As filed with the Securities and Exchange Commission on May 12, 1994
Registration No. 33-_____
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
________________
CCB FINANCIAL CORPORATION
(Exact name of Registrant as specified in its charter)
North Carolina 56-1347849
(State or other Jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
_________________________
111 Corcoran Street
Durham, North Carolina 27701
(919) 683-7777
(Address of principal executive offices, including Zip Code)
_________________________
1993 MANAGEMENT RECOGNITION PLAN
FOR GRAHAM SAVINGS BANK, INC., SSB
(Full title of the plan)
_________________________
ERNEST C. ROESSLER
President
CCB Financial Corporation
Post Office Box 931
Durham, North Carolina 27702
(919) 683-7777
(Name and address of agent for service)
Copy to:
Anthony Gaeta, Jr., Esq.
Ward and Smith, P.A.
Two Hannover Square, Suite 2400
Post Office Box 2091
Raleigh, North Carolina 27602-2091
Telephone: (919) 836-1800
_________________________
CALCULATION OF REGISTRATION FEE (1)
Proposed Proposed
Title of Maximum Maximum Amount of
Securities to Amount to be Offering Price Aggregate Registration
be Registered Registered Per Share Offering Price Fee (1)
Common Stock,
$5 par value 41,888 $35.80 $1,499,590 $517.06
(1)The shares of Registrant's common stock, $5.00 par value (the "Common Stock")
are being offered to eligible directors and employees of Registrant's
subsidiaries pursuant to the terms of Registrant's 1993 Management
Recognition Plan for Graham Savings Bank, Inc., SSB (the "Plan"). Pursuant
to Rule 457(h), the Aggregate Offering Price and the Registration Fee have
been calculated on the basis of the maximum number of shares to be issued
under the Plan and an Offering Price equal to the price at which the shares
were issued pursuant to the Plan.
<PAGE>
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
The following documents previously filed by Registrant with the
Securities and Exchange Commission (the "Commission") under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), are incorporated
herein by reference:
(i) Registrant's Annual Report on Form 10-K for the year ended
December 31, 1993;
(ii) Registrant's Current Report on Form 8-K dated March 14, 1994;
In addition, all documents subsequently filed with the Commission by
Registrant pursuant to Sections 13(a), 13(c), 14, and 15(d) of the Exchange
Act after the date hereof and prior to the filing of a post-effective
amendment which indicates that all securities being offered have been sold
or which deregisters all securities then remaining unsold shall be deemed
to be incorporated herein by reference and to be a part hereof from the
dates of filing of such documents.
Item 4. Description of Securities
The Common Stock is registered under Section 12 of the Exchange Act.
Item 5. Interests of Named Experts and Counsel
The validity of the shares of Common Stock offered hereby will be
passed upon by Ward and Smith, P.A., counsel to Registrant.
Item 6. Indemnification of Directors and Officers
Registrant is incorporated under the laws of the State of North
Carolina. North Carolina's Business Corporation Act (the "BCA") contains
provisions prescribing the extent to which directors and officers of a
corporation shall or may be indemnified.
The BCA permits a corporation, with certain exceptions, to indemnify a
current or former officer or director against liability if he acted in good
faith and he reasonably believed (i) in the case of conduct in his official
capacity with the corporation, that his conduct was in its best interests,
(ii) in all other cases, that his conduct was at least not opposed to its
best interests and (iii) with respect to any criminal action or proceeding,
had no reasonable cause to believe his conduct was unlawful. A corporation
may not indemnify him in connection with a proceeding by or in the right
of the corporation in which he was adjudged liable to the corporation or
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 unless and only to the extent that the court in which such
action or suit was brought shall determine upon application that, despite
the adjudication of liability, but in view of all the circumstances of the
<PAGE>
case, he is fairly and reasonably entitled to indemnity for such reasonable
expenses incurred which the court shall deem proper.
The BCA requires a corporation to indemnify an officer or director in the
defense of any proceeding to which he was a party against reasonable
expenses to the extent that he is wholly successful on the merits or
otherwise in his defense. Indemnification under the BCA generally shall
be made by the corporation only upon a determination that indemnification
of the director or officer was proper under the circumstances because he
met the applicable standard of conduct. Such determination may be made by
(i) the Board of Directors by a majority vote of a quorum consisting of
directors who are not parties to such proceeding, (ii) if such a quorum is
not obtainable, by majority vote of a committee duly designated by the
Board of Directors consisting solely of two or more directors not at the
time party to such proceeding, (iii) if such quorum is not obtainable, or,
even if obtainable if a quorum of disinterested directors so directs, by
independent legal counsel in a written opinion, or (iv) by the stockholders
of the corporation.
The BCA permits a corporation to provide for indemnification of directors
and officers in its articles of incorporation or bylaws or by contract or
otherwise, against liability in various proceedings, and to purchase and
maintain insurance policies on behalf of these individuals. Registrant's
Amended and Restated Articles of Incorporation provide for the elimination
of personal liability for monetary damages for certain breeches of
fiduciary duty and Registrant's Bylaws provide for the indemnification of
directors and officers to the maximum extent permitted by law.
Item 7. Exemption From Registration Claimed
Not applicable.
Item 8. Exhibits
The following exhibits are filed herewith or incorporated herein by
reference as part of this Registration Statement:
Exhibit No. Description Reference
4 Excerpts from Registrant's Amended Incorporated by
and Restated Articles of reference
Incorporation relating to rights
of holders of Registrant's Common
Stock (incorporated by reference
to Exhibit 4 of Registrant's
Registration Statement No.
33-56398 on Form S-3 declared
effective by the Commission on
February 3, 1993)
5 Opinion of Ward and Smith, P.A. as Filed herewith
to the legality of the securities
being registered
23.1 Consent of KPMG Peat Marwick Filed herewith
<PAGE>
23.2 Consent of Ward and Smith, P.A. Filed herewith
(included in Exhibit 5)
24 Power of Attorney Filed herewith
99 Copy of 1993 Management Filed herewith
Recognition Plan for Graham
Savings Bank, Inc., SSB
Item 9. Undertakings
(a) 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 of 1933
(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 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 purposes 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) 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)
<PAGE>
of the Exchange Act that is incorporated by reference in the
Registration Statement shall be deemed to be a new Registration
Statement relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers, and
controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in the
opinion of the Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities
(other than the payment by the Registrant of expenses incurred or paid
by a 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
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 Durham, State of North Carolina,
on May 11, 1994.
CCB Financial Corporation
(Registrant)
By:/s/ Ernest C. Roessler
Ernest C. Roessler
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
Signature Title Date
/s/ Ernest C. Roessler President and May 11, 1994
Ernest C. Roessler Director
(Principal
Executive
Officer)
/s/ W. Harold Parker, Jr. Senior Vice May 11, 1994
W. Harold Parker, Jr. President and
Controller
(Principal
Financial and
Accounting
Officer)
*/s/ W. L. Burns, Jr. Chairman of
W. L. Burns, Jr. the Board May 11, 1994
J. Harper Beall, III Director ___________, 1994
*/s/ James B. Brame, Jr. Director May 11, 1994
James B. Brame, Jr.
*/s/ Timothy B. Burnett Director May 11, 1994
Timothy B. Burnett
*/s/ Arthur W. Clark Director May 11, 1994
Arthur W. Clark
*/s/ Kinsley van R. Dey, Jr. Director May 11, 1994
Kinsley van R. Dey, Jr.
*/s/ Frances Hill Fox Director May 11, 1994
Frances Hill Fox
<PAGE>
T. E. Haigler, Jr. Director ___________, 1994
*/s/ George R. Herbert Director May 11, 1994
George R. Herbert
Edward S. Holmes Director ___________, 1994
Owen G. Kenan Director ___________, 1994
Eugene J. McDonald Director ___________, 1994
Hamilton W. McKay, Jr., M.D. Director ___________, 1994
*/s/ Eric B. Munson Director May 11, 1994
Eric B. Munson
John B. Stedman Director ___________, 1994
H. Allen Tate, Jr. Director ___________, 1994
*/s/ Phail Wynn, Jr. Director May 11, 1994
Dr. Phail Wynn, Jr.
By:/s/ W. Harold Parker, Jr.
W. Harold Parker, Jr., Attorney-in-Fact
<PAGE>
EXHIBIT INDEX
Exhibit No. Description Page No.
4 Excerpts from Registrant's Amended Incorporated
and Restated Articles of by reference
Incorporation relating to rights
of holders of Registrant's Common
Stock
5 Opinion of Ward and Smith, P.A. as
to the legality of the securities
being registered
23.1 Consent of KPMG Peat Marwick
23.2 Consent of Ward and Smith, P.A.
Included in Exhibit 5
24 Power of Attorney
99 Copy of 1993 Management
Recognition Plan for Graham
Savings Bank, Inc., SSB
May 6, 1994
Board of Directors
CCB Financial Corporation
111 Corcoran Street
Durham, North Carolina 27701
RE: 1993 Management Recognition Plan for
Graham Savings Bank, Inc., SSB
Our File 93R0034(A)
Gentlemen:
We have acted as special counsel to CCB Financial Corporation
("CCB") in connection with the adoption of CCB's 1993 Management
Recognition Plan for Graham Savings Bank, Inc., SSB (the "Plan")
and the issuance by CCB of up to 41,888 shares of its $5.00 par
value common stock (the "Shares") pursuant to the terms of the
Plan.
In our capacity as special counsel, we have examined originals or
copies, certified or otherwise and identified to our satisfaction,
of the articles of incorporation, bylaws and corporate resolutions
of CCB, the Plan, the Registration Statement on Form S-8 relating
to the Plan filed by CCB with the Securities and Exchange
Commission (the "Registration Statement"), the relevant provisions
of Chapter 55 of the North Carolina General Statutes, and such
other records, documents and legal matters as we have deemed
relevant and necessary as the basis for rendering our opinion
hereinafter set forth. In addition, we have made reasonable
inquiries of the officers of CCB as to certain relevant items. In
all examinations of documents, we have assumed the genuineness of
all original documents and all signatures and the conformity to
original documents of all copies submitted to us as certified,
conformed or photostatic copies.
Based upon the foregoing, it is our opinion that all requisite
corporate action has been taken to adopt the Plan and to authorize
the issuance of the Shares pursuant thereto; and, that, provided
the Registration Statement shall have become and shall remain
<PAGE>
effective, when the Shares registered thereunder shall have been
issued in accordance with the terms of the Plan as it appears as an
exhibit to the Registration Statement, the Shares so issued will be
validly authorized, legally issued, fully paid and nonassessable
shares of the common stock of CCB.
This opinion is furnished by us solely for your benefit in
connection with the Registration Statement and may not be quoted or
relied upon by, nor may copies be delivered to, any other person or
entity or used for any other purpose, without our prior express
written consent. We hereby expressly disclaim any duty or
responsibility to update this opinion or the information upon which
it is based after the date hereof.
We hereby consent to the reference to this firm in the Registration
Statement and to the filing of this opinion as an exhibit thereto.
Yours very truly,
WARD AND SMITH, P.A.
RDR:rdr
RLMAIN\3656
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
CCB Financial Corporation
We consent to the use of our report incorporated herein by
reference in the Registration Statement to register shares
pursuant to the 1993 Management Recognition Plan for Graham
Savings Bank, Inc., SSB.
KPMG PEAT MARWICK
Raleigh, North Carolina
May 6, 1994
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of CCB
Financial Corporation, and the several undersigned officers and
directors thereof whose signatures appear below hereby makes,
constitutes and appoints Ernest C. Roessler and W. Harold Parker,
or either of them, its and his or her true and lawful attorneys,
with full power of substitution to execute, deliver and file in its
or his or her name and on its or his or her behalf, and in each of
the undersigned officer's and director's capacity or capacities as
shown below, (a) Registration Statements on Form S-8 (or other
appropriate form) with respect to the registration under the
Securities Act of 1933, as amended, of the shares of Common Stock
of CCB Financial Corporation, par value $5.00 per share, to be
issued pursuant to the 1993 Nonstatutory Stock Option Plan and the
1993 Management Recognition Plan for Graham Savings Bank, Inc., SSB
adopted by CCB Financial Corporation for the benefit of the
directors and employees of certain of its subsidiary corporations
and all documents in support thereof or supplemental thereto and
any and all amendments, including any and all post-effective
amendments, to the foregoing (hereinafter called the "Registration
Statements"), (b) such registration statements, petitions,
applications, consents to service of process or other instruments,
any and all documents in support thereof or supplemental thereto,
and any and all amendments or supplements to the foregoing, as may
be necessary or advisable to qualify or register the securities
covered by said Registration Statement; and each of CCB Financial
Corporation and said officers and directors hereby grants to said
attorneys, or any of them, full power and authority to do and
perform each and every act and thing whatsoever as said attorney
may deem necessary or advisable to carry out fully the intent of
this power of attorney to the same extent and with the same effect
as CCB Financial Corporation might or could do, and as each of said
officers and directors might or could do personally in his or her
capacity or capacities as aforesaid, and each of CCB Financial
Corporation and said officers and directors hereby ratifies and
confirms all acts and things which said attorneys might do or cause
to be done by virtue of this power of attorney and its or his or
her signatures as the same may be signed by said attorneys to any
or all of the following (and/or any and all amendments and
supplements to any or all thereof): such Registration Statements
filed under the Securities Act of 1933, as amended, and all such
registration statements, petitions, applications, consents to
service of process and other instruments, and any all documents in
support thereof or supplemental thereto, filed under such
securities laws, regulations and requirements as may be applicable.
IN WITNESS WHEREOF, CCB Financial Corporation has caused
this power of attorney to be signed on its behalf, and each of the
undersigned Officers and Directors in the capacity or capacities
noted has hereunto set his or her hand on the date indicated below.
CCB FINANCIAL CORPORATION
(Registrant)
By:/s/ Ernest C. Roessler
Ernest C. Roessler
Date: May 11, 1994
<PAGE>
Signature Title Date
/s/ Ernest C. Roessler President and May 11, 1994
Ernest C. Roessler Director
(Principal
Executive
Officer)
/s/ W. Harold Parker, Jr. Senior Vice May 11, 1994
W. Harold Parker, Jr. President and
Controller
(Principal
Financial and
Accounting
Officer)
/s/ W. L. Burns, Jr. Chairman of the May 11, 1994
W. L. Burns, Jr. Board
J. Harper Beall, III Director ________, 1994
/s/ James B. Brame, Jr. Director May 11, 1994
James B. Brame, Jr.
/s/ Timothy B. Burnett Director May 11, 1994
Timothy B. Burnett
/s/ Arthur W. Clark Director May 11, 1994
Arthur W. Clark
/s/ Kinsley van R. Dey Director May 11, 1994
Kinsley van R. Dey
/s/ Frances Hill Fox Director May 11, 1994
Frances Hill Fox
T. E. Haigler, Jr. Director ________, 1994
/s/ George R. Herbert Director May 11, 1994
George R. Herbert
Edward S. Holmes Director ________, 1994
Owen G. Kenan
Eugene J. McDonald Director ________, 1994
Hamilton W. McKay, Jr., M.D. Director ________, 1994
/s/ Eric B. Munson Director May 11, 1994
Eric B. Munson
<PAGE>
John B. Stedman Director ________, 1994
H. Allen Tate, Jr. Director ________, 1994
/s/ Phail Wynn, Jr. Director May 11, 1994
Dr. Phail Wynn, Jr.
CCB FINANCIAL CORPORATION
1993 MANAGEMENT RECOGNITION PLAN
FOR GRAHAM SAVINGS BANK, INC., SSB
CCB Financial Corporation, a North Carolina bank holding
company (hereinafter referred to as the "Corporation"), does herein
set forth the terms of the 1993 Management Recognition Plan for
Graham Savings Bank, Inc., SSB (hereinafter referred to as this
"Plan") which was adopted by the Board of Directors (hereinafter
referred to as the "Corporate Board") of the Corporation.
1. Purpose of this Plan.
(a) The purpose of this Plan is to provide to directors
and certain officers of certain of the Corporation's subsidiary
corporations (hereinafter referred to as "Participants" or
singularly, "Participant") an ownership interest in the
Corporation, in consideration of their contributions to the
management of the Corporation or any of its subsidiaries by making
awards (hereinafter referred to as "Awards" or singularly, "Award")
of shares of common stock, par value $5.00 per share, of the
Corporation ("Common Stock"). The Corporate Board believes that
participation in the ownership of the Corporation will induce
Participants to continue to serve the Corporation or any of its
subsidiaries as directors or officers and encourage them to
contribute to the future growth and profits of the Corporation and
its subsidiaries. In addition, the existence of this Plan will
make it possible for the Corporation to attract capable individuals
to serve as directors or officers of the Corporation and its
subsidiaries.
(b) This Plan was adopted in connection with
the conversion of Graham Savings Bank, SSB from a North
Carolina-chartered mutual savings bank to a North
Carolina-chartered stock savings bank (hereinafter referred to as
the "Bank") and the simultaneous acquisition of the Bank by the
Corporation (the "Conversion") which acquired all of the stock of
the Bank issued in connection with the Conversion.
2. Administration of this Plan.
(a) This Plan shall be administered by the Compensation
Committee of the Corporate Board (the "Committee"). The Committee
shall have full power and authority to construe, interpret and
administer this Plan. All actions, decisions, determinations, or
interpretations of the Committee shall be final, conclusive, and
binding upon all parties.
(b) The Committee shall decide to whom Awards shall be
made under this Plan except as provided in Subparagraphs 3(b) and
5(a) hereof, the number of shares of Common Stock subject to each
Award except as provided in Subparagraph 5(a) hereof and such
additional terms and conditions for Awards as the Committee shall
deem appropriate, including, without limitation, any determinations
as to the restrictions or conditions on transfer of shares of
Common Stock that are necessary or appropriate to satisfy all
applicable securities and banking laws, rules, regulations, and
listing requirements.
(c) The Committee may designate any officers or
employees of the Corporation or of any of its subsidiaries to
assist in the administration of this Plan. The Committee may
authorize such individuals to execute documents on its behalf and
may delegate to them such other ministerial and limited
discretionary duties as the Committee may see fit.
3. Shares of Common Stock Available Under the Plan.
(a) In connection with and simultaneously upon the
Conversion, the Corporation shall provide funding to the Plan to
acquire 41,888 shares of authorized but unissued Common Stock (the
"Plan Shares"). The Plan Shares shall be delivered by the
Committee pursuant to the terms of this Plan.
(b) Upon acquisition of the Plan Shares as provided in
Subparagraph (a) above, 41,888 of such shares (the "Allocated Plan
Shares") shall be allocated as provided in Paragraph 5 hereof. If
shares once allocated to a Participant are forfeited as provided in
Paragraph 6 hereof, then such forfeited shares shall be retained by
the Committee and they shall again be available for making
additional Awards to Participants as provided in Paragraph 2
hereof.
(c) The shares referred to in (i) the last sentence of
Subparagraph (b) above and (ii) the last sentence of this
Subparagraph (c) shall be treated collectively as a pool of shares
available (hereinafter referred to as the "Available Shares") for
making additional Awards to Participants as provided in Paragraph 2
hereof. With respect to Available Shares, if any such shares once
allocated to a Participant are forfeited as provided in Paragraph 6
hereof, then such forfeited shares shall be available again for
grants to Participants as provided in Paragraph 2 hereof.
4. Eligibility. The Participants in this Plan to whom
Awards may be made shall be the following: members of the Board of
Directors of the Bank ("Subsidiary Board") and such officers of the
Bank as may be designated by the Committee. Subsidiary Board shall
include the advisory board of directors of the Graham, North
Carolina branch office of the Corporation's subsidiary with which
the Bank is merged or consolidated. Participants who are eligible
to participate in the Plan by virtue of their membership on the
Subsidiary Board are sometimes referred to hereinafter as "Board
Participants." Participants who are eligible to participate in the
Plan solely by virtue of their status as an officer of the Bank are
sometimes referred to hereinafter as "Officer Participants."
5. Award of Allocated Plan Shares; Additional Awards.
(a) Subject to the provisions of Paragraph 7 hereof, all
of the Allocated Plan Shares shall be awarded to the following
Participants in the number indicated opposite their respective
names, based upon past service and future service of such
individuals as members of the Subsidiary Board or the Advisory
Board or as officers of the Bank:
Name Number of Shares
A. C. Motsinger 8,738
Sarah G. Johnston 4,941
F. C. Hall 3,211
William R. Sizemore 3,211
J. Worth Rich 3,211
James R. Guthrie 2,095
U. Dean Hall 3,464
Larry W. Sharpe 3,491
Michael C. Motsinger 3,491
Billie L. May 3,491
Cheryl F. Cook 1,285
Janice Kornegay 699
Patricia Moore 140
Vicki Sharp 140
Judy Hayes 140
Lynwood Brown 140
TOTAL 41,888
(b) The Available Shares shall be available for the
making of additional Awards to Participants during the remaining
term of this Plan, upon such terms and conditions as may be
determined by the Committee.
6. Vesting of Shares.
(a) Shares granted under this Plan shall vest and the
right of a Participant to the shares shall be nonforfeitable in
accordance with the following schedules:
(i) With respect to the Allocated Plan Shares:
Date When Such Shares Percentage of Such
Become Vested Shares Vested
Effective Date of Plan 20%
First Anniversary of Effective Date 20%
Second Anniversary of Effective Date 20%
Third Anniversary of Effective Date 20%
Fourth Anniversary of Effective Date 20%
(ii) With respect to the Available Shares which may
be made subject to an Award:
Date When Such Shares Percentage of Such
Become Vested Shares Vested
Date of Award 20%
First Anniversary of the date of Award 20%
Second Anniversary of the date of Award 20%
Third Anniversary of the date of Award 20%
Fourth Anniversary of the date of Award 20%
(b) In determining the number of shares vested under the
above vesting schedules, a Participant shall not receive fractional
shares. If the product resulting from multiplying the vested
percentage times the allocated shares results in a fractional
share, then a Participant's vested right shall be to the whole
number of shares disregarding any fractional share.
(c) In the event any Participant to whom shares are
awarded under this Plan terminates membership on the Subsidiary
Board or employment with the Corporation or any subsidiary of the
Corporation for any reason, other than as provided in
Subparagraphs 6(d) and 6(e) below, and such Participant does not
have a 100% vested interest in his or her shares under this Plan,
then any shares which are not vested, based upon the applicable
schedule in Subparagraph (a) above, shall be forfeited and shall be
available again for Awards to Participants as may be determined by
the Committee.
(d) In the event that the membership of a Board
Participant on the Subsidiary Board should terminate because of
such Board Participant's retirement, disability, or death or
failure of the Corporation to elect a Board Participant for service
as a member of the Subsidiary Board for other than Cause or if the
employment of an Officer Participant should terminate because of
such Officer Participant's retirement, disability, death, or
unilateral action by the Holding Company for other than Cause,
prior to the date when all shares allocated to him or her would be
100% vested in accordance with the applicable schedule in
Subparagraph 6(a) above, then, notwithstanding the foregoing
schedules in Subparagraph 6(a) above, all shares allocated to such
Participant shall immediately become fully vested and
nonforfeitable. For purposes of this Plan, the term "retirement"
shall mean (i) with respect to Participants other than A. C.
Motsinger, Sarah G. Johnston, and U. Dean Hall ("Executive
Participants") who are employees of the Corporation or of any of
its subsidiaries, (A) simultaneously with or subsequent to the
termination of his or her employment under conditions which would
constitute retirement under any tax qualified retirement plan
maintained by the Corporation or by any of its subsidiaries or
(B) attaining age 65; (ii) with respect to Participants other than
Executive Participants who are not employees of the Corporation or
of any of its subsidiaries, at any time after attaining age 65 with
the approval of the Committee; (iii) at the election of a
Participant other than an Executive Participant, at any time after
not less than five (5) years service as a member of the Subsidiary
Board or the Board of Directors of Graham Savings Bank, SSB, such
service being computed cumulatively for purposes of this
clause (iii); or (iv) with respect to Executive Participants,
termination of such Executive Participant's employment for any
reason after September 30, 1997. For purposes of this Plan, the
term "disability" shall (i) with respect to any Participant who is
also an employee of the Corporation or of any of its subsidiaries,
be defined in the same manner as such term is defined in
Section 22(e)(3) of the Internal Revenue Code of 1986, as amended,
and (ii) with respect to any other Participant, as may be defined
by the Committee from time to time, or as may be determined by the
Committee at any time with respect to any individual Participant.
For purposes of this Plan, the term "Cause" shall refer to (i) the
commission 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 but excepting minor
traffic and similar violations in the nature of a misdemeanor); or
(ii) the willful engaging in misconduct which is deemed by the
Corporation, in good faith, to be materially injurious to the
Corporation, monetarily or otherwise; or (iii) the conviction of a
felony; or (iv) the willful and continued failure or habitual
neglect to attend meetings of the Subsidiary Board (other than any
failure or neglect caused by or resulting from disability);
provided, however, that no act or failure to act shall be deemed to
be "willful" unless done or omitted to be done not in good faith
and without reasonable belief that such action or omission was in
the best interest of the Corporation.
(e) In the event of a "change in control" of the
Corporation, then, notwithstanding the foregoing schedules in
Subparagraph 6(a) above, all shares awarded to Participants shall
immediately become fully vested. Written notice that a change in
control has occurred shall be given by the Committee to each
Participant. When used herein, the phrase "change in control"
refers to (i) the acquisition by any person, group of persons or
entity of the beneficial ownership or power to vote more than
twenty (20%) percent of the Corporation's outstanding stock or
(ii) during any period of two (2) consecutive years, a change in
the majority of the Corporate Board, unless the election of each
new Director was approved by at least two-thirds of the Directors
then still in office who were Directors at the beginning of the two
(2) year period.
7. Action Required of Participants.
(a) Each Participant receiving an Award of shares under
this Plan shall represent to and agree with the Corporation that
such shares shall be transferable only if the proposed transfer
shall be permissible under this Plan and if, in the opinion of
counsel for the Corporation, such transfer shall at such time be in
compliance with all applicable federal and state securities and
banking laws and regulations.
(b) Each Participant receiving an Award of shares under
this Plan shall deliver to the Corporation a Restricted Stock
Agreement, substantially in the form attached hereto as Exhibit A,
which shall be signed by such Participant.
8. Restriction.
(a) Shares subject to an Award made under this Plan
shall forthwith, after the making of the representations required
by Paragraph 7 hereof, be allocated in the name of the Participant.
Such Participant shall thereupon be a shareholder with respect to
all such shares and shall have all the rights of a shareholder with
respect to all such shares, including the right to vote such shares
and to receive all dividends and other distributions (subject to
the provisions of Subparagraph 8(b) below) paid with respect to
such shares; provided, however, that such shares shall be subject
to the restrictions hereinafter described and to possible
forfeiture as previously described in Paragraph 6 hereof. The
transfer agent for Common Stock shall be instructed to that effect
with respect to such shares.
(b) In the event that, as the result of a stock split or
stock dividend or combination of shares or any other change or
exchange for other securities by reclassification, reorganization,
merger, consolidation, recapitalization, or otherwise, a
Participant shall, as the owner of the shares subject to an Award
made under this Plan and subject to the restrictions hereunder, be
entitled to new or additional or different shares of Common Stock
or other securities, all provisions of this Plan relating to
vesting, restrictions and lapse of restrictions herein set forth
shall thereupon be applicable to such new or additional or
different shares or other securities to the extent applicable to
the shares with respect to which they were distributed; provided,
however, that if a Participant should receive rights, warrants or
fractional interests in respect of any of such shares, such rights
or warrants may be held, exercised, sold or otherwise disposed of,
and such fractional interests may be settled, by such Participant
free and clear of the restrictions herein set forth.
(c) The restriction to which shares subject to an Award
made under this Plan shall be subject is that if the directorship
or employment of a Participant should be terminated for any reason
during the "restricted period" (as defined in Subparagraph 10(b)
hereof), except as otherwise specifically provided in Paragraph 6
hereof, the Participant's interest in the shares allocated under
this Plan shall be forfeited as provided in the applicable schedule
in Subparagraph 6(a) hereof.
(d) The restrictions imposed on shares allocated under
this Plan may at any time be modified, reduced, relaxed, or
eliminated altogether as the Committee shall from time to time
determine, if, in its discretion, the Committee considers such
action to be in furtherance of the purposes of this Plan. Notice
of any change in restrictions shall be given to Participants and
the Corporation's transfer agent.
9. Effect of Award on Status of Participant. The fact that
an Award is made to a Participant under this Plan shall not confer
on such Participant any right to continued service on the Board or
on the Board of Directors of any of the subsidiaries of the
Corporation, nor any right to continued employment with the
Corporation or any of the subsidiaries of the Corporation; nor
shall it limit the right of the Corporation or of any of the
directors of the subsidiaries of the Corporation to remove such
Participant from their respective boards, or to terminate the
Participant's employment at any time.
10. Voting Rights; Dividends; Other Distributions. A
Participant shall have the full power to vote all of the shares in
the Participant's name from time to time and shall be entitled to
receive all cash dividends declared upon any such shares in the
Participant's name from time to time. All shares of Common Stock
or other securities, including but not limited to stock dividends,
allocated in respect of such shares or in substitution thereof,
whether by the Corporation or by another issuer, shall be subject
to all terms and conditions of this Plan and shall be redelivered
to a Participant or delivered as instructed by the Committee under
the same circumstances as the shares with respect to, or in
substitution for, which they were allocated; provided, however,
that if a Participant should receive rights, warrants or fractional
interests in respect of any of the shares in the Participant's
name, such rights or warrants may be held, exercised, sold or
otherwise disposed of, and such fractional interests may be
settled, by such Participant free and clear of the restrictions
herein set forth.
11. Adjustment Upon Changes in Capitalization; Dissolution or
Liquidation.
(a) In the event of a change in the number of shares of
Common Stock outstanding by reason of a reclassification,
recapitalization, reorganization, merger, or consolidation, or
other similar capital adjustment, merger or consolidation of the
Corporation, or the sale by the Corporation of all or a substantial
portion of its assets, or the occurrence of any other event which
could affect the implementation of this Plan and the realization of
its objectives, the Committee may make such adjustments in the
terms, conditions, or restrictions of this Plan and in any
Restricted Stock Agreement then in effect, as the Committee shall
deem equitable and just.
(b) The making of an Award under this Plan shall not
affect in any way the right or power of the Corporation or its
shareholders to make or authorize any adjustment, recapitalization,
reorganization, or other change in the Corporation's capital
structure or its business, or any merger or consolidation of the
Corporation, or to issue bonds, debentures, preferred or other
preference stock ahead of or affecting Common Stock or the rights
thereof, or the dissolution or liquidation of the Corporation, or
any sale or transfer of all or any part of the Corporation's assets
or business.
12. Non-Transferability.
(a) Any shares subject to an Award made under this Plan
shall not be sold, exchanged, transferred, pledged, hypothecated or
otherwise disposed of during the "restricted period". Nothing
herein shall preclude a Participant from making a gift of any such
shares to a spouse, child, stepchild, grandchild, parent or
sibling, or legal dependent of such Participant, or to a trust of
which the beneficiary or beneficiaries of the trust shall be either
a person designated herein or such Participant; provided, however,
that any such shares so given by a Participant shall remain subject
to the restrictions, obligations and conditions set forth in this
Plan. In addition, such shares may be tendered in response to a
tender offer for or a request or invitation to tenders of greater
than fifty (50%) percent of the outstanding Common Stock and may be
surrendered in a merger, consolidation or share exchange involving
the Corporation; provided, however, in each case, that except as
otherwise provided herein, the securities or other consideration
received in exchange therefor shall thereafter be subject to the
restrictions and conditions set forth in this Plan.
(b) The term "restricted period" with respect to shares
subject to an Award made under this Plan shall be the period
commencing on the date of making such Award of such shares to a
Participant and ending on the date on which such shares are no
longer registered under the Securities Act of 1933 or no longer
subject to forfeiture as provided in Paragraph 6(a) hereof. The
date of making an Award with respect to the Initial Plan Shares
shall be the date of Conversion. The date of making an Award with
respect to Available Shares shall be the date of execution by a
Participant of a Restricted Stock Agreement in the form referred to
in Subparagraph 7(b) hereof.
13. Tax.
(a) With respect to each Award of Allocated Plan Shares,
the Corporation shall make a cash payment to each Participant in an
amount reasonably calculated to approximate the Participant's
federal and state tax liability associated with such Award, but in
no case shall this amount exceed 36% of the dollar value of the
Award vesting in each tax year.
(b) The Corporation or any of its subsidiaries shall
have the right to deduct or otherwise effect a withholding of any
amount required by federal or state laws to be withheld with
respect to the making of an Award or the sale of shares acquired
under this Plan in order for the Corporation or any of its
subsidiaries to obtain a tax deduction otherwise available as a
consequence of such Award or sale, as the case may be.
14. Exculpation and Indemnification. In connection with this
Plan, no member of the Committee shall be personally liable for any
act or omission to act in his or her capacity as a member of the
Committee, nor for any mistake in judgment made in good faith,
unless arising out of, or resulting from, such person's own bad
faith, gross negligence, willful misconduct, or criminal acts. To
the extent permitted by applicable law and regulation, the
Corporation shall indemnify and hold harmless the members of the
Committee and each other officer or employee of the Corporation or
of any of its subsidiaries to whom any duty or power relating to
the administration or interpretation of this Plan may be assigned
or delegated, from and against any and all liabilities (including
any amount paid in settlement of a claim with the approval of the
Committee) and any costs or expenses (including counsel fees)
incurred by such persons arising out of or as a result of, any act
or omission to act in connection with the performance of such
person's duties, responsibilities, and obligations under this Plan,
other than such liabilities, costs, and expenses as may arise out
of, or result from, the bad faith, gross negligence, willful
misconduct, or criminal acts of such persons.
15. Amendment and Modification of this Plan. The Corporate
Board may at any time, and from time to time, amend or modify this
Plan (including the form of Restricted Stock Agreement) in any
respect; provided, however, that no amendment or modification shall
be made that increases the total number of Allocated Plan Shares
covered by this Plan, changes the list of Participants or the
number of Allocated Plan Shares allocated to each, or effects any
change in the category of persons who may receive Awards of shares
under this Plan. Any amendment or modification of this Plan shall
not in any manner affect any Award of shares theretofore made to a
Participant under this Plan without the consent of such Participant
or the transferee in the event of the death of such Participant.
16. Termination and Expiration of this Plan. This Plan may
be abandoned, suspended, or terminated, in whole or in part, at any
time by the Corporate Board; provided, however, that abandonment,
suspension, or termination of this Plan shall not affect any Awards
theretofore made under this Plan. Unless sooner terminated, this
Plan shall terminate at the close of business on the day that is
the tenth (10th) anniversary of the Conversion, or the next
business day thereafter; and no Award of shares may be made under
this Plan thereafter but such termination shall not effect any
Award of shares theretofore made. In the event that the Board
terminates this Plan in whole, any Available Shares that had not
been allocated to eligible Participants together with any other
trust assets, shall revert to the Corporation.
17. Effective Date. This Plan has been adopted by the
Corporate Board to be effective as of the date of the Conversion.
18. Captions and Headings; Gender and Number. Captions and
paragraph headings used herein are for convenience only, do not
modify or affect the meaning of any provision herein, are not a
part hereof, and shall not serve as a basis for interpretation or
in construction of this Plan. As used herein, the masculine gender
shall include the feminine and neuter, the singular number, the
plural, and vice versa, whenever such meanings are appropriate.
19. Expenses of Administration of Plan. All costs and
expenses incurred in the operation and administration of this Plan
shall be borne by the Corporation or by one of its subsidiaries.
20. Governing Law. Without regard to the principles of
conflicts of laws, the laws of the State of North Carolina shall
govern and control the validity, interpretation, performance, and
enforcement of this Plan.
21. Inspection of Plan. A copy of this Plan, and any
amendments thereto, shall be maintained by the Secretary of the
Corporation and shall be shown to any proper person making inquiry
about it.
