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EXHIBIT 10.5
AMENDED AND RESTATED
SUN BANCSHARES, INC.
2000 STOCK INCENTIVE PLAN
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TABLE OF CONTENTS
PAGE
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SECTION 1 DEFINITIONS................................................................ 1
1.1 Definitions.................................................................. 1
SECTION 2 THE STOCK INCENTIVE PLAN................................................... 4
2.1 Purpose of the Plan.......................................................... 4
2.2 Stock Subject to the Plan.................................................... 4
2.3 Administration of the Plan................................................... 4
2.4 Eligibility and Limits....................................................... 5
SECTION 3 TERMS OF STOCK INCENTIVES.................................................. 5
3.1 General Terms and Conditions................................................. 5
3.2 Terms and Conditions of Options.............................................. 6
(a) Option Price.............................................................. 7
(b) Option Term............................................................... 7
(c) Payment................................................................... 7
(d) Conditions to the Exercise of an Option................................... 8
(e) Termination of Incentive Stock Option..................................... 8
(f) Special Provisions for Certain Substitute Options......................... 8
3.3 Treatment of Awards Upon Termination of Service.............................. 8
SECTION 4 RESTRICTIONS ON STOCK...................................................... 9
4.1 Escrow of Shares............................................................. 9
4.2 Restrictions on Transfer..................................................... 9
SECTION 5 GENERAL PROVISIONS......................................................... 9
5.1 Withholding.................................................................. 9
5.2 Changes in Capitalization; Merger; Liquidation.............................. 10
5.3 Cash Awards................................................................. 10
5.4 Compliance with Code........................................................ 11
5.5 Right to Terminate Service.................................................. 11
5.6 Restrictions on Delivery and Sale of Shares; Legends........................ 11
5.7 Non-Alienation of Benefits.................................................. 11
5.8 Termination and Amendment of the Plan....................................... 12
5.9 Stockholder Approval........................................................ 12
5.10 Choice of Law............................................................... 11
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AMENDED AND RESTATED
SUN BANCSHARES, INC.
2000 STOCK INCENTIVE PLAN
SUN BANCSHARES, INC. MAINTAINS THE SUN BANCSHARES, INC. 2000 STOCK
INCENTIVE PLAN (THE "PLAN") WHICH WAS ADOPTED BY THE BOARD OF DIRECTORS ON
MARCH 20, 2000. IN RESPONSE TO COMMENTS FROM THE FEDERAL DEPOSIT INSURANCE
CORPORATION, THE BOARD OF DIRECTORS WISHES TO AMEND AND RESTATE THE PLAN,
EFFECTIVE JULY 17, 2000 AS SET FORTH BELOW.
SECTION 1 DEFINITIONS
1.1 Definitions. Whenever used herein, the masculine pronoun shall
be deemed to include the feminine, and the singular to include the plural,
unless the context clearly indicates otherwise, and the following capitalized
words and phrases are used herein with the meaning thereafter ascribed:
(a) "Bank" means SunBank, N.A., a national bank.
(b) "Board of Directors" means the board of directors of the
Company.
(c) "Cause" has the same meaning as provided in the
employment agreement between the Participant and the Company or affiliate(s) on
the date of Termination of Service, or if no such definition or employment
agreement exists, "Cause" means conduct amounting to (1) fraud or dishonesty
against the Company or affiliate(s), (2) Participant's willful misconduct,
repeated refusal to follow the reasonable directions of the Board of Directors
or knowing violation of law in the course of performance of the duties of
Participant's service with the Company or affiliate(s), (3) repeated absences
from work without a reasonable excuse, (4) repeated intoxication with alcohol
or drugs while on the Company or affiliate(s)' premises during regular business
hours, (5) a conviction or plea of guilty or nolo contendere to a felony or a
crime involving dishonesty, or (6) a breach or violation of the terms of any
agreement to which Participant and the Company or affiliate(s) are party.
(d) "Change in Control" means any one of the following
events which may occur after the date the Stock Incentive is granted:
(1) the acquisition by any person or persons
acting in concert of the then outstanding voting securities of either the Bank
or the Company, if, after the transaction, the acquiring person (or persons)
owns, controls or holds with power to vote fifty percent (50%) or more of any
class of voting securities of either the Bank or the Company, as the case may
be;
(2) within any twelve-month period the persons who
were directors of either the Bank or the Company immediately before the
beginning of such twelve-month period (the "Incumbent Directors") shall cease
to constitute at least a majority of such board of directors; provided that any
director who was not a director as of the beginning of such twelve-month period
shall be deemed to be an Incumbent Director if that director were elected to
such board of directors by, or on the recommendation of or with the approval
of, at least two-thirds of the directors who then qualified as Incumbent
Directors; and provided further that no director whose initial assumption of
office is in connection with an actual or threatened election contest (as such
terms are used in Rule 14a-11 of Regulation 14A promulgated under the
Securities Exchange Act of 1934) relating to the election of directors shall be
deemed to be an Incumbent Director;
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(3) a reorganization, merger or consolidation, with
respect to which persons who were the stockholders of either the Bank or the
Company, as the case may be, immediately prior to such reorganization, merger
or consolidation do not, immediately thereafter, own more than fifty percent
(50%) of the combined voting power entitled to vote in the election of
directors of the reorganized, merged or consolidated company's then outstanding
voting securities; or
(4) the sale, transfer or assignment of all or
substantially all of the assets of the Company and its subsidiaries to any
third party.
(e) "Company" means Sun Bancshares, Inc., a corporation
organized under the laws of the State of South Carolina as a bank holding
company.
(f) "Code" means the Internal Revenue Code of 1986, as
amended.
(g) "Committee" means the committee appointed by the Board
of Directors to administer the Plan pursuant to Plan Section 2.3.
(h) "Disability" has the same meaning as provided in the
long-term disability plan or policy maintained or, if applicable, most recently
maintained, by the Company or affiliate for the Participant. If no long-term
disability plan or policy was ever maintained on behalf of the Participant or,
if the determination of Disability relates to an Incentive Stock Option,
Disability shall mean that condition described in Code Section 22(e)(3), as
amended from time to time. In the event of a dispute, the determination of
Disability shall be made by the Board of Directors and shall be supported by
advice of a physician competent in the area to which such Disability relates.
(i) "Disposition" means any conveyance, sale, transfer,
assignment, pledge or hypothecation, whether outright or as security, inter
vivos or testamentary, with or without consideration, voluntary or involuntary.
(j) "Fair Market Value" refers to the determination of value
of a share of Stock. If the Stock is actively traded on any national securities
exchange or any Nasdaq quotation or market system, Fair Market Value shall mean
the closing price at which sales of Stock shall have been sold on the most
recent trading date immediately prior to the date of determination, as reported
by any such exchange or system selected by the Committee on which the shares of
Stock are then traded. If the shares of Stock are not actively traded on any
such exchange or system, Fair Market Value shall mean the arithmetic mean of
the bid and asked prices for the shares of Stock on the most recent trading
date within a reasonable period prior to the determination date as reported by
such exchange or system. If there are no bid and asked prices within a
reasonable period or if the shares of Stock are not traded on any exchange or
system as of the determination date, Fair Market Value shall mean the fair
market value of a share of Stock as determined by the Committee taking into
account such facts and circumstances deemed to be material by the Committee to
the value of the Stock in the hands of the Participant; provided that, for
purposes of granting awards other than Incentive Stock Options, Fair Market
Value of a share of Stock may be determined by the Committee by reference to
the average market value determined over a period certain or as of specified
dates, to a tender offer price for
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the shares of Stock (if settlement of an award is triggered by such an event)
or to any other reasonable measure of fair market value and provided further
that, for purposes of granting Incentive Stock Options, Fair Market Value of a
share of Stock shall be determined in accordance with the valuation principles
described in the regulations promulgated under Code Section 422.
(k) "Incentive Stock Option" means an incentive stock
option, as defined in Code Section 422, described in Plan Section 3.2.
(l) "Non-Qualified Stock Option" means a stock option,
other than an option qualifying as an Incentive Stock Option, described in Plan
Section 3.2.
(m) "Option" means a Non-Qualified Stock Option or an
Incentive Stock Option.
(n) "Over 10% Owner" means an individual who at the time an
Incentive Stock Option is granted owns Stock possessing more than 10% of the
total combined voting power of the Company or one of its Parents or
Subsidiaries, determined by applying the attribution rules of Code Section
424(d).
(o) "Parent" means any corporation (other than the Company)
in an unbroken chain of corporations ending with the Company if, with respect
to Incentive Stock Options, at the time of granting of the Incentive Stock
Option, each of the corporations other than the Company owns stock possessing
50% or more of the total combined voting power of all classes of stock in one
of the other corporations in the chain.
(p) "Participant" means an individual who receives a Stock
Incentive hereunder.
(q) "Plan" means the Sun Bancshares, Inc. 2000 Stock
Incentive Plan.
(r) "Stock" means the Company's common stock, $1.00 par
value per share.
(s) "Stock Incentive Agreement" means an agreement between
the Company and a Participant or other documentation evidencing an award of a
Stock Incentive.
(t) "Stock Incentives" means, collectively, Incentive Stock
Options and Non-Qualified Stock Options.
(u) "Subsidiary" means any corporation (other than the
Company) in an unbroken chain of corporations beginning with the Company if,
with respect to Incentive Stock Options, at the time of the granting of the
Incentive Stock Option, each of the corporations other than the last
corporation in the unbroken chain owns stock possessing 50% or more of the
total combined voting power of all classes of stock in one of the other
corporations in the chain.
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(v) "Termination of Service" means the termination of the
service relationship, whether employment or otherwise, between a Participant
and the Company and any affiliates, regardless of the fact that severance or
similar payments are made to the Participant for any reason, including, but not
by way of limitation, a termination by resignation, discharge, death,
Disability or retirement. The Committee shall, in its absolute discretion,
determine the effect of all matters and questions relating to Termination of
Service, including, but not by way of limitation, the question of whether a
leave of absence constitutes a Termination of Service, or whether a Termination
of Service is for Cause.
SECTION 2 THE STOCK INCENTIVE PLAN
2.1 Purpose of the Plan. The Plan is intended to (a) provide
incentives to officers, employees, directors and organizers of the Company and
affiliates to stimulate their efforts toward the continued success of the
Company and to operate and manage the business in a manner that will provide
for the long-term growth and profitability of the Company; (b) encourage stock
ownership by officers, employees, directors and organizers by providing them
with a means to acquire a proprietary interest in the Company by acquiring
shares of Stock; and (c) provide a means of obtaining and rewarding key
personnel.
2.2 Stock Subject to the Plan. Subject to adjustment in accordance
with Section 5.2, 100,000 shares of Stock (the "Maximum Plan Shares") are
hereby reserved exclusively for issuance pursuant to Stock Incentives. At such
time as the Company becomes subject to Section 16 of the Exchange Act, at no
time shall the Company have outstanding Stock Incentives subject to Section 16
of the Exchange Act and shares of Stock issued in respect of Stock Incentives
in excess of the Maximum Plan Shares. The shares of Stock attributable to the
nonvested, unpaid, unexercised, unconverted or otherwise unsettled portion of
any Stock Incentive that is forfeited or cancelled or expires or terminates for
any reason without becoming vested, paid, exercised, converted or otherwise
settled in full will again be available for purposes of the Plan.
2.3 Administration of the Plan. The Plan shall be administered by
the Committee. The members of the Committee shall consist solely of at least
two members of the Board of Directors who are both "outside directors" as
defined in Treasury Regulations ss.1.162-27(e) as promulgated by the Internal
Revenue Service and "non-employee directors" as defined in Rule 16b-3(b)(3) as
promulgated under the Exchange Act. The Committee shall have full authority in
its discretion to determine the officers, employees, directors and organizers
of the Company or its affiliates to whom Stock Incentives shall be granted and
the terms and provisions of Stock Incentives subject to the Plan. Subject to
the provisions of the Plan, the Committee shall have full and conclusive
authority to interpret the Plan; to prescribe, amend and rescind rules and
regulations relating to the Plan; to determine the terms and provisions of the
respective Stock Incentive Agreements and to make all other determinations
necessary or advisable for the proper administration of the Plan. The
Committee's determinations under the Plan need not be uniform and may be made
by it selectively among persons who receive, or are eligible to receive, awards
under the Plan (whether or not such persons are similarly situated). The
Committee's decisions shall be final and binding on all Participants. Each
member of the Committee shall serve at the discretion of the Board of Directors
and the Board of Directors may from time to time remove
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members from or add members to the Committee. Vacancies on the Committee shall
be filled by the Board of Directors.
The Committee shall select one of its members as chairman and shall
hold meetings at the times and in the places as it may deem advisable. Acts
approved by a majority of the Committee in a meeting at which a quorum is
present, or acts reduced to or approved in writing by a majority of the members
of the Committee, shall be the valid acts of the Committee.
2.4 Eligibility and Limits. Stock Incentives may be granted only
to officers, employees, directors and organizers of the Company or any
affiliate; provided, however, that an Incentive Stock Option may only be
granted to an employee of the Company or any Subsidiary. In the case of
Incentive Stock Options, the aggregate Fair Market Value (determined as of the
date an Incentive Stock Option is granted) of stock with respect to which stock
options intended to meet the requirements of Code Section 422 become
exercisable for the first time by an individual during any calendar year under
all plans of the Company and its Parents and Subsidiaries shall not exceed
$100,000; provided further, that if the limitation is exceeded, the Incentive
Stock Option(s) which cause the limitation to be exceeded shall be treated as
Non-Qualified Stock Option(s). Pursuant to Section 162(m) of the Code and the
regulations thereunder, for compensation to be treated as qualified performance
based compensation, the maximum number of shares of Stock with respect to which
Options may be granted during any one year period to any employee may not
exceed 75,000, subject to adjustment in accordance with Section 5.2. In
applying this limitation, if a Stock Incentive, or any portion thereof, granted
to an employee is cancelled or repriced for any reason, then the shares of
Stock attributable to such cancellation or repricing either shall continue to
be counted as an outstanding grant or shall be counted as a new grant, as the
case may be, against the affected employee's 75,000 limit for the appropriate
fiscal year.
SECTION 3 TERMS OF STOCK INCENTIVES
3.1 General Terms and Conditions.
(a) The number of shares of Stock as to which a Stock
Incentive shall be granted shall be determined by the Committee in its sole
discretion, subject to the provisions of Section 2.2, as to the total number of
shares available for grants under the Plan. If a Stock Incentive Agreement so
provides, a Participant may be granted a new Option to purchase a number of
shares of Stock equal to the number of previously owned shares of Stock
tendered in payment of the Exercise Price (as defined below) for each share of
Stock purchased pursuant to the terms of the Stock Incentive Agreement.
(b) Each Stock Incentive shall be evidenced by a Stock
Incentive Agreement in such form and containing such terms, conditions and
restrictions as the Committee may determine is appropriate. Each Stock
Incentive Agreement shall be subject to the terms of the Plan and any provision
in a Stock Incentive Agreement that is inconsistent with the Plan shall be null
and void.
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(c) The date a Stock Incentive is granted shall be the date
on which the Committee has approved the terms of, and satisfaction of any
conditions applicable to, the grant of the Stock Incentive and has determined
the recipient of the Stock Incentive and the number of shares covered by the
Stock Incentive and has taken all such other action necessary to complete the
grant of the Stock Incentive.
(d) The Committee may provide in any Stock Incentive
Agreement (or subsequent to the award of a Stock Incentive but prior to its
expiration or cancellation, as the case may be) that, in the event of a Change
in Control, the Stock Incentive shall or may be cashed out on the basis of any
price not greater than the highest price paid for a share of Stock in any
transaction reported by any market or system selected by the Committee on which
the shares of Stock are then actively traded during a specified period
immediately preceding or including the date of the Change in Control or offered
for a share of Stock in any tender offer occurring during a specified period
immediately preceding or including the date the tender offer commences;
provided that, in no case shall any such specified period exceed three (3)
months (the "Change in Control Price"). For purposes of this Subsection,
Options shall be cashed out on the basis of the excess, if any, of the Change
in Control Price (but not more than the Fair Market Value of the Stock on the
date of the cash-out in the case of Incentive Stock Options) over the Exercise
Price with or without regard to whether the Option may otherwise be exercisable
only in part.
(e) Any Stock Incentive may be granted in connection with
all or any portion of a previously or contemporaneously granted Stock
Incentive. Exercise or vesting of a Stock Incentive granted in connection with
another Stock Incentive may result in a pro rata surrender or cancellation of
any related Stock Incentive, as specified in the applicable Stock Incentive
Agreement.
(f) Stock Incentives shall not be transferable or assignable
except by will or by the laws of descent and distribution and shall be
exercisable, during the Participant's lifetime, only by the Participant; in the
event of the Disability of the Participant, by the legal representative of the
Participant; or in the event of the death of the Participant, by the personal
representative of the Participant's estate or if no personal representative has
been appointed, by the successor in interest determined under the Participant's
will.
(g) No Stock Incentive shall have a term that extends beyond
the tenth anniversary of the date the Stock Incentive was granted.
3.2 Terms and Conditions of Options. Each Option granted under the
Plan shall be evidenced by a Stock Incentive Agreement. At the time any Option
is granted, the Committee shall determine whether the Option is to be an
Incentive Stock Option or a Non-Qualified Stock Option, and the Option shall be
clearly identified as to its status as an Incentive Stock Option or a
Non-Qualified Stock Option. At the time any Incentive Stock Option is
exercised, the Company shall be entitled to place a legend on the certificates
representing the shares of Stock purchased pursuant to the Option to clearly
identify them as shares of Stock purchased upon exercise of an Incentive Stock
Option. An Incentive Stock Option may only be granted within
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ten (10) years from the earlier of the date the Plan is adopted by the Board of
Directors or approved by the Company's stockholders. All Options shall provide
that the primary Federal regulator of the Bank may require Participant to
exercise an Option in whole or in part if the capital of the Bank falls below
minimum requirements and shall further provide that, if the Participant fails
to so exercise any such portion of the Option, that portion of the Option shall
be forfeited.
(a) Option Price. Subject to adjustment in accordance with
Section 5.2 and the other provisions of this Section 3.2, the exercise price
(the "Exercise Price") per share of Stock purchasable under any Option shall be
as set forth in the applicable Stock Incentive Agreement. With respect to each
grant of an Incentive Stock Option to a Participant who is not an Over 10%
Owner, the Exercise Price per share shall not be less than the Fair Market
Value on the date the Option is granted. With respect to each grant of an
Incentive Stock Option to a Participant who is an Over 10% Owner, the Exercise
Price shall not be less than 110% of the Fair Market Value on the date the
Option is granted. With respect to each grant of a Non-Qualified Stock Option,
the Exercise Price per share shall be no less than the Fair Market Value.
(b) Option Term. The term of an Option shall be as specified
in the applicable Stock Incentive Agreement; provided, however that any
Incentive Stock Option granted to a Participant who is not an Over 10% Owner
shall not be exercisable after the expiration of ten (10) years after the date
the Option is granted and any Incentive Stock Option granted to an Over 10%
Owner shall not be exercisable after the expiration of five (5) years after the
date the Option is granted.
(c) Payment. Payment for all shares of Stock purchased
pursuant to the exercise of an Option shall be made in cash or, if the Stock
Incentive Agreement provides, in a cashless exercise through a broker. In its
discretion, the Committee also may authorize (at the time an Option is granted
or thereafter) Company financing to assist the Participant as to payment of the
Exercise Price on such terms as may be offered by the Committee in its
discretion. Payment shall be made at the time that the Option or any part
thereof is exercised, and no shares shall be issued or delivered upon exercise
of an Option until full payment has been made by the Participant. The holder of
an Option, as such, shall have none of the rights of a stockholder.
(d) Conditions to the Exercise of an Option. Each Option
granted under the Plan shall be exercisable by whom, at such time or times, or
upon the occurrence of such event or events, and in such amounts, as the
Committee shall specify in the Stock Incentive Agreement; provided, however,
that subsequent to the grant of an Option, the Committee, at any time before
complete termination of such Option, may accelerate the time or times at which
such
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Option may be exercised in whole or in part, including, without limitation,
upon a Change in Control and may permit the Participant or any other designated
person to exercise the Option, or any portion thereof, for all or part of the
remaining Option term notwithstanding any provision of the Stock Incentive
Agreement to the contrary. Notwithstanding the foregoing, no Option granted
prior to the third anniversary of the date the Plan is adopted by the Board of
Directors shall contain provisions which allow the Option to become vested and
exercisable at a rate faster than in equal, annual one-third increments
commencing with the first anniversary of the Option's grant date.
(e) Termination of Incentive Stock Option. With respect to
an Incentive Stock Option, in the event of the Termination of Service of a
Participant, the Option or portion thereof held by the Participant which is
unexercised shall expire, terminate, and become unexercisable no later than the
expiration of three (3) months after the date of Termination of Service;
provided, however, that in the case of a holder whose Termination of Service is
due to death or Disability, one (1) year may be substituted for such three (3)
month period. For purposes of this Subsection (e), Termination of Service of
the Participant shall not be deemed to have occurred if the Participant is
employed by another corporation (or a parent or subsidiary corporation of such
other corporation) which has assumed the Incentive Stock Option of the
Participant in a transaction to which Code Section 424(a) is applicable.
(f) Special Provisions for Certain Substitute Options.
Notwithstanding anything to the contrary in this Section 3.2, any Option issued
in substitution for an option previously issued by another entity, which
substitution occurs in connection with a transaction to which Code Section
424(a) is applicable, may provide for an exercise price computed in accordance
with such Code Section and the regulations thereunder and may contain such
other terms and conditions as the Committee may prescribe to cause such
substitute Option to contain as nearly as possible the same terms and
conditions (including the applicable vesting and termination provisions) as
those contained in the previously issued option being replaced thereby.
3.3 Treatment of Awards Upon Termination of Service. Except as
otherwise provided by Plan Section 3.2(e), any award under this Plan to a
Participant who suffers a Termination of Service may be cancelled, accelerated,
paid or continued, as provided in the Stock Incentive Agreement or, in the
absence of such provision, as the Committee may determine. The portion of any
award exercisable in the event of continuation or the amount of any payment due
under a continued award may be adjusted by the Committee to reflect the
Participant's period of service from the date of grant through the date of the
Participant's Termination of Service or such other factors as the Committee
determines are relevant to its decision to continue the award.
SECTION 4 RESTRICTIONS ON STOCK
4.1 Escrow of Shares. Any certificates representing the shares of
Stock issued under the Plan shall be issued in the Participant's name, but, if
the Stock Incentive Agreement so provides, the shares of Stock shall be held by
a custodian designated by the Committee (the "Custodian"). Each applicable
Stock Incentive Agreement providing for transfer of shares of
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Stock to the Custodian shall appoint the Custodian as the attorney-in-fact for
the Participant for the term specified in the applicable Stock Incentive
Agreement, with full power and authority in the Participant's name, place and
stead to transfer, assign and convey to the Company any shares of Stock held by
the Custodian for such Participant, if the Participant forfeits the shares
under the terms of the applicable Stock Incentive Agreement. During the period
that the Custodian holds the shares subject to this Section, the Participant
shall be entitled to all rights, except as provided in the applicable Stock
Incentive Agreement, applicable to shares of Stock not so held. Any dividends
declared on shares of Stock held by the Custodian shall, as the Committee may
provide in the applicable Stock Incentive Agreement, be paid directly to the
Participant or, in the alternative, be retained by the Custodian until the
expiration of the term specified in the applicable Stock Incentive Agreement
and shall then be delivered, together with any proceeds, with the shares of
Stock to the Participant or to the Company, as applicable.
4.2 Restrictions on Transfer. The Participant shall not have the
right to make or permit to exist any Disposition of the shares of Stock issued
pursuant to the Plan except as provided in the Plan or the applicable Stock
Incentive Agreement. Any Disposition of the shares of Stock issued under the
Plan by the Participant not made in accordance with the Plan or the applicable
Stock Incentive Agreement shall be void. The Company shall not recognize, or
have the duty to recognize, any Disposition not made in accordance with the
Plan and the applicable Stock Incentive Agreement, and the shares so
transferred shall continue to be bound by the Plan and the applicable Stock
Incentive Agreement.
SECTION 5 GENERAL PROVISIONS
5.1 Withholding. The Company shall deduct from all cash
distributions under the Plan any taxes required to be withheld by federal,
state or local government. Whenever the Company proposes or is required to
issue or transfer shares of Stock under the Plan, the Company shall have the
right to require the recipient to remit to the Company an amount sufficient to
satisfy any federal, state and local withholding tax requirements prior to the
delivery of any certificate or certificates for such shares. A Participant may
pay the withholding tax in cash, by tendering shares of Stock which have been
owned by the holder for at least six (6) months prior to the date of exercise
or, if the applicable Stock Incentive Agreement provides, a Participant may
elect to have the number of shares of Stock he is to receive reduced by the
smallest number of whole shares of Stock which, when multiplied by the Fair
Market Value of the shares of Stock determined as of the Tax Date (defined
below), is sufficient to satisfy federal, state and local, if any, withholding
taxes arising from exercise or payment of a Stock Incentive (a "Withholding
Election"). A Participant may make a Withholding Election only if both of the
following conditions are met:
(a) The Withholding Election must be made on or prior to the
date on which the amount of tax required to be withheld is determined (the "Tax
Date") by executing and delivering to the Company a properly completed notice
of Withholding Election as prescribed by the Committee; and
(b) Any Withholding Election made will be irrevocable;
however, the Committee may, in its sole discretion, disapprove and give no
effect to the Withholding Election.
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5.2 Changes in Capitalization; Merger; Liquidation.
(a) The number of shares of Stock reserved for the grant of
Options and the number of shares of Stock reserved for issuance upon the
exercise or payment, as applicable, of each outstanding Option, and the
Exercise Price of each outstanding Option shall be proportionately adjusted for
any increase or decrease in the number of issued shares of Stock resulting from
a subdivision or combination of shares or the payment of an ordinary stock
dividend in shares of Stock to holders of outstanding shares of Stock or any
other increase or decrease in the number of shares of Stock outstanding
effected without receipt of consideration by the Company.
(b) In the event of any merger, consolidation, extraordinary
dividend (including a spin-off), reorganization or other change in the
corporate structure of the Company or its Stock or tender offer for shares of
Stock, the Committee, in its sole discretion, may make such adjustments with
respect to awards and take such other action as it deems necessary or
appropriate to reflect or in anticipation of such merger, consolidation,
extraordinary dividend (including a spin-off), reorganization, other change in
corporate structure or tender offer, including, without limitation, the
substitution of new awards, the termination or adjustment of outstanding
awards, the acceleration of awards or the removal of restrictions on
outstanding awards, all as may be provided in the applicable Stock Incentive
Agreement or, if not expressly addressed therein, as the Committee subsequently
may determine in the event of any such merger, consolidation, extraordinary
dividend (including a spin-off), reorganization or other change in the
corporate structure of the Company or its Stock or tender offer for shares of
Stock. Any adjustment pursuant to this Section 5.2 may provide, in the
Committee's discretion, for the elimination without payment therefor of any
fractional shares that might otherwise become subject to any Stock Incentive.
(c) The existence of the Plan and the Stock Incentives
granted pursuant to the Plan shall not affect in any way the right or power of
the Company to make or authorize any adjustment, reclassification,
reorganization or other change in its capital or business structure, any merger
or consolidation of the Company, any issue of debt or equity securities having
preferences or priorities as to the Stock or the rights thereof, the
dissolution or liquidation of the Company, any sale or transfer of all or any
part of its business or assets, or any other corporate act or proceeding.
5.3 Cash Awards. The Committee may, at any time and in its
discretion, grant to any holder of a Stock Incentive the right to receive, at
such times and in such amounts as determined by the Committee in its
discretion, a cash amount which is intended to reimburse such person for all or
a portion of the federal, state and local income taxes imposed upon such person
as a consequence of the receipt of the Stock Incentive or the exercise of
rights thereunder.
5.4 Compliance with Code. All Incentive Stock Options to be
granted hereunder are intended to comply with Code Section 422, and all
provisions of the Plan and all Incentive Stock Options granted hereunder shall
be construed in such manner as to effectuate that intent.
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5.5 Right to Terminate Service. Nothing in the Plan or in any
Stock Incentive Agreement shall confer upon any Participant the right to
continue as an officer, employee, director or organizer of the Company or
affect the right of the Company to terminate the Participant's service at any
time.
5.6 Restrictions on Delivery and Sale of Shares; Legends. Each
Stock Incentive is subject to the condition that if at any time the Committee,
in its discretion, shall determine that the listing, registration or
qualification of the shares covered by such Stock Incentive upon any securities
exchange or under any state or federal law is necessary or desirable as a
condition of or in connection with the granting of such Stock Incentive or the
purchase or delivery of shares thereunder, the delivery of any or all shares
pursuant to such Stock Incentive may be withheld unless and until such listing,
registration or qualification shall have been effected. If a registration
statement is not in effect under the Securities Act of 1933 or any applicable
state securities laws with respect to the shares of Stock purchasable or
otherwise deliverable under Stock Incentives then outstanding, the Committee
may require, as a condition of exercise of any Option or as a condition to any
other delivery of Stock pursuant to a Stock Incentive, that the Participant or
other recipient of a Stock Incentive represent, in writing, that the shares
received pursuant to the Stock Incentive are being acquired for investment and
not with a view to distribution and agree that the shares will not be disposed
of except pursuant to an effective registration statement, unless the Company
shall have received an opinion of counsel that such disposition is exempt from
such requirement under the Securities Act of 1933 and any applicable state
securities laws. The Company may include on certificates representing shares
delivered pursuant to a Stock Incentive such legends referring to the foregoing
representations or restrictions or any other applicable restrictions on resale
as the Company, in its discretion, shall deem appropriate.
5.7 Non-alienation of Benefits. Other than as specifically
provided with regard to the death of a Participant, no benefit under the Plan
shall be subject in any manner to anticipation, alienation, sale, transfer,
assignment, pledge, encumbrance or charge; and any attempt to do so shall be
void. No such benefit shall, prior to receipt by the Participant, be in any
manner liable for or subject to the debts, contracts, liabilities, engagements
or torts of the Participant.
5.8 Termination and Amendment of the Plan. The Board of Directors
at any time may amend or terminate the Plan without stockholder approval;
provided, however, that the Board of Directors may condition any amendment on
the approval of stockholders of the Company if such approval is necessary or
advisable with respect to tax, securities or other applicable laws. No such
termination or amendment without the consent of the holder of a Stock Incentive
shall adversely affect the rights of the Participant under such Stock
Incentive.
5.9 Stockholder Approval. The Plan must be submitted to the
stockholders of the Company for their approval within twelve (12) months before
or after the adoption of the Plan by the Board of Directors. If such approval
is not obtained, any Stock Incentive granted hereunder will be void.
5.10 Choice of Law. The laws of the State of South Carolina shall
govern the Plan, to the extent not preempted by federal law.
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IN WITNESS WHEREOF, the Company has caused this Plan to be executed as
of this 17 day of July, 2000.
SUN BANCSHARES, INC.
By: /s/ Thomas Bouchette
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Title: President
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ATTEST:
/s/ Richard Heath
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Secretary
[SEAL]
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