<PAGE> 1
U.S. SECURITIES AND EXCHANGE COMMISSION
Washington DC 20549
FORM 10-QSB
(Mark One)
X Quarterly report under Section 13 or 15(d) of the Securities Exchange
- ------ Act of 1934
For the quarterly period ended September 30, 1999
Transition report under Section 13 or 15(d) to the Exchange Act For the
transition period from __________________ to ___________________
- ------
Commission File No. 333-70589
NEW COMMERCE BANCORP
--------------------
(Exact Name of Small Business Issuer as Specified in its Charter)
South Carolina 58-2403844
-------------- ----------
(State of Incorporation) (I.R.S. Employer Identification No.)
One Five Forks Plaza Court, Simpsonville, South Carolina 29681
--------------------------------------------------------------
(Address of Principal Executive Offices)
(864) 288-3337
(Issuer's Telephone Number, Including Area Code)
Not Applicable
--------------
(Former Name, Former Address and Former Fiscal Year, if Changed
Since Last Report)
Check whether the issuer: (1) filed all reports required to be filed by
Section 13 or 15(d) of the Exchange Act during the past 12 months (or for such
shorter period that the registrant was required to file such reports), and (2)
has been subject to such filing requirements for the past 90 days. Yes [ X ]
No [ ]
State the number of shares outstanding of each of the issuer's classes
of common equity, as of the latest practicable date:
One million shares of common stock, par value $.01 per share, were
issued and outstanding as of September 30,1999.
Transitional Small Business Disclosure Format (check one): Yes [ ]
No [ X ]
<PAGE> 2
NEW COMMERCE BANCORP
AND SUBSIDIARY
CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
December 31, 1998
September 30, (Development
1999 Stage Enterprise)
(Unaudited) (Audited)
------------- -----------------
<S> <C> <C>
ASSETS
Cash and due from banks $ 519,604 $ 1,762,031
Federal funds sold 5,398,120 --
Securities, available for sale 3,198,390 --
Federal Reserve Bank stock 210,000 --
Federal Home Loan Bank stock 38,200
Loans - net 11,928,029 --
Property - at cost, less accumulated
depreciation 1,887,328 8,218
Real estate options -- 39,800
Deferred stock offering costs -- 143,427
Other assets 342,695 --
------------ -----------
Total assets $ 23,522,366 $ 1,953,476
============ ===========
LIABILITIES AND SHAREHOLDERS' EQUITY
Deposits $ 14,232,095 $--
Accrued expenses and other liabilities 115,368 --
------------ -----------
Total liabilities 14,347,463 --
------------ -----------
Shareholders' Equity
Common stock - $.01par value, authorized
10,000,000 shares, 1,000,000 and
200,000 shares issued and outstanding at September
30,1999 and December 31, 1998, respectively 10,000 2,000
Additional paid-in capital 9,764,550 1,998,000
Retained earnings (deficit) (588,779) (46,524)
Net unrealized holding loss on securities
available for sale (10,868) --
------------ -----------
Total shareholders' equity 9,174,903 1,953,476
------------ -----------
Total liabilities and shareholders' equity $ 23,522,366 $ 1,953,476
============ ===========
</TABLE>
See Notes to Consolidated Financial Statements which are an integral part of
these statements.
2
<PAGE> 3
NEW COMMERCE BANCORP
AND SUBSIDIARY
CONSOLIDATED STATEMENTS OF INCOME (LOSS)
(UNAUDITED)
<TABLE>
<CAPTION>
For the three For the nine
Months ended Months ended
September 30, 1999 September 30, 1999
------------------ ------------------
<S> <C> <C>
INTEREST INCOME
Loans (including fees) $ 205,757 $ 216,193
Investment securities 35,500 76,679
Federal funds sold 47,279 73,228
------------ -----------
Total interest income 288,536 366,100
------------ -----------
INTEREST EXPENSE
Deposits 82,257 91,718
------------ -----------
NET INTEREST INCOME 206,279 274,382
Provision for Possible Loan Losses 83,561 106,190
------------ -----------
NET INTEREST INCOME AFTER
PROVISION FOR LOAN LOSSES 122,718 168,192
NONINTEREST INCOME
Service charges 2,454 3,038
Other 51,217 54,434
------------ -----------
Total noninterest income 53,671 57,472
------------ -----------
TOTAL INCOME 176,389 225,664
NONINTEREST EXPENSES
Salaries and employee benefits 228,946 559,851
Occupancy, office and equipment 27,433 59,943
Data processing 41,106 55,836
Insurance 1,572 3,003
Postage and supplies 11,340 48,810
Marketing 43,481 106,967
Other 28,642 178,795
------------ -----------
Total noninterest expense 382,520 1,013,205
------------ -----------
LOSS BEFORE INCOME TAX BENEFIT (206,131) (787,541)
INCOME TAX BENEFIT (60,447) (245,286)
------------ -----------
NET LOSS $ (145,684) $ (542,255)
============ ===========
Net loss Per Common Share $ (0.15) $ (0.54)
============ ===========
</TABLE>
See Notes to Consolidated Financial Statements which are an integral part of
these statements.
3
<PAGE> 4
NEW COMMERCE BANCORP
AND SUBSIDIARY
CONSOLIDATED STATEMENTS OF CHANGES IN SHAREHOLDERS' EQUITY
FOR THE NINE MONTHS ENDED SEPTEMBER 30, 1999
(UNAUDITED)
<TABLE>
<CAPTION>
Common Stock Accumulated
Additional Retained Other Total
paid-in Earnings comprehensive Shareholder's
Shares Amount capital (Deficit) income Equity
------ ------ ------- --------- ------ ------
<S> <C> <C> <C> <C> <C> <C>
Balance, December 31, 1998 200,000 $ 2,000 $ 1,998,000 $ (46,524) $ -- $ 1,953,476
Net loss -- -- -- (542,255) -- (542,255)
Other comprehensive income (loss),
net of tax:
Net change in unrealized holding losses
on securities available for sale -- -- -- -- (10,868) (10,868)
-------- -----------
Comprehensive income -- -- -- -- (10,868) 1,400,353
Issuance of common stock 800,000 8,000 7,992,000 -- -- 8,000,000
Stock offering expenses -- -- (225,450) -- -- (225,450)
--------- ------- ----------- --------- -------- -----------
Balance, September 30, 1999 1,000,000 $10,000 $ 9,764,550 $(588,779) $(10,868) $ 9,174,903
--------- ------- ----------- --------- -------- -----------
</TABLE>
See Notes to Consolidated Financial Statements which are an integral part of
these statements.
4
<PAGE> 5
NEW COMMERCE BANCORP
AND SUBSIDIARY
CONSOLIDATED STATEMENT OF CASH FLOWS
FOR THE NINE MONTHS ENDED SEPTEMBER 30, 1999
(UNAUDITED)
<TABLE>
OPERATING ACTIVITIES
<S> <C>
Net loss $ (542,255)
Adjustments to reconcile net loss to net cash
used for operating activities
Depreciation 12,000
Provision for possible loan losses 106,190
Deferred income tax benefit (245,286)
Increase in other assets (97,409)
Increase in accrued expenses and other liabilities 115,368
------------
Net cash used for operating activities (651,392)
------------
INVESTING ACTIVITIES
Net increase in federal funds sold (5,398,120)
Purchase of investment securities (3,209,258)
Net increase in loans (12,034,219)
Capital expenditures for property (1,891,110)
Increase in Federal Reserve Bank capital stock (210,000)
Increase in FHLB capital stock (38,200)
Decrease in real estate options 39,800
------------
Net cash used for investing activities (22,741,107)
------------
FINANCING ACTIVITIES
Net increase in deposits 14,232,095
Issuance of capital stock, net of stock offering costs 7,917,977
------------
Net cash provided by financing activities 22,150,072
------------
NET DECREASE IN CASH AND DUE FROM BANKS (1,242,427)
------------
Cash and Due From Banks, Beginning of Year 1,762,031
------------
Cash and Due From Banks, End of Year $ 519,604
============
CASH PAID FOR
Interest $ 66,891
============
Income Taxes $ --
============
</TABLE>
See Notes to Consolidated Financial Statements which are an integral part of
these statements.
5
<PAGE> 6
NEW COMMERCE BANCORP
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE 1 - NATURE OF BUSINESS AND BASIS OF PRESENTATION
Business activity and organization
New Commerce Bancorp (the "Company") was incorporated to operate as a
bank holding company pursuant to the Federal Bank Holding Company Act of 1956
and the South Carolina Bank Holding Company Act, and to purchase 100% of the
issued and outstanding stock of New Commerce Bank (the "Bank"), an association
organized under the laws of the United States, to conduct a general banking
business in Simpsonville, South Carolina.
Since inception through May 17, 1999, the Company had engaged in
organizational and pre-opening activities necessary to obtain regulatory
approvals and to prepare its subsidiary, the Bank, to commence business as a
financial institution. The Bank opened for business on May 17, 1999. The Bank is
primarily engaged in the business of accepting demand deposits and savings
insured by the Federal Deposit Insurance Corporation, and providing commercial,
consumer and mortgage loans to the general public.
The Company completed its stock offering on June 30, 1999 and sold the
maximum of 800,000 shares of its common stock at $10 per share. We raised
$7,774,550 in the offering representing $8,000,000 in proceeds, less sales agent
commissions of $144,195 and stock offering expenses of $81,255. This amount is
in addition to the $2,000,000 we previously raised through the sale of 200,000
shares of common stock sold to the organizers of the Company at $10.00 per
share. The Company capitalized the Bank with $8,250,000 of the net proceeds of
the offering and the sale of shares to the organizers. The remaining net
offering proceeds are being used to pay organization expenses of the Company and
to provide general working capital, including additional future capital for
investment in the Bank, if needed. We believe this amount will be sufficient to
fund the activities of the Company and the Bank in their initial stages of
operations, and that the Bank will generate sufficient income from operations to
fund its activities on an ongoing basis. However, we cannot be sure that either
the Bank or the Company will achieve any particular level of profitability or
that we will not need additional capital in the future.
Basis of Presentation
The accompanying unaudited financial statements have been prepared in
accordance with generally accepted accounting principles for interim financial
information and with the instructions to Form 10-QSB. Accordingly, they do not
include all of the information and footnotes required by generally accepted
accounting principles for complete financial statements. In the opinion of
management, all adjustments (consisting of normal recurring accruals) considered
necessary for a fair presentation have been included. Operating results for the
nine months ended September 30, 1999 are not necessarily indicative of the
results that may be expected for the year ending December 31, 1999. For further
information, refer to the consolidated financial statements and footnotes
thereto included in the Company's Registration Statement on Form SB-2
(Registration Number 333-70589) as filed with and declared effective by the
Securities and Exchange Commission.
Until the Bank opened for business on May 17, 1999, the Company was
accounted for as a development stage enterprise as defined by Statement of
Financial Accounting Standards No. 7,
6
<PAGE> 7
"Accounting and Reporting by Development Stage Enterprises," as the Company
devoted substantially all of its efforts to establishing a new business. When
the Bank opened, certain reclassifications and adjustments were made to the
financial statements to reflect that the Company is now accounted for as an
operating company.
NOTE 2 - STOCK OPTION PLAN
On August 26, 1999, the Company adopted a stock incentive plan for the
benefit of the directors, officers, and employees of the Company and the Bank.
Under the plan, the Company may grant up to 150,000 options at an option price
per share not less than the fair market value on the date of grant. On August
26, 1999, the Company granted 135,000 stock options that expire 10 years from
the grant date and are subject to various vesting schedules to directors,
officers and employees. The Company has adopted Statement of Financial
Accounting Standards No. 123, "Accounting for Stock-Based Compensation".
NOTE 3 - NET LOSS PER COMMON SHARE
SFAS No. 128, "Earnings per Share" requires that the Company present
basic and diluted net income per share. Net loss per common share is calculated
by dividing net loss by the weighted average number of common shares outstanding
for each period presented. The weighted average number of common shares
outstanding for basic net loss per common share was 1,000,000 for the nine
months ended September 30, 1999 and 1,000,000 for the three months ended
September 30, 1999. The Company did not have any common stock equivalents during
the nine months ended September 30, 1999. Stock options outstanding had no
effect on the computation of weighted average shares outstanding.
NOTE 4 - FASB ACCOUNTING STANDARDS
In June 1998, the FASB issued SFAS 133, "Accounting for Derivative
Instrument and Hedging Activities". All derivatives are to be measured at fair
value in the balance sheets as assets or liabilities. This statement's effective
date was delayed by the issuance of SFAS 137 ("Accounting for Derivative
Instruments and Hedging Activities-Deferral of this Effective Date of FASB
Statement No. 1343 - an amendment of the of the FASB Statement No. 133) and is
effective for fiscal years and quarters beginning after June 15, 2000. Because
the Company does not use derivative transactions at this time, management does
not expect this standard to have a significant effect on the Company.
In October 1998, the FASB issued SFAS 134, "Accounting for
Mortgage-Backed Securities Retained after the Securitization of Mortgage Loans
Held for sale by a Mortgage Banking Enterprise. The new statement establishes
accounting and reporting standards for certain activities of mortgage banking
enterprises. The statement is effective for the first quarter beginning after
December 15, 1998. The statement will have no effect on the financial statements
of the Company.
In February 1999, the FASB issued SFAS 135, "Rescission of FASB
Statement No. 75 and technical Corrections". The SFAS provides technical
corrections for previously issued statements and rescinds SFAS 75, which
provides guidance related to pension plans of sate and local governmental units.
SFAS 135 is effective for fiscal years ending after February 15, 1999. This
statement will have no effect on the financial statements of the Company.
7
<PAGE> 8
In June 1999, the FASB issued SFAS 136, "Transfers of assets to a
Not-for-Profit Organization or Charitable Trust that Raises or Holds
Contributions for Others" is effective for fiscal periods beginning after
December 15, 1999. This statement establishes standards for transactions in
which an entity makes a contribution by transferring assets to a not-for-profit
organization or a charitable trust and then requires these contributions to be
used in specified manner. This statement will have no effect on the financial
statements of the Company.
8
<PAGE> 9
Part 1 - FINANCIAL INFORMATION
Item 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS.
The following discussion contains forward-looking statements within the meaning
of the Private Securities Litigation Reform Act of 1995, such as statements
relating to financial results and plans for future business development
activities, and is thus prospective. Such forward-looking statements are subject
to risks, uncertainties, and other factors which could cause actual results to
differ materially from future results expressed or implied by such
forward-looking statements. These statements appear in a number of places in
this report and include all statements that are not statements of historical
fact regarding our intent, belief, or expectations. These forward-looking
statements are not guarantees of future performance and actual results may
differ materially from those projected in the forward-looking statements.
Potential risks and uncertainties include, but are not limited to, our brief
operating history, our ability to manage rapid growth, general economic
conditions, competition, interest rate sensitivity, and exposure to regulatory
and legislative changes. Additional risks are discussed in detail in our filings
with the Securities and Exchange Commission, including the "Risk Factors"
section in our Registration Statement on Form SB-2 (Registration Number
333-70589) as filed with and declared effective by the Securities and Exchange
Commission.
Balance Sheet Review
At September 30, 1999, the Company had total assets of $23,522,000 consisting
principally of net loans of $11,928,000, federal funds sold of $5,398,000,
securities of $3,198,000 and property, at cost less accumulated depreciation of
$1,887,000. Liabilities at September 30, 1999 totaled $14,347,000, consisting of
deposits of $14,232,000 and accrued expenses and other liabilities of $115,000.
At September 30, 1999, shareholders' equity was $9,175,000. The Company's
liquidity ratio (cash and due from banks, federal funds sold and investment
securities as a percentage of total assets) was 38.76%.
Results of Operations
The Company had a net loss of $542,255, or $.54 per share for the nine months
ended September 30, 1999. These losses included expenses incurred in connection
with activities related to the organization of the Company and pre-opening
activities of the Bank. These activities included (without limitation) the
preparation and filing of an application with the OCC to charter the Bank, the
preparation and filing of an application with the FDIC to obtain insurance of
the deposits of the Bank, responding to questions and providing additional
information to the OCC and the FDIC in connection with the application process,
the selling of the Company's common stock in the offering, meetings and
discussions among various organizers regarding application information, target
markets, and capitalization issues, salaries and benefits, and planning and
organizing for the opening of the Bank. With respect to the Bank, these
activities included completing all required steps for final approval from the
OCC for the Bank to open for business, hiring qualified personnel to work in the
Bank, conducting public relations activities on behalf of the Bank, developing
prospective business contacts for the Bank and taking other actions necessary
for a successful bank opening. Through September 30, 1999, the Company incurred
organization and preopening costs of approximately $515,000. These costs were
expensed when incurred in accordance with SOP 98-5, "Reporting on the Costs of
Start-Up Activities". Principal banking operations commenced on May 17, 1999.
9
<PAGE> 10
Net interest income, the amount by which interest earned on assets exceeds the
amount of interest expense paid or accrued on interest-bearing liabilities, is
the largest component of the Company's income. Net interest income totaled
$274,382 for the nine months ended September 30, 1999. The average yield on
loans (including fees) for the nine months ended September 30, 1999 was 10.24 %,
while the average yield on securities was 6.19 %.
Noninterest income for the nine months ended September 30, 1999 was $57,472.
Service charges on deposit accounts totaled $3,038. Other fee income from our
Private Business Manager program and from brokered mortgage loan origination fee
income totaled $33,783 and $14,713, respectively.
Operating expenses for the period were $1,013,205 and consisted primarily of
salaries and benefits of $559,851 and marketing expenses of $106,967.
The provision for loan losses and the reserve balance amounted to $106,190 at
September 30, 1999. This reserve balance represents .88 % of gross loans.
Management's judgment as to the adequacy of the allowance is based on a number
of assumptions about future events that it believes is reasonable, but which may
or may not be accurate. There can be no assurance that charge-offs in future
periods will not exceed the allowance for loan losses. The Company had no
nonperforming loans or net charge-offs since commencing operations.
Year 2000 Readiness
Like many financial institutions, we rely on computers to conduct our
business and information systems processing. Industry experts are concerned that
on January 1, 2000, some computers may not be able to interpret the new year
properly, causing computer malfunctions. As described in more detail below, we
have developed and are executing a plan to try to minimize the risk that our
computer and telecommunication systems will not have these year 2000 problems,
and we currently do not anticipate that the year 2000 issue will materially
impact our business or operations. We rely on third party vendors to supply our
computer and telecommunication systems and other office equipment, and we also
rely on a third party to process our data and account information. As a new
bank, we chose only those vendors who demonstrated readiness for the year 2000,
and therefore, we will not have to address problems in older systems. We will
continue to monitor this situation up to and through the century change.
Although we believe we have addressed the year 2000 issue, we cannot be entirely
sure that the year 2000 will not have any adverse effect on the Bank.
We have prepared a comprehensive year 2000 plan to monitor and insure
the year 2000 compliance of our third party vendors of computer and
telecommunication systems, data processing services and other office equipment.
We budgeted $12,000 for the execution of this plan. All of our systems are in
place and we fully believe year 2000 compliant. The plan calls for us to
continue to monitor the situation through the end of the year and beyond. We are
executing this plan under the supervision of our chief financial officer, with
oversight from our board of directors. Under the plan, we have investigated the
year 2000 readiness of each of our vendors and required comprehensive year 2000
warranties from each vendor. We have reviewed year 2000 testing completed by
each vendor, and tested our own systems if necessary and reasonable. Our
investigation of each vendor primarily consisted of requesting and reviewing its
year 2000 test results.
Jack Henry & Associates, Inc. provides our mission critical computer
software and data processing services. Jack Henry is a well-established company
and provides computer systems and data processing services to hundreds of
financial institutions throughout the United States. Jack Henry has tested its
systems for year 2000 issues. Rather than test all of its customers
individually, Jack Henry,
10
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like other vendors tested its systems on selected financial institutions which
run its systems under a variety of conditions and configurations. The purpose of
this selective testing is to avoid the prohibitive cost of testing every
installed system, while still providing a high level of comfort that its systems
will perform under all conditions. Jack Henry has completed testing of the
systems we are using. We have reviewed the methods and results of this testing
and are satisfied that the tested systems are similar to ours and that the Jack
Henry systems will function as intended on all critical year 2000 related dates.
Our year 2000 plan extends to our other less critical vendors as well,
including our vendors for ATM hardware, telephone systems, credit card
processors, and suppliers of office equipment. Under our plan, we have reviewed
assurances and warranties of all of these vendors, and are satisfied that all
systems provided are year 2000 compliant. Based on our review of our vendor's
systems and year 2000 testing results to date, we do not believe that they will
have any significant year 2000 problems. The Office of the Comptroller of the
Currency and the FDIC are also monitoring the year 2000 readiness of the banking
industry.
Our agreements with each of our vendors, including Jack Henry, include
contractual assurances and warranties regarding year 2000 compliance. Some of
these warranties are limited by disclaimers of liability which specifically
exclude special, incidental, indirect and consequential damages. These
limitations could limit our ability to obtain recourse against a vendor who is
not year 2000 compliant by excluding damages for things such as lost profits and
customer lawsuits. We have developed contingency plans, including our business
resumption contingency plan, in case year 2000 issues do arise. Based on the
information currently available, we believe that we will be able to continue to
operate the business if one or more our vendors experience unanticipated year
2000 problems, although we cannot be sure.
Our customers may also have year 2000 issues. Such issues could disrupt
certain businesses with high year 2000 risk and affect their deposit balances
and their ability to repay their loans. We are reviewing customer exposure and
assessing year 2000 readiness through year 2000 surveys. For those customers
with high credit risk and high potential exposure, we may require more
substantial proof of year 2000 compliance. Although these surveys are helpful,
it is very difficult for us to accurately assess the year 2000 readiness of any
particular borrower or depositor. Additionally, there may be a higher than usual
demand for liquidity immediately prior to the century change due to deposit
withdrawals by customers concerned about year 2000 issues. To address this
possible demand, we have developed a liquidity plan to included assessment of
cash needs and plans to have a higher percentage of investments in readily
accessible federal funds. We have federal funds lines of credit available from
two major correspondent banks and have obtained approval to use the Federal
Reserve Bank's discount window.
Proposed Legislation
On November 4, 1999, the U.S. Senate and House of Representatives each passed
the Gramm-Leach-Bliley Act, previously known as the Financial Services
Modernization Act of 1999. The Act is expected to be signed into law by
President Clinton in early November 1999. Among other things, the Act repeals
the restrictions on banks affiliating with securities firms contained in
sections 20 and 32 of the Glass-Steagall Act. The Act also creates a new
"financial holding company" under the Bank Holding Company Act, which will
permit holding companies to engage in a statutorily provided list of financial
activities, including insurance and securities underwriting and agency
activities, merchant banking, and insurance company portfolio investment
activities. The Act also authorizes activities that are "complementary" to
financial activities. The Act is intended to grant to community banks certain
powers as a matter of right that larger institutions have accumulated on an ad
hoc basis. Nevertheless, the Act may have the result of increasing the amount of
competition that the Company faces from larger
11
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institutions and other types of companies. In fact, it is not possible to
predict the full effect that the Act will have on the Company.
12
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PART II
OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS.
There are no material pending legal proceedings to which the Company
or any of its subsidiaries is party or of which any of their property is the
subject.
ITEM 2. CHANGES IN SECURITIES.
On June 30, 1999, the Company completed its initial public offering of
its $0.01 par value common stock pursuant to a registration statement on form
SB-2 which the Company filed with the SEC on January 14, 1999, and which the SEC
declared effective on March 19, 1999. In the offering, the Company sold the
maximum of 800,000 shares of common stock at a purchase price of $10.00 per
share. The Company raised a gross amount of $8,000,000 in the offering, less
sales agent commissions of $144,195 and stock offering expenses of $81,255, for
a net proceeds to the Company from the offering of $7,774,550. This was in
addition to the $2,000,000 which the Company previously raised through a sale of
200,000 shares of common stock to its organizers at $10.00 per share.
The Company capitalized the Bank with a total of $8,250,000 from the
net proceeds of the offering and the sale of securities to its organizers. These
funds are being used by the Bank to fund the Bank's investment and lending
operations, for leasing the Bank's temporary facilities, for purchase of the
Bank's permanent site, for construction of the Bank's permanent offices, for
leasing and purchasing furnishings and equipment for the operations of the Bank,
and for other general working purposes.
The remaining net proceeds have been used to pay the organization
expenses of the Company and to provide general working capital, including
additional future capital for investment in the Bank, if needed. The use of
proceeds to date is not materially different from the anticipated use of
proceeds described in the prospectus which was a part of the Company's
registration statement. Other than salaries paid in the normal course of
business, none of the proceeds of the offering were used to pay any amount to
the officers or directors of the Company or the Bank or their affiliates.
ITEM 3. DEFAULTS UPON SENIOR SECURITIES.
Not applicable.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS.
There were no matters submitted to security holders for a vote during
the three months ended September 30, 1999.
ITEM 5. OTHER INFORMATION.
On August 26, 1999, the Company adopted a stock incentive plan for
the benefit of the directors, officers, and employees of the Company and the
Bank. Under the plan, the Company may grant up to 150,000 options at an option
price per share not less than the fair market value on the date of grant. On
August 26, 1999, the Company granted135,000 stock options that expire 10 years
from the grant date and are subject to various vesting schedules to directors,
officers and employees. The
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<PAGE> 14
Company has adopted Statement of Financial Accounting Standards No. 123,
"Accounting for Stock-Based Compensation".
<TABLE>
<CAPTION>
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K.
<S> <C>
(a) Exhibits.
3.1. *Articles of Incorporation, as amended
3.2. *Bylaws
4.1. *See Exhibits 3.1 and 3.2 for provisions in New Commerce
BanCorp's Articles of Incorporation and Bylaws defining the
rights of holders of the common stock
4.2. *Form of certificate of common stock
10.1. *Employment Agreement dated August 1, 1998 between New Commerce BanCorp and James D. Stewart
10.2. *Agreement to Buy and Sell dated January 4, 1999, between New Commerce BanCorp, as buyer, and The Bess G.
Kirkland Trust, as seller
10.3. *Agreement to Buy and Sell dated September 30, 1998 between New Commerce BanCorp, as buyer, and Stephen M. Young
and Lewis P. Young, Trustees of Wilbert Burial Vault, Inc., Profit Sharing Plan, as seller
10.4. *Agreement to Buy and Sell dated October 26, 1998, between New
Commerce BanCorp, as buyer, and Hawkins Development
Corporation, as seller
10.5. *Sales Agency Agreement dated December 11, 1998 between New Commerce BanCorp and J.C. Bradford & Co.
10.6. *Escrow Agreement dated October 27, 1998 between New Commerce BanCorp and The Bankers Bank
10.7. *Data Processing Services Agreement and Contract Modification
dated December 1, 1998 between New Commerce BanCorp and Jack
Henry & Associates, Inc.
10.8. *Form of Stock Warrant Agreement
10.9. *Employment Agreement dated January 29, 1999 between New Commerce BanCorp and Paula S. King
10.10 New Commerce Bancorp 1999 Stock Incentive Plan
27.1. Financial Data Schedule (for electronic filing purposes)
</TABLE>
- ------------------------
*Incorporated by reference to the Company's Registration Statement on Form SB-2,
File No. 333-70589.
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(b) Reports on Form 8-K.
There were no reports on Form 8-K filed by the Company during the
quarter ended June 30, 1999.
15
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SIGNATURES
In accordance with Section 13 or 15(d) of the Securities Exchange Act
of 1934 (the "Exchange Act"), the registrant caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized.
NEW COMMERCE BANCORP
Date: November 15, 1999 By: /s/ James D. Stewart
--------------------------------
James D. Stewart
President and Chief Executive officer
Date: November 15 1999 By: /s/ Paula S. King
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Paula S. King
Senior Vice President and
Chief Financial Officer
16
<PAGE> 17
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION
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<S> <C>
3.1. *Articles of Incorporation, as amended
3.2. *Bylaws
4.1. *See Exhibits 3.1 and 3.2 for provisions in New Commerce
BanCorp's Articles of Incorporation and Bylaws defining the
rights of holders of the common stock
4.2. *Form of certificate of common stock
10.1. *Employment Agreement dated August 1, 1998 between New Commerce BanCorp and James D. Stewart
10.2. *Agreement to Buy and Sell dated January 4, 1999, between New Commerce BanCorp, as buyer, and The Bess G.
Kirkland Trust, as seller
10.3. *Agreement to Buy and Sell dated September 30, 1998 between New Commerce BanCorp, as buyer, and Stephen M. Young
and Lewis P. Young, Trustees of Wilbert Burial Vault, Inc., Profit Sharing Plan, seller
10.4. *Agreement to Buy and Sell dated October 26, 1998, between New Commerce BanCorp, as buyer, and Hawkins
Development Corporation, as seller
10.5. *Sales Agency Agreement dated December 11, 1998 between New Commerce BanCorp and J.C. Bradford & Co.
10.6. *Escrow Agreement dated October 27, 1998 between New Commerce BanCorp and The Bankers Bank
10.7. *Data Processing Services Agreement and Contract Modification dated December 1, 1998 between New Commerce BanCorp
and Jack Henry & Associates, Inc.
10.8. *Form of Stock Warrant Agreement
10.9. *Employment Agreement dated January 29, 1999 between New Commerce BanCorp and Paula S. King
10.10 New Commerce Bancorp 1999 stock Incentive Plan
27.1. Financial Data Schedule (for electronic filing purposes)
</TABLE>
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*Incorporated by reference to the Company's Registration Statement on Form SB-2,
File No. 333-70589
17
<PAGE> 1
EXHIBIT 10.10
NEW COMMERCE BANCORP
1999 STOCK INCENTIVE PLAN
<PAGE> 2
NEW COMMERCE BANCORP
1999 STOCK INCENTIVE PLAN
TABLE OF CONTENTS
<TABLE>
<S> <C>
ARTICLE I DEFINITIONS............................................................................................1
ARTICLE II THE PLAN 4
2.1 NAME....................................................................................................4
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2.2 PURPOSE.................................................................................................4
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2.3 EFFECTIVE DATE..........................................................................................4
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ARTICLE III PARTICIPANTS....................................................................................5
ARTICLE IV ADMINISTRATION.........................................................................................5
4.1 DUTIES AND POWERS OF THE COMMITTEE......................................................................5
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4.2 INTERPRETATION; RULES...................................................................................5
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4.3 NO LIABILITY............................................................................................6
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4.4 MAJORITY RULE...........................................................................................6
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4.5 COMPANY ASSISTANCE......................................................................................6
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ARTICLE V SHARES OF STOCK SUBJECT TO PLAN........................................................................6
5.1 LIMITATIONS.............................................................................................6
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5.2 ANTIDILUTION............................................................................................7
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ARTICLE VI OPTIONS 8
6.1 TYPES OF OPTIONS GRANTED................................................................................8
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6.2 OPTION GRANT AND AGREEMENT..............................................................................8
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6.3 OPTIONEE LIMITATIONS....................................................................................8
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6.4 $100,000 LIMITATION.....................................................................................9
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6.5 EXERCISE PRICE..........................................................................................9
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6.6 EXERCISE PERIOD.........................................................................................9
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6.7 OPTION EXERCISE........................................................................................10
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6.8 RELOAD OPTIONS.........................................................................................11
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6.9 NONTRANSFERABILITY OF OPTION...........................................................................11
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6.10 TERMINATION OF EMPLOYMENT OR SERVICE...................................................................12
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6.11 EMPLOYMENT RIGHTS......................................................................................12
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6.12 CERTAIN SUCCESSOR OPTIONS..............................................................................12
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6.13 EFFECT OF A CORPORATE TRANSACTION......................................................................12
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6.14 FORFEITURE BY ORDER OF REGULATORY AGENCY...............................................................12
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ARTICLE VII STOCK CERTIFICATES...................................................................................12
ARTICLE VIII TERMINATION AND AMENDMENT...........................................................................13
8.1 TERMINATION AND AMENDMENT..............................................................................13
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8.2 EFFECT ON GRANTEE'S RIGHTS.............................................................................13
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</TABLE>
<PAGE> 3
<TABLE>
<S> <C>
ARTICLE IX RELATIONSHIP TO OTHER COMPENSATION PLANS..............................................................14
ARTICLE X MISCELLANEOUS..........................................................................................14
10.1 REPLACEMENT OR AMENDED GRANTS..........................................................................14
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10.2 FORFEITURE FOR COMPETITION.............................................................................14
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10.3 LEAVE OF ABSENCE.......................................................................................14
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10.4 PLAN BINDING ON SUCCESSORS.............................................................................15
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10.5 HEADINGS, ETC., NO PART OF PLAN........................................................................15
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10.6 SECTION 16 COMPLIANCE..................................................................................15
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EXHIBIT A TO NEW COMMERCE BANCORP 1999 STOCK INCENTIVE PLAN - FORM OF STOCK OPTION AGREEMENT......................1
SCHEDULE A.....................................................................................................6
SCHEDULE B.....................................................................................................8
</TABLE>
<PAGE> 4
NEW COMMERCE BANCORP
1999 STOCK INCENTIVE PLAN
ARTICLE I
DEFINITIONS
As used herein, the following terms have the following meanings unless
the context clearly indicates to the contrary:
"Board" shall mean the Board of Directors of the Company.
"Cause" (i) with respect to the Company or any subsidiary which
employs the recipient of an Option (the "recipient") or for which such
recipient primarily performs services, the commission by the recipient of an
act of fraud, embezzlement, theft or proven dishonesty, or any other illegal
act or practice (whether or not resulting in criminal prosecution or
conviction), or any act or practice which the Committee shall, in good faith,
deem to have resulted in the recipient's becoming unbondable under the
Company's or the subsidiary's fidelity bond; (ii) the willful engaging by the
recipient in misconduct which is deemed by the Committee, in good faith, to be
materially injurious to the Company or any subsidiary, monetarily or otherwise,
including, but not limited, improperly disclosing trade secrets or other
confidential or sensitive business information and data about the Company or
any subsidiaries and competing with the Company or its subsidiaries, or
soliciting employees, consultants or customers of the Company in violation of
law or any employment or other agreement to which the recipient is a party; or
(iii) the willful and continued failure or habitual neglect by the recipient to
perform his or her duties with the Company or the subsidiary substantially in
accordance with the operating and personnel policies and procedures of the
Company or the subsidiary generally applicable to all their employees. For
purposes of this Plan, no act or failure to act by the recipient shall be
deemed be "willful" unless done or omitted to be done by recipient not in good
faith and without reasonable belief that the recipient's action or omission was
in the best interest of the Company and/or the subsidiary. Notwithstanding the
foregoing, if the recipient has entered into an employment agreement that is
binding as of the date of employment termination, and if such employment
agreement defines "Cause," then the definition of "Cause" in such agreement
shall apply to the recipient in this Plan. "Cause" under either (i), (ii) or
(iii) shall be determined by the Committee.
"Code" shall mean the United States Internal Revenue Code of 1986,
including effective date and transition rules (whether or not codified). Any
reference herein to a specific section of the Code shall be deemed to include a
reference to any corresponding provision of future law.
"Committee" shall mean a committee of at least two Directors appointed
from time to time by the Board, having the duties and authority set forth
herein in addition to any other authority granted by the Board. In selecting
the Committee, the Board shall consider (i) the benefits under Section 162(m)
of the Code of having a Committee composed of "outside directors" (as that term
is defined in the Code) for certain grants of Options to highly compensated
executives, and (ii) the benefits under Rule 16b-3 of having a Committee
composed of either the entire Board or a Committee of at least two Directors
who are Non-Employee Directors for Options granted to or held by any Section 16
Insider. At any time that the Board shall not have appointed a committee as
described above, any reference herein to the Committee shall mean the Board.
<PAGE> 5
"Company" shall mean New Commerce Bancorp, a South Carolina
corporation.
"Corporate Transaction" shall mean the occurrence of any of the
following events:
(i) a merger or consolidation in which securities
possessing more than 50% of the total combined
voting power of the Company's outstanding securities
are transferred to a person or persons different
from the persons holding those securities
immediately prior to such transaction;
(ii) the sale, transfer or other disposition of all or substantially
all of the Company's assets in complete liquidation or dissolution of the
Company; or
(iii) the grant of any bank regulatory approval (or notice
of no disapproval) for permission to acquire control
of the Company or any of its banking subsidiaries.
"Director" shall mean a member of the Board and any person who is an
advisory or honorary director of the Company if such person is considered a
director for the purposes of Section 16 of the Exchange Act, as determined by
reference to such Section 16 and to the rules, regulations, judicial decisions,
and interpretative or "no-action" positions with respect thereto of the
Securities and Exchange Commission, as the same may be in effect or set forth
from time to time.
"Employee" shall mean a person who constitutes an employee of the
Company as such term is defined in the instructions to the Form S-8
Registration Statement under the Securities Act of 1933, and also includes
non-employees to whom an offer of employment has been extended.
"Exchange Act" shall mean the Securities Exchange Act of 1934. Any
reference herein to a specific section of the Exchange Act shall be deemed to
include a reference to any corresponding provision of future law.
"Exercise Price" shall mean the price at which an Optionee may
purchase a share of Stock under a Stock Option Agreement.
"Fair Market Value" on any date shall mean (i) the closing sales price
of the Stock, regular way, on such date on the national securities exchange
having the greatest volume of trading in the Stock during the thirty-day period
preceding the day the value is to be determined or, if such exchange was not
open for trading on such date, the next preceding date on which it was open;
(ii) if the Stock is not traded on any national securities exchange, the
average of the closing high bid and low asked prices of the Stock on the
over-the-counter market on the day such value is to be determined, or in the
absence of closing bids on such day, the closing bids on the next preceding day
on which there were bids; or (iii) if the Stock also is not traded on the
over-the-counter market, the fair market value as determined in good faith by
the Board or the Committee based on such relevant facts as may be available to
the Board, which may include opinions of independent experts, the price at
which recent sales have been made, the book value of the Stock, and the
Company's current and future earnings.
<PAGE> 6
"Incentive Stock Option" shall mean an option to purchase any stock of
the Company, which complies with and is subject to the terms, limitations and
conditions of Section 422 of the Code and any regulations promulgated with
respect thereto.
"Non-Employee Director" shall have the meaning set forth in Rule 16b-3
under the Exchange Act, as the same may be in effect from time to time, or in
any successor rule thereto, and shall be determined for all purposes under the
Plan according to interpretative or "no-action" positions with respect thereto
issued by the Securities and Exchange Commission.
"Officer" shall mean a person who constitutes an officer of the
Company for the purposes of Section 16 of the Exchange Act, as determined by
reference to such Section 16 and to the rules, regulations, judicial decisions,
and interpretative or "no-action" positions with respect thereto of the
Securities and Exchange Commission, as the same may be in effect or set forth
from time to time.
"Option" shall mean an option, whether or not an Incentive Stock
Option, to purchase Stock granted pursuant to the provisions of Article VI
hereof.
"Optionee" shall mean a person to whom an Option has been granted
hereunder.
"Parent" shall mean any corporation (other than the Company or a
Subsidiary) in an unbroken chain of corporations ending with the Company if, at
the time of the grant (or modification) of the Option, each of the corporations
other than the Company or a Subsidiary owns stock possessing 50% or more of the
total combined voting power of the classes of stock in one of the other
corporations in such chain.
"Permanent and Total Disability" shall have the same meaning as given
to that term by Code Section 22(e)(3) and any regulations or rulings
promulgated thereunder.
"Plan" shall mean the New Commerce Bancorp 1999 Stock Incentive Plan,
the terms of which are set forth herein.
"Purchasable" shall refer to Stock which may be purchased by an
Optionee under the terms of this Plan on or after a certain date specified in
the applicable Stock Option Agreement.
<PAGE> 7
"Qualified Domestic Relations Order" shall have the meaning set forth
in the Code or in the Employee Retirement Income Security Act of 1974, or the
rules and regulations promulgated under the Code or such Act.
"Reload Option" shall have the meaning set forth in Section 6.8 hereof.
"Section 16 Insider" shall mean any person who is subject to the
provisions of Section 16 of the Exchange Act, as provided in Rule 16a-2
promulgated pursuant to the Exchange Act.
"Stock" shall mean the Common Stock, par value $0.01 per share, of the
Company or, in the event that the outstanding shares of Stock are hereafter
changed into or exchanged for shares of a different stock or securities of the
Company or some other entity, such other stock or securities.
"Stock Option Agreement" shall mean an agreement between the Company
and an Optionee under which the Optionee may purchase Stock hereunder, a sample
form of which is attached hereto as Exhibit A (which form may be varied by the
Committee in granting an Option).
"Subsidiary" shall mean any corporation (other than the Company) in an
unbroken chain of corporations beginning with the Company if, at the time of
the grant (or modification) of the Option, each of the corporations other than
the last corporation in the unbroken chain owns stock possessing 50% or more of
the total combined voting power of all classes of stock in one of the other
corporations in such chain.
ARTICLE II
THE PLAN
2.1 Name. This Plan shall be known as "New Commerce Bancorp 1999 Stock
Incentive Plan."
2.2 Purpose. The purpose of the Plan is to advance the interests of
the Company, its Subsidiaries, and its shareholders by affording Employees and
Directors of the Company and its Subsidiaries an opportunity to acquire or
increase their proprietary interests in the Company. The objective of the
issuance of the Options is to promote the growth and profitability of the
Company and its Subsidiaries because the Optionees will be provided with an
additional incentive to achieve the Company's objectives through participation
in its success and growth and by encouraging their continued association with
or service to the Company.
2.3 Effective Date. The Plan shall become effective on August 26,
1999; provided, however, that if the shareholders of the Company have not
approved the Plan on or prior to the first anniversary of such effective date,
then all options granted under the Plan shall be non-Incentive Stock Options.
If, at the time of any amendment to the Plan, shareholder approval is required
by the Code for Incentive Stock Options and such shareholder approval has not
been obtained (or is not obtained within 12 months thereof), any Incentive
Stock Options issued under the Plan shall automatically become options which do
not qualify as Incentive Stock Options.
<PAGE> 8
ARTICLE III
PARTICIPANTS
The class of persons eligible to participate in the Plan shall consist
of all Directors and Employees of the Company or any Subsidiary.
ARTICLE IV
ADMINISTRATION
4.1 Duties and Powers of the Committee. The Plan shall be administered
by the Committee. The Committee shall select one of its members as its Chairman
and shall hold its meetings at such times and places as it may determine. The
Committee shall keep minutes of its meetings and shall make such rules and
regulations for the conduct of its business as it may deem necessary. The
Committee shall have the power to act by unanimous written consent in lieu of a
meeting, and to meet telephonically. In administering the Plan, the Committee's
actions and determinations shall be binding on all interested parties. The
Committee shall have the power to grant Options in accordance with the
provisions of the Plan and may grant Options singly, in combination, or in
tandem. Subject to the provisions of the Plan, the Committee shall have the
discretion and authority to determine those individuals to whom Options will be
granted and whether such Options shall be accompanied by the right to receive
Reload Options, the number of shares of Stock subject to each Option, such
other matters as are specified herein, and any other terms and conditions of a
Stock Option Agreement. The Committee shall also have the discretion and
authority to delegate to any Officer its power to grant Options under the Plan
to Employees, but not to Employees who are Officers or Directors. To the extent
not inconsistent with the provisions of the Plan, the Committee may give a
Optionee an election to surrender an Option in exchange for the grant of a new
Option, and shall have the authority to amend or modify an outstanding Stock
Option Agreement, or to waive any provision thereof, provided that the Optionee
consents to such action.
4.2 Interpretation; Rules. Subject to the express provisions of the
Plan, the Committee also shall have complete authority to interpret the Plan,
to prescribe, amend, and rescind rules and regulations relating to it, to
determine the details and provisions of each Stock Option Agreement, and to
make all other determinations necessary or advisable for the administration of
the Plan, including, without limitation, the amending or altering of the Plan
and any Options granted hereunder as may be required to comply with or to
conform to any federal, state, or local laws or regulations. If an option
granted under the Plan is intended to be an Incentive Stock Option but does not
qualify as an Incentive Stock Option for any reason, then the option granted
shall remain valid but shall be a non-Incentive Stock Option.
<PAGE> 9
4.3 No Liability. Neither any member of the Board nor any member of
the Committee shall be liable to any person for any act or determination made
in good faith with respect to the Plan or any Option granted hereunder.
4.4 Majority Rule. A majority of the members of the Committee shall
constitute a quorum, and any action taken by a majority at a meeting at which a
quorum is present, or any action taken without a meeting evidenced by a writing
executed by all the members of the Committee, shall constitute the action of
the Committee.
4.5 Company Assistance. The Company shall supply full and timely
information to the Committee on all matters relating to eligible persons, their
employment, death, retirement, disability, or other termination of employment,
and such other pertinent facts as the Committee may require. The Company shall
furnish the Committee with such clerical and other assistance as is necessary
in the performance of its duties.
ARTICLE V
SHARES OF STOCK SUBJECT TO PLAN
5.1 Limitations. Subject to any antidilution adjustment pursuant to
the provisions of Section 5.2 hereof, the maximum number of shares of Stock
that may be issued hereunder shall be 150,000. The number of shares of Stock
available for issuance hereunder shall automatically increase on the first
trading day each calendar year beginning January 1, 2000, by an amount equal to
3% of the shares of Stock outstanding on the trading day immediately preceding
January 1; but in no event shall the total number of shares available under the
Plan and previously issued under the Plan exceed 25% of the then current issued
and outstanding shares of the Company. Any or all shares of Stock subject to
the Plan may be issued in any combination of Incentive Stock Options or
non-Incentive Stock Options, and the amount of Stock subject to the Plan may be
increased from time to time in accordance with Article IX, provided that the
total number of shares of Stock issuable pursuant to Incentive Stock Options
may not be increased to more than 150,000 (other than pursuant to anti-dilution
adjustments) without shareholder approval. Shares subject to an Option may be
either authorized and unissued shares or shares issued and later acquired by
the Company. The shares covered by any unexercised portion of an Option that
has terminated for any reason (except as set forth in the following paragraph)
may again be optioned under the Plan, and such shares shall not be considered
as having been optioned or issued in computing the number of shares of Stock
remaining available for option hereunder.
If Options are issued in respect of options to acquire stock of any
entity acquired, by merger or otherwise, by the Company (or any Subsidiary of
the Company), to the extent that such issuance shall not be inconsistent with
the terms, limitations and conditions of Code section 422 or Rule 16b-3 under
the Exchange Act, the aggregate number of shares of Stock for which Options may
be granted hereunder shall automatically be increased by the number of shares
subject to the Options so issued; provided, however, that the aggregate number
of shares of Stock for which Options may be granted hereunder shall
automatically be decreased by the number of shares covered by any unexercised
portion of an Option so issued that has terminated for any reason, and the
shares subject to any such unexercised portion may not be optioned to any other
person.
<PAGE> 10
5.2 Antidilution.
(a) If (x) the outstanding shares of Stock are changed into
or exchanged for a different number or kind of shares or other securities of
the Company by reason of merger, consolidation, reorganization,
recapitalization, reclassification, combination or exchange of shares, or stock
split or stock dividend, (y) any spin-off, spin-out or other distribution of
assets materially affects the price of the Company's stock, or (z) there is any
assumption and conversion to the Plan by the Company of an acquired company's
outstanding option grants, then:
(i) the aggregate number and kind of shares of Stock
for which Options may be granted hereunder shall be adjusted
proportionately by the Committee; and
(ii) the rights of Optionees (concerning the number
of shares subject to Options and the Exercise Price) under
outstanding Options shall be adjusted proportionately by the
Committee.
(b) If the Company shall be a party to any reorganization in
which it does not survive, involving merger, consolidation, or acquisition of
the stock or substantially all the assets of the Company, the Committee, in its
sole discretion, may (but is not required to):
(i) notwithstanding other provisions hereof, declare
that all Options granted under the Plan shall become
exercisable immediately notwithstanding the provisions of the
respective Stock Option Agreements regarding exercisability,
that all such Options shall terminate 30 days after the
Committee gives written notice of the immediate right to
exercise all such Options and of the decision to terminate
all Options not exercised within such 30-day period; and/or
(ii) notify all Optionees that all Options granted
under the Plan shall be assumed by the successor corporation
or substituted on an equitable basis with options issued by
such successor corporation.
(c) If the Company is to be liquidated or dissolved in
connection with a reorganization described in Section 5.2(b), the provisions of
such Section shall apply. In all other instances, the adoption of a plan of
dissolution or liquidation of the Company shall, notwithstanding other
provisions hereof, cause every Option outstanding under the Plan to terminate
to the extent not exercised prior to the adoption of the plan of dissolution or
liquidation by the shareholders, provided that, notwithstanding other
provisions hereof, the Committee may declare all Options granted under the Plan
to be exercisable at any time on or before the fifth business day following
such adoption notwithstanding the provisions of the respective Stock Option
Agreements regarding exercisability.
<PAGE> 11
(d) The adjustments described in paragraphs (a) through (c)
of this Section 5.2, and the manner of their application, shall be determined
solely by the Committee, and any such adjustment may provide for the
elimination of fractional share interests; provided, however, that any
adjustment made by the Board or the Committee shall be made in a manner that
will not cause an Incentive Stock Option to be other than an Incentive Stock
Option under applicable statutory and regulatory provisions. The adjustments
required under this Article V shall apply to any successors of the Company and
shall be made regardless of the number or type of successive events requiring
such adjustments.
ARTICLE VI
OPTIONS
6.1 Types of Options Granted. The Committee may, under this Plan,
grant either Incentive Stock Options or Options which do not qualify as
Incentive Stock Options. Within the limitations provided in this Plan, both
types of Options may be granted to the same person at the same time, or at
different times, under different terms and conditions, as long as the terms and
conditions of each Option are consistent with the provisions of the Plan.
Without limitation of the foregoing, Options may be granted subject to
conditions based on the financial performance of the Company or any other
factor the Committee deems relevant.
6.2 Option Grant and Agreement. Each Option granted hereunder shall be
evidenced by minutes of a meeting or the written consent of the Committee and
by a written Stock Option Agreement executed by the Company and the Optionee.
The terms of the Option, including the Option's duration, time or times of
exercise, exercise price, whether the Option is intended to be an Incentive
Stock Option, and whether the Option is to be accompanied by the right to
receive a Reload Option, shall be stated in the Stock Option Agreement. In
structuring the terms of each Option, the Committee shall follow the guidelines
set forth in the FDIC statement of policy relating to applications for deposit
insurance, including that the terms should encourage each Optionee to remain
involved in the Company and/or its Subsidiaries, such as by having a vesting
period of equal percentages each year over the initial three years following
the grant of the Option and a requirement that the Option be exercised or
expire within a reasonable time after termination as an active officer,
employee, or director. No Incentive Stock Option may be granted more than ten
years after the earlier to occur of the effective date of the Plan or the date
the Plan is approved by the Company's shareholders. Separate Stock Option
Agreements may be used for Options intended to be Incentive Stock Options and
those not so intended, but any failure to use such separate agreements shall
not invalidate, or otherwise adversely affect the Optionee's interest in, the
Options evidenced thereby.
<PAGE> 12
6.3 Optionee Limitations. The Committee shall not grant an Incentive
Stock Option to any person who, at the time the Incentive Stock Option is
granted:
(a) is not an employee of the Company or any of its Subsidiaries (as
the term "employee" is defined by the Code); or
(b) owns or is considered to own stock possessing at least
10% of the total combined voting power of all classes of stock of the Company
or any of its Parent or Subsidiary corporations; provided, however, that this
limitation shall not apply if at the time an Incentive Stock Option is granted
the Exercise Price is at least 110% of the Fair Market Value of the Stock
subject to such Option and such Option by its terms would not be exercisable
after five years from the date on which the Option is granted. For the purpose
of this subsection (b), a person shall be considered to own: (i) the stock
owned, directly or indirectly, by or for his or her brothers and sisters
(whether by whole or half blood), spouse, ancestors and lineal descendants;
(ii) the stock owned, directly or indirectly, by or for a corporation,
partnership, estate, or trust in proportion to such person's stock interest,
partnership interest or beneficial interest therein; and (iii) the stock which
such person may purchase under any outstanding options of the Company or of any
Parent or Subsidiary.
6.4 $100,000 Limitation. Except as provided below, the Committee shall
not grant an Incentive Stock Option to, or modify the exercise provisions of
outstanding Incentive Stock Options held by, any person who, at the time the
Incentive Stock Option is granted (or modified), would thereby receive or hold
any Incentive Stock Options of the Company and any Parent or Subsidiary, such
that the aggregate Fair Market Value (determined as of the respective dates of
grant or modification of each option) of the stock with respect to which such
Incentive Stock Options are exercisable for the first time during any calendar
year is in excess of $100,000 (or such other limit as may be prescribed by the
Code from time to time); provided that the foregoing restriction on
modification of outstanding Incentive Stock Options shall not preclude the
Committee from modifying an outstanding Incentive Stock Option if, as a result
of such modification and with the consent of the Optionee, such Option no
longer constitutes an Incentive Stock Option; and provided that, if the
$100,000 limitation (or such other limitation prescribed by the Code) described
in this Section 6.4 is exceeded, the Incentive Stock Option, the granting or
modification of which resulted in the exceeding of such limit, shall be treated
as an Incentive Stock Option up to the limitation and the excess shall be
treated as an Option not qualifying as an Incentive Stock Option. Furthermore,
not more than 25% of the total shares of stock approved under this Plan may be
made subject to Options to any individual in the aggregate in any one fiscal
year of the Company, such limitation to be applied in a manner consistent with
the requirements of, and only to the extent required for compliance with, the
exclusion from the limitation on deductibility of compensation under Section
162(m) of the Code.
<PAGE> 13
6.5 Exercise Price. The Exercise Price of the Stock subject to each
Option shall be determined by the Committee. Subject to the provisions of
Section 6.3(b) hereof, the Exercise Price of an Option shall not be less than
the Fair Market Value of the Stock as of the date the Option is granted (or in
the case of an Incentive Stock Option that is subsequently modified, on the
date of such modification).
6.6 Exercise Period. The period for the exercise of each Option
granted hereunder shall be determined by the Committee, but the Stock Option
Agreement with respect to each Option shall provide that such Option shall not
be exercisable after ten years from the date of grant (or modification) of the
Option.
6.7 Option Exercise.
(a) Unless otherwise provided in the Stock Option Agreement
or Section 6.6 hereof, an Option may be exercised at any time or from time to
time during the term of the Option as to any or all full shares which have
become Purchasable under the provisions of the Option, but not at any time as
to less than 100 shares unless the remaining shares that have become so
Purchasable are less than 100 shares. The Committee shall have the authority to
prescribe in any Stock Option Agreement that the Option may be exercised only
in accordance with a vesting schedule during the term of the Option.
(b) An Option shall be exercised by (i) delivery to the
Company at its principal office a written notice of exercise with respect to a
specified number of shares of Stock and (ii) payment to the Company at that
office of the full amount of the Exercise Price for such number of shares in
accordance with Section 6.7(c). If requested by an Optionee, an Option may be
exercised with the involvement of a stockbroker in accordance with the federal
margin rules set forth in Regulation T (in which case the certificates
representing the underlying shares will be delivered by the Company directly to
the stockbroker).
(c) The Exercise Price is to be paid in full in cash upon the
exercise of the Option and the Company shall not be required to deliver
certificates for the shares purchased until such payment has been made;
provided, however, that in lieu of cash, in the Company's discretion all or any
portion of the Exercise Price may be paid by tendering to the Company shares of
Stock duly endorsed for transfer and owned by the Optionee, or by authorization
to the Company to withhold shares of Stock otherwise issuable upon exercise of
the Option, in each case to be credited against the Exercise Price at the Fair
Market Value of such shares on the date of exercise (however, no fractional
shares may be so transferred, and the Company shall not be obligated to make
any cash payments in consideration of any excess of the aggregate Fair Market
Value of shares transferred over the aggregate Exercise Price); provided
further, that the Board may provide in a Stock Option Agreement (or may
otherwise determine in its sole discretion at the time of exercise) that, in
lieu of cash or shares, all or a portion of the Exercise Price may be paid by
the Optionee's execution of a recourse note equal to the Exercise Price or
relevant portion thereof, subject to compliance with applicable state and
federal laws, rules and regulations. Notwithstanding the above, the Company
shall not be obligated to accept tender of shares of Stock as payment of the
Exercise Price if doing so would result in a charge to the Company's earnings
for financial reporting purposes.
<PAGE> 14
(d) In addition to and at the time of payment of the Exercise
Price, the Optionee shall pay to the Company in cash the full amount of any
federal, state, and local income, employment, or other withholding taxes
applicable to the taxable income of such Optionee resulting from such exercise;
provided, however, that in the discretion of the Committee any Stock Option
Agreement may provide that all or any portion of such tax obligations, together
with additional taxes not exceeding the actual additional taxes to be owed by
the Optionee as a result of such exercise, may, upon the irrevocable election
of the Optionee, be paid by tendering to the Company whole shares of Stock duly
endorsed for transfer and owned by the Optionee, or by authorization to the
Company to withhold shares of Stock otherwise issuable upon exercise of the
Option, in either case in that number of shares having a Fair Market Value on
the date of exercise equal to the amount of such taxes thereby being paid, and
subject to such restrictions as to the approval and timing of any such election
as the Committee may from time to time determine to be necessary or appropriate
to satisfy the conditions of the exemption set forth in Rule 16b-3 under the
Exchange Act, if such rule is applicable.
(e) The holder of an Option shall not have any of the rights
of a shareholder with respect to the shares of Stock subject to the Option
until such shares have been issued and transferred to the Optionee upon the
exercise of the Option.
6.8 Reload Options.
(a) The Committee may specify in a Stock Option Agreement (or
may otherwise determine in its sole discretion) that a Reload Option shall be
granted, without further action of the Committee, (i) to an Optionee who
exercises an Option (including a Reload Option) by surrendering shares of Stock
in payment of amounts specified in Sections 6.7(c) or 6.7(d) hereof, (ii) for
the same number of shares as are surrendered to pay such amounts, (iii) as of
the date of such payment and at an Exercise Price equal to the Fair Market
Value of the Stock on such date, and (iv) otherwise on the same terms and
conditions as the Option whose exercise has occasioned such payment, except as
provided below and subject to such other contingencies, conditions, or other
terms as the Committee shall specify at the time such exercised Option is
granted; provided, that the Committee may require that the shares surrendered
in payment as provided above must have been held by the Optionee for at least
six months prior to such surrender.
(b) Unless provided otherwise in the Stock Option Agreement,
a Reload Option may not be exercised by an Optionee (i) prior to the end of a
one-year period from the date that the Reload Option is granted, and (ii)
unless the Optionee retains beneficial ownership of the shares of Stock issued
to such Optionee upon exercise of the Option referred to above in Section
6.8(a)(i) for a period of one year from the date of such exercise.
<PAGE> 15
6.9 Nontransferability of Option. Other than as provided below, no
Option shall be transferable by an Optionee other than by will or the laws of
descent and distribution or, in the case of non-Incentive Stock Options,
pursuant to a Qualified Domestic Relations Order, and, during the lifetime of
an Optionee, Options shall be exercisable only by such Optionee (or by such
Optionee's guardian or legal representative, should one be appointed). However,
a Non-Incentive Stock Option may, in connection with the Optionee's estate
plan, be assigned in whole or in part during Optionee's lifetime to one or more
members of the Optionee's immediate family or to a trust established for the
exclusive benefit of one or more such family members. The assigned portion
shall be exercisable only by the person or persons who acquire a proprietary
interest in the Option pursuant to such assignment. The terms applicable to the
assigned portion shall be the same as those in effect for this Option
immediately prior to such assignment and shall be set forth in such documents
issued to the assignee as the Committee may deem appropriate.
6.10 Termination of Employment or Service. The Committee shall have
the power to specify the effect upon an Optionee's right to exercise an Option
upon termination of such Optionee's employment or service under various
circumstances, which effect may include immediate or deferred termination of
such Optionee's rights under an Option, or acceleration of the date at which an
Option may be exercised in full. Unless a Stock Option Agreement specifically
provides otherwise, in the event the recipient of an Option is terminated from
his or her employment or other service to the Company or its subsidiaries for
Cause, Options, whether vested or unvested, granted to such person shall
terminate immediately and shall not thereafter be exercisable.
6.11 Employment Rights. Nothing in the Plan or in any Stock Option
Agreement shall confer on any person any right to continue in the employ of the
Company or any of its Subsidiaries, or shall interfere in any way with the
right of the Company or any of its Subsidiaries to terminate such person's
employment at any time.
6.12 Certain Successor Options. To the extent not inconsistent with
the terms, limitations and conditions of Code section 422 and any regulations
promulgated with respect thereto, an Option issued in respect of an option held
by an employee to acquire stock of any entity acquired, by merger or otherwise,
by the Company (or any Subsidiary of the Company) may contain terms that differ
from those stated in this Article VI, but solely to the extent necessary to
preserve for any such employee the rights and benefits contained in such
predecessor option, or to satisfy the requirements of Code section 424(a).
6.13 Effect of a Corporate Transaction. All Options, to the extent
outstanding at the time of a Corporate Transaction but not otherwise fully
exercisable, shall automatically accelerate so that the Options shall,
immediately prior to the effective date of the Corporate Transaction, become
exercisable for all shares at the time subject to such Options and may be
exercised for any or all of those shares as fully vested shares of Stock.
6.14 Forfeiture by Order of Regulatory Agency. If the Company's or any
of its financial institution Subsidiaries' capital falls below the minimum
requirements contained in 12 CFR 3 or below a higher requirement as determined
by the Company's or such Subsidiary's primary bank regulatory agency, such
agency may direct the Company to require Optionees to exercise or forfeit some
or all of their Options. All options granted under this Plan are subject to the
terms of any such directive.
<PAGE> 16
ARTICLE VII
STOCK CERTIFICATES
The Company shall not be required to issue or deliver any certificate
for shares of Stock purchased upon the exercise of any Option granted hereunder
or any portion thereof prior to fulfillment of all of the following conditions:
(a) The admission of such shares to listing on all stock exchanges on
which the Stock is then listed;
(b) The completion of any registration or other qualification of such
shares which the Committee shall deem necessary or advisable under any federal
or state law or under the rulings or regulations of the Securities and Exchange
Commission or any other governmental regulatory body;
(c) The obtaining of any approval or other clearance from any federal
or state governmental agency or body which the Committee shall determine to be
necessary or advisable; and
(d) The lapse of such reasonable period of time following the exercise
of the Option as the Board from time to time may establish for reasons of
administrative convenience.
Stock certificates issued and delivered to Optionees shall bear such
restrictive legends as the Company shall deem necessary or advisable pursuant
to applicable federal and state securities laws. The inability of the Company
to obtain approval from any regulatory body having authority deemed by the
Company to be necessary to the lawful issuance and sale of any Stock pursuant
to Options shall relieve the Company of any liability with respect to the
non-issuance or sale of the Stock as to which such approval shall not have been
obtained. However, the Company shall use its best efforts to obtain all such
approvals.
ARTICLE VIII
TERMINATION AND AMENDMENT
8.1 Termination and Amendment. The Board may at any time terminate the
Plan; provided, however, that the Board (unless its actions are approved or
ratified by the shareholders of the Company within twelve months of the date
that the Board amends the Plan) may not amend the Plan to:
<PAGE> 17
(a) Increase the total number of shares of Stock issuable
pursuant to Incentive Stock Options under the Plan, except as contemplated in
Section 5.2 hereof; or
(b) Change the class of employees eligible to receive
Incentive Stock Options that may participate in the Plan.
8.2 Effect on Optionee's Rights. No termination, amendment, or
modification of the Plan shall affect adversely a Optionee's rights under a
Stock Option Agreement without the consent of the Optionee or his legal
representative.
ARTICLE IX
RELATIONSHIP TO OTHER COMPENSATION PLANS
The adoption of the Plan shall not affect any other stock option,
incentive, or other compensation plans in effect for the Company or any of its
Subsidiaries; nor shall the adoption of the Plan preclude the Company or any of
its Subsidiaries from establishing any other form of incentive or other
compensation plan for employees or Directors of the Company or any of its
Subsidiaries.
ARTICLE X
MISCELLANEOUS
10.1 Replacement or Amended Grants. At the sole discretion of the
Committee, and subject to the terms of the Plan, the Committee may modify
outstanding Options or accept the surrender of outstanding Options and grant
new Options in substitution for them. However no modification of an Option
shall adversely affect a Optionee's rights under a Stock Option Agreement
without the consent of the Optionee or his legal representative.
10.2 Forfeiture for Competition. If a Optionee provides services to a
competitor of the Company or any of its Subsidiaries, whether as an employee,
officer, director, independent contractor, consultant, agent, or otherwise,
such services being of a nature that can reasonably be expected to involve the
skills and experience used or developed by the Optionee while an Employee, then
that Optionee's rights under any Options outstanding hereunder shall be
forfeited and terminated subject in each case to a determination to the
contrary by the Committee.
10.3 Leave of Absence. Unless provided otherwise in a particular Stock
Option Agreement, the following provisions shall apply upon an Optionee's
commencement of an authorized leave of absence:
(a) The exercise schedule in effect for such Option shall be frozen as
of the first day of the authorized leave, and the Option shall not become
exercisable for any additional installments of shares of Stock during the
period Optionee remains on such leave.
<PAGE> 18
(b) Should the Optionee resume active Employee status within 60 days
after the start date of the authorized leave, Optionee shall, for purposes of
the applicable exercise schedule, receive service credit for the entire period
of such leave. If the Optionee does not resume active Employee status within
such 60-day period, then no service credit shall be given for the entire period
of such leave.
(c) If the Option is an Incentive Stock Option, then the following
additional provision shall apply:
If the leave of absence continues for more than
three months, then the Option shall automatically convert to a
Non-Incentive Stock Option under the Federal tax laws upon the
expiration of such three-month period, unless the Optionee's
reemployment rights are guaranteed by statute or written agreement.
Following any such conversion of the Option, all subsequent exercises
of the Option, whether effected before or after Optionee's return to
active Employee status, shall result in an immediate taxable event,
and the Company shall be required to collect from Optionee the
Federal, state and local income and employment withholding taxes
applicable to such exercise.
(d) In no event shall the Option become exercisable for any additional
shares or otherwise remain outstanding if Optionee does not resume Employee
status prior to the Expiration Date of the option term.
10.4 Plan Binding on Successors. The Plan shall be binding upon the
successors and assigns of the Company.
10.5 Headings, etc., No Part of Plan. Headings of Articles and
Sections hereof are inserted for convenience and reference; they do not
constitute part of the Plan.
10.6 Section 16 Compliance. With respect to Section 16 Insiders,
transactions under this Plan are intended to comply with all applicable
conditions of Rule 16b-3 or its successors under the Exchange Act. To the
extent any provision of the Plan or action by the Committee fails to so comply,
it shall be deemed void to the extent permitted by law and deemed advisable by
the Committee. In addition, if necessary to comply with Rule 16b-3 with respect
to any grant of an Option hereunder, and in addition to any other vesting or
holding period specified hereunder or in an applicable Stock Option Agreement,
any Section 16 Insider acquiring an Option shall be required to hold either the
Option or the underlying shares of Stock obtained upon exercise of the Option
for a minimum of six months.
<PAGE> 19
EXHIBIT A to
New Commerce Bancorp
1999 Stock Incentive Plan -
Form of Stock Option Agreement
NEW COMMERCE BANCORP
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT (this "Agreement"), entered into
as of this ____ day of , , by and between New Commerce
Bancorp, a South Carolina corporation (the
"Company"), and _________________ (the "Optionee").
WHEREAS, on ________________________, the Board of Directors of the
Company adopted a Stock Incentive Plan known as the "New Commerce Bancorp 1999
Stock Incentive Plan" (the "Plan"), and recommended that the Plan be approved
by the Company's shareholders; and
WHEREAS, the Committee has granted the Optionee a stock option to
purchase the number of shares of the Company's common stock as set forth below,
and in consideration of the granting of that stock option the Optionee intends
to remain in the employ of the Company; and
WHEREAS, the Company and the Optionee desire to enter into a written
agreement with respect to such option in accordance with the Plan.
NOW, THEREFORE, as an employment incentive and to encourage stock
ownership, and also in consideration of the mutual covenants contained herein,
the parties hereto agree as follows.
1. Incorporation of Plan. This option is granted pursuant to the
provisions of the Plan and the terms and definitions of the Plan are
incorporated herein by reference and made a part hereof. A copy of the Plan has
been delivered to, and receipt is hereby acknowledged by, the Optionee.
2. Grant of Option. Subject to the terms, restrictions, limitations
and conditions stated herein, the Company hereby evidences its grant to the
Optionee, not in lieu of salary or other compensation, of the right and option
(the "Option") to purchase all or any part of the number of shares of the
Company's Common Stock, no par value per share (the "Stock"), set forth on
Schedule A attached hereto and incorporated herein by reference. The Option
shall be exercisable in the amounts and at the time specified on Schedule A.
The Option shall expire and shall not be exercisable on the date specified on
Schedule A or on such earlier date as determined pursuant to Section 8, 9, or
10 hereof. Schedule A states whether the Option is intended to be an Incentive
Stock Option.
<PAGE> 20
3. Purchase Price. The price per share to be paid by the Optionee for
the shares subject to this Option (the "Exercise Price") shall be as specified
on Schedule A, which price shall be an amount not less than the Fair Market
Value of a share of Stock as of the Date of Grant (as defined in Section 11
below).
4. Exercise Terms. The Optionee must exercise the Option for at least
the lesser of 100 shares or the number of shares of Purchasable Stock as to
which the Option remains unexercised. In the event this Option is not exercised
with respect to all or any part of the shares subject to this Option prior to
its expiration, the shares with respect to which this Option was not exercised
shall no longer be subject to this Option.
5. Nontransferability of Option. Other than as provided below, no
Option shall be transferable by Optionee other than by will or the laws of
descent and distribution or, in the case of non-Incentive Stock Options,
pursuant to a Qualified Domestic Relations Order, and, during the lifetime of
Optionee, Options may be exercised only by Optionee (or by Optionee's guardian
or legal representative, should one be appointed). However, a Non-Incentive
Stock Option may, in connection with Optionee's estate plan, be assigned in
whole or in part during Optionee's lifetime to one or more members of
Optionee's immediate family or to a trust established for the exclusive benefit
of one or more such family members. The assigned portion shall be exercisable
only by the person or persons who acquire a proprietary interest in the Option
pursuant to such assignment. The terms applicable to the assigned portion shall
be the same as those in effect for this Option immediately prior to such
assignment and shall be set forth in such documents issued to the assignee as
the stock incentive committee of the board of directors of the Company may deem
appropriate.
6. Notice of Exercise of Option. This Option may be exercised by the
Optionee, or by the Optionee's administrators, executors or personal
representatives, by a written notice (in substantially the form of the Notice
of Exercise attached hereto as Schedule B) signed by the Optionee, or by such
administrators, executors or personal representatives, and delivered or mailed
to the Company as specified in Section 14 hereof to the attention of the
President, the Chief Operating Officer or such other officer as the Company may
designate. Any such notice shall (a) specify the number of shares of Stock
which the Optionee or the Optionee's administrators, executors or personal
representatives, as the case may be, then elects to purchase hereunder, (b)
contain such information as may be reasonably required pursuant to Section 12
hereof, and (c) be accompanied by (i) a certified or cashier's check payable to
the Company in payment of the total Exercise Price applicable to such shares as
provided herein, (ii) shares of Stock owned by the Optionee and duly endorsed
or accompanied by stock transfer powers having a Fair Market Value equal to the
total Exercise Price applicable to such shares purchased hereunder, or (iii) a
certified or cashier's check accompanied by the number of shares of Stock whose
Fair Market Value when added to the amount of the check equals the total
Exercise Price applicable to such shares purchased hereunder. Upon receipt of
any such notice and accompanying payment, and subject to the terms hereof, the
Company agrees to issue to the Optionee or the Optionee's administrators,
executors or personal representatives, as the case may be, stock certificates
for the number of shares specified in such notice registered in the name of the
person exercising this Option.
<PAGE> 21
7. Adjustment in Option. The number of Shares subject to this Option,
the Exercise Price and other matters are subject to adjustment during the term
of this Option in accordance with Section 5.2 of the Plan.
8. Termination of Employment.
(a) Except as otherwise specified in Schedule A hereto, in the event
of the termination of the Optionee's employment with the Company or any of its
Subsidiaries, other than a termination that is either (i) for cause, (ii)
voluntary on the part of the Optionee and without written consent of the
Company, or (iii) for reasons of death or disability or retirement, the
Optionee may exercise this Option at any time within 30 days after such
termination to the extent of the number of shares which were Purchasable
hereunder at the date of such termination.
(b) Except as specified in Schedule A attached hereto, in the event of
a termination of the Optionee's employment that is either (i) for cause or (ii)
voluntary on the part of the Optionee and without the written consent of the
Company, this Option, to the extent not previously exercised, shall terminate
immediately and shall not thereafter be or become exercisable.
(c) Unless and to the extent otherwise provided in Exhibit A hereto,
in the event of the retirement of the Optionee at the normal retirement date as
prescribed from time to time by the Company or any Subsidiary, the Optionee
shall continue to have the right to exercise any Options for shares which were
Purchasable at the date of the Optionee's retirement provided that, on the date
which is three months after the date of retirement, the Options will become
void and unexercisable unless on the date of retirement the Optionee enters
into a noncompete agreement with New Commerce Bancorp and continues to comply
with such noncompete agreement. This Option does not confer upon the Optionee
any right with respect to continuance of employment by the Company or by any of
its Subsidiaries. This Option shall not be affected by any change of employment
so long as the Optionee continues to be an employee of the Company or one of
its Subsidiaries.
9. Disabled Optionee. In the event of termination of employment
because of the Optionee's Permanent and Total Disability, the Optionee (or his
or her personal representative) may exercise this Option, within a period
ending on the earlier of (a) the last day of the one year period following the
Optionee's death or (b) the expiration date of this Option, to the extent of
the number of shares which were Purchasable hereunder at the date of such
termination.
10. Death of Optionee. Except as otherwise set forth in Schedule A
with respect to the rights of the Optionee upon termination of employment under
Section 8(a) above, in the event of the Optionee's death while employed by the
Company or any of its Subsidiaries or within three months after a termination
of such employment (if such termination was neither (i) for cause nor (ii)
voluntary on the part of the Optionee and without the written consent of the
Company), the appropriate persons described in Section 6 hereof or persons to
whom all or a portion of this Option is transferred in accordance with Section
5 hereof may exercise this Option at any time within a period ending on the
earlier of (a) the last day of the one year period following the Optionee's
death or (b) the expiration date of this Option. If the Optionee was an
employee of the Company at the time of death, this Option may be so exercised
to the extent of the number of shares that were Purchasable hereunder at the
date of death. If the Optionee's employment terminated prior to his or her
death, this Option may be exercised only to the extent of the number of shares
covered by this Option which were Purchasable hereunder at the date of such
termination.
<PAGE> 22
11. Date of Grant. This Option was granted by the Committee on the
date set forth in Schedule A (the "Date of Grant").
12. Compliance with Regulatory Matters. The Optionee acknowledges that
the issuance of capital stock of the Company is subject to limitations imposed
by federal and state law and the Optionee hereby agrees that the Company shall
not be obligated to issue any shares of Stock upon exercise of this Option that
would cause the Company to violate law or any rule, regulation, order or
consent decree of any regulatory authority (including without limitation the
Securities and Exchange Commission) having jurisdiction over the affairs of the
Company. The Optionee agrees that he or she will provide the Company with such
information as is reasonably requested by the Company or its counsel to
determine whether the issuance of Stock complies with the provisions described
by this Section 12.
13. Restriction on Disposition of Shares. The shares purchased
pursuant to the exercise of an Incentive Stock Option shall not be transferred
by the Optionee except pursuant to the Optionee's will, or the laws of descent
and distribution, until such date which is the later of two years after the
grant of such Incentive Stock Option or one year after the transfer of the
shares to the Optionee pursuant to the exercise of such Incentive Stock Option.
14. Forfeiture by Order of Regulatory Agency. If the Company's or any
of its financial institution Subsidiary's capital falls below the minimum
requirements contained in 12 CFR 3 or below a higher requirement as determined
by the Company's or such Subsidiary's primary regulatory agency, such agency
may direct the Company to require Optionee to exercise or forfeit some or all
of his or her Options. All options granted under this Agreement are subject to
the terms of any such directive.
15. Miscellaneous.
(a) This Agreement shall be binding upon the parties hereto and their
representatives, successors and assigns.
(b) This Agreement is executed and delivered in, and shall be governed
by the laws of, the State of South Carolina.
(c) Any requests or notices to be given hereunder shall be deemed
given, and any elections or exercises to be made or accomplished shall be
deemed made or accomplished, upon actual delivery thereof to the designated
recipient, or three days after deposit thereof in the United States mail,
registered, return receipt requested and postage prepaid, addressed, if to the
Optionee, at the address set forth below and, if to the Company, to the
executive offices of the Company at _____________________, or at such other
addresses that the parties provide to each other in accordance with the notice
requirements hereof.
<PAGE> 23
(d) This Agreement may not be modified except in writing executed by
each of the parties hereto.
IN WITNESS WHEREOF, the Committee has caused this Stock Option
Agreement to be executed on behalf of the Company, and the Optionee has
executed this Stock Option Agreement, all as of the day and year first above
written.
NEW COMMERCE BANCORP OPTIONEE
By:
Name: Name:
Title: Address:
<PAGE> 24
SCHEDULE A
TO
STOCK OPTION AGREEMENT
BETWEEN
NEW COMMERCE BANCORP
AND
----------------------------
Dated: __________________
1. Number of Shares Subject to Option: Shares.
2. This Option (Check one) [ ] is [ ] is not an Incentive Stock Option.
3. Option Exercise Price: $ per Share.
4. Date of Grant: ___________________
5. Option Vesting Schedule:
Check one:
( ) Options are exercisable with respect to all shares on or after the
date hereof
( ) Options are exercisable with respect to the number of shares
indicated below on or after the date indicated next to the number of
shares:
No. of Shares Vesting Date
<PAGE> 25
6. Option Exercise Period:
Check One:
( ) All options expire and are void unless exercised on or before
_______________, 19 .
( ) Options expire and are void unless exercised on or before the date
indicated next to the number of shares:
No. of Shares Expiration Date
7. Effect of Termination of Employment of Optionee (if different from
that set forth in Sections 8 and 10 of the Stock Option Agreement):
<PAGE> 26
SCHEDULE B
NOTICE OF EXERCISE
The undersigned hereby notifies New Commerce Bancorp (the
"Company") of this election to exercise the undersigned's stock option to
purchase shares of the Company's common stock pursuant to the Stock Option
Agreement (the "Agreement") between the undersigned and the Company dated
_______________________, 19____. Accompanying this Notice is (1) a certified or
a cashier's check in the amount of $ payable to the Company, and/or (2)
_______________ shares of the Company's common stock presently owned by the
undersigned and duly endorsed or accompanied by stock transfer powers, having
an aggregate Fair Market Value (as defined in the New Commerce Bancorp 1999
Stock Incentive Plan) as of the date hereof of $________________, such amounts
being equal, in the aggregate, to the purchase price per share set forth in
Section 3 of the Agreement multiplied by the number of shares being purchased
hereby (in each instance subject to appropriate adjustment pursuant to Section
5.2 of the New Commerce Bancorp 1999 Stock Incentive Plan).
IN WITNESS WHEREOF, the undersigned has set his hand and seal, this
_______ day of _____________ ,____________ .
OPTIONEE [OR OPTIONEE'S ADMINISTRATOR,
EXECUTOR OR PERSONAL REPRESENTATIVE]
Name:
Position (if other than Optionee):
<TABLE> <S> <C>
<ARTICLE> 9
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
FINANCIAL STATEMENTS OF NEW COMMERCE BANCORP FOR THE NINE MONTHS ENDED
SEPTEMBER 30, 1999 AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH
FINANCIAL STATEMENTS.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> JAN-01-1999
<PERIOD-END> SEP-30-1999
<CASH> 519,604
<INT-BEARING-DEPOSITS> 0
<FED-FUNDS-SOLD> 5,398,120
<TRADING-ASSETS> 0
<INVESTMENTS-HELD-FOR-SALE> 3,198,390
<INVESTMENTS-CARRYING> 0
<INVESTMENTS-MARKET> 0
<LOANS> 12,034,219
<ALLOWANCE> 106,190
<TOTAL-ASSETS> 23,522,366
<DEPOSITS> 14,232,095
<SHORT-TERM> 0
<LIABILITIES-OTHER> 115,368
<LONG-TERM> 0
0
0
<COMMON> 10,000
<OTHER-SE> 9,164,903
<TOTAL-LIABILITIES-AND-EQUITY> 23,522,366
<INTEREST-LOAN> 216,193
<INTEREST-INVEST> 76,679
<INTEREST-OTHER> 73,228
<INTEREST-TOTAL> 366,100
<INTEREST-DEPOSIT> 91,718
<INTEREST-EXPENSE> 91,718
<INTEREST-INCOME-NET> 274,382
<LOAN-LOSSES> 106,190
<SECURITIES-GAINS> 0
<EXPENSE-OTHER> 1,013,205
<INCOME-PRETAX> (787,541)
<INCOME-PRE-EXTRAORDINARY> (787,541)
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (542,255)
<EPS-BASIC> (.54)
<EPS-DILUTED> (.54)
<YIELD-ACTUAL> 0
<LOANS-NON> 0
<LOANS-PAST> 0
<LOANS-TROUBLED> 0
<LOANS-PROBLEM> 0
<ALLOWANCE-OPEN> 0
<CHARGE-OFFS> 0
<RECOVERIES> 0
<ALLOWANCE-CLOSE> 106,190
<ALLOWANCE-DOMESTIC> 106,190
<ALLOWANCE-FOREIGN> 0
<ALLOWANCE-UNALLOCATED> 0
</TABLE>
