SouthState Corporation 2002 Employee Stock Purchase Plan (Amended and Restated)
Exhibit 10.49
SOUTHSTATE CORPORATION
2002 EMPLOYEE STOCK PURCHASE PLAN
(AMENDED AND RESTATED)
(Effective Date: February 24, 2022)
TABLE OF CONTENTS
Page
ARTICLE I
BACKGROUND
ARTICLE II
DEFINITIONS
ARTICLE III
ELIGIBILITY AND PARTICIPATION
ARTICLE IV
STOCK AVAILABLE
ARTICLE V
OPTION PROVISIONS
ARTICLE VI
PURCHASING COMMON STOCK
ARTICLE VII
WITHDRAWAL OF DEDUCTIONS; TERMINATION OF EMPLOYMENT
ARTICLE VIII
AMENDMENT AND TERMINATION
ARTICLE IX
MISCELLANEOUS
SOUTHSTATE CORPORATION
2002 EMPLOYEE STOCK PURCHASE PLAN
(AMENDED AND RESTATED)
(Effective Date February 24, 2022)
BACKGROUND
SouthState Corporation, formerly known as South State Corporation, First Financial Holdings, Inc., SCBT Financial Corporation, and First National Corporation (“SouthState”), established this stock purchase plan, now known as the “SOUTHSTATE CORPORATION 2002 EMPLOYEE STOCK PURCHASE PLAN (AMENDED AND RESTATED)” (the “Plan”), effective for a thirty (30) year period commencing July 1, 2002, and terminating June 30, 2032, unless earlier terminated as provided in this document. The Plan is intended to be an employee stock purchase plan within the meaning of Section 423 of the Internal Revenue Code of 1986, as amended, and the regulations and rulings thereunder.
The provisions of this Plan are applicable only to certain individuals who, on the first day of each Option Period, are Employees of SouthState and its participating subsidiaries.
The purpose of the Plan is to enhance the proprietary interest among the Employees of SouthState and its participating subsidiaries through ownership of SouthState Common Stock.
DEFINITIONS
Whenever capitalized in this document, the following terms shall have the respective meanings set forth below:
Administrator shall mean the person (who may be an officer or employee of SouthState) selected by the Committee to operate the Plan, perform day-to-day administration of the Plan, and maintain records of the Plan.
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Beneficiary shall mean that person so designated by the Participant on a Request Form delivered to the Administrator. In the event that no validly designated Beneficiary is living at the time of a Participant’s death, the estate of the Participant shall be deemed the Participant’s Beneficiary.
Board shall mean the board of directors of SouthState.
Code shall mean the Internal Revenue Code of 1986, as amended from time to time, and the regulations promulgated thereunder.
Committee shall mean a committee designated by the Board to have the general responsibility for the administration of the Plan.
Subject to the express provisions of the Plan, the Committee shall have plenary authority in its sole and absolute discretion to interpret and construe any and all provisions of the Plan, to adopt rules and regulations for administering the Plan, and to make all other determinations necessary or advisable for administering the Plan. The Committee’s determinations on the foregoing matters shall be conclusive.
Common Stock shall mean the Common Stock, par value $2.50 per share, of SouthState.
Compensation shall mean, for any Participant for any payroll period, the Participant’s compensation which is subject to an election to defer under SouthState Corporation Employees’ Savings Plan.
Date of Grant shall mean the first day of each Option Period.
Employee shall mean a person that is classified as an employee on the payroll records of an Employer (regardless of such person’s legal status or for the purpose of other laws relating to employees).
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Employer shall mean SouthState and any Subsidiary that is designated by the Board as an employer participating in the Plan.
Exercise Date shall mean the final day of each Option Period.
Fair Market Value of a share of Common Stock for each Option Period shall mean the closing price of the Common Stock on the Nasdaq Stock Market (or such other stock exchange or over-the-counter market which constitutes the primary market for the Common Stock) as of the last business day for which prices are available prior to the Date of Grant or the Exercise Date, as the case may be, for the purposes of Section 5.1.
Option shall mean a right to purchase Common Stock under the Plan.
Option Period shall mean the first day through the final day of each calendar quarter that the Plan is in effect. The Plan may terminate during an Option Period as provided herein. For the purposes of this paragraph, each calendar year contains four calendar quarters. Such quarters commence on January 1, April 1, July 1 and October 1.
Option Price for each Option Period shall mean the price at which Common Stock may be purchased on an Exercise Date under Section 5.1.
Participant shall mean any eligible Employee who has elected to participate in the Plan under Section 3.3.
Plan shall mean the SouthState Corporation 2002 Employee Stock Purchase Plan, as amended and in effect from time to time.
Request for Participation Form, or Request Form, shall mean an Employee’s enrollment form, containing such terms and provisions as may be required by the Administrator for each Option Period.
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Subsidiary shall mean any present or future corporation which is a “subsidiary corporation” of SouthState as defined in Code Section 424.
Valuation Date shall mean those dates on which the Fair Market Value of the Common Stock is measured under Section 5.1 in order to determine the Option Price.
Except when otherwise indicated by the context, the definition of any term herein in the singular may also include the plural.
ELIGIBILITY AND PARTICIPATION
An Employee becomes eligible to participate in the Plan upon the first Date of Grant of an Option Period following the date upon which he or she is eligible to participate in the SouthState Corporation Employees’ Savings Plan; provided that such Employee is customarily scheduled to work at least 20 hours each week.
Notwithstanding the foregoing, no Employee shall be eligible to participate during any Option Period if, immediately after the Date of Grant for such Option Period, such Employee would own stock, within the meaning of Section 423(b)(3) of the Code, possessing five percent or more of the total combined voting power or value of all classes of stock of SouthState. For purposes of this Section, the attribution rules of Code Section 424(d) shall apply in determining stock ownership of any Employee, and stock which the Employee may purchase under outstanding options shall be treated as stock owned by the Employee.
For purposes of Sections 3.1, 6.3 and 7.1, an individual on a leave of absence from an Employer shall be deemed to be an Employee for the first 90 days of such leave. For the purpose of the Plan only, such individual’s employment with an Employer shall be deemed to have terminated at the close of business on the ninetieth day of such leave, unless the individual shall have returned to regular employment with an Employer prior to the close of business on such ninetieth day. Termination of any individual’s leave of absence by an Employer, other than on account of a return to employment with an Employer, shall be deemed to terminate an individual’s employment with the Employer for all purposes of the Plan.
An Employee eligible to participate in the Plan under Section 3.1 for an Option Period may become a Participant in the Plan by completing and forwarding a Request Form to the Administrator by the date established by the Committee. Once a Request Form is executed by an
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eligible Employee and approved by the Administrator (or his or her designee), it shall remain in operation until superseded by a subsequent Request Form or until the Plan terminates. The Request Form shall authorize a regular payroll deduction, as defined in Section 6.1, from the Employee’s Compensation during the Option Period. In the event that a Participant completely discontinues his payroll deduction under Section 6.2, he shall be ineligible to participate until the Date of Grant following the six (6) month anniversary of the date he elected to discontinue his payroll deduction.
STOCK AVAILABLE
Subject to adjustment as provided in this Section 4.1 and in Section 4.2, an aggregate of One Million Four Hundred Thirty-Four Thousand and Ninety-Six (1,434,096) shares of Common Stock shall be available for purchase pursuant to the provisions of the Plan. The shares may be authorized and unissued shares or may be shares issued and subsequently acquired by SouthState. If an Option under the Plan expires or terminates for any reason without having been exercised in whole or in part, the shares subject to such Option that are not purchased shall again be available for subsequent Option grants under the Plan.
The aggregate number of shares of Common Stock reserved for purchase under the Plan, as provided in Section 4.1, and the calculation of the Option Price per share for Options granted but not yet exercised, shall be appropriately adjusted to reflect any increase or decrease in the number of issued shares of Common Stock resulting from a stock dividend, stock split, or combination of shares, recapitalization or other change in SouthState’s capitalization, or other distribution with respect to holders of the Common Stock, in each case occurring after the effective date of this amendment and restatement, other than normal cash dividends. Such adjustment in outstanding Options shall be made without change in the total price applicable to the unexercised portion of such Options, and with a corresponding adjustment in the Option Price per share.
If, on any Exercise Date, the aggregate funds available for the purchase of Common Stock would purchase a number of shares in excess of the number of shares then available for purchase under the Plan pursuant to Section 4.1, the following events shall occur:
| (a) | The number of shares that would otherwise be purchased by each Participant shall be proportionately reduced on the Exercise Date in order to eliminate such excess; |
| (b) | The Plan shall automatically terminate immediately after the Exercise Date as of which the supply of available shares is exhausted; and |
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| (c) | Any balance remaining in each of the Participants’ accounts shall be refunded promptly. |
OPTION PROVISIONS
| (i) | 85 percent of the Fair Market Value of the Common Stock on the Date of Grant of the Option Period; or |
| (ii) | 85 percent of the Fair Market Value of the Common Stock on the Exercise Date of the Option Period. |
| (i) | 95 percent of the Fair Market Value of the Common Stock on the Date of Grant of the Option Period; or |
| (ii) | 95 percent of the Fair Market Value of the Common Stock on the Exercise Date of the Option Period. |
Notwithstanding anything else contained herein, no Employee may be granted an Option which permits such Employee, during any calendar year, to purchase Common Stock under this Plan, and any other qualified employee stock purchase plan (within the meaning of Code Section 423) of SouthState and its Subsidiaries, having an aggregate fair market value, determined at the time of each Date of Grant during such calendar year, of more than $25,000.
Notwithstanding anything else contained herein, no Employee may be granted an Option to purchase more than Ten Thousand (10,000) shares of Common Stock during any Option Period.
PURCHASING COMMON STOCK
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For each Option Period, an Employee eligible to participate in the Plan (under Section 3.1) may elect to participate by submitting a Request Form (under Section 3.3), in accordance with such rules as may be adopted by the Committee from time to time. The Request Form shall authorize a payroll deduction of any whole percentage of the Employee’s Compensation payable each pay period. The percentage authorized and elected under this paragraph shall not exceed 10%.
| (ii) | held under the Plan to purchase Common Stock for the Participant under the automatic exercise provisions of Section 6.5. |
If a Participant goes on a leave of absence, is transferred to employment with a Subsidiary not participating in the Plan, or remains employed with an Employer but is not customarily scheduled to work at least 20 hours each week, such Participant shall no longer be eligible for payroll deductions under the Plan, except as otherwise provided in this Section 6.3.
With respect to his or her payroll deductions, such Participant shall have the right to elect to:
| (i) | withdraw the balance in his or her account under Section 7.1; or |
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| (ii) | discontinue payroll deductions under the Plan but remain a Participant in the Plan (unless such Participant is deemed to have terminated under Section 3.2, in which case such Participant shall be deemed to make an election under part (i) of this Section 6.3). |
If the Participant returns from a leave of absence before being deemed to have terminated employment with an Employer under Section 3.2, and again becomes a full-time Employee of an Employer customarily scheduled to work at least 20 hours each week, his or her payroll deductions shall automatically recommence at the percentage level in effect immediately before the leave of absence or disqualifying change in employment status (as applicable).
The Administrator shall establish an account in the name of each Participant. A Participant’s payroll deductions, as described above, shall be credited to the Participant’s account, without interest, until withdrawn, distributed, or used to purchase Common Stock under the Plan. All payroll deductions received or held by SouthState under the Plan may be used by SouthState for any corporate purpose, and SouthState shall not be obligated to segregate such payroll deductions.
Unless a Participant’s account is distributed in cash as provided by the Plan, his or her Option shall be exercised automatically on the Exercise Date of the Option Period for the purchase of the number of shares of Common Stock which the accumulated balance in such Participant’s account at that time will purchase at the Option Price.
Prior to April 1, 2007, fractional shares shall not be issued or purchased under the Plan. In such an instance, if a Participant participates in the Plan for the following Option Period, any accumulated balance that would have been used to purchase a fractional share shall be applied to such Participant’s account for the following Option Period. Otherwise, any remaining balance will be returned to the Participant (or Beneficiary, as appropriate). Effective April 1, 2007, fractional shares may be issued and purchased under the Plan.
Within sixty days after the Exercise Date of each Option Period, each Participant participating in the Plan for such Option Period (or Beneficiary, as appropriate) shall receive a statement indicating the number of shares purchased for such Participant for such Option Period.
As soon as practicable after the Exercise Date of an Option Period, the Administrator shall cause the Company to issue the number of shares purchased for each Participant (or Beneficiary, as the case may be) for credit to the accounts of each Participant (or Beneficiary, as the case may be). Subject to applicable law, SouthState may issue such shares with or without a certificate, provided that a Participant (or his or her Beneficiary) may at any time request a certificate for such shares by written notice to the Administrator. As soon as practicable after the
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shares have been issued, the Administrator shall notify each Participant of the number of shares of Common Stock held in such account and of the appropriate account information. None of the rights or privileges of a shareholder of the Common Stock shall exist with respect to Common Stock purchased under the Plan unless and until the shares of Common Stock have been issued by the Company and either the Participant has become the beneficial owner of the Common Stock or the Participant has become the record owner of the Common Stock.
The granting of Options for, and the sale and delivery of, Common Stock under the Plan, shall be subject to the effecting by SouthState of any listing, registration, or qualification of the shares subject to that Option upon any securities exchange or market and under any federal or state law, or the obtaining of the consent or approval of any governmental regulatory body that the Committee deems necessary or desirable for the issue or purchase of the shares covered.
Until an election is made by a Participant (or his or her Beneficiary) to the contrary, each Participant shall be deemed to have elected to participate in the SouthState Corporation Dividend Reinvestment Plan (the “DRP”) with respect to dividends paid on shares of Common Stock issued by SouthState to such Participant under the Plan. A Participant (or his or her Beneficiary) may elect not to participate in the DRP by providing written notice of such election to the Administrator, and such election shall become effective for all dividends declared by SouthState after such election. A Participant who elects not to participate in the DRP may not thereafter elect to participate in such plan except in accordance with the terms and conditions of the DRP. Shares of Common Stock issued by SouthState under the Plan shall be treated as subject to the DRP until such election has become effective or such shares are sold, transferred or assigned by a Participant.
WITHDRAWAL OF DEDUCTIONS; TERMINATION OF EMPLOYMENT
In the event that a Participant or his Beneficiary, as the case may be, elects to have the Participant’s account balance returned under the provisions of Section 6.2(c) (discontinued deduction), 6.3 (deemed termination or transfer to ineligible status), 7.3 (retirement or disability), or 7.4 (death), the balance in such Participant’s account shall be returned to the Participant, in cash as soon as practicable, upon the Participant’s written request received by the Administrator no later than the 15th day of the final calendar month of the current Option Period.
If a Participant terminates employment with SouthState and the Subsidiaries for reasons other than retirement (voluntary termination of employment with SouthState and the Subsidiaries on or after age 65), disability as determined under SouthState’s long-term disability plan, or
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death, the balance in the Participant’s account shall be returned to the Participant in cash as soon as practicable, and such account balance shall not be used to purchase Common Stock under the Plan.
In the event a Participant terminates employment with SouthState and the Subsidiaries by reason of retirement (as defined in Section 7.2) or disability as determined under SouthState’s long-term disability plan, the provisions of this Section 7.3 shall apply.
With respect to the balance of a Participant’s account, the Participant shall file a written election with the Administrator by the 15th day of the final calendar month of the current Option Period, indicating whether the balance is to be distributed under Section 7.3(i) or used under Section 7.3(ii). In the event that such election is not received by such date, the Participant shall be deemed to have elected distribution under Section 7.3(i). Pursuant to such election, the Participant’s account balance shall be:
| (i) | returned to the Participant under the provisions of Section 7.1; or |
| (ii) | held under the Plan and used to purchase Common Stock for the Participant under the automatic exercise provisions of Section 6.5. |
In the event a Participant dies during an Option Period, the provisions of this Section 7.4 shall apply.
With respect to the balance of a Participant’s account, the Beneficiary shall file a written election with the Administrator by the 15th day of the final calendar month of the current Option Period, indicating whether the balance is to be distributed under Section 7.4(i) or used under Section 7.4(ii). In the event that such election is not received by such date, the Beneficiary shall be deemed to have elected distribution under Section 7.4(i). Pursuant to such election, the Participant’s account balance shall be:
| (i) | distributed to the Participant’s Beneficiary under the provisions of Section 7.1; or |
| (ii) | held under the Plan and used to purchase Common Stock for the Beneficiary under the automatic exercise provisions of Section 6.5. |
AMENDMENT AND TERMINATION
The Committee shall have the right to amend or modify the Plan, in full or in part, at any time and from time to time; provided, however, that no amendment or modification shall:
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| (a) | Affect any right or obligation with respect to any grant theretofore made, unless required by law, or |
| (b) | Unless previously approved by the shareholders of SouthState (where such approval is necessary to satisfy then applicable requirements of federal securities laws, the Code, or rules of any stock exchange or market on which SouthState’s Common Stock is listed): |
| (i) | in any manner materially affect the eligibility requirements set forth in Sections 3.1 and 3.2, |
| (ii) | increase the number of shares of Common Stock available for issuance under the Plan (except as provided in Section 4.2), or |
| (iii) | materially increase the benefits to Participants under the Plan. |
The Committee may terminate the Plan at any time in its sole and absolute discretion. Upon termination of the Plan, the Administrator shall give notice thereof to Participants and shall terminate all payroll deductions. Cash balances in Participants’ accounts shall be refunded promptly.
MISCELLANEOUS
The Plan shall be approved and ratified by the shareholders of SouthState, not later than 12 months after the Plan is approved by the Board of Directors, pursuant to Treasury regulation Section 1.423-2(c). If for any reason such approval is not given by such date, the Plan shall automatically terminate, all payroll deductions shall cease, and the balances in Participants’ accounts shall be promptly distributed to them. Any Common Stock issued for credit to the accounts of Participants (or to such Participants) prior to such date, however, shall remain the property of the Participants.
Neither the establishment of the Plan, nor the grant of any Options thereunder, nor the exercise thereof shall be deemed to give to any Employee the right to be retained as an employee of SouthState or any Subsidiary or to interfere with the right of SouthState or any Subsidiary to discharge any Employee or otherwise modify the employment relationship at any time.
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The Administrator shall be entitled to require any Participant to remit, through payroll withholding or otherwise, any tax (including, without limitation, state and federal income tax and, if required by law or relevant IRS guidance, the Participant’s portion of FICA and FUTA tax) that it determines it is so obligated to collect with respect to the issuance of Options or Common Stock hereunder, or the subsequent exercise of such Options or the sale or disposition of such Common Stock, and the Administrator shall institute such mechanisms as shall insure the collection of such taxes.
No Option granted under the Plan is assignable or transferable by any Participant, other than by will or the laws of descent and distribution. Options granted to a Participant are only exercisable, during such Participant’s lifetime, by that Participant. A Participant’s unexercised Options, in the event that a Participant dies, shall be treated pursuant to the provisions of Section 7.4.
Subject to any required action by the shareholders, if SouthState shall be the surviving or resulting entity in any merger or share exchange, or if SouthState shall be a party to a merger or share exchange for the purpose of changing the jurisdiction of its incorporation, any Options granted hereunder shall pertain to and apply to the shares of stock of SouthState or the survivor. However, in the event of a dissolution or liquidation of SouthState, or of a merger or share exchange in which SouthState is not the surviving or resulting entity, or a sale of all or substantially all of the assets of SouthState, the Plan and any offering hereunder shall terminate upon the effective date of such dissolution, liquidation, merger, share exchange or asset sale, and the balance then standing to the credit of each Participant in his or her account shall be refunded promptly.
SouthState is under no obligation to repurchase from any Participant, Beneficiary, or any other party, any shares of Common Stock acquired under the Plan.
The Plan shall be governed by and construed in accordance with the laws of the State of South Carolina except to the extent such laws are preempted by federal law.
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IN WITNESS WHEREOF, SouthState Corporation has caused this plan document, as amended and restated, to be executed this ____th day of February, 2022.
SOUTHSTATE CORPORATION
By: ________________________________
ATTEST:
By: ___________________________
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