Exhibit 10.6
MOUNTAINBANK
1997 DIRECTOR STOCK OPTION PLAN
-------------------------------
MOUNTAINBANK (the "Bank") hereby adopts this 1997 DIRECTOR STOCK OPTION
PLAN (the "Plan") as further described herein.
ARTICLE I
PURPOSE AND SCOPE OF PLAN
-------------------------
1.1 Purpose.
-------
The purpose of the Plan is to encourage the continued service of Directors of
the Bank or any company which is a subsidiary of the Bank (a "Subsidiary"), and
to provide an additional incentive for such Directors to expand and improve the
profits and prosperity of the Bank and its Subsidiaries, by granting them
options to purchase shares of the Bank's common stock. The Plan also will
assist the Bank and its subsidiaries in recruiting and retaining persons to
serve as Directors of the Bank and its Subsidiaries.
1.2 Stock Subject to Plan.
---------------------
Pursuant to and in accordance with the terms of the Plan, options ("Options")
may be granted from time to time to purchase shares of the Bank's common stock,
$5.00 par value per share ("Common Stock").
The aggregate number of shares of Common Stock which may be sold upon the
exercise of Options granted under the Plan is 60,000 shares, which maximum
number is subject to adjustment as provided in Paragraph 6.1 hereof. Shares of
Common Stock sold by the Bank upon the exercise of Options granted hereunder, at
the sole discretion of the Bank, may be issued from the Bank's authorized but
unissued shares, or be issued and outstanding shares purchased by the Bank on
the open market or in private transactions. In the event an Option granted
under the Plan shall expire or terminate for any reason without having been
exercised in full, then, to the extent the Plan shall remain in effect, the
shares of Option Stock covered by the unexercised portion of such Option shall
again be available for the grant of Options under the Plan.
1.3 Effective Date.
--------------
The Plan shall become effective as of December 8, 1997 (the "Effective Date,"
which is the date of adoption of the Plan by the Bank's Board of Directors);
provided, however, that notwithstanding anything contained herein to the
contrary, the Plan shall be
subject to approval of the North Carolina Commissioner of Banks and other
banking regulators to the extent required by law and to approval of the Bank's
shareholders by a vote of the holders of two-thirds of the outstanding shares of
the Bank's Common Stock at a meeting of the Bank's shareholders held in
accordance with North Carolina law. Options may be granted pursuant to the Plan
prior to receipt of such approvals, but any such Options granted shall be
subject to, and may not become exercisable until, receipt of such approvals.
1.4 Termination Date. Unless sooner terminated as provided herein, the Plan
----------------
shall terminate at 5:00 P.M. on December 7, 2007 (the "Termination Date").
Following the Termination Date, no further Options may be granted under the
Plan, but such termination shall not effect any Option granted prior to the
Termination Date.
ARTICLE II
DEFINITIONS
-----------
2.1 Bank. "Bank" refers to MountainBank and to any successor to to the Bank
----
which shall have assumed or become liable for the Bank's obligations pursuant to
any Option granted or Option Agreement entered into pursuant to the Plan.
2.2 Board. "Board" refers to the Bank's Board of Directors.
-----
2.3 Committee. "Committee" refers to the committee of and appointed or
---------
designated by the Board to administer the Plan as described in Article III
below.
2.4 Common Stock. "Common Stock" refers to the common stock of the Bank, par
------------
value $5.00 per share.
2.5 Date of Grant. The "Date of Grant" of an Option refers to the effective
-------------
date of action by the Committee granting such Option.
2.6 Director. "Director" refers to a member of the Board or of the Board of
--------
Directors of any of its Subsidiaries.
2.7 Exercise Price. "Exercise Price" refers to the price per share to be paid
--------------
by an Optionee for the purchase of Option Stock upon the exercise of an Option.
2.8 Expiration Date. "Expiration Date" refers to the date set by the Committee
---------------
at which time any unexercised portion of an Option automatically will terminate
and be of no further force or effect.
2.9 Modification, Extension or Renewal. "Modification" refers to any change in
----------------------------------
an Option which alters or modifies the original terms, conditions or benefits of
the Option granted to the Optionee. "Extension" refers to the granting to the
Optionee of an
2
additional period of time within which to exercise the Option beyond the
Expiration Date originally prescribed in the Option Agreement. "Renewal" refers
to the granting of an Option to the Optionee with the same rights and privileges
and on the same terms and conditions as contained in an original Option after
expiration or termination of the original Option.
2.10 Non-Employee Director. "Non-Employee Director" refers to a member of the
---------------------
Board who satisfies the definition of that term contained in Rule 16b-3(b)(3)
under the Securities Exchange Act of 1934, as such rule may be amended from time
to time.
2.11 Option. "Option" refers to a right granted to a Director by the Bank
------
pursuant to the Plan to purchase shares of Common Stock at the Exercise Price
set by the Committee for such Option and on the terms and conditions set forth
herein and in the Option Agreement relating to such Option.
2.12 Option Agreement. "Option Agreement" refers to a formal written agreement
----------------
executed between the Bank and an Optionee setting forth the terms and conditions
of an Option.
2.13 Option Stock. "Option Stock" refers to the shares of Common Stock covered
------------
by an Option and which may be purchased by the Optionee upon the exercise, in
whole or in part, of such Option.
2.14 Optionee. "Optionee" refers to a Director to whom an Option is granted.
--------
2.15 Regulatory Authority. "Regulatory Authority" refers to any governmental
--------------------
agency or authority having jurisdiction over the Bank or its Subsidiaries,
including but not limited to the Federal Deposit Insurance Corporation, the
North Carolina Banking Commissioner, the North Carolina State Banking
Commission, the Federal Reserve Board or any other regulator.
ARTICLE III
PLAN ADMINISTRATION
-------------------
3.1 General.
-------
The Plan shall be administered by the Committee which shall be composed solely
of two or more Non-Employee Directors. Members of the Committee shall serve at
the pleasure of the Board, and the Board, from time to time and at its
discretion, may remove members from (with or without cause) or add members to
the Committee or fill any vacancies on the Committee, however created.
3
3.2 Duties.
------
In its administration of the Plan, the Committee shall have the authority,
power and duty:
(a) to make any and all determinations regarding persons who are eligible to
receive Options under the Plan;
(b) to construe and interpret the terms and provisions of the Plan and any and
all Option Agreements entered into pursuant to the Plan;
(c) to make, adopt, amend, rescind, and interpret such rules and regulations
not inconsistent with the Plan or law as it from time to time deems
reasonable and necessary for the interpretation and administration of the
Plan;
(d) to prescribe the form or forms of the instruments evidencing any Options
granted under the Plan and of any other instruments required under the Plan
and to change such forms from time to time;
(e) to determine:
(i) the Directors to whom Options shall be granted pursuant to the Plan
and the timing of such grant or grants, and to cause Options to be
granted to Directors it selects;
(ii) the number of shares of Option Stock to be covered by each Option
granted;
(iii) the Exercise Price to be paid for Option Stock upon exercise of the
Option as set forth in the Option Agreement and as determined in
accordance with Paragraph 4.3 hereof;
(iv) the Expiration Date of each Option granted, and the period within
which any such Option may be exercised;
(v) any other term and/or condition of each Option (which need not be
identical from Option to Option) so long as not inconsistent with
the Plan; and,
(f) to make all other determinations and take all other actions provided for
herein or deemed by it, in its discretion, to be necessary or advisable to
administer the Plan in a proper and effective manner.
4
3.3 Meetings and Voting.
-------------------
The Committee shall select one of its members as Chairman and shall hold
meetings at such times and places as it shall deem necessary or desirable. A
majority of the members of the Committee shall constitute a quorum for all
matters with respect to administration of the Plan, and acts of a majority of
the members of the Committee present at meetings at which a quorum is present,
or acts reduced to and approved in writing by all of the members of the
Committee without a meeting, shall be valid acts of the Committee.
3.4 Effect of Committee Action.
--------------------------
All actions, decisions and determinations of the Committee in connection with
the administration of the Plan, and in connection with the interpretation and
construction of, or questions or other matters concerning, the Plan or any
Option granted, shall (i) be made consistent and in accordance with the terms of
the Plan, and (ii) shall be final, conclusive and binding on all persons,
including the Bank, its shareholders, Optionees and any other person claiming
any interest in any Option; provided, however, that any action, decision,
interpretation or determination, other than those respecting the actual grant of
Options, shall be subject to review by the Board of Directors either on its own
initiative, at the request of the Committee or on application of any aggrieved
party. In such a case, the determination of the Board of Directors on such
review shall be final and binding on all affected parties.
3.5 Indemnification.
---------------
To the extent permitted by applicable law, and in addition to such other rights
of indemnification that members of the Committee may have as Directors of the
Bank, the members of the Committee shall be indemnified by the Bank against the
reasonable expenses, including attorneys' fees, actually and necessarily
incurred in connection with the defense of any action, suit or proceeding, or in
connection with any appeal thereof, to which they or any of them may be made a
party by reason of any action taken or omitted in good faith under or in
connection with administration of the Plan or any Option granted hereunder and
against all amounts paid by them in settlement thereof (provided such settlement
is approved by independent legal counsel selected by the Bank) or paid by them
in satisfaction of a judgment in any such action, suit or proceeding, except in
relation to matters as to which it shall be adjudged in such action, suit or
proceeding that any such Committee member is liable for gross negligence or
misconduct in the performance of his duties; provided, however, that within
thirty (30) days after institution of any such action, suit or proceeding, such
Committee member(s) shall in writing offer the Bank the opportunity, at its own
expense, to handle and defend same.
5
ARTICLE IV
GRANT AND TERMS OF OPTIONS
--------------------------
4.1 Authorization to Grant Options.
------------------------------
Pursuant to the Plan, from time to time prior to the Termination Date the Bank
may grant Options to Directors to purchase shares of Common Stock. Options may
only be granted by action of the Committee, and no person shall have any rights
under the Plan or with respect to any Option except pursuant to such action of
the Committee.
4.2 Number of Shares.
----------------
The number of shares of Option Stock covered by each Option shall be set by the
Committee at the time such Option is granted and shall be specified in the
Option Agreement evidencing such Option; provided, however, that the number of
shares of Option Stock covered by Options granted from time to time to any one
Director under the Plan may not exceed 40% of the aggregate number of shares of
Common Stock originally available for the grant of Options under the Plan from
time to time. The number of shares of Option Stock covered by each Option shall
be subject to adjustment in the manner described in Paragraph 6.1 below.
4.3 Exercise Price.
--------------
At the time an Option is granted, the Committee shall set the Exercise Price
applicable to such Option. The Exercise Price shall be determined by the
Committee in the manner described below and shall be specified in the Option
Agreement evidencing the Option. The Exercise Price applicable to each Option
shall be subject to adjustment in the manner described in Paragraph 6.1 below.
The Exercise Price for each share of Option Stock covered by an Option shall not
be less than one hundred percent (100%) of the fair market value of one share of
the Common Stock on the Date of Grant of such Options (the "Fair Market Value").
The Fair Market Value on any particular date shall be, (i) if the Common Stock
is not then listed on the Nasdaq Stock Market, the fair market value of a share
of the Common Stock as determined by the Committee in its sole discretion in
such manner as it shall deem to be reasonable and appropriate, or, (ii) if the
Common Stock is listed on the Nasdaq Stock Market, the average of the bid and
asked prices for a share of the Common Stock as quoted by Nasdaq on such date.
4.4 Option Agreements.
-----------------
Each Option granted under the Plan shall be evidenced by an Option Agreement
which shall be executed and delivered by the Optionee and by or on behalf of the
Bank and which shall (i) contain such
6
information as is provided or permitted herein to be contained in the Option
Agreement, and (ii) not contain any provisions inconsistent with the Plan.
Following the execution of an Option Agreement evidencing an Option, such Option
shall be effective as of the Date of Grant of such Option.
ARTICLE V
EXERCISE OF OPTIONS
-------------------
5.1 Waiting Period.
--------------
No Option may be exercised unless and until the Optionee shall have completed
six months (or such other or longer period as shall be determined by the
Committee and specified in the Option Agreement evidencing that Option) of
continuous, full time service as a Director following the Date of Grant of the
Option, but thereafter, subject to earlier termination, may be exercised as
provided herein and in the Option Agreement evidencing such Option. The waiting
period provided herein shall not operate to extend the Expiration Date or other
date of termination of an Option set forth or referred to in Article V below.
5.2 Term; Conditions on Exercise; Expiration or Termination.
-------------------------------------------------------
The Expiration Date of each Option shall be set by the Committee at the time the
Option is granted and shall be specified in the Option Agreement evidencing the
Option, but in no event shall be more than ten (10) years following the Date of
Grant of the Option.
Subject to the other terms and conditions contained in the Plan, each Option may
be exercised by the Optionee at such times or intervals and on such other terms
and conditions (if any) as are determined by the Committee and specified in the
Option Agreement evidencing the Option.
Notwithstanding anything contained herein or in any Option Agreement to the
contrary, to the extent that an Option shall not previously have been exercised
in the manner required by the Plan, it shall expire and terminate at 5:00 P.M.
on its Expiration Date. In addition to the termination provisions set forth
above, Options granted pursuant to the Plan shall terminate or may be terminated
as provided in Paragraphs 5.7 and 6.1 below. Upon the expiration or
termination of all or any portion of an Option, such Option or portion thereof
shall, without any further act by the Bank, expire and no longer be exercisable
or confer any rights to any person to purchase shares of Common Stock under the
Plan.
5.3 Notice of Exercise.
------------------
To exercise an Option in whole or in part, the Optionee or other person then
entitled to exercise the Option or portion thereof
7
shall notify the Bank by delivering written notice of such exercise (a "Notice
of Exercise") to the President or the Secretary of the Bank. Such written notice
shall be substantially in the form attached hereto as Exhibit A and shall
specify the number of shares of Option Stock to be purchased. A Notice of
Exercise shall not be effective (and the Bank shall have no obligation to sell
any Option Stock to the Optionee pursuant to such Notice) unless it satisfies
the terms and conditions set forth herein and actually is received by the Bank
as provided above prior to the Expiration Date of the Option to be exercised.
In the event an Option or portion thereof is being exercised by a person other
than the Optionee (as provided in Paragraph 5.7(c) below), the Notice of
Exercise shall be accompanied by appropriate proof of the right of such
person(s) to exercise the Option.
5.4 Payment Upon Exercise.
---------------------
The Exercise Price of Option Stock being purchased upon the exercise of an
Option (in part or in whole) shall be paid by the Optionee in full at the time
of such exercise. Such payment may be made (i) in cash, (ii) by official bank
check, bank money order or other certified funds, or (iii) in the discretion of
the Committee, by a combination thereof. No Option Stock shall be issued or
delivered until full payment of the Exercise Price therefor has been made.
5.5 Restrictions.
------------
At the time an Option is granted, the Committee shall have the authority, in its
sole discretion, to impose restrictions of any nature on the exercise of such
Option (including restrictions in the form of a schedule by which an Option
become exercisable in increments over a period of time) and on the Option Stock
acquired by the Optionee upon such exercise. Without limiting the generality of
the foregoing, the Committee may impose conditions restricting absolutely the
transferability of Option Stock acquired through exercise of any Options for
such periods as the Committee may determine. Any such restrictions imposed by
the Committee shall be specified in the Option Agreement.
5.6 Nontransferability.
------------------
Options granted hereunder shall not be assignable or transferable except by will
or by the laws of descent and distribution, and, during the lifetime of the
Director, be exercised only by him. More particularly, but without limiting the
generality of the foregoing, an Option may not be sold, assigned, transferred
(except as noted herein), pledged or hypothecated in any way and shall not be
subject to execution, attachment or similar process.
8
5.7 Termination of Service.
----------------------
(a) In the event an Optionee's service as a Director shall terminate or be
terminated prior to the Expiration Date of his or her Option for any reason
other than his or her death, "Disability" (as defined below) or
"Retirement" (as defined below), then the Optionee's Option immediately
shall terminate at the times specified below.
(i) If, prior to the Expiration Date of his or her Option, an
Optionee voluntarily terminates his or her service as a Director
other than as a result of "Retirement" (as defined below) or
declines to stand for reelection as a Director at the expiration
of any term of office, then, to the extent it shall not
previously have been exercised in the manner required by the
Plan, any Option previously granted to the Optionee which remains
outstanding and in effect immediately shall terminate and be of
no further force or effect on the effective date of such
termination of service.
(ii) If, prior to the Expiration Date of his or her Option, an
Optionee's service as a Director is terminated as a result of
"Retirement" (as defined below) with the consent of the Bank, the
Optionee shall have the right to exercise his rights pursuant to
his Option within ninety (90) days following the date of such
Retirement (but not later than the Expiration Date of the Option)
in accordance with the terms of the Plan, at the end of which
period the Option shall terminate and be of no further force or
effect.
The termination of an Optionee's service as a Director under
circumstances as the Committee shall agree in writing to treat as
"Retirement" for purposes of the Plan shall be deemed to be a
"Retirement" with the consent of the Bank.
(iii) If, prior to the Expiration Date of his or her Option, an
Optionee's service as a Director is terminated as a result of his
or her removal by shareholders, or as a result of his failure to
be nominated for reelection or to be reelected by shareholders as
a Director, then, to the extent it shall not previously have been
exercised in the manner required by the Plan, any Option
previously granted to the Optionee which remains outstanding and
in effect immediately shall terminate and be of
9
no further force or effect on the effective date of such
termination of service.
(b) Disability of Optionee: If, prior to the Expiration Date of his or her
Option, an Optionee becomes "Disabled" (as defined below) and his or her
service as a Director is terminated as a result, then, to the extent it
shall not previously have been exercised in the manner required by the
Plan, the Optionee shall have the right to exercise his rights pursuant to
his Option within ninety (90) days following the effective date of such
termination (but not later than the Expiration Date of the Option) in
accordance with the terms of the Plan, at the end of which period the
Option shall terminate and be of no further force or effect. For purposes
of this Paragraph 5.7(b), the determination of whether an Optionee shall be
considered "Disabled" shall be within the sole discretion of the Committee.
(c) Death of Optionee: If an Optionee shall die while serving as a Director and
prior to the Expiration Date of an Option held by him or her, then, to the
extent the Option held by the Optionee at the time of his or her death
remains in effect and could be exercised by the Optionee under the terms of
the Plan and the Option Agreement relating to it, his designated
beneficiary (determined either by will or other writing delivered to the
Committee in advance), or if no designated beneficiary, the personal
representative of his estate, shall have the right to exercise such
Optionee's rights pursuant to his Option following the date of his death,
but not later than the Expiration Date of the Option, in accordance with
the terms of the Plan. Any references herein to an Optionee shall be deemed
to include any person entitled to exercise an Option after the death of
such Optionee under the terms of this Plan.
5.8 Modification, Extension and Renewal of Options.
----------------------------------------------
Subject to the provisions of Paragraph 6.1 below, any Option may be Modified,
Extended or Renewed (as those terms are defined in Article II) only upon the
agreement of the Committee and the Optionee. Any such agreement shall be in the
form of a written amendment to the Option Agreement evidencing the Option being
Modified, Extended or Renewed and which shall set forth the terms of any such
Modification, Extension or Renewal.
5.9 Other Provisions.
----------------
In addition to the items required to be in the Option Agreement evidencing an
Option, such Option Agreement may contain such other terms, conditions and
provisions applicable to such Option or the exercise thereof (including any and
all limitations or restrictions as shall be necessary to comply with any
applicable federal and
10
state securities laws and regulations) as the Committee shall, at its sole
discretion, deem necessary or desirable; provided, however, that the Committee
may not impose any such terms, conditions or provisions that are inconsistent
with any provisions of the Plan.
5.10 Issuance of Option Stock.
------------------------
A stock certificate representing the number of shares of Option Stock purchased
by the Optionee upon the proper exercise of an Option shall be issued and
delivered by the Bank as soon as practicable after receipt of a valid and
effective Notice of Exercise and full payment of the Exercise Price relating to
those shares. Such certificate shall be delivered to or on the written order of
the person exercising the Option.
ARTICLE VI
GENERAL PROVISIONS
------------------
6.1 Adjustment of Options.
---------------------
(a) Changes in Capitalization; Stock Splits and Dividends. In the event of (i)
any dividend payable by the Bank in shares of Common Stock, or (ii) any
recapitalization, reclassification, split-up, consolidation or combination
of, or other change in or offering of rights to the holders of, Common
Stock, or (iii) an exchange of the outstanding shares of Common Stock for a
different number or class of shares of stock or other securities of the
Bank in connection with a merger, consolidation or other reorganization of
or involving the Bank (provided the Bank shall be the surviving or
resulting corporation in any such merger or consolidation), then the
Committee shall, in such a manner as it shall determine in its sole
discretion, appropriately adjust the number and class or kind of shares
which may be issued under the Plan and of the securities which shall be
subject to outstanding Options and/or the Exercise Price applicable to any
outstanding Option. However, in no event shall any such adjustment change
the aggregate Exercise Price for Option Stock to be purchased upon the
exercise of any Option.
In the event of an incease in the number of outstanding shares of the
Bank's Common Stock as described above, then, at the Committee's option and
discretion, the aggregate number of shares of Common Stock authorized to be
issued under the Plan may be increased so that such aggregate number will
equal 10% of the sum of the aggregate number of outstanding shares of the
Common Stock plus the number of shares of Common Stock that remain reserved
for issuance under the Plan.
Subject to review by the Board of Directors of the Bank, any such
adjustments made by the Committee shall be consistent
11
with changes in the Bank's outstanding Common Stock resulting from the
above events and, when made, shall be final, conclusive and binding on all
persons, including, without limitation, the Bank, its shareholders and each
Optionee or other person having any interest in any Option so adjusted. Any
fractional shares resulting from any such adjustment shall be eliminated.
However, notwithstanding anything contained herein to the contrary, no
Option which is intended to be an ISO shall be adjusted in a manner that
causes the Option to fail to continue to qualify as an ISO.
(b) Dissolution; Merger or Consolidation; Sale of Assets. In the event of a
dissolution or liquidation of the Bank, the sale of substantially all the
Bank's assets, or a merger or consolidation of the Bank with or into any
other corporation or entity (or any other such reorganization or similar
transaction) in which the Bank is not the surviving or resulting
corporation, and if a provision is not made in such transaction for the
continuance of this Plan or the assumption of Options by any successor to
the Bank or for the substitution for Options of new options covering shares
of any successor corporation or a parent or subsidiary thereof, then, in
such event, and to the extent such Options have not previously been
exercised, all rights of Optionees pursuant to all outstanding Options
shall terminate and be of no further effect immediately prior to the
effective time of such dissolution, liquidation, sale, merger,
consolidation or other reorganization (or at such other time and pursuant
to such rules and regulations as the Committee shall determine and
promulgate to the Optionees). However, to the extent such Options shall
not previously have been exercised, and notwithstanding any provisions of
the Plan or any Option Agreement to the contrary, each such Option shall
become exercisable, and may be exercised, in full immediately prior to the
effective time of any such event. The Committee shall give each Optionee
at least ninety (90) days prior written notice of the effective time of an
event which gives rise to an immediate purchase right under this Paragraph
6.1.
(c) Miscellaneous. The grant of an Option shall not affect in any way the
right or power of the Bank to (i) enter into or effect any adjustment,
recapitalization, reclassification, reorganization or any other change in
the Bank's capital or business structure or its business, (ii) to merge or
consolidate, or to dissolve, liquidate, sell or transfer all or any part of
its business or assets, or (iii) to issue bonds, debentures, preferred or
other preference stock ahead of or affecting Common Stock or the rights
thereof.
12
6.2 Rights as a Shareholder.
-----------------------
Neither an Optionee nor any other person shall have any rights as a stockholder
with respect to any shares of Option Stock covered by an Option until such
Option shall have been validly exercised in the manner described herein and in
the Option Agreement relating to such Option, full payment of the Exercise Price
has been made for such shares, and a stock certificate representing the Option
Stock purchased upon such exercise shall have been registered on the Bank's
stock records in the name of and delivered to such person. Except to the extent
of adjustments made pursuant to Paragraph 6.1 above, no adjustment on behalf of
the Optionee shall be made for dividends (ordinary or extraordinary, whether in
cash, securities or other property), distributions or other rights for which the
record date for determining the shareholders entitled to receive the same is
prior to the date of registration and delivery of the stock certificate(s)
representing the Option Stock.
6.3 No Right to Continued Service.
-----------------------------
Neither the Plan nor the grant of an Option, nor any Option Agreement evidencing
any such Option, is intended or shall be deemed or interpreted to confer upon an
Optionee any right of continued service as a Director or to interfere with,
restrict or otherwise limit in any way the right of the Bank or any Subsidiary
or their shareholders to decline to nominate such person for reelection as a
Director, to reelect such person as a Director, or to remove such person from
office in accordance with applicable law.
6.4 Legal Restrictions.
------------------
If in the opinion of legal counsel for the Bank the issuance or sale of any
shares of Option Stock by the Bank pursuant to the exercise of an Option would
not be lawful without registration under the Securities Act of 1933 (the "1933
Act") or without some other action being taken, or for any other reason, or
would require the Bank to obtain approval from any governmental authority or
regulatory body having jurisdiction deemed by such counsel to be necessary to
such issuance or sale, then the Bank shall not be obligated to issue or sell any
Option Stock pursuant to the exercise of any Option to any Optionee or to any
other authorized person unless a registration statement that complies with the
provisions of the 1933 Act in respect of such shares is in effect at the time
thereof and all other required or appropriate action has been taken under and
pursuant to the terms and provisions of the 1933 Act or other applicable law, or
the Bank receives evidence satisfactory to such counsel that the issuance and
sale of such shares, in the absence of an effective registration statement or
other action, would not constitute a violation of the 1933 Act or other
applicable law, or unless any such required approval shall have been obtained.
The Bank is in no event obligated to register
13
any such shares, to comply with any exemption from registration requirements or
to take any other action which may be required in order to permit, or to remedy
or remove any prohibition or limitation on, the issuance or sale of Option Stock
to any Optionee or other authorized person.
The Committee, as a condition of the grant of an Option and/or the exercise
thereof, may require that the Optionee execute one or more undertakings in such
form as the Committee shall prescribe to the effect that such shares are being
acquired for investment purposes only and not with a view to the distribution or
resale thereof.
Notwithstanding anything contained herein to the contrary, it is understood and
agreed that neither the Bank nor any of its Subsidiaries (or any of their
successors in interest) shall be required to take any action under this Plan or
any Option granted hereunder if:
(a) the Bank is declared by any Regulatory Authority to be insolvent, in
default or operating in an unsafe or unsound manner; or,
(b) in the opinion of legal counsel to the Bank, such payment or action:
(i) would be prohibited by or would violate any provision of state or
federal law applicable to the Bank or any of its Subsidiaries,
including without limitation the Federal Deposit Insurance Act as
now in effect or hereafter amended;
(ii) would be prohibited by or would violate any applicable rules,
regulations, orders or statements of policy, whether now existing
or hereafter promulgated, of any Regulatory Authority; or,
(iii) otherwise would be prohibited by any Regulatory Authority.
6.5 No Obligation to Purchase Shares.
--------------------------------
The granting of an Option pursuant to the Plan shall impose no obligation on the
Optionee to purchase any shares covered by such Option.
6.6 Payment of Taxes.
----------------
Each Optionee shall be responsible for all federal, state, local or other taxes
of any nature as shall be imposed pursuant to any law or governmental regulation
or ruling on any Option or the exercise thereof or on any income which an
Optionee is deemed to recognize
14
in connection with an Option. If the Committee shall determine to its reasonable
satisfaction that the Bank or any of its Subsidiaries is required to pay or
withhold the whole or any part of any estate, inheritance, income, or other tax
with respect to or in connection with any Option or the exercise thereof, then
the Bank or such Subsidiary shall have the full power and authority to withhold
and pay such tax out of any shares of Common Stock being purchased by the
Optionee or from the Optionee's salary or any other funds otherwise payable to
the Optionee, or, prior to and as a condition of exercising such Option, the
Bank may require that the Optionee pay to it in cash the amount of any such tax
which the Bank, in good faith, deems itself required to withhold.
6.7 Choice of Law.
-------------
The validity, interpretation and administration of the Plan, any Option
Agreement, and of any rules, regulations, determinations or decisions made
thereunder, and the rights of any and all persons having or claiming to have any
interest therein or thereunder, shall be determined exclusively in accordance
with the laws of the State of North Carolina. Without limiting the generality
of the foregoing, the period within which any action in connection with the Plan
must be commenced shall be governed by the laws of the State of North Carolina,
without regard to the place where the act or omission complained of took place,
the residence of any party to such action, or the place where the action may be
brought or maintained.
6.8 Modification of Plan.
--------------------
The Board, upon recommendation of the Committee, may, from time to time, amend,
modify, suspend, terminate or discontinue the Plan at any time without notice,
provided, however, that no such action by the Board shall adversely affect any
Optionee's rights under any then outstanding Options without such Optionee's
prior written consent; and, provided further that, except as shall be required
to comport with changes in the Code, any modification or amendment of the Plan
that (a) increases the aggregate number of shares of Common Stock which may be
issued upon the exercise of Options (other than as provided in Paragraph 6.1
above), (b) changes the formula by which the Exercise Price is determined, (c)
changes the provisions of the Plan with respect to the determination of
Directors to whom Options may be granted or, (d) otherwise materially increases
the benefits accruing to Optionees under the Plan, shall be subject to the
approval of the Bank's shareholders. In the event the Board shall terminate or
discontinue the Plan, such action shall not operate to deprive any Optionee of
any rights theretofore acquired by him or her under the Plan, and any Options
outstanding as of the date of any such termination shall remain in full force
and effect according to their terms as though the Plan had not been terminated.
15
6.9 Application of Funds.
--------------------
The proceeds received by the Bank from the sale of Common Stock pursuant to
Options granted under the Plan will be used for general corporate purposes.
6.10 Notices.
-------
Except as otherwise provided herein, any notice which the Bank or an Optionee
may be required or permitted to give to the other under this Plan shall be in
writing and shall be deemed duly given when delivered personally or deposited in
the United States mail, first class postage prepaid, and properly addressed.
Notice, if to the Bank, shall be sent to its President at the address of the
Bank's then current corporate office. Any notice sent by mail by the Bank to an
Optionee shall be sent to the most current address of the Optionee as reflected
on the records of the Bank or its Subsidiaries as of the time said notice is
required. In the case of a deceased Optionee, any notice shall be given to the
Optionee's personal representative if such representative has delivered to the
Bank evidence satisfactory to the Bank of such representative's status as such
and has informed the Bank of the address of such representative by notice
pursuant to this Paragraph 6.10.
6.11 Conformity With Applicable Laws and Regulations.
-----------------------------------------------
With respect to persons who are subject to Section 16 of the 1934 Act, the Plan
and each Option granted and transaction under it are intended to, and shall be
interpreted so as to, be consistent with the requirements, and satisfy
applicable conditions, of Rule 16b-3 of the Securities and Exchange Commission
(as such Rule may be modified, amended or superseded from time to time). To the
extent any provision of the Plan or any Option Agreement, or any action by the
Committee or the Board, shall fail to so comply, then, to the extent permitted
by law and deemed advisable by the Committee, such provision or action shall be
deemed null and void.
6.12 Successors and Assigns.
----------------------
Subject to Paragraph 5.6 above, this Plan shall bind and inure to the benefit of
the Bank, any Optionee, and their respective successors, assigns, personal or
legal representatives and heirs.
6.13 Severability.
------------
It is intended that each provision of this Plan shall be viewed as separate and
divisible, and in the event that any provision hereof shall be held to be
invalid or unenforceable, the remaining provisions shall continue to be in full
force and effect.
16
6.14 Titles.
------
Titles of Articles and Paragraphs are provided herein for convenience only, do
not modify or affect the meaning of any provision herein, and shall not serve as
a basis for interpretation or construction of this Plan.
6.15 Gender and Number.
-----------------
As used herein, the masculine gender shall include the feminine and neuter, the
singular number the plural, and vice versa, whenever such meanings are
appropriate.
17
MOUNTAINBANK
AMENDMENT N0. 1 TO
1997 DIRECTOR STOCK OPTION PLAN
THIS AMENDMENT NO. 1 TO 1997 DIRECTOR STOCK OPTION PLAN (the "Amendment")
is made as of this 16th day of October, 2000, by MountainBank (the
----
"Bank").
WHEREAS, the Board of Directors of the Bank heretofore adopted the Bank's
1997 Director Stock Option Plan (the "Director Plan" or the "Plan") which
provides for the grant of options to directors of the Bank to purchase newly
issued shares of the Bank's common stock; and, the Director Plan was approved
during 1998 by the Bank's shareholders and by the North Carolina Commissioner of
Banks in the manner required by North Carolina law; and,
WHEREAS, under North Carolina law applicable to banks, the Director Plan
may provide for the grant of options for an aggregate number of shares equal to
not more than 10% of the Bank's total outstanding shares, and, the Director
Plan, as originally adopted, provides for the grant of options to purchase an
aggregate of 86,400 shares of common stock (as such number has been adjusted in
accordance with the terms of the Plan as a result of the six-for-five stock
splits effected in the form of 20% stock dividends which became effective on
January 20, 1999, and January 15, 2000); and,
WHEREAS, by resolution during April 2000, and as a result of increases in
the number of outstanding shares of the Bank's common stock resulting from the
Bank's sale of additional shares pursuant to stock offerings conducted during
1999 and proposed to be conducted during 2000, the Bank's Board of Directors
proposed to amend the Director Plan to increase the aggregate number of shares
available for the grant of options to 10% of the increased number of the Bank's
outstanding shares following the offerings; and, the Board of Directors approved
an amendment to the Director Plan to effect such an increase and authorized the
submission of the proposed amendment for approval by the Bank's shareholders;
and,
WHEREAS, at the Annual Meeting of the Bank's shareholders held on June 15,
2000, the shareholders approved the proposed amendment by the affirmative vote
of more than two-thirds of the Bank's then outstanding shares; and,
WHEREAS, by letter dated July 17, 2000, the North Carolina Commissioner of
Banks approved the proposed amendment; and,
WHEREAS, by resolution dated October 16, 2000, the Board of Directors
formally approved the proposed amendment to increase the number of shares
authorized to be issued under the Director Plan to 149,688 shares and, in
approving the amendment, authorized management of the Bank to take such actions
as they deemed to be reasonable, appropriate, necessary or advisable to effect
and carry out the Board's resolutions and to effect the proposed amendment,
including the execution for and in the name of the Bank of a formal written
Amendment; and,
WHEREAS, pursuant to the above authority, this Amendment No. 1 is made for
the purpose of effecting the amendment to the Director Plan previously approved
by the Bank's Board of Directors and shareholders.
NOW THEREFORE, in consideration of the premises and pursuant to
authority duly given by the Bank's Board of Directors and shareholders, the
Director Plan hereby is amended as follows:
1. In Paragraph 1.2 of the Director Plan, the first full sentence of
the second paragraph is deleted in its entirety and the following new sentence
is inserted in its entirety:
"The aggregate number of shares of Common Stock which may be sold upon the
exercise of Options granted under the Plan is 149,688 shares, which maximum
number is subject to adjustment as provided in Paragraph 6.1 hereof."
2. Except as expressly modified and amended as described above, the
Director Plan shall remain in full force and effect in accordance with its
terms.
IN WITNESS WHEREOF, the Bank has executed this Amendment, by and
through the undersigned thereunto duly authorized, on this the day and year
first above written.
MOUNTAINBANK
By: /s/ J. W. Davis
-----------------------------------
J. W. Davis
President and Chief Executive Officer
(SEAL)
By: /s/ Boyd L. Hyder
-----------------------------------
Boyd L. Hyder
Chairman of the Board of Directors
ATTEST:
/s/ Sherrie B. Rogers
---------------------------
Assistant Secretary
2