<PAGE> 1
As filed with the Securities and Exchange Commission on December 16, 1999
Registration No. 333-
------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
SUMMIT BANK CORPORATION
(Exact name of Registrant as specified in its charter)
GEORGIA 58-1722476
- --------------------------------------------------------------------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
4360 CHAMBLEE-DUNWOODY ROAD, ATLANTA, GEORGIA 30341
- --------------------------------------------------------------------------------
(Address of principal executive offices and zip code)
SUMMIT BANK CORPORATION 1998 STOCK INCENTIVE PLAN
(Full Title of the Plan)
- --------------------------------------------------------------------------------
KATHRYN L. KNUDSON, ESQ.
POWELL, GOLDSTEIN, FRAZER & MURPHY LLP
191 PEACHTREE STREET, N.E., 16TH FLOOR
ATLANTA, GEORGIA 30303
(Name and address of agent for service)
- --------------------------------------------------------------------------------
(404) 572-6952
- --------------------------------------------------------------------------------
(Telephone number, including area code, of agent for service)
Copy to:
PIN PIN CHAU
SUMMIT BANK CORPORATION
4360 CHAMBLEE-DUNWOODY ROAD
ATLANTA, GEORGIA 30341
(770)454-0400
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered Per Share Price Fee
- ---------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common
Stock, $0.01 200,000 $12.65625(2) $2,531,250.00(3) $669.00
par value shares(1)
- ---------------------------------------------------------------------------------
</TABLE>
(1) Representing shares to be issued and sold by the Registrant under the
Summit Bank Corporation 1998 Stock Incentive Plan. The Registration
Statement also covers such indeterminable number of additional shares
as may become issuable to prevent dilution in the event of a stock
split, stock dividend, reclassification or other similar transaction
pursuant to the terms of the Plan.
(2) The average of the high and low prices of the Registrant's Common Stock
as reported by the Nasdaq National Market for December 15, 1999
(3) The aggregate offering price is calculated solely for the purpose of
determining the registration fee pursuant to Rule 457(h)(1) under the
Securities Act of 1933, as amended.
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of the
Instructions to the Registration Statement on Form S-8 will be sent or given to
participants in the Plan as required by Rule 428(b)(1) promulgated under the
Securities Act of 1933, as amended (the "Securities Act").
<PAGE> 3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange
Commission (the "Commission") are incorporated herein by reference:
(1) The Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 1998 (File No. 000-21267);
(2) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1999 (File No. 000-21267);
(3) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1999 (File No. 000-21267);
(4) The Registrants' Quarterly Report on Form 10-Q for the quarter
ended September 30, 1999, and
(5) The description of the Registrant's Common Stock contained in
the Registrant's Registration Statement on Form 8-A12G dated
August 27, 1996 (File No. 000-21267), which incorporates by
reference the description of the Registrant's Common Stock
contained in the Registrant's Registration Statement on Form
S-1 dated August 10, 1987 (File No. 33-16366).
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a
post-effective amendment that indicates that all securities offered hereby have
been sold or that deregisters all such securities then remaining unsold, shall
be deemed to be incorporated by reference in this Registration Statement and to
be a part hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF THE SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Powell, Goldstein, Frazer & Murphy LLP, Atlanta, Georgia, has rendered
an opinion regarding the legality of the shares of Common Stock registered
hereby.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The registrant's Bylaws provide indemnification as follows:
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9.1 Indemnification of Directors. The Corporation shall indemnify and hold
harmless any person (an "Indemnified Person") who was or is a party, or
is threatened to be made a party, to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (including any action or suit by or in
the right of the Corporation) by reason of the fact that he is or was a
director of the Corporation, against expenses (including, but not
limited to, attorneys' fees and disbursements, court costs and expert
witness fees), and against any judgments, fines, and amounts paid in
settlement actually and reasonably incurred by him in connection with
such action, suit or proceeding; provided, that no indemnification
shall be made in respect of (a)expenses, judgments, fines and amounts
paid in settlement attributable to (i)any appropriation, in violation
of such person's duty to the Corporation, of any business opportunity
of the Corporation, (ii) acts or omissions which involve intentional
misconduct or a knowing violation of law, (iii) liability under Section
14-2-832 of the Georgia Business Corporation Code, and (iv) any
transaction from which such person received an improper personal
benefit, or (b)any other judgments, fines and amounts paid in
settlement to the extent that such amounts do not exceed liability
limits, if any, set forth in the Corporation's articles of
incorporation. If at any time the Georgia Business Corporation Code
shall have been amended to authorize the further indemnification
against liability of a director, then each director of the Corporation
shall be indemnified by the Corporation to the fullest extent permitted
by the Code, as so amended, without further action by the shareholders,
unless the provisions of the Code, as amended, require further action
by the shareholders; provided that no indemnification shall be made in
respect of any judgments, fines and amounts paid in settlement for
which indemnification is authorized by the Code to the extent that such
amounts do not exceed liability limits, if any, set forth in the
Corporation's articles of incorporation.
9.2 Indemnification of Officers and Others. The Board of Directors shall
have the power to cause the Corporation to provide to officers,
employees and agents of the Corporation all or any part of the right to
indemnification and other rights of the type provided under Sections
9.1, 9.5 and 9.10 of this Article Nine (subject to the conditions,
limitations and obligations specified therein, but not subject however
to the limitation imposed under clause (b) of Section 9.1 of this
Article Nine), upon a resolution to that effect identifying such
officers, employees or agents (by position or name) and specifying the
particular rights provided, which may be different for each of the
officers, employees and agents identified. Each officer, employee or
agent of the Corporation so identified shall be an "Indemnified Person"
for purposes of the provisions of this Article Nine.
9.3 Subsidiaries. The Board of Directors shall have the power to cause the
Corporation to provide to any director, officer, employee or agent of
this Corporation who also is a director, officer, trustee, general
partner, employee or agent of a Subsidiary (as defined below), all or
any part of the right to indemnification and other rights of the type
provided under Sections 9.1, 9.5 and 9.10 of this Article Nine (subject
to the conditions, limitations and obligations specified therein), with
regard to amounts actually and reasonably incurred by such person by
reason of the fact that he is or was a director, officer, trustee,
general partner, employee or agent of the Subsidiary. The Board of
Directors shall exercise such power, if at all, through a resolution
identifying the person or persons to be indemnified (by position or
name) and the Subsidiary (by name or other classification), and
specifying the particular rights provided, which may be
II-2
<PAGE> 5
different for each of the directors, officers, employees and agents
identified. Each person so identified shall be an "Indemnified Person"
for purposes of the provisions of this Article Nine. As used in this
Article Nine, "Subsidiary" shall mean (i) another corporation, joint
venture, trust, partnership or unincorporated business association more
than twenty percent (20%) of the voting capital stock or other voting
equity interest of which was, at or after the time the circumstances
giving rise to such action, suit or proceeding arose, owned, directly
or indirectly, by the Corporation, or (ii) a nonprofit corporation
which receives its principal financial support from the Corporation or
its subsidiaries.
9.4 Determination. Notwithstanding any judgment, order, settlement,
conviction or plea in any action, suit or proceeding of the kind
referred to in Section 9.1 of this Article Nine, an Indemnified Person
shall be entitled to indemnification as provided in such Section 9.1
unless a determination that such Indemnified Person is not entitled to
such indemnification (because of the applicability of clause (a) or (b)
of such Section 9.1) shall be made (i) by the Board of Directors by a
majority vote or consent of a quorum consisting of directors who are
not seeking the benefits of such indemnification; or (ii) if such
quorum is not obtainable, or, even if obtainable if a quorum of such
disinterested directors so directs, in a written opinion by independent
legal counsel (which counsel may be the outside legal counsel regularly
employed or retained by the Corporation); or (iii) if a quorum cannot
be obtained under (i) above and in the absence of a written opinion by
independent legal counsel, by majority vote or consent of a committee
duly designated by the Board of Directors (in which designated
interested directors may participate), consisting solely of one or more
directors who are not seeking the benefit of such indemnification.
Provided, however, that notwithstanding any determination pursuant to
the preceding sentence, if such determination shall have been made at a
time that the members of the Board of Directors, so serving when the
events upon which such Indemnified Person's liability has been based
occurred, no longer constitute a majority of the members of the Board
of Directors, then such Indemnified Person shall nonetheless be
entitled to indemnification as set forth in such Section 9.1 unless the
Corporation shall carry the burden of proving, in an action before any
court of competent jurisdiction, that such Indemnified Person is not
entitled to indemnification because of the applicability of clause(a)
or (b) of such Section 9.1.
9.5 Advances. Expenses (including, but not limited to, attorneys' fees and
disbursements, court costs, and expert witness fees) incurred by the
Indemnified Person in defending any action, suit or proceeding of the
kind described in Section 9.1 hereof shall be paid by the Corporation
in advance of the final disposition of such action, suit or proceeding
as set forth herein. The Corporation shall promptly pay the amount of
such expenses to the Indemnified Person, but in no event later than ten
(10) days following the Indemnified Person's delivery to the
Corporation of a written request for an advance pursuant to this
Section 9.5, together with a reasonable accounting of such expenses;
provided, that the Indemnified Person shall undertake and agree to
repay to the Corporation any advances made pursuant to this Section 9.5
if it shall be determined pursuant to Section 9.4 that the Indemnified
Person is not entitled to be indemnified by the Corporation for such
amounts. The Corporation shall make the advances contemplated by this
Section 9.5 regardless of the Indemnified Person's financial ability to
make repayment. Any advances and undertakings to repay pursuant to this
Section 9.5 shall be unsecured and interest-free.
II-3
<PAGE> 6
9.6 Insurance. The Corporation shall have the power to purchase and
maintain insurance on behalf of any person who is or was a director,
officer, employee or agent of the Corporation, or is or was serving at
the request of the Corporation as a director, officer, trustee, general
partner, employee or agent of another corporation, nonprofit
corporation, joint venture, trust, partnership, unincorporated business
association or other enterprise, against any liability asserted against
him and incurred by him in any such capacity, or arising out of his
status as such, whether or not the Corporation would have the power to
indemnify him against such liability under the provisions of this
Article Nine.
9.7 Notice. If any expenses or other amounts are paid by way of
indemnification, otherwise than by court order or action by the
shareholders or by an insurance carrier pursuant to insurance
maintained by the Corporation, the Corporation shall, not later than
the next annual meeting of shareholders, unless such meeting is held
within three (3) months from the date of such payment, and in any
event, within fifteen (15) months from the date of such payments send
by first class mail to its shareholders of record at the time entitled
to vote for the election of directors a statement specifying the
persons paid, the amount paid and the nature and statue at the time of
such payment of the litigation or threatened litigation.
9.8 Security. The Corporation may designate certain of its assets as
collateral, provide self-insurance or otherwise secure its obligations
under this Article Nine, or under any indemnification agreement or plan
of indemnification adopted and entered into in accordance with the
provisions of this Article Nine, as the Board of Directors deems
appropriate.
9.9 Amendment. Any amendment to this Article Nine which limits or otherwise
adversely effects the right of indemnification or other rights of any
Indemnified Person hereunder shall, as to such indemnified Person,
apply only to claims, actions, suits or proceedings based on actions,
events or omissions (collectively, "Post Amendment Events") occurring
after such amendment and after delivery of notice of such amendment to
the Indemnified Person so affected. Any indemnified Person shall, as to
any claim, action, suit or proceeding based on actions, events or
omissions occurring prior to the date of receipt of such notice, be
entitled to the right of indemnification and other rights under this
Article Nine to the same extent as had such provisions continued as
part of the bylaws of the Corporation without such amendment. This
Section 9.9 cannot be altered, amended or repealed in a manner
effective as to any Indemnified Person (except as to Post Amendment
Events) without the prior written consent of such Indemnified Person.
The Board of Directors may not alter, amend or repeal any provision of
this Article Nine in a manner that extends or enlarges the right of any
person to indemnification or advancement of expenses hereunder, except
with the approval of the holders of a majority of all the shares of
capital stock of the Corporation entitled to vote thereon at a meeting
called for such purpose.
9.10 Agreements. The provisions of this Article Nine shall be deemed to
constitute an agreement between the Corporation and each person
entitled to indemnification hereunder. In addition to the rights
provided in this Article Nine, the Corporation shall have the power,
upon authorization by the Board of Directors, to enter into an
agreement or agreements providing to any person who is or was a
director, officer, employee or agent of the Corporation indemnification
rights substantially similar to those provided in this Article Nine.
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<PAGE> 7
9.11 Successors. For purposes of this Article Nine, the terms "the
Corporation" or "this Corporation" shall include any corporation, joint
venture, trust, partnership or unincorporated business association
which is the successor to all or substantially all of the business or
assets of this Corporation, as a result of merger, consolidation, sale,
liquidation or otherwise, and any such successor shall be liable to the
person indemnified under this Article Nine on the same terms and
conditions and to the some extent as this Corporation.
9.12 Additional Indemnification. In addition to the specific indemnification
rights set forth herein, the Corporation shall indemnify each of its
directors and officers to the full extent permitted by action of the
Board of Directors without shareholder approval under the Georgia
Business Corporation Code or other laws of the State of Georgia.
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 pursuant to Item 601 of Regulation S-K:
<TABLE>
<CAPTION>
Exhibit
No. Description
- ------- -----------
<S> <C>
5.1 Opinion of Powell, Goldstein, Frazer & Murphy LLP with respect to
the securities being registered, including consent.
23.1 Consent of counsel (included in Exhibit 5.1).
23.2 Consent of KPMG LLP, independent auditors.
24.1 Power of Attorney (see signature pages to this Registration
Statement).
99.1 Summit Bank Corporation 1998 Stock Incentive Plan.
</TABLE>
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:
II-5
<PAGE> 8
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act;
(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
and 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 20 percent change in the maximum
aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration
statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed
in the Registration Statement or any material change to such
information in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3 or Form S-8 and the information required
to be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d)
of the Exchange Act that are incorporated by reference 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 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, each filing of
the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
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.
(h) Insofar as indemnification for liabilities arising under 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
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<PAGE> 9
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.
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<PAGE> 10
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Atlanta, State of Georgia, on this the 29th day of
November, 1999.
SUMMIT BANK CORPORATION
By: /s/ Gary K. McClung
------------------------------------------
Gary K. McClung
Executive Vice President,
Chief Financial Officer and Secretary
(Principal Financial Officer and
Principal Accounting Officer)
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Gary K. McClung and Pin Pin Chau as his true and
lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this Registration Statement, and to file the same, with all exhibits thereto
and other documents in connection therewith, with the Securities and Exchange
Commission, granting unto each of said attorneys-in-fact and agents, full power
and authority to do and perform each and every act and thing required or
necessary to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that each of said attorneys-in-fact and agents, or their substitutes, could
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by the following persons in the capacities
indicated and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ David Yu Director and President November 29, 1999
- -------------------------------
David Yu
/s/ Pin Pin Chau Director and Chief Executive Officer November 29, 1999
- ------------------------------- (Principal Executive Officer)
Pin Pin Chau
</TABLE>
<PAGE> 11
<TABLE>
<S> <C> <C>
/s/ Gary K. McClung Executive Vice President, November 29, 1999
- ------------------------------- Chief Financial Officer and
Gary K. McClung Secretary (Principal Accounting
Officer and Principal Financial
Officer)
/s/ Jack N. Halpern Director, Chairman of the Board November 29, 1999
- -------------------------------
Jack N. Halpern
/s/ Gerald L. Allison Director, Vice Chairman of the Board November 29, 1999
- -------------------------------
Gerald L. Allison
/s/ Aaron I. Alembik Director November 29, 1999
- -------------------------------
Aaron I. Alembik
/s/ Paul C. Y. Chu Director November 29, 1999
- -------------------------------
Paul C.Y. Chu
/s/ Peter M. Cohen Director November 29, 1999
- -------------------------------
Peter M. Cohen
/s/ Jose I. Gonzalez Director November 29, 1999
- -------------------------------
Jose I. Gonzalez
/s/ Donald R. Harkleroad Director November 29, 1999
- -------------------------------
Donald R. Harkleroad
/s/ Daniel T. Huang Director November 29, 1999
- -------------------------------
Daniel T. Huang
/s/ Shafik H. Ladha Director November 29, 1999
- -------------------------------
Shafik H. Ladha
/s/ James S. Lai Director November 29, 1999
- -------------------------------
James S. Lai
/s/ Sion Nyen (Francis) Lai Director November 29, 1999
- -------------------------------
Sion Nyen (Francis) Lai
/s/ Shih Chien (Raymond) Lo Director November 29, 1999
- -------------------------------
Shih Chien (Raymond) Lo
/s/Nack Paek Director November 29, 1999
- -------------------------------
Nack Paek
</TABLE>
<PAGE> 12
<TABLE>
<S> <C> <C>
/s/ Carl L. Patrick, Jr. Director November 29, 1999
- -------------------------------
Carl L. Patrick, Jr.
/s/ Cecil M. Phillips Director November 29, 1999
- -------------------------------
Cecil M. Phillips
/s/ W. Clayton Sparrow, Jr. Director November 29, 1999
- -------------------------------
W. Clayton Sparrow, Jr.
/s/ Howard H. L. Tai Director November 29, 1999
- -------------------------------
Howard H. L. Tai
/s/ P. Carl Unger Director November 29, 1999
- -------------------------------
P. Carl Unger
</TABLE>
<PAGE> 13
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Description
No. -----------
------
<S> <C>
5.1 Opinion of Powell, Goldstein, Frazer & Murphy LLP
with respect to the securities being registered,
including consent.
23.1 Consent of counsel (included in Exhibit 5.1).
23.2 Consent of KPMG LLP, independent auditors.
24.1 Power of Attorney (see signature pages to this
Registration Statement).
99.1 Summit Bank Corporation 1998 Stock Incentive Plan.
</TABLE>
<PAGE> 1
EXHIBIT 5.1
December 9, 1999
Summit Bank Corporation
4360 Chamblee-Dunwoody Road
Atlanta, Georgia 30341
Re: Registration Statement on Form S-8 (Summit Bank Corporation)
Ladies and Gentlemen:
This opinion is given in connection with the filing by Summit Bank
Corporation, a Georgia corporation (the "Company"), with the Securities and
Exchange Commission under the Securities Act of 1933, as amended, pursuant to a
Registration Statement on Form S-8 (the "Registration Statement"), of an
aggregate of 200,000 shares (the "Shares") of common stock, $0.01 par value, of
the Company, to be offered and sold by the Company pursuant to the following
plan:
- Summit Bank Corporation 1998 Stock Incentive Plan
We have examined and are familiar with originals or copies (certified,
photostatic or otherwise identified to our satisfaction) of such documents,
corporate records and other instruments relating to the incorporation of the
Company and the authorization of the shares to be issued pursuant to the Plan as
we have deemed necessary and advisable. In such examinations, we have assumed
the genuineness of all signatures on all originals and copies of documents we
have examined, the authenticity of all documents submitted to us as originals
and the conformity to original documents of all certified, conformed or
photostatic copies. As to questions of fact material and relevant to this
opinion, we have relied upon certificates or representations of Company
officials and of appropriate governmental officials.
We express no opinion as to matters under or involving the laws of any
jurisdiction other than the corporate law of the State of Georgia.
Based upon and subject to the foregoing and having regard for such
legal considerations as we have deemed relevant, it is my opinion that:
1. The Shares have been duly authorized; and
2. Upon the issuance and delivery of the Shares and payment
therefor as provided in the Plan and as contemplated by the
Registration Statement, the Shares will be legally and validly
issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement.
Very truly yours,
/s/ Powell, Goldstein, Frazer & Murphy LLP
FOR POWELL, GOLDSTEIN, FRAZER & MURPHY LLP
<PAGE> 1
EXHIBIT 23.2
INDEPENDENT ACCOUNTANTS' CONSENT
The Board of Directors
Summit Bank Corporation
We consent to incorporation by reference in the Registration Statement on Form
S-8 of the Summit Bank Corporation, of our report dated January 22, 1999,
relating to the consolidated balance sheets of Summit Bank Corporation and
subsidiaries as of December 31, 1998 and 1997, and the related consolidated
statements of income, comprehensive income, and cash flows for each of the years
in the three-year period ended December 31, 1998 and all related schedules,
which report appears in the December 31, 1998, annual report on Form 10-K of
Summit Bank Corporation.
Atlanta, Georgia
December 15, 1999 /s/ KPMG LLP
<PAGE> 1
EXHIBIT 99.1
SUMMIT BANK CORPORATION
1998 STOCK INCENTIVE PLAN
SECTION 1 DEFINITIONS
1.1 Definitions. Whenever used herein, the masculine pronoun shall
be deemed to include the feminine, and the singular to include the plural,
unless the context clearly indicates otherwise, and the following capitalized
words and phrases are used herein with the meaning thereafter ascribed:
(a) "Board of Directors" means the board of directors of
the Company.
(b) "Cause" has the same meaning as provided in the
employment agreement between the Participant and the Company or, if applicable,
any affiliate of the Company on the date of Termination of Service, or if no
such definition or employment agreement exists, "Cause" means conduct amounting
to (1) fraud or dishonesty against the Company or its affiliates, (2)
Participant's willful misconduct, repeated refusal to follow the reasonable
directions of the board of directors of the Company or its affiliates, or
knowing violation of law in the course of performance of the duties of
Participant's service with the Company or its affiliates, (3) repeated absences
from work without a reasonable excuse, (4) repeated intoxication with alcohol or
drugs while on the Company or affiliates' premises during regular business
hours, (5) a conviction or plea of guilty or nolo contendere to a felony or a
crime involving dishonesty, or (6) a breach or violation of the terms of any
agreement to which Participant and the Company or its affiliates are party.
(c) "Change in Control" means any one of the following
events which may occur without the approval of the Board of Directors:
(1) the acquisition by any person, entity or
"group," within the meaning of Section 13(d)(3) or Section 14(d)(2) of the
Securities Exchange Act of 1934 (excluding, for this purpose, any employee
benefit plan maintained by the Company or any affiliate), which acquires
beneficial ownership of voting securities of the Company (or of such other
Company affiliates as may be identified in the Stock Incentive Agreement or
otherwise designated by the Committee) of beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the Securities Exchange Act of 1934) of
more than fifty percent (50%) of either the then outstanding shares of Stock or
the combined voting power of the Company's (or of such other Company
affiliates') (as may be identified in the Stock Incentive Agreement or otherwise
designated by the Committee) then outstanding voting securities entitled to vote
generally in the election of directors;
(2) the acquisition by any person, entity or
"group," within the meaning of Section 13(d)(3) or Section 14(d)(2) of the
Securities Exchange Act of 1934 (excluding, for this purpose, any employee
benefit plan maintained by the Company or any affiliate), which acquires
beneficial ownership of voting securities of the Company (or of such other
Company affiliates as may be identified in the Stock Incentive Agreement or
otherwise designated by the Committee) of beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the Securities Exchange Act of 1934) of
more than thirty percent (30%) or more of either the then outstanding shares of
Stock or the combined voting power of the Company's (or of such other Company
affiliates') (as may be identified
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in the Stock Incentive Agreement or otherwise designated by the Committee) then
outstanding voting securities entitled to vote generally in the election of
directors and the failure for any reason of individuals who constitute the
Incumbent Board to continue to constitute at least two-thirds of the Board of
Directors within any thirteen (13) month period. For purposes of this Section
1.1(c)(2), the term "Incumbent Board" shall mean the members of the Board of
Directors as of the date this Plan is adopted by the Board of Directors and any
person becoming a member of the Board of Directors after that date whose
election, or whose nomination for election by the Company's stockholders was
approved by a vote of at least two-thirds of the directors then comprising the
Incumbent Board (other than an election or nomination of an individual whose
initial assumption of office is in connection with an actual or threatened
election contest relating to the election of directors of the Company, as such
terms are used in Rule 14a-11 of Regulation 14A promulgated under the Securities
Exchange Act of 1934); or
(3) the approval by the stockholders of the
Company (or of such other Company affiliates as may be identified in the Stock
Incentive Agreement or otherwise designated by the Committee) of a
reorganization, merger or consolidation, with respect to which persons who were
the stockholders of the Company (or of such other Company affiliates as may be
identified in the Stock Incentive Agreement or otherwise designated by the
Committee) immediately prior to such reorganization, merger or consolidation do
not, immediately thereafter, own more than fifty percent (50%) of the combined
voting power entitled to vote generally in the election of directors of the
reorganized, merged or consolidated company's then outstanding voting
securities, or a liquidation or dissolution of the Company (or of such other
Company affiliates as may be identified in the Stock Incentive Agreement or
otherwise designated by the Committee) or the sale of all or substantially all
of the assets of the Company (or of such other Company affiliates as may be
identified in the Stock Incentive Agreement or otherwise designated by the
Committee).
(d) "Code" means the Internal Revenue Code of 1986, as
amended.
(e) "Committee" means the committee appointed by the
Board of Directors to administer the Plan pursuant to Plan Section 2.3. In the
absence of any such appointment, the full membership of the Board of Directors
shall serve as the Committee.
(f) "Company" means Summit Bank Corporation, a Georgia
corporation.
(g) "Disability" has the same meaning as provided in the
long-term disability plan or policy maintained or, if applicable, most recently
maintained, by the Company or, if applicable, any affiliate of the Company for
the Participant. If no long-term disability plan or policy was ever maintained
on behalf of the Participant or, if the determination of Disability relates to
an Incentive Stock Option, Disability shall mean that condition described in
Code Section 22(e)(3), as amended from time to time. In the event of a dispute,
the determination of Disability shall be made by the Board of Directors and
shall be supported by advice of a physician competent in the area to which such
Disability relates.
(h) "Disposition" means any conveyance, sale, transfer,
assignment, pledge or hypothecation, whether outright or as security, inter
vivos or testamentary, with or without consideration, voluntary or involuntary.
(i) "Dividend Equivalent Rights" means certain rights to
receive cash payments as described in Plan Section 3.5.
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(j) "Fair Market Value" refers to the determination of
value of a share of Stock. If the Stock is actively traded on any national
securities exchange or any Nasdaq quotation or market system, Fair Market Value
shall mean the closing price at which sales of Stock shall have been sold on the
most recent trading date immediately prior to the date of determination, as
reported by any such exchange or system selected by the Committee on which the
shares of Stock are then traded. If the shares of Stock are not actively traded
on any such exchange or system, Fair Market Value shall mean the arithmetic mean
of the bid and asked prices for the shares of Stock on the most recent trading
date within a reasonable period prior to the determination date as reported by
such exchange or system. If there are no bid and asked prices within a
reasonable period or if the shares of Stock are not traded on any exchange or
system as of the determination date, Fair Market Value shall mean the fair
market value of a share of Stock as determined by the Committee taking into
account such facts and circumstances deemed to be material by the Committee to
the value of the Stock in the hands of the Participant; provided that, for
purposes of granting awards other than Incentive Stock Options, Fair Market
Value of a share of Stock may be determined by the Committee by reference to the
average market value determined over a period certain or as of specified dates,
to a tender offer price for the shares of Stock (if settlement of an award is
triggered by such an event) or to any other reasonable measure of fair market
value and provided further that, for purposes of granting Incentive Stock
Options, Fair Market Value of a share of Stock shall be determined in accordance
with the valuation principles described in the regulations promulgated under
Code Section 422.
(k) "Incentive Stock Option" means an incentive stock
option, as defined in Code Section 422, described in Plan Section 3.2.
(l) "Non-Qualified Stock Option" means a stock option,
other than an option qualifying as an Incentive Stock Option, described in Plan
Section 3.2.
(m) "Option" means a Non-Qualified Stock Option or an
Incentive Stock Option.
(n) "Over 10% Owner" means an individual who at the time
an Incentive Stock Option is granted owns Stock possessing more than 10% of the
total combined voting power of the Company or one of its Parents or
Subsidiaries, determined by applying the attribution rules of Code Section
424(d).
(o) "Parent" means any corporation (other than the
Company) in an unbroken chain of corporations ending with the Company if, with
respect to Incentive Stock Options, at the time of granting of the Option, each
of the corporations other than the Company owns stock possessing 50% or more of
the total combined voting power of all classes of stock in one of the other
corporations in the chain.
(p) "Participant" means an individual who receives a
Stock Incentive hereunder.
(q) "Performance Unit Award" refers to a performance unit
award described in Plan Section 3.6.
(r) "Phantom Shares" refers to the rights described in
Plan Section 3.7.
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(s) "Plan" means the Summit Bank Corporation 1998 Stock
Incentive Plan.
(t) "Stock" means the Company's common stock, $.01 par
value.
(u) "Stock Appreciation Right" means a stock appreciation
right described in Plan Section 3.3.
(v) "Stock Award" means a stock award described in Plan
Section 3.4.
(w) "Stock Incentive Agreement" means an agreement
between the Company and a Participant or other documentation evidencing an award
of a Stock Incentive.
(x) "Stock Incentive Program" means a written program
established by the Committee pursuant to which Stock Incentives, other than
Options or Stock Appreciation Rights, are awarded under the Plan under uniform
terms, conditions and restrictions set forth in such written program and
distributed among eligible officers, employees and directors.
(y) "Stock Incentives" means, collectively, Dividend
Equivalent Rights, Incentive Stock Options, Non-Qualified Stock Options,
Performance Unit Awards, Phantom Shares, Stock Appreciation Rights and Stock
Awards.
(z) "Subsidiary" means any corporation (other than the
Company) in an unbroken chain of corporations beginning with the Company if,
with respect to Incentive Stock Options, at the time of the granting of the
Option, each of the corporations other than the last corporation in the unbroken
chain owns stock possessing 50% or more of the total combined voting power of
all classes of stock in one of the other corporations in the chain.
(aa) "Termination of Service" means the termination of the
service relationship, whether employment or otherwise, between a Participant and
the Company and its affiliates, regardless of the fact that severance or similar
payments are made to the Participant for any reason, including, but not by way
of limitation, a termination by resignation, discharge, death, Disability or
retirement. The Committee shall, in its absolute discretion, determine the
effect of all matters and questions relating to Termination of Service,
including, but not by way of limitation, the question of whether a leave of
absence constitutes a Termination of Service, or whether a Termination of
Service is for Cause.
SECTION 2 THE STOCK INCENTIVE PLAN
2.1 Purpose of the Plan. The Plan is intended to (a) provide
incentive to officers, employees, directors and consultants of the Company and
its affiliates to stimulate their efforts toward the continued success of the
Company and to operate and manage the business in a manner that will provide for
the long-term growth and profitability of the Company; (b) encourage stock
ownership by officers, employees, directors and consultants by providing them
with a means to acquire a proprietary interest in the Company by acquiring
shares of Stock or to receive compensation which is based upon appreciation in
the value of Stock; and (c) provide a means of obtaining and rewarding key
personnel.
2.2 Stock Subject to the Plan. Subject to adjustment in accordance
with Section 5.2, 200,000 shares of Stock (the "Maximum Plan Shares") are hereby
reserved exclusively for issuance pursuant to Stock Incentives. At no time shall
the Company have outstanding Stock Incentives and
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shares of Stock issued in respect of Stock Incentives in excess of the Maximum
Plan Shares. The shares of Stock attributable to the nonvested, unpaid,
unexercised, unconverted or otherwise unsettled portion of any Stock Incentive
that is forfeited or cancelled or expires or terminates for any reason without
becoming vested, paid, exercised, converted or otherwise settled in full shall
again be available for purposes of the Plan. All other plans maintained by the
Company that provided for the reservation of shares of Stock for stock
incentives have been terminated.
2.3 Administration of the Plan. The Plan shall be administered by
the Committee. The Committee shall have full authority in its discretion to
determine the officers, employees, directors and consultants of the Company or
its affiliates to whom Stock Incentives shall be granted and the terms and
provisions of Stock Incentives, subject to the Plan. Subject to the provisions
of the Plan, the Committee shall have full and conclusive authority to interpret
the Plan; to prescribe, amend and rescind rules and regulations relating to the
Plan; to determine the terms and provisions of the respective Stock Incentive
Agreements or Stock Incentive Programs and to make all other determinations
necessary or advisable for the proper administration of the Plan. The
Committee's determinations under the Plan need not be uniform and may be made by
it selectively among persons who receive, or are eligible to receive, awards
under the Plan (whether or not such persons are similarly situated). The
Committee's decisions shall be final and binding on all Participants.
As to any matter involving a Participant who is not a "reporting
person" for purposes of Section 16 of the Securities Exchange Act of 1934, the
Committee may delegate to any member of the Board of Directors or officer of the
Company the administrative authority to (a) interpret the provisions of the
Participant's Stock Incentive Agreement and (b) determine the treatment of Stock
Incentives upon a Termination of Service, as contemplated by Plan Section 3.8.
The Committee shall consist of at least two members of the Board of
Directors. The Board of Directors shall consider the advisability of complying
with the disinterested standards contained in both Code Section 162(m) and Rule
16b-3(b)(3) (promulgated under the Securities Exchange Act of 1934) when
appointing members to, or otherwise considering the composition of, the
Committee. The Board of Directors may from time to time remove members from or
add members to the Committee. Vacancies on the Committee shall be filled by the
Board of Directors.
2.4 Eligibility and Limits. Stock Incentives may be granted only
to officers, employees, directors and consultants of the Company or an
affiliate; provided, however, that an Incentive Stock Option may only be granted
to an employee of the Company or any Parent or Subsidiary. In the case of
Incentive Stock Options, the aggregate Fair Market Value (determined as at the
date an Incentive Stock Option is granted) of stock with respect to which stock
options intended to meet the requirements of Code Section 422 become exercisable
for the first time by an individual during any calendar year under all plans of
the Company and its Parents and Subsidiaries shall not exceed $100,000; provided
further, that if the limitation is exceeded, the Incentive Stock Option(s) which
cause the limitation to be exceeded shall be treated as Non-Qualified Stock
Option(s); except as the terms of the Stock Incentive Agreement may expressly
provide otherwise. To the extent required under Code Section 162(m) and
regulations thereunder for compensation to be treated as qualified
performance-based compensation, the maximum number of shares Stock with respect
to which Options or Stock Appreciation Rights may be granted during any single
fiscal year of the Company to any Participant who is a "covered employee,"
within the meaning of Code Section 162(m) and the regulations promulgated
thereunder (a "Covered Employee"), shall not exceed 50,000.
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SECTION 3 TERMS OF STOCK INCENTIVES
3.1 Terms and Conditions of All Stock Incentives.
(a) The number of shares of Stock as to which a Stock
Incentive shall be granted shall be determined by the Committee in its sole
discretion, subject to the provisions of Section 2.2 as to the total number of
shares available for grants under the Plan. If a Stock Incentive Agreement so
provides, a Participant may be granted a new Option to purchase a number of
shares of Stock equal to the number of previously owned shares of Stock tendered
in payment of the Exercise Price (as defined below) for each share of Stock
purchased pursuant to the terms of the Stock Incentive Agreement.
(b) Each Stock Incentive shall be evidenced either by a
Stock Incentive Agreement in such form and containing such terms, conditions and
restrictions as the Committee may determine is appropriate or be made subject to
the terms of a Stock Incentive Program, containing such terms, conditions and
restrictions as the Committee may determine is appropriate. Each Stock Incentive
Agreement or Stock Incentive Program shall be subject to the terms of the Plan
and any provision in a Stock Incentive Agreement or Stock Incentive Program that
is inconsistent with the Plan shall be null and void.
(c) The date a Stock Incentive is granted shall be the
date on which the Committee has approved the terms and conditions of the Stock
Incentive Agreement or Stock Incentive Program and has determined the recipient
of the Stock Incentive and the number of shares covered by the Stock Incentive
and has taken all such other action necessary to complete the grant of the Stock
Incentive.
(d) The Committee may provide in any Stock Incentive
Agreement or pursuant to any Stock Incentive Program (or subsequent to the award
of a Stock Incentive but prior to its expiration or cancellation, as the case
may be) that, in the event of a Change in Control, the Stock Incentive shall or
may be cashed out on the basis of any price not greater than the highest price
paid for a share of Stock in any transaction reported by any market or system
selected by the Committee on which the shares of Stock are then actively traded
during a specified period immediately preceding or including the date of the
Change in Control or offered for a share of Stock in any tender offer occurring
during a specified period immediately preceding or including the date the tender
offer commences; provided that, in no case shall any such specified period
exceed one (1) year (the "Change in Control Price"). For purposes of this
Subsection, the cash-out of a Stock Incentive shall be determined as follows:
(1) Options shall be cashed out on the basis of
the excess, if any, of the Change in Control Price (but not more than the Fair
Market Value of the Stock on the date of the cash-out in the case of Incentive
Stock Options) over the Exercise Price with or without regard to whether the
Option may otherwise be exercisable only in part;
(2) Stock Awards and Phantom Shares shall be
cashed out in an amount equal to the Change in Control Price with or without
regard to any conditions or restrictions otherwise applicable to any such Stock
Incentive; and
(3) Stock Appreciation Rights, Dividend
Equivalent Rights and Performance Unit Awards shall be cashed out with or
without regard to any conditions or restrictions otherwise applicable to any
such Stock Incentive and the amount of the cash out shall be determined by
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reference to the number of shares of Stock that would be required to pay the
Participant in kind for the value of the Stock Incentive as of the date of the
Change in Control multiplied by the Change in Control Price.
(e) Any Stock Incentive may be granted in connection with
all or any portion of a previously or contemporaneously granted Stock Incentive.
Exercise or vesting of a Stock Incentive granted in connection with another
Stock Incentive may result in a pro rata surrender or cancellation of any
related Stock Incentive, as specified in the applicable Stock Incentive
Agreement or Stock Incentive Program.
(f) Stock Incentives shall not be transferable or
assignable except by will or by the laws of descent and distribution and shall
be exercisable, during the Participant's lifetime, only by the Participant; in
the event of the Disability of the Participant, by the legal representative of
the Participant; or in the event of the death of the participant, by the
personal representative of the Participant's estate or if no personal
representative has been appointed, by the successor in interest determined under
the Participant's will.
3.2 Terms and Conditions of Options. Each Option granted under the
Plan shall be evidenced by a Stock Incentive Agreement. At the time any Option
is granted, the Committee shall determine whether the Option is to be an
Incentive Stock Option or a Non-Qualified Stock Option, and the Option shall be
clearly identified as to its status as an Incentive Stock Option or a
Non-Qualified Stock Option. At the time any Incentive Stock Option is exercised,
the Company shall be entitled to place a legend on the certificates representing
the shares of Stock purchased pursuant to the Option to clearly identify them as
shares of Stock purchased upon exercise of an Incentive Stock Option. An
Incentive Stock Option may only be granted within ten (10) years from the
earlier of the date the Plan is adopted by the Board of Directors or approved by
the Company's stockholders.
(a) Option Price. Subject to adjustment in accordance
with Section 5.2 and the other provisions of this Section 3.2, the exercise
price (the "Exercise Price") per share of Stock purchasable under any Option
shall be as set forth in the applicable Stock Incentive Agreement. With respect
to each grant of an Incentive Stock Option to a Participant who is not an Over
10% Owner or to each grant of any Option to a Participant who is then a Covered
Employee, the Exercise Price per share shall not be less than the Fair Market
Value on the date the Option is granted. With respect to each grant of an
Incentive Stock Option to a Participant who is an Over 10% Owner, the Exercise
Price shall not be less than 110% of the Fair Market Value on the date the
Option is granted.
(b) Option Term. The term of an Option shall be as
specified in the applicable Stock Incentive Agreement; provided, however that
any Incentive Stock Option granted to a Participant who is not an Over 10% Owner
shall not be exercisable after the expiration of ten (10) years after the date
the Option is granted and any Incentive Stock Option granted to an Over 10%
Owner shall not be exercisable after the expiration of five (5) years after the
date the Option is granted.
(c) Payment. Payment for all shares of Stock purchased
pursuant to exercise of an Option shall be made in any form or manner authorized
by the Committee in the Stock Incentive Agreement or by amendment thereto,
including, but not limited to, cash or, if the Stock Incentive Agreement
provides, (1) by delivery to the Company of a number of shares of Stock which
have been owned by the holder for at least six (6) months prior to the date of
exercise having an aggregate Fair Market Value of not less than the product of
the Exercise Price multiplied by the number of shares the Participant intends to
purchase upon exercise of the Option on the date of delivery; (2) in a cashless
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exercise through a broker; or (3) by having a number of shares of Stock
withheld, the Fair Market Value of which as of the date of exercise is
sufficient to satisfy the Exercise Price. In its discretion, the Committee also
may authorize (at the time an Option is granted or thereafter) Company financing
to assist the Participant as to payment of the Exercise Price on such terms as
may be offered by the Committee in its discretion. Payment shall be made at the
time that the Option or any part thereof is exercised, and no shares shall be
issued or delivered upon exercise of an option until full payment has been made
by the Participant. The holder of an Option, as such, shall have none of the
rights of a stockholder.
(d) Conditions to the Exercise of an Option. Each Option
granted under the Plan shall be exercisable by whom, at such time or times, or
upon the occurrence of such event or events, and in such amounts, as the
Committee shall specify in the Stock Incentive Agreement; provided, however,
that subsequent to the grant of an Option, the Committee, at any time before
complete termination of such Option, may accelerate the time or times at which
such Option may be exercised in whole or in part, including, without limitation,
upon a Change in Control and may permit the Participant or any other designated
person to exercise the Option, or any portion thereof, for all or part of the
remaining Option term notwithstanding any provision of the Stock Incentive
Agreement to the contrary.
(e) Termination of Incentive Stock Option. With respect
to an Incentive Stock Option, in the event of the Termination of Service of a
Participant, the Option or portion thereof held by the Participant which is
unexercised shall expire, terminate, and become unexercisable no later than the
expiration of three (3) months after the date of Termination of Service;
provided, however, that in the case of a holder whose Termination of Service is
due to death or Disability, one (1) year shall be substituted for such three (3)
month period. For purposes of this Subsection (e), Termination of Service of the
Participant shall not be deemed to have occurred if the Participant is employed
by another corporation (or a parent or subsidiary corporation of such other
corporation) which has assumed the Incentive Stock Option of the Participant in
a transaction to which Code Section 424(a) is applicable.
(f) Special Provisions for Certain Substitute Options.
Notwithstanding anything to the contrary in this Section 3.2, any Option issued
in substitution for an option previously issued by another entity, which
substitution occurs in connection with a transaction to which Code Section
424(a) is applicable, may provide for an exercise price computed in accordance
with such Code Section and the regulations thereunder and may contain such other
terms and conditions as the Committee may prescribe to cause such substitute
Option to contain as nearly as possible the same terms and conditions (including
the applicable vesting and termination provisions) as those contained in the
previously issued option being replaced thereby.
3.3 Terms and Conditions of Stock Appreciation Rights. Each Stock
Appreciation Right granted under the Plan shall be evidenced by a Stock
Incentive Agreement. A Stock Appreciation Right may be granted in connection
with all or any portion of a previously or contemporaneously granted Stock
Incentive or not in connection with a Stock Incentive. A Stock Appreciation
Right shall entitle the Participant to receive the excess of (a) the Fair Market
Value of a specified or determinable number of shares of the Stock at the time
of payment or exercise over (b) a specified price (1) which, in the case of a
Stock Appreciation Right granted in connection with an Option, shall be not less
than the Exercise Price for that number of shares and (2) which, in the case of
a Stock Appreciation Right that is granted to a Participant who is then a
Covered Employee, shall not be less than the Fair Market Value of the Stock at
the time of the award. A Stock Appreciation Right granted in connection with a
Stock
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Incentive may only be exercised to the extent that the related Stock Incentive
has not been exercised, paid or otherwise settled. The exercise of a Stock
Appreciation Right granted in connection with a Stock Incentive shall result in
a pro rata surrender or cancellation of any related Stock Incentive to the
extent the Stock Appreciation Right has been exercised.
(a) Settlement. Upon settlement of a Stock Appreciation
Right, the Company shall pay to the Participant the appreciation in cash or
shares of Stock (valued at the aggregate Fair Market Value on the date of
payment or exercise) as provided in the Stock Incentive Agreement or, in the
absence of such provision, as the Committee may determine.
(b) Conditions to Exercise. Each Stock Appreciation Right
granted under the Plan shall be exercisable or payable at such time or times, or
upon the occurrence of such event or events, and in such amounts, as the
Committee shall specify in the Stock Incentive Agreement; provided, however,
that subsequent to the grant of a Stock Appreciation Right, the Committee, at
any time before complete termination of such Stock Appreciation Right, may
accelerate the time or times at which such Stock Appreciation Right may be
exercised or paid in whole or in part.
3.4 Terms and Conditions of Stock Awards. The number of shares of
Stock subject to a Stock Award and restrictions or conditions on such shares, if
any, shall be as the Committee determines, and the certificate for such shares
shall bear evidence of any restrictions or conditions. Subsequent to the date of
the grant of the Stock Award, the Committee shall have the power to permit, in
its discretion, an acceleration of the expiration of an applicable restriction
period with respect to any part or all of the shares awarded to a Participant.
The Committee may require a cash payment from the Participant in an amount no
greater than the aggregate Fair Market Value of the shares of Stock awarded
determined at the date of grant in exchange for the grant of a Stock Award or
may grant a Stock Award without the requirement of a cash payment.
3.5 Terms and Conditions of Dividend Equivalent Rights. A Dividend
Equivalent Right shall entitle the Participant to receive payments from the
Company in an amount determined by reference to any cash dividends paid on a
specified number of shares of Stock to Company stockholders of record during the
period such rights are effective. The Committee may impose such restrictions and
conditions on any Dividend Equivalent Right as the Committee in its discretion
shall determine, including the date any such right shall terminate and may
reserve the right to terminate, amend or suspend any such right at any time.
(a) Payment. Payment in respect of a Dividend Equivalent
Right may be made by the Company in cash or shares of Stock (valued at Fair
Market Value on the date of payment) as provided in the Stock Incentive
Agreement or, in the absence of such provision, as the Committee may determine.
(b) Conditions to Payment. Each Dividend Equivalent Right
granted under the Plan shall be payable at such time or times, or upon the
occurrence of such event or events, and in such amounts, as the Committee shall
specify in the Stock Incentive Agreement or Stock Incentive Program; provided,
however, that subsequent to the grant of a Dividend Equivalent Right, the
Committee, at any time before complete termination of such Dividend Equivalent
Right, may accelerate the time or times at which such Dividend Equivalent Right
may be paid in whole or in part.
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3.6 Terms and Conditions of Performance Unit Awards. A Performance
Unit Award shall entitle the Participant to receive, at a future date, payment
of an amount equal to all or a portion of the value of a number of units (stated
in terms of a designated dollar amount per unit) granted by the Committee, all
as the Committee shall specify in the Stock Incentive Agreement or Stock
Incentive Program. At the time of the grant, the Committee must determine the
base value of each unit, the number of units subject to a Performance Unit
Award, the performance factors applicable to the determination of the ultimate
payment value of the Performance Unit Award and the period over which Company
performance shall be measured. The Committee may provide for an alternate base
value for each unit under certain specified conditions.
(a) Payment. Payment in respect of Performance Unit
Awards may be made by the Company in cash or shares of Stock (valued at Fair
Market Value on the date of payment) as provided in the Stock Incentive
Agreement or Stock Incentive Program or, in the absence of such provision, as
the Committee may determine.
(b) Conditions to Payment. Each Performance Unit Award
granted under the Plan shall be payable at such time or times, or upon the
occurrence of such event or events, and in such amounts, as the Committee shall
specify in the Stock Incentive Agreement or Stock Incentive Program; provided,
however, that subsequent to the grant of a Performance Unit Award, the
Committee, at any time before complete termination of such Performance Unit
Award, may accelerate the time or times at which such Performance Unit Award may
be paid in whole or in part.
3.7 Terms and Conditions of Phantom Shares. Phantom Shares shall
entitle the Participant to receive, at a future date, payment of an amount equal
to all or a portion of the Fair Market Value of a number of shares of Stock at
the end of a certain period, all as the Committee shall specify in the Stock
Incentive Agreement or Stock Incentive Program. At the time of the grant, the
Committee shall determine the factors which will govern the portion of the
rights so payable, including, at the discretion of the Committee, any
performance criteria that must be satisfied as a condition to payment.
(a) Payment. Payment in respect of Phantom Shares may be
made by the Company in cash or shares of Stock (valued at Fair Market Value on
the date of payment) as provided in the Stock Incentive Agreement or Stock
Incentive Program or, in the absence of such provision, as the Committee may
determine.
(b) Conditions to Payment. Each Phantom Share granted
under the Plan shall be payable at such time or times, or upon the occurrence of
such event or events, and in such amounts, as the Committee shall specify in the
Stock Incentive Agreement or Stock Incentive Program; provided, however, that
subsequent to the grant of a Phantom Share, the Committee, at any time before
complete termination of such Phantom Share, may accelerate the time or times at
which such Phantom Share may be paid in whole or in part.
3.8 Treatment of Awards Upon Termination of Service. Except as
otherwise provided by Plan Section 3.2(e), any award under this Plan to a
Participant who suffers a Termination of Service may be cancelled, accelerated,
paid or continued, as provided in the Stock Incentive Agreement or Stock
Incentive Program or, in the absence of such provision, as the Committee may
determine. The portion of any award exercisable in the event of continuation or
the amount of any payment due under a continued award may be adjusted by the
Committee to reflect the Participant's period of service from the date of grant
through the date of the Participant's Termination of Service or such other
factors as the Committee determines are relevant to its decision to continue the
award.
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SECTION 4 RESTRICTIONS ON STOCK
4.1 Escrow of Shares. Any certificates representing the shares of
Stock issued under the Plan shall be issued in the Participant's name, but, if
the Stock Incentive Agreement or Stock Incentive Program so provides, the shares
of Stock shall be held by a custodian designated by the Committee (the
"Custodian"). Each applicable Stock Incentive Agreement or Stock Incentive
Program providing for transfer of shares of Stock to the Custodian shall appoint
the Custodian as the attorney-in-fact for the Participant for the term specified
in the applicable Stock Incentive Agreement or Stock Incentive Program, with
full power and authority in the Participant's name, place and stead to transfer,
assign and convey to the Company any shares of Stock held by the Custodian for
such Participant, if the Participant forfeits the shares under the terms of the
applicable Stock Incentive Agreement or Stock Incentive Program. During the
period that the Custodian holds the shares subject to this Section, the
Participant shall be entitled to all rights, except as provided in the
applicable Stock Incentive Agreement or Stock Incentive Program, applicable to
shares of Stock not so held. Any dividends declared on shares of Stock held by
the Custodian shall, as the Committee may provide in the applicable Stock
Incentive Agreement or Stock Incentive Program, be paid directly to the
Participant or, in the alternative, be retained by the Custodian until the
expiration of the term specified in the applicable Stock Incentive Agreement or
Stock Incentive Program and shall then be delivered, together with any proceeds,
with the shares of Stock to the Participant or to the Company, as applicable.
4.2 Forfeiture of Shares. Notwithstanding any vesting schedule set
forth in any Stock Incentive Agreement or Stock Incentive Program, in the event
that the Participant violates a noncompetition agreement as set forth in the
Stock Incentive Agreement or Stock Incentive Program, all Stock Incentives and
shares of Stock issued to the holder pursuant to the Plan shall be forfeited;
provided, however, that the Company shall return to the holder the lesser of any
consideration paid by the Participant in exchange for Stock issued to the
Participant pursuant to the Plan or the then Fair Market Value of the Stock
forfeited hereunder.
4.3 Restrictions on Transfer. The Participant shall not have the
right to make or permit to exist any Disposition of the shares of Stock issued
pursuant to the Plan except as provided in the Plan or the applicable Stock
Incentive Agreement or Stock Incentive Program. Any Disposition of the shares of
Stock issued under the Plan by the Participant not made in accordance with the
Plan or the applicable Stock Incentive Agreement or Stock Incentive Program
shall be void. The Company shall not recognize, or have the duty to recognize,
any Disposition not made in accordance with the Plan and the applicable Stock
Incentive Agreement or Stock Incentive Program, and the shares so transferred
shall continue to be bound by the Plan and the applicable Stock Incentive
Agreement or Stock Incentive Program.
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SECTION 5 GENERAL PROVISIONS
5.1 Withholding. The Company shall deduct from all cash
distributions under the Plan any taxes required to be withheld by federal, state
or local government. Whenever the Company proposes or is required to issue or
transfer shares of Stock under the Plan or upon the vesting of any Stock Award,
the Company shall have the right to require the recipient to remit to the
Company an amount sufficient to satisfy any federal, state and local withholding
tax requirements prior to the delivery of any certificate or certificates for
such shares or the vesting of such Stock Award. A Participant may pay the
withholding tax in cash, or, if the applicable Stock Incentive Agreement or
Stock Incentive Program provides, a Participant may elect to have the number of
shares of Stock he is to receive reduced by, or with respect to a Stock Award,
tender back to the Company, the smallest number of whole shares of Stock which,
when multiplied by the Fair Market Value of the shares of Stock determined as of
the Tax Date (defined below), is sufficient to satisfy federal, state and local,
if any, withholding taxes arising from exercise or payment of a Stock Incentive
(a "Withholding Election"). A Participant may make a Withholding Election only
if both of the following conditions are met:
(a) The Withholding Election must be made on or prior to
the date on which the amount of tax required to be withheld is determined (the
"Tax Date") by executing and delivering to the Company a properly completed
notice of Withholding Election as prescribed by the Committee; and
(b) Any Withholding Election made will be irrevocable;
however, the Committee may in its sole discretion disapprove and give no effect
to the Withholding Election.
5.2 Changes in Capitalization; Merger; Liquidation.
(a) The number of shares of Stock reserved for the grant
of Options, Dividend Equivalent Rights, Performance Unit Awards, Phantom Shares,
Stock Appreciation Rights and Stock Awards; the number of shares of Stock
reserved for issuance upon the exercise or payment, as applicable, of each
outstanding Option, Dividend Equivalent Right, Performance Unit Award, Phantom
Share and Stock Appreciation Right and upon vesting or grant, as applicable, of
each Stock Award; the Exercise Price of each outstanding Option and the
specified number of shares of Stock to which each outstanding Dividend
Equivalent Right, Phantom Share and Stock Appreciation Right pertains shall be
proportionately adjusted for any increase or decrease in the number of issued
shares of Stock resulting from a subdivision or combination of shares or the
payment of an ordinary stock dividend in shares of Stock to holders of
outstanding shares of Stock or any other increase or decrease in the number of
shares of Stock outstanding effected without receipt of consideration by the
Company.
(b) In the event of any merger, consolidation,
extraordinary dividend (including a spin-off), reorganization or other change in
the corporate structure of the Company or its Stock or tender offer for shares
of Stock, the Committee, in its sole discretion, may make such adjustments with
respect to awards and take such other action as it deems necessary or
appropriate to reflect or in anticipation of such merger, consolidation,
extraordinary dividend, reorganization, other change in corporate structure or
tender offer, including, without limitation, the substitution of new awards, the
termination or adjustment of outstanding awards, the acceleration of awards or
the removal of restrictions on outstanding awards. Any adjustment pursuant to
this Section 5.2 may provide, in the Committee's discretion, for the elimination
without payment therefor of any fractional shares that might otherwise become
subject to any Stock Incentive.
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<PAGE> 13
(c) The existence of the Plan and the Stock Incentives
granted pursuant to the Plan shall not affect in any way the right or power of
the Company to make or authorize any adjustment, reclassification,
reorganization or other change in its capital or business structure, any merger
or consolidation of the Company, any issue of debt or equity securities having
preferences or priorities as to the Stock or the rights thereof, the dissolution
or liquidation of the Company, any sale or transfer of all or any part of its
business or assets, or any other corporate act or proceeding.
5.3 Cash Awards. The Committee may, at any time and in its
discretion, grant to any holder of a Stock Incentive the right to receive, at
such times and in such amounts as determined by the Committee in its discretion,
a cash amount which is intended to reimburse such person for all or a portion of
the federal, state and local income taxes imposed upon such person as a
consequence of the receipt of the Stock Incentive or the exercise of rights
thereunder.
5.4 Compliance with Code. All Incentive Stock Options to be
granted hereunder are intended to comply with Code Section 422, and all
provisions of the Plan and all Incentive Stock Options granted hereunder shall
be construed in such manner as to effectuate that intent.
5.5 Right to Terminate Service. Nothing in the Plan or in any
Stock Incentive Agreement or Stock Incentive Program shall confer upon any
Participant the right to continue as an employee, officer, director or
consultant of the Company or any of its affiliates or affect the right of the
Company or any of its affiliates to terminate the Participant's service at any
time.
5.6 Restrictions on Delivery and Sale of Shares; Legends. Each
Stock Incentive is subject to the condition that if at any time the Committee,
in its discretion, shall determine that the listing, registration or
qualification of the shares covered by such Stock Incentive upon any securities
exchange or under any state or federal law is necessary or desirable as a
condition of or in connection with the granting of such Stock Incentive or the
purchase or delivery of shares thereunder, the delivery of any or all shares
pursuant to such Stock Incentive may be withheld unless and until such listing,
registration or qualification shall have been effected. If a registration
statement is not in effect under the Securities Act of 1933 or any applicable
state securities laws with respect to the shares of Stock purchasable or
otherwise deliverable under Stock Incentives then outstanding, the Committee may
require, as a condition of exercise of any Option or as a condition to any other
delivery of Stock pursuant to a Stock Incentive, that the Participant or other
recipient of a Stock Incentive represent, in writing, that the shares received
pursuant to the Stock Incentive are being acquired for investment and not with a
view to distribution and agree that the shares will not be disposed of except
pursuant to an effective registration statement, unless the Company shall have
received an opinion of counsel that such disposition is exempt from such
requirement under the Securities Act of 1933 and any applicable state securities
laws. The Company may include on certificates representing shares delivered
pursuant to a Stock Incentive such legends referring to the foregoing
representations or restrictions or any other applicable restrictions on resale
as the Company, in its discretion, shall deem appropriate.
5.7 Non-alienation of Benefits. Other than as specifically
provided with regard to the death of a Participant, no benefit under the Plan
shall be subject in any manner to anticipation, alienation, sale, transfer,
assignment, pledge, encumbrance or charge; and any attempt to do so shall be
void. No such benefit shall, prior to receipt by the Participant, be in any
manner liable for or subject to the debts, contracts, liabilities, engagements
or torts of the Participant.
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<PAGE> 14
5.8 Termination and Amendment of the Plan. The Board of Directors
at any time may amend or terminate the Plan without stockholder approval;
provided, however, that the Board of Directors may condition any amendment on
the approval of stockholders of the Company if such approval is necessary or
advisable with respect to tax, securities or other applicable laws. No such
termination or amendment without the consent of the holder of a Stock Incentive
shall adversely affect the rights of the Participant under such Stock Incentive.
5.9 Stockholder Approval. The Plan shall be submitted to the
stockholders of the Company for their approval within twelve (12) months before
or after its adoption by the Board of Directors. If such approval is not
obtained, any Stock Incentive granted under the Plan shall be void.
5.10 Choice of Law. The laws of the State of Georgia shall govern
the Plan, to the extent not preempted by federal law.
5.11 Effective Date of Plan. The Plan shall become effective upon
the date the Plan is approved by the Board of Directors.
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IN WITNESS WHEREOF, the Company has caused this Plan to be executed
this 23rd day of February, 1998.
SUMMIT BANK CORPORATION
By: /s/ David Yu
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Title: President and CEO
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Attest:
/s/ Gary McClung
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Secretary
[CORPORATE SEAL]
