Registration No. 33-__________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
__________
CT COMMUNICATIONS, INC.
(Exact name of registrant as specified in its charter)
NORTH CAROLINA 56-1837282
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
68 CABARRUS AVENUE, EAST
POST OFFICE BOX 227
CONCORD, NORTH CAROLINA 28025
(Address of Principal Executive Offices)
__________
CT COMMUNICATIONS, INC. 1995 COMPREHENSIVE STOCK OPTION PLAN
(Full title of the Plan)
__________
MICHAEL R. COLTRANE
PRESIDENT AND CEO
CT COMMUNICATIONS, INC,
68 CABARRUS AVENUE,EAST
POST OFFICE BOX 227
CONCORD, NORTH CAROLINA 28025
(Name and address of agent for service)
(704) 788-0214
(Telephone number, including area code, of agent for service)
__________
COPY TO:
R. DOUGLAS HARMON
SMITH HELMS MULLISS & MOORE, L.L.P.
POST OFFICE BOX 31247
CHARLOTTE, NORTH CAROLINA 28231
__________
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after the effective date of
this Registration Statement.
__________
CALCULATION OF REGISTRATION FEE
Proposed Maximum
Title of each Class of Amount to be Offering
Securities to be Registered Registered Price Per Share (1)
- --------------------------- ------------ -------------------
Class B Nonvoting 5,000 $251
Common Stock shares
$50.00 par value
Proposed Maximum Amount of
Title of each Class of Aggregate Registration
Securities to be Registered Offering Price (1) Fee
- --------------------------- ------------------ ------------
Class B Nonvoting $1,255,000 $432.72
Common Stock
$50.00 par value
(1) Estimated solely for the purpose of calculating the
registration fee and computed according to Rule 457(h) under the
Securities Act of 1933, as amended, based on the price of the
Common Stock of which options granted pursuant to the Plan may be
exercised.
<PAGE>
PART I. INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents constituting the Prospectus of CT
Communications, Inc. (the "Registrant") with respect to this
Registration Statement in accordance with Rule 428 promulgated
pursuant to the Securities Act of 1933, as amended (the
"Securities Act"), are kept on file at the offices of the
Registrant. The Registrant will provide without charge to
employees, on the written or oral request of any such person, a
copy of any or all of the documents constituting the Prospectus.
Written requests for such copies should be directed to the
Treasurer, CT Communications, Inc., 68 Cabarrus Avenue, East,
Post Office Box 227, Concord, North Carolina 28025. Telephone
requests may be directed to (704) 788-0244.
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by the Registrant with the
Securities and Exchange Commission (the "Commission") are
incorporated by reference herein and in the Prospectus
constituting a part of this Registration Statement:
(a) The Registrant's Annual Report on Form 10-K for
the year ended December 31, 1994, filed pursuant to Section 13 of
the Securities Exchange Act of 1934, as amended (the "Exchange
Act");
(b) The Registrant's Quarterly Report on Form 10-Q for
the quarter ended March 31, 1995, filed pursuant to Section 13 of
the Exchange Act; and
(c) The description of the Registrant's Common Stock,
$50 par value, contained in its Registration Statement filed
under the Exchange Act and all amendments and reports filed for
the purpose of updating such description, including the
Registrant's Definitive Proxy Statement filed with the Commission
on September 21, 1993.
All documents filed by the Registrant with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), subsequent
to the effectiveness of this Registration Statement and prior to
the filing of a post-effective amendment hereto, which either
indicates that all securities offered hereto have been sold or
deregisters all securities then remaining unsold shall be deemed
to be incorporated by reference in this Registration Statement
and the Prospectus and to be a part hereof and thereof from the
date of filing of such documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference
herein or therein shall be deemed to be modified or superseded
for purposes of this Registration Statement and the Prospectus to
the extent that a statement contained herein or therein or in any
other subsequently filed document which also is or is deemed to
be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute
a part of this Registration Statement or the Prospectus.
The Registrant will provide without charge to each person to
whom the Prospectus constituting a part of this Registration
Statement is delivered, on the written or oral request of any
such person, a copy of any or all of the documents incorporated
herein and in the Prospectus by reference (other than exhibits to
such documents which are not specifically incorporated by
reference in such documents). Written requests for such copies
should be directed to the Treasurer, CT Communications, Inc. 68
Cabarrus Avenue, East, Post Office 227, Concord, North Carolina
28025. Telephone requests may be directed to (704) 788-0244.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
There are no provisions in the Registrant's Articles of
Incorporation, and no contracts between the Registrant and its
directors and officers nor resolutions adopted by the Registrant,
relating to indemnification. The Registrant's Articles of
Incorporation prevent the recovery by the Registrant of monetary
damages against its directors. However, in accordance with the
provisions of the North Carolina Business Corporation Act (the
"Act"), the Registrant's Bylaws provide that, in addition to the
indemnification of directors and officers otherwise provided by
the Act, the Registrant shall, under certain circumstances,
indemnify its directors, executive officers and certain other
designated officers against any and all liability and litigation
expense, including reasonable attorneys' fees, arising out of
their status or activities as directors and officers, except for
liability or litigation expense incurred on account of activities
that were at the time known or reasonably should have been known
by such director or officer to be clearly in conflict with the
best interests of the Registrant. Pursuant to such bylaw and as
authorized by statute, the Registrant maintains insurance on
behalf of its directors and officers against liability asserted
against such persons in such capacity whether or not such
director or officers have the right to indemnification pursuant
to the bylaw or otherwise.
In addition to the above-described provisions, Sections
55-8-50 through 55-8-58 of the Act contain provisions prescribing
the extent to which directors and officers shall or may be
indemnified. Section 55-8-51 of the Act permits a corporation,
with certain exceptions, to indemnify a present or former
director against liability if (i) he conducted himself in good
faith, (ii) he reasonably believed (x) that his conduct in his
official capacity with the corporation was in its best interests
and (y) in all other cases his conduct was at least not opposed
to the corporation's best interest and (iii) in the case of any
criminal proceeding, he had no reasonable cause to believe his
conduct was unlawful. A corporation may not indemnify a director
in connection with a proceeding by or in the right of the
corporation in which the director was adjudged liable to the
corporation or in connection with a proceeding charging improper
personal benefit to him in which he was adjudged liable on such
basis. The above standard of conduct is determined by the Board
of Directors, or a committee or special legal counsel or the
shareholders as prescribed in Section 55-8-55.
Sections 55-8-52 and 55-8-56 of the Act require a
corporation to indemnify a director or officer in the defense of
any proceeding to which he was a party because of his capacity as
a director or officer against reasonable expenses when he is
wholly successful in his defense, unless the articles of
incorporation provide otherwise. Upon application, the court may
order indemnification of the director or officer if he is
adjudged fairly and reasonably so entitled under Section 55-8-54.
Section 55-8-56 allows a corporation to indemnify and advance
expenses to an officer, employee or agent who is not a director
to the same extent as a director or as otherwise set forth in the
corporation's articles of incorporation or bylaws or by
resolution of the Board of Directors.
The foregoing is only a general summary of certain aspects
of North Carolina law dealing with indemnification of directors
and officers and does not purport to be complete. It is
qualified in its entirety by reference to the relevant statutes
which contain detailed specific provisions regarding the
circumstances under which and the person for whose benefit
indemnification shall or may be made and accordingly are set
forth in Exhibit 99.2 hereto and incorporated herein by
reference.
ITEM 8. EXHIBITS.
The following exhibits are filed with or incorporated by
reference in this Registration Statement.
EXHIBIT NO.
(PER EXHIBIT
TABLES IN
ITEM 601 OF
REGULATION S-K) DESCRIPTION OF EXHIBIT
- --------------- ----------------------
4.1 Articles of Incorporation of the Registrant,
incorporated by reference to Registrant's
Annual Report on Form 10-K for the fiscal
year ended December 31, 1993, dated March 29,
1994.
4.2 Bylaws of the Registrant, incorporated by
reference to Registrant's Annual Report on
10-K for the fiscal year ended December 31,
1993, dated March 29, 1994.
5.1 Opinion of Smith Helms Mulliss & Moore,
L.L.P., as to legality of securities to be
registered.
23.1 Consent of Smith Helms Mulliss & Moore,
L.L.P. (included in Exhibit 5.1).
23.2 Consent of KPMG Peat Marwick LLP, independent
certified public accountants.
24.1 Power of Attorney (included in signature
page).
99.1 1995 Comprehensive Stock Option Plan.
99.2 Provisions of North Carolina law relating to
indemnification.
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this
Registration Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the Registration
Statement (or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a fundamental
change in the information set forth in the Registration
Statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in
the Registration Statement or any material change to such
information in the Registration Statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the Registration Statement is on Form S-3 or Form
S-8, and the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed by the Registrant pursuant to Section 13
or Section 15(d) of the Exchange Act that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment
shall be deemed to be a new Registration Statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act,
each filing of the Registrant's annual report pursuant to Section
13(a) or Section 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be
deemed to be a new Registration Statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors, officers
and controlling persons of the Registrant pursuant to the
foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such
liabilities (other than payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of
the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Securities Act and will be governed by the final adjudication
of such issue.
<PAGE>
SIGNATURES
THE REGISTRANT. Pursuant to the requirements of the
Securities Act of 1933, the Registrant certifies that it has
reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Concord,
North Carolina, on May 18, 1995.
CT COMMUNICATIONS, INC.
By: \S\ MICHAEL R. COLTRANE
Michael R. Coltrane
President and Chief Executive Officer
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each individual whose
signature appears below constitutes and appoints Michael R.
Coltrane and Roy W. Long, and each of them acting individually,
his true and lawful attorneys-in-fact and agents with full power
of substitution and resubstitution, for him and in his name,
place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this
registration statement, and to file the same, with all exhibits
thereto, and all documents in connection therewith, with the
Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them acting
individually, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and
about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents, and each of them acting
individually, or his substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933
this Registration Statement has been signed by the following
persons in the capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
\s\ MICHAEL R. COLTRANE President, Chief Executive May 18, 1995
Michael R. Coltrane Officer and Director
(Principal Executive Officer)
\s\ L.D. COLTRANE III Chairman of the Board May 18, 1995
L.D. Coltrane III and Director
\S\ ROY W. LONG Vice President, Treasurer May 18, 1995
Roy W. Long and Chief Financial
Officer (Principal Financial
and Principal Accounting
Officer)
\S\ JOHN R. BOGER, JR. Director May 18, 1995
John R. Boger, Jr.
\s\ PHIL W. WIDENHOUSE Director May 18, 1995
Phil W. Widenhouse
\S\ JERRY H. MCCLELLAN Executive Vice May 22, 1995
Jerry H. McClellan President, General
Plant Manager, Secretary
and Director
\S\ BETTY GAY BIVENS Director May 19, 1995
Betty Gay Bivens
\S\ BEN F.MYNATT Director May 19, 1995
Ben F. Mynatt
<PAGE>
EXHIBIT INDEX
EXHIBIT NO.
(PER EXHIBIT
TABLES IN
ITEM 601 OF SEQUENTIAL
REGULATION S-K) DESCRIPTION OF EXHIBIT PAGE NO.
- --------------- ---------------------- ----------
4.1 Articles of Incorporation of the
Registrant, incorporated by reference
to Registrant's Annual Report on Form
10-K for the fiscal year ended
December 31, 1993, dated March 29, 1994.
4.2 Bylaws of the Registrant, incorporated by
reference to Registrant's Annual Report
on 10-K for the fiscal year ended
December 31, 1993, dated March 29, 1994.
5.1 Opinion of Smith Helms Mulliss & Moore,
L.L.P., as to legality of securities to be
registered.
23.1 Consent of Smith Helms Mulliss & Moore,
L.L.P. (included in Exhibit 5.1).
23.2 Consent of KPMG Peat Marwick LLP,
independent certified public accountants.
24.1 Power of Attorney (included in signature
page).
99.1 1995 Comprehensive Stock Option Plan.
99.2 Provisions of North Carolina law relating
to indemnification.
SMITH HELMS MULLISS & MOORE, L.L.P.
P. O. Box 31247
Charlotte, North Carolina 28231
(704) 343-2000
May 26, 1995
CT Communications, Inc.
68 Cabarrus Avenue, East
P. O. Box 227
Concord, North Carolina 28025
Re: Registration Statement on Form S-8 Filed May 26, 1995 -
5,000 Shares of Class Nonvoting B Common Stock to be Issued
Pursuant to 1995 Comprehensive Stock Option Plan
Gentlemen:
In connection with the possible offering and sale from time
to time of all or a portion of 5,000 shares of the Class B
Nonvoting Common Stock, $50.00 par value per share, of CT
Communications, Inc. (the "Shares"), upon the terms and
conditions set forth in the Registration Statement on Form S-8
(the "Registration Statement") filed on May 26, 1995 by the
registrant with the Securities and Exchange Commission under the
Securities Act of 1933, we are of the opinion that when (a) the
Registration Statement shall become effective and (b) the Shares
have been sold upon the terms and conditions set forth in the
Registration Statement, the Shares will be validly authorized and
legally issued, fully paid and non-assessable.
We hereby consent to the filing of a copy of this opinion as
Exhibit 5.1 of the Registration Statement.
Very truly yours,
SMITH HELMS MULLISS & MOORE, L.L.P.<PAGE>
Independent Auditors' Consent
The Board of Directors
CT Communications, Inc.:
We consent to incorporation by reference in the registration
statement on Form S-8 pertaining to the CT Communications, Inc.
1995 Comprehensive Stock Option Plan of our report dated March 3,
1995, related to the consolidated balance sheets as of December
31, 1994 and 1993, and the related consolidated statements of
income, retained earnings, and cash flows for each of the years
in the three-year period ended December 31, 1994, and the
related financial statement schedules which report appears in
the December 31, 1994 annual report on Form 10-K of CT
Communications, Inc.
As discussed in Note 1 to the consolidated financial statements,
the Company changed its method of accounting for investments as
of Januay 1, 1994 to adopt the provisions of its Financial
Accounting Standards Board's Statement of Financial Accounting
Standards (SFAS) No. 115, "Accounting for Certain Investments in
Debt and Equity Securities." As discussed in Note 1, the Company
changed its method of accounting for income taxes on January 1,
1993 to adopt the provisions of the Financial Accounting
Standards Board's SFAS No. 109, "Accounting for Income Taxes."
KPMG PEAT MARWICK LLP
Charlotte, North Carolina
May 25, 1995
CT COMMUNICATIONS, INC.
1995 COMPREHENSIVE STOCK OPTION PLAN
CT Communications, Inc., a North Carolina corporation (the
"Corporation"), hereby establishes this 1995 Comprehensive Stock
Option Plan for the benefit of the Corporation and its
Subsidiaries, shareholders and Key Employees:
Article I. - General Provisions
Section 1.1 Purpose. This CT Communications, Inc. 1995
Comprehensive Stock Option Plan (the "Plan") is intended to
secure for CT Communications, Inc., its Subsidiaries and its
shareholders the benefits arising from ownership of the
Corporation's common stock by those selected Key Employees of the
Corporation who will be responsible for its future growth. The
Program is designed to help attract and retain superior personnel
for positions of substantial responsibility with the Corporation,
and to provide Key Employees with an additional incentive to
contribute to the success of the Corporation. It is also
intended that the Plan shall satisfy the requirements of Rule
16b-3 under the Securities Exchange Act of 1934.
Section 1.2 Definitions.
(a) "Board of Directors" means the Board of Directors of
the Corporation.
(b) "Code" means the Internal Revenue Code of 1986, as
amended from time to time.
(c) "Committee" means the Compensation Committee of the
Board of Directors appointed by the Board of Directors
to administer the Plan.
(d) "Common Stock" means the Nonvoting Class B common
stock, par value $50.00 per share, of the Corporation
to be issued pursuant to the Plan.
(e) "Corporation" means CT Communications, Inc.
(f) "Date of Grant" means the date on which an Incentive
Stock Option is granted.
(g) "Disabled" means the inability of an Optionee to engage
in his or her profession by reason of any medically
determinable physical or mental impairment which can be
expected to result in death or which is to last or can
be expected to last for a continuous period of not less
than twelve months, as determined by the Committee in
its sole discretion upon certification thereof by a
qualified physician selected by the Committee after
such physician examines the Optionee.
(h) "Fair Market Value" as of a given date means the value
for a share of Class B Common Stock in the most recent
quarterly appraisal provided by the Corporation's
appraisers.
(i) "Incentive Stock Option" means an Option granted by the
Corporation to a Key Employee which is intended to
qualify as an Incentive Stock Option under Code Section 422.
(j) "Key Employee" means an active full time employee of
the Corporation or its Subsidiaries who has significant
responsibility for the growth and financial success of
the Corporation including officers and other employees
of the Corporation and its Subsidiaries.
(k) "Option" means the right granted by the Corporation
pursuant to the Plan to a Key Employee to purchase
shares of Common Stock.
(l) "Optionee" means the individual granted an Option.
(m) "Plan" means the CT Communications, Inc. Comprehensive
Stock Option Plan.
(n) "Stock Option Agreement" means a formal written
agreement between the Corporation and an Optionee in
such form and containing such provisions not
inconsistent with the provisions of the Plan as the
Committee shall from time to time approve setting forth
the terms and conditions of the grant of an Option to
purchase shares of Common Stock pursuant to the Plan.
(o) "Subsidiary" means a subsidiary corporation of the
Corporation as that term is defined in Code Section 424(f).
"Subsidiaries" means more than one Subsidiary.
Article II - Administration
Section 2.1 Appointment of Committee. The Board of
Directors shall appoint the Committee which shall consist of not
less than three directors of the Corporation. The Committee
shall be composed of "disinterested persons" within the meaning
of Rule 16b-3 promulgated pursuant to the provisions of the
Securities Exchange Act of 1934. No member of the Committee or
member of the Board of Directors shall be liable for any action
or determination made in good faith with respect to the Plan or
to any option granted thereunder.
Section 2.2 Authority of The Committee. Subject to the
other provisions of the Plan and with a view to effecting its
purpose, the Committee shall have sole authority in its absolute
discretion: (i) to construe and interpret the Plan; (ii) to
define the terms used herein; (iii) to prescribe, amend, and
rescind rules and regulations relating to the Plan; (iv) to
determine the Key Employees of the Corporation and of the
Subsidiaries to whom Options shall be granted; (v) to determine
the time or times when Options shall be granted; (vi) to
determine the price or prices at which Options shall be granted;
(vii) to determine the option periods; (viii) to determine the
number of shares to be subject to each Option; (ix) to determine
whether any Options granted shall become vested over a period of
time and when they shall be fully vested; (x) to determine
whether Options to Key Employees shall be Incentive Stock
Options; (xi) to determine whether a Key Employee is Disabled;
and (xii) to make any other determinations necessary or advisable
for the administration of the Plan and to do everything necessary
or appropriate to administer the Plan. All decisions,
determinations, and interpretations made by the Committee shall
be binding and conclusive for all purposes upon all persons
including, without limitation, the Corporation and its
Subsidiaries, the Committee and each of the members thereof, the
directors, officers and employees of the Corporation and its
Subsidiaries, the Optionee, and their respective successors in
interest.
Section 2.3 Committee Administration. The members of the
Committee shall serve at the pleasure of the Board of Directors,
which may fill vacancies, however caused, in 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 shall deem
advisable. A majority of its members shall constitute a quorum,
and all actions of the Committee shall be taken by a majority of
its members. Any action of the Committee evidenced by a written
instrument, signed by a majority of its members, shall be fully
as effective as if it had been taken by a vote of a majority of
its members at a meeting duly called and held. The Committee
shall (i) appoint a secretary, who may be but need not be a
member of the Committee, (ii) keep minutes of its meetings, and
(iii) make such rules and regulations for the conduct of its
business as it shall deem advisable.
Section 2.4 Privileges of Stock Ownership. No person
entitled to exercise any option granted under the Plan shall have
any of the rights or privileges of a shareholder of the
Corporation in respect of any shares of stock issuable upon
exercise of such option until certificates representing such
shares shall have been issued and delivered. No shares shall be
required to be issued and delivered upon exercise of any option
under the Plan unless and until all of the requirements of law
and of all regulatory agencies having jurisdiction over the
issuance and delivery of the securities shall have been fully
complied with. Except as provided in Section 3.8, no adjustment
shall be made for dividends or any other distributions for which
the record date is prior to the date on which such stock
certificate is issued.
Section 2.5 Reservation of Shares of Common Stock. The
Corporation, during the term of this Plan, will at all times
reserve and keep available such number of shares of its Common
Stock as shall be sufficient to satisfy the requirements of the
Plan. In addition, the Corporation will from time to time, as is
necessary to accomplish the purposes of this Plan, seek to obtain
from any regulatory agency having jurisdiction any requisite
authority in order to issue and sell shares of Common Stock
hereunder. The inability of the Corporation to obtain from any
regulatory agency having jurisdiction the authority deemed by the
Corporation's counsel to be necessary to the lawful issuance and
sale of any shares of its stock hereunder shall relieve the
Corporation of any liability in respect of the non-issuance or
sale of the stock as to which the requisite authority shall not
have been obtained.
Section 2.6 Tax Withholding. The exercise of any option
granted under the Plan other than an Incentive Stock Option is
subject to the condition that if at any time the Corporation
shall determine, in its discretion, that the satisfaction of
withholding tax or other withholding liabilities under any state
or federal law is necessary or desirable as a condition of, or in
any connection with, such exercise or the delivery or purchase of
shares pursuant thereto, then in such event, the exercise of the
Option shall not be effective unless such withholding tax or
other withholding liabilities shall have been satisfied in a
manner acceptable to the Corporation. In the event of the
disposition by an Optionee of shares of Common Stock acquired
pursuant to the exercise of an Incentive Stock Option granted
pursuant to the Plan within two years of the granting of the
Incentive Stock Option or within one year after the exercise of
the Incentive Stock Option, the Corporation shall have the right
to require that the Optionee pay to the Corporation or have
withheld from the Optionee's compensation any amounts necessary
to satisfy the Corporation's withholding liabilities with respect
to such disposition.
Article III - Options
Section 3.1 Eligibility. In determining the Key Employees
to whom Options will be granted and the number of shares to be
covered by each Option, the Committee shall take into account the
duties of the respective employees, their present and potential
contributions to the success of the Corporation, the anticipated
number of years of effective service remaining, and such other
factors as they shall deem relevant in connection with
accomplishing the purposes of the Plan. Subject to the limits
set forth in this Plan, a Key Employee who has been granted an
Option may be granted an additional Option or Options if the
Committee shall so determine.
Section 3.2 Stock Subject to Option. Subject to adjustment
as provided in Section 3.8 hereof, shares to be issued upon the
exercise of Options may be authorized but unissued shares of
Common Stock or issued shares of Common Stock of the Corporation,
and the aggregate amount of Common Stock which may be issued upon
exercise of all Options under the Plan shall not exceed 5,000 of
such shares. If any Option granted under the Plan shall expire
or terminate for any reason, without having been exercised in
full, the shares covered by the Option but not purchased shall
again be available for Options to be granted under the Plan.
Section 3.3 Granting of Options; Option Price.
(a) Following the selection by the Committee of a Key
Employee to whom an Option shall be granted, the Corporation
shall tender for signature a Stock Option Agreement. The date on
which an Option shall be granted shall be the date of the
Committee's authorization of such grant, or such later date as
may be determined by the Committee at the time such grant is
authorized.
(b) The purchase price of the Common Stock under each
Option shall be determined by the Committee, but in no event
shall the purchase price with respect to authorized but
theretofore unissued shares of Common Stock be less than the par
value of the Common Stock.
Section 3.4 Exercise of Option. An Option may be exercised
by written notice to the Corporation at its offices at 68
Cabarrus Avenue East, Post Office Box 227, Concord, North
Carolina 28026-0227, or such other address to which the office
may be relocated, which notice shall (i) be signed by the
Optionee or by the Optionee's successors, as hereinafter
described in Section 9, (ii) state the number of shares with
respect to which the Option is being exercised, and (iii) contain
the representation that it is the Optionee's present intention to
acquire the shares being purchased for investment and not for
resale and such other representations as the Committee may
require. Payment in full of the option price of said shares
shall be made at the time of the exercise of the Option (i) in
cash or by check payable to the order of the Corporation, or (ii)
if authorized by the Committee or if specified in the Option
being exercised, by a promissory note made by the Optionee in
favor of the Corporation, upon the terms and conditions
determined by the Committee and secured by the shares issuable
upon exercise, complying with applicable law (including, without
limitation, state corporate and federal margin requirements), or
any combination thereof. As soon as practicable after said
notice and the option price have been received by the
Corporation, the Corporation shall deliver to the Optionee a
stock certificate registered in the Optionee's name representing
the Option shares.
Except as provided in Section 3.6 hereof, at the time of the
exercise of an Option, the Optionee must be an employee of the
Corporation or of a Subsidiary.
Except as otherwise provided herein, the Optionee shall not
have any rights of a shareholder of the Corporation with respect
to the shares covered by the Option except to the extent that,
and until, one or more certificates for shares shall have been
delivered to the Optionee upon the due exercise of the Option.
Section 3.5 Term of Option. Options granted hereunder shall
be exercisable in whole or in part or in installments, from time
to time, during the option period determined by the Committee and
set forth in the Stock Option Agreement. Any exercise of an
Option for less than the total number of shares of Common Stock
identified in the Option shall be deemed to be an exercise in
part and the Option may be exercised on the remaining shares in
accordance with the terms of this Plan at such time or times
determined by the Optionee, provided that at each such time the
Option is still exercisable under the terms of the Stock Option
Agreement and the Plan. Except as provided in Section 3.6 and
3.8, no Option granted under the Plan shall be exercisable within
six months of the date the Option is granted; provided, however,
that no Option granted under the Plan shall be exercisable within
six months of the date the Plan is approved by the shareholders
of the Corporation.
Section 3.6 Termination of Employment.
(a) If the employment of any person to whom an Option has
been granted is terminated for any reason other than death,
disability, retirement with the consent of the Corporation or
termination without cause, his or her Option or Options shall
terminate immediately. If an Optionee retires with the consent
of the Corporation or if an Optionee is terminated without cause
by the Corporation, or any of its Subsidiaries, the Optionee may
exercise his or her Option to the extent that he or she was
entitled to exercise it as of the date of said retirement or
termination but only within three months after said retirement or
termination and in no event after the first to occur of 1) the
date the Option would have otherwise expired or 2) ten years from
the date such Option was granted. A temporary leave of absence
approved by the Corporation or any of its Subsidiaries and the
Committee shall not be deemed to be a termination of employment.
(b) If an Optionee dies or becomes Disabled while he or she
is an employee of the Corporation or any of its Subsidiaries, or
shall die within three months after retirement (provided that
such retirement is with the consent of the Corporation), the
Optionee's Option may be exercised (to the extent the Optionee
would have been entitled to do so on the date of Optionee's death
or disability) not later than the first to occur of (i) the date
thirty (30) days after the date of his or her death or disability
or, if the Optionee dies within three months after retirement
(provided that such retirement is with the consent of the
Corporation), at any time within thirty (30) days after such
retirement, or (ii) the date the Option would have otherwise
expired, but in no event after the expiration of ten years from
the date the Option is granted. In the event of the Optionee's
death, such Options may be exercisable to the extent otherwise
provided herein by the executor or personal representative of the
Optionee's estate or by any person who acquired the right to
exercise such Options by bequest under the Optionee's will or by
inheritance. In the event the Optionee is Disabled, such Options
may be exercised to the extent otherwise provided herein by the
personal representative of the Optionee or such other person
designated by a court of competent jurisdiction or by power of
attorney to handle the Optionee's personal estate or affairs.
Section 3.7 The Right of the Corporation to Terminate
Employment. Nothing contained in the Plan or in any Option
granted pursuant to the Plan shall confer upon any Optionee any
right to be continued in the employment of the Corporation or one
of its Subsidiaries, or shall interfere in any way with the right
of the Corporation or any of its Subsidiaries, as the case may
be, to terminate his or her employment at any time for any
reason.
Section 3.8 Adjustments Upon Changes in Capitalization;
Acceleration of Exercise Rights.
(a) The total amount of shares for which Options may be
granted under the Plan and option rights (both as to the number
of shares and the option exercise price per share) shall be
appropriately adjusted for any increase or decrease in the number
of outstanding shares of Common Stock resulting from payment of a
stock dividend on the Common Stock, a subdivision or combination
of shares of the Common Stock or from a reclassification of the
Common Stock, and (in accordance with the provisions contained in
the next following paragraph) in the event of a merger or
consolidation.
(b) After the merger of one or more corporations into the
Corporation or any Subsidiary, any merger of the Corporation or a
Subsidiary into another corporation, any consolidation of the
Corporation or any Subsidiary and one or more other corporations,
or any other corporate reorganization of any form involving the
Corporation or a Subsidiary as a party thereto involving any
exchange, conversion, adjustment or other modification of the
outstanding shares of the Common Stock, each Optionee at the time
of such corporate reorganization shall, at no additional cost, be
entitled, upon any exercise of his Option, to receive, in lieu of
the number of shares as to which such Option shall then be so
exercised, the number and class of shares of stock or other
securities or such other property to which such Optionee would
have been entitled pursuant to the terms of the agreement of
merger or consolidation if at the time of such merger or
consolidation such Optionee had been a holder of record of a
number of shares of Common Stock equal to the number of shares
which then remain exercisable under such Option. Comparable
rights shall accrue to each Optionee in the event of successive
mergers or consolidations of the character described above.
The foregoing adjustments and the manner of application of
the foregoing provisions shall be determined by the Committee in
its sole discretion. Any such adjustment may provide for the
elimination of any fractional share which might otherwise become
subject to an Option.
(c) At the time of (i) the effective date of a plan of
merger or consolidation of the Corporation with any other
corporation as a result of which the holders of the voting
capital stock of the Corporation as a group would receive less
than 50% of the voting capital stock of the surviving or
resulting corporation, (ii) the effective date of an agreement
providing for the sale or transfer (other than as security for
obligations of the Corporation) of substantially all the assets
of the Corporation, or (iii) in the absence of a prior expression
of approval by the Board of Directors, the acquisition except by
inheritance or devise of more than 20% of the Corporation's
voting capital stock by any person within the meaning of Section
13(d)(3) of the Securities Exchange Act of 1934, as amended,
other than a person, or group including a person, who
beneficially owned, as of the effective date of the Plan, more
than five percent of the Corporation's Voting stock or equity;
then any Option granted hereunder shall become immediately
exercisable in full, subject to any appropriate adjustments in
the number of shares subject to the Option and the option
exercise price per share, and shall remain exercisable for the
remaining term of such Option, regardless of whether such Option
has been outstanding for six months or of any provision contained
in the Stock Option Agreement with respect thereto requiring that
the Option or any portion thereof be outstanding for a minimum
amount of time prior to exercise, subject to all of the terms
hereof and the Stock Option Agreement with respect thereto not
inconsistent with this paragraph.
(d) Anything contained herein to the contrary
notwithstanding, upon the dissolution or liquidation of the
Corporation each Option granted under the Plan shall terminate;
provided, however that following the adoption of a plan of
dissolution or liquidation, and in any event prior to such
dissolution or liquidation (and as provided above regarding
certain mergers and consolidations), each Option granted
hereunder shall be exercisable in full, regardless of whether
such Option has been outstanding for six months or of any
provision contained in the Stock Option Agreement with respect
thereto requiring that the Option or any portion thereof be
outstanding for a minimum amount of time prior to exercise,
subject to all of the terms hereof and of the Stock Option
Agreement with respect thereto not inconsistent with this
paragraph.
The grant of an Option pursuant to this Plan shall not
affect in any way the right or power of the Corporation or any of
its Subsidiaries to make adjustments, reclassification,
reorganizations, or changes of its capital or business structure,
or to merge or consolidate, or to dissolve, liquidate or sell, or
transfer all or part of its business or assets.
Section 3.9 Non-Transferability of Options. No Option
granted under the Plan shall be transferable by the Optionee
other than by will, or, if Optionee dies intestate, by the laws
of descent and distribution of the state of Optionee's domicile
at the time of death. During the Optionee's lifetime, the Option
shall be exercisable only by the Optionee.
Article IV - Incentive Stock Options
Section 4.1 Committee Discretion. The Committee may in its
sole discretion designate certain Options granted pursuant to the
Plan as Incentive Stock Options. Incentive Stock Options shall
be subject to Section 4.2 hereof and all other terms and
conditions of the Plan, except to the extent that such terms and
conditions conflict with the provisions of Section 4.2 hereof, in
which case section 4.2 shall control.
Section 4.2 Additional Conditions Applicable to Incentive
Stock Options.
(a) Incentive Stock Options shall not be granted more than
10 years after the effective date of the Plan, and shall not be
exercisable after the expiration of ten years from the Date of
Grant.
(b) No person may be granted an Incentive Stock Option in
any calendar year if the aggregate Fair Market Value (determined
as of the time the Option is granted) of the stock with respect
to which incentive stock options are exercisable for the first
time by such employee during any calendar year, under this and
all other incentive stock option plans (as defined in Section 422
of the Code) of the Corporation or its Subsidiaries, would exceed
$100,000.
(c) Except as provided in Section 4.3 hereof, no person
shall be eligible to receive an Incentive Stock Option if such
person would beneficially own, directly or indirectly, capital
stock of the Corporation possessing more than ten percent of the
total combined voting power of all classes of capital stock of
the Corporation. For purposes of the preceding sentence, the
rules of Section 424(d) of the Code shall apply, and capital
stock of the Corporation which an employee may purchase under
outstanding options shall be treated as stock owned by such
employee.
Section 4.3 Ten Percent Shareholders. Notwithstanding the
provisions of Section 4.2(c) regarding the ineligibility of
certain ten percent owners of the Corporation's capital stock,
any Key Employee deemed to be ineligible pursuant to the
provisions of Section 4.2(c) hereof may be granted an Option
hereunder which (i) provides for an option price of at least 110%
of the Fair Market Value of the stock at the Date of Grant, (ii)
is not exercisable after the expiration of five years from the
Date of Grant, and (iii) is subject to all of the other terms and
conditions of the Plan.
Section V - Miscellaneous Provisions
Section 5.1 Amendment and Termination. The Plan may be
amended or terminated by the Board of Directors without
shareholder approval as deemed in the best interests of the
Corporation, provided that the Board of Directors shall submit
any amendments to the shareholders for approval to the extent
necessary to maintain compliance with the requirements of Rule
16b-3 of the Securities and Exchange Act of 1934, as amended.
Section 5.2 Effective Date of the Plan. Effectiveness of
the Plan is subject to approval by the shareholders of the
Corporation within 12 months from the date the Plan is adopted by
the Board of Directors. Notwithstanding any other provision
hereof, options may be granted under the Plan prior to obtaining
shareholder approval, however no Option granted hereunder may be
exercised prior to approval of the Plan by the shareholders of
the Corporation and, in the event the shareholders do not approve
the Plan within one year from the effective date of the Plan, all
Options granted hereunder shall be void.
<PAGE>
PROVISIONS OF NORTH CAROLINA BUSINESS CORPORATION ACT
REGARDING INDEMNIFICATION
"Section 55-8-50. Policy statement and definitions.
(a) It is the public policy of this State to enable
corporations organized under this Chapter to attract and maintain
responsible, qualified directors, officers, employees and agents,
and, to that end, to permit corporations organized under this
Chapter to allocate the risk of personal liability of directors,
officers, employees and agents through indemnification and
insurance as authorized in this Part.
(b) Definitions in this Part:
(1) 'Corporation' includes any domestic or foreign
corporation absorbed in a merger which, if its
separate existence had continued, would have had
the obligation or power to indemnify its
directors, officers, employees, or agents, so that
a person who would have been entitled to receive
or request indemnification from such corporation
if its separate existence had continued shall
stand in the same position under this Part with
respect to the surviving corporation.
(2) 'Director' means an individual who is or was a
director of a corporation or an individual who,
while a director of a corporation, is or was
serving at the corporation's request as a
director, officer, partner, trustee, employee, or
agent of another foreign or domestic corporation,
partnership, joint venture, trust, employee
benefit plan, or other enterprise. A director is
considered to be serving an employee benefit plan
at the corporation's request if his duties to the
corporation also impose duties on, or otherwise
involve services by, him to the plan or to
participants in or beneficiaries of the plan.
'Director' includes, unless the context requires
otherwise, the estate or personal representative
of a director.
(3) 'Expenses' means expenses of every kind incurred
in defending a proceeding, including counsel fees.
(4) 'Liability' means the obligation to pay a
judgment, settlement, penalty, fine (including an
excise tax assessed with respect to an employee
benefit plan), or reasonable expenses incurred
with respect to a proceeding.
(4a) 'Officer', 'employee', or 'agent' includes, unless
context requires otherwise, the estate or personal
representative of a person who acted in that
capacity.
(5) 'Official capacity' means: (i) when used with
respect to a director, the office of director in a
corporation; and (ii) when used with respect to an
individual other than a director, as contemplated
in G.S. 55-8-56, the office in a corporation held
by the officer or the employment or agency
relationship undertaken by the employee or agent
on behalf of the corporation. 'Official capacity'
does not include service for any other foreign or
domestic corporation or any partnership, joint
venture, trust, employee benefit plan, or other
enterprise.
(6) 'Party' includes an individual who was, is, or is
threatened to be made a named defendant or
respondent in a proceeding.
(7) 'Proceeding' means any threatened, pending, or
completed action, suit, or proceeding, whether
civil, criminal, administrative, or investigative
and whether formal or informal.
Section 55-8-51. Authority to indemnify.
(a) Except as provided in subsection (d), a corporation may
indemnify an individual made a party to a proceeding because he
is or was a director against liability incurred in the proceeding
if:
(1) He conducted himself in good faith; and
(2) He reasonably believed (i) in the case of conduct
in his official capacity with the corporation,
that his conduct was in its best interests; and
(ii) in all other cases, that his conduct was at
least not opposed to its best interests; and
(3) In the case of any criminal proceeding, he had no
reasonable cause to believe his conduct was
unlawful.
(b) A director's conduct with respect to an employee
benefit plan for a purpose he reasonably believed to be in the
interests of the participants in and beneficiaries of the plan is
conduct that satisfies the requirement of subsection (a)(2)(ii).
(c) The termination of a proceeding by judgment, order,
settlement, conviction, or upon a plea of no contest or its
equivalent is not, of itself, determinative that the director did
not meet the standard of conduct described in this section.
(d) A corporation may not indemnify a director under this
section:
(1) In connection with a proceeding by or in the right
of the corporation in which the director was
adjudged liable to the corporation; or
(2) In connection with any other proceeding charging
improper personal benefit to him, whether or not
involving action in his official capacity, in
which he was adjudged liable on the basis that
personal benefit was improperly received by him.
(e) Indemnification permitted under this section in
connection with a proceeding by or in the right of the
corporation that is concluded without a final adjudication on the
issue of liability is limited to reasonable expenses incurred in
connection with the proceeding.
(f) The authorization, approval or favorable recommendation
by the board of directors of a corporation of indemnification, as
permitted by this section, shall not be deemed an act or
corporate transaction in which a director has a conflict of
interest, and no such indemnification shall be void or voidable
on such ground.
Section 55-8-52. Mandatory indemnification.
Unless limited by its articles of incorporation, a
corporation shall indemnify a director who was wholly successful,
on the merits or otherwise, in the defense of any proceeding to
which he was a party because he is or was a director of the
corporation against reasonable expenses incurred by him in
connection with the proceeding.
Section 55-8-53. Advance for expenses.
Expenses incurred by a director in defending a proceeding
may be paid by the corporation in advance of the final
disposition of such proceeding as authorized by the board of
directors in the specific case or as authorized or required under
any provision in the articles of incorporation or bylaws or by
any applicable resolution or contract upon receipt of an
undertaking by or on behalf of the director to repay such amount
unless it shall ultimately be determined that he is entitled to
be indemnified by the corporation against such expenses.
Section 55-8-54. Court-ordered indemnification.
Unless a corporation's articles of incorporation provide
otherwise, a director of the corporation who is a party to a
proceeding may apply for indemnification to the court conducting
the proceeding or to another court of competent jurisdiction. On
receipt of an application, the court after giving any notice the
court considers necessary may order indemnification if it
determines:
(1) The director is entitled to mandatory
indemnification under G.S. 55-8-52, in which case
the court shall also order the corporation to pay
the director's reasonable expenses incurred to
obtain court-ordered indemnification; or
(2) The director is fairly and reasonably entitled to
indemnification in view of all the relevant
circumstances, whether or not he met the standard
of conduct set forth in G.S. 55-8-51 or was
adjudged liable as described in G.S. 55-8-51(d),
but if he was adjudged so liable his
indemnification is limited to reasonable expenses
incurred.
Section 55-8-55. Determination and authorization of indemnification.
(a) A corporation may not indemnify a director under
G.S. 55-8-51 unless authorized in the specific case after a
determination has been made that indemnification of the director
is permissible in the circumstances because he has met the
standard of conduct set forth in G.S. 55-8-51.
(b) The determination shall be made:
(1) By the board of directors by majority vote of a
quorum consisting of directors not at the time
parties to the proceeding;
(2) If a quorum cannot be obtained under subdivision
(1), by majority vote of a committee duly
designated by the board of directors (in which
designation directors who are parties may
participate), consisting solely of two or more
directors not at the time parties to the
proceeding;
(3) By special legal counsel (i) selected by the board
of directors or its committee in the manner
prescribed in subdivision (1) or (2); or (ii) if a
quorum of the board of directors cannot be
obtained under subdivision (1) and a committee
cannot be designated under subdivision (2),
selected by majority vote of the full board of
directors (in which selection directors who are
parties may participate); or
(4) By the shareholders, but shares owned by or voted
under the control of directors who are at the time
parties to the proceeding may not be voted on the
determination.
(c) Authorization of indemnification and evaluation as to
reasonableness of expenses shall be made in the same manner as
the determination that indemnification is permissible, except
that if the determination is made by special legal counsel,
authorization of indemnification and evaluation as to
reasonableness of expenses shall be made by those entitled under
subsection (b)(3) to select counsel.
Section 55-8-56. Indemnification of officers, employees, and agents.
Unless a corporation's articles of incorporation provide
otherwise:
(1) An officer of the corporation is entitled to
mandatory indemnification under G.S. 55-8-52, and
is entitled to apply for court-ordered
indemnification under G.S. 55-8-54, in each case
to the same extent as a director;
(2) The corporation may indemnify and advance expenses
under this Part to an officer, employee, or agent
of the corporation to the same extent as to a
director; and
(3) A corporation may also indemnify and advance
expenses to an officer, employee, or agent who is
not a director to the extent, consistent with
public policy, that may be provided by its
articles of incorporation, bylaws, general or
specific action of its board of directors, or
contract.
Section 55-8-57. Additional indemnification and insurance.
(a) In addition to and separate and apart from the
indemnification provided for in G.S. 55-8-51, 55-8-52, 55-8-54,
55-8-55 and 55-8-56, a corporation may in its articles of
incorporation or bylaws or by contract or resolution indemnify or
agree to indemnify any one or more of its directors, officers,
employees, or agents against liability and expenses in any
proceeding (including without limitation a proceeding brought by
or on behalf of the corporation itself) arising out of their
status as such or their activities in any of the foregoing
capacities; provided, however, that a corporation may not
indemnify or agree to indemnify a person against liability or
expenses he may incur on account of his activities which were at
the time taken known or believed by him to be clearly in conflict
with the best interests of the corporation. A corporation may
likewise and to the same extent indemnify or agree to indemnify
any person who, at the request of the corporation, is or was
serving as a director, officer, partner, trustee, employee, or
agent of another foreign or domestic corporation, partnership,
joint venture, trust or other enterprise or as trustee or
administrator under an employee benefit plan. Any provision in
any articles of incorporation, bylaw, contract, or resolution
permitted under this section may include provisions for recovery
from the corporation of reasonable costs, expenses, and
attorneys' fees in connection with the enforcement of rights to
indemnification granted therein and may further include
provisions establishing reasonable procedures for determining and
enforcing the rights granted therein.
(b) The authorization, adoption, approval, or favorable
recommendation by the board of directors of a public corporation
of any provision in any articles of incorporation, bylaw,
contract or resolution, as permitted in this section, shall not
be deemed an act or corporate transaction in which a director has
a conflict of interest, and no such articles of incorporation or
bylaw provision or contract or resolution shall be void or
voidable on such grounds. The authorization, adoption, approval,
or favorable recommendation by the board of directors of a
nonpublic corporation of any provision in any articles of
incorporation, bylaw, contract or resolution, as permitted in
this section, which occurred on or prior to July 1, 1990, shall
not be deemed an act or corporate transaction in which a director
has a conflict of interest, and no such articles of
incorporation, bylaw provision, contract or resolution shall be
void or voidable on such grounds. Except as permitted in
G.S. 55-8-31, no such bylaw, contract, or resolution not adopted,
authorized, approved or ratified by shareholders shall be
effective as to claims made or liabilities asserted against any
director prior to its adoption, authorization, or approval by the
board of directors.
(c) A corporation may purchase and maintain insurance on
behalf of an individual who is or was a director, officer,
employee, or agent of the corporation, or who, while a director,
officer, employee, or agent of the corporation, is or was serving
at the request of the corporation as a director, officer,
partner, trustee, employee, or agent of another foreign or
domestic corporation, partnership, joint venture, trust, employee
benefit plan, or other enterprise, against liability asserted
against or incurred by him in that capacity or arising from his
status as a director, officer, employee, or agent, whether or not
the corporation would have power to indemnify him against the
same liability under any provision of this act.
Section 55-8-58. Application of Part.
(a) If articles of incorporation limit indemnification or
advance for expenses, indemnification and advance for expenses
are valid only to the extent consistent with the articles.
(b) This Part does not limit a corporation's power to pay
or reimburse expenses incurred by a director in connection with
his appearance as a witness in a proceeding at a time when he has
not been made a named defendant or respondent to the proceeding.
(c) This Part shall not affect rights or liabilities
arising out of acts or omissions occurring before July 1, 1990."
