As filed with the Securities and Exchange Commission on August 22, 1997
Registration No. 333-______
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
(Address of principal executive offices, including Zip Code)
_________________________
1995 DIRECTORS PERFORMANCE PLAN OF
AMERICAN FEDERAL BANK, FSB
(Full title of the plan)
_________________________
ERNEST C. ROESSLER
CCB Financial Corporation
Post Office Box 931
Durham, North Carolina 27702
(919) 683-7777
(Name and address of agent for service)
Copy to:
ROBERT A. SINGER, Esq.
Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P.
230 North Elm Street, Suite 2000
Post Office Box 26000
Greensboro, North Carolina 27420
(910) 373-8850
_________________________
CALCULATION OF REGISTRATION FEE (1)
Title of Amount to Proposed Proposed Amount of
Securities be Maximum Maximum Regis-
to be Registered Registered Offering Aggregate tration
Price Offering Fee (1)
Per Share Price
Common Stock, 19,343 * $816,750 $282
$5 par value shares
Series A Junior
Participating Pre- 19,343 Not Not Not
ferred Stock Purchase rights Applicable Applicable Applicable
Rights (2)
(1) The shares of Common Stock are being offered to eligible
employees of Registrant and its direct and indirect subsidiaries
pursuant to options granted to them in accordance with the terms of
the 1995 Directors Performance Plan of American Federal Bank, FSB
(the "Plan") adopted by Registrant in connection with its
acquisition of American Federal Bank, FSB. 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 may be purchased pursuant to the Plan upon the
exercise of the options.
(2) The Series A Junior Participating Preferred Stock Purchase
Rights will be attached to and trade with the shares of
Registrant's Common Stock.
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
The following documents filed by Registrant with the Securities
and Exchange Commission (the "Commission") under the Securities
Exchange Act of 1934 (the "Exchange Act") are incorporated herein by
reference:
(i) Registrant's Annual Report on Form 10-K (Commission
File No. 0-12358) for the year ended December 31, 1996;
(ii) Registrant's Current Report on Form 8-K dated January
31, 1997, February 17, 1997, March 19, 1997, April 21, 1997, April 21,
1997, May 13, 1997 and August 1, 1997;
(iii) Registrant's Quarterly Reports on Form 10-Q for the
quarters ended March 31, 1997 and June 30, 1997; and
(iv) The description of the Registrant's stock contained in
its Current Report on Form 8-K dated July 1, 1983, as amended by Form
8-K/A2 dated June 14, 1996 and its Form 8-A dated July 29, 1996.
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
Not applicable.
Item 5. Interests of Named Experts and Counsel
The validity of the shares of the Registrant's Common Stock that
may be issued to participants of the Plan will be passed upon for the
Registrant by Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P.,
who served as counsel to the Registrant with respect to the August 1,
1997 merger with American Federal Bank, FSB. Robert A. Singer, a
partner in such firm, beneficially owns, or has sole or shared voting
control as a trustee or otherwise over, a total of 5,891 shares of the
Registrant's Common Stock.
The consolidated financial statements of the Registrant as of
December 31, 1996 and 1995 and for each of the years in the three-year
period ended December 31, 1996 have been incorporated by reference
herein in reliance upon the report of KPMG Peat Marwick, LLP,
independent certified public accounts, incorporated by reference
herein, and upon the authority of said firm as experts in accounting
and auditing,. KPMG Peat Marwick LLP's report refers to the fact that
on January 1, 1994, the Registrant adopted the provisions of SFAS No.
115, "Accounting for Certain Investment in Debt and Equity
Securities."
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 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. The Articles of Incorporation of the Registrant provide
for the elimination of the personal liability for monetary damages for
certain breaches of fiduciary duty and the Bylaws of the Registrant
provide for the indemnification of directors and officers to the
maximum extent permitted by North Carolina 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:
4 Specimen of Registrant's Common Stock certificate
(incorporated by reference from Exhibit 4 of the
Registrant's Registration Statement No. 333-34207 on
Form S-8)
5 Opinion of Brooks, Pierce, McLendon, Humphrey &
Leonard, L.L.P. as to the legality of the securities being
registered (filed herewith).
23.1 Consent of KPMG Peat Marwick LLP (filed herewith).
23.2 Consent of Brooks, Pierce, McLendon, Humphrey &
Leonard, L.L.P. (contained in its opinion filed herewith as
Exhibit 5).
24 Power of Attorney (filed herewith).
99 Copy of 1995 Directors Performance Plan of American
Federal Bank, FSB (filed herewith).
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 of 1933;
(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 Securities
Exchange Act of 1934 that are incorporated by reference in
the Registration Statement.
(2)That, for purposes of determining any liability under the
Securities Act of 1933, 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 of
1933, each filing of the Registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act of
1934 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 of 1933 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 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 Act and will be governed by the final
adjudication of such issue.
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 August 22, 1997.
CCB Financial Corporation
(Registrant)
By: /s/ ERNEST C. ROESSLER
Ernest C. Roessler
Vice Chairman, President and Chief
Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement on Form S-8 has been signed by the following
persons in the capacities and on the dates indicated.
Signature Title Date
/s/ ERNEST C. ROESSLER Vice Chairman, President, August 22, 1997
Ernest C. Roessler Chief Executive Officer
and Director
(principal executive
officer)
*/s/ ROBERT L. SAVAGE, JR. Senior Vice President and August 22, 1997
Robert L. Savage, Jr. Chief Financial Officer
(principal financial
officer)
/s/ W. HAROLD PARKER, JR. Senior Vice President and August 22, 1997
W. Harold Parker, Jr. Controller
(principal accounting
officer)
__________________ Chairman of the Board of August __, 1997
W. L. Burns, Jr. Directors
*/s/ JOHN M. BARNHARDT Director August 22, 1997
John M. Barnhardt
*/s/ J. HARPER BEALL, III Director August 22, 1997
J. Harper Beall, III
*/s/ JAMES B. BRAME, JR. Director August 22, 1997
James B. Brame, Jr.
__________________ Director August __, 1997
Timothy B. Burnett
*/s/ EDWARD S. HOLMES Director August 22, 1997
Edward S. Holmes
*/s/ BONNIE MCELVEEN-HUNTER Director August 22, 1997
Bonnie McElveen-Hunter
*/s/ DAVID B. JORDAN Vice Chairman and Director August 22, 1997
David B. Jordan
__________________ Director August __, 1997
Owen G. Kenan
*/s/ EUGENE J. MCDONALD Director August 22, 1997
Eugene J. McDonald
__________________ Director August __, 1997
Hamilton W. McKay, Jr., M.D.
__________________ Director August __, 1997
George J. Morrow
*/s/ ERIC B. MUNSON Director August 22, 1997
Eric B. Munson
*/s/ MILES J. SMITH, JR. Director August 22, 1997
Miles J. Smith, Jr.
*/s/ JIMMY K. STEGALL Director August 22, 1997
Jimmy K. Stegall
*/s/ H. ALLEN TATE, JR. Director August 22, 1997
H. Allen Tate, Jr.
__________________ Director August __, 1997
James L. Williamson
__________________ Director August __, 1997
Dr. Phail Wynn, Jr.
*/s/ W. HAROLD PARKER, JR.
W. Harold Parker, Jr., Attorney-in-fact
EXHIBIT INDEX
Exhibit
Number Description
4 Specimen of
Registrant's Common Stock Incorporated by
reference
5 Opinion of Brooks, Pierce, McLendon,
Humphrey & Leonard, L.L.P. as to the
legality of the securities being registered
23.1 Consent of KPMG Peat Marwick LLP
23.2 Consent of Brooks, Pierce, McLendon,
Humphrey & Leonard, L.L.P. Included in Exhibit 5
24 Power of Attorney
99 Copy of 1995 Directors Performance Plan of
American Federal Bank, FSB
August 19, 1997
CCB Financial Corporation
111 Corcoran Street
Durham, North Carolina 27701
Re: Registration Statement on Form S-8
149,008 Shares of Common Stock
Gentlemen and Ladies:
In connection with the possible offering and sale from
time to time of all or a portion of 19,343 shares of the
Common stock, $5.00 par value per share (the "Shares"), of
CCB Financial Corporation (the "Corporation"), upon the
terms and conditions set forth in the Registration Statement
on Form S-8 (the "Registration Statement") filed August 22,
1997 by the Corporation with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, we
are of the opinion that:
1. The Corporation is a corporation duly
organized and validly existing under the laws of
the State of North Carolina;
2. 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 (1) to be named in the Registration
Statement and in the Prospectus which constitutes a part
thereof as attorneys who will pass upon legal matters in
connection with the Shares and (2) to the filing of a copy
of this opinion as Exhibit 5 to the Registration Statement.
Very truly yours,
/s/ ROBERT A. SINGER
Robert A. Singer
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
CCB Financial Corporation
We consent to the use of our report dated January 21, 1997
included in CCB Financial Corporation's Form 10-K for the year
ended December 31, 1996 incorporated herein by reference and
to the reference to our firm under the heading "Experts" in
the Registration Statement to register 19,343 shares of stock
to be issued pursuant to the 1995 Directors Performance Plan
of American Federal Bank, FSB.
Our report dated January 21, 1997 refers to the fact that on
January 1, 1994, CCB Financial Corporation adopted the
provisions of Statement of Financial Accounting Standards No.
115, "Accounting for Certain Investments in Debt and Equity
Securities".
KPMG PEAT MARWICK LLP
Raleigh, North Carolina
August 22, 1997
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, Jr. 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, his or her name and
on its, 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, and the related Series A Junior Participating Preferred
Stock Purchase Rights to be issued pursuant to the 1995 Directors
Performance Plan of American Federal Bank, FSB 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 Statement"), (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; 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 in each of said 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,
his or her signatures as the same may be signed by said attorneys to
any of all of such Registration Statement 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 and all documents in support thereof or
amendatory 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
By: /s/ ERNEST C. ROESSLER
Ernest C. Roessler
Vice Chairman, President and
Chief Executive Officer
Dated: August 20, 1997
Signature Title Date
/s/ ERNEST C. ROESSLER Vice Chairman, President, August 20, 1997
Ernest C. Roessler Chief Executive Officer
and Director
(principal executive officer)
/s/ ROBERT L. SAVAGE, JR. Senior Vice President and August 19, 1997
Robert L. Savage, Jr. Chief Financial Officer
(principal financial
officer)
/s/ W. HAROLD PARKER, JR. Senior Vice President and August 19, 1997
W. Harold Parker, Jr. Controller
(principal accounting officer)
___________________________ Chairman of the Board August __, 1997
W. L. Burns, Jr.
/s/ JOHN M. BARNHARDT Director August 20, 1997
John M. Barnhardt
/s/ J. HARPER BEALL, III Director August 19, 1997
J. Harper Beall, III
/s/ JAMES B. BRAME, JR. Director August 19, 1997
James B. Brame, Jr.
___________________________ Director August __, 1997
Timothy B. Burnett
/s/ EDWARD S. HOLMES Director August 20, 1997
Edward S. Holmes
/s/ BONNIE MCELVEEN-HUNTER Director August 19, 1997
Bonnie McElveen-Hunter
/s/ DAVID B. JORDAN Vice Chairman and Director August 20, 1997
David B. Jordan
___________________________ Director August __, 1997
Owen G. Kenan
/s/ EUGENE J. MCDONALD Director August 19, 1997
Eugene J. McDonald
___________________________ Director August __, 1997
Hamilton W. McKay, Jr., M.D.
___________________________ Director August __, 1997
George J. Morrow
/s/ ERIC B. MUNSON Director August 20, 1997
Eric B. Munson
/s/ MILES J. SMITH, JR. Director August 20, 1997
Miles J. Smith, Jr.
/s/ JIMMY K. STEGALL Director August 20, 1997
Jimmy K. Stegall
/s/ H. ALLEN TATE, JR. Director August 22, 1997
H. Allen Tate, Jr.
___________________________ Director August __, 1997
James L. Williamson
___________________________ Director August __, 1997
Dr. Phail Wynn, Jr.
1995 DIRECTORS PERFORMANCE PLAN OF
AMERICAN FEDERAL BANK, FSB
1. PURPOSE. The purpose of the American Federal Bank, FSB
1995 Directors Performance Plan (the "Plan") is to advance the
interests of American Federal Bank, FSB (the "Company") by
encouraging ownership of the Company's $1.00 par value common stock
(the "Common Stock") by directors of the Company, thereby assisting
the Company in attracting and retaining directors of outstanding
ability and giving such directors an increased incentive to devote
their efforts to the success of the Company.
2. ADMINISTRATION. Grants of options under the Plan are
automatic. The Plan is intended to be a "formula plan' as
recognized by Rule 16b-3(c)(2)(ii) promulgated under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and shall be
interpreted accordingly. The Company's Board of Directors or a
committee appointed by the Board of Directors composed of at least
two members of the Board of Directors (which may be the
Compensation and Benefits Committee of the Board of Directors)
shall have complete and conclusive authority to interpret the Plan
and to make all other determinations necessary or advisable for the
administration of the Plan.
3. ELIGIBILITY. Except as provided otherwise in this
Paragraph 3, options under the Plan shall be granted in accordance
with Paragraph 5 to each member of the Company's Board of
Directors; provided that shares of Common Stock remain available
for grant hereunder in accordance with Paragraph 4. A Director to
whom an option is granted under the Plan shall be referred to
hereinafter as a "Grantee."
4. SHARES SUBJECT TO PLAN. The shares subject to the Plan
shall be authorized but unissued or reacquired shares of Common
Stock. Subject to adjustment in accordance with the provisions of
Paragraph 6 of the Plan, the maximum number of shares of Common
Stock for which options may be granted under the Plan shall be
45,000 and the initial adoption of the Plan by the Board of
Directors of the Company shall constitute a reservation of 45,000
authorized but unissued, or reacquired, shares of Common Stock for
issuance only upon the exercise of options granted under the Plan.
In the event that any outstanding option granted under the Plan for
any reason expires or is terminated prior to the end of the period
during which options may be granted under the Plan, the shares of
Common Stock allocable to the unexercised portion of such option
may again be subject in whole or in part to any option granted
under the Plan.
5. TERMS AND CONDITIONS OF OPTIONS. Options granted
pursuant to the Plan shall be evidenced by Stock Option Agreements
in such form as shall comply with and be subject to the following
terms and conditions:
(a) Grant. Beginning with the adjournment of the 1995 Annual
Meeting of Shareholders of American Federal (the "1995 Annual
Meeting") and at the adjournment of the annual meetings for each of
the succeeding years during the term of the Plan in which (i) the
return on average assets and (ii) the return on average equity of
American Federal for the fiscal year preceding the annual meeting
as reported by American Federal in its earnings release for such
prior fiscal year are 1.1% and 15%, respectively, or greater, each
Director who was also serving in such capacity as of December 31 of
the preceding year shall be granted an option to purchase 1,500
shares of the Company's Common Stock, subject to adjustment as
provided in Section 6 and provided that no Director may receive
grants of options for shares of Common Stock under the Plan in
excess of 4,500. Each such day that options are to be granted
under the Plan is referred to hereinafter as a "Grant Date."
A-1
If on any Grant Date, shares of Common Stock are not
available under the Plan to grant to Directors the full amount of
a grant contemplated by the immediately preceding paragraph, then
each Director shall receive an option (a "Reduced Grant") to
purchase shares of Common Stock in an amount equal to the number
of shares of Common Stock then available under the Plan divided
by the number of Directors as of the applicable Grant Date.
Fractional shares shall be ignored and not granted.
If a Reduced Grant has been made and, thereafter, during the
term of the Plan, additional shares of Common Stock become
available for grant (e.g., because of the forfeiture or lapse of
an option), then each person who was an Director both on the
Grant Date on which the Reduced Grant was made and on the date
additional shares of Common Stock become available (a "Continuing
Director") shall receive an additional option to purchase shares
of Common Stock. The number of newly available shares shall be
divided equally among the options granted to the Continuing
Directors; provided, however, that the aggregate number of shares
of Common Stock subject to a Continuing Director's additional
option plus any prior Reduced Grant to the Continuing Director on
the applicable Grant Date shall not exceed 1,500 shares of Common
Stock (subject to adjustment pursuant to paragraph 6). If more
than one Reduced Grant has been made, available options shall be
granted beginning with the earliest such Grant Date.
(b) Option Price. The option price for each option granted
under the Plan shall be the Fair Market Value (as defined below)
of the shares of Common Stock subject to the option on the Grant
Date of the option. For purposes of the Plan, the "Fair Market
Value" of the shares of Common Stock shall mean the last sales
price on the day on which such value is to be determined or, if
no shares were traded on such day, on the next preceding day on
which the shares were traded, as reported by the Nasdaq National
Market or other national quotation service. If the shares are
listed on a national securities exchange, "Fair Market Value"
means the closing price of the shares on such national securities
exchange on the day on which such value is to be determined or,
if no shares were traded on such day, on the next preceding day
on which shares were traded, as reported by National Quotation
Bureau, Inc. or other national quotation service.
(c) Medium and Time of Payment. The option price shall be
payable in full upon the exercise of an option in cash or by
check. To the extent permitted under Regulation T of the Federal
Reserve Board, and subject to applicable securities laws, options
may be exercised through a broker in a so-called "cashless
exercise" whereby the broker sells the option shares and delivers
cash sales proceeds to the Company in payment of the exercise
price. In no event may shares of Common Stock be used as payment
of the exercise price of the option.
(d) Term. Each option granted under the Plan shall, to the
extent not previously exercised, terminate and expire on the date
ten (10) years after the date of grant of the option, unless
earlier terminated as provided hereinafter in Section 5(g).
(e) Exercisability. Each option granted under the Plan
shall, unless earlier terminated as provided hereinafter in
Section 5(g), become exercisable on the date six (6) months and
one day following the date of grant.
(f) Method of Exercise. All options granted under the Plan
shall be exercised by an irrevocable written notice directed to
the Secretary of the Company at the Company's principal place of
business. Except in the case of a "cashless exercise" through a
broker, such written notice shall be accompanied by payment in
full of the option price for the shares for which such option is
being exercised. In the case of a "cashless exercise," payment
in full of the option price for the shares for which such option
is being exercised shall be paid in cash by the broker from the
sale proceeds. The Company shall make delivery of certificates
representing the shares for
A-2
which an option has been exercised within a reasonable period of
time; provided, however, that if any law, regulation or agreement
requires the Company to take any action with respect to the
shares for which an option has been exercised before the issuance
thereof, then the date of delivery of such shares shall be
extended for the period necessary to take such action.
Certificates representing shares for which options are exercised
under the Plan may bear such restrictive legends as may be
necessary or desirable in order to comply with applicable federal
and state securities laws. Nothing contained in the Plan shall
be construed to require the Company to register any shares of
Common Stock underlying options granted under the Plan.
(g) Effect of Termination of Directorship or Death.
(i)
Termination of Directorship. Upon termination of
any Grantee's membership on the Board of Directors of the
Company for any reason other than for cause or death, the
options held by the Grantee under the Plan shall terminate
ninety (90) days following the date of termination of the
Grantee's membership on the Board or, if earlier, on the
date of expiration of the options as provided by Paragraph
5(d) of the Plan. If the Grantee exercises the options
after termination of the Grantee's service on the Board of
Directors, the Grantee may exercise the options only with
respect to the shares that were otherwise exercisable on the
date of termination of the Grantee's service, on the Board.
Such exercise otherwise shall be subject to the terms and
conditions of the Plan. If the Grantee's membership on the
Board of Directors is terminated for cause, all options
granted to such Grantee shall expire upon such termination.
(ii) Death. In the event of the death of a Grantee,
the Grantee's personal representatives, heirs or legatees
(the "Grantee's Successors") may exercise the options held
by the Grantee on the date of death, upon proof satisfactory
to the Company of their authority. The Grantee's Successors
must exercise any such options within one (1) year after the
Grantee's death and in any event prior to the date on which
the options expire as provided by Paragraph 5(d) of the
Plan. Such exercise otherwise shall be subject to the terms
and conditions of the Plan.
(h) Nonassignability of Options Rights. No option shall be
assignable or transferable by the Grantee except by will, by the
laws of descent and distribution or pursuant to a qualified
domestic relations order as defined in Title I of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), and
the Internal Revenue Code of 1986, as amended (the "Code").
During the lifetime of the Grantee, the option shall be
exercisable only by the Grantee.
(i) Rights as Shareholder. Neither the Grantee nor the
Grantee's Successors shall have rights as a shareholder of the
Company with respect to shares of Common Stock covered by the
Grantee's option until the Grantee or the Grantee's Successors
become the holder of record of such shares.
(j) No Options after Ten Years. No options shall be
granted except within a period of ten (10) years after the
effective date of the Plan.
6. ADJUSTMENTS.
(a) Certain Recapitalizations. If any change is made in
the Common Stock subject to the Plan, or subject to any option
granted under the Plan (through merger, consolidation,
reorganization, recapitalization, stock dividend, dividend in
property other than cash, stock split, liquidating dividend,
combination of shares, exchange of shares, change in corporate
structure or otherwise), the Plan and outstanding options will be
automatically and appropriately adjusted,
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in cluding the maximum number of shares subject to the Plan and
number of shares and price per share of stock subject to
outstanding options.
(b) Certain Reorganizations. In the event of: (i) a merger
or consolidation in which the Company is not the surviving
corporation; (ii) a reverse merger in which the Company is the
surviving corporation but the shares of the Company's Common
Stock outstanding immediately preceding the merger are converted
by virtue of the merger into other property, whether in the form
of securities, cash or otherwise; or (iii) any other capital
reorganization in which more than fifty percent (50%) of the
shares of the Company entitled to vote are exchanged, then any
surviving corporation shall assume any options outstanding under
the Plan or shall substitute similar options for those
outstanding under the Plan. If there is no surviving
corporation, all outstanding options shall expire.
7. EFFECTIVE DATE AND TERMINATION OF PLAN.
(a) Effective Date. If approved by the Board of Directors
and shareholders of the Company, the Plan shall become effective
upon the adjournment of the 1995 Annual Meeting.
(b) Termination. The Plan shall terminate ten (10) years
after its effective date, but the Board of Directors may
terminate the Plan at any time prior to such date. Termination
of the Plan shall not alter or impair any of the rights or
obligations under any option theretofore granted under the Plan
unless the Grantee shall so consent.
8. NO OBLIGATION TO EXERCISE OPTION. The granting of an
option shall impose no obligation upon the Grantee to exercise
such option.
9. AMENDMENT. The Board of Directors of the Company by
majority vote may amend the Plan; provided, however, that without
the approval of the shareholders of the Company, no such
amendment shall change:
(a) The maximum number of shares of Common Stock as to
which options may be granted under the Plan (except by operation
of the adjustment provisions of the Plan); or
(b) The date on which the Plan will terminate as provided
by paragraph 7(b) of the Plan; or
(c) The number of shares of Common Stock subject to each
option; or
(d) The option price as provided under Paragraph 5(b) of
the Plan; or
(e) The provisions of Paragraph 3 of the Plan relating to
the determination of
persons to whom options may be granted; or
(f) The provisions of the Plan in such a manner so as to
increase materially (within the meaning of Rule 16b-3 under the
Exchange Act) the benefits accruing under the Plan.
The provisions of the Plan determining (i) the persons
eligible to receive grants of options, (ii) the timing of option
grants, (iii) the number of shares subject to options, (iv) the
exercise price of options, (v) the periods during which options
are exercisable, and (vi) the dates on which options terminate,
may not be amended more than once every six (6) months other than
to comport with changes in the Code, the ERISA, or the rules and
regulations thereunder.
It is expressly contemplated that the Board may amend the
Plan in any respect that the Board deems necessary to cause the
Plan to meet the requirements of Rule 16b-3 (or any
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successor rule) under the Exchange Act and otherwise to comport
with the provisions of such Act and the applicable regulations
thereunder.
Any amendment to the Plan shall not, without the written
consent of the Grantee, affect such Grantee's rights under any
option theretofore granted to such Grantee.
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