Exhibit 10.1
FOUR OAKS FINCORP, INC.
EMPLOYEE STOCK PURCHASE AND BONUS PLAN
(Amended and Restated August 20, 2001)
1. Purpose of Plan. The purpose of this Employee Stock Purchase and Bonus
Plan (the "Plan") of Four Oaks Fincorp, Inc. (the "Holding Company") is to
further the success of the Holding Company by making shares of the Holding
Company's common stock available for purchase by the employees of the Holding
Company and its subsidiaries in order to provide an additional incentive to such
employees to continue their employment and in order to give such employees a
greater interest in the Holding Company's success. The Plan is not intended to
be an "Employee Stock Purchase Plan" as defined in Section 423(b) of the
Internal Revenue Code of 1986, as amended.
2. Stock Subject to Plan. Subject to the provisions of Paragraph 20 of the
Plan, an aggregate of One Hundred Thousand (100,000) shares (the "Shares") of
the Holding Company's common stock, par value one dollar ($1.00) per share (the
"Common Stock"), shall be reserved for issuance under the Plan. The Shares shall
be authorized but unissued shares of Common Stock. The Board may also from time
to time reserve additional shares of authorized and unissued Common Stock for
issuance pursuant to the Plan.
3. Eligibility. All regular full-time employees of the Holding Company and
its subsidiaries who are employed on December 31 of a calendar year are eligible
to participate in the Plan the following year. For purposes of the Plan,
"regular full-time employee" means an individual who works a minimum of twenty
(20) hours per week on a regular basis.
4. Participation. Participation in the Plan is entirely voluntary, and
employees may decide whether or not to participate on a year-to-year basis.
5. Employee Option. Subject to Paragraph 7, each eligible employee shall
have the option to purchase Common Stock, at fair market value, in an amount
equal to five percent (5%) of the employee's compensation for the year during
which his or her eligibility is determined, up to One Thousand Dollars ($1,000).
6. Bonus from Holding Company. If an employee elects to purchase Common
Stock pursuant to the option in Paragraph 5, the Holding Company will award the
employee a bonus in a dollar amount equal to fifty percent (50%) of the price of
the Common Stock purchased by the employee, up to Five Hundred Dollars ($500)
subject to Paragraph 7, with the requirement that the bonus (after satisfaction
of applicable tax withholding requirements) be used to purchase additional
Common Stock at the same price per share as the shares covered by the option in
Paragraph 5.
7. Full Shares of Common Stock. The dollar limitations in Paragraphs 5 and
6 on the amount of Common Stock which an employee may purchase and the bonus
from the Holding Company shall be decreased to the dollar amount which would
allow for the purchase of the maximum number of full shares of Common Stock
without exceeding such dollar limitations. The purpose of this adjustment is to
avoid the necessity of issuing partial shares of Common Stock when such dollar
limitations are not exact multiples of the fair market value of a full share of
Common Stock.
8. Initiation of Participation in the Plan. By March 15 of each calendar
year following the year during which an employee's eligibility is determined,
the Holding Company shall notify each eligible employee of the number of shares
of Common Stock which the employee has the option to purchase and the purchase
price of such shares. Upon receipt of such notice, the employee shall have ten
(10) days to deliver a check to the Holding Company for the number of shares
that the employee wishes to purchase and an authorization for the Holding
Company to apply the employee's bonus (determined pursuant to Paragraph 5) to
the purchase of additional shares of Common Stock at the same price per share.
Within ten (10) days after receiving such check and authorization from the
employee, the Holding Company shall issue to the employee a stock certificate
for the purchased shares of Common Stock including the shares of Common Stock
purchased by application of the bonus (after satisfaction of withholding
liabilities). Employees who
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are participants in the Plan shall not have any of the rights of a
shareholder with respect to the shares of Common Stock purchased under the Plan
until such shares shall be issued to them by the Holding Company, and the
Holding Company shall make no adjustments for dividends or other rights for
which the record date is before the date the Holding Company issues the
certificates representing such shares.
9. Administration. The Board shall appoint a committee (the "Committee") of
at least two "Non-Employee Directors," as defined in Rule 16b-3(b)(3)
promulgated under Section 16 of the Securities Exchange Act of 1934, to
administer the Plan. The Committee shall report all of its actions to the Board.
The Board may from time to time remove members from the Committee and appoint
their successors. The Board shall fill all vacancies on the Committee however
caused.
Except as otherwise expressly provided in the Plan, the Committee shall
have absolute discretionary authority (a) to determine (i) the fair market value
purchase price of the shares of Common Stock, (ii) the employees who may
purchase shares of the Common Stock, (iii) the time or times at which Common
Stock may be purchased, and (iv) the number of shares of Common Stock that may
be purchased by an employee without exceeding the limits in Paragraphs 5, 6 and
7; (b) to interpret the Plan; (c) to prescribe, amend and rescind rules and
regulations relating to the Plan; (d) to determine the terms and provisions (and
amendments of the terms and provisions) of the Plan, including such terms and
provisions and (amendments of terms and provisions) as shall be required in the
Committee's judgment to conform to any change in any applicable law or
regulation; and (e) to make all other determinations the Committee shall deem
necessary or advisable for the Plan's administration.
The Committee shall select one of its members as its chairman and shall
hold its meetings at such times and places as it may determine. The Committee
shall make all decisions and determinations by not less than a majority vote of
its members. Any decisions or determination which the Committee reduces to a
writing signed by all its members shall be fully as effective as if such
decision or determination had been made by a majority vote of the Committee at a
meeting which shall have been duly called and held. The Committee shall appoint
a secretary who shall keep minutes of its meetings. The Committee shall make
such rules and regulations for the conduct of its business as it shall deem
advisable. No member of the Committee or the Board shall be liable to any person
for any action or determination which he or she makes in good faith.
10. Purchase Price. The Committee shall determine the purchase price of the
shares of Common Stock purchased under the Plan; provided, however, the purchase
price per share shall not be less than the fair market value per share on the
date of the annual offer by the Holding Company.
11. Retirement, Death or Termination of Employment. Subject to Paragraphs
12 and 13, as long as an eligible employee is employed by the Holding Company or
one of its subsidiaries on December 31, such employee, or his legal
representative, shall (a) have the option to purchase Common Stock under the
Plan and (b) receive a bonus under the Plan in the following year even if the
employee retires, dies or terminates his or her employment before March 15 of
the following year.
12. Termination of Plans on Merger or Sale of Assets. A liquidation of the
Holding Company, a merger or consolidation in which the Holding Company is not
the surviving or resulting corporation or a sale of all or substantially all of
the Holding Company's assets shall cause the Plan to terminate on the effective
date of such action.
13. Amendment and Termination. Unless terminated earlier as provided for in
the Plan, the Plan shall terminate when all shares of Common Stock reserved for
issuance under the Plan have been issued. In addition, the Board may terminate
the Plan at any time for any reason or make such modifications or amendments to
the Plan as the Board shall deem advisable in order to conform to any change in
any applicable law or regulation or for any other reason.
14. Effectiveness of Plan. The Plan shall become effective on such date as
the Board shall determine. All purchases of Common Stock under the Plan shall be
subject to the condition that if at any time the Holding Company shall determine
in its discretion that (a) the satisfaction of withholding tax or other
withholding liabilities, (b) the listing upon any securities exchange or the
registration or qualification under any state or federal law of any shares of
Common Stock otherwise deliverable or (c) the consent or approval of any
regulatory body is necessary or desirable as a condition of, or in connection
with, the delivery or purchase of shares of Common Stock, then in any such
event, such purchase shall not be effective unless such withholding, listing,
registration,
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qualification, consent or approval shall have been effected or obtained
free of any conditions not acceptable to the Holding Company.
15. Use of Proceeds. The Holding Company shall add the proceeds it receives
from the sale of Common Stock pursuant to the Plan to the Holding Company's
general funds and use such proceeds for general corporate purposes.
16. Expenses of Plan. The Holding Company shall bear all costs and expenses
in connection with the administration of the Plan.
17. Risk of Common Stock Ownership. An employee who participates in the
Plan assumes all risks inherent in any Common Stock purchase with respect to any
Common Stock purchased under the Plan, whether or not the actual Common Stock
certificate has been issued to the employee. An employee has no guarantee
against a decline in the price or value of the Common Stock, and the Holding
Company assumes no obligation for repurchase of the participating employee's
Common Stock purchased under the Plan. An employee who purchases Common Stock
has all the rights of any other shareholder of the Common Stock with respect to
the shares of Common Stock issued to him or her under the Plan.
18. Tax Consequences. Any bonus awarded an employee pursuant to Paragraph 5
will be included in the employee's gross income for income tax purposes and
subject to applicable withholding taxes. Sums paid by an employee to purchase
shares of Common Stock under the Plan are not deductible contributions to an
employee benefit plan for income tax purposes. Each employee who participates in
the Plan retains all responsibility for all reports and payments required of him
by any applicable tax laws.
19. Liability of Holding Company. The Holding Company shall not be liable
for any act done in good faith or for any omission to act, including, without
limitation, any claims of liability (a) with respect to the prices at which
shares of Common Stock are sold to an employee and the times when such sales are
made or (b) for any fluctuation in the value of the Common Stock after the
purchase.
20. Adjustments Upon Changes in Capitalization. In the event of any change
in the outstanding Common Stock by reason of any stock dividend, split-up,
recapitalization, combination or exchange of shares, merger, consolidation,
acquisition of property or stock, separation, reorganization or liquidation or
similar action, the Committee shall adjust the aggregate number and class of
shares of Common Stock reserved and subject to purchase under the Plan
appropriately, and the Committee's determination on the adjustment shall be
conclusive.
21. Nontransferability. Except as expressly provided in the Plan, an
employee shall have no right to sell, assign, encumber or otherwise dispose of
his rights to participate in the Plan, and no options granted under the Plan
shall be transferable otherwise than by will or the laws of descent and
distribution, and during the lifetime of the option holder only he (or his duly
appointed legal representative) may exercise the option.
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