CONGAREE BANCSHARES, INC.


 


Exhibit 10.1


 


Amendment
No. 1 to the Congaree Bancshares, Inc. 2007 Stock Incentive Plan
adopted October 15, 2008.


 


CONGAREE BANCSHARES, INC. 2007


STOCK OPTION PLAN


 


AMENDMENT NO. 1 ADOPTED BY THE BOARD OF
DIRECTORS


October 15, 2008


 


First,
the Board amended the definition of “Fair Market Value” found in Article I
by deleting it in its entirety and replacing it with the following:


 


“Fair
Market Value” on any date shall mean:


 


	
   

  	
   

  	
  (i)       if the Stock is readily tradable on an
  established securities market (as defined in Treasury Regulation §
  1.897-1(m)), 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 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;

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (ii)      if the Stock is not traded on any
  securities exchange (as defined in Treasury Regulation §1.897-1(m)), the
  average of the closing high bid and low asked prices of the Stock on the
  over-the-counter market on the day such value is to be determined, or in the
  absence of closing bids on such day, the closing bids on the next preceding
  day on which there were bids; or

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (iii)     if the Stock also is not traded on the
  over-the-counter market, the fair market value as determined in good faith by
  the Board or the Committee by application of a reasonable valuation method
  consistently applied and taking into consideration all available information
  material to the value of the Company; factors to be considered may include,
  as applicable, the value of tangible and intangible assets of the Company,
  the present value of future cash-flows of the Company, the market value of
  stock or equity interests in similar corporations which can be readily
  determined through objective means (such as through trading prices on an
  established securities market or an amount paid in an arm’s length private
  transaction), and other relevant factors such as control premiums or
  discounts for lack of marketability. For purposes of the foregoing, a
  valuation prepared in accordance with any of the methods set forth in
  Treasury Regulation § 1.409A-1(b)(5)(iv)(B)(2),
  consistently used, shall be rebuttably presumed to result in a reasonable
  valuation. This paragraph is intended to comply with the definition of “fair
  market value” contained in Treasury Regulation § 1.409A-1(b)(5)(iv) and
  should be interpreted consistently therewith.

  



 

















 


CONGAREE BANCSHARES, INC.


 


Second,
the Board adopted, and made an integral part of the Plan, Article XII, Section 12.7 to read as follows:


 


12.7
Amendment to Meet the Requirements of Code Section 409A. It is
intended that this Plan and any Options granted under this Plan comply with or
meet an exemption from Section 409A of the Code, so that the income
inclusion provisions of Code Section 409A(a)(1) do not apply to an
Optionee. Optionee acknowledges that the Board shall have the sole discretion
and authority to amend the Plan and any Stock Option Agreement hereunder
including, but not limited to, increasing the Exercise Price and/or changing
the exercise period, payment periods, or restrictions of any Option in the
event that the Fair Market Value of the Stock is subsequently determined to be
greater than the Exercise Price initially established at the time of grant, to
the extent necessary to cause the Plan or such Options to comply with the
provisions of Code Section 409A. Such amendment may be retroactive to the
extent permitted by Section 409A of the Code, and shall not require the
consent of the Optionee.


 


IN
WITNESS WHEREOF, the Company has caused this Amendment No. 1 to the Plan
to be executed as of October 15, 2008 in accordance with the authority provided
by the Board of Directors.


 


	
   

  	
  Congaree Bancshares, Inc.

  
	
   

  	
   

  
	
   

  	
  By:
  

  	
  /s/
  F. Harvin Ray, Jr.

  
	
   

  	
   

  	
  Name:
  F. Harvin Ray, Jr.

  
	
   

  	
   

  	
  Title:
  Chief Executive Officer