Exhibit 10.1


 


FIRST CENTURY BANCORP.


AMENDED AND RESTATED


2003 STOCK INCENTIVE PLAN


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  PAGE

  
	
   

  	
   

  	
   

  
	
  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

  	
  5

  
	
  2.4

  	
  Eligibility and Limits

  	
  5

  
	
  SECTION 3 

  	
  TERMS OF STOCK INCENTIVES

  	
  6

  
	
  3.1

  	
  General Terms and Conditions

  	
  6

  
	
  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

  	
  7

  
	
   

  	
  (e)

  	
  Termination
  of Incentive Stock Option Status

  	
  8

  
	
   

  	
  (f)

  	
  Special
  Provisions for Certain Substitute Options

  	
  8

  
	
  3.3

  	
  Treatment of Awards Upon
  Termination of Service

  	
  8

  
	
  SECTION 4 

  	
  RESTRICTIONS ON STOCK

  	
  8

  
	
  4.1

  	
  Escrow of Shares

  	
  8

  
	
  4.2

  	
  Restrictions on Transfer

  	
  9

  
	
  SECTION 5 

  	
  GENERAL PROVISIONS

  	
  9

  
	
  5.1

  	
  Withholding

  	
  9

  
	
  5.2

  	
  Changes in Capitalization;
  Merger; Liquidation

  	
  9

  
	
  5.3

  	
  Cash Awards

  	
  10

  
	
  5.4

  	
  Compliance with Code

  	
  10

  
	
  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

  	
  11

  
	
  5.9

  	
  Stockholder Approval

  	
  11

  
	
  5.10

  	
  Choice of Law

  	
  11

  
	
  5.11

  	
  Effective Date of the Plan

  	
  11

  
							



 

















 


FIRST CENTURY BANCORP.


AMENDED AND RESTATED


2003 STOCK INCENTIVE PLAN


 


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)           “Affiliate”
means


 


(1)           any Subsidiary or
Parent;


 


(2)           an
entity that directly or through one or more intermediaries controls, is
controlled by, or is under common control with the Company, as determined by
the Company; or


 


(3)           any
entity in which the Company has such a significant interest that the Company
determines it should be deemed an “Affiliate,” as determined in the sole
discretion of the Company.


 


(b)           “Bank” means The
National Bank of Gainesville.


 


(c)           “Board
of Directors” means the board of directors of the Company.


 


(d)           “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’s 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.


 


(e)           “Change
in Control” has the same meaning as provided in the employment agreement
between the Participant and the Company or Affiliate(s), or if no such
definition or employment agreement exists, “Change in Control shall mean any
one of the following events which may occur after the date the Stock Incentive
is granted:


 


(1)           the
acquisition by any individual, entity or “group,” within the meaning of Section 13(d)(3) or
Section 14(d)(2) of the Securities Exchange Act of 1934, as amended,
(a “Person”) of beneficial ownership (within the meaning of Rule 13-d-3
promulgated under the Securities Exchange Act of 1934) of voting securities of
the Company or the Bank where such acquisition


 


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causes any such Person to own fifty percent (50%) or more of the
combined voting power of the then outstanding voting securities entitled to
vote generally in the election of directors;


 


(2)           within
any twelve-month period, the persons who were directors of the Company or the
Bank immediately before the beginning of such twelve-month period (the “Incumbent
Directors”) shall cease to constitute at least a majority of the Board of
Directors of the Company or the Bank; 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 the Board of Directors
of the Company or the Bank 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 relating
to the election of directors shall be deemed to be an Incumbent Director;


 


(3)           a
reorganization, merger or consolidation, with respect to which persons who were
the stockholders of the Company or the Bank 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 or the Bank to any third party.


 


(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.  If
the Committee has not been appointed, the Board of Directors in its entirety
shall constitute the Committee.


 


(h)           “Company”
means First Century Bancorp.


 


(i)            “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 an
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.


 


(j)            “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.


 


(k)           “Exchange
Act” means the Securities Exchange Act of 1934, as amended.


 


2

















 


(l)            “Fair
Market Value” with regard to a date means:


 


(1)           if
the Stock is then readily tradable on an established securities market (as
defined in Section 1.897-1(m) of the Treasury Regulations), the
closing sales price of the Stock on the trading day immediately preceding such
date on the securities exchange having the greatest volume of trading in the
Stock during the thirty (30) day period preceding the day the value is to be
determined or, if such exchange was not open for trading on such date, the next
preceding date on which it was open; or


 


(2)           if
the Stock is not then readily tradable on an established securities market (as
defined in Section 1.897-1(m) of the Treasury Regulations), then (A) with
respect to the grant of a Nonqualified Stock Option, as of any date, the fair
market value of a share of Stock determined by the Committee by the reasonable
application of a reasonable valuation method in compliance with Section 409A
of the Code and Section 1.409A-1(b)(5)(iv) of the Treasury
Regulations; and (B) with respect to the grant of an Incentive Stock
Option, the fair market value of a share of Stock determined in good faith by
the Committee in any reasonable manner, in compliance with Section 422 of
the Code and Section 1.422-2(e) of the Treasury Regulations.


 


(m)          “Incentive
Stock Option” means an incentive stock option, as defined in Code Section 422,
described in Plan Section 3.2.


 


(n)           “Nonqualified
Stock Option” means a stock option, other than an option qualifying as an
Incentive Stock Option, described in Plan Section 3.2.


 


(o)           “Option”
means a Nonqualified Stock Option or an Incentive Stock Option.


 


(p)           “Over
10% Owner” means an individual who at the time an Incentive Stock Option is
granted owns Stock possessing more than ten percent (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).


 


(q)           “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 fifty percent (50%) or more of the
total combined voting power of all classes of stock in one of the other
corporations in the chain.


 


(r)            “Participant”
means an individual who receives a Stock Incentive hereunder.


 


(s)           “Plan”
means the First Century Bancorp. Amended and Restated 2003 Stock Incentive
Plan.


 


(t)            “Stock”
means the Company’s no par value common stock.


 


3

















 


(u)           “Stock
Incentive Agreement” means an agreement between the Company and a
Participant or other documentation evidencing an award of a Stock Incentive.


 


(v)           “Stock
Incentive” means, collectively, Incentive Stock Options and Nonqualified
Stock Options.


 


(w)          “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 fifty percent (50%) or more of the total combined voting power of
all classes of stock in one of the other corporations in the chain.  A “Subsidiary” shall include any entity other
than a corporation to the extent permissible under Section 424(f) of
the Code or the Treasury Regulations or rulings thereunder.


 


(x)            “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 a
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.


 


(y)           “Treasury
Regulations” means regulations promulgated by the United States Department of
Treasury pursuant to the Code, as amended, including proposed or temporary
regulations as applicable.


 


SECTION 2  THE STOCK INCENTIVE PLAN


 


2.1           Purpose
of the Plan.  The Plan is intended to
(a) provide incentives to officers, employees and directors of the Company
and its 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 and directors 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, 750,000 shares of Stock (the “Maximum
Plan Shares”) are hereby reserved exclusively for issuance upon exercise or
payment pursuant to Stock Incentives.  At
such times as the Company is 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.


 


4

















 


2.3           Administration
of the Plan.  The Plan shall be
administered by the Committee.   The
Committee shall consist of at least two members of the Board of Directors.  During those periods that the Company is
subject to the provisions of Section 16 of the Exchange Act, the Board of
Directors shall consider whether each Committee member should qualify as an “outside
director” as defined in Section 1.162-27(e) of the Treasury
Regulations and a “non-employee director” 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 and directors 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 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 and directors 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 Nonqualified Stock
Option(s).   During such periods as
required by Code 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 calendar year to an employee may not exceed
25,000, subject to adjustment in accordance with Section 5.2.  If, after grant, the exercise price of an
Option is reduced, the transaction shall be treated as the cancellation of the
Option and the grant of a new Option.  If
an Option is deemed to be cancelled as described in the preceding sentence, the
Option that is deemed to be cancelled and the Option that is deemed to be
granted shall both be counted against the Maximum Plan Shares and the maximum
number of shares for which Options may be granted to an employee during any
calendar year.


 


5
















 


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.


 


(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 price per share of Stock received or to
be received by other stockholders of the Company in the Change of Control
transaction, as determined by the Committee, or, if the Committee in its sole
discretion deems it to be appropriate, the Fair Market Value of a share of
Stock as of the date of the Change of Control; provided, however, that, in the
case of Incentive Stock Options, then unless the Committee determines
otherwise, the price will be based only on the Fair Market Value of the Stock
on the date on which the Incentive Stock Options are cashed out (the “Change in
Control Price”).  For purposes of this
Subsection, any Option shall be cashed out on the basis of the excess, if any,
of the Change in Control Price over the Exercise Price to the extent the Option
is then exercisable in accordance with the terms of the Option and the Plan.


 


(e)           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.


 


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 Nonqualified Stock Option, and the Option shall be clearly identified as
to its status as an Incentive Stock Option or a Nonqualified Stock Option.  At the time any 


 


6

















 


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 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
Company or the Bank may require a Participant to exercise an Option in whole or
in part if the capital of the Company or 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
Nonqualified 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 Option
granted to a Participant 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 the Participant or any other designated
person, 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 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 Bank opens for business
shall contain provisions which allow the 


 


7

















 


Option to become vested and exercisable at a rate faster than in equal
one-third increments commencing with the first anniversary of the Option’s
grant date.


 


(e)           Termination of Incentive Stock
Option Status.  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
three (3) months after the date of termination of employment; provided,
however, that in the case of a holder whose termination of employment is due to
death or Disability, up to 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) (with
respect to Incentive Stock Options) or Section 1.409A-1(b)(v)(D) of
the Treasury Regulations (with respect to Nonqualified Stock Options) is
applicable, may provide for an exercise price computed in accordance with such
Code and Treasury Regulation provisions 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 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 


 


8

















 


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 tax
withholding requirements prior to the delivery of any certificate or
certificates for such shares.  A
Participant may pay the withholding obligation 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 obligation 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.


 


5.2           Changes in
Capitalization; Merger; Liquidation.


 


(a)           The number of shares of Stock
reserved for the grant of Options, the maximum number of shares of Stock for
which Options may be granted to any employee during any calendar year, the
number of shares of Stock reserved for issuance upon the exercise 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.  Any such adjustments shall be
made in accordance with Section 1.424-1 


 


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of the Treasury Regulations (with respect to Incentive Stock Options)
or Section 1.409A-1(b)(v) of the Treasury Regulations (with respect
to Nonqualified Stock Options).


 


(b)           In the event of any merger,
consolidation, reorganization, extraordinary dividend, spin-off, sale of
substantially all of the Company’s assets, other change in the capital
structure of the Company or its Stock (including any Change in Control) 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, reorganization, extraordinary dividend, spin-off, sale of
substantially all of the Company’s assets, other change in capital structure or
tender offer, including, without limitation; the assumption of other awards,
the substitution of new awards, the adjustment of outstanding awards (with or
without the payment of any consideration), 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, reorganization, extraordinary dividend, spin-off, sale of
substantially all of the Company’s assets, other change in the capital
structure of the Company or its Stock or tender offer for shares of Stock or
the termination of outstanding awards in exchange for the cash value, as
determined in good faith by the Committee of the vested and/or unvested portion
of the award.  The Committee’s general
authority under this Section 5.2 is limited by and subject to all other
express provisions of the Plan.  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. Any such
adjustments shall be made in accordance with Section 1.424-1 of the
Treasury Regulations (with respect to Incentive Stock Options) or Section 1.409A-1(b)(v) of
the Treasury Regulations (with respect to Nonqualified Stock Options).


 


(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
Nonqualified Stock Options to be granted hereunder are intended to comply with
Code Section 409A or an exemption thereto. All provisions of the Plan and
all Options granted hereunder shall be construed in such a 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 employee, director, organizer or officer of the Company
or affect the right of the Company to terminate the Participant’s services 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 herein, 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.


 


5.10         Choice of Law. 
The laws of the State of Georgia shall govern the Plan, to the extent
not preempted by federal law.


 


5.11         Effective Date of the
Plan.  The Plan was approved by the
Board as of May 15, 2008 and will be effective as of that date.


 


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  FIRST CENTURY BANCORP.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ William R. Blanton

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Chief Executive Officer

  
				



 


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