Registration No.33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
FIRST CHARTER CORPORATION
(Exact name of registrant as specified in its charter)
NORTH CAROLINA 56-1355866
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
22 Union Street, North
CONCORD, NORTH CAROLINA 28025
(Address of Principal Executive Offices) (Zip Code)
FIRST CHARTER CORPORATION
1996 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
Lawrence M. Kimbrough, President
First Charter Corporation
22 Union Street, North
CONCORD, NORTH CAROLINA 28025
(Name and address of agent for service)
(704) 786-3300
Telephone number, including area code, of agent for service
Copy to:
Anne F. Team, Esq.
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.
<PAGE>
CALCULATION OF REGISTRATION FEE
_________________________________________________________________
Title of Proposed Maximum
Securities to Amount to be Offering Price
be Registered Registered Per Unit
Common Stock, 150,000
$5.00 par value Shares $19.80
Proposed Maximum Amount of
Aggregate Offering Registration
Price Fee
$2,970,000 $1,025
_________________________________________________________________
* Pursuant to Rule 457(h), based on the price of the Common
Stock at which options granted pursuant to the plan may be
exercised.
PART I. INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents constituting the Prospectus of First Charter
Corporation (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 Chief Financial Officer, First Charter
Corporation, 22 Union Street, North, Concord, North Carolina
28026-0228. Telephone requests may be directed to (704)786-3300.
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 (amended by Form 10-K\A
Amendment No. 1 filed November 9, 1995), filed pursuant to
Section 13 of the Securities Exchange Act of 1934, as amended
(the "Exchange Act");
(b) The Registrant's Quarterly Reports on Form 10-Q
for the quarters ended March 31, 1995, June 30, 1995, September
30, 1995, filed pursuant to Section 13 of the Exchange Act;
(c) The Registrant's Current Reports on Form 8-K filed
on September 22, 1995, November 9, 1995 and January 5, 1996; and
(d) The description of the Registrant's Common Stock,
$5 par value, contained in its Registration Statement filed
pursuant to Section 12 of the Exchange Act and all amendments and
reports filed for the purpose of updating such description,
including the Registrant's Current Report on Form 8-K filed on
November 9, 1995.
Any document filed by the Registrant with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of 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 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 or therein
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 Robert O. Bratton, Chief Financial Officer,
First Charter Corporation, 22 Union Street, North, Concord, North
Carolina 28026-0228. Telephone requests may be directed to (704)
786-3300.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The legality of the Registrant's Common Stock to be issued
in connection with the Plans has been passed upon by Smith Helms
Mulliss & Moore, L.L.P., Charlotte, North Carolina. As of the
date of this Registration Statement on Form S-8, certain
attorneys of Smith Helms Mulliss & Moore, L.L.P., beneficially
owned approximately 7,000 shares of the Registrant's Common
Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
There are no provisions in the Registrant's Restated
Articles of Incorporation and no contracts between the
Registrant and its directors and officers nor resolutions adopted
by the Registrant, relating to indemnification. 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
directors or officers have the right to indemnification pursuant
to the Bylaw or otherwise. In addition, the Registrant's
Restated Articles of Incorporation prevent the recovery by the
Registrant or any of its shareholders of monetary damages against
its directors.
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. 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 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 a resolution of the Board of Directors.
in addition, section 55-8-57 of the act permits a
corporation to provide for indemnification of directors,
officers, employees or agents, in its articles of incorporation
or by contract or resolution, against liability in various
proceedings and to purchase and maintain insurance policies on
behalf of these individuals.
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
INCORPORATED BY REFERENCE AS EXHIBIT 99.2 OF THIS REGISTRATION
STATEMENT.
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
5.1 Opinion of Smith Helms Mulliss & Moore,
L.L.P. 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.
24.2 Certified Resolution authorizing signature of
Registration Statement.
99.1 1996 Employee Stock Purchase Plan.
99.2 Provisions of North Carolina law relating to
indemnification of directors and officers
(incorporated by reference to Exhibit 99.2 of
First Charter's Registration Statement on
Form S-8, Registration No. 33-60951).
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)
individually or in the aggregate, represent a fundamental change
in the information set forth in the Registration Statement;
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a 20
percent change in the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table in the effective
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 or Form F-3, and the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission 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 the purpose 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 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to 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 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.
<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 Concord, State of North Carolina, on January 19,
1996.
FIRST CHARTER CORPORATION
By: /S/ LAWRENCE M. KIMBROUGH
Lawrence M. Kimbrough
President and Chief Executive Officer
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/ LAWRENCE M. KIMBROUGH President, Chief January 19, 1996
(Lawrence M. Kimbrough) Executive Officer and
Director (Principal
Executive Officer)
*J. ROY DAVIS, JR. Chairman of the January 19, 1996
(J. Roy Davis, Jr.) Board and Director
/S/ ROBERT O. BRATTON Executive Vice January 19, 1996
(Robert O. Bratton) President (Principal
Financial and
Principal Accounting
Officer)
_____________________ Director January __, 1996
(William R. Black)
* JANE B. BROWN Director January 19, 1996
(Jane B. Brown)
* GRADY S. CARPENTER Director January 19, 1996
(Grady S. Carpenter)
* MICHAEL R. COLTRANE Director January 19, 1996
(Michael R. Coltrane)
Director January __, 1996
(James B. Fincher)
* H. CLARK GOODWIN Director January 19, 1996
(H. Clark Goodwin)
Director January __, 1996
(Frank H. Hawfield)
* J. KNOX HILLMAN, JR. Director January 19, 1996
(J. Knox Hillman, Jr.)
Director January __, 1996
(Branson C. Jones)
* D. C. LINN, JR. Director January 19, 1996
(D. C. Linn, Jr.)
* ROBERT F. LOWRANCE Director January 19, 1996
(Robert F. Lowrance)
Director January __, 1996
(Dr. Jerry E. McGee)
* HUGH H. MORRISON Director January 19, 1996
(Hugh H. Morrison)
* T. DAVID PROPST Director January 19, 1996
(T. David Propst)
* ROBERT L. WALL Director January 19, 1996
(Robert L. Wall)
* JAMES B. WIDENHOUSE Director January 19, 1996
(James B. Widenhouse)
*By:/S/ LAWRENCE M. KIMBROUGH
Lawrence M. Kimbrough
Attorney-in-Fact
SMITH HELMS MULLISS & MOORE, L.L.P.
Attorneys at Law
P. O. Box 31247
Charlotte, North Carolina 28231
January 19, 1996
First Charter Corporation
22 Union Street North
Concord, North Carolina 28025
Re: Registration Statement on Form S-8
150,000 Shares of Common Stock, $5.00 Par Value
1996 Employee Stock Purchase Plan
Ladies and Gentlemen:
In connection with the possible offering and sale from time
to time of up to 150,000 shares of the common stock, $5.00 par
value per share (the "Shares"), of First Charter Corporation (the
"Corporation"), upon the terms and conditions set forth in the
Registration Statement on Form S-8 (the "Registration
Statement"), filed on January 19, 1996 by the Corporation with
the Securities and Exchange Commission under the Securities Act
of 1933, as amended, and the prospectus constituting a part
thereof (the "Prospectus"), 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 and the Prospectus, 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 as attorneys who will pass upon
the legality of the Shares and (2) to the filing of a copy of
this opinion as Exhibit 5.1 to the Registration Statement.
Very truly yours,
<PAGE>
CONSENT OF KPMG PEAT MARWICK LLP
The Board of Directors
First Charter Corporation
We consent to the incorporation by reference in the Registration
Statement on Form S-8 of First Charter Corporation of our report
on the consolidated financial statements included in the 1994
Annual Report to Shareholders which is incorporated by reference
in the 1994 Form 10-K of First Charter Corporation. Our report
refers to a change in the method of accounting for investments
and a change in the method of accounting for income taxes in
1993.
KPMG Peat Marwick LLP
Charlotte, North Carolina
January 19, 1996
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of First Charter
Corporation (the "Corporation") and the several undersigned
Officers and Directors thereof whose signatures appear below
hereby makes, constitutes and appoints Lawrence M. Kimbrough and
Robert O. Bratton, and each of them acting individually, its and
his true and lawful attorneys, with full power to act without the
other and with full power of substitution, to execute, deliver
and file in its and his name and on its and his behalf, and in
each of the undersigned Officer's and Director's capacity or
capacities as shown below, (a) a Registration Statement on Form
S-8 (or other appropriate form) with respect to the registration
under the Securities Act of 1933, as amended (the "Securities
Act"), of 150,000 shares of the Common Stock of the Corporation
for sale from time to time by the Corporation to various of its
employees pursuant to the exercise of options granted under the
1996 Employee Stock Purchase Plan, and any and all amendments,
including any and all post-effective amendments, to the foregoing
and any and all documents in support thereof or supplemental
thereto, and (b) such registration statements, petitions,
applications, consents to service of process or other
instruments, and any and all amendments or supplements to
the foregoing and any and all documents in support thereof or
supplemental thereto, as may be necessary or advisable to qualify
or register the securities covered by said Registration Statement
under such state or other securities laws, regulations and
requirements as may be applicable; and each of the Corporation
and said Officers and Directors hereby grants to said attorneys,
and to each of them, full power and authority to do and perform
each and every act and thing whatsoever as said attorneys or
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 the Corporation might or could do, and as each of
said Officers and Directors might or could do personally in his
capacity or capacities as aforesaid, and each of the Corporation
and said Officers and Directors hereby ratifies and confirms all
acts and things which said attorneys or attorney might do or
cause to be done by virtue of this power of attorney and its or
his signature as the same may be signed by said attorneys or
attorney, or either of them, to any or all of the following
(and/or any and all amendments and supplements to any or all
thereof): such Registration Statement under the Securities Act,
and all such registration statements, petitions, applications,
consents to service of process and other instruments, and any and
all amendments to the foregoing and any and all documents in
support thereof or supplemental thereto, under such securities
laws, regulations and requirements as may be applicable.
IN WITNESS WHEREOF, First Charter Corporation has caused
this power of attorney to be signed on its behalf, and each of
the undersigned Officers and Directors of the Corporation in the
capacity or capacities noted has hereunto set his hand on the
date indicated.
FIRST CHARTER CORPORATION
By: /S/ LAWRENCE M. KIMBROUGH
Lawrence M. Kimbrough
President and Chief Executive
Officer
Dated: January 19, 1996<PAGE>
SIGNATURE TITLE DATE
/S/ LAWRENCE M. KIMBROUGH President, Chief January 19, 1996
Lawrence M. Kimbrough Executive Officer
and Director
(Principal Executive
Officer)
/S/ J. ROY DAVIS, JR. Chairman of the January 19, 1996
J. Roy Davis, Jr. Board and Director
/S/ ROBERT O. BRATTON Executive Vice January 19, 1996
Robert O. Bratton President
(Principal Financial
and Accounting Officer)
William R. Black Director January __, 1996
/S/ JANE B. BROWN Director January 19, 1996
Jane B. Brown
/S/ GRADY S. CARPENTER Director January 19, 1996
Grady S. Carpenter
/S/ MICHAEL R. COLTRANE Director January 19, 1996
Michael R. Coltrane
James B. Fincher Director January __, 1996
/S/ H. CLARK GOODWIN Director January 19, 1996
H. Clark Goodwin
Frank H. Hawfield Director January __, 1996
/S/ J. KNOX HILLMAN, JR. Director January 19, 1996
J. Knox Hillman, Jr.
Branson C. Jones Director January __, 1996
- -S- D. C. LINN, JR. Director January 19, 1996
D. C. Linn, Jr.
/S/ ROBERT F. LOWRANCE Director January 19, 1996
Robert F. Lowrance
Dr. Jerry E. McGee Director January __, 1996
/S/ HUGH H. MORRISON Director January 19, 1996
Hugh H. Morrison
/S/ T. DAVID PROPST Director January 19, 1996
T. David Propst
/S/ ROBERT L. WALL Director January 19, 1996
Robert L. Wall
/S/ JAMES B. WIDENHOUSE Director January 19, 1996
James B. Widenhouse
BOARD OF DIRECTORS OF
FIRST CHARTER CORPORATION
________
RESOLUTIONS
________
February 15, 1995
1996 EMPLOYEE STOCK PURCHASE PLAN
FURTHER RESOLVED, that the proper officers of the
Corporation be, and they hereby are, authorized and empowered (a)
to execute and file with the Securities and Exchange Commission
(the "SEC") a Registration Statement on Form S-8 (or other
applicable form as counsel may advise) under the Securities Act
of 1933, as amended (the "Securities Act"), with respect to the
possible sale from time to time of up to 150,000 shares of Common
Stock to its employees pursuant to the exercise of options
granted under the Plan, with such terms therein as the officers
executing the same may approve, their execution to be conclusive
evidence of such approval, and (b) to execute and file all such
other instruments and documents, to make all such payments, to do
all such other acts and things in connection with said
Registration Statement, including the execution and filing of
such amendment or amendments (including any post-effective
amendments) thereto, as they may deem necessary or advisable in
order to effect such filing and to procure the effectiveness of
said Registration Statement (and any such post-effective
amendments thereto) and to make such supplements to the
Prospectus forming a part of said Registration Statement as may
be required or otherwise as they may deem advisable; and
FURTHER RESOLVED, that Lawrence M. Kimbrough and Robert O.
Bratton and each of them with full power to act without the
other, be, and they hereby are, authorized and empowered to sign
the aforesaid Registration Statement and any amendment or
amendments (including post-effective amendments) thereto on
behalf of and as attorneys for the Corporation and on behalf of
and as attorneys for any of the following, to wit: the principal
executive officer, the principal financial officer, the principal
accounting officer, and any other officer of the Corporation,
including the Chairman of the Board of Directors and the
President of the Corporation;
<PAGE>
FIRST CHARTER CORPORATION
CERTIFICATE OF SECRETARY
I, David E. Keul, Assistant Secretary of First Charter
Corporation, a corporation organized and existing under the laws
of the State of North Carolina (the "Corporation"), do hereby
certify that the foregoing is a true and correct copy of
resolutions duly adopted by the Board of Directors of the
Corporation at a meeting of the Board of Directors held on
February 15, 1995, at which meeting a quorum was present and
acting throughout, and that all such resolutions are in full
force and effect and have not been amended or rescinded as of the
date hereof.
IN WITNESS WHEREOF, I have hereupon set my hand this 18th
day of January, 1996.
/S/ DAVID E. KEUL
Assistant Secretary
(CORPORATE SEAL)
FIRST CHARTER CORPORATION
1996 EMPLOYEE STOCK PURCHASE PLAN
ARTICLE I. PURPOSES:
This First Charter Corporation 1996 Employee Stock Purchase
Plan (hereinafter called the "Plan") is intended to be an
employment incentive and to encourage stock ownership by all
eligible employees, including officers, of First Charter
Corporation (hereinafter called the "Corporation") and its
subsidiary corporations (the "Subsidiaries"), as that term is
defined in Section 424(f) of the Internal Revenue Code of 1986,
as now in force or hereafter amended (the "Code"), in order to
increase their proprietary interest in the Corporation's success
and to encourage them to remain in the employ of the Corporation
or a Subsidiary. It is further intended that options issued
pursuant to this Plan (hereinafter called "Options") shall
constitute options issued pursuant to an "employee stock purchase
plan" within the meaning of Section 423 of the Code and that the
Plan shall satisfy the requirements of Rule 16b-3 under the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
ARTICLE II. ADMINISTRATION:
The Plan shall be administered by the Compensation Committee
of the Board of Directors of the Corporation (the "Committee").
No member of the Board of Directors who is not otherwise employed
by the Corporation shall be eligible to receive an Option. The
Committee shall at all times be composed of "disinterested
persons" within the meaning of Rule 16b-3 of the Exchange Act.
Subject to the provisions of the Plan, the Committee may, from
time to time, prescribe rules and regulations for the
administration of the Plan and may decide questions which may
arise with respect to the interpretation or application of said
Plan.
ARTICLE III. ELIGIBILITY:
Each employee of the Corporation and of its Subsidiaries
(including officers) shall be granted as of a date to be
determined by the Board of Directors (the "Option Date"), but in
no instance more than twelve (12) months after the shareholders
of the Corporation have approved the Plan, which shareholder
approval shall be considered to be the Plan's adoption within the
meaning of Section 423 of the Code, an Option under this Plan to
purchase the Corporation's authorized but unissued $5.00 par
value Common Stock (herein sometimes called "Common Stock"),
except that there shall be excluded: (i) employees whose
customary employment is under twenty (20) hours per week; (ii)
employees whose customary employment is for not more than five
(5) months in any calendar year; and (iii) any employee who, if
having received an Option hereunder, would own, immediately after
the Option was granted, stock possessing five percent (5%) or
more of the total combined voting power or value of any classes
of stock of the Corporation, or of any of its Subsidiaries. For
purposes of determining stock ownership of an employee under
(iii) hereof, the rules of Section 424(d) of the Code and
Section 1.423-2(d) of the Treasury Regulations thereunder shall
apply, and Common Stock which the employee may purchase under any
outstanding options shall be treated as owned by the employee.
ARTICLE IV. STOCK:
The stock subject to the Options to be issued hereunder
shall be the Corporation's Common Stock. The maximum number of
such shares to be issued upon the exercise of the Options hereby
granted shall be an aggregate of 150,000 shares.
An eligible employee (hereinafter called "Optionee") shall
receive an option to purchase up to the largest whole number of
shares obtained by dividing Optionee's Annual Compensation (as
hereinafter defined) by One Hundred Dollars ($100.00). The term
"Annual Compensation" as used herein is defined as regular fixed
basic annual compensation at the rate in effect on the Option
Date, and does not include any bonus, overtime payment, sales
commission, contribution to an employee benefit plan or other
similar payment or contribution.
Except as expressly provided otherwise in Article V hereof,
payment for Common Stock purchased under the Option shall be made
only by payroll deductions over the designated Purchase Period
(as hereinafter defined).
Notwithstanding the foregoing provisions of this Plan, no
Option shall permit an Optionee to purchase in any single
calendar year a number of shares which, together with all other
shares in the Corporation and any Subsidiaries which such
Optionee may be entitled to purchase in such year pursuant to
Options issued under any employee stock purchase plan, has an
aggregate fair market value (determined in each case as of the
date such options are granted) in excess of $25,000. This
limitation applies only to Options granted under "employee stock
purchase plans" as defined by Section 423 of the Code, and does
not limit the amount of stock which an Optionee may purchase
under any other stock option or bonus plans then in effect.
ARTICLE V. TERMS AND CONDITIONS OF OPTIONS:
Options granted hereunder shall be evidenced by a Notice of
the Grant of an Option to each Optionee, which notice shall: (i)
be in such form as the Board of Directors shall determine; (ii)
incorporate, by reference, the terms and provisions of this Plan;
and (iii) be issued to each Optionee on or about the Option Date.
Subject always to the requirement that, except as otherwise
specified in Article IV hereof, all Optionees shall have the same
rights and privileges, such Options shall be subject to the
following terms and conditions:
(a) OPTION PRICE: The price of shares purchased under any
Option issued hereunder (the "Option Price") shall be an amount
equal to ninety (90%) percent of the fair market value of the
Common Stock on the Option Date but not less than the par value
of such stock. For so long as shares of the Common Stock of the
Corporation are listed on a national securities exchange or the
NASDAQ National Market, "fair market value" as of a given date
shall mean, for purposes of this Plan, the mean between the high
and low sales prices of the Common Stock on that date, said mean
to be based on the sale of a minimum of 100 shares of said stock;
or if less than 100 shares of said stock are sold on such date or
if no sales prices are quoted, "fair market value" shall mean the
average of the closing bid and asked prices for such stock in the
over-the-counter market as reported by the NASDAQ Stock Market.
If the Common Stock is not listed on a national securities
exchange or reported on the NASDAQ National Market or quoted in
the over-the-counter market, "fair market value" shall be the
fair value thereof determined in good faith by the Board of
Directors. In making such determination, the Board of Directors
shall consider the financial condition of the Corporation and its
recent operating results, values of publicly-traded securities of
other financial institutions giving effect to the relative book
values and earnings of such institutions and the lack of
liquidity of the Corporation's shares, and such other factors as
the Board in its discretion deems relevant.
(b) TERM OF OPTIONS: The term of each Option shall extend
for a period of twenty-four (24) months commencing with the
Option Date with respect to such Option, said term being
hereinafter called the "Purchase Period."
(c) PURCHASE ACCOUNT: Each Optionee shall notify the
Corporation, on such forms as shall be provided by the
Corporation, within seven (7) days following actual receipt by
the Optionee of such forms, of the number of shares which the
Optionee wishes to have the right to purchase as of the last day
of the Purchase Period (hereinafter referred to as the "Purchase
Date"), which election may be for either all or any part of the
shares subject to the Option (such shares, so elected, shall be
hereinafter called the "Elected Shares").
Although, as more fully provided hereinafter, on the
Purchase Date an Optionee may decline to purchase all or any part
of the Optionee's Elected Shares, such Optionee, in the event the
Optionee's Elected Shares are less than all of the shares subject
to the Option, may not purchase more than the Optionee's Elected
Shares on the Purchase Date.
Except as provided in subsection (h) of this Article V, each
Optionee shall authorize the Corporation and its Subsidiaries to
withhold from the Optionee's after tax compensation, beginning as
soon as practicable following the making of the election
described above as to Elected Shares and continuing throughout
the duration of the Option, amounts sufficient to accumulate over
such period (with allowances for interest as provided for herein)
the aggregate Purchase Price of the Optionee's Elected Shares.
Such withheld amounts may be used by the Corporation for general
corporate purposes, but the Corporation shall maintain a record
of each Optionee's funds as a "Purchase Account." Such funds so
accumulated within said Purchase Account may be withdrawn, paid
or applied toward the Purchase Price of Elected Shares only
pursuant to the provisions contained in this Plan.
(d) INTEREST PAYABLE ON THE PURCHASE ACCOUNT: Except as
provided in Article XI hereof, the Corporation shall credit to
Purchase Accounts simple interest based on the First Charter
National Bank Prime Rate in effect from time to time, computed on
a 365-day basis, on the amount deducted from the Optionees'
salary payments and contributed to the Purchase Account annually.
Such interest shall be credited annually on a date determined by
the Committee. The Optionee is responsible for all income taxes
associated with the interest credited to the optionee's Purchase
Account.
(e) DATES ON WHICH OPTION SHALL BE EXERCISED: Except as
provided in subsections (h) and (i) of this Article V, each
Option which is exercised shall be exercised as of the Purchase
Date.
(f) MANNER OF EXERCISING OPTION: Except as provided in
subsections (h) and (i) of this Article V, each Optionee shall,
on such forms as shall be provided by the Corporation, at least
five (5) business days prior to the Purchase Date, notify the
Corporation of the Optionee's election either to: (i) exercise
the Option to purchase all or any part of the Elected Shares or,
in lieu thereof, (ii) decline to so exercise the Option, which
election, in either event, shall be effective as of said Purchase
Date.
In the event the Optionee so exercises the Option, the
Optionee shall tender to the Corporation all funds then on
deposit in the Optionee's Purchase Account, including interest,
along with such other amounts as may be necessary to purchase all
or any part of the Optionee's Elected Shares. Any excess of
funds over the required purchase price shall be paid to the
Optionee and the Purchase Account closed.
In the event the Optionee declines to so exercise the
Option, all funds, including interest, then in the Optionee's
Purchase Account, shall be paid to said Optionee and the Purchase
Account closed.
Should the Optionee fail to deliver the notification form
referred to in this subsection (f), such failure shall be deemed
an election by said Optionee to decline to exercise the Option.
(g) TERMINATION OF OPTION: An Optionee may at any time on
or before the Purchase Date terminate the Option in its entirety
by written notice of such termination delivered in the manner set
forth in Article X hereof. Such termination shall become
effective upon receipt of such notice by the Corporation. Upon
such termination, all funds, including interest credited, then in
the Optionee's Purchase Account shall be paid to the Optionee and
the Optionee's Purchase Account closed, and all rights and
privileges of the Optionee granted pursuant to this Plan and the
Option granted hereunder shall be terminated. Any interest
accrued but not credited to the Purchase Account will be
forfeited.
(h) TERMINATION OF EMPLOYMENT: In the event that an
Optionee's employment by the Corporation or a Subsidiary is
terminated other than by retirement with the consent of the
Corporation, medical disability (determined in accordance with
the Corporation's long term disability plan then in effect) or by
death, all rights and privileges of Optionee granted pursuant to
the Plan and of the Option granted hereunder shall terminate, and
all funds, including interest, then on deposit on the Optionee's
Purchase Account shall be paid to the Optionee and the Optionee's
Purchase Account closed. If any termination of employment is due
to retirement with the consent of the Corporation, the Optionee
shall have the right within thirty (30) days thereafter, but not
later than five (5) business days prior to the Purchase Date, to
exercise the Option to purchase all or any part of the Optionee's
Elected Shares. If the Optionee shall become medically disabled
or die while in the employment of the Corporation or any
Subsidiary of the Corporation during the term of the Option, the
Optionee's estate, personal representative or beneficiary shall
have the right, at any time, within twelve (12) months from the
date of the Optionee's medical disability or death, but not later
than five (5) business days prior to the Purchase Date, to
exercise the employee's Option to purchase all or any part of the
Elected Shares. Options exercised pursuant to the terms of this
subsection (h) of this Article V may be exercised (during the
specified times) as to all or any part of the Elected Shares by
written notice delivered in the manner set forth in Article X
hereof and tendering with such notice payment of any or all
funds, including amounts credited to said Optionee's Purchase
Account and such other amounts as may be necessary to aggregate
the required purchase price, and shall be deemed exercised as of
the date such notice is delivered, except if such notice is
delivered less than ten (10) business days prior to the Purchase
Date, they shall be deemed exercised as of the Purchase Date.
Failure to deliver such notice and payment within the time
provided shall be deemed an election not to exercise the Option,
which shall terminate, and all funds, including interest then in
the Optionee's Purchase Account, shall be paid to the Optionee or
his estate and the Purchase Account closed.
Retirement of an Optionee at the Optionee's Normal
Retirement Date in accordance with the provisions of any
Retirement Plan adopted by the Corporation or by any Subsidiary
shall be deemed to be a retirement with the consent of the
Corporation. Whether any other terminations of employment
(either at an Optional Retirement Date in accordance with the
provision of any such Retirement Plan or otherwise) are to be
considered retirements with the consent of the Corporation and
whether authorized leaves of absence or absences on military or
government service or for other reasons shall constitute a
termination of employment for the purposes of the Plan, shall be
determined by the Committee, the determination of which shall be
final and conclusive. Employment by the Corporation or any
Subsidiary shall be deemed to be continuous and not to terminate
during any uninterrupted period in which an employee is in the
employment of the Corporation or any Subsidiary, but only if and
so long, in the case of employment by a Subsidiary, as employment
by such Subsidiary will, under the applicable provisions of the
Code as then in effect, result in the same tax treatment as would
be accorded if such Optionee were an employee of the Corporation.
(i) ADJUSTMENT OF OPTIONS; EXERCISABILITY UPON CERTAIN
EVENTS: In the event of reorganization, recapitalization, stock
split, stock dividend, combination of shares, merger,
consolidation, offering of rights or any other change in the
structure of shares of Common Stock of the Corporation, the total
amount of shares on which options may be granted under the Plan
and options rights (both as to the number of shares and the
option price) shall be appropriately adjusted for any increase or
decrease in the number of outstanding shares of Common Stock;
provided, however, that any fractional shares resulting from any
such adjustment shall be eliminated.
In the event of (i) the adoption of a plan of merger,
consolidation, share exchange or similar transaction of the
Corporation with any other corporation as a result of which the
holders of the Common Stock of the Corporation in the aggregate
would receive less than 50% of the voting capital stock of the
surviving or resulting corporation; (ii) the approval by the
Board of Directors of an agreement providing for the sale or
transfer (other than as security for obligations of the
Corporation) by the Corporation of a majority of the stock of a
significant subsidiary of the Corporation or substantially all of
the assets of the Corporation or of a significant subsidiary of
the Corporation; (iii) the acquisition of more than 20% of the
Corporation's voting capital stock by any person within the
meaning of Section 13(d)(3) of the Exchange Act, other than a
person, or group including a person, who beneficially owned, as
of the Option Date, more than 5% of the Corporation's securities,
in the absence of a prior expression of approval of the Board of
Directors of the Corporation; (iv) during any period of two
consecutive years, individuals who at the beginning of such
period constitute the Board of Directors of the Corporation cease
for any reason to constitute at least a majority thereof unless
the election, or the nomination for election by the Corporation's
shareholders, of each new director was approved by the vote of at
least two-thirds of the directors then still in office who were
directors at the beginning of the period; or (v) any other change
in control of the Corporation of a nature that would be required
to be reported in response to Item 6(e) of Schedule 14A of
Regulation 14A under the Exchange Act or the acquisition of
control, within the meaning of Section 2(a)(2) of the Bank
Holding Company Act of 1956, as amended, or Section 602 of the
Change in Bank Control Act of 1978, of the Corporation by any
person, company or other entity, then any Option granted
hereunder shall become immediately exercisable as to
the Optionee's Elected Shares and shall remain exercisable,
subject to all of the terms hereof not inconsistent with
subsection (i) of this Article V.
Anything contained herein to the contrary notwithstanding,
upon the dissolution or liquidation of the Corporation or the
consummation of a merger or consolidation in which the
shareholders of the Corporation receive less than 50% of the
voting capital stock of the surviving or resulting corporation,
each Option granted under the Plan shall terminate, but the
Optionee shall have the right, following the adoption of a plan
of dissolution or liquidation or a plan of merger or
consolidation and in any event prior to such dissolution,
liquidation, merger or consolidation, to exercise his Option to
purchase his Elected Shares, subject to all of the other terms
hereof not inconsistent with this subsection (i) of this Article
V.
The grant of an Option pursuant to this Plan shall not
affect in any way the right or power of the Corporation to make
adjustments, reclassifications, reorganizations, or changes of
its capital or business structure, or to merge or consolidate, or
to dissolve, liquidate or sell, or transfer all or any part of
the business or assets.
(j) ASSIGNABILITY: No Option granted hereunder shall be
assignable or transferable except by will or by the laws of
descent and distribution and shall be exercisable, during the
lifetime of Optionee, only by said Optionee.
(k) RIGHTS AS A SHAREHOLDER: No Optionee shall have any
rights as a shareholder with respect to shares purchased pursuant
to the Options to be granted hereunder until full payment has
been made for such shares and a stock certificate for such shares
has been actually issued to said Optionee. No adjustment will be
made for dividends or other rights for which the record date is
prior to the date of such issuance.
(l) REGISTRATION: Each Option under the Plan shall be
granted on the condition that a registration statement under the
Securities Act of 1933, as amended, with respect to the Common
Stock subject to such Option has become effective and a copy of
the Prospectus has been delivered to the Optionee.
ARTICLE VI. TERM OF PLAN:
The term of said Plan shall be for a period commencing on
the Option Date, and ending on the Purchase Date.
ARTICLE VII. AMENDMENTS:
The Committee may, from time to time, alter, amend, suspend
or discontinue the Plan at any time without notice, provided that
no Optionee's existing rights are adversely affected thereby;
provided further, upon any such amendment or modification, all
Optionees shall continue to have the same rights and privileges
as other Optionees (except as otherwise provided for in Article
IV hereof); and provided further, that no such amendment of the
Plan shall, except as provided in subsection (i) of Article V
hereof: (a) increase above one hundred fifty thousand (150,000)
the total number of shares which may be offered; (b) change the
formula by which the price for which the Common Stock shall be
sold is determined; or (c) increase the maximum number of shares
which any Optionee may purchase. The Board of Directors shall
submit any amendments to the shareholders of the Corporation for
approval to the extent necessary to maintain compliance with the
requirements of Rule 16b-3 of the Exchange Act.
ARTICLE VIII. APPLICATION OF FUNDS:
The proceeds received by the Corporation from the sale of
its Common Stock pursuant to Options granted under this Plan,
except as otherwise provided herein, will be used for general
corporate purposes.
ARTICLE IX. NO OBLIGATION TO PURCHASE SHARES:
The granting of an Option pursuant to this Plan shall impose
no obligation upon the Optionee to purchase any shares covered by
such Option.
ARTICLE X. NOTICES:
Any notice which the Corporation or Optionee may be required
or permitted to give to each other shall be in writing and shall
be deemed given when delivered personally or deposited in the
U.S. Mail, first class postage prepaid, addressed as follows:
Chief Financial Officer, First Charter Corporation, 22 Union
Street, North, Concord, North Carolina 28026-0228, or as such
other address as the Corporation, by notice to the Optionee, may
designate in writing from time to time; and to the Optionee, at
the address shown on the records of the Corporation, or at such
other address as the Optionee, by notice to the Corporation, may
designate in writing from time to time.
ARTICLE XI. CLOSING OF PURCHASE ACCOUNT:
In the event that under any provision hereof an Optionee's
Purchase Account is to be closed and any balance not applied to
the purchase of all or any part of such Optionee's Elected Shares
is to be paid to Optionee, such payment shall be made within
thirty (30) days following the date that the right to such
payment accrues and shall include interest payable up to such
date, after which no additional interest shall accrue.
ARTICLE XII. THE RIGHT OF THE COMPANY 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 Company or one of its
Subsidiaries, or shall interfere in any way with the right of the
Company or any of its Subsidiaries, as the case may be, to
terminate his or her employment at any time for any reason.
ARTICLE XIII. EFFECTIVENESS OF THE PLAN:
The Plan shall become effective only if:
(a) The Plan shall have been adopted by the Board of
Directors of the Corporation; and
(b) The Plan shall have been approved by the affirmative
vote of the holders of at least a majority of shares of Common
Stock present, or represented, and entitled to vote at the
shareholders' meeting at which the Plan is considered.
