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EXHIBIT 4.4
PERPETUAL BANK 1997 MANAGEMENT RECOGNITION AND DEVELOPMENT PLAN
(AS ASSUMED BY SOUTHBANC SHARES, INC.)
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PERPETUAL BANK, A FEDERAL SAVINGS BANK
1997 MANAGEMENT RECOGNITION AND DEVELOPMENT PLAN
(AS ASSUMED BY SOUTHBANC SHARES, INC.)
1. PURPOSE; DEFINITIONS.
The purpose of the Plan is to increase the proprietary and vested interest
of the key Employees of the Bank and its Affiliates in the growth, development
and financial success of the Bank by granting them awards of Restricted Shares.
Whenever the following terms are used in the Plan, they shall have the
meaning specified below unless the context clearly indicated to the contrary.
"Affiliate" shall mean the Bank and any other "subsidiary" of the Bank as
defined in Section 424(f) of the Code.
"Award" shall mean an award of Restricted Shares under the Plan.
"Bank" shall mean Perpetual Bank, A Federal Savings Bank, Anderson, South
Carolina, or any successor thereto.
"Board" shall mean the Board of Directors of the Bank.
"Change in Control" shall mean an event deemed to occur if and when (a) an
offeror other than the Bank purchases shares of the common stock of the Bank
pursuant to a tender or exchange offer for such shares, (b) any person (as such
term is used in Sections 13(d) and 14(d)(2) of the Exchange Act) is or becomes
the beneficial owner, directly or indirectly, of securities of the Bank
representing twenty-five percent (25%) or more of the combined voting power of
the Bank's then outstanding securities, (c) the membership of the board of
directors of the Bank changes as the result of a contested election, such that
individuals who were directors at the beginning of any twenty-four (24) month
period (whether commencing before or after the date of adoption of this Plan) do
not constitute a majority of the Board at the end of such period, or (d)
shareholders of the Bank approve a merger, consolidation, sale or disposition of
all or substantially all of the Bank's assets or a plan of partial or complete
liquidation. If any of the events enumerated in clauses (a) - (d) occur, the
Board shall determine the effective date of the change in control resulting
therefrom. Notwithstanding anything herein to the contrary, a "Change in
Control" shall not include the acquisition of the Bank by a stock savings and
loan holding company formed at the direction of the Board.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Committee" shall mean the committee of the Board designated by the Board
to administer the Plan. If a separate committee is not designated by the Board,
the Board shall serve as the Committee for all purposes under the Plan.
"Designated Beneficiary" shall have the meaning set forth in Section 2.2
hereof.
"Disability" shall have the meaning set forth in Section 22(e)(3) of the
Code. For purposes of the Plan, all determinations as to whether a Participant
has become disabled shall be made by a majority of the Board, a majority upon
the basis of such evidence as its deems necessary or desirable, and shall be
final and binding on all interested persons.
"Effective Date" shall have the meaning set forth in Section 5.1 hereof.
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"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
"Employee" shall mean any person who is currently employed by the Bank or
an Affiliate.
"Participant" shall mean an Employee to whom an award of Restricted Shares
is granted pursuant to the Plan.
"Plan" shall mean this Perpetual Bank, A Federal Savings Bank 1997
Management Recognition and Development Plan, as hereinafter amended from time to
time.
"Restricted Shares" shall mean Shares which are awarded to an Employee
that are subject to the transfer and forfeitability restrictions described in
Section 4.2.
"Share" shall mean a share of the Bank's common stock, par value $1.00 per
share.
2. ADMINISTRATION.
2.1 Administration
The Plan shall be administered by the Committee, which shall have the
power to interpret the Plan and to adopt such rules for the administration,
interpretation and application of the Plan and Awards thereunder as are
consistent with its terms and provisions and to interpret, amend or revoke any
such rules. All actions taken and all interpretations and determinations made by
the Committee shall be binding upon all persons, including the Bank,
stockholders, Participants and Designated Beneficiaries. The Secretary of the
Bank shall be authorized to implement the Plan in accordance with its terms, and
to take such actions of a ministerial nature as shall be necessary to effectuate
the intent and purposes thereof. No member of the Committee shall be personally
liable for any action, determination or interpretation made in good faith with
respect to the Plan or the awards hereunder, and all members of the Board shall
be fully protected by the Bank in respect to any such action, determination or
interpretation.
2.2 Designated Beneficiaries
If a Participant dies prior to receiving any payment due under the Plan,
such payment shall be made to his Designated Beneficiary. A Participant's
Designated Beneficiary shall be the beneficiary specifically designated by a
Participant in writing to receive amounts due the Participant in the event of
the Participant's death. In the absence of an effective designation by the
Participant, Designated Beneficiary shall mean the Participant's surviving
spouse or, if none, his estate.
3. SHARES SUBJECT TO THE PLAN.
3.1 Shares Subject to the Plan
The maximum number of Shares that may be the subject of Awards under this
Plan shall be 23,400. The Bank shall reserve such number of Shares for the
purposes of the Plan out of its authorized but unissued Shares or out of Shares
held in the Bank's treasury, or partly out of each. In the event that a trust is
established in connection with the Plan pursuant to Section 5.4, the Bank may
authorize the trustees of the trust to purchase Shares in the open market with
funds contributed by the Bank and such shares shall be included in the number of
shares that may be the subject of Awards. In the event that Restricted Shares
are forfeited for any reason, such Shares shall thereafter again be available
for award pursuant to the Plan.
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3.2 Changes in the Bank's Shares
In the event that the Committee shall determine that any recapitalization,
reorganization, merger, consolidation, stock split, spin-off, combination, or
exchange of Shares, or other similar corporate event affects the Shares such
that an adjustment is required in order to preserve the benefits or potential
benefits intended under this Plan, the Committee shall, in such manner as it may
deem equitable, adjust any or all of the number and kind of Shares which
thereafter may be awarded under the Plan, or the number and kind of Shares
subject to outstanding awards; provided, however, that the number of Shares
subject to any award shall always be a whole number.
4. RESTRICTED SHARES
4.1 Eligibility; Awards Under the Plan
(a) Eligibility. Employees (including officers and employee directors of
the Bank) shall be eligible to participate in the Plan upon designation by the
Committee. To the extent that Shares are available for grant under the Plan, the
Committee may determine which of the Employees shall be granted an Award and the
number of Restricted Shares covered by each Award. In selecting those Employees
to whom Awards will be granted and the number of Shares covered by such Awards,
the Committee shall consider the position and responsibilities of the eligible
Employees, the length and value of their services to the Bank and its
Affiliates, the compensation paid to the Employees and any other factors the
Committee may deem relevant, and the Committee may request the written
recommendation of the chief executive officer and other senior executive
officers of the Bank and its Affiliates.
(b) Limitation on Awards. No Employee shall receive an Award covering in
excess of twenty five percent (25%) of the number of shares reserved for
issuance under the Plan.
(c) Fractions of Shares. Whenever under the terms of the Plan a fractional
share would be required to be issued, the fractional share shall be rounded up
to the next full share.
4.2 Terms of Awards
The Restricted Shares awarded hereunder shall be awarded only pursuant to
a written agreement, which shall be executed by the Participant and a duly
authorized officer of the Bank and which shall contain the following terms and
conditions:
(a) Acceptance of Award. An award of Restricted Shares must be accepted by
the Participant within a period of sixty (60) days (or such other period as the
Board may specify at grant) after the award date by the execution of a
Restricted Share award agreement in the form provided by the Bank.
(b) Restrictions and Conditions. The Restricted Shares awarded to a
Participant pursuant to this Section 4 shall be subject to the following
restrictions and conditions:
(i) A Participant shall not be permitted to vote, sell, transfer,
pledge, assign or otherwise encumber Restricted Shares awarded under the Plan
prior to the date on which such shares vest in accordance with clause (iii),
except in accordance with the laws of descent and distribution.
(ii) On the date an Award of Restricted Shares vests in accordance
with clause (iii), a Participant (or his beneficiary) shall be entitled to
receive any cash dividends previously paid with respect to the Restricted
Shares, together with interest accrued thereon. Prior to such date, cash
dividends shall be held by the Bank for the account of the Participant. Stock
dividends, if any, issued with respect to Restricted Shares shall be treated as
additional Restricted Shares that are subject to the same restrictions and other
terms and conditions that apply with respect to the Restricted Shares with
respect to which such dividends are paid.
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(iii) Subject to the applicable provisions of the Restricted Share
award agreement and this Section, a Participant's interest in Shares shall
immediately become fully vested and nonforfeitable, and the restrictions set
forth in this Section 4.2 shall lapse, (x) ratably over a five (5) year period
whereby twenty percent (20%) of the Award shall vest on each of the first
through the fifth anniversaries of the date of grant so long as the Participant
remains as Employee (y) upon the Participant's death or Disability, or (z) upon
a Change in Control (to the extent such treatment is authorized or not
prohibited by applicable law or regulations).
4.3 Stock Certificates
A stock certificate registered in the name of each Participant receiving a
Restricted Share award (or in the name of a trustee for the benefit of each
Participant) shall be issued in respect of such shares. Such certificate shall
bear whatever appropriate legend referring to the terms, conditions, and
restrictions applicable to such award as the Board shall determine. The Board
may, in its sole discretion, require that the stock certificates evidencing
Restricted Shares be held in custody by the Bank (or in trust by a trustee)
until the restrictions thereon shall have lapsed.
5. MISCELLANEOUS.
5.1 Shareholder Approval; Effective Date; Term
The Plan shall become effective on April 1, 1997 but only if on or before
such date the Plan is approved by a majority of the Bank's shareholders (other
than SouthBanc Shares, M.H.C.). The Plan shall continue in effect until the
tenth anniversary of the Effective Date.
5.2 Amendment, Suspension or Termination of the Plan
The Plan may be wholly or partially amended or otherwise modified,
suspends or terminated at any time or from time to time by the Board; provided,
however, that no amendment or modification shall be made without shareholder
approval if such approval is necessary to comply with any tax or regulatory
requirement.
From and after the Effective Date, neither the amendment, suspension nor
termination of the Plan shall, without the consent of the Participant, alter or
impair any rights or obligations under any award theretofore granted. No awards
may be granted during any period of suspension nor after termination or
expiration of the Plan.
5.3 Regulations and Other Approvals
(a) The obligation of the Bank to deliver Shares with respect to any award
granted under the Plan shall be subject to all applicable laws, rules and
regulations, including all applicable federal and state securities laws, and the
obtaining of all such approvals by governmental agencies as may be deemed
necessary or appropriate by the Board.
(b) The Board may make such changes to the Plan as may be necessary or
appropriate to comply with the rules or requirements of any governmental
authority.
(c) Each award of Shares is subject to the requirement that, if at any
time the Board determines, in its sole discretion, that the listing,
registration or qualification of Shares issuable pursuant to the Plan is
required by any securities exchange or under any United States, 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, issuance of Shares, no
Shares shall be issued, in whole or in part, unless listing, registration,
qualification, consent or approval has been effected or obtained free of any
conditions as acceptable to the Board.
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(d) In the event that the disposition of Shares acquired pursuant to the
Plan is not covered by a then current registration statement under the
Securities Act of 1933, and is not otherwise exempt from such registration, such
Shares shall be restricted against transfer to the extent required by the
Securities Act of 1933 or regulations thereunder, and the Board may require any
individual receiving Shares pursuant to the Plan, as a condition precedent to
receipt of such Shares, to represent to the Bank in writing that the Shares
acquired by such individual are acquired for investment only and not with a view
to distribution. The certificate for any Shares acquired pursuant to the Plan
shall include any legend that the Board deems appropriate to reflect any
restrictions on transfer.
(e) At the time of grant of any award, the Board may provide in the
Restricted Share award agreement that any Shares received as a result of such
grant shall be subject to a right of first refusal in favor of the Bank,
pursuant to which the Participant shall be required to offer to the Bank any
Shares that he wishes to sell, with the price being the then fair market value
of such Shares, subject to such other terms and conditions as the Board may
specify in the award agreement.
(f) Rule 16b-3 Compliance. With respect to persons subject to Section 16
of the Exchange Act, transactions under this Plan are intended to comply with
all applicable terms and conditions of Rule 16b-3 and any successor provisions.
To the extent that any provision of the Plan or action by the Committee fails to
so comply, it shall be deemed null and void, to the extent permitted by law and
deemed advisable by the Committee.
(g) A Participant shall be required to pay to the Bank the amount of any
applicable withholding taxes in respect of an Award and the Bank shall be
authorized to take such other action as may be necessary in the opinion of the
Bank to satisfy all obligations for the payment of such taxes, including, but
not limited to, the withholding of the issuance of Shares to be issued upon the
vesting of any Award, until the Participant reimburses the Bank for any amount
required to be withheld.
5.4 Trust Arrangement
All benefits under the Plan represent an unsecured promise to pay by the
Bank. The Plan shall be unfunded and the benefits hereunder shall be paid only
from the general assets of the Bank resulting in the Participants having no
greater rights than the Bank's general creditors; provided, however, that
nothing herein shall prevent or prohibit the Bank from establishing a trust or
other arrangement for the purpose of providing for the payment of the benefits
payable under the Plan.
5.5 Governing Law
The Plan and the rights of all persons claiming hereunder shall be
construed and determined in accordance with the laws of the State of South
Carolina without giving effect to the choice of law principles thereof.
5.6 Titles; Construction
Titles are provided herein for convenience only and are not to serve as a
basis for interpretation or construction of the Plan. The masculine pronoun
shall include the feminine and neuter and the singular shall include the plural,
when the context so indicates.
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