg. No. 333-61839).
99.2 Omnibus Stock Ownership and Long Term Incentive Plan (incorporated by
reference from Exhibit 10.2 to Registrant's Registration Statement on Form SB-2,
Reg. No. 333-61839).
99.3 Form of Employee Stock Option Agreement (incorporated by reference from
Exhibit 10.3 to Registrant's Registration Statement on Form SB-2, Reg. No.
333-61839).
99.4 Form of Restricted Stock Award Agreement (filed herewith).
</TABLE>
EXHIBIT 5
[On Ward and Smith, P.A. letterhead]
May 4, 1999
The Board of Directors
ECB Bancorp, Inc.
P. O. Box 337
Engelhard, North Carolina 27824
RE: Our File 78-0376-0032
Gentlemen:
We have acted as counsel to ECB Bancorp, Inc. ("Bancorp") in connection with the
preparation of a Registration Statement on Form S-8 (the "Registration
Statement") which has been filed with the Securities and Exchange Commission
under the Securities Act of 1933, as amended (the "Act"). The Registration
Statement has been filed for purposes of registering under the Act Bancorp's
issuance and sale of up to 159,000 shares of its $3.50 par value common stock
(the "Shares") in connection with stock options, awards and other rights
("Rights") granted pursuant to the terms of Bancorp's Omnibus Stock Ownership
and Long Term Incentive Plan (the "Omnibus Plan") which is filed as an Exhibit
to the Registration Statement.
In connection with rendering our opinion set forth in this letter, we have
examined or relied upon copies of the following documents:
1. the Registration Statement;
2. the Omnibus Plan, and the form of stock option and stock award
agreements evidencing Rights granted thereunder;
3. resolutions adopted by Bancorp's Board of Directors relating to the
Omnibus Plan, Rights granted thereunder and the Registration
Statement; and,
4. such other records and certificates and instruments as we have deemed
necessary for the purposes of the opinion expressed herein.
In delivering this letter, we have assumed (i) the authenticity of all documents
submitted to us as originals and the conformity to the original or certified
copies of all documents submitted to us as conformed or reproduction copies, and
(ii) that the copies of resolutions referenced above are accurate and complete
and evidence
<PAGE>
all actions taken by Bancorp's Board of Directors pertaining to the Omnibus
Plan, Rights granted thereunder and the Registration Statement.
Based upon and subject to the foregoing, as well as the qualifications set forth
below, we are of the opinion as of this date that, (i) when the Registration
Statement has become effective, and upon compliance with the pertinent
provisions of the Act, and (ii) when the Shares have been properly issued in
accordance with terms of the Omnibus Plan and Rights granted thereunder
(including Bancorp's receipt of the specified consideration, if any, for such
Shares and the satisfaction of all other conditions to such issuance), then the
Shares will be legally issued, fully paid and nonassessible.
Our opinion set forth in this letter is expressly limited and qualified as
follows:
(1) Our opinion is limited to matters of North Carolina law and the
federal laws of the United States of America.
(2) Our opinion is limited to the matters expressly stated herein, and
no opinion may be inferred or implied beyond the matters expressly
stated.
(3) Except as otherwise expressly specified herein, our opinion is
limited to matters in existence as of the date hereof, and we
undertake no responsibility to revise or supplement this letter or
our opinion to reflect any change in the law or facts.
We consent to the filing of this opinion as an exhibit to the Registration
Statement.
Yours truly,
/S/ Ward and Smith, P.A.
WARD AND SMITH, P.A.
WLMMAIN\362054.1
EXHIBIT 24.1
The Board of Directors
ECB Bancorp, Inc.
We consent to the use of our report incorporated herein by reference.
/S/ KPMG LLP
Raleigh, North Carolina
May 3, 1999
EXHIBIT 99.4
NORTH CAROLINA
HYDE COUNTY
THIS AGREEMENT, made this the _____ day of _________, ________,
by and between ECB Bancorp, Inc., a corporation organized and existing under and
by virtue of the laws of the State of North Carolina, and having its principal
place of business in Hyde County, North Carolina, (herein "Bancorp") and
___________________________________________ of the County of Hyde, State of
North Carolina, (herein the "Employee").
WITNESSETH:
WHEREAS, the Employee is employed by Bancorp or one of its
subsidiaries in an important capacity;
AND WHEREAS, Bancorp wishes to provide its key employees with
additional incentive and increased opportunity for financial rewards as a part
of its efforts to enhance Bancorp's goals of profitable growth;
AND WHEREAS, Bancorp believes that such actions on its part will
facilitate its goals through encouraging the Employee to acquire a proprietary
or an increased proprietary interest in Bancorp and that Bancorp should assist
the Employee in acquiring such an interest;
AND WHEREAS, Bancorp has granted to the Employee the number of
shares of its stock as is specified in paragraph 1, below, subject to
the terms, restrictions, and conditions specified herein.
NOW THEREFORE, in consideration of the mutual promises herein
contained and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, Bancorp and the Employee agree as follows:
1. The Employee hereby acknowledges that on ______________,
________, (herein the "Grant Date") Bancorp awarded to him ____________ shares
of Bancorp's common stock (herein the "Restricted Stock Award");
2. The Employee hereby acknowledges and agrees that until the
lapse of the restrictions on the said stock as set out in this agreement, he
will not sell, assign, transfer, pledge, encumber, or otherwise dispose of any
of the restricted shares of stock without the written consent of Bancorp. In the
event that any attempt is made to dispose of any restricted shares prior to the
lapse of the restrictions thereon, whether voluntary, involuntary, or otherwise,
or whether by any action or inaction of the Employee or by operation of law,
such shares of stock shall be forfeited and surrendered to Bancorp without any
payment to the Employee;
3. The restrictions on transfer to the said shares of stock
shall lapse according to the following schedule:
a) On the first anniversary of the Grant Date
___________ of the shares of the said stock shall vest in the
Employee and the restrictions shall lapse on __________ of the
shares of stock granted as described herein;
<PAGE>
b) On the second anniversary of the Grant Date
___________ of the shares of the said stock shall vest in the
Employee and the restrictions shall lapse on __________ of the
shares of stock granted as described herein;
c) On the third anniversary of the Grant Date
____________ of the shares of the said stock shall vest in the
Employee and the restrictions shall lapse on __________ of the
shares of stock granted as described herein;
d) On the fourth anniversary of the Grant Date
__________ of the shares of the said stock shall vest in the
Employee and the restrictions shall lapse on __________ of the
shares of stock granted as described herein; and,
e) On the fifth anniversary of the Grant Date
___________ of the shares of the said stock shall vest in the
Employee and the restrictions shall lapse on __________ of the
shares of stock granted as described herein;
4. Unless Bancorp otherwise determines, in the event that the
Employee's employment with Bancorp should terminate for any reason prior to the
fifth anniversary of the Grant Date, the unvested portion of the Employee's
Restricted Stock Award shall be forfeited. All determinations by Bancorp as to
the termination of the Employee's employment shall be conclusive and binding;
5. The Employee hereby agrees that the certificates for the
shares of stock subject to this agreement as well as any certificates of other
evidences of securities received by the Employee pursuant to paragraph 7,
hereof, shall be inscribed with the following legend:
"The shares of ECB Bancorp, Inc. common stock evidenced by this
certificate are subject to the terms and restrictions of the
1998 ECB Bancorp, Inc. Restricted Stock Award Plan; such shares
are subject to forfeiture or cancellation under the terms of
said Plan; and such shares shall not be sold, transferred,
assigned, pledged, encumbered, or otherwise alienated or
hypothecated except pursuant to the provisions of said Plan and
an agreement between ECB Bancorp, Inc. and
________________________________, dated ______________,
________, copies of which are available from ECB Bancorp, Inc.
upon request."
6. Upon lapse of restrictions on the said shares of stock in
accordance with paragraph 3, hereof and tender of the certificates
inscribed as described in paragraph 5, hereof, Bancorp shall cause to
be issued in the Employee's name as soon as is reasonably practical a stock
certificate evidencing such shares of stock, free of the legend described in
paragraph 5, above, and shall cause such stock certificate to be
delivered to the Employee free and clear of such restrictions;
7. The Restricted Stock Award shall include any shares of stock
or other securities which the Employee may receive or be entitled to receive as
a result of a stock split, stock dividend, recapitalization or other subdivision
or consolidation of shares as a result of the merger or consolidation of Bancorp
or sale of assets of Bancorp;
8. Neither the grant of the Restricted Stock Award nor any
provision of this Agreement shall be construed as giving the Employee the right
to be retained in the employ of Bancorp or any subsidiary or otherwise; and,
9. Bancorp or any other employing subsidiary shall have the
right to require that the Employee remit to it, and is authorized to withhold
from any other cash compensation then or thereafter payable to the Employee, an
amount sufficient to satisfy federal, state, and local withholding tax
requirements by reason of the receipt of compensation resulting from the
issuance of restricted shares of stock or the lapse of such restrictions.
<PAGE>
IN TESTIMONY WHEREOF Bancorp has caused this document to be
executed in its corporate name by its duly authorized official and the Employee
has hereunto set his hand, the day and year first above written.
ECB BANCORP, INC.
By:________________________________________
__________________________________________
