<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
POST-EFFECTIVE AMENDMENT NO. 1 ON
FORM S-8
TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
FIRST NATIONAL CORPORATION
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
SOUTH CAROLINA 6022 57-0799315
(State or other jurisdiction of (Primary standard industrial (I.R.S. Employer Identification No.)
incorporation or organization) classification code number)
</TABLE>
950 John C. Calhoun Drive, S.E.
Orangeburg, South Carolina 29115
(803) 531-0527
(Address, including zip code, and
telephone number, including area code, of
registrant's principal executive offices)
------------------------
C. John Hipp, III
President and Chief Executive Officer
950 John C. Calhoun Drive, S.E.
Orangeburg, South Carolina 29115
(803) 531-0527
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
------------------------
Copies to:
David W. Dabbs, Esq.
Robinson, Bradshaw & Hinson, P.A.
101 North Tryon Street, Suite 1900
Charlotte, North Carolina 28246
<PAGE> 2
This Post-Effective Amendment No. 1 on Form S-8 covers shares of the
Common Stock of First National Corporation originally registered on the
Registration Statement on Form S-4 (File No. 333-80047) to which this is an
amendment. The registration fees in respect of such shares of Common Stock were
paid at the time of the original filing of the Registration Statement on Form
S-4 relating to such Common Stock.
Part I. Information Required in the Section 10(a) Prospectus
The documents constituting the Prospectus (the "Prospectus") of First
National Corporation (the "Registrant") with respect to this Post-Effective
Amendment No. 1 on Form S-8 to the Registration Statement on Form S-4 of the
Registrant are kept on file at the offices of the Registrant in accordance with
Rule 428 promulgated pursuant to the Securities Act of 1933, as amended (the
"Securities Act"). The Registrant will provide without charge to participants in
the 1996 Stock Option Plan of FirstBancorporation, Inc. (the "Plan"), 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 W. Louis Griffith, Chief Financial Officer, First National
Corporation, 950 John C. Calhoun Drive, S.E., Orangeburg, South Carolina 29115.
Telephone requests may be directed to (803) 531-0527.
Part II. Information Required in the Registration Statement
Item 3. Incorporation of Documents by Reference.
The following documents, which have been hereto filed by the Registrant
with the Securities and Exchange Commission (the "Commission") pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), are
incorporated by reference herein and in the Prospectus referred to in Part I of
this Registration Statement:
(a) The Registrant's Annual Report on Form 10-K for the year ended
December 31, 1998;
(b) The Registrant's Quarterly Reports on Form 10-Q for the quarters
ended March 31, 1999 and June 30, 1999;
(c) The Registrant's Current Report on Form 8-K filed on August 12,
1999; and
(d) The description of the Registrant's Common Stock contained in the
Registrant's Form 8-A, as declared effective on January 27, 1997, and any
amendment or report filed for the purpose of updating such description.
All documents 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 that either indicates that all securities
offered hereby 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 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 in any other subsequently filed document
that also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
The Registrant will provide without charge to each person to whom the
Prospectus referred to in Part I 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 W.
Louis Griffith, Chief Financial Officer, First National Corporation, 950 John C.
Calhoun Drive, S.E., Orangeburg, South Carolina 29115. Telephone requests may be
directed to (803) 531-0527.
Item 6. Indemnification of Directors and Officers.
The bylaws of the Registrant provide that the Registrant may indemnify
directors and officers of the Registrant against liability to the full extent
permitted or required by the South Carolina Business Corporation Act of 1988
(the "Act").
2
<PAGE> 3
Under the Act, a corporation has the power to indemnify directors and officers
who meet the standards of good faith and reasonable belief that conduct was
lawful and in the corporate interest (or not opposed thereto) set forth in such
statute. The Act also empowers a corporation to provide insurance for directors
and officers against liability arising out of their positions even though the
insurance coverage is broader than the power of the corporation to indemnify.
Under the Act, unless limited by its articles of incorporation, a corporation
must indemnify a director or officer who is wholly successful, on the merits or
otherwise, in the defense of any proceeding to which he was a party because he
is or was a director or officer against reasonable expenses incurred by him in
connection with the proceeding. The Registrant's Articles of Incorporation do
not provide otherwise. The Registrant maintains directors' and officers'
liability insurance for the benefit of its directors and officers
Item 8. Exhibits.
The following exhibits are filed with or incorporated by reference in
this Registration Statement.
Exhibit No. Description of Exhibit
- ----------- ----------------------
5 Opinion of Robinson, Bradshaw & Hinson, P.A.*
23 Consent of J. W. Hunt and Company, LLP
24 Power of Attorney*
99.1 1996 Stock Option Plan of FirstBancorporation, Inc.
- --------------------
* Previously filed as an exhibit to the Registrant's Registration
Statement on Form S-4 to which this is Post-Effective Amendment No. 1.
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% 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, Form S-8 or Form F-3, and the information
required to be included in a post-effective amendment by those paragraphs is
3
<PAGE> 4
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 Securities Act of 1933 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
Post-Effective Amendment No. 1 on Form S-8 to the Registration Statement on Form
S-4 to be signed on its behalf by the undersigned, thereunto duly authorized, in
the City of Orangeburg, State of South Carolina, on September 14, 1999.
FIRST NATIONAL CORPORATION
By: /s/ C. John Hipp, III
-------------------------------------------------
C. John Hipp, III
President and Chief Executive Officer
4
<PAGE> 5
Pursuant to the requirements of the Securities Act of 1933, this
Post-Effective Amendment No. 1 on Form S-8 to the Registration Statement on Form
S-4 has been signed by the following persons in the capacities and on the dates
indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
Director
- ----------------------------------------
(Colden R. Battey, Jr.)
/s/ Charles W. Clark* Director September 14, 1999
- ----------------------------------------
(Charles W. Clark)
Director
- ----------------------------------------
(William W. Coleman)
/s/ Dwight W. Frierson* Director September 14, 1999
- ----------------------------------------
(Dwight W. Frierson)
/s/ John L. Gramling, Jr.* Director September 14, 1999
- ----------------------------------------
(John L. Gramling, Jr.)
Director
- ----------------------------------------
(Richard L. Gray)
/s/ W. Louis Griffith Chief Financial Officer September 14, 1999
- ---------------------------------------- (Principal Financial and Accounting Officer)
(W. Louis Griffith)
/s/ C. John Hipp, III President, Chief Executive Officer September 14, 1999
- ---------------------------------------- and Director
(C. John Hipp, III) (Principal Executive Officer)
Director
- ----------------------------------------
(Robert R. Hill, Jr.)
/s/ Robert R. Horger* Director September 14, 1999
- ----------------------------------------
(Robert R. Horger)
/s/ Harry M. Mims, Jr.* Director September 14, 1999
- ----------------------------------------
(Harry M. Mims, Jr.)
/s/ Edward V. Mirmow, Jr.* Director September 14, 1999
- ----------------------------------------
(Edward V. Mirmow, Jr.)
Director
- ----------------------------------------
(Ralph W. Norman)
Director
- ----------------------------------------
(Samuel H. Rodgers)
/s/ Anne H. Oswald* Director September 14, 1999
- ----------------------------------------
(Anne H. Oswald)
</TABLE>
5
<PAGE> 6
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ James W. Roquemore* Director September 14, 1999
- ----------------------------------------
(James W. Roquemore)
/s/ Walter L. Tobin* Director September 14, 1999
- ----------------------------------------
(Walter L. Tobin)
/s/ Johnny E. Ward Director September 14, 1999
- ----------------------------------------
(Johnny E. Ward)
/s/ A. Dewall Waters* Director September 14, 1999
- ----------------------------------------
(A. Dewall Waters)
/s/ Larry D. Westbury* Director September 14, 1999
- ----------------------------------------
(Larry D. Westbury)
/s/ Cathy Cox Yeadon* Director September 14, 1999
- ----------------------------------------
(Cathy Cox Yeadon)
* By: /s/ W. Louis Griffith
-----------------------------------
W. Louis Griffith
Attorney-in-Fact
</TABLE>
6
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EXHIBIT INDEX
Exhibit No. Description of Exhibit
- ----------- ----------------------
23 Consent of J. W. Hunt and Company, LLP
99 1996 Stock Option Plan of FirstBancorporation, Inc.
<PAGE> 1
Exhibit 23
ACCOUNTANTS' CONSENT
Board of Directors
First National Corporation
We consent to the incorporation by reference, in this Post-Effective
Amendment No. 1 on Form S-8 to First National Corporation's Registration
Statement on Form S-4, of out report dated February 2, 1999 (except for Note 26,
as to which the date is March 4, 1999), included in First National Corporation's
1998 Annual Report on Form 10-K.
/s/ J. W. Hunt and Company, LLP
- -------------------------------
J. W. Hunt and Company, LLP
Columbia, South Carolina
September 14, 1999
<PAGE> 1
EXHIBIT 99.1
FIRSTBANCORPORATION, INC.
1996 STOCK OPTION PLAN
SECTION 1. PURPOSE. The purposes of the FirstBancorporation, Inc. 1996 Stock
Option Plan are to promote the interests of the Company, its affiliates, and its
stockholders by (i) attracting and retaining exceptional executive personnel and
other key employees and directors of the Company and its affiliates; (ii)
motivating such employees and directors by means of performance-related
incentives to achieve longer-range performance goals; and (iii) enabling such
employees and directors to participate in the long-term growth and financial
success of the Company.
SECTION 2. DEFINITIONS. As used in the Plan, the following terms shall have the
meanings set forth below:
"Affiliate" shall mean the Bank or any present or future corporation
that would be a "parent" or "subsidiary" of the Company as defined in Sections
424(f) and (g), respectively, of the Code.
"Award" shall mean any grant of Options or Director Options.
"Award Agreement" shall mean any written agreement, contract, or other
instrument or document evidencing any Award, which may, but need not, be
executed or acknowledged by a Participant.
"Bank" shall mean FirstBank, N.A., a national banking association.
"Board" shall mean the Board of Directors of the Company.
"Change in Control" shall mean an event deemed to occur if and when (a)
an offeror other than the Company purchases shares of the common stock of the
Company or the Bank pursuant to a tender or exchange offer for such shares, (b)
any person (as such term is used in Sections 13(d) and 14(d)(2) of the Exchange
Act) is or becomes the beneficial owner, directly or indirectly, of securities
of the Company or the Bank representing 25% or more of the combined voting power
of the Company's or the Bank's then outstanding securities, (c) the membership
of the board of directors of the Company or the Bank changes as the result of a
contested election, such that individuals who were directors at the beginning of
any twenty-four month period (whether commencing before or after the date of
adoption of this Plan) do not constitute a majority of the Board at the end of
such period, or (d) shareholders of the Company or the Bank approve a merger,
consolidation, sale or disposition of all or substantially all of the Company's
assets, or a plan of partial or complete liquidation.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"Committee" shall mean the committee of the Board designated by the
Board to administer the Plan and composed of not less than the minimum number of
persons from time to time required by Rule 16b-3, each of whom, to the extent
necessary to comply with Rule 16b-3 only, is a "disinterested person" within the
meaning of Rule 16b-3.
<PAGE> 2
"Company" shall mean FirstBancorporation, Inc., a South Carolina
corporation, together with any successor thereto.
"Director Option" shall mean a Non-Qualified Stock Option granted to
each Eligible Director pursuant to Section 6(e) without any action by the Board
or the Committee.
"Effective Date" shall mean the date specified in Section 9(a).
"Eligible Director" shall mean, on any date, a person who is first
elected to the Board or the Board of Directors of the Bank at any time following
the Effective Date, but shall not include a person who is an Employee.
"Employee" shall mean an employee of the Company or any Affiliate.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Fair Market Value" shall be determined as follows:
(a) If the Shares are traded or quoted on the Nasdaq stock market
at the time of grant of the Award, then the Fair Market Value
shall be the average of the highest and lowest selling price
on such exchange on the date such Award is granted or, if
there were no sales on such date, then on the next prior
business day on which there was a sale.
(b) If the Shares are not traded or quoted on the Nasdaq stock
market, then the Fair Market Value shall be a value determined
by the Committee in good faith on such basis as it deems
appropriate.
"Incentive Stock Option" shall mean a right to purchase Shares from the
Bank that is granted under Section 6 of the Plan and that is intended to meet
the requirements of Section 422 of the Code or any successor provision thereto.
"Non-Qualified Stock Option" shall mean a right to purchase Shares from
the Bank that is granted under Section 6 of the Plan and that is not intended to
be an Incentive Stock Option.
"Option" shall mean an Incentive Stock Option or a Non-Qualified Stock
Option but shall not include a Director Option.
"Participant" shall mean any Employee selected by the Committee to
receive an Award under the Plan or any Eligible Director who receives an Award
of Director Options.
"Person" shall mean any individual, corporation, partnership,
association, joint-stock company, trust, unincorporated organization, government
or political subdivision thereof or other entity.
"Plan" shall mean the FirstBancorporation, Inc. 1996 Stock Option Plan.
"Rule 16b-3" shall mean Rule 16b-3 as promulgated and interpreted by
the SEC under the Exchange Act, or any successor rule or regulation thereto as
in effect from time to time.
<PAGE> 3
"SEC" shall mean the Securities and Exchange Commission or any
successor thereto and shall include the staff thereof.
"Shares" shall mean common shares of the Bank, or such other securities
of the Bank as may be designated by the Committee from time to time.
"Ten Percent Stockholder" shall mean any stockholder who, at the time
an Incentive Stock Option is granted to such stockholder, owns (within the
meaning of Section 424(d) of the Code) more than ten percent of the voting power
of all classes of stock of the Bank.
"Termination for Cause" shall mean termination because of a
Participant's personal dishonesty, incompetence, willful misconduct, breach of
fiduciary duty involving personal profit, intentional failure to perform stated
duties, willful violation of any law, rule, or regulation (other than traffic
violations or similar offenses) or final cease-and-desist order, or material
breach of any provision of any employment agreement between the Bank or the
Company and a Participant.
<PAGE> 4
SECTION 3. ADMINISTRATION.
(a) The Plan shall be administered by the Committee. Subject to the
terms of the Plan and applicable law, and in addition to other express powers
and authorizations conferred on the Committee by the Plan, the Committee shall
have full power and authority to: (i) designate Participants; (ii) determine the
type or types of Awards to be granted to an eligible Employee; (iii) determine
the number of Shares to be covered by, or with respect to which payments,
rights, or other matters are to be calculated in connection with, Awards; (iv)
determine the terms and conditions of any Award; (v) determine whether, to what
extent, and under what circumstances Awards may be settled or exercised in cash,
Shares, other securities, other Awards or other property, or canceled,
forfeited, or suspended; (vi) determine whether, to what extent, and under what
circumstances cash, Shares, other securities, other Awards, other property, and
other amounts payable with respect to an Award shall be deferred either
automatically or at the election of the holder thereof or of the Committee;
(vii) interpret and administer the Plan and any instrument or agreement relating
to, or Award made under, the Plan; (viii) establish, amend, suspend, or waive
such rules and regulations and appoint such agents as it shall deem appropriate
for the proper administration of the Plan; and (ix) make any other determination
and take any other action that the Committee deems necessary or desirable for
the administration of the Plan. Except as provided in Section 4(a), neither the
Committee nor the Board shall have any discretion regarding whether an Eligible
Director shall receive a Director Option pursuant to Section 6(e) or regarding
the terms of any Director Option, including without limitation, the number of
Shares subject to such Director Option, the timing of the grant or the
exercisability of such Director Option, or the exercise price per Share of such
Director Option.
(b) Unless otherwise expressly provided in the Plan, all designations,
determinations, interpretations, and other decisions under or with respect to
the Plan or any Award shall be within the sole discretion of the Committee, may
be made at any time and shall be final, conclusive, and binding upon all
Persons, including the Bank, and Participant, any holder or beneficiary of any
Award, any shareholder and any Employee.
SECTION 4. SHARES AVAILABLE FOR AWARDS.
(a) SHARES AVAILABLE. Subject to adjustment as provided in Section
4(b), the number of Shares with respect to which Options and Director Options
may be granted under the Plan shall be 15,000. If, after the effective date of
the Plan, any Shares covered by an Option or Director Option granted under the
Plan, or to which such an Option or Director Option relates, are forfeited, or
if an Option or Director Option otherwise terminates or is canceled without the
delivery of Shares, then the Shares covered by such Option or Director Option,
or to which such Option or Director Option relates, or the number of Shares
otherwise counted against the aggregate number of Shares with respect to which
Options and Director Options may be granted, to the extent of any such
settlement, forfeiture, termination or cancellation, shall again be, or shall
become, Shares with respect to which Options and Director Options may be
granted, to the extent permissible under Rule 16b-3. In the event that any
Option or Director Option is exercised through the delivery of Shares, the
number of Shares available for Awards under the plan shall be increased by the
number of Shares surrendered, to the extent permissible under Rule 16b-3.
<PAGE> 5
(b) ADJUSTMENTS. In the event that any dividend or other distribution
(whether in the form of cash, Shares, other securities, or other property),
recapitalization, stock split, reverse stock split, reorganization, merger,
consolidation, split-up, spin-off, combination, repurchase, or exchange of
Shares or other securities of the Company, issuance of warrants or other rights
to purchase Shares or other securities of the Company, or other similar
corporate transaction or event affects the Shares such that an adjustment is
necessary in order to prevent dilution or enlargement of the benefits or
potential benefits intended to be made available under the Plan, then the
Committee shall proportionately adjust any or all (as necessary) of (i) the
number of Shares or other securities of the Company (or number and kind of other
securities or property) with respect to which Awards may be granted, including
an Award pursuant to Section 6(e), (ii) the number of Shares or other securities
of the Company (or number and kind of other securities or property) subject to
outstanding Awards, and (iii) the grant or exercise price with respect to any
Award; provided, in each case, that with respect to an Award of Incentive Stock
Options no such adjustment shall be authorized to the extent that such authority
would cause the Plan to violate Section 422(b)(1) of the Code, as from time to
time amended.
(c) SOURCES OF SHARES. Any Shares delivered pursuant to an Option or
Director Option may consist, in whole or in part, of authorized and unissued
Shares or of treasury Shares.
SECTION 5. ELIGIBILITY. An Employee, including any officer or employee-director
of the Company or an Affiliate, who is not a member of the Committee shall be
eligible to be designated a Participant. Each Eligible Director shall receive
nondiscretionary Director Options in accordance with, and only in accordance
with, Section 6(e) hereof.
SECTION 6. OPTIONS AND DIRECTOR OPTIONS.
(a) GRANT. Subject to the provisions of the Plan, the Committee shall
have sole and complete authority to determine the Employees to whom Options
shall be granted, the number of Shares to be covered by each Option, the option
price therefor and the conditions and limitations applicable to the exercise of
the option. The Committee shall have the authority to grant Incentive Stock
Options, or to grant Non-Qualified Stock Options, or to grant both types of
options. In the case of Incentive Stock Options, the terms and conditions of
such grants shall be subject to and comply with such rules as may be prescribed
by Section 422 of the Code, as from time to time amended, and any regulations
implementing such statute, including without limitation, the requirements of
Code Section 422(d), which limits the aggregate fair market value of Shares of
which Incentive Stock Options are exercisable for the first time to $100,000 per
calendar year. Each provision of the Plan and of each written option agreement
relating to an Option designated an Incentive Stock Option shall be construed so
that such Option qualifies as an Incentive Stock Option, and any provision that
cannot be so construed shall be disregarded.
(b) EXERCISE PRICE. The Committee shall establish the exercise price at
the time each Option is granted, which price shall not be less than 100% of the
per Share Fair Market Value on the date of grant. Notwithstanding any provision
contained herein, in the case of an Incentive Stock Option, the exercise price
at the time such Incentive Stock Option is granted to any Employee who, at the
time of such grant, is a Ten Percent Stockholder, shall not be less than 110% of
the per Share Fair Market Value on the date of grant.
<PAGE> 6
(c) EXERCISE. Each Option shall be exercisable at such time and subject
to such terms and conditions as the Committee may, in its sole discretion,
specify in the applicable Award Agreement or thereafter; provided, in the case
of an Incentive Stock Option, a Participant may not exercise such Option as an
Incentive Stock Option after the earlier of (i) the date which is ten years
(five years in the case of a Participant who is a Ten Percent Stockholder) after
the date on which such Incentive Stock Option is granted, or (ii) the date which
is three months (twelve months in the case of a Participant who becomes
disabled, as defined in Section 22(e)(3) of the Code, or who dies) after the
date on which he ceases to be an employee of the Company or an Affiliate; and
provided, further, that, in the event of a Participant's Termination for Cause,
his Options shall be canceled on the date he ceases to be an Employee. The
Committee may impose such conditions with respect to the exercise of Options,
including without limitation, any relating to the application of federal or
state securities laws, as it may deem necessary or advisable. The Committee
shall have the right to accelerate the exercisability of any Option or
outstanding Options in its discretion.
(d) PAYMENT. No Shares shall be delivered pursuant to any exercise of
an Option or Director Option until payment in full of the option price therefor
is received by the Company. Such payment may be made in cash or its equivalent,
or, if and to the extent permitted by the Committee, by exchanging Shares owned
by the optionee (which are not the subject of any pledge or other security
interest), or by a combination of the foregoing, provided that the combined
value of all cash and cash equivalents and the Fair Market Value of any such
Shares so tendered to the Company as of the date of such tender is at least
equal to such option price.
(e) DIRECTOR OPTIONS. On the date that is the first to occur of the
date an Eligible Director is elected to a second term on the Board or the Board
of Directors of the Bank, an Eligible Director shall receive a grant of Director
Options to purchase 500 Shares at an exercise price per Share equal to the Fair
Market Value on the date of grant; provided, however, that if, on any date on
which Director Options are to be granted to an Eligible Director(s), the number
of Shares remaining available under the Plan is insufficient for the grant of
Director Options to purchase 500 Shares, then Director Options to purchase a
proportionate number of such Shares (rounded to the greatest number of whole
Shares) shall be granted to such Eligible Director(s). Subject to shareholder
approval of the Plan, a Director Option shall be exercisable until the earlier
to occur of the following two dates (i) the tenth anniversary of the date of
grant of such Director Option or (ii) one year (two years in the case of an
Eligible Director who becomes disabled, as defined in Section 22(e)(3) of the
Code, or who dies) after the date the Eligible Director ceased to be a member of
the Board, except that if the Eligible Director ceases to be a member of the
Board, by reason of his Termination for Cause, his Director Options shall be
canceled on the date he ceases to be a member of the Board. An Eligible Director
may pay the exercise price of a Director Option in the manner described in
Section 6(d).
<PAGE> 7
(f) EFFECT OF A CHANGE IN CONTROL. In the event of a Change in Control,
all then outstanding Options and Director Options, shall become one hundred
percent (100%) vested and exercisable as of the Change in Control. If, in
connection with or as a consequence of a Change in Control, the Company or the
Bank is merged into or consolidated with another corporation, of if the Company
or the Bank sells or otherwise disposes of substantially all of its assets to
another corporation, then unless provisions are made in connection with such
transaction for the continuance of the Plan and/or the assumption or
substitution of then outstanding Options and Director Options with new options
covering the stock of the successor corporation, or parent or subsidiary
thereof, with appropriate adjustments as to the number and kind of shares and
prices, such Options or Director Options shall be canceled as of the effective
date of the merger, consolidation, or sale and the Participant or Eligible
Director shall be paid in cash an amount equal to the difference between the
Fair Market Value of the Shares subject to the Options or Director Options as of
the effective date of the such corporate event and the exercise price of the
Options or Director Options, as appropriate.
SECTION 7. AMENDMENT AND TERMINATION.
(a) AMENDMENTS TO THE PLAN. The Board may amend, alter, suspend,
discontinue, or terminate the Plan or any portion thereof at any time; provided
that no such amendment, alteration, suspension, discontinuation or termination
shall be made without shareholder approval if such approval is necessary to
comply with any tax or regulatory requirement, including for these purposes any
approval requirement which is a prerequisite for exemptive relief from Section
16(b) of the Exchange Act for which or with which the Board deems it necessary
or desirable to qualify or comply; and, provided further that no amendment may
be made to Section 6(e) or any other provision of the Plan relating to Director
Options within six months of the last date on which any such provision was
amended, other than to comport with changes in the Code, the Employee Retirement
Income Security Act of 1974, or the rules thereunder.
(b) AMENDMENTS TO AWARDS. Except as provided under Section 3, the
Committee may waive any conditions or rights under, amend any terms of, or
alter, suspend, discontinue, cancel or terminate, any Award theretofore granted,
prospectively or retroactively; provided that any such waiver, amendment,
alteration, suspension, discontinuance, cancellation or termination that would
impair the rights of any Participant or any holder or beneficiary of any Award
theretofore granted shall not to that extent be effective without the consent of
the affected Participant, holder or beneficiary.
(c) CANCELLATION. Any provision of this Plan or any Award Agreement to
the contrary notwithstanding, the Committee may cause any Award of Options
granted hereunder to be canceled in consideration of the granting to the holder
of an alternative Award of Options having a Fair Market Value equal to the Fair
Market Value of such canceled Award.
<PAGE> 8
SECTION 8. GENERAL PROVISIONS.
(a) NONTRANSFERABILITY.
(i) Each Award, and each right under any Award, shall be
exercisable only by the Participant's lifetime, or, if permissible under
applicable law, by the Participant's guardian or legal representative or a
transferee receiving such Award pursuant to a domestic relations order, as
determined by the Committee.
(ii) No Award may be assigned, alienated, pledged, attached,
sold or otherwise transferred or encumbered by a Participant otherwise than by
will or by the laws of descent and distribution or pursuant to a domestic
relations order, and any such purported assignment, alienation, pledge,
attachment, sale, transfer or encumbrance shall be void and unenforceable
against the Company; provided that the designation of a beneficiary shall not
constitute an assignment, alienation, pledge, attachment, sale, transfer or
encumbrance.
(b) NO RIGHTS TO AWARDS. No Employee, Participant or other Person shall
have any claim to be granted any Award, and there is no obligation for
uniformity of treatment of Employees, Participants, or holders or beneficiaries
of Awards. The terms and conditions of Awards need not be the same with respect
to each recipient.
(c) SHARE CERTIFICATES. All Shares or other securities of the Company
delivered under the Plan pursuant to any Award or the exercise thereof shall be
subject to such stop transfer orders and other restrictions as the Committee may
deem advisable under the Plan or the rules, regulations, and other requirements
of the SEC, any stock exchange or national securities association upon which
such Shares or other securities are then listed, and any applicable Federal or
state laws, and the Committee may cause a legend or legends to be put on any
certificates representing such Shares or other securities to make appropriate
reference to such restrictions.
(d) DELEGATION. Subject to the terms of the Plan and applicable law,
the Committee may delegate to one or more officers or managers of the Company,
or to a committee of such officers or managers, the authority, subject to such
terms and limitations as the Committee shall determine, to grant Awards to, or
to cancel, modify or waive rights with respect to, or to alter, discontinue,
suspend, or terminate Awards held by, Employees who are not officers or
directors of the Company for purposes of Section 16 of the Exchange Act, or any
successor section thereto, or who are otherwise not subject to such Section.
(e) WITHHOLDING. A Participant may be required to pay to the Company
and the Company shall have the right and is hereby authorized to withhold from
any Award, from any payment due or transfer made under any Award or from any
compensation or other amount owing to a Participant the amount of any applicable
withholding taxes in respect of an Award, its exercise, or any payment or
transfer under an Award and take such other action as may be necessary in the
opinion of the Company to satisfy all obligations for the payment of such taxes.
With respect to Participants who are not subject to Section 16 of the Exchange
Act, the withholding may be in the form of cash, Shares, or other property as
the Committee may allow. With respect to Participants who are subject to Section
16 of the Exchange Act, the withholding shall be in cash or in any other
property permitted by Rule 16b-3 as the Committee may allow.
<PAGE> 9
(f) AWARD AGREEMENTS. Each Award hereunder shall be evidenced by an
Award Agreement which shall be delivered to the Participant and shall specify
the terms and conditions of the Award and any rules applicable thereto.
(g) NO LIMIT ON OTHER COMPENSATION ARRANGEMENTS. Nothing contained in
the Plan shall prevent the Company or any Affiliate from adopting or continuing
in effect other compensation arrangements, which may, but need not, provide for
the grant of options, restricted stock, Shares and other types of Awards
provided for hereunder (subject to shareholder approval if such approval is
required), and such arrangements may be either generally applicable or
applicable only in specific cases.
(h) NO RIGHT TO EMPLOYMENT. The grant of an Award shall not be
construed as giving a Participant the right to be retained in the employ of the
Company or an Affiliate. Further, the Company or an Affiliate may at any time
dismiss a Participant from employment, free from any liability or any claim
under the Plan, unless otherwise expressly provide in the Plan or in any Award
Agreement.
(i) NO RIGHTS AS STOCKHOLDER. Subject to the provisions of the
applicable Award, no Participant or holder or beneficiary of any Award shall
have any rights as a stockholder with respect to any Shares to be distributed
under the Plan until he or she has become the holder of such Shares.
(j) GOVERNING LAW. The validity, construction, and effect of the Plan
and any rules and regulations relating to the Plan and any Award Agreement shall
be determined in accordance with the laws of the State of South Carolina,
without giving effect to the choice of law principles thereof.
(k) SEVERABILITY. If any provisions of the Plan or any Award is or
becomes or is deemed to be invalid, illegal, or unenforceable in any
jurisdiction or as to any Person or Award, or would disqualify the Plan or any
Award under any law deemed applicable by the Committee, such provision shall be
construed or deemed amended to conform to the applicable laws, or if it cannot
be construed or deemed amended without, in the determination of the Committee,
materially altering the intent of the Plan or the Award, such provision shall be
stricken as to such jurisdiction, Person or Award and the remainder of the Plan
and any such Award shall remain in full force and effect.
(l) OTHER LAWS. The Committee may refuse to issue or transfer any
Shares or other consideration under an Award if, acting in its sole discretion,
it determines that the issuance or transfer of such Shares or such other
consideration might violate any applicable law or regulation or entitle the
Company to recovery under Section 16(b) of the Exchange Act, and any payment
tendered to the Company by a Participant, other holder or beneficiary in
connection with the exercise of such Award shall be promptly refunded to the
relevant Participant, holder or beneficiary. Without limiting the generality of
the foregoing, no Award granted hereunder shall be construed as an offer to sell
securities of the Company, and no such offer shall be outstanding, unless and
until the Committee in its sole discretion has determined that any such offer,
if made, would be in compliance with all applicable requirements of the U.S.
federal securities laws.
<PAGE> 10
(m) NO TRUST OR FUND CREATED. Neither the Plan nor any Award shall
create or be construed to create a trust or separate fund of any kind or a
fiduciary relationship between the Company and a Participant or any other
Person. To the extent that any Person acquires a right to receive payments from
the Company pursuant to an Award, such rights shall be no greater than the right
of any unsecured general creditor of the Company.
(n) RULE 16B-3 COMPLIANCE. With respect to persons subject to Section
16 of the Exchange Act, transactions under this Plan are intended to comply with
all applicable terms and conditions of Rule 16b-3 and any successor provisions.
To the extent that any provision of the Plan or action by the Committee fails to
so comply, it shall be deemed null and void, to the extent permitted by law and
deemed advisable by the Committee.
(o) HEADINGS. Heading are given to the Sections and subsections of the
Plan solely as a convenience to facilitate reference. Such headings shall not be
deemed in any way material or relevant to the construction or interpretation of
the Plan or any provision thereof.
(p) NO IMPACT ON BENEFITS. Unless specifically provided under any other
benefit plan of the Company or its Affiliates, Awards shall not be treated as
compensation for purposes of calculating an Employee's or Eligible Director's
rights under such benefit plans.
(q) INDEMNIFICATION. Each person who is or shall have been a member of
the Committee or of the Board shall be indemnified and held harmless by the
Company against and from any loss, cost, liability, or expense that may be
imposed upon or reasonably incurred by him in connection with or resulting from
any claim, action, suit, or proceeding to which he may be made a party or in
which he may be involved by reason of any action taken or failure to act under
the Plan and against and from any and all amounts paid by him in settlement
thereof, with the Company's approval, or paid by him in satisfaction of any
judgement in any such action, suit, or proceeding against him, provided he shall
give the Company an opportunity, at its own expense, to handle and defend the
same before he undertakes to handle and defend it on his own behalf. The
foregoing right of indemnification shall not be exclusive and shall be
independent of any other rights of indemnification to which such persons may be
entitled under the Company's articles of incorporation or bylaws, by contract,
as a matter of law, or otherwise.
SECTION 9. TERM OF THE PLAN.
(a) EFFECTIVE DATE. The Plan shall be effective upon adoption by the
Board, subject to shareholder approval within twelve (12) months of such date.
In the event that the Plan is not approved by the shareholders of the Company,
as provided herein, the Plan and all Awards under the Plan shall automatically
terminate and shall be of no further force or effect.
(b) EXPIRATION DATE. The Plan shall terminate on and no Award shall be
granted under the Plan after the tenth anniversary of the Effective Date. Unless
otherwise expressly provided in the Plan or in an applicable Award Agreement,
any Award granted hereunder may, and the authority of the Board or the Committee
to amend, alter, adjust, suspend, discontinue, or terminate any such Award or to
waive any conditions or rights under any such Award shall, continue after the
tenth anniversary of the Effective Date.
As adopted by the FIRSTBANCORPORATION, INC.
Board of Directors on
February 21, 1996 /s/Colden R. Battey
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Colden R. Battey, Jr.
Chairman of the Board
