As filed with the Securities and Exchange Commission on May 11, 2000
REGISTRATION NO.
================================================================================
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
CENTURA BANKS, INC.
(Exact name of registrant as specified in its charter)
NORTH CAROLINA 56-1688522
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
134 North Church Street
Rocky Mount, North Carolina 27804
(252) 454-4400
(Address, including Zip Code, of principal executive offices)
---------------
TRIANGLE BANCORP, INC. 1988 INCENTIVE STOCK OPTION PLAN
TRIANGLE BANCORP, INC. 1988 NON-QUALIFIED STOCK OPTION PLAN
TRIANGLE BANCORP, INC. 1998 OMNIBUS STOCK PLAN
GRANVILLE UNITED BANK 1993 INCENTIVE STOCK OPTION PLAN
GRANVILLE UNITED BANK DIRECTORS STOCK OPTION PLAN
THE VILLAGE BANK INCENTIVE STOCK OPTION PLAN
STANDARD BANK AND TRUST COMPANY 1988 INCENTIVE STOCK OPTION PLAN
STANDARD BANK AND TRUST COMPANY 1988 NON-QUALIFIED STOCK OPTION PLAN
(Full title of the Plans)
---------------
Steven J. Goldstein
Chief Financial Officer
Centura Banks, Inc.
134 North Church Street
Rocky Mount, North Carolina 27804
(252) 454-4400
Copy to:
Joseph A. Smith, Esq.
Thacher Proffitt & Wood
1700 Pennsylvania Avenue, N.W., Suite 800
Washington, DC 20006
(202) 347-8400
(Name and address, including zip code, telephone number and
area code, of agent for service)
---------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===========================================================================================================================
Title of Securities to be Registered Amount to be Proposed Maximum Proposed Maximum Amount of
Registered(1) Offering Price Aggregate Offering Registration Fee
Per Share Price
(2) (2)
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, no par value 671,419 27,821,924.81 41.4375 $7,345.00
===========================================================================================================================
</TABLE>
(1) Based on the total number of shares of common stock of Centura Banks,
Inc.. (the "Company") reserved for issuance upon the exercise of
options granted pursuant to the above named stock options plans assumed
by the Company pursuant to its merger with Triangle Bancorp, Inc. In
addition to such shares, this registration statement also covers an
undetermined number of shares of common stock of the Company that, by
reason of certain events specified in the Plans, may become issuable
upon exercise of options or grant of awards through the application of
certain anti-dilution provisions.
(2) Estimated solely for purpose of calculating the registration fee in
accordance with Rule 457 of the Securities Act of 1933, pursuant to
which a total of 671,419 shares that may be acquired upon exercise of
options granted are deemed to be offered at $41.4375 per share, the
average high/low prices of common stock of the Company on the New York
Stock Exchange at the close of trading on May 8, 2000.
================================================================================
<PAGE>
EXPLANATORY NOTE
This Registration Statement on Form S-8 relates to 671,419 shares of
the Centura Banks, Inc.'s (the "Registrant") common stock, no par value per
share ("Common Stock"). All of the shares of Common Stock are issuable pursuant
to options issued under the stock option plans listed on the cover page of this
Form S-8. Such stock option plans were assumed by the Registrant pursuant to the
Agreement and Plan of Reorganization By and Between Triangle Bancorp, Inc. and
Centura Banks, Inc., dated as of August 22, 1999.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.
Not required to be filed with the Securities and Exchange Commission
(the "Commission").
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Not required to be filed with the Commission.
Note: The documents containing the information specified in this Part I
will be sent or given to employees as specified by Rule 428(b)(1). Such document
need not be filed with the Commission either as part of this registration
statement or as prospectuses or prospectus supplements pursuant to Rule 424.
These documents and the documents incorporated by reference in this registration
statement pursuant to Item 3 of Part II of this form, taken together, constitute
a prospectus that meets the requirements of Section 10(a) of the Securities Act
of 1933, as amended ("Securities Act").
PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents and information heretofore filed with the
Commission by the Registrant (File No. 1-10646) are incorporated by reference in
this registration statement:
(1) the description of the Registrant's Common Stock contained in
the Registrant's Registration Statement filed under Section 12
of the Exchange Act on Form 8-A, including all amendments or
reports filed for the purpose of updating such description;
and
(2) the Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 1999; and
(3) the Registrant's Quarterly Report on Form 10-Q for the quarter
ended March 31, 2000.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Exchange Act after the end of the fiscal year ended December 31,
1999 and prior to the date of the
<PAGE>
termination of the offering of the Common Stock offered hereby shall be deemed
to be incorporated by reference into this registration statement and to be a
part hereof from the date of filing of such documents. Any statement contained
herein 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
document which is or is deemed to be incorporated by reference herein modifies
or supersedes such statement. Any statement so modified or superseded shall not
be deemed, except as so modified or superseded, to constitute a part of this
registration statement.
Centura Banks, Inc. will provide without charge to each person to whom
a Prospectus is delivered, upon request of any such person, a copy of any or all
of the foregoing documents incorporated herein by reference (other than exhibits
to such documents). Written requests should be directed to Steven J. Goldstein,
Chief Financial Officer, Centura Banks, Inc., 134 North Church Street, Rocky
Mount, North Carolina 27804. Telephone requests may be directed to (252)
454-4400.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
To the fullest extent permitted by North Carolina law, the Registrant
may indemnify or purchase and maintain insurance to indemnify any of its
directors, officers, employees or agents and any persons who may serve at the
request of the Registrant as directors, officers, employees, trustees or agents
of any other corporation, firm, association, national banking association,
state-chartered bank, trust company, business trust, organization or any other
type of entity whether or not the Registrant shall have any ownership interest
in such entity. Such indemnification(s) may be provided for in the Bylaws, or by
resolution of the board of directors or by appropriate contract with the person
involved.
Article IX, Section 4 of the Registrant's Amended and Restated Bylaws
provides as follows:
SECTION 4. INDEMNIFICATION:
(a) Any person who at any time serves or has served as a director or
officer of the Corporation, or at the request of the Corporation is or was
serving as an officer, director, agent, partner, trustee, administrator, member,
manager or employee for any other foreign or domestic corporation, partnership,
joint venture, trust, employee benefit plan, limited liability company or other
enterprise, shall be indemnified by the Corporation to the fullest extent from
time to time permitted by law in the event he is made, or is threatened to be
made, a party to any threatened, pending or completed civil, criminal,
administrative, investigative or arbitrative action, suit or proceeding and any
appeal therein (and any inquiry or investigation that could lead to such action,
suit or proceeding), whether or not brought by or on behalf of the Corporation,
seeking to hold him liable by reason of the fact that he is or was acting in
such capacity. In addition, the board may provide such indemnification for the
employees and agents of the Corporation as it deems appropriate.
-2-
<PAGE>
(b) The rights of those receiving indemnification hereunder shall, to
the fullest extent from time to time permitted by law, cover (i) reasonable
expenses, including without limitation all attorney's fees actually and
necessarily incurred by him in connection with any such action, suit or
proceeding; (ii) all reasonable payments made by him in satisfaction of any
judgment, money decree, fine (including an excise tax assessed with respect to
an employee benefit plan), penalty, or settlement for which he may have become
liable in such action, suit or proceeding; and (iii) all reasonable expenses
incurred in enforcing the indemnification rights provided herein.
(c) Expenses incurred by anyone entitled to receive indemnification
under this section in defending a proceeding may be paid by the Corporation in
advance of the final disposition of such proceeding as authorized by the board
of directors in the specific case or as authorized or required under any
provisions in the bylaws or by any applicable resolution or contract upon
receipt of an undertaking by or on behalf of the director to repay such amount
unless it shall ultimately be determined that he is entitled to be indemnified
by the corporation against such expenses.
(d) The board of directors of the Corporation shall take all such
action as may be necessary and appropriate to authorize the Corporation to pay
the indemnification required by this bylaw, including without limitation, to the
extent needed, making a good faith evaluation of the manner in which the
claimant for indemnity acted and of the reasonable amount of indemnity due him.
(e) Any person who at any time serves or has served in any of the
aforesaid capacities for or on behalf of the corporation shall be deemed to be
doing or to have done so in reliance upon, and as consideration for, the right
of indemnification provided herein. Any repeal or modification of these
indemnification provisions shall not affect any rights or obligations existing
at the time of such repeal or modification. The rights provided for herein shall
inure to the benefit of the legal representatives of any such person and shall
not be exclusive of any other rights to which such person may be entitled apart
from the provisions of this bylaw.
(f) The rights granted herein shall not be limited by any provisions
contained in the Act, unless such limitations are required by law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
5.1 Opinion of Thacher Proffitt & Wood, special counsel for
Registrant, as to the legality of the securities being
registered
10.39 Triangle Bancorp, Inc. 1988 Incentive Stock Option Plan
10.40 Triangle Bancorp, Inc. 1988 Non-Qualified Stock Option Plan
10.41 Triangle Bancorp, Inc. 1998 Omnibus Stock Plan
10.42 Granville United Bank 1993 Incentive Stock Option Plan
10.43 Granville United Bank Directors Stock Option Plan
10.44 The Village Bank Incentive Stock Option Plan
10.45 Standard Bank and Trust Company 1988 Incentive Stock Option
Plan
10.46 Standard Bank and Trust Company 1988 Non-Qualified Stock
Option Plan
23.1 Consent of Thacher Proffitt & Wood (included in Exhibit 5.1
hereof).
23.2 Consent of KPMG LLP
23.3 Consent of PricewaterhouseCoopers LLP
-3-
<PAGE>
ITEM 9. UNDERTAKINGS.
1. Rule 415 offering. The undersigned Registrant hereby undertakes:
a. To file, during any period in which offers or sales
are being made, a post-effective amendment to this
registration statement:
i. To include any prospectus required by
Section 10(a)(3) of the Securities Act;
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; and
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 15(d) of the Exchange Act that are incorporated by
reference in the registration statement.
b. That, for the purpose of determining liability under
the Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial BONA
FIDE offering thereof.
c. 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.
2. Filings incorporating subsequent Exchange Act documents by reference.
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 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.
3. Incorporated annual and quarterly reports. The undersigned registrant
hereby undertakes to deliver or cause to be delivered with the
prospectus, to each person to whom the prospectus is sent or given, the
latest annual report to security holders that is incorporated by
reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange
Act of 1934; and, where interim financial information required to be
presented by Article 3 of Regulation S-X is not set forth in the
prospectus, to deliver, or cause to be delivered to each person to whom
the prospectus is sent or given, the latest quarterly report that is
specifically incorporated by reference in the prospectus to provide
such interim financial information.
-4-
<PAGE>
4. Filing of registration on Form S-8. 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 for
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.
-5-
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Rocky Mount, State of North Carolina, on this 19th
day of April, 2000.
CENTURA BANKS, INC.
(Registrant)
By: /s/ Michael S. Patterson
---------------------------
Michael S. Patterson
Chairman of the Board, Director
By: /s/ Steven J. Goldstein
----------------------------
Steven J. Goldstein
Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Michael S. Patterson Chairman of the Board, Director April 19, 2000
- ------------------------------------
Michael S. Patterson
/s/ Cecil W. Sewell, Jr. Chief Executive Officer, Director April 19, 2000
- --------------------------------------------
Cecil W. Sewell, Jr.
/s/ Richard H. Barnhardt Director April 19, 2000
- ------------------------------------
Richard H. Barnhardt
/s/ Thomas A. Betts, Jr. Director April 19, 2000
- ------------------------------------
Thomas A. Betts, Jr.
/s/ H. Tate Bowers Director April 19, 2000
- --------------------------------------------
H. Tate Bowers
/s/ David T. Clancy Director April 19, 2000
- --------------------------------------------
David T. Clancy
/s/ Ernest L. Evans Director April 19, 2000
- --------------------------------------------
Ernest L. Evans
/s/ Bernard W. Franklin Director April 19, 2000
- ------------------------------------
Bernard W. Franklin
/s/ W. Carol Fulghum Principal Accounting Officer April 19, 2000
- --------------------------------------------
W. Carol Fulghum
/s/ Susan E. Gravely Director April 19, 2000
- --------------------------------------------
Susan E. Gravely
/s/ Robert L. Guthrie Director April 19, 2000
- --------------------------------------------
Robert L. Guthrie
/s/ John H. High Director April 19, 2000
- ------------------------------------
John H. High
</TABLE>
-6-
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Robert L. Hubbard Director April 19, 2000
- --------------------------------------------
Robert L. Hubbard
/s/ William H. Kincheloe Director April 19, 2000
- ------------------------------------
William H. Kincheloe
/s/ Charles T. Lane Director April 19, 2000
- --------------------------------------------
Charles T. Lane
/s/ Wendell H. Murphy Director April 19, 2000
- ------------------------------------
Wendell H. Murphy
/s/ Joseph H. Nelson Director April 19, 2000
- --------------------------------------------
Joseph H. Nelson
/s/ Dean E. Painter, Jr. Director April 19, 2000
- --------------------------------------------
Dean E. Painter, Jr.
/s/ O. Tracy Parks, III Director April 19, 2000
- --------------------------------------------
O. Tracy Parks, III
/s/ Frank L. Pattilo Director, Vice Chairman April 19, 2000
- --------------------------------------------
Frank L. Pattilo
/s/ Patrick H. Pope Director April 19, 2000
- --------------------------------------------
Patrick H. Pope
/s/ William H. Redding, Jr. Director April 19, 2000
- --------------------------------------------
William H. Redding, Jr.
/s/ Charles M. Reeves, III Director April 19, 2000
- --------------------------------------------
Charles M. Reeves, III
/s/ George T. Stronach, III Director April 19, 2000
- --------------------------------------------
George T. Stronach, III
/s/ Alexander P. Thorpe, III Director April 19, 2000
- --------------------------------------------
Alexander P. Thorpe, III
/s/ Sydnor M. White Director, President April 19, 2000
- --------------------------------------------
Sydnor M. White
/s/ William H. Wilkerson Director April 19, 2000
- --------------------------------------------
William H. Wilkerson
/s/ Charles P. Wilkins Director April 19, 2000
- --------------------------------------------
Charles P. Wilkins
/s/ J. Blount Williams Director April 19, 2000
- --------------------------------------------
J. Blount Williams
</TABLE>
-7-
May 11, 2000
Centura Banks, Inc.
134 North Church Street
Rocky Mount, North Carolina 27804
Re: 671,419 Shares of Common Stock, No Par Value Per Share
of Centura Banks, Inc., a North Carolina Corporation
----------------------------------------------------
Ladies and Gentlemen:
We have acted as special counsel for Centura Banks, Inc., a
corporation organized and existing under the laws of the State of North Carolina
(the "Corporation"), in connection with the filing of a registration statement
on Form S-8 under the Securities Act of 1933, as amended ("Registration
Statement") with respect to 671,419 shares of its common stock, no par value per
share ("Shares"), to be issued to participants in the Triangle Bancorp, Inc.
1988 Incentive Stock Option Plan, Triangle Bancorp, Inc. 1988 Non-Qualified
Stock Option Plan, Triangle Bancorp, Inc. 1998 Omnibus Stock Plan, Granville
United Bank 1993 Incentive Stock Option Plan, Granville United Bank Directors
Stock Option Plan, The Village Bank Incentive Stock Option Plan, Standard Bank
and Trust Company 1988 Incentive Stock Option Plan and the Standard Bank and
Trust Company 1988 Non-Qualified Stock Option Plan (collectively, the "Plans").
The Plans were assumed by the Corporation pursuant to an Agreement and Plan of
Reorganization By and Between Triangle Bancorp, Inc. and Centura Banks, Inc.,
dated as of August 22, 1999. In rendering the opinion set forth below, we do not
express any opinion concerning law other than the laws of the State of North
Carolina and the federal securities laws.
We have examined originals or copies, certified or otherwise
identified, of such documents, corporate records and other instruments as we
have deemed necessary or advisable for purposes of this opinion. As to matters
of fact, we have examined and relied upon the Plans and, where we have deemed
appropriate, representations or certificates of officers of the Corporation or
public officials. We have assumed the authenticity of all documents submitted to
us as originals, the genuineness of all signatures, the legal capacity of
natural persons and the conformity to the originals of all documents submitted
to us as copies.
<PAGE>
Centura Banks, Inc.
May 11, 2000 Page 2.
Based on the foregoing, we are of the opinion that the Shares
which are being registered pursuant to the Registration Statement have been duly
authorized and, when issued and paid for in accordance with the terms of the
Plans, such Shares will be validly issued, fully paid and non-assessable.
This opinion is limited to the laws of the State of North
Carolina of the United States of America.
This opinion is given solely for the benefit of the Corporation
and purchasers of Shares, and no other person or entity is entitled to rely
hereon without express written consent.
We hereby consent to the filing of this opinion as an exhibit to
the Registration Statement.
Very truly yours,
Thacher Proffitt & Wood
By: /s/ Joseph A. Smith, Jr.
---------------------------
Joseph A. Smith, Jr.
TRIANGLE BANCORP, INC.
1988 INCENTIVE STOCK OPTION PLAN
Triangle Bancorp, Inc., a bank holding company organized and existing under the
laws of the State of North Carolina (herein referred to as the "Company"),
hereby adopts the following Stock Option Plan (the "Plan") for certain
individuals performing services for the Company or any of its subsidiaries.
1. Purpose. This Plan is intended to advance the interests of the
Company by allowing officers and other key employees of the Company or any of
its subsidiaries who have substantial responsibility for the direction and
management of the Company or any of its subsidiaries to acquire a proprietary
interest in the Company as an additional incentive to promote the Company's
success, and by encouraging such individuals to continue to provide their
services to the Company or any of its subsidiaries. These aims will be
effectuated by the granting of ceftin stock options issued under the Plan and
designated by file Committee (defined hereinafter) pursuant to Section 3(b)
hereof will qualify as Incentive Stock Options (hereinafter called "ISO's").
Under Section 422A of the Internal Revenue Code of 1986, as amended (the
"Code"), and the terms of the Plan shall be interpreted in accordance with this
intention. Options granted under this Plan are referred to hereinafter as
"Options".
2. Plan. The Plan shall be administered by the Compensation Committee
(the "Committee") of the Board of Directors ("the Board") of the Company, which
shall consist of not less than three members. Subject to the provisions of the
Plan, the Committee shall have full authority, in its description, to (a)
determine the employees (from the class of employees eligible under Section 3
hereof to receive Options under the Plan) to whom Options shall be granted; (b)
determine the time or times at which Options shall be granted; (c) determine
tile option price of the shams subject to each Option, which price shall be not
less than the minimum specified in accordance with Section 5 hereof; (dj
determine (subject to Sections 7 and 9 hereof) the time or times when each
Option shall become exercisable and the duration of the exercise; and (e)
interpret the Plan and prescribe, ranend, and rescind rules and regulations
relating to it. The interpretation and construction of any provision of the Plan
by the Committee shall be final and conclusive. The Committee may consult with
counsel and other professional advisors, who may be counsel or advisors to the
Company, and shall not incur any liability for any action taken in good faith in
reliance upon the advice of such counsel or advisors.
3. Eligibility. (a) Options may be granted by the Committee only to
persons who are officers or other key employees of the Company or a subsidiary
of the Company who perform services of major importance in the management,
operation, and development of the business of the Company or of any subsidiary
of the Company, and the Committee
<PAGE>
shall determine the number of shares to be allocated to each Option. In
determining the eligibility of an employee to receive an Option as well as in
determining the number of shares to be optioned to any individual, the Committee
shall consider the position and responsibilities of the individual being
considered, the nature and value to the Company of such individual's services
and accomplishments, the person's present and potential contributions to the
success of the Company, and such other factors as the Committee may deem
relevant. A person receiving an Option pursuant to this Plau shall sometimes be
referred to hereinafter as an "Optionee".
(b) At the time each Option is granted to an employee under this Plan,
the Committee shall determine whether such Option is to be designated as an ISO.
No Option granted to any employee who at the time of such grant owns stock
possessing more than 10% of the total combined voting power of all classes of
stock of the Company or any of its subsidiaries may be designated as an ISO,
unless at the time of such grant the option price is fixed at not less than 110%
of the fair market value of the Shares (defined hereinafter) subject to the
Option, and exercise of such Option is prohibited by its terms after the
expiration of five years from the date such Option is to the Plan. There will be
reserved for use upon the exercise of Options to be granted from time to time
under the Plan (subject granted.
(c) No individual ~haU be given tile uppmtuuity undm this Plait to
exclcise Options for Shares valued (at the time of the granting of the Option)
in excess of $100,000 in any calendar year, unless and except to the extent that
said Options shall have first become exercisable in a preceding year. No Option
shall be granted hereunder for the purchase of Shares in such a manner as would
cause the foregoing restriction to be violated.
4. Shares of Stock Subject to the provisions of Section 6 hereof) an
aggregate of 860.244 Shares of the no pax value common stock (the "Shares") of
the Company, which, as the Committee shall from time to time determine, may be
in whole or in part either authorized but unissued Shares, or issued Shares
which sha~.l have been reacquired by the Company. Any Shares subject to an
Option under the Plan, which Option for any reason expires or is terminated
unexercised as to such Shares, may again be subjected to an Option under the
Plan.
5. Option Price. The purchase Price under each Option issued shall be
determined by the Committee at the time the Option is granted, but in no event
shall such purchase price be less than 100% (110%, in the case of an ISO granted
to an employee described in Section 3 (b) hereof) of the fair market value of
the Company's Shares on the date of the grant. If the shares are traded in the
over-the-counter market, such fair market value shall be deemed to be the mean
between the asked and the bid prices on such day as reported by NASDAQ. If the
stock is traded on an exchange, such fair market value shall be deemed to be the
mean of the high and low prices at which it is quoted or traded on such day on
the exchange on which it generally has the greatest trading volume. In all
cases, any determination hereunder by the Committee as to the fair market value
of the
<PAGE>
Shares for which Options are granted shall be made in good faith and shall be
determinative t~r all purposes of this Plan.
6. Adjustment for Dilution, Etc. In the event that there is (a) a
subdivision or consolidation of the Company's common stock or any other capital
adjustment of the Company's common stock, (b) the payment by the Company, of a
stock dividend, or (c) any other increase or decrease in the outstanding common
stock of the Company effected without receipt of consideration by the Company,
then the number of Shares then covered by each outstanding Option granted
hereunder shall be adjusted proportionately with no adjustment in the total
purchase price of the Shares then so covered by such Option, and the number of
Shares reserved for the purpose of the Plan shall be adjusted by the same
proportion. All such adjustments shall be made by the Committee, whose
determination upon the same shall be final and binding upon the Optionees. No
fractional Shares shall be issued and any fractional Shares resulting from the
computations pursuant to this Section 6 shall be eliminated from the respective
Option. No adjustment shall be made for cash dividends or the issuance to
stockholders of rights to subscribe for additional Shares or other securities.
7. Duration and Exercise of Options. (a) All Options issued under the
Plan shall be for such period as the Committee shall determine, but for not more
than ten years (five years, in the case of any employee described in Section
3(b) hereof) from the date of the grant thereof. The period of the Option, once
it is granted, may be reduced only as outlined in Section 9 hereof; provided,
however, that the Committee may, where the Company is involved in a merger,
consolidation, dissolution, or liquidation, accelerate the expiration date and
the dates on which any part of the Option may be exercisable for all the Shares
covered thereby, but the effectiveness of such acceleration, and the exercise of
the Option pursuant thereto in excess of the number of Shares for which it would
have been exercisable in the absence of such acceleration, shall be conditioned
upon the consummation of the merger, consolidation, dissolution, or liquidation.
Except as provided in Section 9 or subsection (b) below, no Option may be
exercised after termination of the Optionee's employment with the Company, and
in no event may an Option be exercised after the expiration of its term.
(b) Except as otherwise modified by the Committee, or as otherwise
expressly provided for herein, Options granted under this Plan shall become
exercisable as they vest in accordance with this Section 7. An employee may,
within three months after termination of his employment, exercise his option
with respect to the vested portion of the Shares subject to the Option,
determined in accordance with and based on the whole number of years of the
Optionee's continued employment with the Company or any subsidiary of the
Company from the date the Option is granted through the date of Optionee%
termination of employment, determined in accordance with the ibllowing schedule:
<PAGE>
Years of Percentage of
Continued Employment Shares Vested
1 33.33%
2 33.33%
3 33.33%
In the event an Optionee terminates employment within the three-year period
described above, all Shares not vested in accordance with the Schedule described
above shall be forfeited, and the Optionee shall have no right to exercise his
Option with respect to any such forfeited Shares. In each case, such limitations
shall be calculated, in the case of any resulting fraction, to the nearest low
whole number of Shares. Notwithstanding the foregoing, the Committee may, in its
sole discretion, (i) prescribe longer time periods and additional requirements
with respect to the exercise of an Option, (ii) different vesting schedules with
respect to any Option, and (iii) terminate in whole or in part such portion of
any Option as has not yet become exercisable at the time of termination of it
determines that the Optionee is not performing satisfactorily the duties to
which he was assigned on the date the Option was granted or duties of at least
equal responsibility. Except as provided herein or in Section 9 hereof, no
Option may be exercised unless the Optionee is at the time of such exercise in
the employ of the Company or of a subsidiary of the Company, and shall have been
continuously so employed since the grant of his Option. Absence or leave
approved by the management of the Company shall not be considered an
interruption of employment for any purpose under the Plan.
(c) Subject to limitations contained herein as to the time for exercise
of an Option and the amount of Shares subject to such Option, and
notwithstanding subsection (b) above, each Option shall be exercisable in whole
or in part or in installments at such time or times and in such manner as the
Committee may prescribe and specify in granting the Option to the Optionee,
which manner may differ from the exercise periods otherwise prescribed in
subsection (b) above. No Shares shall be delivered pursuant to any exercise of
an Option until the requirements of such laws and regulations as may be deemed
by the Committee to be applicable to them have been satisfied, and further until
receipt by the Company of the full option price in cash for the Shares for which
an Option is exercised. In order to facilitate the accumulation of funds to
enable employees to exercise their Options, each Optionee shall have the right,
if he or she so elects, to direct the Company or subsidiary of the Company to
withhold from his or her compensation regular amounts to be applied toward the
exercise of the Options. Funds credited to the Stock Option accounts will be
under the control of the Company until applied to the payment of the option
price at the direction of the employee or returned to the employee in the event
the amount is not used for purchase of Shares under Option, and all funds
received or held by the Company under the Plan may be used for any corporate
purpose, and no interest shall be payable to the participant on account of any
amounts so held. Such amounts may be withdrawn by the employee at any time, in
whole or in part, for any reason.
<PAGE>
(d) No Optionee or his legal representative, legatees, or distributees,
as the case may be, will be, or will be deemed to be, a holder of any Shares
subject to an Option unless and until certificates for such Shares are issued to
him or them under the terms of the Plan. Except as otherwise provided herein, no
adjustment shall be made for dividends or other rights for which the record date
is prior to the date such stock certificate is issued.
(e) Notwithstanding the provisions of subsection 7(c), (i) the exercise
price of the Shares subject to the Option may be paid, at the discretion of the
Board, by the tender of Shares already owned by the Optionee, or through a
combination of cash and Shares, or through such other means that the Board
determines are consistent with the Plan's purpose and applicable law. No
fractional Shares will be issued or accepted;
(ii) the exercise price of the Shares subject to the Option
may be paid, at the discretion of the Board, on a "cashless" basis, by delivery
to the Company or its designated agent of an irrevocable written notice of
exercise form together with irrevocable instructions to a broker-dealer to sell
or margin a sufficient portion of the shares of stock and deliver the sale or
margin loans proceeds directly to the Company to pay the exercise price; and
(iii) with respect to the number of Shares under an Option
which exceed the $100,000 annual vesting limit referred to in subsection 3(c) or
which otherwise, through no decision of the Optionee, do not qualify as ISO
Shares, receipt of those Shares otherwise issuable by the Company upon exercise
of an Option by an Optionee may by deferred under a program of delayed receipt
adopted by the Board, which program shall contain such rules governing
eligibility to participate, timing of elections to defer, forms of distribution
of Shares and the like as the Board shall determine.
8. '~ Each Option granted under this Plan shall be transferable only by
will or by the laws of descent and distribution and shall be exercisable, during
an Optionee's lifetime, only by the Optionee to whom the Option is granted.
Except as permitted by the preceding sentence, no Option granted under the Plan
or any of the rights and privileges thereby conferred shall be transferred,
assigned, pledged, or hypothecated in any way (whether by operation of law or
otherwise), and no such Option, right, or privilege shall be subject to
execution, attachment, or similar process. Upon any attempt so to transfer,
assign, pledge, hypothecate, or otherwise dispose of the Option or any right or
privilege conferred thereby, contrary to the provisions hereof, or upon the levy
of any attachment or similar process upon such Option, right, or privilege, the
Option and such rights and privileges shall immediately become null and void.
9. Effect of Termination of Employment. Death. or Disability. (a)
Notwithstanding anything in this Plan to the contrary, in the event an
Optionee's employment shall be terminated by reason of the Optionee's retirement
at his Retirement Date (defined hereinafter), the Optionee shall have the right
to exercise such Option or Options held by him, to the extent that such Options
have not previously expired or been
<PAGE>
exercised, at any time within three months after such retirement; upon such
retirement, all Options held by such Optionee which have not been theretofore
exercised by him or otherwise expired shall be immediately exercisable in full,
notwithstanding Section 7(b) or (c) hereof.
(b) In the event that an Optionee shall die while employed by the
Company or any subsidiary of the Company, or shall die within three months after
retirement on or after his Retirement Date, any Option or Options granted to him
under this Plan which have not previously expired or been exercised shall be
exercisable by the estate of the Optionee (or by any person who acquired such
Option by bequest or inheritance from the Optionee) in full notwithstanding
Section 7(b) or (c) hereof, any time within one year after the death of the
Optionee. Retkrences herein to the Optionee shall be deemed to include any
person entitled to exercise the Option after the death of the Optionee under the
terms of this Section 9(b).
(c) In the event of an Optionee's termination of employment by reason
of the Optionee's disability, the Optionee shall have the right, notwithstanding
Section 7(b) or (c) hereof, to exercise all Options held by him to the extent
that such Options have not previously expired or been exercised, at any time
within one year after such termination; upon such disability, all Options held
by such Optionee which have not been theretofore exercised by him or otherwise
expired shall be immediately exercisable in full, notwithstanding Section 7(b)
or (c) hereof. The term "disability" shall, for the purposes of this Plan, be
defined in the same manner as such term is defined in Section 105(d)(4) of the
Code.
(d) For the purposes of this Plan, "Retirement Date" shall mean, any
date an employee is otherwise entitled to retire under any of the Company's or
its subsidiaries' retirement plans, or if no such retirement plans exist, then
the date on which the Optionee attains age 65.
10. Listing and Registration of Shares. Each Option shall be subject to
the requirement that if at any time the Committee shall determine, in its
description, that the listing, registration, or qualification of the Shares
covered thereby upon any securities exchange or any state or federal law, or the
consent or approval of any governmental regulatory body, is necessary or
desirable as a condition of, or in connection with, the granting of such Option
or the issue or purchase of Shares thereunder, such Option may not be exercised
in whole or in part unless and until such listing, registration, qualification,
consent, or approval shall have been effected or basined free of any conditions
not acceptable to the Committee. The Company shall not be required to issue or
deliver any certificate for Shares of its stock purchased upon the exercise of
any part of an Option before (i) the admission of such Shares to listing on any
stock exchange in which the stock of the Company may then be listed, (ii)
completion of any registration or other qualification of such govenmmntal
regulatory body that the Company shall, in its sole discretion, determine is
necessary or advisable, and (iii) the Committee shall have
<PAGE>
been advised by counsel that all applicable legal requirements have been
complied with and satisfied.
11. Expiration and Termination of the Plan. Options may be granted
under the Plan at any time or from time to time so long as the total number of
Shares at any onc time optioned and/or purchased under this Plan does not exceed
460,244 Shares. The Plan may be abandoned or terminated at any time by the Board
except with respect to any Options then outstanding under the Plan. No Option
shall be granted pursuant to the Plan after ten years from effective date of the
Plan.
12. Amendment of Plan. The Board may at any time and from time to time
modify and amend the Plan (including the form of any option agreement to be
executed pursuant hereto) in any respects; provided, however, that no such
amendment shall: (a) increase (except in accordance with Section 6 hereof) the
maximum number of Shares for which Options may be granted under the Plan either
in the aggregate or to any individual; (b) reduce (except in accordance with
Section 6 hereof) the minimum option prices which may be established under the
Plan; (c) extend the period or periods during which Options may be granted or
exercised; (d) change the provisions relating to the determination of
individuals to whom Options shall be granted and the number of Shares to be
covered by such Options; or (e) change the provisions relating to adjustments to
be made upon changes in capitalization. The termination or any modification or
amendment of the Plan shall not, without the consent if the Optionee, affect
such Optionee's rights under an Option theretofore granted to him.
13. Applicability- of Plan to Outstanding Stock Optiolls. This Plan
shall not affect the terms and conditions of any non-qualified stock options
heretofore granted to any individual by the Company or any of its predecessors
under any other plan or agreement relating to non-qualified stock options, nor
shall it affect any of the rights of any individual to whom such a non-qualified
stock option was granted.
14. iv Date f Plan. This Plan shall become effective upon adoption by
the Board, subject to approval by the shareholders of the Company (or any of its
predecessors). This Plan shall not become effective unless such shareholder
approval shall be obtained within twelve months before or after the adoption of
the Plan by the Board.
15. Changt~ Control. In the event of a "change in control of the
Company, any option granted hereunder shall be deemed to be fully vested and
inunediately exercisable, entitling the Optionee to immediately exercise the
Option in full and to purchase, prior to the effective date of any "change in
control", the full number of Shares subject to such option which he or she
otherwise would have been entitled to purchase during the remaining term of such
option. The Committee shall give each Optionee at least thirty (3) days prior
written notice of any event giving rise to an immediate purchase right under
this Section 15.
<PAGE>
For purposes of this Section 15, the phrase "change-in-control means (1) any
"person" (as defined in Sections 13(d) and 14 (d) of the Securities Exchange Act
of t934 (the "Exchange Act") becoming the "beneficial owner" (as defined in Rule
13d-3 under the Exchange Act), directly or indirectly, of securities of the
Company representing twenty percent (20%) or more of the Company's outstanding
securities having the right to vote at the election of directors, or (ii) during
any period of two (2) consecutive years, a change in the majority of the Board
of Directors unless the election of each new Director was approved by at least
two-thirds of the Directors then still in office who are Directors at the
beginning of such two (2) year period ", or (iii) a merger, consolidation or
sale of all or substantially all of the assets of the Company in which the
Company is not the surviving institution, or (iv) the distribution of a proxy
statement soliciting proxies from shareholders of the Company by someone other
than the current management of the company, seeking shareholder approval of a
plan of reorganization, merger or consolidation of, the Company or similar
transaction with one or more corporations as result of which the outstanding
shares of the class of securities then subject to the plan of reorganization are
exchanged for or converted into cash or property or securities not issued by the
Company, or (v) a tender offer is made for twenty percent (20%) or more of the
voting securities of the Company.
* As amended by the Board of Directors on November 18, 1997.
* As amended by the Board of Directors on August 19, 1997.
* As amended by the Board of Directors on February 23, 1995.
* As amended by the Shareholders on May 23, 1995
* As amended By the Board of Directors Compensation Committee on January 25,
1994.
* As amended by the Shareholders as of December 16, 1993.
TRIANGLE BANCORP, INC.
1988 NON-QUALIFIED STOCK OPTION PLAN
Triangle Bancorp, Inc. a bank holding company existing under the laws
of the State of North Carolina (herein referred to as "Company"), hereby adopts
the following Non-Qualified Stock Option Plan (the "Plan") for the directors,
local directors, and other individuals performing services for the Company or
any of its subsidiaries.
1. Purpose. This Plan is intended to advance the interests of the
Company by allowing directors, local board members, officers, and employees of
the Company or any of its subsidiaries, who have substantial responsibility for
the direction and management of the Company or any of its subsidiaries to
acquire a proprietary interest in the Company as an additional incentive to
promote the Company's success, and by encouraging such individuals to continue
to provide their services to the Company or any of its subsidiaries. These aims
will be effectuated by the granting of certain non-statutory, non-qualified
stock options. Options granted under this Plan are referred to hereinafter as
"Options."
2- Plan. The Plan shall be administered by the Compensation Committee
(the "Committee") of the Board of Directors ("the Board") of the Company.
Subject to the provisions of the Plan, the Committee shall have full authority,
in its description, to (a) determine the individuals (from the class of
individuals eligible under Section 3 hereof to receive Options under the Plan)
to whom Options shall be granted; (b) determine the time or times at which
Options shall be granted; (c) determine the option price of the shares subject
to each Option, which price shall be not less than the minimum specified in
accordance with Section 5 hereof; (d) determine (subject to Sections 7 and 9
hereof) the time or times when each Option shall become exercisable and the
duration of the exercise; and (e) interpret the Plan and prescribe, amend, and
rescind rules and regulations relating to it. The interpretation and
construction of any provision of the Plan by the Committee shall be final and
conclusive. The Committee may consult with counsel and other professional
advisors, who may be counsel or advisors to the Company, and shall not incur any
liability for any action taken in good faith in reliance upon the advice of such
counsel or advisors.
3. Eligibility-. (a) Options may be granted only to members of the
Board, members of the boards of directors or local boards of directors, or
officers or full-time employees of the Company or any of its subsidiaries. In
determining the eligibility of an individual to receive an Option as well as in
determining the number of shares to be optioned to any individual, the Committee
shall consider the position and responsibilities of the individual being
considered, the nature and value to the Company of such individual's services
and accomplishments, the person's present and potential contributions to the
success of the Company and such other factors as the Committee may deem
relevant. A person receiving an Option pursuant to this Plan shall sometimes be
referred to hereinafter as an "Optionee."
(b) Members of the Committee shall be entitled to receive Options under
the Plan to the same extent as other members of the Board. However, any grant of
an Option to a member of the Committee must be approved by a disinterested
majority of the remaining members of the Committee; such member must be excused
from any consideration of a grant of such Option and shall not participate in
any manner in such decision.
<PAGE>
4. Shares of Stock Subject to the Plan. There will be reserved for use
upon the exercise of Options to be granted from time to time under the Plan
(subject to the provisions of the provisions of Section 6 hereof) an aggregate
of 388.002 as the Committee shall from time to time determine, may be in whole
or in part either authorized but unissued Shares, or issued Shares which shall
have been reacquired by the Company. Any Shares subject to an Option under the
Plan, which Option for any reason expires or is terminated unexercised as to
such Shares, may again be subjected to an Option under the Plan.
5. Option Price. The purchase price under each Option issued shall be
determined by the Committee at the time the Option is granted, but in no event
shall such purchase price be less then 100% of the tair market value of the
Company's Shares on the date of the grant. If the shares are traded in the
over-the-counter market, such fair market value shall be deemed to be the mean
between the asked and the bid prices on such day as reported by NASDAQ. If the
stock is traded on an exchange, such fair market value shall be deemed to be the
mean of the high and low prices at which it generally has the greatest trading
volume. In all cases, any determination hereunder by the Committee as to the
fair market value of the Shares for which Options are granted shall be made in
good faith and shall be determinative for all purposes of this Plan.
6. Adjustment for Dilution, Etc. In the event that there is (a) a
subdivision or consolidation of the Company's common stock or any other capital
adjustment of the Company's common stock, (b) the payment by the Company of a
stock dividend, or (c) any other increase or decrease in the outstanding common
stock of the Company effected without receipt of consideration by the Company,
theil the number of Shares then covered by each outstanding Option granted
hereunder shall be adjusted proportionately with no adjustment in the total
purchase price of the Shares then so covered by such Option, and the number of
Shares reserved for the purpose of the Plan shall be adjusted by the same
proportion. All such adjustments shall be made by the Committee, whose
determination upon the same shall be final and binding upon tile Optionees. No
fractional Shares shall be issued and any fractional Shares resulting from the
computation pursuant to the Section 6 shall be eliminated from the respective
Option. No adjustment shall be made for cash dividends or the issuance to
stockholders of rights to subscribe for additional Shares or other securities.
7. Duration and Exercise of Options. (a) All Options issued under the
Plan shall be for such period as the Board shall determine, but for not more the
ten years from the date of the grant thereof. The period of the Option, once it
is granted, may be reduced only as outlined in Section 9 hereof; provided,
however, that the Committee may, where the Company is involved in a merger,
consolidation, dissolution, or liquidation, accelerate the expiration date and
the dates on which any part of the Option may be exercisable for all the Shares
covered thereby, but the effectiveness of such acceleration, and exercise of the
Option pursuant thereto in excess of the number of Shares for which it would
have been exercisable in the absence of such acceleration, shall be conditioned
upon the consummation of file merger, consolidation, dissolution, or
liquidation. In no event may an Option be exercised after the expiration of its
term.
(b) Except as otherwise modified by the Committee or as otherwise
expressly provided herein, Options granted under this Plan shall become
exercisable as they vest in accordance with this Section 7. An Optionee shall be
entitled to exercise the Option only as to the vested portion of the Shares
subject to the Option, determined in accordance with and based on the whole
number of years of the Optionee's continued service with the Company or any
subsidiary of the Company in said capacity from the date the Option is
<PAGE>
granled through the date of termination of such services, determined in
accordance with the following schedule:
Years of Vested Percentage
Continued Service of Shares
1 33.33%
2 33.33%
3 33.33%
Any Shares not vested in accordance with the chart described hereinabove shall
be forfeited upon the termination of Optionee's services for the Company or any
subsidiary of the Company in'one of the capacities indicated in Section 3(a)
hereof, and the Optionee shall have no right to exercise any Options with
respect thereto. In each such case, such limitations shall be calculated, in the
case of any resulting fraction, to the nearest low whole number of Shares. Upon
the termination of an Optionee's services for the Company or any subsidiary of
the Company in one of the capacities indicated in Section 3(a) hereof, any
vested Option or Options granted to him under this Plan which have not
previously expired or been exercised shall be exercisable by the Opfionee any
time within one year after such termination.
(c) Subject to limitations contained herein as to the time for exercise
of an Option and the amount of Shares subject to such Option, and
notwithstanding subsection (b) above, each Option shall be exercisable in whole
or in part or in installments at such time or times and in such manner as the
Committee may prescribe and ~p~cify itl g~m~ting thc Option to the Optionee,
which manner may differ from the exercise periods otherwise prescribed in
subsection (b) above. No Shares shall be delivered pursuant to any exercise of
an Option until the requirements of such laws and regulations as may be deemed
by the Committee to be applicable to them have been satisfied, and further until
receipt by the Company of the full option price in cash for the Shares for which
an Option is exercised.
(d) No Optionee or his legal representative, legatees, or distributees,
as the case may be, will be, or will be deemed to be, a holder of any Shares
subject to an Option unless and until certificates for such Shares are issued to
him or them under the terms of the plan. Except as otherwise provided herein, no
adjustment shall be made for dividends or other rights for which the record date
is prior to the date such stock certificate is issued.
(e) (i) The exercise price of the Shares subject to the Option may be
paid in cash or, at the discretion of the Board, may also be paid by the tender
of Shares already owned by the Optionee, or through a combination of cash and
Shares, or through such other means that the Board determines are consistent
with the Plan's purpose and applicable law. No fractional Shares will be issued
or accepted.
(ii) The exercise price of the Shares subject to the Option
may be paid, at the discretion of the Board, on a "cashless" basis, by delivery
to the Company or its designated agent of an irrevocable written notice of
exercise form together with irrevocable instructions to a broker-dealer to sell
or margin a sufficient portion of the shares of stock and deliver the sale or
margin loan proceeds directly to the Company to pay the exercise price.
<PAGE>
(iii) Receipt of Shares otherwise issuable by the Company upon
exercise of an option by an Optionee may be deferred under a program of delayed
receipt adopted by the Board, which program shall contain such rules governing
eligibility to participate, timing of elections to defer, forms of distribution
of Shares and the like as the Board shall determine.
8. Assignability. Each Option granted under this Plan shall be
transferable only by will or by the laws of the descent and distribution and
shall be exercisable, during an Optionee's lifetime, only by the Optionee to
whom the Option is granted. Except as permitted by the preceding sentence, no
Option granted under the Plan or any of the rights and privileges thereby
conferred shall be transferred, assigned, pledged, or hypothecated in any way
(whether by operation of law or otherwise), and no such Option, right, or
privilege shall be subject to execution, attachment, or similar process. Upon
any attempt so to transfer, assign, pledge, hypothecate, or otherwise dispose of
the Option or any right or privilege conferred thereby, contrary to the
provisions hereof, or upon the levy of any attachment or similar process upon
such Option, right, or privilege, the Option and such rights and privileges
shall immediately become null and void.
9. Effect of Death or Disability-. (a) Notwithstanding anything in this
Plan to the contrary, in the event an Optionee's services with the Company or
any subsidiary of the Company in a capacity described in Section 3(a) hereof
shall be terminated by reason of the Optionee's death or disability, all Options
held by such Optionee which have not been theretofore exercised or otherwise
expired shall be immediately exercisable in full, notwithstanding subsection
7(b) or (c) hereof.
(b) Upon the death or disability of an Optionee, any Option or Options
granted to him under this Plan which have not previously expired or been
exercised shall be exercisable by the estate of the Optionee (or by any person
who acquired such Option by bequest or inheritance from the Optionee) in full,
notwithstanding Section 7(b) or (c) hereof, any time within one year after the
death of the Optionee. References herein to the Optionee shall be deemed to
include any person entitled to exercise the Option after the death of the
Optionee under the terms of this Section 9(b). The term "disability" shall, for
the purposes of this Plan, be defined in the same manner as such term is defined
in Section 105(d)(4) of the Code.
10. Listing and Registration of Shares. Each Option shall be subject to
the requirement that if at any time the Committee shall determine, in its
discretion, that the listing, registration, or qualification of the Share
covered thereby upon any securities exchange or any state or federal law, or the
consent or approval of any governmental regulatory body, is necessary or
desirable as a condition of, or in connection with, the granting of such Option
or the issue or purchase of Shares thereunder, such Option may not be exercised
in whole or in part unless and until such listing, registration, qualification,
consent, or approval shall have been effected or obtained free of any conditions
not acceptable to the Committee. The Company shall not be required to issue or
deliver any certificate for Shares of its stock purchased upon the exercise of
any part of an Option before (i) the admission of such Shares to listing on any
stock exchange in which the stock of the Company may then be listed, (ii)
completion of any registration or other qualification of such Shares under any
state or federal law or ruling or regulation of any governmental regulatory body
that the Committee shall, in its sole discretion, determine is necessary or
advisable, and (iii) the Committee shall have been advised by counsel that all
applicable legal requirements have been complied with and satisfied.
11. Expiration and Termination of the Plan. Options may be granted
under the Plan at any time or from time to time so long as the total number of
Shares at any one time optioned and/or purchased under this Plan does not exceed
388,002 Shares. The Plan may be abandoned or terminated at any time by the Board
except with respect to any Options then outstanding under the Plan. No Option
shall be granted pursuant to the Plan after ten years from effective date of the
Plan.
12. Amendment of Plan. The Board may at any time and from time to time
modify and amend the Plan (including the form of any option agreement to be
executed pursuant hereto) in any respect: provided, however, that no such
amendment shall: (a) increase (except in accordance with Section 6 hereof) the
maximum number of Shares for such Options may be granted under the Plan either
in the aggregate or to any individual; (b) reduce (except in accordance with
Section 6 hereof) the minimum option prices which may be established under thc
Plan; (c) extend the period or periods during which Options may be granted or
exercised; (d) change the provisions relating to adjustments to be made upon
changes in capitalization. The termination or any modification or amendment of
the Plan shall not, without the consent of the Optionee, affect such Optionee's
rights under an Option theretofore granted to him.
13. Applicability. of Plan to Outstanding Stock Options, This Plan
shall not affect the terms and conditions of any non-qualified stock options
heretofore granted to any individual by the Company (or any of its
predecessors), under any other plan or agreement relating to non-qualified stock
options, nor shall it affect any of the rights of any individual to whom such a
non-qualified stock option was granted, except to the extent in either event
that the individual Optionee consents to the application of this Plan to his or
her options, in which case such options shall be considered Option granted under
this Plan.
14. Effective Date of Plan. This Plan shall become effective upon
adoption by the Board, subject to approval by the shareholders of the Company
(or any of its predecessors). This Plan shall not become effective unless such
shareholder approval shall be obtained within twelve months before or after the
adoption of the Plan by the Board.
15. Change in Control, in the event of a "change in control of the
Company, any option granted hereunder shall be deemed to be fully vested and
immediately exercisable, entitling the Optionee to immediately exercise the
Option in full and to purchase, prior to the effective date of any "change in
control", the full number of Shares subject to such option which he or she
otherwise would have been emitled to purchase during the remaining term of such
option. The Committee shall give each Optionee at least thirty (3) days prior
written notice of any event giving rise to an immediate purchase right under
this Section l5.
<PAGE>
For purposes of this Section 15, the phrase "change-in-control means (1) any
"person" (as defined in Sections 13(d) and 14 (d) of the Securities Exchange Act
of 1934 (the "Exchange Act") becoming the "beneficial owner" (as defined in Rule
13d-3 under the Exchange Act), directly or indirectly, of securities of the
Company representing twenty percent (20%) or more of the Company's outstanding
securities having the right to vote at the election of directors, or (ii) during
any period of two (2) consecutive years, a change in the majority of the Board
of Directors unless the election of each new Director was approved by at least
two-thirds of the Directors then still in office who are Directors at the
begimping of such two (2) year period ", or (iii) a merger, consolidation or
sale of all or substantially all of the assets of the Company in which the
Company is not the surviving institution, or (iv) the distribution of a proxy
statement soliciting proxies from shareholders of the Company by someone other
than the current management of the company, seeking shareholder approval of a
plan of reorganization, merger or consolidation of, the Company or similar
transaction with one or more corporations as result of which the outstanding
shares of the class of securities then subject to the plan of reorganization are
exchanged for or converted into cash or property or securities not issued by the
Company, or (v) a tender offer is made for twenty percent (20%) or more of the
voting securities of the Company.
* Amended by the Board of Directors on November 18, 1997
* Amended by the Board of Directors on August 19, 1997
* Amended by the Board of Directors on February 23, 1995.
* Amended By Board of Directors' Compensation Committee as of January 25, 1994.
* Amended By Shareholders as of December 16, 1993.
* Amended By Board of Directors as of November 15, 1994.
TRIANGLE BANCORP, INC.
1998 OMNIBUS STOCK PLAN
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TRIANGLE BANCORP, INC.
1998 OMNIBUS STOCK PLAN
ARTICLE I
NAME. PURPOSE. AND DEFINITIONS
Section 1.1. Name. The Plan shall be known as the "Triangle Bancorp,
Inc. 1998 Omibus Stock Plan" (the "Plan").
Section 1.2. Purpose. The ptapose of the Plan is to benefit the
Company, Subsidiaries, and their shareholders by encouraging and enabling key
Employees and such other persons as are eligible to participate heroin to
acquire a financial interest in the Company. The Plan is intended to aid the
Company and Subsidiaries in attracting and retaining directors, local directors,
officers and key employees and in attracting and retaining persons in key
relationships with the Company and Subsidiaries, to stimulate the eftoffs of
those individuals, and to strengthen their desire to remain in the office or in
the employ of, or in a beneficial relationship with, the Company and
Subsidiaries.
Section 1.3. Definitions. Whenever used in the Plan, unless the context
clearly indicates otherwise, the following terms shall have the following
meanings:
(a) "Award" or "Awards" means an award granted pursuant to Article III.
(b) "Award Document" means a document described in Article IV hereof
setting forth the terms, conditions, and limitations applicable to the Award
granted to the Participant.
(c) "Beneficiary," with respect to a Participant, means (i) one or more
persons as the Participant may designate as primary or contingent beneficiary in
a writing delivered to the Company or Committee or, (ii) if there is no such
valid designation in effect at the Participant's death, either (A) the
Participant's spouse or (B) if the Participant is not married at the date of the
Participant's death, the Participant's estate. This definition shall not,
however, supersede or adversely affect any definition or designation of
beneficiary which may be included in any Award.
(d) "Board" means the Board of Directors of the Company as it may be
comprised from time to time.
(e) "Code" means the Internal Revenue Code of 1986, as amended from
time to time, or any successor statute, and applicable regulations.
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(f) "Committee" means the committee appointed by the Board from among
its members and shall be comprised of not less than two (2) persons. Unless and
until otherwise appointed, the Committee shall be the Compensation Committee of
the Board or any successor committee with substantially the same
responsibilities if the members of that committee satisfy the requirements of
the following sentence. A member of the Committee must not be an Employee and
must otherwise satesly Rule 16b-3 w~th respect to grants to executive officers
and directors. If at any time there shall be no Compensation Committee of the
Board or any successor committee with substantially the same responsibilities
whose members satisfy the requirements of the foregoing sentence or if the Board
shall not have otherwise appointed a committee to administer the Plan, the Board
shall have the responsibilities assigned to the Committee herein and references
to the Committee herein shall refer to the Board. In addition, the Board shall
have the right to exercise, in whole or in part, authority of the Committee
hereunder with respect to certain persons or classes of persons as Participants,
in which case as to those persons and as to such authority taken or retained by
the Board, references to the Committee herein shall refer to the Board.
(g) "Company" means Triangle Bancorp, Inc., a North Carolina
corporation, and any successor corporation.
(h) "Director" means any individual who is a member of the Board.
(i) "Disability" shall mean the inability, in the opinion of the
Company's group health insurance carrier (or claims processor, if applicable),
of a Participant, because of injury or sickness, to work at a reasonable
occupation which is available with the Participant's employer (the Company or a
Subsidiary) or at any gainful occupation for which the Participant is or may
become fitted.
(j) "Employee" means any individual who is an employee of the Company
or any Subsidiary, whether or not he or she is a Director.
(k) "Exchange Act" means the Securities Exchange Act of 1934, as
amended and in effect from time to time, or any successor statute.
(1) "Fair Market Value" in reference to the Stock of the Company means
as of a given date either:
(i) The closing price of a share of Stock on the National Market System
or national securities exchange on which the Stock is then trading as of the day
immediately prior to such date, or if Stock was not traded on that day, then on
the next preceding trading day during which a sale occurred; or
(ii) if the Stock is not traded on the National Market System or listed
on a national securities exchange, the mean between the bid and asked prices per
share last reported by the National Association of Securities Dealers, Inc., for
the over-the-counter market on the day immediately prior to such date, or in the
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absence of any bid and asked prices on that day, the mean of the bid and asked
prices per share of such Stock quoted on the next preceding day for which there
were such quotations; or
(ii) if the Stock is not traded on the National Market System or listed
on a national securities exchange, and quotations for the Stock are not reported
by the National Association of Securities Dealers, Inc., the fair market value
determined by the Committee on the day immediately preceding such date on the
basis of avaliable prices for the Stock or in such manner as the Committee shall
agree.
The Committee shall determine the Fair Market Value of any security that is not
publicly traded, using such criteria as it shall determine, in its sole
discretion, to be appropriate for such valuation.
(m) "Insider" means any person who is subject to Section 16.
(n) "Participant" means an Employee, Director, or other person
designated by the Committee to be eligible for an Award pursuant to this Plan.
(o) "Restricted Stock" means shares of Stock which have certain
restrictions attached to the ownership thereof, which may be issued under
Section 3.4.
(p) "Retirement" means termination of employment with the Company or a
Subsidiary for any reason other than death or Disability on or after age 65.
(q) "Rule 16b-3" means Rule 16b-3 as promulgated by the Securities and
Exchange Commission on May 31, 1996, effective August 15, 1996, as such
regulation or successor regulation shall be hereafter amended.
(r) "Section 16" means Section 16 of the Exchange Act or any successor
regulation and the roles promulgated thereunder as they may be amended from time
to time.
(s) "Spouse" means the person of the opposite sex to whom the
Participant is married, as determined by the law of the Participant's legal
domi. cile, on the date of the Participant's death.
(t) "Stock" means shares of the no par value Common Stock of the
Company.
(u) "Stock Appreciation Right" means a right, the value of which is
determined relative to the appreciation in value of shares of Stock, which may
be issued under Section 3.3.
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(v) "Stock Option" means a right to purchase shares of Stock granted
pursuant to Section 3.2 and includes Incentive Stock Options and Non-Qualified
Stock Options as defined in Section 3.2(a).
(w) "Subsidiary" means any corporation (other than the Company),
limited liability company, or other business organization in an unbroken chain
of entities beginning with the Company in which each of such entities other than
the last one in the unbroken chain owns stock, units or other interests
possessing 50 percent or more of the total combined voting power of all classes
of stock, units or other interests in one of the other entities in that chain.
(x) "Substantial Shareholder" means an Employee who is, at the time of
the grant to the Employee of an Award, an "owner" (as defined in Section
422(b)(6) of the Code, modified as provided in Section 424 of the Code) of more
than ten percent (10%) of the total combined voting power of all classes of
stock of the Company or any Subsidiary.
ARTICLE II
ELIGIBILITY
Awards may be granted to any Employee who is or class of Employees who
are designated as Participants from time to time by the Committee and to such
other person, such as a non-Employee Director, local director, or consultant,
whose relationship with the Company or a Subsidiary is deemed by the Committee
to be sufficiently important to the Company or Subsidiary as to warrant receipt
by such person of an Award or such person that the Company or a Subsidiary or
the Committee wishes to secure as a key employee or director of the Company or a
Subsidiary for whom the grant of an Award will, in the Committee's judgment, act
as an inducement to such person to accept such position. The Committee shall
determine which Employees, Directors, or other eligible persons shall be
Participants, the types of Awards tO be made to Participants, and the terms,
conditions, and limitations applicable to the Awards.
ARTICLE III
AWARDS
Section 3.1. (general. Awards may include, but are not limited to,
those described in this Article III, including its sections. The Committee may
grant Awards singly, in tandem, or in combination with other Awards, as the
Committee may in its sole discretion determine. Subject to the other provisions
of this Plan, Awards also may be granted in combination or in tandem with, in
replacement of, or as alternatives to, grants or rights under this Plan and any
other employee plan of the Company.
Section 3.2. Stock Options. A Stock Option is a right to purchase a
specified number of shares of Stock at a specified price during such specified
time as the Committee shall determine, subject to the following:
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(a) An option granted may be either of a type that complies with the
requirements of incentive stock options as defined in Section 422 of the Code
("Incentive Stock Option") or of a type that does not comply with such
requirements ("Non-Qualified Option").
(b) The exercise price per share of any Incentive Stock Option shall be
no less than the Fair Market Value per share of the Stock subject to the option
on the date such Stock Option is granted, except that, if an Incentive Stock
Option is granted to a Substantial Shareholder, the exercise price per share
shall be no less than one hundred ten percent (110%) of the Fair Market Value
per share of Stock subject to the option on the date such Stock Option is
granted.
(c) The exercise price per share of any Non-Qualified Option may be
less than lhe Fair Market Value per share of Stock subject to the option on the
date such Stock Option is granted.
(d) No Incentive Stock Option shall be exercisable after the expiration
often (10) years from the date on which the Incentive Stock Option is granted,
except that, if an Incentive Stock Option is granted to a Substantial
Shareholder, such Stock Option shall not be exercisable after the expiration of
five (5) years from the date on which the Incentive Stock Option is granted.
(e) A Stock Option may be exercised, in whole or in part, by giving
written notice of exercise to the Company specifying the nmber of shares of
Stock to be purchased and complying with such other terms and conditions as the
Committee may specify.
(I') The exercise price of the Stock aubjcct to fire 8tuck Option may
be paid in cash or, at the discretion of the Committee, may also be paid by the
tender of shares of Stock already owned by the Participant, or through a
combination of cash and shares of Stock, or through such other means that the
Committee determines are consistent with the Plan's purpose and applicable law.
No fractional shares of Stock will be issued or accepted.
(g) The exercise price of the Stock subject to the Stock Option may be
paid, at the discretion of the Committee, by delivery to the Company or its
designated agent of an irrevocable written notice of exercise form together with
irrevocable instructions to a broker-dealer to sell or margin a sufficient
portion of the shares as to which the Stock Option is to be exercised and to
deliver the sale or margin loan proceeds directly to the Company to pay the
exercise price.
Section 3.3. ,Stock Appreciation Rights. A Stock Appreciation Right is
a right to receive, upon surrender of the right, but without payment of an
exercise price, an amount payable in cash and/or shares of Stock under such
terms and conditions as the Committee shall determine, subject to the following:
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(a) A Stock Appreciation Right may be granted in tandem with all or
part of a Stock Option, in addition to a Stock Option, or completely independent
of a Stock Option or any other Award under this Plan. A Stock Appreciation Right
issued in tandem with a Stock Option may be granted at the time of grant of the
related Stock Option or at any time thereafter during the term of the Stock
Option.
(b) The amount payable by the Company or Subsidiary in cash and/or
shares of Stock with respect to each fight shall be equal in value to a percent
of the amount by which the Fair Market Value per share of Stock on the exercise
date exceeds the base value per share established for the Stock Appreciation
Right. The applicable percent shall be established by the Committee. The amount
payable in shares of Stock, if any, is determined with reference to the Fair
Market Value on the date of exercise.
(c) Stock Appreciation Rights issued in tandem with Stock Options shall
be exercisable only to the extent that the Stock Options to which they relate
are exercisable. Upon the exercise of the Stock Appreciation Right, the
Participant shall surrender to the Company the underlying Stock Option. Stock
Appreciation Rights issued in tandem with Stock Options shall automatically
terminate upon the exercise of such Stock Options.
(d) A Stock Appreciation Right may be a "limited" Stock Appreciation
Right, such as, for example, a Stock Appreciation Right exercisable upon the
occurrence of a certain event or certain events.
Section 3.4. Restricted Stock. Restricted Stock is shares of Stock that
are issued to a Participant or awarded to a Participant as "phantom stock" and
are subject to such terms, conditions, and restrictions as the Committee deems
appropriate, which may include, but are not limited to, restrictions upon the
sale, assignment, transfer, or other disposition of the Restricted Stock and the
requirement of forfeiture of thc Restricted Stock upon termination of employment
or membership on the Board under certain specified conditions. The Committee may
provide for the lapse of any such term or condition based on such factors or
criteria as the Committee may determine. If the shares subject to a Restricted
Stock Award are issued to a Participant, the Participant shall have, with
respect to the Restricted Stock, all of the fights ora shareholder of the
Company, including, but not limited to, the right to vote the Restricted Stock
and the fight to receive any cash or stock dividends on such Stock.
Section 3.5 Performance Awards. Performance Awards may be granted under
this Plan from time to time based on such terms and conditions as the Committee
deems appropriate provided that such Awards shall not be inconsistent with the
terms and purposes of this Plan. Performance Awards are Awards which are
contingent upon the performance of all or a portion of the Company and/or
subsidiaries or which are contingent upon the individual performance of the
Participant. Performance Awards may be in the form of performance units,
performance shares, and such other forms of performance Awards which the
Committee shall determine. The Committee shall determine the performance
measurements and criteria for such performance Awards.
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Section 3.6 Other Awards. The Committee may from time to time grant
other Stock and Stock-based Awards under the Plan, including, but not limited
to, those Awards pursuaJ~t to which shares of Stock are or may in the future be
acquired, Awards denominated in Stock units, securities convertible into shares
of Stock, and dividend equivalents. The Committee shall determine the terms and
conditions of such other Stock and Stock-based Awards provided that such Awards
shall not be inconsistent with the terms and purpose of this Plan.
ARTICLE IV
AWARD DOCUMENTS
Section 4.1 General. Each Award under this Plan shall be evidenced by
an Award Document issued by the Company or the Committee setting forth the
number of shares of Stock or other security, Stock Appreciation Rights, or units
subject to the Award and such other terms and conditions applicable to the Award
as are determined by the Committee. When deemed required or desirable by the
Committee, the Award Document shall be signed by the Participant.
Section 4.2 Required Terms. in any event, Award Documents shall
include, at a minimum, explicitly or by reference, the following terms:
(a) Assignability. Provisions defining the conditions under which and
transferees to whom an Award may be assigned, pledged, or otherwise transferred.
In the absence of any such provision, an Award may not be assigned, pledged, or
otherwise transferred except by will or by the laws of descent and distribution
and, during the lifetime of a Participant, the Award may be exercised only by
such Participant or by the Participant's guardian or legal representative.
(b) Termination of Employment. A provision describing the treatment of
an Award in the event of the Retirement, Disability, death, or other termination
of an Employee Participant's employment with the Company, including but not
limited to terms relating to the vesting, time for exercise, forfeiture, or
cancellation of an Award in such circumstances.
(c) No Rights as a Shareholder. A provision that a Participant shall
have no rights as a shareholder with respect to any securities covered by an
Award until the date the Participant becomes the holder of record. Except as
provided in Article VII hereof, no adjustment shall be made for dividends or
other rights, unless the Award Document specifically requires such adjustment,
in which case grants of dividend equivalents or similar rights shall not be
considered to be a grant of any other shareholder right.
(d) Withholding. A provision requiring the withholding of applicable
taxes required by law from all amounts paid in satisfaction of an Award. In the
case of an Award paid in cash, the withholding obligation shall be satisfied by
withholding the applicable amount and paying the net amount in cash to the
Participant. In the case of Awards paid in shares of Stock or other securities
of the Company, a Participant may satisfy the withholding obligation by paying
the amount of any taxes in cash or, with the
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approval of the Committee, shares of Stock or other securities may be deducted
from the payment to satisfy the obligation in full or in part as long as such
withholding of shares does not violate any applicable laws, rules or regulations
of federal, state, or local authorities. The number of shares to be deducted
shall be determined by reference to the Fair Market Value of such shares of
Stock on the applicable date (the "given" date of Section 1.3(1)).
Section 4.3 Optional Terms. Award Documents may include the following terms:
(a) Replacement. Substitution, and Reloading. Any provisions:
(i) permitting the surrender of outstanding Awards or securities held
by the Participant in order to exercise or realize rights under other Awards,
under similar or different terms (including the grant of reload options); or
(ii) requiring holders of Awards to surrender ontstanding Awards as a
condition prccedent to the grant of new Awards under the Plan.
(b) H ld~. In the case of an Award to an Insider:
(i) of an equity security, a provision stating (or the effect of which
is to require) that such security must be held for at least six months (or such
longer period as the Committee in its discretion specifies) from the date of
acquisition;
(ii) of a derivative security with a fixed exercise price within the
meaning of Section 16, a provision stating (or the effect of which is to
require) that at least six months (or such longer period as the Committee in its
discretion specifies) must elapse from the date of acquisition of the derivative
security to the date of disposition of the derivative security (other than upon
exercise or conversion) or its underlying equity security; or
(iii) of a derivative security without a fixed exercise price within
the meaning of Section 16, a provision stating (or the effect of which is to
require) that at least six months (or such longer period as the Committee in its
discretion specifies) must elapse from the date upon which such price is fixed
to the date of disposition of the derivative security (other than by exercise or
conversion) or its underlying equity security.
(c) Other Term--~. Such other terms as are necessary and appropriate to
effect an Award to the Participant including, but not limited to, the term of
the Award, vesting provisions, deferrals, any requirements for continued
employment with the Company or a Subsidiary, any other restrictions or
conditions (including performance requirements) on the Award and the method by
which restrictions or conditions lapse, the effect on the Award of a Change of
Control as defined in Section 8.2, or the price, amount, or value of Awards.
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ARTICLE V
SHARES OF STOCK SUBJECT TO THE PLAN
Section 5.1 General. Subject to the adjustment provisions of Article
VII hereof, the number of shares of Stock for which Awards may be granted under
the Plan shall not exceed One Million (1,000,000) shares.
Section 5.2 Additional Share~. Any unexercised or undistributed portion
of the terminated, expired, exchanged, or forfeited Award or Awards settled in
cash in lieu of shares of Stock shall be available for further Awards in
addition to those available under Section 5.1.
Section 5.3 Computation Rules. For the purpose of computing the total
number of shares of Stock granted under the Plan, the following rules shall
apply to Awards payable in shares of Stock or other securities, where
appropriate:
(a) Except as provided in subsection (e) of this Section, each Stock
Option shall be deemed to be the equivalent of the maximum number of shares that
may be issued upon exercise of the particular Stock Option;
(b) except as provided in subsection (e) of this Section, each other
Stock-based Award payable in some other security shall be deemed to be equal to
the number of shares to which it relates;
(c) except as provided in subsection (e) of this Section, where the
number of shares available under the Award is variable on the date it is
granted, the number of shares shall be deemed to be the maximum nmber of shares
that could be received under that particular Award;
(d) where one or more types of Awards (both of which are payable in
shares of Stock or another security) are granted in tandem with each other, such
that the exercise of one type of Award with respect to a number of shares
cancels an equal number of shares of the other, the number of shares under each
type of Award shall be deemed to be equivalent to the number of shares under the
other type of Award; and
(e) each share awarded or deemed to be awarded under the preceding
aub~cctions shall be treated as share(s) of Stock, even if the Award is for a
security other than Stock.
Additional rules for determining the number of shares of Stock granted under the
Plan may be made by the Committee, as it deems necessary or appropriate.
Section 5.4 Shares to be Used. The shares of Stock which may be issued
pursuant to an Award under the Plan may be authorized but unissued Stock or
Stock that is or has been acquired by the Company.
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ARTICLE VI
ADMINISTRATION
Section 6.1 General. The Plan and all Awards pursuant thereto shall be
administered by the Committee so as to permit the Plan and any Award to comply
with Rule 16b-3. A majority of the members of the Committee shall constitute a
quorum. The vote ora majority of a quorum shall constitutc action by the
Committee.
Section 6.2 Duties. The Committee shall have the duty to administer the
Plan, and to determine periodically the Participants in the Plan and the nature,
amount, pricing, timing, and other terms of Awards to be made to such
individuals.
Section 6.3 Powers. The Committee shall have all powers necessary to
enable it to carry out its duties under the Plan properly, including, but not
limited to, the power to interpret and administer the Plan. All questions of
interpretation with respect to the Plan, the number of shares of Stock or other
security, Stock Appreciation Rights, or units granted, the terms of any Award
Documents, and other matters arising hereunder shall be determined by the
Committee, and its determination shall be final and conclusive upon all parties
in interest. In the event of any conflict between an Award Document and the
Plan, the terms of the Plan shall govern. In addition, the Committee may
delegate to the officers or employees of the Company the authority to execute
and deliver such instruments and documents, to do all such acts and things, and
to take all such other steps deemed necessary, advisable or convenient for the
effective administration of the Plan in accordance with its terms and purpose,
except that the Committee may not delegate any discretionary authority with
respect to substantive decisions or functions regarding the Plan or Awards
thereunder as those relate to Insiders including, but not limited to, decisions
regarding the timing, eligibility, pricing, amount or other material term of
such Awards. The Committee may, in its discretion mid consistent with the terms
of the Plan, the requirements of Section 16 and Rule 16b-3 with respect to
Insiders, the requirements of other applicable law, and the terms of an Award
Document, amend, modify, or waive the provisions of an Award Document or grant a
new Award with respect to or in replacement of an existing Award; provided,
however, that no such amendment, modification, or waiver shall, without the
Participant's consent, alter or impair any rights or obligations under an Award
Document unless that is specifically permitted by the Award Document.
Section 6.4 Intent to Avoid Insider Trading It is the intent of the
Company that the Plan and Awards hereunder satisfy and be interpreted in a
manner, that, in the case of Participants who are or may be Insiders, satisfies
the applicable requirements of Rule 16b-3, so that such persons will be entitled
to the benefits of Rule 16b-3 or other exemptive rules under Section 16 and will
not be subjected to avoidable liability thereunder. If any provision of the Plan
or of any Award would otherwise frustrate or conflict with the intent expressed
in this Section 6.4, that provision to the extent possible shall be interpreted
and deemed amended so as to avoid such conflict. To the extent of any remaining
irreconcilable conflict with such intent, the provision shall be deemed void as
applicable to Insiders.
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ARTICLE VII
ADJUSTMENTS UPON CHANGES IN CAPITALIZATION
In the event of a reorganization, recapitalization, Stock split, Stock
dividend, exchange of Stock, combination of Stock, merger, consolidation or any
other change in corporate structure of the Company affecting the Stock, or in
the event of a sale by the Company of all or a significant part of its assets,
or any distribution to its shareholders other than a normal cash dividend, the
Committee shall make appropriate adjustment in the number, kind, price and value
of shares of Stock authorized by this Plan and any adjustments to outstanding
Awards as it determines appropriate so as to prevent dilution or enlargement of
rights, unless the Award or Award Document provides otherwise.
ARTICLE VIII
CHANGES OF CONTROL
Section 8.1 General. In the event ora Change of Control of the Company,
in addition to any action or consequences required or authorized by the terms of
an Award Document, a Participant's interest in any outstanding Award shall
become fully vested and exercisable. In addition, the Committee may, in its
discretion, recommend that the Board of Directors take any of the following
actions, as a result of, or in anticipation of, any such event to assure fair
and equitable treatment of Plan Participants:
(a) offer to purchase any outstanding Award made pursuant to this Plan
from the holder for its equivalent cash value, as determined by the Committee,
as of the date of the Change of Control; or
(b) make adjustments or modifications to outstanding Awards as the
Committee deems appropriate to maintain and protect the rights and interests of
Plan Participants following such Change of Control.
Any such action approved by the Board of Directors shall be conclusive and
binding on the Company, a Subsidiary, and all Participants.
Section 8.2 Change of Control. For the purposes of this Section, a
"Change of Control" shall mean the earliest date on which one of the following
events shall occur:
(a) Any Person (as defined hereafter) or Persons as a group
beneficially'own mom than 20% of the combined voting power of all classes of the
Company's outstanding capital stock or acquire control in any manner of the
election of a majority of the directors of the Company;
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(b) The Company consolidates or merges with or into another
corporation, association, or entity, or is otherwise reorganized, where the
Company is not the surviving corporation in such transaction and the holders of
the voting securities of the Company immediately prior to such acquisition own
less than a majority of the voting securities of the surviving entity
immediately after the transaction;
(c) The Company shall sell substantially all of its assets to another
entity which is not a wholly-owned Subsidiary; or
(d) There is, during any period of two (2) consecutive years, a change
in the majority of the Board unless the election of each new Director was
approved by at least two-thirds of the directors then still in office who are
Directors at the beginning of such two (2) year period.
Section 8.3 Definition of"Person" Applicable to Change of Control.
"Person" means any individual, firm, corporation, partnership, limited liability
company, trust, or other entity; provided, however, that "Person" does not
include:
(a) the Company or any Subsidiary; or
(b) any employee benefit plan of the Company or any Subsidiary or any
entity appointed or established by the Company or Subsidiary as a fiduciary for
or pursuant to the terms of any such employee benefit plan.
ARTICLE IX
AMENDMENT AND TERMINATION
Section 9.1 Amendment of Plan. The Company expressly reserves the
fight, at any time and from time to time, to amend in whole or in part any of
the terms and provisions of the Plan and any or all Award Documents under the
Plan to the extent permitted by law for whatever reason(s) the Company may deem
appropriate; provided, however, no amendment may be effective, without the
approval of the shareholders of the Company, if approval of such amendment is
required in order that transactions in Company securities under the Plan be
exempt from the operation of Section 16(b) of the Securities Exchange Act of
1934 or if such amendment, with respect to the issuance of Incentive Stock
Options, either:
(a) materially increases the number of shares of Stock which may be
issued under the Plan, except as provided for in Article VII; or
(b) materially modifies the requirements as to eligibility for
participation in the Plan (unless designed to comport with the Code, the
Employee Retirement Security Act of 1974, or other laws).
Section 9.2 Termination of Plan. Except as may otherwise be provided in
any Award Document, the Company expressly reserves the right, at any time, to
suspend or terminate the
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Plan and any or all Award Documents under the Plan to the extent permitted by
law for whatever reason(s) the Company may deem appropriate, including, but not
limited to, suspension or termination as to the Company, any participating
Subsidiary, any Participant, or any class of Participants.
Section 9.3. Procedure for Amendment or Termination. Any amendment to
the Plan or termination of the Plan shall be made by the Company by resolution
of the Board and shall not require the approval or consent of any Subsidiary,
Participant, or Beneficiary in order to be effective, to the extent permitted by
law. Any amendment to the Plan or termination of the Plan may be retroactive to
the extent not prohibited by applicable law.
ARTICLE X MI~
Section 10.1 Rights of Employee. Status as an eligible Employee shall
not be construed as a commitment that any Award will be made under the Plan to
such eligible Employee or to eligible Employees generally. Nothing contained in
the Plan (or in any other documents related to this Plan or m any Award) shall
confer upon any Employee or Participant any right to continue in the employ or
other service of or relationship with the Company or constitute any contract or
limit in any way the right of the Company to change such person's compensation
or other benefits or to terminate the employment or relationship of such person
with or without cause.
Section 10.2 North Carolina Law. No certificate for Stock distributable
pursuant to this Plan shall be issued and delivered unless the issuance of such
certificate complies with all applicable legal requirements including, without
limitation, compliance with the provisions of applicable state securities laws,
the Securities Act of 1933, as amended from time to time or any successor
statute, the Exchange Act and the requirements of the market systems or
exchanges on which the Stock may, at the time, be traded or listed.
Section 10.3 Deferral Programs. The Board of Directors may, at its
discretion, adopt a program or programs of deferred receipt whereby a
Participant or Participants may defer receipt of Stock or cash otherwise
issuable or payable to the Participant pursuant to an Award, which program(s)
shall contain such rules concerning eligibility to participate, timing of
elections to defer, forms of distribution of the Stock or cash and the tike as
the Board of Directors shall determine.
Section 10.4 Unfunded Status. The Plan shall be unfunded. Neither the
Company nor the Board of Directors shalI be required to segregate any assets
that may at any time be represented by Awards made pursuant to the Plan. Neither
the Company, the Committee~ nor the Board of Directors shall be deemed to be a
trustee of any amounts to be paid under the Plan,
Section 10.5 Limits on~. Any liability of the Company to any
Participant with respect to an Award shall be based solely upon contractual
obligations created by the Plan or the Award Document. Neither the Company nor
any member of the Board of Directors or the
13
<PAGE>
Committee, nor any other person participating in any determination of any
question under the Plan, or in the interpretation, administration or application
of the Plan, shall have any liability to any party for any action taken or not
taken, in good faith under the Plan and that do not constitute willful
misconduct. To the extent permitted by applicable law, the Company shall
indemnify and hold harmless each member of the Board of Directors and the
Committee from and against any and all liability, claims, demands, costs, and
expenses (including, but not limited to, the costs and expenses of attorneys
incurred in connection with the investigation or defense of claims) in any
manner connected with or arising om of any actions or inactions in connection
with the administration of the Plan except for such actions or inactions which
are not in good faith or which constitute willful misconduct.
Section 10.5 Section References. All references in this Plan to
sections or articles shall refer to sections and articles of this Plan unless
specifically noted otherwise.
ARTICLE XI
This Plan shall become effective on the date of its adoption by the
Board; provided however, the effectiveness of this Plan is subject to its
approval and ratification by the shareholders of the Company within one year
from the date of adoption hereof by the Board. The Committee shall have
authority to grant Awards hereunder until one day before the ten year
anniversary of the date of adoption of the Plan by the Board, subject to the
ability of the Company to terminate the Plan as provided in Article IX.
14
EXHIBIT 10.42
GRANVILLE UNITED BANK
1993 INCENTIVE STOCK OPTION PLAN
as assumed by Triangle Bancorp, Inc.
1. Purpose. This Plan is intended to advance the interests of the Bank
by allowing officers and other key employees who have substantial responsibility
for the direction and management of the Bank to acquire a proprietary interest
in the Bank as an additional incentive to promote the Bank's success, and by
encouraging such individuals to continue to provide their services to the Bank.
These aims will be effectuated by the granting of certain stock options. It is
intended that options issued under the Plan and designated by the Board (defined
hereinafter) pursuant to Section 3(b) hereof will qualify as Incentive Stock
Options (hereinafter called "ISO's"), under Section 422A of the Internal Revenue
Code of 1986, as amended (the "Code"); and, the terms of the Plan shall be
interpreted in accordance with this intention. Options granted under this Plan
are referred to herein as "Options".
2. Plan. The Plan shall be administered by the Board of Directors ("the
Board") of the Bank who are not eligible to receive any of the options, under
the Plan. Subject to the provisions of the Plan, the Board shall have full
authority, in its discretion, to (a) determine the employees (from the class of
employees eligible under Section 3 hereof to receive Options under the Plan) to
whom Options shall be granted; (b) determine the number of shares that an
optionee may purchase pursuant to the grant of a stock option (which in any
event shall not exceed Forty (40%) percent of the total shares subject to the
Plan); (c) determine the time or times at which Options shall be granted; (d)
determine the option price of the shares subject to each Option, which price
shall not be less than the minimum specified in accordance with Section 5
hereof,; (e) determine (subject to Sections 7 and 9 hereof) the time or times
when each Option shall become exercisable and the duration of the exercise; and
(f) interpret the Plan and prescribe, amend, and rescind rules and regulations
relatinq to it. The interpretation and construction of any provision of the Plan
by the Board shall be final and conclusive. The Board may consult with
<PAGE>
counsel and other professional advisors, who may be counsel or advisors to the
Bank, and shall not incur any liability for any action taken in good faith in
reliance upon the advice of such counsel or advisors.
755
3. Eligibility (a) Options may be granted by the Board only to persons
who are officers or other key employees of the Bank or a subsidiary corporation
of the Bank who perform services of major importance in the management,
operation, and development of the business of the Bank or of any subsidzary of
the Bank, and the Board shall determine the number of shares to be allocated to
each Option. In determining the eligibility of an employee to receive an Option
as well as in determining the number of shares to be optioned to any individual,
the Board shall consider the position and responsibilities of the individual
being considered, the nature and value to the Bank of such individual's services
and accomplishments, the person's present and potential contribution to the
success of the Bank, and such other factors as the Board may deem relevant. A
person receiving an Option pursuant to this Plan shall sometimes be referred to
hereinafter as an "Optionee..
(b) At the time each Option is granted to an employee under this Plan,
the Board shall determine whether such Option is to be designated as an ISO. No
Option granted to any employee who at the 'time of such grant'owns stock
possessing more than ten percent (10%) of the total combined voting power of all
classes of stock of the Bank or any of its subsidiaries may be designated as an
ISO, unless at: the.time of.such grant-the option price is fixed at not less
than. one.hundred ten percent- (110%) of the fair market value of the Shares
(defined hereinafter).subject to the Option, and exercise of such Option is
prohibited by its terms after the expiration of five (5) years from the date
such Option is granted.
(c) No individual shall be given the opportunity under this Plan to
exercise Options for Shares valued (at the time of the granting of the Option)
in excess of One Hundred Thousand Dollars ($100,000.00) in any calendar year,
unless and except to the extent that said Options shall have first become
exercisable in a preceding year. No Option shall be granted hereunder for the
purchase of Shares in such a manner as would cause the foregoing restriction to
be violated.
4. Shares of Stock Subject to the Plan. There will be reserved for use
upon the exercise of Options to be granted from time to time under the Plan
(subject to the provisions of Section 6 hereof) an aggrggate of Thirty Six
Thousand Three Hundred (36,300) shares of the Five Dollar ($5.00) par value
Common stock (the "Shares',) of the Bank, which, as the Board shallfrom time to
time determine, may be in whole or in part either authorized but unissued
Shares, or issued Shares which shall have been reacquired by the Bank. Any
Shares subject to an Option under the Plan, which Option for any reason expires
or is terminated unexercised as to such Shares, may again be subjected to an
Option under the Plan.
755
5. Option Price. The purchase price under each Option issued shall be
determined by the Board at the time the Option is granted, but in no event shall
such purchase price be less than one hundred percent (100%) (one hundred ten
percent (110%), in the case of an ISO granted to an employee described in
Section 3(b) hereof) of the fair market value of the Bank's Shares on the date
of the grant. If the shares are traded in the over-the-counter market such fair
market value shall be deemed to be the mean between the asked and the bid prices
on such day as reported by NASDAQ. If the stock is traded on an exchange, such
fair market value shall be deemed to be the mean of the high and low prices at
which it is quoted or traded on such day on the exchange on which it generally
has the greatest trading volume. In,all cases, any determination hereunder by
the Board as to the fail market value of the Shares for which Options are
granted shall be made in good faith and shall be determlnative for all purposes
of this Plan.
<PAGE>
6. Adjustment for Dilution, Etc. In the event that there is (a) a
subdivision or consolidation of the Bank's common stock or any other, capital
adjustment of the Bank's common stock, (b) the payment by the Bank of a stock
dividend, or (c) any other increase or decrease in the outstanding common stock
of the Bank effected without receipt of consideration by the Bank, then the
number of Shares then covered.by each outstanding Option granted hereunder
shall be adjusted proportionately with no adjustment in the total purchase price
of the Shares then so covered by such Option, and the number of Shares reserved
for the purpose of the Plan shall be adjusted by the same proportion. All such
adjustments shall be made by the Board, whose determination upon the same shall
be final and binding upon the Optionees. No fractional Shares shall be issued
and any fractional Shares resulting from the computations pursuant to this
Section 6 shall be eliminated from the respective Option. No adjustment shall be
made for cash dividends or the issuance to stockholders of rights to subscribe
for additional Shares or other securities.
7. Duration and Exercise of Options: (a) All Options issued under the
Plan shall be for such period as the Board shall determine, but for, not more
than ten (10) years (five (5) years, in the case of any employee described in
Section 3(b) hereof) from the date of the grant thereof. The period of the
Option, once it is granted, may be reduced only as outlined in Section 9 hereof;
provided, however,that the Board may, where the Bank is involved in a merger,
consolidation, dissolution, or liquidation, accelerate -the expiration date
and the dates on which any part of the Option may be exercisable for all the
Shares covered thereby, but the effectiveness of such acceleration, and the
exercise of the Option pursuant thereto in excess of the number of Shares for
which it would have been exercisable in the absence of such acceleration, shall
be conditioned upon the consummation of the merger,
755
4
consolidation, dissolution, or liquidation. Except as provided in Section 9 or
subssection (b) below, no Option may be exercised after termination of the
Optionee's employment with the Bank, and in no event may an Option be exercised
after the expiration of its term.
(b) Except as otherwise modified by the Board, or as otherwise
expressly provided for herein, each Option granted under this Plan shall become
exercisable only after five (5) years continued employment of the Optionee with
the Bank or subsidiary corporation of the Bank immediately following the date
the Option is granted. Notwithstanding the preceding sentence, in the event an
employee's employment with the Bank shall terminate for any reason during such
five-year period, such former employee may,within three months after termination
of his employment,exercise his option with respect to the vested portion of the
Shares subject to the Option, determined in accordance with and based on the
whole number of years of the Optionee's continued employment, with the Bank of
subsidiary corporation of the Bank from the date the Option is granted through
the date of Optionee's termination of employment, determined in accordance with
the following schedule:
Years of Percentage of
Continued Employment Shares Vested
- --------------------------------------------------------------------------------
1 20%
2 40%
3 60%
4 80%
5 100%
In the event an Optionee terminates employment within the five-year period
described above, all Shares not vested in accordance with the Schedule described
above shall be forfeited, and the Optionee shall have no rights to exercise his
<PAGE>
Option with respect to any such forfeited Shares. In each case, such limitations
shall be calculated, in the case of any resulting fraction, to the nearest low
whole number of Shares. Notwithstanding the foregoing, the Board may, in its'
sole discretion, (i) prescribe longer time periods and additional requirements
with respect to the exercise of an Option, (ii) different vesting schedules with
respect to any Option, (iii) terminate in whole or in part such portion of any
Option as has not yet become exercisable at the time of termination if it
determines that the Optionee is not performing satisfactorily the duties to
which he or she was asslgned on the date the Option was granted or duties of at
least equal responsibility; and, (iv) except with respect to termination of
employment by reason of retirement, death or disability, have the option,
exercisable within four (4) months after the date of termination, to repurchase
at the option price, the shares of an employee, whose employment
755
has been terminated (whether by resignation or otherwise), and which were
acquired within three (3) months after or one (1) year prior to the date of the
employee's termination of employment. Except as provided herein or in Section 9
hereof, no Option may be exercised unless the Optionee is at the time of such
exercise in the employ of the Bank or of a subsidiary corporation of the Bank,
and shall have been continuously so employed since the grant of his or her
Option. Absence or leave approved by the management of the Bank shall not be
considered an interruption of employment for any purpose under the Plan.
(c) Subject to limitations contained herein as to the time for exercise
of an Option and the amount of Shares subject to such Option, and
notwithstanding subsection (b) above, each Option shall be exercisable in whole
or in part or in installments at such time or times and in such manner as the
Board may prescribe and specify in granting the option to the Optionee, which
manner may differ from the exercise periods otherwise prescribed in subsection
(b) above. No Shares shall be delivered pursuant to any exercise of an Option
until the requirements of such laws and regulations as may be deemed by the
Board to be applicable to them have been satisfied, and further until receipt by
the Bank of the full option price in cash for the Shares for which an Option is
exercised.
(d) No Optionee or his legal representative, legatees, or
distributees, as the case may be, will be, or will be deemed to be, a holder of
any Shares subject to an Option unless and until certificates for such Shares
are issued to him or them under the terms of the Plan. Except as otherwise
provided herein, no adjustment shall be made for dividends or other rights for
which the record date is prior to the date such stock certificate is issued.
8. Assignability. Each Option granted under this Plan shall be
transferrable only by Will or by the laws of descent and distribution and shall
be exercisable, during an Optionee's lifetime, only by the Optionee to whom the
Option is granted. Except as permitted by the preceding sentence, no Option
granted under the Plan or any of the rights and privileges thereby conferred all
be transferred, assigned, pledged, or hypothecated in any way (whether by
operation of law or otherwise), and no such Option, right, or privilege shall be
subject to execution, attachment, or similar process. Upon any attempt so to
transfer, assigns, pledge, hypothecate, or otherwise dispose of the Option or
any right or privilege conferred thereby, contrary to the provisions hereof, or
upon the levy of any attachment or similar process upon such Option, right, or
privilege, the Option and such rights and privileges shall immediately become
null and void.
755
9. Effect of Termination of Employment, Death, or Disability
(a) Notwithstanding anything in this Plan to the contrary, in
<PAGE>
the event an Optionee's employment shall be terminated by reason of the
Optlonee's retirement at his or her Retirement Date (defined hereinafter), the
Optionee shall have the right to exercise such Option or Options held by him or
her, to the extent that such Options have not previously expired or been
exercised, at any time within three (3) months after such retirement; upon such
retirement, all Options held by such Optionee which have not been theretofore
exercised by him or her or otherwise expired shall be immediately exercisable
in full, notwithstanding Section 7(b) or (c) hereof.
(b) In the event that an Optionee shall die while employed by the Bank,
or shall die within three (3) months after retlrement on or after his or her
Retirement Date, any Option or Options granted to him Or her under this Plan
which have not previously expired or been exercised shell be exercisable by the
estate of the Optionee (or by any person who acquired such Option by request or
inheritance from the 0ptionee) in full, notwithstanding Section 7(b) or (c)
hereof, any time wlthin one (1) year after the death of the Optionee. References
herein to the Optionee shall be deemed to include any person entitled to
exercise the Option after the death of the Optionee under the terms of this
Section 9(b).
(c) In the event of an Optionee's termination of employment by
reason,of the Optionee's disability, the Optionee shall have the right,
notwithstanding Section 7(b) or (c) hereof, to exercise all Options held by his
or her to the extent that such Options have not previously expired or been
exercised, at any time within one (1) year after such termination; upon such
disability, all Options held by such optionee which have not been theretofore
exercised by him or her or otherwise expired shall be immediately exercisable in
full, notwithstanding Section 7(b) or (c) hereof. The term "disability shall for
the purposes of this Plan, be defined in the same manner as Such term is defined
in Section 105(d) of the Code.
(d) For the purposes of this Plan, "Retirement Date" shall mean, any
date an employee is otherwise entitled to "retire under any of the Bank's
retirement plans, or if no such retirement plans exist, then the date on which
the Optiohee attains age sixty-five (65).
10. Listing and registration of Shares. Each Option shall be subject to
the,requirement that if at any time the Board shall determine, in its
discretion, that the listing, registration, or qualification of the Shares
covered thereby upon any securities
755
exchange or any state or federal law, or the consent or approval of any
governmental regulatory body, is necessary or desirable as a condition of, or in
connection with, the granting of such Option or the issue or purchase of Shares
thereunder, such Option may not be exerclsed in whole or in part unless and
until such listing,registration, qualification, consent, or approval shall have
been effected or obtained free of any conditions not acceptable to the Board.
The Bank shall not be required to issue or deliver any certificate for Shares of
its stock purchased upon the exercise of any part of an Option before (i) the
admission of such Shares to listing on any stock exchange in which the stock of
the Bank may then be listed, (ii) completion of any registration or other
qualification of such Shares under any state or federal law or ruling or
regulation of any governmental body that the Bank shall,in its sole discretion,
determine is necessary or advisable, and (iii) the Board shall have been advised
by counsel that all applicable legal requirements have been complied with and
satisfied.
11. Expiration and Termination of the Plan Options may be granted under
the Plan at any time or from time to time so long as the total number of Shares
at any one time optioned and/or purchased under this Plan does not exceed Thirty
Six Thousand Three Hundred (36,300) Shares. The Plan may be abandoned or
terminated at any time by the Board except with respect to any Options then
outstanding under the Plan. No Option shall be granted pursuant to the Plan
after Ten (10) years from the effective date of the Plan.
<PAGE>
12. Amendment of Plan. The Board may at any time and from time to time
modify and amend the Plan (including the form of any option agreement to be
executed pursuant hereto) in any respects; provided, however, that no such
amendment shall: (a) increase (except in accordance with Section 6 hereof) the
maximum number of Shares for which Options may be granted under the Plan either
in the aggregate or to any individual; (b) reduce (except in accordance with
Section 6 hereof) the minimum option prices which may be established under the
Plan; (c) extend the period or periods during which Options may be granted or
exercised; (d) change the provisions relating to the determination of
individuals to whom Options shall be granted and the number of Shares to be
covered by such Options; or (e) change the provisions relating to adjustments to
be made upon changes in capitalization. The termination or any modification or
amendment of the Plan shall not, without the consent of the Optionee, affect
such Optionee's rights under an Option theretofore,granted to him or her.
13. Applicability of Plan to Outstandinq Stock Options. This Plan shall
not affect the terms and conditions of any non-qualified stock options
heretofore granted to any individual by the Bank under any other plan or
agreement relating to non-qualified stock
755
options, nor shall it affect any of the rights of any individual to whom such a
non-qualified stock option was granted.
14. Effective Date of Plan. This Plan shall become effective upon
adoption by the Board, subject to approval by the shareholders of the Bank. This
Plan shall not become effective unless such shareholder approval shall be
obtained within twelve (12) months before or after the adoption of the Plan by
the Board.
9
EXHIBIT 10.43
26,250 Shares
TRIANGLE BANCORP, INC.
Common Stock
GRANVILLE UNITED BANK
DIRECTORS STOCK OPTION PLAN
AS ASSUMED BY TRIANGLE BANCORP,INC.
SUMMARY OF THE PLAN
1. Purpose. Prior to the Merger, the Plan was intended to advance the
interests of Granville Bank by encouraging and enabling directors of Granville
Bank to acquire and retain a proprietary interest in Granville Bank by ownership
of Granville Bank common stock. Options granted under the Plan (the "Options")
were and are intended to be "non-qualified" options--that is, options which do
not meet the requirements of Section 422 of the Internal Revenue Code of 1986,
as amended (the "Code"). The current purpose of the Plan is for the Company to
fulfill certain obligations of Granville Bank in order to consummate the Merger.
2. ERISA. The Plan is not subject to the Employee Retirement Income
Security Act of 1974.
3. Stock Subject to Options. The aggregate number of shares of Common
Stock which may be issued upon the exercise of options granted under the Plan
shall not exceed 26,250 shares. The shares of Common Stock to be issued upon
exercise of an Option shall be issued by the Company.
4. Participants. Options have been granted to those individual who were
the directors of Granville Bank on March 11, 1993 (each such director an
"Optionee") .
<PAGE>
5. Terms and Conditions of Options. An Option granted under the Plan is
subject to the following terms:
(a) Vesting of Shareholder Rights and Transfer Restrictions. Neither an
Optionee nor his successor shall have any of the rights of a stockholder of
the Company until the Company receives payment for the Common Stock and the
certificates evidencing the shares purchased are properly delivered to the
Optionee or his successor. Once such shares are issued, the relative rights
of the stockholder shall be subject to any relevant transfer restrictions.
All shares shall bear a legend evidencing any restrictions on transfer to
which they are subject.
(b) Exercise of Option. Each Option may be exercised over a period
commencing at any time up to the expiration or termination of the Option.
An Optionee must pay the exercise price to the Company for the shares being
purchased at the time an Option is exercised.
(c) Nontransferability of Option. Each Option granted under the Plan
shall be transferable only by will or by the laws of descent and
distribution and shall be exercisable, during an Optionee's lifetime, only
by the Optionee to whom the Option is granted. Except as permitted by the
preceding sentence, no Option granted under the Plan or any of the rights
and privileges thereby conferred shall be transferred, assigned, pledged,
or hypothecated in any way (whether by operation of law or otherwise), and
no such Option, right, or privilege shall be subject to execution,
attachment, or similar process. Upon any attempt so to transfer, assign,
pledge, hypothecate, or otherwise dispose of the Option or any right or
privilege conferred there by, contrary to the provisions hereof, or upon
the levy of any attachment or similar process upon such Option, right, or
privilege, the Option and such rights and privileges shall immediately
become null and void.
6. Adjustments.
(a) On the date of the Merger, the securities into which the Option
was convertible was changed from Granville Bank common stock to
Company Common Stock. The number of shares underlying the Option was
multiplied by the exchange ratio used to convert Granville Bank
common stock to Company Common Stock pursuant to the Merger and the
exercise price was divided by the exchange ratio.
(b) In the event that there is (i) a subdivision or consolidation of
the Common Stock or any other capital adjustment of the Common
Stock, (ii) the payment by the Company of a stock dividend, or (iii)
any other increase or decrease in the outstanding Common Stock
effected without receipt of consideration by the Company, then the
number of shares then covered by each outstanding Option shall be
adjusted proportunately with no adjustment in the total purchase
price of the share then so covered by such Option, and the number of
shares reserved for the purpose of the Plan shall be adjusted by the
same proportion. No fractional shares shall be issued and any
fractional shares resulting from the computation shall be eliminated
from the respective Option. No adjustment shall be made for cash
dividends or the issuance to stockholders of rights to subscribe for
additional shares or other securities.
(c) If the Company is dissolved or liquidated, any Option terminates
as of a date fixed by the Company.
<PAGE>
(d) The Company makes the adjustments and determinations described
in this paragraph, and the Company's decisions as to what
adjustments or determinations will be made, and the extent thereof,
are conclusive.
7. Restrictions on Issuinq Shares. The exercise of an Option is subject
to the condition that if at any time the Company determines in its
discretion that the satisfaction of withholding tax or other
withholding liabilities, or that the listing, registration, or
qualification of any shares otherwise deliverable upon such exercise
upon any securities exchange or under any state or federal law, or
that the consent or approval of any regulatory body is necessary or
desirable as a condition of, or in connection with, such exercise or
the delivery or purchase of shares pursuant thereto, then in any
such event, such exercise will not be effective unless such
withholding, listing, registration, qualification, consent, or
approval shall have been effective or obtained free of any
conditions not acceptable to the Company.
8. Use of Proceeds. All proceeds paid by an Optionee upon exercise of
an Option are paid to the Company, and proceeds received by the
Company will be added to the Company's general funds.
9. Duration. The Plan shall terminate after the last Option has expired
or been exercised in full. Options expire ten years from the date of
grant.
RESALE RESTRICTIONS
Shares of Common Stock issued upon exercise of an Option will be
registered with the Securities and Exchange Commission (the
"Commission") pursuant to a Form S-8 registration statement under the
Securities Act ("Form S-8"). As a result, a Participant who is not an
affiliate of the Company will, for purposes of federal securities laws,
be able to sell such shares without restriction.
Shares of Common Stock issued upon exercise of an Option to an
individual who is an affiliate of the Company ("Affiliate Shares") may
only be resold by such affiliate if the Company files a prospectus with
the Commission relating to the Affiliate Shares which is prepared in
accordance with the requirements of Part I of a Form S-3 registration
statement under the Securities Act ("Form S-3") and files this
prospectus with the Commission as a post-effective amendment to the
Form S-8. If at the time of filing the amendment the Company satisfies
the requirements for the use of Form S-3, the Affiliate Shares may be
sold without limitation. If at the time of filing the amendment the
Company does not satisfy the requirements for the use of Form S-3, then
the amount of Affiliate Shares which an affiliate may resell will be
limited to the amount specified in Rule 144(e) of the Securities Act.
In general, Rule 144(e) restricts sales by affiliates within any
three-month period to the number of shares that does not exceed the
greater of (i) 1% of the outstanding shares of Common Stock or (ii) the
average weekly trading volume in the Common Stock during the four
calendar weeks preceding a sale.
The Company may in its sole discretion impose restrictions on the
resale of any shares purchased by an Optionee pursuant to exercise of
an Option.
CERTAIN FEDERAL INCOME TAX CONSEQUENCES
This section contains only a general discussion of the potential
federal income tax consequences to an Optionee. State or local tax
rules
<PAGE>
which may apply are not discussed. The tax consequences relating to
the Plan are complex. An Optionee should consult his or her personal
tax advisor regarding tax consequences of the Plan.
In general, for federal income tax purposes under present law:
(a) The granting of an Option, by itself, should not have resulted
in income to the Optionee.
(b) Except as provided in (e) below, the exercise of an Option (in
whole or in part, according to its terms) will result in ordinary
income to the Optionee at that time in an amount equal to the
excess (if any) of the fair market value of the shares on the date
of exercise over the option price.
(c) Except as provided in (e) below, the tax basis of the shares
acquired upon exercise of an Option, which will be used to
determine the amount of any capital gain or loss on a future
taxable disposition of the shares, will be the fair market value
of the shares on the date of exercise.
(d) No deduction was allowed to Granville upon the grant of an
Option, but, upon exercise of an Option by an Optionee, a
deduction will be allowed to the Company at that time in an amount
equal to the amount of ordinary income realized by the Optionee,
The Plan is not qualified under Section 401(c) of the Code.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The documents listed below filed by the Company with the Commission are
hereby incorporated by reference into this Prospectus.
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1995;
(b) The Company's Quarterly Reports on Form 10-Q for the quarters
ended March 31, 1996, June 30, 1996 and September 30, 1996;
(c) The Company's Current Report on Form 8-K dated January 3, 1996
and January 11, 1996; and
(d) The description of the Common Stock (the "Common Stock")
contained in the Company's Registration Statement on Form 8- K dated
November 27, 1996, as filed with the Commission on December 9, 1996.
In addition, all documents subsequently filed by the Company with
the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Exchange Act, prior to the filing of a post-effective amendment which
indicates that all the shares of Common Stock offered hereby have been
sold or which deregisters all shares of Common Stock then remaining
unsold, shall be deemed to be incorporated by reference in this
Prospectus and to be a part hereof from the date of filing such
documents.
AVAILABLE INFORMATION
The Company will promptly furnish, without charge, a copy of any
of the documents incorporated by reference herein, as well as the
Company's most recent Annual Report to Shareholders and any and all
documents supplementing or updating the information contained herein,
on the written or oral request of any Optionee receiving this
Prospectus. Such requests should be addressed to Susan C. Gilbert,
Secretary, Triangle Bancorp, Inc., 4300 Glenwood Avenue, Raleigh, North
Carolina 27612.
EXHIBIT 10.44
THE VILLAGE BANK
INCENTIVE STOCK OPTION AGREEMENT
THIS AGREEMENT is made on January 9, 1992, between The Village Bank of Chapel
Hill ("Bank") and Daniel E. Fox {hereinafter referred to as the "Participant"}.
Whereas the Participant is a valuable and trusted employee of the Bank, and the
Bank considers it desirable and in its best interests that the Participant be
given an inducement to acquire a further proprietary interest in the Bank, and
an added incentive to advance the interests of the Bank by possessing an option
to purchase shares of the Bank, in accordance with the Incentive Stock Option
Plan adopted by the Board of Directors of the Bank on March 8, 1982, and
approved by the stockholders on March 22, 1982.
Now, therefore, in consideration of the premises, it is agreed by and between
the parties as follows:
1. GRANT OF OPTION. The Bank hereby grants to the Participant the right,
privilege, and option to purchase 969 Bank shares of its common stock at the
purchase price of $5.25 per share, in the manner and subject to the conditions
hereinafter provided.
2. TIME OF EXERCISE OF OPTION. The aforesaid option may be exercised at any
time, and from time to time, in whole or in part, Until the termination thereof
as provided in paragraph 4 below; provided, however, that the option herein
granted to the Participant shall in no event be exercised while there is
outstanding any option previously granted to him to purchase stock of the Bank,
and further provided that for this purpose any such previously granted option
not having been exercised in full shall be deemed to remain outstanding until
the expiration of the period during which under its initial terms it could have
been exercised.
3. METHOD OF EXERCISE. The option shall be exercised by written notice directed
to the Stock Option Plan Committee of the Bank, accompanied by a check in
payment Of the option price for the number of shares specified and paid for. The
Bank shall make immediate delivery of such shares, provided that if any law or
regulation requires the Bank to take any action with respect to the shares
speclfled in such notice before the issuance thereof, then the date of deliver
of such shares shall be extended for the period necessary to take such action.
4. TERMINATION of OPTION. Except as herein otherwise stated, the option to the
extent not heretofore exercised shall terminate upon the first to occur of the
following dates:
(a) The expiration of three months after the date on which the Participant's
employment by the Bank is terminated (except if such termination be by reason of
death or permanent and total disability);
(b) The expiration of 12 months after the date on which the Participant's
employment by the Bank is terminated, if such termination be by reason of the
Participant's permanent and total disability;
(c) In the event of the Participant's death while in the employ of the Bank, his
executors of administrators may exercise, within 60 days following the date of
his death, the option as to any of the Bank shares not theretofore exercised
during his lifetime; January 10, 2002, (being the expiration of ten years from
the grant of this option).
5. RECLASSIFICATION; CONSOLIDATION, OR MERGER If and to the extent that the
number of issued shares of common stock of the Bank shall be increased or
reduced by chanqe in par value, split up, reclassification, distribution of a
dividend payable in stock, or the like, the number of shares subject to option
and the option price per share shall be proportionately adjusted. If the Bank is
reorganized Or consolidated or merged with another Bank, the Participant shall
be entitled to receive options Covering shares of such
<PAGE>
reorganized, consolidated, or merged company in the same proportion, at an
eqivalent price, and subject to the same conditions. For purposes of the
preceding sentence, the excess of the aggregate fair market value of the shares
subject to the option immediately after the reorganization, consolidation, or
merger over the aggregate option price of such shares shall not be more than the
excess of the aggregate fair market value of all shares subject to the option
immediately before such reorganization, consolidation, or merger over the
aggregate option price of such shares, and the new option or assumption of the
old option shall not give the Participant additional benefits which he did not
have under the old option, or deprive him of benefits which he had under the old
option.
6. RIGHTS PRIOR TO EXERCISE OF OPTION. This option is nontransferable by the
Participant, except in the event of his death as provided in paragraph 4(c)
above, and during his lifetime is exercisable only by him. The Participant shall
have no rights as a stockholder with respect to the option shares until payment
of the option price and delivery to him of such shares as herein provided.
7. BINDING EFFECT. This Agreement shall inure to the benefit of and be binding
upon the parties hereto and their respective heirs, executors, administrators,
successors and assigns.
In witness whereof the parties hereto have caused this Agreement to be executed
on the day and year first above written.
THE VILLAGE BANK
Chairman of the Board
and
Secretary
EXHIBIT 10.45
STANDARD BANK ANDT RUST COMPANY
1988 INCENTIVE STOCK OPTION PLAN
as assumed by Triangle Bancorp, Inc.
1. Purpose. This Plan is intended to advance the interests of the Bank by
allowing officers and other key employees who have substantial responsibility
for the direction and management of the Bank to acquire a proprietary interest
in the Bank as an additional incentive to promote the Bank's success, and by
encouraging such individuals to continue to provide their services to the Bank.
These aims will be effectuated by the granting of certain stock options. It is
intended that options issued under the Plan and designated by the Committee
(defined hereinafter) pursuant to Section 3(b) hereof will qualify as Incentive
Stock Options (hereinafter called "ISO's). Under Section 422A of the Internal
Revenue Code of 1986, as amended (the "Code"), and the terms of the Plan shall
be interpreted in accordance with this intention. Options granted under this
Plan are referred to hereinafter as "Options.',
2. Plan. The Plan shall be administered by the Compensation Committee
(the "Committee,,) of the Board of Directors ("the Board") of the Bank,
which shall consist of not less than three members. Subject to the
provisions of the Plan, the Committee shall have full authority, in its
discretion, to (a) determine the employees (from the class of employees
eligible under Section 3 hereof to receive options under the Plan) to
whom Options shall be granted; (b) determine the time or times at which
Options shall be granted: (c) determine the option price of the shares
subject to each Option, which price shall be not less than the minimum
specified in accordance with Section 5 hereof; (d) determine (subject
to Sections 7 and 9 hereof) the time or times when each Option shal1
become exercisable and the duration of the exercise; and (e) interpret
the Plan and prescribe, amend, and rescind rules and regulations
relating to it. The interpretation and construction of any provision of
the Plan by the Committee shall be final and conclusive. The Committee
may consult with counsel and other professional advisors, who may be
counsel or advisors to the Bank, and shall not incur any liability for
any action taken in good faith in reliance upon the advice of such
counsel or advisors.
3. Eligibility. (a) Options may be granted by the Committee only to
persons who are officers or other key employees of the Bank or a
subsidiary corporation of the Bank who perform services of major
importance in the management, operation, and development of the
business of the Bank or of any subsidiary of the Bank, and the
Committee shall determine the number of shares to be allocated to each
option. In determining the eligibility of an employee to receive an
Option as well as in determining the number of shares to be optioned to
any individual, the Committee shall consider the position and
responsibilities of the individual being considered, the nature and
value to the Bank of such individual's services and accomplishments,
the person's present and potential contributions to the success of the
Bank, and such other factors as the Committee may deem relevant. A
person receiving an Option pursuant to this Plan shall sometimes be
referred to hereinafter as an "Optionee."
(b) At the time each Option is granted to an employee under this
Plan, the Committee shall determine whether such Option is to be
designated as an ISO. No Option granted to any employee who at the
time of such grant owns stock possessing more than 10% of the total
combined voting power of all classes of stock of the Bank or any of
its subsidiaries may be designated as an IS0, unless at the time of
such grant the option price is fixed at not less than 110% of the
fair market value of the Shares (defined hereinafter) subject to the
Option, and exercise of such Option is prohibited by its terms after
the expiration of five years from the date such Option is granted.
(c) No individual shall be given the opportunity under this Plan to
exercise Options for Shares valued (at the time of the granting of
the Option) in excess of $100,000 in any calendar year, unless and
except to the extent that said Options shall have first become
exercisable in a preceding year. No Option shall be granted
hereunder for the purchase of Shares in such a manner as would cause
the forgoing restriction to be violated.
4. Shares of Stock Subject to the Plan. There will be reserved for use
upon the exercise of Options to be granted from time to time under the
Plan (subject to the provisions of Section 6 hereof) an aggregate of
19,232 Shares of the $5.00 par value common stock (the "Shares") of the
Bank, which, as the Committee shall from time
<PAGE>
to time determine, may be in whole or in part either authorized but unissued
Shares, or issued Shares which shall have been reacquired by the Bank. Any
Shares subject to an Option under the Plan, which Option for any reason expires
or is terminated Unexercised as to such Shares, may again be subjected to an
Option under the Plan.
5. Option Price. The purchase price under each Option issued shall
be determined by the Committee at the time the Option is granted,
but in no event shall such purchase price be less than 100% (110%,
in the case of an ISO granted to an employee described in Section
3(b) hereof) of the fair market value of the Bank's Shares on the
date of the grant. If the shares are traded in the over-the-counter
market, such fair market value shall be deemed to be the mean
between the asked and the bid prices on such day as reported by
NASDAQ. If the stock is traded on an exchange, such fair market
value shall be deemed to be the mean of the high and low prices at
which it is quoted or traded on such day on the exchange on which it
generally has the greatest trading volume. In all cases, any
determination hereunder by the Committee as to the fair market value
of the Shares for which Options are granted shall be made in good
faith and shall be determinative for all purposes of this Plan.
6. Adjustment for Dilution, Etc. In the event that there is (a) a
subdivision or consolidation of the Bank's common stock or any other
capital adjustment of the Bank's common stock, (b) the payment by
the Bank of a stock dividend, or (c) any other increase or decrease
in the outstanding common stock of the Bank effected without receipt
of consideration by the Bank, then the number of Shares then Covered
by each outstanding Option granted hereunder shall be adjusted
proportionately with no adjustment in the total purchase price of
the Shares then so covered by such Option, and the number of Shares
reserved for the purpose of the Plan shall be adjusted by the same
proportion. All such adjustments shall be made by the Committee,
whose determination upon the same shall be final and binding upon
the Optionees. No fractional Shares shall be issued and any
fractional Shares resulting from the computations pursuant to this
Section 6 shall be eliminated from the respective Option. No
adjustment shall be made for cash dividends or the issuance to
stockholders of rights to subscribe for additional Shares or other
securities.
7. Duration and Exercise of Options. (a) All Options issued under
the Plan shall be for such period as the Committee shall determine,
but for not more than ten years (five years, in the case of any
employee described in Section 3(b) hereof) from the date of the
grant thereof. The period of the Option, once it is granted, may be
reduced only as outlined in Section 9 hereof; provided, however,
that the Committee may, where the Bank is involved in a merger,
consolidation, dissolution, or liquidation, accelerate the
expiration date and the dates on which any part of the Option may be
exercisable for all the Shares Covered thereby, but the
effectiveness of such acceleration, and the exercise of the Option
pursuant thereto in excess of the number of Shares for which it
would have been exercisable in the absence of such acceleration,
shall be conditioned upon the consummation of the merger,
consolidation, dissolution, or liquidation. Except as provided in
Section 9 or subsection (b) below, no Option may be exercised after
termination of the Optionee's employment with the Bank, and in no
event may an Option he exercised after the expiration of its term.
(b) Except as otherwise modified by the Committee, or as otherwise
expressly provided for herein, each Option granted under this Plan
shall become exercisable only after five years continued
employment of the Optionee with the Bank or subsidiary corporation
of the Bank immediately following the date the Option is granted.
Notwithstanding the preceding sentence, in the event an employee's
employment with the Bank shall terminate for any reason during
such five-year period, such former employee may, within three
months after termination of his employment, exercise his option
with respect to the vested portion of the Shares subject to the
Option, determined in accordance with and based on the whole
number of years of the
3
<PAGE>
optionee's continued employment with the Bank or subsidiary corporation of the
Bank from the date the Option is granted through the date of Optionee's
termination of employment, determined in accordance with the following schedule:
Years of Percentage of
Continued Employment Shares Vested
-------------------- -------------
1 20%
2 40%
3 60%
4 80%
5 100%
In the event an Optionee terminates employment within the five-year period
described above, all Shares not vested in accordance with the Schedule described
above shall be forfeited, and the Optionee shall have no right to exercise his
Option with respect to any such forfeited Shares. In each case, such imitations
shall be calculated, in the case of any resulting fraction, to the nearest low
whole number of Shares. Notwithstanding the foregoing, the Committee may, in its
sole discretion, (i) prescribe longer time periods and additional requirements
with respect to the exercise of an Option, (ii) different vesting schedules with
respect to any Option, and (iii) terminate in whole or in part such portion of
any Option as has not yet become exercisable at the time of termination if it
determines that the Optionee is not performing satisfactorily the duties to
which he was assigned on the date the Option was granted or duties of at least
equal responsibility. Except as provided herein or in Section 9 hereof, no
Option may be exercised unless the Optionee is at the time of such exercise in
the employ of the Bank or of a subsidiary corporation of the Bank, and shall
have been continuously so employed since the grant of his Option. Absence or
leave approved by the management of the Bank shall not be considered an
interruption of employment for any purpose under the Plan.
(c) Subject to limitations contained herein as to the time for
exercise of an Option and the amount of Shares subject to such
Option, and notwithstanding subsection (b) above, each Option
shallbe exerclsable in whole or in part or in installments at such
time or times and in such manner as the Committee may prescribe
and specify in granting the Option to the Optionee, which manner
may differ from the exercise periods otherwise prescribed in
subsection (b) above. No Shares shall be delivered pursuant to any
exercise of an Option until the requirements of such laws and
regulations as may be deemed by the Committee to be applicable to
them have been satisfied, and further until receipt by the Bank of
the full option price in cash for the Shares for which an Option
is exercised. In order to facilitate the accumulation of funds to
enable employees to exercise their Options, each Optionee shall
have the right, if he or she so elects, to direct the Bank or
subsidiary corporation of the Bank to withhold from his or her
compensation regular amounts to be applied toward the exercise of
the Options, Funds credited to the Stock Option accounts will be
under the control of the Bank until applied to the payment of the
Option price at the direction of the employee or returned to the
employee in the event the amount is not used for purchase of
Shares under Option, and all funds received or held by the Bank
under the Plan may be used for any corporate purpose, and no
interest shall be payable to the participant on account of any
amounts so held. Such amounts may be withdrawn by the employee at
any time, in whole or in part, for any reason.
<PAGE>
(d) No Optionee or his legal representative, legatees, or
distributees, as the case may be, will be, or will be deemed to be, a holder of
any Shares subject to an Option unless and until certificates for such Shares
are issued to him or them under the terms of the Plan. Except as otherwise
provided herein, no adjustment shall be made for dividends or other rights for
which the record date is prior to the date such stock certificate is issued.
8. Assignability. Each Option granted under this Plan shall be
transferrable only by Will or by the laws of descent and distribution and
shall be exercisable, during an Optionee's lifetime, only by the Optionee
to whom the option is granted. Except as permitted by the preceding
sentence, no Option granted under the Plan or any of the rights and
privileges thereby conferred shall be transferred, assigned, pledged, or
hypothecated in any way (whether by operation of law or otherwise), and no
such Option, right, or privilege shall be subject to execution, attachment,
or similar process. Upon any attempt so to transfer, assign, pledge,
hypothecate, or otherwise dispose of the Option or any right or privilege
conferred thereby, contrary to the provisions hereof, or upon the levy of
any attachment or similar process upon such Option, right, or privilege,
the Option and such rights and privileges shall immediately become null and
void.
9. Effect of Termination of Employment, Death, or Disability. (a)
Notwithstanding anything in this Plan to the contrary, in the event an
Optionee's employment shall be terminated by reason of the Optionee's
retirement at his Retirement Date (defined hereinafter), the Optionee shall
have the right to exercise such Option or Options held by him, to the
extent that such Options have not previously expired or been exercised, at
any time within three months after such retirement; upon such retirement,
all Options held by such Optionee which have not been theretofore exercised
by him or otherwise expired shall be immediately exercisable in full,
notwithstanding Section 7(b) or (c) hereof.
(b) In the event that an Optionee shall die while employed by the Bank,
or shall die within three months after retirement on or after his
Retirement Date, any Option or Options granted to him under this Plan
which have not previously expired or been exercised shall be
exercisable by the estate of the Optionee (or by any person who
acquired such Option by bequest or inheritance from the Optionee) in
full, notwithstanding Section 7(b) or (c) hereof, any time within one
year after the death of the Optionee. References herein to the Optionee
shall be deemed to include any person entitled to exercise the Option
after the death of the Optionee under the terms of this Section 9(b).
(c) In the event of an Optionee's termination of employment by reason
of the Optionee's disability, the Optinnee shall have the right,
notwithstanding Section 7(b)or (c) hereof, to exercise all Options held
by him to the extent that such Options have not previously expired or
been exercised, at any time within one year after such termination;
upon such disability, all Options held by such Optionee which have not
been theretofore exercised by him or otherwise expired shall be
immediately exercisable in full, notwithstanding Section 7(b) or (c)
hereof. The term "disability" shall, for the purposes of this Plan; be
defined in the same manner as such term is defined in Section 105(d)(4)
of the Code.
(d) For the purposes of this Plan, "Retirement Date" shall mean, any
date an employee is otherwise entitled to retire under any of the
Bank's retirement plans, or if no such retirement plans exist, then the
date on which the Optionee attains age 65.
10. Listinq and Reqistration of Shares. Each Option shall be subject to the
requirement that if at any time the Committee shall determine, in its
discretion, that the listing, registration, or qualification of the Shares
<PAGE>
covered thereby upon any securities exchange or any state or federal law, or
the consent or approval of any governmental regulatory body, is necessary or
desirable as a condition of, or in connection with, the granting of such
Option or the issue or purchase of Shares thereunder, such Option may not be
exercised in whole or in part unless and until such listing, registration,
qualification, consent, or approval shall have been effected or obtained
free of any conditions not acceptable to the Committee. The Bank shall not
be required to issue or deliver any certificate for Shares of its stock
purchased upon the exercise of any part of an Option before (i) the
admission of such Shares to listing on any stock exchange in which the stock
of the Bank may then be listed, (ii) completion of any registration or other
qualification of such Shares under any state or federal law or ruling or
regulation of any governmental regulatory body that the Bank shall, in its
sole discretion, determine is necessary or advisable, and (iii) the
Committee shall have been advised by counsel that all applicable legal
requirements have been complied with and satisfied.
11. Expiration and Termination of the Plan. Options may be granted under the
Plan at any time or from time to time so long as the total number of Shares at
any one time optioned and/or purchased under this Plan does not exceed Shares.
The Plan may be abandoned or terminated at any time by the Board except with
respect to any Options then outstanding under the Plan. No Option shall be
granted pursuant to the Plan after ten years from effective date of the Plan.
12. Amendment of Plan. The Board may at any time and from time to time modify
and amend the Plan (including the form of any option agreement to be executed
pursuant hereto) in any respects; provided, however that no such amendment
shall: (a) increase (except in accordance with Section 6 hereof) the maximum
number of Shares for Which Options may be granted under the Plan either in the
aggregate or to any individual; (b) reduce (except in accordance with Section 6
hereof) the minimum option prices which may be established under the Plan; (c)
extend the period of periods during which Options may be granted or exercised;
(d) change the provisions relating to the determination of individuals to whom
Options shall be granted and the number of Shares to be covered by such Options;
or (e) change the provisions relating to adjustments to be made upon changes in
capitalization. The termination or any modification or amendment of the Plan
shall not, without the consent of the Optionee, affect such Optionee's rights
under an option theretofore granted to him.
13.Applicability of Plan to Outstanding Stock Options. This Plan shall
not affect the terms and conditions of any non-qualified stock options
heretofore granted to any individual by the Bank under any other plan or
agreement relating to non-qualified stock options, nor shall it affect any of
the rights of any individual to whom such a non-qualified stock option was
granted.
14.Effective Date of Plan. This Plan shall become effective upon adoption
by the Board, subject to approval by the shareholders of the Bank. This Plan
shall not become effective unless such shareholder approval shall be obtained
within twelve months before or after the adoption of the Plan by the Board.
EXHIBIT 10.46
As assumed by Triangle Bancorp, Inc.
STANDARD BANK AND TRUST COMPANY
1988 NON-QUALIFIED STOCK OPTION PLAN AS AMENDED IN 1994
Standard Bank and Trust Company, a banking corporation organized and
existing under the laws of the State of North Carolina (herein referred
to as the "Bank"), hereby adopts the following Non-Qualified Stock Option
Plan (the "Plan") for its Corporate Directors.
1. Purpose. This Plan is intended to advance the interests of the Bank by
allowing directors who have substantial responsibility for the direction
and management of the Bank to acquire a proprietary interest in the Bank
as an additional incentive to promote the Bank's success, and by
encouraging such individuals to continue to provide their services to the
Bank. These aims will be effectuated by the granting of certain
non-statutory, non-qualified stock options. Options granted under this
Plan are referred to hereinafter as "Options."
2. Plan. The Plan shall be administered by the Compensation Committee
(the "Committee) of the Board of Directors ("the Board") of the Bank.
Subject to the provisions of the Plan, the Committee shall have full
authority, in its discretion, to (a) determine the individuals (from the
class of individuals eligible under Section 3 hereof to receive Options
under the Plan) to whom Options shall be granted; (b) determine the time
or times at which Options shall be granted; (c) determine the option
price of the shares subject to each Option, which price shall not be less
than the minimum specified in accordance with Section 5 hereof; (d)
determine (subject to Sections 7 and 9 hereof) the time or times when
each Option shall become exercisable and the duration of the exercise;
and (e) interpret the Plan and prescribe, amend, and rescind rules and
regulations relating to it. The interpretation and construction of any
provision of the Plan by the Committee shall be final and conclusive. The
Committee may consult with counsel and other professional advisors, who
may be counsel or advisors to the Bank, and shall not incur any liability
for any action taken in good faith in reliance upon the advice of such
counsel or advisors.
3. Eligibility. (a) Options may be granted only to members of the Board
of Directors of the Bank. In determining the eligibility of a director to
receive an Option as well as in determining the number of shares to be
optioned to any director, the Committee shall consider the position and
responsibilities of the individual being considered, the nature and value
to the Bank of such individual's services and accomplishments, the
person's present and potential contributions to the success of the Bank,
and such other factors as the Committee may deem relevant. A director
<PAGE>
receiving an Option pursuant to this Plan shall sometimes be referred to
hereinafter as an "Optionee."
(b) Members of the Committee shall be entitled to receive Options
under the Plan to the same extent as other members of the board.
However, any grant of an Option to a member of the Committee must be
approved by a disinterested majority of the remaining members of the
Committee; such member must be excused from any consideration of a
grant of such Option and shall not participate in any manner in such
decision.
4. Shares of Stock Subject to the Plan. There may be reserved for use
upon the exercise of Options to be granted from time to time under the
Plan (subject to the provisions of Section 6 hereof) Sixty-Six Thousand
Four Hundred Sixty-Five Shares (66,465) of the $5.00 par value common
stock (the "Shares") of the Bank, which, as the Committee shall from time
to time determine, may be in whole or in part either authorized but
unissued Shares, or issued Shares which shall have been reacquired by the
Bank. The total number of Shares allocated to the Plan shall not exceed
ten percent (10%) of the total number of Shares which are issued and
outstanding, less the shares originally allocated to the Plan. Any Shares
subject to an Option under the Plan, which Option for any reason expires
or is terminated unexercised as to such Shares, may again be subjected to
an Option under the Plan.
5. Option Price. The purchase price under each Option issued shall be
determined by the Committee at the time the option is granted, but in no
event shall such purchase price be less than 100% of the fair market
value of the Bank's Shares on the date of the grant. If the shares are
traded in the over-the-counter market, such fair market value shall be
deemed to be the mean between the asked and the bid prices on such day as
reported by NASDAQ. If the stock is traded on an exchange, such fair
market value shall be deemed to be the mean of the high and low prices at
which it is quoted or traded on such day on the exchange on which it
generally has the greatest trading volume. In all cases, any
determination hereunder by the Committee as to the fair market value of
the Shares for which Options are granted shall be made in good faith and
shall be determinative for all purposes of this Plan.
6. Adjustment for Dilution, Etc. In the event that there is (a) a
subdivision or consolidation of the Bank's common stock or any other
capital adjustment of the Bank's common stock, (b) the payment by the
Bank of a stock dividend, or (c) any other increase or decrease in the
outstanding common stock of the Bank effected without receipt of
consideration by the Bank, then the number of Shares then covered by each
outstanding Option granted hereunder shall be adjusted proportionately
with adjustment in the total purchase price of the Shares then so covered
by such Option, and the number of Shares reserved for the purpose of the
Plan shall be adjusted by the same proportion. All such adjustments shall
be made by the Committee, whose determination upon the same shall be
final and binding upon the Optionees. No fractional Shares shall be
issued and any fractional Shares resulting from the computations pursuant
to this Section 6 shall be eliminated from the respective Option. No
adjustment shall be made for cash dividends or the issuance to
stockholders of rights to subscribe for additional Shares or other
securities.
7. Duration and Exercise of Options. (a) All Options issued under the
Plan shall be for such period as the Board shall determine, but for not
more than six years from the date of the grant thereof. The period of the
Option, once it is granted, may be reduced only as outlined in Section 9
hereof; provided, however, that the Committee may, where the Bank is
involved in a merger, consolidation, dissolution, or liquidation,
accelerate the expiration date and the dates on which any part of the
Option may be exercisable for all the Shares covered thereby, but the
<PAGE>
effectiveness of such acceleration, and the exercise of the Option
pursuant thereto in excessof the number of Shares for which it would have
been exercisable in the absence of such acceleration, shall be
conditioned upon the consummation of the merger, consolidation,
dissolution, or liquidation. In no event may an Option be exercised after
the expiration of its term.
(b) Except as otherwise modified by the Committee or as otherwise
expressly provided herein, each Option granted under this Plan shall
become exercisable only after five years continued service by the
Optionee with the Bank in a capacity described in Section 3(a)
hereof from the date the Option is granted, and such Option shall
thereupon be exercisable in full, or as to any part thereof, in
accordance with the terms of this Plan. In the event an Optionee
ceases to perform services for the Bank in any capacity indicated in
Section 3(a) hereof during such five-year period, then in such event
the Optionee shall be entitled to exercise the Option only as to the
vested portion of the Shares subject to the Option, determined in
accordance with and based on the whole number of years of the
Optionee's continued service with the Bank in said capacity from the
date the Option is granted through the date of termination of such
services, determined in accordance with the following schedule.
Years of Percentage of
Continued Employement Shares Vested
--------------------- -------------
1 20%
2 40%
3 60%
4 80%
5 100%
Any Shares not vested in accordance with the chart described hereinabove shall
be forfeited upon the termination of Optionee's services for the Bank in one of
the capacities indicated in Section 3(a) hereof, and the Optionee shall have no
right to exercise any Options with respect thereto. In each such case, such
limitations shall be calculated, in the case of any resulting fraction, to the
nearest low whole number of Shares.
(c) Subject to limitations contained herein as to the time for
exercise of an Option and the amount of Shares subject to such
option, and notwithstanding subsection (b) above, each Option shall
be exercisable in whole or in part or in installments at such time
or times and in such manner as the Committee may prescribe and
specify in granting the Option to the Optionee, which manner may
differ from the exercise periods otherwise prescribed in subsection
(b) above. No Shares shall be delivered pursuant to any exercise of
an Option until the requirements of such laws and regulations as may
be deemed by the Committee to be applicable to them have been
satisfied, and further until receipt by the Bank of the full option
price in cash for the Shares for which an Option is exercised.
(d) No Optionee or his legal representative, legatees, or
distributees, as the case may be, will be, or will be deemed to be,
a holder of any Shares subject to an Option unless and until
certificates for such Shares are issued to him or them under the
terms of the Plan. Except as otherwise provided herein, no
adjustment shall be made for dividends or other rights for which the
record date is prior to the date such stock certificate is issued.
<PAGE>
8. Assignability. Each Option granted under this Plan shall be
transferrable only by Will or by the laws of descent and distribution and
shall be exercisable, during an Optionee's lifetime, only by the Optionee
to whom the Option is granted. Except as permitted by the preceding
sentence, no Option granted under the Plan or any of the rights and
privileges thereby conferred shall be transferred, assigned, pledged, or
hypothecated in any way (whether by operation of law or otherwise), and
no such Option, right, or privilege shall be subject to execution,
attachment, or similar process. Upon any attempt so to transfer, assign,
pledge, hypothecate, or otherwise dispose of the Option or any right or
privilege conferred thereby, contrary to the provisions hereof, or upon
the levy of any attachment or similar process upon such Option, right, or
privilege, the option and such rights and privileges shall immediately
become null and void.
9. Effect of Death or Disability. (a) Notwithstanding anything in this
Plan to the contrary, in the event an Optionee's services with the Bank
in a capacity described in Section 3(a) hereof shall be terminated by
reason of the Optionee's death or disability, all Options held by such
Optionee which have not been theretofore exercised or otherwise expired
shall be immediately exercisable in full, notwithstanding subsections
7(b) or (c) hereof.
(b) Upon the death or disability of an Optionee, any Option or
Options granted to him under this Plan which have not previously
expired or been exercised shall be exercisable by the estate of the
Optionee (or by any person who acquired such Option by bequest or
inheritance from the Optionee) in full, notwithstanding Section 7(b)
or (c) hereof, any time within one year after the death of the
Optionee. References herein to the Optionee shall be deemed to
include any person entitled to exercise the Option after the death
of the Optionee under the terms of this Section 9(b). The term
"disability" shall, for the purposes of this Plan, be defined in the
same manner as such term is defined in Section 105(d)(4) of the
Code.
10. Listing and Registration of Shares. Each Option shall be subject to
the requirement that if at any time the Committee shall determine, in its
discretion, that the listing, registration, or qualification of the
Shares covered thereby upon any securities exchange or any state or
federal law, or the consent or approval of any governmental regulatory
body, is necessary or desirable as a condition of, or in connection with,
the granting of such Option or the issue or purchase of Shares
thereunder, such Option may not be exercised in whole or in part unless
and until such listing, registration, qualification, consent, or approval
shall have been effected or obtained free of any conditions not
acceptable to the Committee. The Bank shall not be required to issue or
deliver any certificate for Shares of its stock purchased upon the
exercise of any part of an Option before (i) the admission of such Shares
to listing on any stock exchange in which the stock of the Bank may then
be listed, (ii) completion of any registration or other qualification of
such Shares under any state or federal law or ruling or regulation of any
governmental regulatory body that the Committee shall, in its sole
discretion, determine is necessary or advisable, and (iii) the Committee
shall have been advised by counsel that all applicable legal requirements
have been complied with and satisfied.
11. Expiration Limitations and Termination of the Plan. Options may be
granted under the Plan at any time or from time to time so long as the
total number of Shares at any one time optioned and/or purchased under
this Plan does not exceed ten percent (10%) of the total Shares of the
Bank which are issued and outstanding in the aggregate. No director shall
be allowed to received Options to purchase Shares which exceeds forty
percent (40%) of the total number of shares allocated to the Plan. The
Plan may be abandoned or terminated at any time by the Board except with
respect to any Options then outstanding under the Plan.
<PAGE>
No Option shall be granted pursuant to the Plan after ten years from
effective date of the Plan.
12. Amendment of Plan. The Board may at any time and from time to time
modify and amend the Plan (including the form of any option agreement to
be executed pursuant hereto) in any respects; provided, however, that no
such amendment shall: (a) increase (except in accordance with Section 6
hereof) the maximum number of Shares for which Options may be granted
under the Plan either in the aggregate or to any individual; (b) reduce
(except in accordance with Section 6 hereof) the minimum option prices
which may be established under the Plan; (c) extend the period or periods
during which Options may be granted or exercised; (d) change the
provisions relating to the determination of individuals to whom Options
shall be granted and the number of Shares to be covered by such options;
or (e) change the provisions relating to adjustments to be made upon
changes in capitalization. The termination or any modification or
amendment of the Plan shall not, without the consent of the Optionee,
affect such Optionee's rights under an Option theretofore granted to him.
13. Applicability of Plan to Outstandinq Stock Options. This Plan shall
not affect the terms and conditions of any non-qualified stock options
heretofore relating to non-qualified stock options, nor shall it affect
any of the rights of any individual to whom such a non-qualified stock
option was granted, except to the extent in either event that the
individual Optionee consents to the application of this Plan to his or
her options, in which case such options shall be considered Options
granted under this Plan.
14. Effective Date of Plan. This Plan shall become effective upon
adoption by the Board, subject to approval by the shareholders of the
Bank. This Plan shall not become effective unless such shareholder
approval shall be obtained within twelve months before or after the
adoption of the Plan by the Board.
Non-Qualified Stock option Plan, as amended, approved by shareholders of
the Bank, to be effective May 17, 1994.
STANDARD BANK & TRUST COMFANY
(Corporate Seal)
- ----------------
Charles W. Carpenter President
Lou O. Clifton
Assistant Secretary
EXHIBIT 23.2
The Board of Directors
Centura Banks, Inc.:
We consent to the incorporation by reference in the registration statement
on Form S-8 of our report dated January 11, 2000, with respect to the
consolidated balance sheets of Centura Banks, Inc. and subsidiaries as of
December 31, 1999 and 1998, and the related consolidated statements of income,
shareholders' equity, and cash flows for each of the years in the three-year
period ended December 31, 1999, which report appears in the December 31, 1999
annual report on Form 10-K of Centura Banks, Inc.
KPMG LLP
May 10, 2000
Exhibit 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated March 6, 2000 relating to the
supplemental consolidated financial statements, which appears in Item 8 in
Centura Banks, Inc. Annual Report on Form 10-K for the year ended December 31,
1999.
/s/PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Raleigh, North Carolina
May 11, 2000
