REGISTRATION STATEMENT NO. 33-___________
As Filed with the Securities and Exchange Commission on February 27, 1995
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
FIRST FINANCIAL HOLDINGS, INC.
(Exact name of registrant as specified in its charter)
Delaware 57-0866076
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
34 Broad Street
Charleston, South Carolina 29401
(803) 529-5800
(Address of principal executive offices)
First Financial Holdings, Inc.
1994 Outside Directors Stock Options-for Fees Plan
1994 Employee Stock Purchase Plan
(Full title of the Plans)
John F. Breyer, Jr., Esquire
Paul M. Aguggia, Esquire
Eric S. Kracov, Esquire
BREYER & AGUGGIA
Suite 1120 South
601 13th Street, N.W.
Washington, D.C. 20005
(202) 737-7900
(Name, address and telephone number of agent for service)
<TABLE>
Calculation of Registration Fee
<CAPTION>
Title of
Securities Amount Proposed Maximum Proposed Maximum Amount of
to be to be Offering Price Aggregate Registration
Registered Registered<F1> Per Share Offering Price Fee
<S> <C> <C> <C> <C>
Common Stock,
$.01 par
value 30,894 $12.19<F2> $ 376,597.86 $ 129.86
369,106 $16.875<F3> $6,228,663.75 $2,147.82
Total 400,000 $6,605,261.61 $2,277.68
<FN>
<F1> Together with an indeterminate number of additional shares
which may be necessary to adjust the number of shares reserved for issuance
pursuant to the First Financial Holdings, Inc. ("Company" or "Registrant")
1994 Outside Directors Stock Options-for-Fees Plan ("Directors Plan") and the
1994 Employee Stock Purchase Plan ("Stock Purchase Plan") (when referred to
together herein, (the "Plans") as a result of a stock split, stock dividend or
similar adjustment of the outstanding Common Stock of the Company. In
addition, with respect to the Stock Purchase Plan and pursuant to Rule 416(c),
this Registration Statement covers an indeterminate number of participant
interests available under the Stock Purchase Plan.
<F2> Estimated solely for the purpose of calculating the
registration fee, which has been calculated pursuant to Rule 457(h)(1).
The Proposed Maximum Offering Price Per Share with respect to which stock
options have been granted under the Directors Plan is the exercise price
for all such options.
<F3> The offering price for the 200,000 shares reserved for
issuance under the Stock Purchase Plan and the 169,106 shares with respect
to which stock options have not been granted under the Directors Plan is not
presently determinable. The offering price for such shares is estimated
pursuant to Rule 457(c) and (h) solely for the purpose of calculating the
registration fee and is based upon the average of the high and low prices
of the Registrant's Common Stock on February 24, 1995 as quoted on the
Nasdaq Stock Market.
</TABLE>
This Registration Statement shall become effective
automatically upon the date of filing in accordance with Section 8(a) of
the Securities Act of 1933, as amended, and 17 C.F.R. 230.462.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
The following documents filed with the Commission are incorporated in
this Registration Statement by reference:
(1) the Company's Quarterly Report on Form 10-Q for the quarter
ended December 31, 1994;
(2) the Company's Annual Report on Form 10-K for the fiscal year
ended September 30, 1994;
(3) information as to the options which will be included in
the future either in the Company's proxy statements or annual
reports.
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14, and 15(d) of the Securities Exchange Act of 1934 after the
date hereof and prior to the filing of a post-effective amendment which
indicates that all securities offered have been sold or which deregisters all
securities then remaining unsold shall be deemed to be incorporated by
reference in this Registration Statement and to be a part thereof from the
date of filing such documents.
Any statement contained in this Registration Statement, or 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 to the extent that a statement contained herein, or
in any other subsequently filed document which 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.
Item 4. Description of Securities
Not Applicable
Item 5. Interests of Named Experts and Counsel
Not Applicable
Item 6. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law sets forth
circumstances under which directors, officers, employees and agents may
be insured or indemnified against liability which they may incur in
their capacities.
Article XVII of the Registrant's Certificate of Incorporation provides
for indemnification of the directors, officers, employees and agents of
the Registrant for expenses actually and reasonably incurred in connection
with the defense or settlement of any threatened, pending or completed
action or suit.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 (the "Securities Act") may be permitted to directors, officers
and controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in the
opinion of the Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other
than the payment by the Registrant of expenses incurred or paid by a
director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities
being registered, the Registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such indemnification
by it is against public policy as expressed in the Securities Act and
will be governed by the final adjudication of such issue.
Item 7. Exemption From Registration Claimed
Not Applicable
Item 8. Exhibits
The following exhibits are filed with or incorporated by reference into
this Registration Statement on Form S-8 (numbering corresponds to
Exhibit Table in Item 601 of Regulation S-K):
No. Exhibit
4(a) 1994 Outside Directors Stock Options-for-Fees Plan
4(b) 1994 Employee Stock Purchase Plan
5 Opinion of Breyer & Aguggia
23(a) Consent of Breyer & Aguggia (See Exhibit 5)
23(b) Consent of KPMG Peat Marwick LLP
24 Power of attorney (See signature pages)
Item 9. Undertakings
(a) The undersigned hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement 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.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereto.
(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, each
filing of the Registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 ("Exchange Act") (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d)of the Exchange Act) that is incorporated by
reference in the registration statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(c) The undersigned Registrant hereby undertakes:
(1) To deliver or cause to be delivered with the Prospectus to
each director, officer or employee to whom the Prospectus is sent or given
a copy of the Registrant's annual report to stockholders for its last
fiscal year, unless such person otherwise has received a copy of such
report, in which case the Registrant shall state in the Prospectus that it
will promptly furnish, without charge, a copy of such report on written
request of such person. If the preceding fiscal year of the Registrant has
ended within 120 days prior to the use of the Prospectus, the annual report
of the Registrant for the preceding fiscal year may be so delivered, but
within such 120-day period the annual report for the preceding fiscal year
will be furnished to each such person.
(2) To transmit or cause to be transmitted to all officers
and employees participating in the Plan who do not otherwise receive such
material as stockholders of the Registrant, at the time and in the manner
such material is sent to its stockholders, copies of all reports, proxy
statements and other communications distributed to its stockholders
generally.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, First
Financial Holdings, Inc. 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
Charleston, and State of South Carolina, on the 23rd day of February 1995.
FIRST FINANCIAL HOLDINGS, INC.
By: /s/ A. L. Hutchinson, Jr.
A.L. Hutchinson, Jr.
President and Chief Executive Officer
(Principal Executive Officer)
POWER OF ATTORNEY
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. Each person whose signature
appears below hereby makes, constitutes and appoints A.L. Hutchinson, Jr. his
true and lawful attorney, with full power to sign for such person and in
such person's name and capacity indicated below, and with full power of
substitution any and all amendments to this registration statement, hereby
ratifying and confirming such person's signature as it may be signed by
said attorney to any and all amendments.
By: /s/ A. L. Hutchinson, Jr. Date: February 23, 1995
A.L. Hutchinson, Jr.
President and Chief Executive Officer
(Principal Executive Officer)
By: /s/ A. Thomas Hood Date: February 23, 1995
A. Thomas Hood
Executive Vice President
(Principal Financial Officer)
By: /s/ D. Van Smith Date: February 23, 1995
D. Van Smith
Chairman
By: Date:
Gary C. Banks, Jr.
Director
By: /s/ James C. Murray Date: February 23, 1995
James C. Murray
Director
By: /s/ Thomas E. Thornhill Date: February 23, 1995
Thomas E. Thornhill
Director
By: /s/ Herman B. Speissegger, Jr. Date: February 23, 1995
Herman B. Speissegger, Jr.
Director
By: /s/ Paul G. Campbell, Jr. Date: February 23, 1995
Paul G. Campbell, Jr.
Director
By: /s/ D. Kent Sharples Date: February 23, 1995
D. Kent Sharples
Director
By: Date:
Joseph A. Baroody
Director
EXHIBIT 4(a)
1994 OUTSIDE DIRECTORS STOCK OPTIONS-FOR-FEES PLAN
1. PURPOSE OF PLAN. The purpose of the Plan is to provide non-employee
directors of the Corporation and its Affiliates with an increased incentive to
make significant and extraordinary contributions to the long-term performance
and growth of the Corporation and its Affiliates, to join the interests of
non-employee directors with the interests of the stockholders of the
Corporation, and to facilitate attracting and retaining non-employee directors
of exceptional ability.
2. DEFINITIONS. As used herein, the following definitions shall apply:
"Affiliate" shall mean any corporation in which the Corporation
owns, directly or indirectly, stock possessing more than fifty percent of
the combined voting power of all classes of stock.
"Affiliate Board" shall mean the board of directors or advisory
board of directors of an Affiliate.
"Board of Directors" shall mean the board of directors
of the Corporation.
"Committee" shall mean a committee of the Board of Directors
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.
"Common Stock" shall mean the common stock, $.01 par value
per share, of the Corporation.
"Corporation" shall mean First Financial Holdings, Inc., a
Delaware corporation, or any successor thereof.
"Director Notice" shall mean an irrevocable written notice
delivered by a Participant to the Corporation prior to October 1 of any
year, to be effective for such fiscal year or years of the Corporation as are
specified in such notice.
"Designated Director Fees" shall mean the portion of a Participant's
Total Director Fees which shall be represented by grants of Nonqualified
Options pursuant to this Plan in lieu of cash payments to such Participant,
as specified by a Participant in a Director Notice.
"Fair Market Value" shall mean, as of any date, the closing price
of the Corporation's Common Stock on the Nasdaq Stock Market. If the
Common Stock is not traded on a national securities exchange or quoted
on the Nasdaq Stock Market, and there are not at least two brokerage
companies reporting a bid price per share on the Option Grant Date, then
the Fair Market Value shall be that value determined in good faith by the
Committee in such manner as it deems appropriate.
"Nonqualified Option" shall mean an option to purchase Common Stock of
the Corporation which meets the requirements set forth in the Plan but does
not meet the definition of an incentive stock option set forth in Section 422
of the Internal Revenue Code of 1986, as amended (the "Code").
"Option Grant Date" shall mean October 1 of each year or the trading
day next following October 1 if the Nasdaq Stock Market is closed on
October 1.
"Option Price" shall mean the price at which a Nonqualified Option may
be exercised which shall equal 75% of Fair Market Value on the Option Grant
Date of such Nonqualified Option.
"Participant" shall mean a member of the Board of Directors or an
Affiliate Board (including a director emeritus) who is not an employee of the
Corporation or of any Affiliate.
"Plan" shall mean this First Financial Holdings, Inc. 1994 Outside
Directors Stock Options-for-Fees Plan.
"Total Director Fees" shall mean the maximum amount of director fees
(including all fees receivable for attendance at Board of Directors
or Affiliate Board meetings, but excluding fees associated with service for or
on any committee of the Board of Directors or an Affiliate Board) payable to a
Participant during the fiscal year of the Corporation.
3. ADMINISTRATION. The Plan shall be administered by the Committee. Subject
to the provisions of the Plan, the Committee is authorized to interpret the
Plan, to promulgate, amend and rescind rules and regulations relating to the
Plan and to make all other determinations necessary or advisable for its
administration. Interpretation and construction of any provision of the Plan
by the Committee shall be final and conclusive. Acts approved by a majority
of the members present at any meeting at which a quorum is present, or acts
unanimously approved in writing by the Committee, shall be the acts of the
Committee.
4. ANNUAL GRANTS. On October 1 of each year following the effective date of
the Plan, each Participant shall receive a Nonqualified Option covering that
whole number of shares of the Corporation's Common Stock as is closest to the
quotient of (i) the Designated Director Fees, as set forth in the
Participant's Director Notice in effect for such year, divided by (ii) the
difference between Fair Market Value and Option Price, as set forth in the
Participant's Director Notice in effect for such year. The option exercise
price for each such Nonqualified Option shall be the Option Price. Each
Participant's director fees to be received in cash for any year shall be
reduced by the Designated Director Fees as set forth in the Participant's
Director Notice in effect for such year.
5. INDEMNIFICATION OF COMMITTEE MEMBERS. In addition to such other rights of
indemnification as they may have, the members of the Committee shall be
indemnified by the Corporation against the reasonable expenses, including
attorneys' fees, actually and necessarily incurred in connection with the
defense of any action, suit or proceeding, or in connection with any appeal
therein, to which they or any of them may be a party by reason of any action
taken or failure to act under or in connection with the Plan or any option
granted hereunder, and against all amounts paid by them in settlement thereof
(provided such settlement is approved by independent legal counsel selected by
the Corporation) or paid by them in satisfaction of a judgment in any such
action, suit or proceeding, except in relation to matters as to which it shall
be adjudged in such action, suit or proceeding that such Committee member has
acted in bad faith; provided, however, that within sixty (60) days after
receipt of notice of institution of any such action, suit or proceeding a
Committee member shall offer the Corporation in writing the opportunity, at
its own cost, to handle and defend the same.
6. MAXIMUM NUMBER OF SHARES SUBJECT TO PLAN. The maximum number of shares
with respect to which stock options may be granted under the Plan shall be
200,000 shares in the aggregate of Common Stock of the Corporation, which may
consist in whole or in part of the authorized and unissued or reacquired
Common Stock of the Corporation. If a stock option expires or terminates for
any reason without having been fully exercised, the number of shares with
respect to which the stock option was not exercised at the time of its
expiration or termination shall again become available for the grant of stock
options under the Plan, unless the Plan shall have been terminated.
The number of shares subject to each outstanding stock option, the option
price with respect to outstanding stock options, and the aggregate number of
shares remaining available under the Plan shall be subject to such adjustment
as the Committee, in its discretion, deems appropriate to reflect such events
as stock dividends, stock splits, recapitalization, mergers, consolidations or
reorganizations of or by the Corporation. Provided, however, that no
fractional shares shall be issued pursuant to the Plan, no rights may be
granted under the Plan with respect to fractional shares, and any fractional
shares resulting from such adjustments shall be eliminated from any
outstanding stock option.
7. WRITTEN AGREEMENT. Each stock option shall be evidenced by a written
agreement and shall contain such provisions as may be approved by the
Committee. Such agreements shall constitute binding contracts between the
Corporation and the Participant, and every Participant, upon acceptance of
such agreement, shall be bound by the terms and restrictions of the Plan and
of such agreement. The terms of each such agreement shall be in accordance
with the Plan, but the agreements may include such additional provisions and
restrictions determined by the Committee, provided that such additional
provisions and restrictions are not inconsistent with the terms of the Plan.
8. PAYMENT OF STOCK OPTION PRICE. To exercise in whole or in part any stock
option granted hereunder, payment of the option price in full in cash or, with
the consent of the Committee, in Common Stock of the Corporation, shall be
made by the Participant for all shares so purchased. In the discretion of and
subject to such conditions as may be established by the Committee, payment of
the option price may also be made by the Corporation retaining from the shares
to be delivered upon exercise of the stock option that number of shares having
a fair market value on the date of exercise equal to the option price of the
number of shares with respect to which the Participant exercises the stock
option. No Participant shall have any of the rights of a stockholder of the
Corporation under any stock option until the actual issuance of shares to said
Participant, and prior to such issuance no adjustment shall be made for
dividends, distributions or other rights in respect of such shares, except as
provided in Paragraph 6.
9. EXERCISE OF STOCK OPTIONS. A Participant may exercise a stock option, in
whole or in part, by delivery to the Corporation of written notice of the
exercise, in such form as the Committee may prescribe, accompanied by (i) full
payment for the shares with respect to which the stock option is exercised, in
cash or, in the sole discretion of the Committee, in Common Stock of the
Corporation or (ii) in the sole discretion of the Committee, irrevocable
instructions to a stock broker to promptly deliver to the Corporation full
payment for the shares with respect to which the stock option is exercised
from the proceeds of the stock broker's sale of or loan against the shares.
Successive stock options may be granted to the same Participant, whether or
not the stock option(s) previously granted to such Participant remain
unexercised. A Participant may exercise a stock option, if then exercisable,
notwithstanding that stock options previously granted to such Participant
remain unexercised.
10. NONTRANSFERABILITY OF STOCK OPTIONS. No stock option granted under the
Plan to a Participant shall be transferable by such Participant otherwise than
by will, or by the laws of descent and distribution, and stock options shall
be exercisable, during the lifetime of the Participant, only by the
Participant.
11. TERM OF STOCK OPTIONS. If not sooner terminated, each stock option
granted hereunder shall expire upon the earlier to occur of the date ten (10)
years from Option Grant Date or the date two (2) years following the date upon
which the Participant ceases to be a member of the Board of Directors or an
Affiliate Board. Notwithstanding the foregoing, all outstanding options held
by a Participant shall expire immediately upon the Participant's termination
for cause (as defined in 12 C.F.R. 563.39(b)(1)).
12. INVESTMENT PURPOSE. If the Committee in its discretion determines that
as a matter of law such procedure is or may be desirable, it may require a
Participant, upon any acquisition of stock hereunder and as a condition to the
Corporation's obligation to deliver certificates representing such shares, to
execute and deliver to the Corporation a written statement, in form
satisfactory to the Committee, representing and warranting that the
Participant's acquisition of shares of stock shall be for such person's own
account, for investment and not with a view to the resale or distribution
thereof and that any subsequent offer for sale or sale of any such shares
shall be made either pursuant to (a) a Registration Statement on an
appropriate form under the Securities Act of 1933, as amended (the "Securities
Act"), which Registration Statement has become effective and is current with
respect to the shares being offered and sold, or (b) a specific exemption from
the registration requirements of the Securities Act, but in claiming such
exemption the Participant shall, prior to any offer for sale or sale of such
shares, obtain either the Corporation's approval or a favorable written
opinion from counsel for or approved by the Corporation as to the availability
of such exemption. The Corporation may endorse an appropriate legend
referring to the foregoing restriction upon the certificate or certificates
representing any shares issued or transferred to the Participant under this
Plan.
13. NO RIGHT TO CONTINUED SERVICE AS A DIRECTOR. Nothing contained in the
Plan or in any stock option granted pursuant to the Plan, nor any action taken
by the Committee hereunder, shall confer upon any Participant any right with
respect to continuation of service as a director of the Corporation or an
Affiliate nor interfere in any way with the right of the Corporation, any
Affiliate, or their stockholders to terminate such Participant's service as
a director at any time.
14. WITHHOLDING PAYMENTS. If upon the exercise of an option there shall be
payable by the Corporation any amount for income tax withholding, then in the
Committee's sole discretion, either the Corporation shall appropriately reduce
the amount of stock to be paid to the Participant or the Participant shall pay
such amount to the Corporation to reimburse it for such income tax withholding.
The Committee may, in its sole discretion permit Participants to satisfy such
withholding obligations, in whole or in part, by electing to have the amount of
Common Stock delivered or deliverable upon exercise of a stock option
appropriately reduced, or by electing to tender Common Stock back to the
Corporation subsequent to exercise of a stock option, to reimburse the
Corporation for such income tax withholding, subject to such rules and
regulations as the Committee may adopt. The Committee may make such other
arrangements with respect to income tax withholding as it shall determine.
15. EFFECTIVENESS OF PLAN. The Plan shall be effective on the date the Board
of Directors adopts the Plan, provided that the stockholders of the Corporation
approve the Plan within twelve (12) months of its adoption by the Board of
Directors. Stock options may be granted prior to stockholder approval of the
Plan, but all such stock option grants shall be subject to stockholder approval
of the Plan. No stock option may be exercised prior to stockholder approval.
If the stockholders of the Corporation do not approve the Plan within twelve
(12) months of its adoption by the Board of Directors, each Participant shall be
entitled to receive in cash all Designated Director Fees applied toward the
grant of Nonqualified Options hereunder to such date twelve (12) months after
the adoption of the Plan by the Board of Directors.
16. TERMINATION, DURATION, AND AMENDMENTS OF PLAN.
(a) The Plan may be terminated at any time by the Board of Directors
of the Corporation. Unless sooner terminated, the Plan shall terminate on the
date ten (10) years after its adoption by the Board of Directors, and no stock
options may be granted thereafter. The termination of the Plan shall not affect
the validity of any stock option outstanding on the date of termination.
(b) For the purpose of conforming to any changes in applicable law or
governmental regulations, or for any other lawful purpose, the Board of
Directors shall have the right, to amend or revise the terms of the Plan at
any time; provided, however, that no such amendment or revision shall (i)
increase the maximum number of shares in the aggregate which are subject to
the Plan (subject, however, to the provisions of Paragraph 6), change the
class of persons eligible to be Participants under the Plan or materially
increase the benefits accruing to Participants under the Plan, without
approval or ratification of the stockholders of the Corporation; (ii) change
the formula for determining the number of shares to be subject to Nonqualified
Stock Options within six months of such a prior change (other than to comport
with changes in the Code, the Employee Retirement Income Security Act, or the
rules thereunder); or (iii) change the option price (except as contemplated by
Paragraph 6); or (iv) alter or impair any stock option which shall have been
previously granted under the Plan, without the consent of the holder thereof.
EXHIBIT 4(b)
1994 EMPLOYEE STOCK PURCHASE PLAN
1. PURPOSE. The purpose of the Plan is to provide employees of the
Corporation and its Designated Subsidiaries with an opportunity to purchase
Common Stock of the Corporation through accumulated payroll deductions. It is
the intention of the Corporation to have the Plan qualify as an "Employee Stock
Purchase Plan" under Section 423 of the Internal Revenue Code of 1986, as
amended. The provisions of the Plan, accordingly, shall be construed so as to
extend and limit participation in a manner consistent with the requirements of
that section of the Code.
2. DEFINITIONS.
(a) "Board" shall mean the Board of Directors of the Corporation.
(b) "Code" shall mean the Internal Revenue Code of 1986, as amended.
(c) "Common Stock" shall mean the common stock of the Corporation.
(d) "Corporation" shall mean First Financial Holdings, Inc., a Delaware
corporation.
(e) "Compensation" shall mean all base straight time gross earnings,
as determined in accordance with the personnel policies of the Corporation,
except that base pay for employees who receive commission income shall include
their commission income. Compensation excludes payments for overtime, shift
premiums, incentive compensation, incentive payments, bonuses, awards and other
compensation.
(f) "Designated Subsidiary" shall mean a Subsidiary which the Board
has designated from time to time in its sole discretion as eligible to
participate in the Plan.
(g) "Employee" shall mean any individual who is an employee of the
Corporation or a Subsidiary for purposes of tax withholding under the Code. For
purposes of the Plan, the employment relationship shall be treated as
continuing intact while the individual is on sick leave or other leave of
absence authorized under Corporation or Subsidiary policies.
(h) "Enrollment Date" shall mean the first day of each Offering
Period.
(i) "Exercise Date" shall mean the last day of each Offering Period.
(j) "Fair Market Value" shall mean, as of any date, the closing price
of the Corporation's Common Stock on the National Association of Securities
Dealers Automated Quotation (Nasdaq) Stock Market. If the Common Stock is not
traded on a national securities exchange or quoted on the Nasdaq Stock Market,
and there are not at least two brokerage companies reporting a bid price per
share on such date, then the Fair Market Value shall be that value determined
in good faith by the Board in such manner as it deems appropriate.
(k) "Offering Period" shall mean a period of approximately three (3)
months, commencing on the first Trading Day on or after January 1, April 1,
July 1, and October 1 of each year and terminating on the last Trading Day on
or before the end of such period; provided, however, that the duration of the
first Offering Period shall be as provided in Section 4.
(l) "Plan" shall mean this Employee Stock Purchase Plan.
(m) "Purchase Price" shall mean an amount equal to 90% of the Fair
Market Value of a share of Common Stock on the Enrollment Date or on the
Exercise Date, whichever is lower.
(n) "Reserves" shall mean the number of shares of Common Stock covered
by each option under the Plan which have not yet been exercised and the number
of shares of Common Stock which have been authorized for issuance under the
Plan but not yet placed under option.
(o) "Subsidiary" shall mean a corporation, domestic or foreign, of
which not less than 50% of the voting shares are held by the Corporation or a
Subsidiary, whether or not such corporation now exists or is hereafter
organized or acquired by the Corporation or a Subsidiary.
(p) "Trading Day" shall mean a day on which national stock exchanges
and the Nasdaq Stock Market is open for trading.
3. ELIGIBILITY.
(a) Any Employee, as defined in Section 2, who has been continuously
employed by the Corporation for at least six (6) consecutive months, who is
employed by the Corporation on a given Enrollment Date, and who is scheduled to
work at the rate of at least 1,000 hours of service as an Employee during each
calendar year shall be eligible to participate in the Plan for the Offering
Period commencing with such Enrollment Date.
(b) Any provisions of the Plan to the contrary notwithstanding, no
Employee shall be granted an option under the Plan (i) if, immediately after
the grant, such Employee (or any other person whose stock would be attributed
to such Employee pursuant to Section 424(d) of the Code) would own stock
and/or hold outstanding options to purchase stock possessing five percent (5%)
or more of the total combined voting power or value of all classes of stock of
the Corporation or of any Subsidiary of the Corporation, or (ii) which permits
his or her rights to purchase stock under all employee stock purchase plans of
the Corporation and its Subsidiaries to accrue at a rate which exceeds Twenty-
Five Thousand Dollars ($25,000) worth of stock (determined at the Fair Market
Value of the shares at the time such option is granted) for each calendar year
in which such option is outstanding at any time.
4. OFFERING PERIODS. The Plan shall be implemented by consecutive
Offering Periods with a new Offering Period commencing on the first Trading
Day on or after January 1, April 1, July 1, and October 1 of each year, or on
such other date as the Board shall determine, and continuing hereafter until
terminated in accordance with Section 19 hereof. The Board shall have the
power to change the duration of Offering Periods with respect to future
Offerings without stockholder approval if such change is announced at least
fifteen (15) days prior to the scheduled beginning of the first Offering
Period to be affected.
5. PARTICIPATION.
(a) An eligible Employee may become a participant in the Plan by
completing a subscription agreement authorizing payroll deductions on such
form as the Committee may designate and filing it with the Company's payroll
office at least ten (10) business days prior to the Enrollment Date for the
Offering Period in which such participation will commence, unless a later time
for filing the subscription agreement is set by the Board for all eligible
Employees with respect to a given Offering Period.
(b) With respect to any Offering Period, payroll deductions for a
participant during such Offering Period shall commence with the first payroll
period following the Enrollment Date and shall end on the Exercise Date of the
Offering Period, unless sooner terminated by the participant as provided in
Section 10.
6. PAYROLL DEDUCTIONS.
(a) At the time a participant files his or her subscription agreement,
he or she shall elect to have payroll deductions made on each pay day during
the Offering Period in an amount not exceeding ten percent (10%) of the
Compensation which he or she receives on each pay day during the Offering
Period.
(b) All payroll deductions made for a participant shall be credited to
his or her account under the Plan and will be withheld in whole percentages
only. A participant may not make any additional payments into such account.
(c) During an Offering Period, a participant may discontinue his or
her participation in the Plan as provided in Section 10. A participant may
increase or decrease the rate of his or her payroll deductions for a future
Offering Period by filing with the Corporation a new subscription agreement
authorizing an increase or decrease in payroll deduction rate within ten (10)
business days before the commencement of the upcoming Offering Period. A
participant's subscription agreement shall remain in effect for successive
Offering Periods unless terminated as provided in Section 10.
(d) Notwithstanding the foregoing, to the extent necessary to comply
with Section 423(b)(8) of the Code and Section 3(b) herein, a participant's
payroll deductions may be decreased to 0% of Compensation at such time during
any Offering Period which is scheduled to end during the current calendar year
(the "Current Offering Period") that the aggregate of all payroll deductions
which were previously used to purchase stock under the Plan in a prior
Offering Period which ended during that calendar year plus all payroll
deductions accumulated with respect to the Current Offering Period equal
$25,000. Payroll deductions shall recommence at the rate provided in such
participant's subscription agreement at the beginning of the first Offering
Period which is scheduled to end in the following calendar year, unless
terminated by the participant as provided in Section 10.
7. GRANT OF OPTION. On the Enrollment Date of each Offering Period, each
eligible Employee participating in such Offering Period shall be granted an
option to purchase on each Exercise Date of such Offering Period (at the
applicable Purchase Price) up to a number of shares of the Company's Common
Stock determined by dividing such Employee's payroll deductions accumulated
prior to such Exercise Date (including amounts retained in the participant's
account in accordance with Section 8) and retained in the Participant's
account as of the Exercise Date by the applicable Purchase Price; provided
that such purchase shall be subject to the limitations set forth in Sections
3(b) and 12 hereof. Exercise of the option shall occur as provided in Section
8, unless the participant has withdrawn pursuant to Section 10, and shall
expire on the last day of the Offering Period.
8. EXERCISE OF OPTION. Unless a participant withdraws from the Plan as
provided in Section 10, his or her option for the purchase of shares will be
exercised automatically on the Exercise Date, and the maximum number of full
shares subject to option shall be purchased for such participant at the
applicable Purchase Price with the accumulated payroll deductions in his or
her account. No fractional shares will be purchased; any payroll deductions
accumulated in a participant's account which are not sufficient to purchase a
full share shall be retained in the participant's account and applied toward
the purchase of shares in a subsequent Offering Period unless the participant
terminates his or her participation in the Plan as provided in Section 10.
During a participant's lifetime, a participant's option to purchase shares
hereunder is exercisable only by him or her.
9. DELIVERY. As promptly as practicable after each Exercise Date on which
a purchase of shares occurs, the Corporation shall arrange the delivery to each
participant, as appropriate, of a certificate representing the shares purchased
upon exercise of his or her option.
10. WITHDRAWAL; TERMINATION OF EMPLOYMENT.
(a) A participant may withdraw all, but not less than all, the payroll
deductions credited to his or her account and not yet used to exercise his or
her option under the Plan at any time by giving written notice to the
Corporation on such form as the Committee may designate. All of the
participant's payroll deductions credited to his or her account will be paid
to such participant promptly after receipt of notice of withdrawal and such
participant's option for the Offering Period will be automatically terminated,
and no further payroll deductions for the purchase of shares will be made during
the Offering Period. If a participant withdraws from an Offering Period,
payroll deductions will not resume at the beginning of the succeeding Offering
Period unless the participant delivers to the Corporation a new subscription
agreement.
(b) Upon a participant's ceasing to be an Employee for any reason or
upon termination of a participant's employment relationship (as described in
Section (2)(g)), the payroll deductions credited to such participant's account
during the Offering Period but not yet used to exercise the option will be
returned to such participant or, in the case of his or her death, to the
person or persons entitled thereto under Section 14, and such participant's
option will be automatically terminated.
11. INTEREST. No interest shall accrue on the payroll deductions of a
participant in the Plan.
12. STOCK.
(a) The maximum number of shares of the Corporation's Common Stock which
shall be made available for sale under the Plan shall be 200,000 shares,
subject to adjustment upon changes in capitalization of the Corporation as
provided in Section 18. Such shares may consist in whole or in part of
authorized and unissued or reacquired Common Stock. If on a given Exercise
Date the number of shares with respect to which options are to be exercised
exceeds the number of shares then available under the Plan, the Company shall
make a pro rata allocation of the shares remaining available for purchase in
as uniform a manner as is practicable and as it determines to be equitable.
(b) The participant will have no interest or voting right in shares
covered by his or her option until such option has been exercised.
(c) Shares to be delivered to a participant under the Plan will be
registered in the name of the participant or in the name of the participant
and his or her spouse, as the participant designates.
13. ADMINISTRATION.
(a) Administrative Body. The Plan shall be administered by the Board
of the Corporation or a committee of members of the Board appointed by the
Board. The Board or its committee shall have full and exclusive discretionary
authority to construe, interpret and apply the terms of the Plan, to determine
eligibility and to adjudicate all disputed claims filed under the Plan. Every
finding, decision and determination made by the Board or its committee shall,
to the full extent permitted by law, be final and binding upon all parties.
Members of the Board who are eligible Employees are permitted to participate
in the Plan except to the extent limited by Subsection (b) of this Section 13.
(b) Rule 16b-3 Limitations. Notwithstanding the provisions of
Subsection (a) of this Section 13, in the event that Rule 16b-3 promulgated
under The Securities Exchange Act of 1934, as amended, or any successor
provision ("Rule 16b-3") provides specific requirements for the administrators
of plans of this type, the Plan shall be only administered by such a body and
in such a manner as shall comply with the applicable requirements of Rule
16b-3. Unless permitted by Rule 16b-3, no discretion concerning decisions
regarding the Plan shall be afforded to any committee or person that is not
"disinterested" as that term is used in Rule 16b-3.
14. DESIGNATION OF BENEFICIARY.
(a) A participant may file a written designation of a beneficiary who
is to receive any shares and cash, if any, from the participant's account
under the Plan in the event of such participant's death subsequent to an
Exercise Date on which the option is exercised but prior to delivery to such
participant of such shares and cash. In addition, a participant may file a
written designation of a beneficiary who is to receive any cash from the
participant's account under the Plan in the event of such participant's death
prior to exercise of the option. If a participant is married and the
designated beneficiary is not the spouse, spousal consent shall be required
for such designation to be effective.
(b) Such designation of beneficiary may be changed by the participant
(and his or her spouse, if any) at any time by written notice. In the event
of the death of a participant and in the absence of a beneficiary validly
designated under the Plan who is living at the time of such participant's
death, the Corporation shall deliver such shares and/or cash to the executor or
administrator of the estate of the participant, or if no such executor or
administrator has been appointed (to the knowledge of the Corporation), the
Corporation, in its discretion, may deliver such shares and/or cash to the
spouse or to any one or more dependents or relatives of the participant, or if
no spouse, dependent or relative is known to the Corporation, then to such other
person as the Corporation may designate.
15. TRANSFERABILITY. Neither payroll deductions credited to a participant's
account nor any rights with regard to the exercise of an option or to receive
shares under the Plan may be assigned, transferred, pledged or otherwise
disposed of in any way (other than by will, the laws of descent and
distribution or as provided in Section 14 hereof) by the participant. Any
such attempt at assignment, transfer, pledge or other disposition shall be
without effect, except that the Corporation may treat such act as an election to
withdraw funds from an Offering Period in accordance with Section 10.
16. USE OF FUNDS. All payroll deductions received or held by the Corporation
under the Plan may be used by the Corporation for any corporate purpose, and
the Corporation shall not be obligated to segregate such payroll deductions.
17. REPORTS. Individual accounts will be maintained for each participant
in the Plan. Statements of account will be given to participating Employees
at least annually, which statements will set forth the amounts of payroll
deductions, the Purchase Price, the number of shares purchased and the
remaining cash balance, if any.
18. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION; DISSOLUTION; OR MERGER OR
ASSET SALE.
(a) Changes in Capitalization. Subject to any required action by the
stockholders of the Corporation, the Reserves, as well as the price per share of
Common Stock covered by each option under the Plan which has not yet been
exercised, shall be proportionately adjusted for any increase or decrease in
the number of issued shares of Common Stock resulting from a stock split,
reverse stock split, stock dividend, combination or reclassification of the
Common Stock, or any other increase or decrease in the number of shares of
Common Stock effected without receipt of consideration by the Corporation. Such
adjustment shall be made by the Board, whose determination in that respect
shall be final, binding and conclusive. Except as expressly provided herein,
no issue by the Corporation of shares of stock of any class, or securities
convertible into shares of stock of any class, shall affect, and no adjustment
by reason thereof shall be made with respect to, the number or price of shares
of Common Stock subject to an option.
(b) Dissolution or Liquidation. In the event of a proposed sale of
all or substantially all of the assets of the Corporation, or the merger of the
Corporation with or into another corporation, each option under the Plan shall
be assumed or an equivalent option shall be substituted by such successor
corporation or a parent or subsidiary of such successor corporation, unless
the Board determines, in the exercise of its sole discretion and in lieu of
such assumption or substitution, to shorten the Offering Period then in
progress by setting a new Exercise Date (the "New Exercise Date"). If the
Board shortens the Offering Period then in progress in lieu of assumption or
substitution in the event of a merger or sale of assets, the Board shall
notify each participant in writing, at least ten (10) days prior to the New
Exercise Date, that the Exercise Date for his or her option has been changed
to the New Exercise Date and that his or her option will be exercised
automatically on the New Exercise Date, unless prior to such date he or she
has withdrawn from the Offering Period as provided in Section 10. For
purposes of this Section 18(b), an option granted under the Plan shall be
deemed to be assumed if, following the sale of assets or merger, the option
confers the right to purchase, for each share of option stock subject to the
option immediately prior to the sale of assets or merger, the consideration
(whether stock, cash or other securities or property) received in the sale of
assets or merger by holders of Common Stock for each share of Common Stock
held on the effective date of the transaction (and if such holders were
offered a choice of consideration, the type of consideration chosen by the
holders of a majority of the outstanding shares of Common Stock); provided,
however, that if such consideration received in the sale of assets or merger
was not solely common stock of the successor corporation or its parent (as
defined in Section 424(e) of the Code), the Board may, with the consent of the
successor corporation and the participant, provide for the consideration to be
received upon exercise of the option to be solely common stock of the
successor corporation or its parent equal in fair market value to the per
share consideration received by holders of Common Stock in the sale of assets
or merger.
19. AMENDMENT OR TERMINATION.
(a) The Board of Directors of the Corporation may at any time and for any
reason terminate or amend the Plan. Except as provided in Section 18, no such
termination can affect options previously granted, provided that the Board of
Directors may terminate an Offering Period on any Exercise Date if the Board
determines that the termination of the Plan is in the best interests of the
Corporation and its stockholders. Except as provided in Section 18, no amendment
may make any change in any option theretofore granted which adversely affects
the rights of any participant. To the extent necessary to comply with Rule
16b-3 or Section 423 of the Code (or any successor rule or provision or any
other applicable law or regulation), the Corporation shall obtain stockholder
approval in such a manner and to such a degree as required.
(b) Without stockholder consent and without regard to whether any
participant rights may be considered to have been "adversely affected," the
Board (or its committee) shall be entitled to change the Offering Periods,
limit the frequency and/or number of changes in the amount withheld during
Offering Periods, permit payroll withholding in excess of the amount
designated by a participant in order to adjust for delays or mistakes in the
Corporation's processing of properly completed withholding elections, establish
reasonable waiting and adjustment periods and/or accounting and crediting
procedures to ensure that amounts applied toward the purchase of Common Stock
for each participant properly correspond with amounts withheld from the
participant's compensation, and establish such other limitations or procedures
as the Board (or its committee) determines in its sole discretion advisable
which are consistent with the Plan.
20. NOTICES. All notices or other communications by a participant to the
Corporation under or in connection with the Plan shall be deemed to have been
duly given when received in the form specified by the Corporation at the
location, or by the person, designated by the Corporation for the receipt
thereof.
21. CONDITIONS UPON ISSUANCE OF SHARES. Shares shall not be issued with
respect to an option unless the exercise of such option and the issuance and
delivery of such shares pursuant thereto comply with all applicable provisions
of law, domestic or foreign, including, without limitation, the Securities Act
of 1933, as amended, the Securities Exchange Act of 1934, as amended, the
rules and regulations promulgated thereunder, and the requirements of any
stock exchange upon which the shares may then be listed, and shall be further
subject to the approval of counsel for the Corporation with respect to such
compliance. As a condition to the exercise of an option, the Corporation may
require the person exercising such option to represent and warrant at the time
of any such exercise that the shares are being purchased only for investment
and without any present intention to sell or distribute such shares if, in the
opinion of counsel for the Corporation, such a representation is required by any
of the aforementioned applicable provisions of law.
22. TERM OF PLAN. The Plan shall become effective upon the earlier to
occur of its adoption by the Board of Directors or its approval by the
stockholders of the Corporation. It shall continue in effect for a term of five
(5) years unless sooner terminated under Section 19.
23. ADDITIONAL RESTRICTIONS OF RULE 16b-3. The terms and conditions of
options granted hereunder to, and the purchase of shares by, persons subject
to Section 16 of the Exchange Act shall comply with the applicable provisions
of Rule 16b-3. This Plan shall be deemed to contain, and such options shall
contain, and the shares issued upon exercise thereof shall be subject to, such
additional conditions and restrictions as may be required by Rule 16b-3 to
qualify for the maximum exemption from Section 16 of the Exchange Act with
respect to Plan transactions.
24. STOCKHOLDER APPROVAL. Continuance of the Plan shall be subject to
approval by the stockholders of the Corporation within twelve (12) months before
or after the date Plan is adopted.
Exhibit 5
Opinion of Breyer & Aguggia
February 24, 1995
Board of Directors
First Financial Holdings, Inc.
34 Broad Street
Charleston, South Carolina 29401
Gentlemen:
We have acted as special counsel to First Financial Holdings, Inc. (the
"Corporation"), a Delaware corporation, in connection with the preparation
and filing with the Securities and Exchange Commission pursuant to the
Securities Act of 1933, as amended, of a Registration Statement on Form S-8
(the "Registration Statement"), relating to the registration of up to 400,000
shares of common stock, $0.01 par value per share ("Common Stock"), to be issued
pursuant to the Corporation's 1994 Outside Directors Stock Options-for-Fees Plan
and the 1994 Employee Stock Purchase Plan (together, the "Plans") upon the
exercise of stock options or employee stock purchase rights ("Option Rights")
thereunder. The Registration Statement also registers an indeterminate number
of additional shares which may be necessary under the Plans to adjust the
number of shares reserved for issuance as the result of a stock split, stock
dividend or similar adjustment of the outstanding Common Stock of the
Corporation. We have been requested by the Corporation to furnish an opinion
to be included as an exhibit to the Registration Statement.
We have reviewed the Registration Statement and related Prospectus, the
Certificate of Incorporation and Bylaws of the Corporation, the Plan, a specimen
stock certificate evidencing the Common Stock of the Corporation and such other
corporate records and documents as we have deemed appropriate for the purpose of
rendering this opinion. We are relying upon the originals, or copies certified
or otherwise identified to our satisfaction, of the corporate records of the
Corporation and such other instruments, certificates and representations of
public officials, officers and representatives of the Corporation as we have
deemed appropriate or relevant as a basis for the opinion set forth below. In
addition, we have assumed, without independent verification, the genuineness of
all signatures and the authenticity of all documents furnished to us and the
conformity to us and the conformity in all respects of copies to originals.
For the purpose of this opinion, we have also assumed that (i) the shares
of Common Stock issuable pursuant to Option Rights granted under the terms of
the Plans will continue to be validly authorized on the dates the Common Stock
is issued pursuant to the Option Rights; (ii) on the dates the Option Rights
are exercised, the option Rights granted under the terms of the Plans will
constitute valid, legal and binding obligations of the Corporation and will
(subject to applicable bankruptcy, moratorium, insolvency, reorganization and
other laws and legal principles affecting the enforceability of creditors'
right generally) be enforceable as to the Corporation in accordance with their
terms; (iii) no change occurs in applicable law or the pertinent facts; and (iv)
the provisions of "blue sky" and other securities laws as may be applicable have
been compiled with to the extent required.
Based upon the foregoing, and subject to the qualifications and assumptions
set forth herein, we are of the opinion as of the date hereof that the shares
of Common Stock to be issued pursuant to the Plans, when issued and sold
pursuant to and in accordance with the Registration Statement and the terms of
the Plans and upon receipt of the consideration required thereby, will be
legally issued, fully paid and non-assessable shares of Common Stock of the
Corporation.
We hereby consent to the reference to this opinion as an exhibit to the
Registration Statement.
Sincerely,
/s/ Breyer & Aguggia
BREYER & AGUGGIA
EXHIBIT 23(A)
CONSENT OF BREYER & AGUGGIA (SEE EXHIBIT 5)
EXHIBIT 23(b)
CONSENT OF INDEPENDENT AUDITORS
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
First Financial Holdings, Inc.
We consent to incorporation by reference in the registration statement
on Form S-8 of First Financial Holdings, Inc. and subsidiaries of
our report dated October 25, 1994, related to the consolidated statements of
financial condition of First Financial Holdings, Inc. and Subsidiaries as of
September 30, 1994 and 1993, and the related consolidated statements of
operations, stockholders' equity and cash flows for the years then ended, which
report appears in the September 30, 1994 annual report on Form 10-K of First
Financial Holdings, Inc. and Subsidiaries. Our report refers to the Company's
change in 1993 of its method of accounting for income taxes, accounting for
unrealized gains and losses on securities and accounting for postretirement
benefits other than pensions.
KPMG Peat Marwick LLP
Greenville, South Carolina
February 24, 1995
Exhibit 24
Power of Attorney (refer to the signature pages)
