Registration No.333-_____
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
1999 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)
Tel. (704) 786-3300
(Telephone, including area code, of agent for service)
Copy to:
Anne Team Kelly, Esq.
Smith Helms Mulliss & Moore, L.L.P.
Post Office Box 31247
Charlotte, North Carolina 28231
Tel. (704) 343-2000 Fax. (704) 334-8467
Approximate date of commencement of proposed sale to the
public: from time to time after the effective date of this
Registration Statement.
CALCULATION OF REGISTRATION FEE
______________________________________________________________
Title of Proposed Proposed
Securities Amount Maximum Maximum Amount of
To be To be Offering Aggregate Registration
Registered Registered Price Offering Fee
Per Unit* Price*
-----------------------------------------------------------
Common Stock 300,000 $23.69 $7,107,000 $2,097
Shares
___________________________________________________________
* 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 Director of Human Resources, First
Charter Corporation, 22 Union Street, North, Concord, North
Carolina 28025. 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, 1997, filed pursuant to Section
13 of the Securities Exchange Act of 1934, as amended (the
"Exchange Act");
(b) The Registrant's Quarterly Report on Form 10-Q for the
quarter ended March 31, 1998;
(c) The Registrant's Current Reports on Form 8-K filed
on January 6, 1998, January 28, 1998, April 14, 1998 and
May 28, 1998; and
(d) The description of the Registrant's Common Stock
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 January 28, 1998.
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 Laura N. Blalock, Director of Human
Resources, First Charter Corporation, 22 Union Street, North,
Concord, North Carolina 28025. 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 Plan 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 8,500 shares of the Registrant's Common
Stock.
Item 6. Indemnification of Directors and Officers.
There are no provisions in the Registrant's Amended and 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 Amended
and 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. as
to legality of securities to be registered.
23.1 Consent of Smith Helms Mulliss & Moore, L.L.P.
(included in Exhibit 5.1).
23.2 Consent of KPMG Peat Marwick LLP, independent
certified public accountants.
24.1 Power of Attorney.
24.2 Certified Resolution authorizing signature of
Registration Statement.
99.1 1999 Employee Stock Purchase Plan.
99.2 Provisions of North Carolina law relating to
indemnification of directors and officers
(incorporated herein by reference to Exhibit 99.10
of First Charter's Registration Statement on Form
S-4, Registration No. 333-35905).
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.
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.
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, North Carolina, on May 29,
1998.
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 May 29, 1998
Lawrence M. Kimbrough Exeutive Officer
and Director
(Principal Executive
Officer)
/s/ ROBERT O. BRATTON Executive Vice May 29, 1998
Robert O. Bratton President
(Principal Financial
and Principal Accounting
Officer)
Director May __, 1998
William R. Black
MICHAEL R. COLTRANE* Director May 29, 1998
Michael R. Coltrane
J. ROY DAVIS, JR.* Director May 29, 1998
J. Roy Davis, Jr.
T. CARL DEDMON* Director May 29, 1998
T. Carl Dedmon
Director May __, 1998
James B. Fincher
JOHN J. GODBOLD, JR.* Director May 29, 1998
John J. Godbold, Jr.
H. CLARK GOODWIN* Director May 29, 1998
H. Clark Goodwin
Director May __, 1998
Charles F. Harry III
FRANK H. HAWFIELD, JR.* Director May 29, 1998
Frank H. Hawfield, Jr.
J. KNOX HILLMAN, JR.* Director May 29, 1998
J. Knox Hillman, Jr.
JERRY E. MCGEE* Director May 29, 1998
Jerry E. McGee
HUGH H. MORRISON* Director May 29, 1998
Hugh H. Morrison
THOMAS R. REVELS* Director May 29, 1998
Thomas R. Revels
*By: /s/ LAWRENCE M. KIMBROUGH
Lawrence M. Kimbrough
Attorney-in-Fact
EXHIBIT INDEX
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.
as to legality of securities to be registered.
23.1 Consent of Smith Helms Mulliss & Moore, L.L.P.
(included in Exhibit 5.1).
23.2 Consent of KPMG Peat Marwick LLP, independent
certified public accountants.
24.1 Power of Attorney.
24.2 Certified Resolution authorizing signature of
Registration Statement.
99.1 1999 Employee Stock Purchase Plan.
99.2 Provisions of North Carolina law relating
to indemnification of directors and officers
(incorporated herein by reference to Exhibit 99.10
of First Charter's Registration Statement on
Form S-4, Registration No. 333-35905).
SMITH HELMS MULLISS & MOORE, L.L.P.
Attorneys at Law
Post Office Box 31247
Charlotte, North Carolina 28231
Tel (704) 343-2000
Fax (704) 334-8467
May 29, 1998
First Charter Corporation
22 Union Street, North
Concord, North Carolina 28025
RE: Registration Statement on Form S-8
300,000 Shares of Common Stock
1999 Employee Stock Purchase Plan
Ladies and Gentlemen:
In connection with the possible offering and sale from time to time
of up to 300,000 shares of the common stock (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 May 29, 1998 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 nonassessable.
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 of
the Registration Statement.
Very truly yours,
/s/ SMITH HELMS MULLISS & MOORE, L.L.P.
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 1997
Annual Report to Shareholders which is incorporated by reference
in the 1997 Form 10-K of First Charter Corporation.
/s/ KPMG PEAT MARWICK LLP
Charlotte, North Carolina
May 28, 1998
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 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
300,000 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 1999
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: April 15, 1998
Signature Title Date
/S/ LAWRENCE M. KIMBROUGH President, Chief April 15, 1998
Lawrence M. Kimbrough Executive Officer
and Director
(Principal Executive
Officer)
/S/ ROBERT O. BRATTON Executive Vice April 15, 1998
Robert O. Bratton President
(Principal Financial
and Principal Accounting
Officer)
____________________ Director April __, 1998
William R. Black
/S/ MICHAEL R. COLTRANE Director April 15, 1998
Michael R. Coltrane
/S/ J. ROY DAVIS, JR. Director April 15, 1998
J. Roy Davis, Jr.
/S/ T. CARL DEDMON Director April 15, 1998
T. Carl Dedmon
___________________ Director April __, 1998
James B. Fincher
/S/ JOHN J. GODBOLD, JR. Director April 15, 1998
John J. Godbold, Jr.
/S/ H. CLARK GOODWIN Director April 15, 1998
H. Clark Goodwin
__________________ Director April __, 1998
Charles F. Harry III
/S/ FRANK H. HAWFIELD, JR.Director April 15, 1998
Frank H. Hawfield, Jr.
/S/ J. KNOX HILLMAN, JR. Director April 15, 1998
J. Knox Hillman, Jr.
/S/ BRANSON C. JONES Director April 15, 1998
Branson C. Jones
/S/JERRY E. MCGEE Director April 15, 1998
Jerry E. McGee
/S/ HUGH H. MORRISON Director April 15, 1998
Hugh H. Morrison
/S/ THOMAS R. REVELS Director April 15, 1998
Thomas R. Revels
BOARD OF DIRECTORS OF
FIRST CHARTER CORPORATION
______
RESOLUTIONS
______
April 15, 1998
1999 EMPLOYEE STOCK PURCHASE PLAN
WHEREAS, the Board of Directors previously has determined
that it is in the best interest of the Corporation to establish a
new employee stock purchase plan offering up to 300,000 shares of
the Corporation to encourage stock ownership of the Corporation
by the employees of the Corporation and has directed that such
plan be presented to the shareholders for approval;
NOW, THEREFORE, BE IT RESOLVED, that the 1999 Employee Stock
Purchase Plan (the "Plan") as previously authorized and approved
by the Board of Directors be, and it hereby is, ratified,
confirmed, approved and adopted in all respects in the form
attached hereto as Exhibit A;
FURTHER RESOLVED, that the issuance by the Corporation of up
to 300,000 shares of the Common Stock upon the exercise of
options granted under the Plan from time to time be, and hereby
is, approved in all respects, and that 300,000 shares of the
Common Stock of the Corporation be, and they hereby are, reserved
for issuance pursuant to the exercise of options granted under
the Plan (the "Shares"); and
FURTHER RESOLVED, that upon the approval of the Plan by the
shareholders of the Corporation, 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 issuance or sale from time to time of some or all of
the Shares 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 the Registration on Form S-8 relating
to the Shares to be sold and distributed pursuant to the Plan,
be, and it hereby is, approved in substantially the form
presented to the Board of Directors, together with any amendment
or amendments that the proper officers of the Corporation, upon
the advice of counsel, may determine to be necessary or
appropriate; 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; and
FURTHER RESOLVED, that Lawrence M. Kimbrough be, and he
hereby is, appointed and designated as the Agent for Service of
the Corporation to be named in the aforesaid Registration
Statement, with authority to receive notices and communications
with respect to the registration of the Shares under the
Securities Act, with all powers and functions consequent upon
such designation under the Rules and Regulations of the SEC; and
FURTHER RESOLVED, that it is desirable and in the best
interest of the Corporation that the Shares be qualified or
registered for distribution in various states where appropriate,
that the Chief Executive Officer, Chief Financial Officer and
Secretary of the Corporation hereby are authorized, empowered and
directed to determine the states in which appropriate action
shall be taken to qualify or register for distribution the Shares
as said officers may deem advisable; that said officers are
hereby authorized, empowered and directed to perform on behalf of
the Corporation any and all such acts as they may deem necessary
or advisable in order to comply with the applicable laws of any
such states, and in connection therewith to execute and file all
requisite papers and documents, including, but not limited to,
resolutions, applications, reports, surety bonds, irrevocable
consents and appointments of attorneys for service of process;
and the execution by such officers of any such paper or document
or the doing by them of any act in connection with the foregoing
matters shall conclusively establish their authority therefor
from the Corporation and the approval and ratification by the
Corporation of the papers and documents so executed and the
actions so taken; and
FURTHER RESOLVED, that such officers be, and they hereby
are, authorized and directed to do any and all things which in
their judgment may be necessary or appropriate in order to obtain
a permit, exemption, registration or qualification for, and a
dealer's license with respect to, the distribution of the Shares
under the securities laws of any one or more of the states as
such officers may deem advisable and in connection therewith to
execute, acknowledge, verify, deliver, file and publish all
applications, reports, resolutions, consents, consents to service
of process, powers of attorney, commitments and other papers and
instruments as may be required under such laws and to take any
and all further actions which they may deem necessary or
appropriate in order to secure and to maintain such permits,
exemptions, registrations and qualifications in effect for so
long as they shall deem in the best interest of the Corporation;
and
FURTHER RESOLVED, that upon the issuance thereof pursuant to
the exercise of options granted under the Plan, the Shares shall
be deemed to be fully paid and nonassessable and the holders of
such Shares shall be subject to no further call or liability with
respect thereto; and
FURTHER RESOLVED, that First Charter National Bank be, and
it hereby is, appointed Transfer Agent and Registrar for such
Shares; and it is hereby vested with all the power and authority
as Transfer Agent and Registrar with respect to said Shares as it
has heretofore been vested with for the shares of the
Corporation's Common Stock currently issued and outstanding; and
FURTHER RESOLVED, that the officers of the Corporation be,
and they hereby are, authorized, empowered and directed to file
any form of notification or application or similar form as may be
required to maintain the designation of the Common Stock on The
Nasdaq Stock Market as a National Market security and to pay any
fees required in connection therewith; and
FURTHER RESOLVED, that the Board of Directors hereby adopts,
as if expressly set forth herein, the form of any resolution
required by any authority to be filed in connection with any
applications, consents to service or other documents,
applications, reports or filings relating to the foregoing
resolutions if (i) in the opinion of the officers of the
Corporation executing same, the adoption of such resolutions is
necessary or desirable and (ii) the Secretary or an Assistant
Secretary of the Corporation evidences such adoption by inserting
in the minutes of this meeting copies of such resolutions, which
will thereupon be deemed to be adopted by the Board of Directors
with the same force and effect as if presented at this meeting;
and
FURTHER RESOLVED, that the officers of the Corporation be,
and they hereby are, authorized, empowered and directed to do
any and all things of any and every nature whatsoever and execute
all instruments, certificates and documents which they in their
discretion deem necessary, appropriate or convenient to carry
into effect the foregoing resolutions and the purpose and intent
thereof.
FIRST CHARTER CORPORATION
CERTIFICATE OF SECRETARY
I, David E. Keul, Assistant Corporate 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 April
15, 1998, at which meeting a quorum was present and acting
throughout, and that all such resolutions are in full effect and
have not been amended or rescinded as of the date hereof.
IN WITNESS WHEREOF, I have hereupon set my hand and affixed
the seal of the Corporation this 29th day of May, 1998.
/s/ DAVID E. KEUL
David E. Keul
Assistant Corporate Secretary
(CORPORATE SEAL)
FIRST CHARTER CORPORATION
1999 EMPLOYEE STOCK PURCHASE PLAN
First Charter Corporation (the "Corporation") desires to
implement the 1999 Employee Stock Purchase Plan (the "Plan") for
the purpose of granting Eligible Employees of the Corporation and
its Subsidiaries the opportunity to purchase Common Stock of the
Corporation from time to time.
NOW, THEREFORE, the Corporation hereby establishes the Plan,
the terms of which are as follows:
1. Purpose.
The purpose of this Plan is to give Eligible Employees of
the Corporation and its Subsidiaries an opportunity to acquire
shares of the Corporation's Common Stock in order to increase
their proprietary interest in the Corporation's success, to
encourage them to remain in the employ of the Corporation, and to
continue to promote the Corporation's best interests and enhance
its long-term performance.
2. Definitions.
Wherever used herein, the following words and phrases shall
have the meanings stated below unless a different meaning is
plainly required by the context:
(a) "Available Shares" means the aggregate number of shares
of Common Stock which may be purchased by Eligible Employees
under the Plan, as described in Section 5 hereof.
(b) "Board" means the Board of Directors of the
Corporation.
(c) "Code" means the Internal Revenue Code of 1986, as now
in effect or as hereafter amended.
(d) "Committee" means the Compensation Committee of the
Board. To the extent that the Board deems necessary or as may be
required from time to time under Section 16 of the Exchange Act,
the Committee shall be composed solely of two or more "non-employee
directors" within the meaning of Rule 16b-3 under the
Exchange Act or such other persons as shall be required pursuant
to the Section 16 rules in effect from time to time.
(e) "Common Stock" means authorized but unissued shares of
the common stock, no par value, of the Corporation.
(f) "Compensation" means an Eligible Employee's regular
fixed basic annual compensation at the rate in effect on the
applicable Offering Date, but excludes any bonus, overtime
payment, sales commission or contributions to any employee
benefit plan, including pre-tax contributions to any medical or
retirement plans qualified under Section 125 or Section 401(k) of
the Code.
(g) "Corporation" means First Charter Corporation, a North
Carolina corporation.
(h) "Elected Shares" means the number of shares of Common
Stock which an Eligible Employee elects to purchase during an
applicable Offering Period, as described in Section 3(d) hereof.
(i) "Eligible Employee" means, with respect to any Offering
Date, any individual who on such Offering Date is employed by the
Corporation or a Subsidiary on a regular full-time basis. A
person shall be considered employed on a regular full-time basis
if he or she is customarily employed by the Corporation or a
Subsidiary at least twenty (20) hours per week and is customarily
employed for more than five (5) months per calendar year.
"Eligible Employee" shall not include any person who would own,
immediately after an Option is granted, stock possessing five
percent (5%) or more of the total combined voting power or value
of all classes of stock of the Corporation or any Subsidiary.
For purposes of determining stock ownership of an employee under
the preceding sentence, 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 that the employee may purchase under any outstanding
options shall be treated as owned by the employee.
(j) "Exchange Act" means the Securities Exchange Act of
1934, as now in effect or as hereafter amended.
(k) "Exercise Date" means, with respect to an Option and
related Offering Period, the last business day of such Offering
Period.
(l) "Fair Market Value" of the Common Stock as of any date
means, for so long as shares of the Common Stock are listed on a
national securities exchange or reported on the Nasdaq Stock
Market as a National Market security, the closing price of a
share of Common Stock; or if no sales prices are quoted for such
date, or if the Common Stock is not listed on a national
securities exchange or reported on the Nasdaq Stock Market as a
National Market security, "fair market value" shall mean the
average of the closing bid and asked prices for a share of Common
Stock in the over-the-counter market as reported by the Nasdaq
Stock Market. If the Common Stock is not quoted in the over-the-
counter market, "fair market value" shall be the fair value
thereof determined in good faith by the Board. In making such
determination, the Board 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. Notwithstanding any provision of the Plan to the
contrary, no determination made with respect to the Fair Market
Value of Common Stock subject to an Option shall be inconsistent
with Section 423 of the Code or regulations thereunder.
(m) "Offering Date" means a date determined by the
Committee on which Options are to be granted hereunder to
Eligible Employees as of such date. The Committee may determine
one or more Offering Dates from time to time under the Plan.
(n) "Offering Period" means, with respect to Options
granted on any Offering Date, the term of such Options, which
shall be a period of time determined by the Committee at the time
the Offering Date is determined and which shall commence on such
Offering Date and shall end not less than three (3) months nor
more than twenty-four (24) months thereafter.
(o) "Option" means an option granted hereunder on an
Offering Date that will entitle an Eligible Employee to purchase
shares of Common Stock in the manner described herein.
(p) "Option Price" means, with respect to Options granted
on any Offering date, the exercise price per share of Common
Stock determined by the Committee at the time the Offering Date
is determined and which shall be a price not less than 85% of the
Fair Market Value of the Common Stock on such Offering Date.
(q) "Plan" means the First Charter Corporation 1999
Employee Stock Purchase Plan as set forth herein, as hereafter
amended from time to time.
(r) "Purchase Account" means the book entry account
maintained by the Corporation to record the amounts withheld from
each Eligible Employee's payroll for the purchase of Common Stock
as described in Section 4(b).
(s) "Securities Act" means the Securities Act of 1933, as
now in effect or as hereafter amended.
(t) "Subsidiary" or "Subsidiaries" means any corporation or
corporations meeting the requirements of Section 424(f) of the
Code and which the Board designates as a participant in the Plan.
3. Basis of Participation and Granting of Options; Elected
Shares.
(a) Subject to the express provisions of this Plan, on any
Offering Date, each Eligible Employee as of such Offering Date
shall be granted an Option hereunder that will entitle such
Eligible Employee to purchase on the Exercise Date of such
Offering Period, at the Option Price per share applicable to such
Option, up to the largest whole number of shares of Common Stock
obtained by dividing the Eligible Employee's Compensation by One
Hundred Dollars ($100.00) or such other amount as shall be determined
by the Committee at the time the Offering Date is determined. The
resulting number shall be the maximum number of shares which an
Eligible Employee may designate as Elected Shares in an Offering
Period pursuant to Section 3(d) hereof, subject to the
limitations contained in Sections 3(b), 4(b), 5 and 13(b) hereof.
(b) Notwithstanding any provision of this Plan to the
contrary, if the number of shares of Common Stock for which
Options are granted pursuant to Section 3(a) hereof exceeds the
remaining Available Shares on any Offering Date, then the Options
granted on such Offering Date to all Eligible Employees shall, in
a nondiscriminatory manner which shall be consistent with Section
13(c) hereof, be reduced in proportion to their respective
amounts of Compensation; provided, however, that if such an
adjustment would result in the grant of any Option to purchase
less than one whole share of Common Stock, then in such event no
Options shall be granted hereunder on such Offering Date.
(c) Each Option under the Plan shall be granted on the
condition that (i) a registration statement under the Securities
Act with respect to the Common Stock subject to such Option has
become effective and (ii) a copy of the Prospectus has been
delivered to the Eligible Employee.
(d) With respect to each Offering Date hereunder, the
Corporation shall notify each Eligible Employee as of such
Offering Date of the grant of Options on such date, including the
maximum number of shares that may be designated as Elected Shares
by such Eligible Employee as determined in accordance with
Section 3(a) hereof, the Offering Period and Exercise Date with
respect to, and the Option Price and the other terms of, such
Options. Following such notification, each Eligible Employee
shall notify the Corporation, on such forms as shall be provided
by the Corporation and within seven (7) days following actual
receipt by the Eligible Employee of such forms, of the number of
Elected Shares that the Eligible Employee wishes to have the
right to purchase on the applicable Exercise Date with respect to
such Option. An Eligible Employee may not purchase more than his
or her Elected Shares on the Exercise Date with respect to an
Option.
4. Purchase Account.
(a) Except as expressly provided otherwise herein, payment
for Common Stock to be purchased upon exercise of an Option shall
be made only by payroll deduction over the designated Offering
Period.
(b) Each Eligible Employee who, pursuant to Section 3(d)
hereof, elects the right to purchase shares under an Option shall
authorize the Corporation and its Subsidiaries to withhold from
the Eligible Employee's after-tax Compensation, beginning as soon
as practicable following the making of such election and
continuing throughout the duration of the Offering Period unless
terminated sooner under Section 7 hereof, amounts sufficient to accumulate
over such Offering Period (with allowances for interest as provided for
herein) the aggregate purchase price of the Eligible Employee's Elected
Shares. All withheld amounts may be used by the Corporation for general
corporate purposes, but the Corporation shall maintain a record of the
amounts so withheld in the Eligible Employee's Purchase Account. Such
amounts so credited to the Purchase Account shall be applied
toward the purchase of Common Stock on the Exercise Date or shall
be returned to the Eligible Employee or his or her beneficiary,
as expressly provided in this Plan.
(c) Subject to the provisions of Section 4(d) hereof, the
Corporation shall credit to an Eligible Employee's Purchase
Account simple interest, based on the First Charter National Bank
Prime Rate in effect from time to time and computed on a 365-day
basis, on the amount of after-tax Compensation credited to the
Eligible Employee's Purchase Account from time to time. Such
interest shall be credited at least once in each Offering Period
but no less than annually, on such date or dates determined by
the Committee. The Eligible Employee is responsible for all
income taxes associated with the interest credited to the
Eligible Employee's Purchase Account.
(d) In the event that under any provision hereof an
Eligible Employee's Purchase Account is to be closed and all or
any portion of the amount then credited to such Purchase Account
is not applied to the purchase of all or any part of such
Eligible Employee's Elected Shares, then such balance shall be
paid to the Eligible Employee or his or her estate or
beneficiary, as applicable, within thirty (30) days following the
date that the right to such payment accrues and shall include
interest credited up to such date. Upon the closing of the
Purchase Account, no additional interest shall accrue, and any
interest accrued but not credited will be forfeited.
5. Maximum Limitations; Available Shares.
The maximum number of Available Shares that may be issued
pursuant to the exercise of Options under the Plan shall be
300,000, subject to adjustment pursuant to Section 10 hereof. In
the event that any Option previously granted expires or is
terminated, surrendered or canceled without being exercised, in
whole or in part, for any reason, the number of shares of Common
Stock not purchased pursuant to such Option shall not reduce the
Available Shares as set forth above and shall again be available
for the granting of Options hereunder.
6. Administration.
The Plan shall be administered by the Committee. Subject to
the express provisions of the Plan, the Committee may interpret
the Plan, prescribe, amend and rescind rules and regulations
relating to the Plan, correct any defect or omission or reconcile
any inconsistency in the Plan, determine the terms and provisions
of the Options granted hereunder, determine the Offering Dates,
Offering Periods, Option Prices and Exercise Dates (except as
otherwise limited herein) and make all other determinations
necessary or advisable for the administration of the Plan. The
determinations of the Committee on all matters regarding the Plan
shall be conclusive. The Committee and any member thereof shall
only be liable for any action taken or determination made in bad
faith.
7. Terms of Options.
(a) Each Option shall expire upon the earlier to occur of
(i) the Exercise Date with respect to such Option, (ii) except as
set forth in Section 7(b) hereof, the date that the employment of
the Eligible Employee with the Corporation and its Subsidiaries
terminates (as determined by the Committee), or (iii) the
termination of the Option by the Eligible Employee pursuant to
Section 7(c) hereof. Upon the expiration or termination of an
Option hereunder, all amounts then credited to the Eligible
Employee's Purchase Account, including interest, shall be paid to
the Eligible Employee and the Eligible Employee's Purchase
Account shall be closed in accordance with then provisions of
Section 4(d) hereof. Upon the closing of the Purchase Account,
all rights and privileges hereunder of the Eligible Employee with
respect to such Option shall be terminated. Any such termination
of an Option shall not affect the right of an individual to be
granted an Option on any other Offering Date determined
hereunder, if such individual is an Eligible Employee as of any
such date.
(b) If during the term of an Option an Eligible Employee's
employment with the Corporation and its Subsidiaries terminates
due to retirement with the consent of the Corporation, the
Eligible Employee shall have the right, within thirty (30) days
thereafter but not later than five (5) business days prior to the
Exercise Date, to exercise such Option to purchase all or any
part of the Eligible Employee's Elected Shares. If during the
term of an Option the Eligible Employee shall become medically
disabled or shall die while in the employment of the Corporation
or any Subsidiary of the Corporation, the Eligible Employee's
estate, personal representative or beneficiary shall have the
right, within twelve (12) months from the date of the Eligible
Employee's medical disability or death but not later than five
(5) business days prior to the Exercise Date, to exercise such
Option to purchase all or any part of the Eligible Employee's
Elected Shares. Options exercised pursuant to the terms of this
Section 7(b) 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 Section 14(i) hereof and by tendering
with such notice payment of any or all funds, including amounts
credited to said Eligible Employee's Purchase Account and such
other amounts as may be necessary to aggregate the required
purchase price. Such Option shall be deemed exercised as of the
date such notice is delivered; provided, however, that if such
notice is delivered less than ten (10) business days prior to the
Exercise Date with respect to such Option, such Option shall be
deemed exercised as of such Exercise Date. Failure to deliver
such notice and payment within the time provided shall be deemed
an election not to exercise the Option, upon which the Option
shall terminate and the Eligible Employee's Purchase Account
shall be closed, as set forth in Section 7(a) hereof.
Retirement of an Eligible Employee at the Eligible
Employee'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 termination of
employment (either at any optional retirement date in accordance
with the provision of any such retirement plan or otherwise) is
to be considered retirement 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 any 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 Eligible Employee were an employee of the
Corporation.
(c) An Eligible Employee may at any time at least five (5) business
days prior to the Exercise Date with respect to an Option (or such other
date as may be selected by the Committee) terminate such Option in its
entirety by written notice of such termination delivered in the manner set
forth in Section 14(i) hereof. Such termination shall become effective as
of the date such notice is received by the Corporation; provided, however,
that if such notice is received within ten (10) business days prior to the
Exercise Date with respect to such Option, such termination shall be deemed
effective as of such Exercise Date. Upon such termination of the Option,
the Eligible Employee's Purchase Account shall be closed, as set forth in
Section 7(a) hereof.
8. Exercise of Options and Payment for Common Stock.
Except as provided otherwise in Section 7(b) or Section 11
hereof, each Option may be exercised only on the Exercise Date at
the end of the Offering Period for such Option and may be
exercised only with respect to an Eligible Employee's Elected
Shares. At least five (5) business days prior to the Exercise Date with
respect to an Option, an Eligible Employee shall, on such forms as shall be
provided by the Corporation, notify the Corporation of the Eligible
Employee's election either to: (i) exercise such Option to
purchase all or any part of the Elected Shares or, in lieu
thereof, (ii) decline to so exercise such Option, which election,
in either event, shall be effective as of said Exercise Date. In
the event the Eligible Employee elects to exercise such Option
with respect to all or a portion of his or her Elected Shares,
the Eligible Employee shall tender to the Corporation all amounts
then credited to the Eligible Employee's Purchase Account,
including interest, along with such other amounts as may be
necessary to purchase such Elected Shares. Any excess of amounts
so tendered over the required purchase price shall be paid to the
Eligible Employee and the Purchase Account shall be closed, in
accordance with the provisions of Section 4(d) hereof. In the
event the Eligible Employee declines to so exercise the Option
with respect to his or her Elected Shares, all amounts then
credited to the Eligible Employee's Purchase Account, including
interest, shall be paid to the Eligible Employee and the Purchase
Account closed, in accordance with the provisions of Section 4(d)
hereof. Should the Eligible Employee fail to deliver the
notification form referred to in this Section 8, such failure
shall be deemed an election by said Eligible Employee to decline
to exercise the Option with respect to all Elected Shares.
9. Transferability and Designation of Beneficiary.
(a) No Option may be transferred, assigned, pledged or
hypothecated (whether by operation of law or otherwise), except
as provided by will or the applicable laws of descent or
distribution, and no Option shall be subject to execution,
attachment or similar process. Any attempted assignment,
transfer, pledge, hypothecation or other disposition of an
Option, or levy of attachment or similar process upon the Option
not specifically permitted herein, shall be null and void and
without effect. An Option may be exercised only by the Eligible
Employee during his or her lifetime, or pursuant to Section 7(b)
hereof, by such Eligible Employee's beneficiary (as described in
Section 9(b) hereof), estate or the person who acquires the right
to exercise such Option upon such Eligible Employee's death by
bequest or inheritance.
(b) Each Eligible Employee may file a written designation
of beneficiary who is to receive any stock or cash in the event
that such Eligible Employee dies after the end of an Offering
Period but before the issuance of the shares or dies during an
Offering Period but before the applicable Exercise Date.
10. Adjustment Provisions.
The aggregate number of shares of Common Stock with respect
to which Options may be granted, the aggregate number of shares
of Common Stock subject to each outstanding Option, and the
Option Price per share of each outstanding Option shall be
appropriately adjusted for any increase or decrease in the number
of issued and outstanding shares of Common Stock resulting from a
subdivision or consolidation of shares, whether through
reorganization, recapitalization, stock split-up, stock
distribution or combination of shares, or the payment of a share
dividend or other increase or decrease in the number of such
shares outstanding effected without receipt of consideration by
the Corporation. The foregoing adjustments and the manner of
application of the foregoing provisions shall be determined by
the Committee in its sole discretion.
11. Merger and Consolidation; Dissolution.
After (i) the merger of one or more corporations into the
Corporation or any Subsidiary, (ii) any merger of the Corporation
or any Subsidiary into another corporation, (iii) any
consolidation of the Corporation or any Subsidiary and one or
more other corporations, or (iv) any other corporate
reorganization of any form involving the Corporation or any
Subsidiary as a party thereto, which such event involves any
exchange, conversion, adjustment or other modification of the
outstanding shares of the Common Stock, each holder of an Option
at the time of such corporate reorganization shall be entitled to
receive, at no additional cost, upon any exercise of such
Eligible Employee's Option and in lieu of the number of Elected
Shares as to which such Option shall then be so exercised, the
number and class of shares of stock or other securities or such
other property to which such Eligible Employee would have been
entitled pursuant to the terms of the agreement of merger or
reorganization if at the time of such merger or reorganization
such Eligible Employee had been a holder of record of a number of
shares of Common Stock equal to the number of Elected Shares with
respect to which such Option shall then be so exercised.
Comparable rights shall accrue to a holder of an Option in the
event of successive mergers or consolidations of the character
described above. The foregoing adjustments and the manner of
application of the foregoing provisions shall be determined by
the Committee in its sole discretion.
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 or association as a result
of which the holders of the voting capital stock of the
Corporation as a group would receive less than 50% of the voting
capital stock of the surviving or resulting corporation; (ii) the
approval by the Board 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 date of approval of this Plan by the Corporation's
shareholders, more than 5% of the Corporation's securities, in
the absence of a prior expression of approval of the Board; (iv)
during any period of two consecutive years, individuals who at
the beginning of such period constitute the Board 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 Eligible
Employee's Elected Shares, subject to any appropriate adjustments
in the number of such Elected Shares and the Option Price
thereof, and shall remain exercisable through the applicable
Exercise Date, subject to all of the terms of this Plan not
inconsistent with this Section 11.
Anything contained herein to the contrary notwithstanding,
upon the dissolution or liquidation of the Corporation each
Option granted under the Plan shall terminate, but the Eligible
Employee shall have the right, following the adoption of a plan
of dissolution or liquidation and in any event prior to such
dissolution or liquidation, to exercise his or her Option to
purchase his or her Elected Shares, subject to all of the other
terms of this Plan not inconsistent with this Section 11.
12. Conditions Subsequent to Effective Date.
The Plan is subject to the approval of the Plan in
accordance with applicable law by the shareholders of the
Corporation within twelve (12) months before or after the date of
adoption of the Plan by the Board. The Plan shall be null and
void and of no effect if the foregoing condition is not
fulfilled.
13. Limitation on Options. Notwithstanding any other provisions
of the Plan to the contrary:
(a) The Corporation intends that Options granted and Common
Stock issued under the Plan shall be treated for all purposes as
granted and issued under an employee stock purchase plan within
the meaning of Section 423 of the Code and the Treasury
Regulations issued thereunder and that the Plan shall satisfy the
requirements of Rule 16b-3 of the Exchange Act. Any provisions
required to be included in the Plan under Section 423 of the Code
and the Treasury Regulations issued thereunder or under the
Exchange Act are hereby included as fully as though set forth in
the Plan at length.
(b) No Eligible Employee shall be granted an Option under
the Plan which would permit such Eligible Employee to purchase,
in any single calendar year, under this Plan or any other
employee stock purchase plans (as defined in Section 423 of the
Code) of the Corporation and any parent or Subsidiary of the
Corporation, a number of shares of Common Stock that has an
aggregate Fair Market Value (determined in each case as of the
date of the grant of such option) in excess of $25,000. Any
Option granted under the Plan that would otherwise be in
violation of this Section 13(b) shall be deemed to be modified to
the extent necessary to satisfy the requirements hereof. This
Section 13(b) shall not limit the amount of Common Stock that an
Eligible Employee may purchase under any other stock option or
stock bonus plan.
(c) All Eligible Employees shall have the same rights and
privileges under the Plan, except that the amount of Common Stock
that may be purchased under Options granted pursuant to Section 3
hereof shall bear a uniform relationship to the compensation of
Eligible Employees. All rules and determinations of the
Committee in the administration of the Plan shall be uniformly
and consistently applied to all persons in similar circumstances
and shall be consistent with Section 423 of the Code or
regulations thereunder
(d) The Plan shall terminate when there are no Available
Shares remaining hereunder or upon earlier termination as
provided in Section 14(c) hereof.
14. Miscellaneous.
(a) Legal and Other Requirements. The obligations of the
Corporation to sell and deliver Common Stock under the Plan shall
be subject to all applicable foreign or domestic laws,
regulations, rules and approvals, including, but not by way of
limitation, the effectiveness of a registration statement under
the Securities Act and the requirements of any stock exchange or
securities association upon which the shares of Common Stock may
be included if deemed necessary or appropriate by the
Corporation. Certificates for shares of Common Stock issued
hereunder may be legended as the Committee shall deem
appropriate.
(b) No Obligation To Exercise Options. The granting of an
Option shall impose no obligation upon an Eligible Employee to
purchase any shares covered by such Option unless such Eligible
Employee affirmatively elects to purchase Common Stock as
described in Section 8 hereof.
(c) Termination and Amendment of Plan. The Board, without
further action on the part of the shareholders of the
Corporation, may from time to time alter, amend, suspend or
discontinue the Plan or any Option granted hereunder or may at
any time terminate the Plan, except that the Board may not
(except to the extent provided in Section 10 or Section 11
hereof): (i) increase the total number of Available Shares to
more than 300,000; (ii) increase the Offering Period of any
Option; (iii) decrease the minimum Option Price; (iv) change the
class of Eligible Employees; or (v) effect any other change
inconsistent with Section 423 of the Code or regulations issued
thereunder. No action taken by the Board under this subsection
Section 14(c) may materially and adversely affect any outstanding
Option without the consent of the holder thereof.
(d) Application of Funds. The proceeds received by the
Corporation from the sale of Common Stock pursuant to the
exercise of Options will be used for general corporate purposes.
(e) Withholding Taxes. Upon the exercise of any Option
under the Plan, the Committee shall have the right to require the
Eligible Employee to remit to the Corporation an amount
sufficient to satisfy all federal, state and local withholding
tax requirements prior to the delivery of any certificate or
certificates for shares of Common Stock.
(f) Right To Terminate Employment. Nothing in the Plan or
in any Option or any agreement entered into pursuant to the Plan
shall confer upon any Eligible Employee the right to continue in
the employment of the Corporation or any Subsidiary or shall
affect in any way any right that the Corporation or any
Subsidiary, as the case may be, may have to terminate the
employment of such Eligible Employee.
(g) Rights as a Shareholder. No Eligible Employee shall
have any right as a shareholder with respect to shares purchased
pursuant to the Options granted hereunder until full payment has
been made for such shares and until certificates for such shares
are actually issued to such Eligible Employee. No adjustment
will be made for dividends or other rights for which the record
date occurs prior to the date of such issuance.
(h) Gender and Headings. Throughout the Plan, whenever the
context requires or permits, the masculine gender shall include
the feminine and vise versa. The headings to the sections of the
Plan are for convenience only and shall not limit, modify, define
or expand express provisions of the Plan.
(i) Notices. Every direction, revocation or notice
authorized or required by the Plan 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, Post Office
Box 228, Concord, North Carolina 28026-0228, or at such other
address as the Corporation, by notice to the Eligible Employee,
may designate in writing from time to time; and to the Eligible
Employee, at the address shown on the records of the Corporation,
or at such other address as the Eligible Employee, by notice to
the Corporation, may designate in writing from time to time.
(j) Applicable Law. All questions pertaining to the
validity, construction and administration of the Plan and Options
granted hereunder shall be determined in conformity with the laws
of the state of North Carolina, to the extent not inconsistent
with Section 423 of the Code and regulations thereunder.
(k) Elimination of Fractional Shares. If under any
provision of the Plan which requires a computation or adjustment
of the number of shares of Common Stock subject to an Option, the
number so computed is not a whole number of shares of Common
Stock, such number of shares of Common Stock shall be rounded
down to the next whole number.
(l) Rights of Corporation. 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.
15. Effectiveness of the Plan:
The Plan shall become effective only if:
(a) The Plan shall have been adopted by the Board; and
(b) The Plan shall have been approved by the affirmative
vote of at least a majority of the votes cast with respect to
approval of the Plan at the shareholders' meeting at which the
Plan is considered.
