EXHIBIT 4.6
EXHIBIT 4.6
BYLAWS OF BB&T CORPORATION
As
Amended and Restated Effective April 28, 2004
ARTICLE I
Offices
1.
Principal Office
: The principal office of the corporation shall be
located at 200 West Second Street, Winston-Salem, North Carolina, or at such
other place as the Board of Directors may fix from time to time.
2.
Registered Office
: The corporation shall maintain a registered office or
registered offices at such place or places as may be required by applicable law.
3.
Other Offices
: The corporation may have offices at such other places as
the Board of Directors may from time to time determine, or as the affairs of the
corporation may require.
ARTICLE II
Meetings
of Shareholders
1.
Place of Meetings
: All meetings of shareholders shall be held at the
principal office of the corporation, or at such other place, either within or
without the State of North Carolina, as shall in each case be fixed by the
Chairman of the Board, the Chief Executive Officer, the President, the Chief
Operating Officer, the Secretary or the Board of Directors and designated in the
notice of the meeting.
2.
Annual Meetings
: The annual meeting of shareholders shall be held on such
date and at such time as may be designated by the Chairman of the Board, the
Chief Executive Officer, the President, the Chief Operating Officer, the
Secretary or the Board of Directors for the purpose of the election of directors
and for the transaction of such other business as may properly come before the
meeting.
3.
Substitute Annual Meeting
: If the annual meeting shall not be held on the
day designated by these bylaws, a substitute annual meeting may be called in
accordance with the provisions of this Article relating to special meetings. A
meeting so called shall be designated and treated for all purposes as the annual
meeting.
4.
Special Meetings
: Special meetings of the shareholders may be called at
any time by the Chairman of the Board, the Chief Executive Officer, the
President, the Chief Operating Officer, the Secretary or the Board of Directors
of the corporation.
5.
Notice of Meetings
:
(a)
Written, printed or electronically transmitted notice of a meeting stating the
date, time and place of the meeting shall be delivered to each shareholder of
record entitled to vote at the meeting not fewer than 10 nor more than 60 days
before the date thereof, by or at the direction of the Chairman of the Board,
the Chief Executive Officer, the President, the Chief Operating Officer, the
Secretary or the Board of Directors.
(b)
In case of an annual or substitute annual meeting, the notice of meeting need
not specifically state the business to be transacted at the meeting, unless a
description of the matter is required by the provisions of applicable law. In
the case of a special meeting, the notice of meeting shall specifically state
the purpose or purposes for which the meeting is called.
(c)
When a meeting is adjourned for 120 days or more, notice of the adjourned
meeting shall be given as in the case of an original meeting. When a meeting is
adjourned for less than 120 days in any one adjournment, it is not necessary to
give any notice of the date, time and place of the adjourned meeting other than
by announcement at the meeting at which the adjournment is taken.
6.
Voting Groups
: All shares of one or more classes or series that under the
articles of incorporation or the North Carolina Business Corporation Act are
entitled to vote and be counted together collectively on a matter at a meeting
of shareholders constitute a voting group. All shares entitled by the articles
of incorporation or the North Carolina Business Corporation Act to vote
generally on a matter are for that purpose a single voting group. Classes or
series of shares shall not be entitled to vote separately by voting group unless
authorized pursuant to the articles of incorporation or specifically required by
applicable law.
7.
Quorum
: Shares entitled to vote as a separate voting group may take
action on a matter at a meeting only if a quorum of that voting group exists
with respect to that matter. Unless otherwise required by the North Carolina
Business Corporation Act, the articles of incorporation or a bylaw adopted by
the shareholders, a majority of the votes entitled to be cast on a matter by the
voting group constitutes a quorum of that voting group for action on that
matter. Once a share is represented for any purpose at a meeting, it is deemed
present for quorum purposes for the remainder of the meeting and for any
adjournment of that meeting unless a new record date is or must be set for that
adjourned meeting. If there is no quorum at the opening of a meeting of
shareholders, such meeting may be adjourned from time to time by the vote of a
majority of the votes cast on the motion to adjourn; and at any adjourned
meeting at which a quorum is present, any business may be transacted which might
have been transacted at the original meeting. The shareholders at a meeting at
which a quorum is present may continue to do business until adjournment,
notwithstanding the withdrawal of enough shareholders to leave less than a
quorum.
8.
Voting of Shares
:
(a)
Subject to any restrictions imposed pursuant to the articles of incorporation or
applicable law, each outstanding share having voting rights, regardless of
class, shall be entitled to one vote on each matter submitted to a vote at a
meeting of shareholders.
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(b)
If a quorum exists, action on a matter (other than the election of directors) by
a voting group is approved if the votes cast within the voting group favoring
the action exceed the votes cast opposing the action, unless a greater number of
affirmative votes is required by the North Carolina Business Corporation Act or
by the articles of incorporation or a bylaw adopted by the shareholders. Voting
on all matters properly presented at a meeting shall be by voice vote, unless
the chairman of the meeting determines otherwise.
9.
Proxies
: Shares may be voted either in person or by one or more proxies
authorized by a written appointment of proxy signed by the shareholder or his or
her duly authorized attorney-in-fact. In addition, (i) an appointment in the
form of an electronic record that bears the shareholder’s electronic
signature and that may be directly reproduced in paper form by an automated
process shall be deemed a valid appointment form, and (ii) the corporation may
permit a shareholder to appoint one or more proxies by any kind of telephonic
transmission, even if not accompanied by written communication, under
circumstances or together with information from which the corporation can
reasonably assume that the appointment was made or authorized by the
shareholder. An appointment of proxy is valid for 11 months from the date of its
execution, unless a different period is expressly provided in the appointment
form.
10.
Notice of Shareholder Proposals and Nominees for Election as Directors
:
(a)
No business shall be transacted at a meeting of shareholders, except such
business as shall be (i) specified in the notice of meeting given as provided in
Section 5 of this Article, (ii) presented by or at the direction of the Board of
Directors, or (iii) otherwise brought before the meeting by a shareholder of
record entitled to vote at the meeting in compliance with the procedures set
forth in this Section 10. In addition to the requirements of any applicable law
with respect to any proposal presented by a shareholder for action at a meeting
of the shareholders of the corporation (including the requirements of the
Securities and Exchange Commission relating to shareholder proposals and
director nominees), and subject to the provisions of the North Carolina Business
Corporation Act as in effect from time to time, any shareholder desiring to
introduce any business before any meeting of the shareholders of the corporation
shall be required to deliver to the Secretary written notice containing the
information specified herein (i) in the case of an annual meeting, at least
60 days but no more than 90 days in advance of the first anniversary of the
notice date of the corporation’s proxy statement for the preceding
year’s annual meeting, and (ii) in the case of a special meeting, no
later than the tenth day following the notice date for such meeting. In the
event that the date of an annual meeting is advanced by more than 30 days or
delayed by more than 60 days from the first anniversary date of the preceding
year’s annual meeting, notice by a shareholder must be delivered no earlier
than the 90
th
day prior to such annual meeting and no later than the
later of the 60
th
day prior to such annual meeting or the tenth day
following the notice date for such meeting. The written notice required herein
shall, as to each matter the shareholder proposes to bring before the meeting,
contain the following information (in addition to any information required by
applicable law): (i) the name and address of the shareholder who intends to
present the proposal and the beneficial owner, if any, on whose behalf the
proposal is made; (ii) the number of shares of each class of capital stock owned
by the shareholder and such beneficial owner; (iii) a description of the
business proposed to be introduced to the shareholders; (iv) any material
interest, direct or indirect, which the shareholder or beneficial owner may have
in the business described in the notice; and (v) a representation that the
shareholder is a holder of record of shares of the corporation entitled to vote
at the meeting and intends to appear in person or by proxy at the meeting to
present the proposal.
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(b)
Only persons who are nominated in accordance with the provisions set forth in
these bylaws shall be eligible to be elected as directors at a meeting of
shareholders. Nominations of persons for election to the Board of Directors may
be made at such meeting of shareholders (i) by or at the direction of the Board
of Directors (or a properly authorized committee of the Board) or (ii) by any
shareholder who is a shareholder of record at the time of giving of notice
provided for in this Section 10, who shall be entitled to vote for the election
of directors at the meeting and who complies with the notice procedures set
forth in this Section 10. Any shareholder desiring to nominate a person for
election as a director of the corporation shall deliver to the Secretary a
written notice at such time and containing such information as set forth in
Section 10(a) of this Article, with such additional information in the notice
concerning the nominee for election as a director of the corporation as would be
required, pursuant to Regulation 14A under the Securities Exchange Act of 1934,
as amended (or any successor provision thereto), to be disclosed in the proxy
materials concerning all persons nominated (by the corporation or otherwise) for
election as a director of the corporation, as well as a consent signed by each
nominee to serve as a director if elected.
(c)
Failure of any shareholder to provide such notice in a timely and proper manner
as set forth in this Section 10 shall authorize the presiding officer at
the meeting of shareholders before which such business is proposed to be
introduced, or at which such nominee is proposed to be considered for election
as a director, to rule such proposal or nomination out of order and not proper
to be introduced or considered.
11.
Conduct of Meetings
:
(a)
Unless determined otherwise by the Board of Directors, the Chief Executive
Officer of the corporation shall act as chairman at all meetings of shareholders
and the Secretary or an Assistant Secretary of the corporation shall act as
secretary at all meetings of shareholders.
(b)
The Board of Directors of the corporation may, to the extent not prohibited by
applicable law, establish such rules or regulations for the conduct of meetings
of shareholders as it shall deem necessary, appropriate or convenient. Subject
to such rules and regulations of the Board of Directors, if any, the chairman of
the meeting shall have the right and authority to prescribe such rules,
regulations and procedures and to do all such acts as, in the judgment of such
chairman, are necessary, appropriate or convenient for the proper conduct of the
meeting. Such rules, regulations and procedures, whether adopted by the Board or
the chairman of the meeting, may, to the extent not prohibited by applicable
law, include, without limitation, the following: (i) establishment of an agenda
or order of business for the meeting, (ii) rules and procedures for maintaining
order at the meeting and the safety of those present, (iii) rules and procedures
for dismissal of business not properly submitted (including but in no way
limited to matters described in Section 10 of this Article), (iv) limitations on
attendance at or participation in such meeting to shareholders of record of the
corporation and their duly authorized and constituted proxies and such other
persons as the chairman shall permit, (v) restrictions on entry to the meeting
after the time fixed for the commencement thereof, (vi) limitations on the time
allotted for questions or comments by participants and (vii) regulation of the
opening and closing of the polls for balloting and matters which are to be voted
on by ballot. Unless and to the extent determined by the Board of Directors or
the chairman of the meeting, meetings of shareholders shall not be required to
be held in accordance with rules of parliamentary procedure.
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12.
Inspector of Elections
: The Board of Directors may appoint one or more
voting inspectors to act at any meeting of shareholders or any adjournment
thereof. If the Board does not make such appointment, or if their appointees or
any of them fail to appear or act at the meeting of shareholders, the chairman
of the meeting may appoint such inspector or inspectors to act at the meeting.
13.
Attendance by Electronic Means
: If and to the extent authorized by the
Board, a shareholder or the shareholder’s proxy not physically present at a
shareholders meeting may attend the meeting by electronic or other means of
remote communication that allows the shareholder or proxy (i) to read or to hear
the meeting proceedings substantially concurrently as the proceedings occur,
(ii) to be read or to be heard substantially concurrently as the shareholder or
proxy communicates, and (iii) to vote on matters to which the shareholders or
proxy is entitled to vote.
ARTICLE
III
Directors
1.
General Powers
: All corporate powers shall be exercised by or under the
authority of, and the business and affairs of the corporation shall be managed
under the direction of, the Board of Directors, except as otherwise provided by
applicable law or in the articles of incorporation.
2.
Number, Term and Qualification
: The Board shall consist of not less than
three nor more than 30 members and the number of members shall be fixed and
determined from time to time by resolution of the majority of the full board or
by resolution of the shareholders at any meeting thereof, but the number of
directors shall not be less than three. The Board of Directors shall be divided
into three classes, each class to be as nearly equal in number
as
-
possible. At the annual meeting of stockholders in 1984, the
directors of one class shall be elected for a term of one year, the directors of
the second class shall be elected for a term of two years, and the directors of
the third class shall be elected for a term of three years. At each annual
meeting of the stockholders after the 1984 annual meeting, the successor of the
directors of the class whose terms expire in that year shall be elected to hold
office for a term of three years, so that the term of office of one class of
directors shall expire each year. Any director, upon reaching age seventy, shall
retire as a director without any further action by the shareholders or the Board
of Directors. Each director shall hold office until his death, resignation,
retirement, removal, disqualification, or his successor is elected and
qualified. If the size of the Board of Directors is increased, the new directors
elected in the year of the increase shall be elected to serve for terms of one,
two or three years such that the three classes shall remain equal or nearly
equal. Directors must possess the qualifications required of directors of
National Banks as set forth in the laws of the United States and the regulations
and rulings of the regulatory authorities supervising such National Banks.
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3.
Election of Directors
: Except as provided in Section 5 of this
Article, directors are elected by the shareholders by a plurality of the votes
cast by the shares entitled to vote in the election at a meeting at which a
quorum is present.
4.
Removal
: Directors may be removed from office only for cause and only by
a vote of shareholders holding a majority of the shares entitled to vote at an
election of directors.
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However, unless the entire board is removed,
an individual director may not be removed when the number of shares voting
against the proposal for removal would be sufficient to elect a director if such
shares could be voted cumulatively at an annual election. If any or all
directors are so removed, new directors may be elected at the same meeting.
5.
Vacancies
: A vacancy occurring in the Board of Directors, including a
vacancy not filled by the shareholders and a vacancy created by an increase in
the number of directors, may be filled by a majority of the remaining directors
provided, however, that a majority of the full Board of Directors may not
increase the number of directors to a number which: (i) exceeds by more
than two the number of directors last fixed by shareholders where such number
was fifteen or less, and (ii) to a number which exceeds by more than four
the number of directors last fixed by shareholders where such number was sixteen
or more.
6.
Compensation
: The Board of Directors may compensate directors for their
services as such and may provide for the payment of expenses incurred by the
directors in connection with such services.
7.
Executive Committee
: The Board of Directors shall maintain an Executive
Committee composed of not less than three members of the Board, each of whom
shall be elected by a majority of the Board. The Executive Committee shall have
such powers and duties as may be stated in its charter or prescribed from time
to time by the Board, subject to any restrictions imposed by applicable law.
Without limiting the foregoing, to the extent permitted by applicable law and
authorized by the Board, the Executive Committee shall have and may exercise,
during the intervals between the meetings of the Board, all the powers and
authority of the Board in the management of the business and affairs of the
corporation.
8.
Audit Committee
: The Board of Directors shall maintain an Audit Committee
composed of not less than three independent members of the Board, each of whom
shall be elected by a majority of the Board. The Audit Committee shall have such
powers and duties as may be stated in its charter or prescribed from time to
time by the Board, subject to any restrictions imposed by applicable law.
9.
Other Committees
: The Board of Directors may establish a Compensation
Committee, a Nominating and Corporate Governance Committee and such other
committees of the Board as the Board shall determine. Each committee shall be
composed of not less than three members of the Board, each of whom shall be
elected by a majority of the Board. Each such committee shall have such powers
and duties as may be stated in such committee’s charter or prescribed from
time to time by the Board, subject to any restrictions imposed by applicable
law.
1
Superseded by N.C.G.S. Section
55-8-08(a), which provides that the shareholders may remove directors with or
without cause unless the articles of incorporation provide that the directors
may be removed only for cause.
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10.
General Committee Matters
: Each committee member serves at the pleasure
of the Board of Directors. The provisions in these bylaws governing meetings,
action without meetings, notice, waiver of notice, quorum and voting
requirements of the Board apply to committees of the Board established under
this Article.
ARTICLE IV
Meetings
of Directors
1.
Regular Meetings
: A regular meeting of the Board of Directors shall be
held on the same date, and at the same place, as the annual meeting of
shareholders or at such other date, time and place as the Board of Directors
shall determine. In addition, the Board of Directors may provide for the date,
time and place for the holding of additional regular meetings, either within or
without the State of North Carolina, without notice. When any regular meeting of
the Board falls upon a holiday, the meeting shall be held on the next banking
business day unless the Board shall designate some other day.
2.
Special Meetings
: Special meetings of the Board of Directors may be
called by the Chairman of the Board, the Chief Executive Officer, the President,
the Chief Operating Officer or the Secretary of the corporation, or at the
request of three or more directors. Each member of the Board of Directors shall
be given notice stating the date, time and place, by letter, electronic delivery
or in person, of each special meeting not less than one day before the meeting.
Such notice need not specify the purpose for which the meeting is called, unless
required by the North Carolina Business Corporation Act, the articles of
incorporation or the bylaws.
3.
Waiver of Notice
: A director may waive notice of any meeting before or
after the date and time stated in the notice. The waiver must be in writing,
signed by the director entitled to the notice, and filed with the minutes or
corporate records. In addition, attendance at or participation by a director at
a meeting shall constitute a waiver of notice of such meeting, unless the
director at the beginning of the meeting (or promptly upon his or her arrival)
objects to holding the meeting or transacting business at the meeting and does
not later vote for or assent to action taken at the meeting.
4.
Quorum
: Unless the articles of incorporation or bylaws provide otherwise,
a majority of the number of directors prescribed by or pursuant to these bylaws
shall constitute a quorum for the transaction of business at any meeting of the
Board of Directors or, if no number is so prescribed, a majority of directors in
office immediately before the meeting shall constitute a quorum.
5.
Adjournment
: Any duly convened regular or special meeting may be
adjourned by the directors to a later date or time without further notice.
6.
Manner of Acting
: Except as otherwise provided in the articles of
incorporation or the bylaws, the affirmative vote of a majority of the directors
present at a meeting at which a quorum is present shall be the act of the Board
of Directors.
7.
Presumption of Assent
: A director who is present at a meeting of the
Board of Directors or a committee of the Board of Directors when corporate
action is taken is deemed to have assented to the action taken unless (i) he or
she objects at the beginning of the meeting (or promptly upon his or her
arrival) to holding the meeting or transacting business at the meeting; (ii) his
or her dissent or abstention from the action taken is entered in the minutes of
the meeting; or (iii) he or she files written notice of his or her dissent or
abstention with the presiding officer of the meeting before its adjournment or
with the corporation immediately after adjournment of the meeting. The right of
dissent or abstention is not available to a director who votes in favor of the
action taken.
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8.
Action without Meeting
: Action required or permitted to be taken at a
Board of Directors meeting may be taken without a meeting if the action is taken
by all members of the Board. The action must be evidenced by one or more written
consents signed by each director before or after such action, describing the
action taken, and included in the minutes or filed with the corporate records. A
director’s consent to action taken without meeting may be in electronic
form and delivered by electronic means.
9.
Attendance by Electronic, Telephonic or Similar Means
: Unless otherwise
provided by the articles of incorporation, the bylaws or the Board, any or all
directors may participate in a regular or special meeting by, or conduct the
meeting through the use of, any means of communication by which all directors
participating may simultaneously hear each other during the meeting. A director
participating in a meeting by this means is deemed to be present in person at
the meeting.
ARTICLE V
Officers
1.
Title and Number
: The officers of the corporation may consist of a
Chairman of the Board, one or more Vice Chairmen, a Chief Executive Officer, a
President, a Chief Operating Officer, a Chief Financial Officer, a Chief
Administrative Officer, one or more Senior Executive Vice Presidents, one or
more Executive Vice Presidents, a Secretary, a Treasurer, a Controller and such
Senior Vice Presidents, Vice Presidents, Assistant Secretaries, Assistant
Treasurers and other officers as the Board of Directors may from time to time
elect or as may otherwise be elected pursuant to this Article. Any two or more
offices may be held by the same person, except that no individual may act in
more than one capacity where action of two or more officers is required.
2.
Election and Term
: The officers of the corporation shall be elected by
the Board of Directors or by a duly designated committee of the Board. Each
officer shall hold office until a successor is elected and qualified, or until
his or her resignation, retirement, death, removal or disqualification.
3.
Removal
: The Board of Directors may remove or terminate any officer at
any time with or without cause. In addition, any officer other than the Chief
Executive Officer may be removed or terminated at any time with or without cause
by a duly designated Board committee or by a superior officer; provided,
however, that the Chairman or any Vice Chairman may be removed solely by the
Board. Removal, resignation or termination of an officer shall be without
prejudice to the contract rights, if any, of the person so removed.
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4.
Compensation
: The compensation of all officers of the corporation shall
be fixed by the Board of Directors or by or under the direction of a duly
designated committee of the Board or other officer or officers designated by the
Board.
5.
Chairman of the Board; Vice Chairmen
: There shall be a Chairman of the
Board of Directors elected by the directors from their members. The Chairman may
also be the Chief Executive Officer of the corporation. The Chairman shall
preside at all meetings of the Board of Directors and shall perform such other
duties as may be incident to the office of Chairman or as may be directed by the
Board. There may also be one or more Vice Chairmen of the Board of Directors
elected by the directors from their members. Such Vice Chairman or Vice Chairmen
shall perform such other duties as may be incident to the office of Vice
Chairman or as may be directed by the Board.
6.
Chief Executive Officer
: The Chief Executive Officer shall have full
executive powers, shall be the principal executive officer of the corporation,
shall have and exercise all powers, duties and authority incident to the office
of Chief Executive Officer and shall, subject to the direction and control of
the Board, supervise, direct and control the management of the corporation in
accordance with these bylaws. The Chief Executive Officer may also serve as
Chairman of the Board in accordance with Section 5 of this Article.
7.
Other Officers
: Each other officer shall have such title or titles,
perform such duties and exercise such powers as may be incident to his or her
office or prescribed by the Board or, with respect to offices other than the
Chief Executive Officer, the Chairman and any Vice Chairman of the Board (and
except as otherwise determined by the Board), by the Board, a duly designated
committee of the Board or the Chief Executive Officer.
8.
Bonds
: The Board of Directors may by resolution require any or all
officers, agents and employees of the corporation to give bond to the
corporation, with sufficient sureties, conditioned on the faithful performance
of the duties of their respective offices or positions, and to comply with such
other conditions as may from time to time be required by the Board of Directors.
ARTICLE VI
Contracts,
Loans and Deposits
1.
Contracts
: The Board of Directors may authorize such officers as it deems
appropriate to enter into any contract or execute and deliver any instrument on
behalf of the corporation, and such authority may be general or confined to
specific instances. In addition, unless the Board determines otherwise, each
officer shall have such authority as may be incident to his or her particular
office to enter into contracts and execute and deliver instruments on behalf of
the corporation.
2.
Loans
: No loans shall be contracted on behalf of the corporation and no
evidence of indebtedness on behalf of the corporation shall be issued in its
name unless authorized by the Board of Directors. Such authority may be general
or confined to specific instances.
3.
Checks and Drafts
: All checks, drafts or other orders for the payment of
money issued in the name of the corporation shall be signed by such officer or
officers or agent or agents of the corporation and in such manner as shall from
time to time be determined by the Board of Directors or the Chief Executive
Officer.
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4.
Deposits
: All funds of the corporation not otherwise employed shall be
deposited from time to time to the credit of the corporation in such
depositories as may be selected by or under the authority of the Board of
Directors.
ARTICLE
VII
Certificates
for Shares and Their Transfer
1.
Certificates for Shares and Stock Transfer Records
:
(a)
The Board of Directors may authorize the issuance of some or all of the shares
of the corporation’s classes or series without issuing certificates to
represent such shares. If shares are represented by certificates, the
certificates shall be in such form as required by applicable law and as
determined by the Board of Directors. Certificates shall be signed, either
manually or in facsimile, by the Chairman of the Board, the Chief Executive
Officer, the President or a Senior Executive Vice President and by the Secretary
or an Assistant Secretary. All certificates for shares shall be consecutively
numbered or otherwise identified and entered into the stock transfer records of
the corporation. When shares are represented by certificates, the corporation
shall issue and deliver to each shareholder to whom such shares have been issued
or transferred, certificates representing the shares owned by such shareholder.
When shares are not represented by certificates, then, within a reasonable time
after the issuance or transfer of such shares, the corporation shall send the
shareholder to whom such shares have been issued or transferred a written
statement of the information required by applicable law. Unless otherwise
provided by applicable law, the rights and obligations of shareholders are
identical whether or not their shares are represented by certificates. The Board
of Directors may designate a transfer agent who may countersign each certificate
either manually or by use of a facsimile signature.
(b)
The corporation shall keep, or cause one or more stock transfer agents to keep,
the stock transfer records of the corporation, which shall reflect the name and
address of each shareholder of record, the number and class or series of shares
issued to each shareholder of record and the date of issue of each such share.
The Board of Directors may designate a registrar to register each certificate
that is issued either manually or by use of a facsimile signature.
2.
Transfer of Shares
: Transfers of shares shall be made and recorded on the
stock transfer records of the corporation only upon surrender of the
certificates for the shares sought to be transferred by the record holder
thereof or by his or her duly authorized agent, transferee or legal
representative. All certificates surrendered for transfer shall be cancelled
before new certificates for the transferred shares shall be issued.
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3.
Fixing Record Date
: The Board of Directors may fix a future date as the
record date for one or more voting groups in order to determine the shareholders
entitled to notice of a shareholders’ meeting, to demand a special meeting,
to vote or to take any other action. Such record date may not be more than 70
days before the meeting or action requiring a determination of shareholders. A
determination of shareholders entitled to notice of or to vote at a
shareholders’ meeting is effective for any adjournment of the meeting
unless the Board of Directors fixes a new record date for the adjourned meeting,
which it must do if the meeting is adjourned to a date more than 120 days after
the date fixed for the original meeting. If no record date is fixed by the Board
of Directors for the determination of shareholders entitled to notice of or to
vote at a meeting of shareholders, the close of business on the day before the
date the first notice of the meeting is delivered to shareholders shall be the
record date for such determination of shareholders. The Board of Directors may
fix a date as the record date for determining shareholders entitled to a
distribution or share dividend. If no record date is fixed by the Board of
Directors for such determination, the record date shall be the date the Board of
Directors authorizes the distribution or share dividend.
4.
Lost, Stolen or Destroyed Certificates
: The Board of Directors may
authorize the issuance of a new share certificate in place of a certificate
claimed to have been lost, stolen or destroyed, upon receipt of a written
statement of such fact from the person claiming that the certificate has been
lost, stolen or destroyed. When authorizing such issuance of a new certificate,
the Board may require the claimant or his or her legal representative to give
the corporation a bond in such sum and with such surety or other security as the
Board may direct to indemnify the corporation against loss from any claim with
respect to the certificate claimed to have been lost, stolen or destroyed; or
the Board may, by resolution, authorize the issuance of the new certificate
without requiring such a bond.
ARTICLE
VIII
Indemnification
of Officers and Directors
1.
Right to Indemnification
: Any person who at any time hereafter serves or
heretofore has served: (i) as an officer or director of the corporation; (ii) at
the request of the corporation as a director, officer, partner, or trustee (or
in any position of similar authority, by whatever title known) of any other
foreign or domestic corporation, partnership, joint venture, trust or other
enterprise; or (iii) as a trustee or administrator under any employee benefit
plan, shall have a right to be indemnified by the corporation to the fullest
extent permitted by law against:
(a) All
liability and expenses, including without limitation costs and expenses of
litigation and reasonable attorney’s fees, actually and reasonable incurred
by him or her in connection with or as a consequence of any threatened, pending
or completed action, suit or proceeding, whether civil, criminal, administrative
or investigative, including appeals, and whether or not brought by or on behalf
the corporation or by or on behalf of any third party, outsider or any other
person, seeking to hold him or her liable by reason of or arising out of his or
her status or his or her activities in any of the foregoing capacities; and
(b)
Liability incurred by him or her for any judgments, money decrees, fines,
penalties or amounts paid in settlement in connection with or as a consequence
of any action, suit or proceeding described in (a) above;
provided,
however, the corporation shall not indemnify or agree to indemnify any person
against any liability or expenses he or she may incur on account of his or her
activities which were at the time taken known or believed by him or her to be
clearly in conflict with the best interest of the corporation.
11
2.
Recovery of Expenses
: Any person entitled to indemnification under this
Article shall be entitled to recover from the corporation his or her reasonable
costs, expenses and attorneys’ fees incurred in connection with enforcing
his or her right to indemnification.
3.
Advancement of Expenses
: Expenses incurred by a director or officer of
the corporation in defending an action, suit or proceeding described above
shall, at the request of such director or officer, and subject to authorization
by the Board, be paid by the corporation in advance of the final disposition of
such action, suit or proceeding upon receipt of an undertaking by or on behalf
of the director or officer to repay such amount, unless it shall ultimately be
determined that he or she is entitled to indemnification from the corporation
under this Article or otherwise.
4.
Reliance
: Any person who at any time after the adoption of this Article
serves or has served in any of the capacities described in Section 1 herein for
or on behalf of the corporation shall be deemed to be doing so and to have done
so in reliance upon, and as consideration for, the rights provided herein. Such
rights shall inure to the benefit of the heirs and legal representatives of any
such person and shall not be exclusive of any other rights to which such person
may be entitled apart from the provisions of this Article.
5.
Amendment
: Any amendment, alteration, repeal or other change hereof
limiting or restricting in any way the rights, fixed or contingent, granted
hereunder shall operate prospectively only and shall not prejudice, defeat or
impair any rights of any person existing at the time of such amendment,
alteration, repeal or other change.
6.
No
Limitation on Other Rights to Indemnification
: If this Article or any
portion hereof shall be invalidated on any ground by any court or agency of
competent jurisdiction, then the corporation shall nevertheless indemnify each
person described in Section 1 herein to the full extent permitted by the portion
of this Article that is not invalidated and also to the full extent permitted or
required by other applicable law.
ARTICLE IX
General
Provisions
1.
Dividends
: The Board of Directors may from time to time declare, and the
corporation may pay, distributions and share dividends to its shareholders in
the manner and upon the terms and conditions provided by applicable law and by
the articles of incorporation or the bylaws.
2.
Seal
: The seal of the corporation shall be in any form approved from time
to time or at any time by the Board of Directors.
3.
Fiscal Year
: Unless otherwise ordered by the Board of Directors, the
fiscal year of the corporation shall be from January 1 to December 31.
4.
Amendments
: Except as otherwise provided herein, these bylaws may be
amended or repealed and new bylaws may be adopted by the affirmative vote of a
majority of the directors then holding office at any regular or special meeting
of the Board of Directors, provided ten days notice of the proposed amendment
has been given to each member of the Board of Directors.
12
The
Board of Directors shall have no power to adopt a bylaw: (1) requiring more
than a majority of the voting shares for a quorum at a regular meeting of the
shareholders or more than a majority of the votes cast to constitute action by
the shareholders, except where higher percentages are required by law;
(2) providing for the management of the corporation otherwise than by the
Board of Directors or its Executive Committee; (3) increasing or decreasing
the number of directors; (4) that is inconsistent with the requirements of
the laws of the State of North Carolina and of the Articles of Incorporation. No
bylaw adopted or amended by the shareholders shall be altered or repealed by the
Board of Directors. The affirmative vote of two-thirds of the total number of
shares outstanding shall be required to amend, alter, change or repeal
Article III, Sections 2, 5 and 6 and this Section 4 of
Article VIII of these bylaws.
2
5.
North Carolina Shareholder Protection Act Inapplicable
: The provisions of
Article 9 of Chapter 55 of the General Statutes of North Carolina, known as
“The North Carolina Shareholder Protection Act,” shall not be
applicable to the corporation.
6.
Definitions
: Unless the context otherwise requires, terms used in these
bylaws shall have the meanings assigned to them in the North Carolina Business
Corporation Act to the extent defined therein. In addition, without limiting the
effect of the foregoing, the term “applicable law” used in these
bylaws shall refer to any applicable laws, rules or regulations, including but
not limited to the North Carolina Business Corporation Act, applicable federal
securities laws, rules and regulations and the rules and regulations of any
applicable stock exchange.
_________________
2
Intended to be Article III, Sections 2, 4 and 5, and this Section 4 of Article
IX.
6
EXHIBIT 99
EXHIBIT 99
BB&T
CORPORATION
2004
STOCK INCENTIVE PLAN
BB&T CORPORATION
2004 STOCK INCENTIVE PLAN
ARTICLE I
DEFINITIONS
In
addition to other terms defined herein, the following terms shall have the
meanings given below:
1.01.
Administrator
shall mean the Board, and, upon its delegation of all or part of its
authority to administer the Plan to the Committee, the Committee.
1.02.
Affiliate
means any parent corporation or subsidiary corporation of BB&T, as
such terms are defined under Section 424(e) and (f) of the Code, and also includes any
other business entity which is controlled by, under common control with or controls
BB&T; provided, however, that the term “Affiliate” shall be construed in a
manner in accordance with the registration provisions of applicable federal securities
laws.
1.03.
Agreement
means an agreement (which may be in written or electronic form, in the
Administrator’s discretion, and which includes any amendment or supplement thereto)
between BB&T and a Participant specifying the terms, conditions and restrictions of an
Award granted to the Participant. An Agreement may also state such other terms, conditions
and restrictions, including but not limited to terms, conditions and restrictions
applicable to shares subject to an Award, as may be established by the Administrator.
1.04.
Award
means, individually or collectively, a grant under the Plan of an Option (including an
Incentive Option or a Nonqualified Option), a Stock Appreciation Right (including a
Related SAR or a Freestanding SAR), a Restricted Award (including a Restricted Stock Award
or a Restricted Unit Award), a Performance Award (including a Performance Share Award or a
Performance Unit Award), a Phantom Stock Award, or any other award granted under the Plan.
1.05.
BB&T
means BB&T Corporation or any successor thereto.
1.06.
Board
means the Board of Directors of BB&T.
1.07.
Code
means the Internal Revenue Code of 1986, as amended.
1.08.
Committee
means the Compensation Committee of the Board appointed to administer the
Plan.
1.09.
Common
Stock
means the common stock of BB&T Corporation, $5.00 par value.
1.10.
Covered
Employee
shall have the meaning given the term in Section 162(m) of the Code and
related regulations.
1.11.
Director
means a member of the Board of Directors of BB&T or an Affiliate.
1.12.
Disability
means a disability as determined by the Administrator in accordance with standards and
procedures similar to those under BB&T’s long-term disability plan.
1.13.
Displacement
shall have the meaning ascribed to the term in any employment
agreement, consulting agreement or other similar agreement, if any, to which the
Participant is a party, or, if no such agreement applies, “displacement” shall
mean the termination of the Participant’s employment or service due to the
elimination of the Participant’s job or position without fault on the part of the
Participant (as determined by the Administrator).
1.14.
Employee
means any person who is an employee of BB&T or any Affiliate
(including entities which become Affiliates after the Effective Date of the Plan);
provided, however, that with respect to Incentive Options, “Employee” means any
person who is considered an employee of BB&T or any parent corporation or subsidiary
corporation for purposes of Prop. Treas. Reg. Section 1.421-1(h) (or any successor
provision related thereto).
1.15.
Exchange
Act
means the Securities Exchange Act of 1934, as amended.
1.16.
Fair Market Value
per share of the Common Stock shall be established in
good faith by the Administrator and, except as may otherwise be determined by the
Administrator, the Fair Market Value shall be determined in accordance with the following
provisions: (A) if the shares of Common Stock are listed for trading on the New York Stock
Exchange or the American Stock Exchange, the Fair Market Value shall be the closing sales
price per share of the shares on the New York Stock Exchange or the American Stock
Exchange (as applicable) on the date immediately preceding the date an Option is granted
or other determination is made (each, a “
valuation date
”), or, if there
is no transaction on such date, then on the trading date nearest preceding the valuation
date for which closing price information is available, and, provided further, if the
shares are quoted on the Nasdaq National Market or the Nasdaq SmallCap Market of the
Nasdaq Stock Market but are not listed for trading on the New York Stock Exchange or the
American Stock Exchange, the Fair Market Value shall be the closing sales price for such
stock (or the closing bid, if no sales were reported) as quoted on such system on the date
immediately or nearest preceding the valuation date for which such information is
available; or (B) if the shares of Common Stock are not listed or reported in any of the
foregoing, then the Fair Market Value shall be determined by the Administrator in
accordance with the applicable provisions of Section 20.2031-2 of the Federal Estate Tax
Regulations, or in any other manner consistent with the Code and accompanying regulations.
1.17.
Freestanding SAR
means an SAR that is granted without relation to an Option, as
provided in Article VII.
1.18.
Incentive
Option
means an Option that is designated by the Administrator as an Incentive Option
and intended to meet the requirements of incentive stock options under Code Section 422
and related regulations.
1.19.
Independent Contractor
means an independent contractor, consultant or advisor
providing services to BB&T or an Affiliate.
1.20.
Nonqualified Option
means an Option that is not intended to qualify as an incentive
stock option under Code Section 422 and related regulations.
1.21.
Option
means a stock option granted under Article VI that entitles the holder to purchase from
BB&T a stated number of shares of Common Stock at the price set forth in an Agreement.
1.22.
Participant
means an individual employed by, or providing services to, BB&T or
an Affiliate who satisfies the requirements of Article IV and is selected by the
Administrator to receive an Award under the Plan.
1.23.
Performance Award
means a Performance Share Award and/or a Performance Unit Award,
as provided in Article IX.
1.24.
Performance Measures
mean one or more performance factors which may be established
by the Administrator with respect to an Award. Performance factors may be based on such
corporate, business unit or division and/or individual performance factors and criteria as
the Administrator in its discretion may deem appropriate; provided, however, that, such
performance factors shall be limited to one or more of the following (as determined by the
Administrator in its discretion): (i) consolidated earnings before or after taxes
(including earnings before interest, taxes, depreciation and amortization); (ii) net
income; (iii) operating income; (iv) earnings per share; (v) book value per share; (vi)
return on shareholders’ equity; (vii) return on investment; (viii) return on capital;
(ix) improvements in capital structure; (x) expense management; (xi) profitability of an
identifiable business unit or product; (xii) maintenance or improvement of profit margins;
(xiii) stock price or total shareholder return; (xiv) market share; (xv) revenues or
sales; (xvi) costs; (xvii) cash flow; (xviii) working capital; (xix) return on assets;
(xx) economic wealth created; (xxi) strategic business criteria; and (xxii) efficiency
ratio(s). Such performance factors may include or exclude extraordinary items, as
determined by the Administrator.
1.25.
Performance Share
means an Award granted under Article IX, in an amount determined
by the Administrator and specified in an Agreement, stated with reference to a specified
number of shares of Common Stock, that entitles the holder to receive shares of Common
Stock, a cash payment or a combination of Common Stock and cash (as determined by the
Administrator), subject to the terms of the Plan and the terms and conditions established
by the Administrator.
1.26.
Performance Unit
means an Award granted under Article IX, in an amount determined
by the Administrator and specified in an Agreement, that entitles the holder to receive
Shares of Common Stock, a cash payment or a combination of Common Stock and cash (as
determined by the Administrator), subject to the terms of the Plan and the terms and
conditions established by the Administrator.
1.27.
Phantom
Stock Award
means an Award granted under Article X entitling a Participant to a
payment in cash, shares of Common Stock or a combination of cash and Common Stock (as
determined by the Administrator), following the completion of the applicable vesting
period and compliance with the terms of the Plan and other terms and conditions
established by the Administrator. The unit value of a Phantom Stock Award shall be based
on the Fair Market Value of a share of Common Stock.
1.28.
Plan
means the BB&T Corporation 2004 Stock Incentive Plan, as it may be hereafter amended
and/or restated.
1.29.
Related
SAR
means an SAR granted under Article VII that is granted in relation to a particular
Option and that can be exercised only upon the surrender to BB&T, unexercised, of that
portion of the Option to which the SAR relates.
1.30.
Restricted
Award
means a Restricted Stock Award and/or a Restricted Stock Unit Award, as provided
in Article VIII.
1.31.
Restricted
Stock Award
means shares of Common Stock awarded to a Participant under Article VIII.
Shares of Common Stock subject to a Restricted Stock Award shall cease to be restricted
when, in accordance with the terms of the Plan and the terms and conditions established by
the Administrator, the shares vest and become transferable and free of substantial risks
of forfeiture.
1.32.
Restricted
Stock Unit
means a Restricted Award granted to a Participant pursuant to Article VIII
herein which is settled (i) by the delivery of one share of Common Stock for each
Restricted Stock Unit, (ii) in cash in an amount equal to the Fair Market Value of one
share of Common Stock for each Restricted Stock Unit, or (iii) in a combination of cash
and Shares equal to the Fair Market Value of one share of Common Stock for each Restricted
Stock Unit, as determined by the Administrator. A Restricted Stock Unit Award represents
the promise of BB&T to deliver shares, cash or a combination thereof, as applicable,
at the end of the Restriction Period (or such later date as may be determined by the
Administrator), subject to compliance with the terms of the Plan and the terms and
conditions established by the Administrator.
1.33.
Retirement
means, unless the Administrator determines otherwise, that a Participant
has separated from service on or after his earliest early retirement date established
under a tax-qualified pension or profit sharing plan maintained by BB&T or an
Affiliate in which he participates.
1.34.
SAR
means a stock appreciation right granted under Article VII herein entitling the
Participant to receive, with respect to each share of Common Stock encompassed by the
exercise of such SAR, the excess of the Fair Market Value on the date of exercise over the
SAR base price, subject to the terms of the Plan and any other terms and conditions
established by the Administrator. References to “SARs” include both Related SARs
and Freestanding SARs, unless the context requires otherwise.
1.35.
Securities
Act
means the Securities Act of 1933, as amended.
ARTICLE II
PURPOSES
The
Plan is intended to assist BB&T in recruiting and retaining Employees,
Directors and Independent Contractors of
BB&T and its Affiliates with
ability and initiative by enabling eligible individuals to contribute to and
participate in BB&T’s future success and to associate their interests
with those of BB&T and its shareholders. In furtherance of this purpose, the
Plan authorizes the grant of Awards, including Options (including Incentive
Options and Nonqualified Options), SARs (including Related SARs and Freestanding
SARs), Restricted Awards (including Restricted Stock Awards and Restricted Stock
Units), Performance Awards (including Performance Share Awards and Performance
Unit Awards), and Phantom Stock Awards, to selected eligible individuals. The
proceeds received by BB&T from the sale of Common Stock pursuant to this
Plan shall be used for general corporate purposes.
ARTICLE III
ADMINISTRATION
3.01.
General
. The Plan shall be administered by the Board of BB&T or, upon its
delegation, by the Committee. Unless the Board determines otherwise, the Committee shall
be comprised solely of two or more “
non-employee directors
,” as such term
is defined in Rule 16b-3 under the Exchange Act, or as may otherwise be permitted under
Rule 16b-3. Further, to the extent required by Section 162(m) of the Code or related
regulations, the Plan shall be administered by a committee comprised of two or more
“
outside directors
” (as such term is defined in Section 162(m) or related
regulations) or as may otherwise be permitted under Section 162(m) and related
regulations. For the purposes herein, the term “
Administrator
” shall
refer to the Board and, upon its delegation to the Committee of all or part of its
authority to administer the Plan, to the Committee. Notwithstanding the foregoing, the
Board shall have sole authority to grant Awards to Directors who are not Employees of
BB&T or its Affiliates.
3.02.
Authority
of Administrator
. Subject to the provisions of the Plan, the Administrator shall have
full and final authority in its discretion to take any action with respect to the Plan
including, without limitation, the authority (i) to determine all matters relating to
Awards, including selection of individuals to be granted Awards, the types of Awards, the
number of shares of the Common Stock, if any, subject to an Award, and all terms,
conditions, restrictions and limitations of an Award; (ii) to prescribe the form or forms
of the Agreements evidencing any Awards granted under the Plan; (iii) to establish, amend
and rescind rules and regulations for the administration of the Plan; and (iv) to construe
and interpret the Plan, Awards and Agreements made under the Plan, to interpret rules and
regulations for administering the Plan and to make all other determinations deemed
necessary or advisable for administering the Plan. The express grant in the Plan of any
specific power to the Administrator shall not be construed as limiting any power or
authority of the Administrator. Any decision made, or action taken, by the Administrator
in connection with the administration of this Plan shall be final and conclusive. The
Administrator shall also have authority, in its sole discretion, to accelerate the date
that any Award which was not otherwise exercisable, vested or earned shall become
exercisable, vested or earned in whole or in part without any obligation to accelerate
such date with respect to any other Award granted to any recipient. The Administrator also
may in its sole discretion modify or extend the terms and conditions for exercise, vesting
or earning of an Award. The Administrator may specify in an Agreement that a
Participant’s rights, payments and/or benefits with respect to an Award (including
but not limited to any shares issued or issuable and/or cash paid or payable with respect
to an Award) shall be subject to reduction, cancellation, forfeiture or recoupment upon
the occurrence of certain specified events, in addition to any otherwise applicable
vesting or performance conditions of an Award. Such events may include, but shall not be
limited to, termination of employment for cause, violation of BB&T or Affiliate
policies, breach of non-solicitation, noncompetition, confidentiality or other restrictive
covenants that may apply to the Participant, or other conduct by the Participant that is
determined by the Administrator to be detrimental to the business or reputation of
BB&T or any Affiliate. In addition, the Administrator shall have the authority and
discretion to establish terms and conditions of Awards (including but not limited to the
establishment of subplans) as the Administrator determines to be necessary or appropriate
to conform to the applicable requirements or practices of jurisdictions outside of the
United States. In addition to action by meeting in accordance with applicable laws, any
action of the Administrator with respect to the Plan may be taken by a written instrument
signed by all of the members of the Board or Committee, as appropriate, and any such
action so taken by written consent shall be as fully effective as if it had been taken by
a majority of the members at a meeting duly held and called. No member of the Board or
Committee, as applicable, shall be liable for any action or determination made in good
faith with respect to the Plan, an Award or an Agreement. The members of the Board or
Committee, as applicable, shall be entitled to indemnification and reimbursement in the
manner provided in BB&T’s articles of incorporation or bylaws or pursuant to
applicable law. All expenses of administering this Plan shall be borne by BB&T.
3.03.
Delegation
of Authority
. Notwithstanding the other provisions of Article III, the Administrator
may delegate to a subcommittee of the Committee or one or more senior executive officers
of BB&T the authority to grant Awards, and to make any or all of the determinations
reserved for the Administrator in the Plan and summarized in Section 3.02 herein with
respect to such Awards (subject to any restrictions imposed by applicable laws, rules and
regulations and such terms and conditions as may be established by the Administrator);
provided, however, that, to the extent required by Section 16 of the Exchange Act or
Section 162(m) of the Code, the Participant, at the time of said grant or other
determination, (i) is not deemed to be an officer or director of BB&T within the
meaning of Section 16 of the Exchange Act; and (ii) is not deemed to be a Covered
Employee. To the extent that the Administrator has delegated authority to grant Awards
pursuant to this Section 3.03 to a subcommittee of the Committee or to one or more senior
executive officers of BB&T, references to the Administrator shall include references
to such subcommittee or such senior executive officer or officers, subject, however, to
the requirements of the Plan, Rule 16b-3, Section 162(m) of the Code and other applicable
laws, rules and regulations. The Administrator may revoke or amend the terms of a
delegation at any time but such action shall not invalidate any prior actions of the
Administrator’s delegate or delegates that were consistent with the terms of the
Plan.
ARTICLE IV
PARTICIPATION
4.01.
General
. An Award may be granted only to an individual who satisfies all of the
following eligibility requirements on the date the Award is granted:
(a)
The individual is either (i) an Employee of BB&T or an Affiliate, (ii) a
Director of BB&T or an Affiliate, or (iii) an independent contractor
providing services to BB&T or an Affiliate.
(b)
With respect to the grant of Incentive Options, the individual is otherwise
eligible to participate under Article IV herein, is an Employee of BB&T or a
parent corporation or subsidiary corporation and does not own, immediately
before the time that the Incentive Option is granted, stock possessing more than
10% of the total combined voting power of all classes of stock of BB&T (or a
parent or subsidiary corporation). Notwithstanding the foregoing, an Employee
who owns more than 10% of the total combined voting power of BB&T (or a
parent or subsidiary corporation) may be granted an Incentive Option if the
Option Price is at least 110% of the Fair Market Value of the Common Stock, and
the Option Period (as defined in Section 6.03 herein) does not exceed five
years. For this purpose, an individual will be deemed to own stock which is
attributable to him under Section 424(d) of the Code.
(c)
With respect to the grant of substitute awards or assumption of awards in
connection with a merger, consolidation, acquisition, reorganization or other
transaction involving BB&T or an Affiliate, the Administrator may grant
Awards to non-employees upon such terms and conditions as it determines to be
appropriate, provided that the recipient is otherwise eligible to receive the
Award and the terms of the Award are consistent with the Plan and applicable
laws, rules and regulations (including, to the extent necessary, the federal
securities laws registration provisions and Section 424(a) of the Code).
(d)
The individual, being otherwise eligible under this Section 4.01, is selected by
the Administrator as a Participant in the Plan.
4.02.
Grants;
Award Agreements
. The Administrator will designate individuals to whom Awards are to
be made and will specify the number of shares of Common Stock, if any, subject to each
Award and the other terms and conditions of Awards. Each Award granted under the Plan
shall be evidenced by an Agreement which shall contain such terms, conditions and
restrictions as may be determined by the Administrator, subject to the terms of the Plan.
ARTICLE V
SHARES SUBJECT TO PLAN
AND AWARD LIMITATIONS
5.01.
Shares
Available for Awards
. Subject to adjustments as provided in Section 5.03, the
aggregate number of shares of Common Stock that may be issued pursuant to Awards granted
under the Plan shall not exceed 25,000,000 shares of Common Stock. Shares delivered under
the Plan shall be authorized but unissued shares or shares purchased on the open market or
by private purchase. BB&T hereby reserves sufficient authorized shares of Common Stock
to meet the grant of Awards hereunder. Notwithstanding any provision herein to the
contrary, each of the following limitations shall apply to Awards granted under the Plan,
in each case subject to adjustments pursuant to Section 5.03:
(a)
The maximum number of shares of Common Stock that may be issued under the Plan
pursuant to the grant of Incentive Options shall not exceed 25,000,000 shares;
(b)
The maximum number of shares of Common Stock that may be issued under the Plan
pursuant to Restricted Awards shall be 5,000,000 shares;
(c)
In any calendar year, no Participant may be granted Options and SARs that are
not related to an Option for more than 500,000 shares of Common Stock;
(d)
In any calendar year, no Participant may receive shares of Common Stock pursuant
to the grant of any Awards made under the Plan for more than a total of 500,000
shares of Common Stock; and
(e)
In any calendar year, no Participant may receive Awards under the Plan paid in
cash having an aggregate dollar value in excess of $5,000,000.
(For
purposes of Section 5.01(c) and (d), an Option and Related SAR shall be treated
as a single Award.)
5.02.
Shares not
subject to limitations
. The following will not be applied to the share limitations of
Section 5.01 above: (i) dividends, including dividends paid in shares, or dividend
equivalents paid in cash in connection with outstanding Awards; (ii) Awards which are
settled in cash rather than the issuance of shares; (iii) any shares subject to an Award
under the Plan which Award is forfeited, cancelled, terminated, expires or lapses for any
reason without the issuance of shares underlying the Award; and (iv) any shares
surrendered by a Participant or withheld by BB&T to pay the option or purchase price
for an Award or used to satisfy any tax withholding requirement in connection with the
exercise, vesting or earning of an Award if, in accordance with the terms of the Plan, a
Participant pays such option or purchase price or satisfies such tax withholding by either
tendering previously owned shares or having BB&T withhold shares.
5.03.
Adjustments
. If there is any change in the outstanding shares of Common Stock
because of a merger, consolidation, reorganization, recapitalization, stock dividend,
stock split, reverse stock split, combination or reclassification of the Common Stock, or
if there is a similar change in the capital stock structure of BB&T affecting the
Common Stock, the number of shares of Common Stock reserved for issuance under the Plan
shall be correspondingly adjusted, and the Administrator shall make such adjustments to
the terms of Awards and to any provisions of this Plan as the Administrator deems
equitable to prevent dilution or enlargement of Awards or as may otherwise be advisable.
Notwithstanding the foregoing, unless the Administrator determines otherwise, the issuance
by BB&T of shares of stock of any class, or securities convertible into shares of
stock of any class, for cash or property, or for labor or services, either upon direct
sale or upon the exercise of rights or warrants to subscribe therefor, or upon conversion
of shares or obligations of BB&T convertible into such shares or other securities,
shall not affect, and no adjustment by reason thereof shall be made with respect to,
outstanding Awards.
ARTICLE VI
OPTIONS
6.01.
Grant of
Options
. Subject to the terms of the Plan, the Administrator may in its sole and
absolute discretion grant Options to such eligible individuals in such numbers, subject to
such terms and conditions, and at such times as the Administrator shall determine. Both
Incentive Options and Nonqualified Options may be granted under the Plan, as determined by
the Administrator; provided, however, that Incentive Options may only be granted to
Employees of BB&T or a parent or subsidiary corporation. To the extent that an Option
is designated as an Incentive Option but does not qualify as such under Section 422 of the
Code, the Option (or portion thereof) shall be treated as a Nonqualified Option. An Option
may be granted with or without a Related SAR.
6.02.
Option
Price
. The price per share at which an Option may be exercised (the “
Option
Price
”) shall be established by the Administrator and stated in the Agreement
evidencing the grant of the Option; provided, that (i) the Option Price of an Option shall
be no less than the Fair Market Value per share of the Common Stock on the date the Option
is granted (or 110% of the Fair Market Value with respect to Incentive Options granted to
an Employee who owns stock possessing more than 10% of the total voting power of all
classes of stock of BB&T (or a parent or subsidiary corporation), as provided in
Section 4.01(b) herein); and (ii) in no event shall the Option Price per share of any
Option be less than the par value per share of the Common Stock.
6.03.
Option
Period; Exercise of Options
. The term of an Option (the “
Option
Period
”) shall be determined by the Administrator at the time the Option is
granted, shall be stated in the Agreement and shall not extend more than 10 years from the
date on which the Option is granted (or five years with respect to Incentive Options
granted to an Employee who owns stock possessing more than 10% of the total combined
voting power of all classes of stock of BB&T or a parent or subsidiary corporation, as
provided in Section 4.01(b) herein). Any Option or portion thereof not exercised before
expiration of the Option Period shall terminate.
6.04.
Exercise
of Options
.
(a)
The period or periods during which, and conditions pursuant to which, an Option
may become exercisable shall be determined by the Administrator in its
discretion, subject to the terms of the Plan. An Option granted under this Plan
that is exercisable may be exercised with respect to any number of whole shares
less than the full number of whole shares for which the Option could be
exercised. A partial exercise of an Option shall not affect the right to
exercise the Option from time to time in accordance with this Plan and the
applicable Agreement with respect to remaining shares subject to the Option or
Related SAR.
(b)
An Option that is exercisable may be exercised by giving written notice to
BB&T in form acceptable to the Administrator at such place and subject to
such conditions as may be established by the Administrator or its designee. Such
notice shall specify the number of shares to be purchased pursuant to an Option
and the aggregate purchase price to be paid therefor and shall be accompanied by
payment of such purchase price. The date of exercise shall be the date on which
BB&T has received both the notice of exercise and payment of the purchase
price (except as may be otherwise determined by the Administrator for option
exercises made pursuant to Section 6.05(c)).
(c)
To the extent required under Section 422 of the Code, in no event shall there
first become exercisable by an Employee in any one calendar year Incentive
Options granted by BB&T (or any parent or subsidiary corporation) with
respect to shares having an aggregate Fair Market Value (determined at the time
an Incentive Option is granted) greater than $100,000.
6.05.
Payment
. Unless an Agreement provides otherwise, payment upon exercise of an Option
shall be in the form of cash or cash equivalent; provided that, where permitted by the
Administrator and applicable laws, rules and regulations, payment may also be made:
(a)
By delivery (by either actual delivery or attestation) of shares of Common Stock
owned by the Participant for a time period determined by the Administrator and
otherwise acceptable to the Administrator;
(b)
By shares of Common Stock withheld upon exercise;
(c) By
delivery of written notice of exercise to BB&T and delivery to a broker of
written notice of exercise and irrevocable instructions to promptly deliver to
BB&T the amount of sale or loan proceeds to pay the Option Price;
(d)
By such other payment methods as may be approved by the Administrator and which
are acceptable under applicable law; or
(e)
By any combination of the foregoing methods.
Shares
tendered or withheld in payment on the exercise of an Option shall be valued at
their Fair Market Value on the date of exercise, as determined by the
Administrator.
6.06.
Nontransferability
. Incentive Options shall not be transferable (including by sale,
assignment, pledge or hypothecation) except by will or the laws of intestate succession
or, in the Administrator’s discretion, as may otherwise be permitted in accordance
with Section 422 of the Code and related regulations. Nonqualified Options shall not be
transferable (including by sale, assignment, pledge or hypothecation) other than by will
or the laws of intestate succession, except as may be permitted by the Administrator in
its sole discretion (and in a manner consistent with the registration provisions of the
Securities Act). Except as may be permitted by the preceding sentence with respect to the
transfer of Nonqualified Options, (i) during the lifetime of a Participant to whom an
Option is granted, the Option may be exercised only by the Participant; and (ii) no right
or interest of a Participant in any Option shall be liable for, or subject to, any lien,
obligation or liability of such Participant. The designation of a beneficiary in
accordance with Section 16.09 shall not constitute a transfer.
6.07.
Disqualifying Dispositions
. If shares of Common Stock acquired upon exercise of an
Incentive Option are disposed of within two years following the date of grant or one year
following the transfer of such shares to a Participant upon exercise, the Participant
shall, promptly following such disposition, notify BB&T in writing of the date and
terms of such disposition and provide such other information regarding the disposition as
the Administrator may reasonably require.
ARTICLE VII
STOCK APPRECIATION
RIGHTS
7.01.
Grant of
SARs
. Subject to the terms of the Plan, the Administrator may in its discretion grant
SARs to such eligible individuals, in such numbers, upon such terms and at such times as
the Administrator shall determine. SARs may be granted to the holder of an Option
(hereinafter called a “
related Option
”) with respect to all or a portion
of the shares of Common Stock subject to the related Option (a “
Related
SAR
”) or may be granted separately to an eligible individual (a
“
Freestanding SAR
”). The base price per share of an SAR shall be no less
than 100% of the Fair Market Value per share of the Common Stock on the date the SAR is
granted.
7.02.
Related
SARs
. A Related SAR may be granted either concurrently with the grant of the related
Option or (if the related Option is a Nonqualified Option) at any time thereafter prior to
the complete exercise, termination, expiration or cancellation of such related Option. The
base price of a Related SAR shall be equal to the Option Price of the related Option.
Related SARs shall be exercisable only at the time and to the extent that the related
Option is exercisable (and may be subject to such additional limitations on exercisability
as the Administrator may provide in the agreement), and in no event after the complete
termination or full exercise of the related Option. Notwithstanding the foregoing, a
Related SAR that is related to an Incentive Option may be exercised only to the extent
that the related Option is exercisable and only when the Fair Market Value exceeds the
Option Price of the related Option. Upon the exercise of a Related SAR granted in
connection with a related Option, the Option shall be canceled to the extent of the number
of shares as to which the SAR is exercised, and upon the exercise of a related Option, the
Related SAR shall be canceled to the extent of the number of shares as to which the
related Option is exercised or surrendered.
7.03.
Freestanding SARs
. An SAR may be granted without relationship to an option (as
defined above, a “Freestanding SAR”) and, in such case, will be exercisable upon
such terms and subject to such conditions as may be determined by the Administrator,
subject to the terms of the Plan.
7.04.
Exercise
of SARs
.
(a)
Subject to the terms of the Plan, SARs shall be exercisable in whole or in part
upon such terms and conditions as may be established by the Administrator and
stated in the applicable Agreement. The period during which an SAR may be
exercisable shall not exceed 10 years from the date of grant or, in the case of
Related SARs, such shorter Option Period as may apply to the related Option. Any
SAR or portion thereof not exercised before expiration of the period established
by the Administrator shall terminate.
(b)
SARs may be exercised by giving written notice to BB&T in form acceptable to
the Administrator at such place and subject to such terms and conditions as may
be established by the Administrator or its designee. Unless the Administrator
determines otherwise, the date of exercise of an SAR shall mean the date on
which BB&T shall have received proper notice from the Participant of the
exercise of such SAR.
7.05.
Payment
Upon Exercise
. Subject to the limitations of the Plan, upon the exercise of an SAR, a
Participant shall be entitled to receive payment from BB&T in an amount determined by
multiplying (i) the difference between the Fair Market Value of a share of Common Stock on
the date of exercise of the SAR over the base price of the SAR by (ii) the number of
shares of Common Stock with respect to which the SAR is being exercised. Notwithstanding
the foregoing, the Administrator in its discretion may limit in any manner the amount
payable with respect to an SAR. Such consideration shall be paid in cash, shares of Common
Stock (valued at Fair Market Value on the date of exercise of the SAR) or a combination of
cash and shares of Common Stock, as determined by the Administrator. BB&T’s
obligation arising upon the exercise of the SAR may be paid currently or on a deferred
basis with such interest or earnings equivalent, if any, as the Administrator may
determine. No fractional shares of Common Stock will be issuable upon exercise of the SAR
and, unless otherwise provided in the applicable Agreement, the Participant will receive
cash in lieu of fractional shares.
7.06.
Nontransferability
. Unless the Administrator determines otherwise, (i) SARs shall
not be transferable (including by sale, assignment, pledge or hypothecation) other than by
will or the laws of intestate succession, and (ii) SARs may be exercised during the
Participant’s lifetime only by him or by his guardian or legal representative. The
designation of a beneficiary in accordance with Section 16.09 does not constitute a
transfer.
ARTICLE VIII
RESTRICTED
AWARDS
8.01.
Grant of
Restricted Awards
. Subject to the terms of the Plan, the Administrator may in its
discretion grant Restricted Awards to such eligible individuals in such numbers, upon such
terms and conditions and at such times as the Administrator shall determine. Such
Restricted Awards may be in the form of Restricted Stock Awards and/or Restricted Stock
Units that are subject to certain conditions, which conditions must be met in order for
the Restricted Award to vest and be earned (in whole or in part) and no longer subject to
forfeiture. Restricted Stock Awards shall be payable in shares of Common Stock. Restricted
Stock Units shall be payable in cash or whole shares of Common Stock, or partly in cash
and partly in whole shares of Common Stock, in accordance with the terms of the Plan and
in the discretion of the Administrator.
The Administrator shall determine the
nature, length and starting date of the period, if any, during which a Restricted Award
may be earned (the “
Restriction Period
”), and shall determine the
conditions which must be met in order for a Restricted Award to be granted or to vest or
be earned (in whole or in part), which conditions may include, but are not limited to,
payment of a stipulated purchase price for the Restricted Award, attainment of performance
objectives, continued service or employment for a certain period of time (or a combination
of attainment of performance objectives and continued service), Retirement, Displacement,
Disability, death, or any combination of such conditions. Notwithstanding the foregoing,
Restricted Awards that vest based solely on continued service or the passage of time shall
be subject to a minimum Restriction Period of one year (except in the case of Restricted
Awards assumed or substituted in connection with mergers, acquisitions or other business
transactions or Restricted Awards granted in connection with the recruitment of a
Participant). In the case of Restricted Awards based upon performance criteria, or a
combination of performance criteria and continued service, the Administrator shall
determine the Performance Measures applicable to such Restricted Awards (subject to
Section 1.24 herein).
8.02.
Vesting of
Restricted Awards
. Subject to the terms of the Plan, the Administrator shall have sole
authority to determine whether and to what degree Restricted Awards have vested and been
earned and are payable and to establish and interpret the terms and conditions of
Restricted Awards.
8.03.
Forfeiture
of Restricted Awards
. Unless the Administrator determines otherwise, if the employment
or service of a Participant shall terminate for any reason and all or any part of a
Restricted Award has not vested or been earned pursuant to the terms of the Plan and the
individual Agreement, such Award, to the extent not then vested or earned, shall be
forfeited immediately upon such termination and the Participant shall have no further
rights with respect thereto.
8.04.
Shareholder Rights; Share Certificates
. The Administrator shall have sole
discretion to determine whether a Participant shall have dividend rights, voting rights or
other rights as a shareholder with respect to shares subject to a Restricted Award which
has not vested, been earned or been forfeited. The Administrator shall have the right to
retain custody of certificates evidencing the shares subject to a Restricted Award and to
require the Participant to deliver to BB&T a stock power, endorsed in blank, with
respect to such Award, until such time as the Restricted Award vests or is forfeited.
8.05.
Nontransferability
. Unless the Administrator determines otherwise, (i) Restricted
Awards shall not be transferable (including by sale, assignment, pledge or hypothecation)
other than by will or the laws of intestate succession, and (ii) shares of Common Stock
subject to a Restricted Award may not be sold, transferred, assigned, pledged or otherwise
encumbered until all restrictions related to the Award have lapsed and all conditions to
vesting have been met. The designation of a beneficiary in accordance with Section 16.09
does not constitute a transfer.
ARTICLE IX
PERFORMANCE
AWARDS
9.01.
Grant of
Performance Awards
. Subject to the terms of the Plan, the Administrator may in its
discretion grant Performance Awards to such eligible individuals in such amounts, upon
such terms and conditions and at such times as the Administrator shall determine.
Performance Awards may be in the form of Performance Shares and/or Performance Units. An
Award of a Performance Share is a grant of a right to receive shares of Common Stock, the
cash value thereof or a combination thereof (in the Administrator’s discretion),
which is contingent upon the achievement of performance or other objectives during a
specified period and which has a value on the date of grant equal to the Fair Market Value
of a share of Common Stock. An Award of a Performance Unit is a grant of a right to
receive shares of Common Stock or a designated dollar value amount of Common Stock which
is contingent upon the achievement of performance or other objectives during a specified
period, and which has an initial value determined in a dollar amount established by the
Administrator at the time of grant. Subject to Section 5.01, above, the Administrator
shall have complete discretion in determining the number of Performance Units and/or
Performance Shares granted to any Participant. The Administrator shall determine the
nature, length and starting date of the period during which a Performance Award may be
earned (the “
Performance Period
”), and shall determine the conditions
which must be met in order for a Performance Award to be granted or to vest or be earned
(in whole or in part), which conditions may include but are not limited to specified
performance objectives, continued service or employment for a certain period of time, or a
combination of such conditions. Subject to Section 1.24 herein, the Administrator shall
determine the Performance Measures to be used in valuing Performance Awards.
9.02.
Earning of
Performance Awards
. Subject to the terms of the Plan, the Administrator shall have
sole authority to determine whether and to what degree Performance Awards have been earned
and are payable and to interpret the terms and conditions of Performance Awards.
9.03.
Form of
Payment
. Payment of the amount to which a Participant shall be entitled upon earning a
Performance Award shall be made in cash, shares of Common Stock, or a combination of cash
and shares of Common Stock, as determined by the Administrator in its sole discretion.
Payment may be made in a lump sum or in installments upon such terms as may be established
by the Administrator.
9.04.
Forfeiture
of Performance Awards
. Unless the Administrator determines otherwise, if the
employment or service of a Participant shall terminate for any reason and the Participant
has not earned all or part of a Performance Award pursuant to the terms of the Plan and
individual Agreement, such Award, to the extent not then earned, shall be forfeited
immediately upon such termination of employment or service and the Participant shall have
no further rights with respect thereto.
9.05.
Nontransferability
. Unless the Administrator determines otherwise, (i) Performance
Awards which have not been earned shall not be transferable (including by sale,
assignment, pledge or hypothecation) other than by will or the laws of intestate
succession, and (ii) shares of Common Stock subject to a Performance Award may not be
sold, transferred, assigned, pledged or otherwise encumbered until the Performance Period
has expired and all conditions to earning the Award have been met. The designation of a
beneficiary in accordance with Section 16.09 does not constitute a transfer.
ARTICLE X
PHANTOM STOCK
AWARDS
10.01.
Grant of
Phantom Stock Awards
. Subject to the terms of the Plan, the Administrator may in its
discretion grant Phantom Stock Awards to such eligible individuals, in such numbers, upon
such terms and at such times as the Administrator shall determine. A Phantom Stock Award
is an Award to a Participant of a number of hypothetical share units with respect to
shares of Common Stock, with a value based on the Fair Market Value of a share of Common
Stock.
10.02.
Vesting
of Phantom Stock Awards
. Subject to the terms of the Plan, the Administrator shall
have sole authority to determine whether and to what degree Phantom Stock Awards have
vested and are payable and to interpret the terms and conditions of Phantom Stock Awards.
10.03.
Payment
of Phantom Stock Awards
. Upon vesting of all or a part of a Phantom Stock Award and
satisfaction of such other terms and conditions as may be established by the
Administrator, the Participant shall be entitled to a payment of an amount equal to the
Fair Market Value of one share of Common Stock with respect to each such Phantom Stock
unit which has vested. Payment may be made, in the discretion of the Administrator, in
cash or in shares of Common Stock valued at their Fair Market Value on the applicable
vesting date or dates (or other date or dates determined by the Administrator), or in a
combination thereof. The Administrator may, however, establish a limitation on the amount
payable in respect of each share of Phantom Stock. Payment may be made in a lump sum or in
installments upon such terms as may be established by the Administrator.
10.04.
Nontransferability
. Unless the Administrator determines otherwise, (i) Phantom
Stock Awards shall not be transferable (including by sale, assignment, pledge or
hypothecation) other than by will or the laws of intestate succession, (ii) Phantom Stock
Awards may be exercised during the Participant’s lifetime only by him or by his
guardian or legal representative, and (iii) shares of Common Stock (if any) subject to a
Phantom Stock Award may not be sold, transferred, assigned, pledged or otherwise
encumbered until the Phantom Stock Award has vested and all other conditions established
by the Administrator have been met. The designation of a beneficiary in accordance with
Section 16.09 does not constitute a transfer.
ARTICLE XI
DIVIDENDS
AND DIVIDEND EQUIVALENTS
The
Administrator may, in its sole discretion, provide that the Awards granted under
the Plan earn dividends or dividend equivalents. Such dividends or dividend
equivalents may be paid currently or may be credited to a Participant’s
account. Any crediting of dividends or dividend equivalents may be subject to
such restrictions and conditions as the Administrator may establish, including
reinvestment in additional shares of Common Stock or share equivalents.
ARTICLE XII
EFFECT
OF TERMINATION
The
Administrator shall determine the extent, if any, to which a Participant shall
have any rights with respect to an Award (including but not limited to the right
to exercise all or part of an Option or SAR or for all or part of a Restricted
Award, Performance Award or Phantom Stock Award to vest or be earned) following
termination of the Participant’s employment or service with BB&T or an
Affiliate. Such provisions will be determined in the sole discretion of the
Administrator, shall be included in the Agreement relating to such Award, need
not be uniform among all Awards issued under the Plan and may reflect
distinctions based on the reasons for termination of employment or service. The
Administrator also may decide to what extent leaves of absence for governmental
or military service, illness, temporary disability or other reasons shall not be
deemed interruptions of continuous employment or service.
ARTICLE XIII
COMPLIANCE
WITH LAWS; RESTRICTIONS ON AWARDS AND SHARES
BB&T
may impose such restrictions on Awards and shares or any other benefits
underlying Awards hereunder as it may deem advisable, including without
limitation restrictions under the federal securities laws, the requirements of
any stock exchange or similar organization and any blue sky, state or foreign
securities laws applicable to such securities. Notwithstanding any other Plan
provision to the contrary, BB&T shall not be obligated to issue, deliver or
transfer shares of Common Stock under the Plan, make any other distribution of
benefits under the Plan, or take any other action, unless such delivery,
distribution or action is in compliance with all applicable laws, rules and
regulations (including but not limited to the requirements of the Securities
Act). BB&T may cause a restrictive legend to be placed on any certificate
for shares issued pursuant to an Award hereunder in such form as may be
prescribed from time to time by applicable laws and regulations or as may be
advised by legal counsel.
ARTICLE XIV
AMENDMENT
AND TERMINATION OF THE PLAN
14.01.
General
.
(a)
The Plan may be amended, altered or terminated at any time by the Board;
provided, that (i) approval of an amendment to the Plan by the shareholders of
BB&T shall be required to the extent, if any, that shareholder approval of
such amendment is required by applicable law, rule or regulation; and (ii)
except for adjustments made pursuant to Section 5.03, the Option Price for any
outstanding Option or base price of any outstanding SAR granted under the Plan
may not be decreased after the date of grant, nor may any outstanding Option or
SAR granted under the Plan be surrendered to BB&T as consideration for the
grant of a new Option or SAR with a lower Option Price or base price than the
original Option or SAR, as the case may be, without shareholder approval of any
such action.
(b)
The Administrator may amend, alter or terminate any Award granted under the
Plan, prospectively or retroactively, but such amendment, alteration or
termination of an Award shall not, without the consent of the recipient of an
outstanding Award, materially adversely affect the rights of the recipient with
respect to the Award.
14.02.
Adjustment of Awards upon the Occurrence of Certain Unusual or Nonrecurring Events
.
The Administrator shall have authority to make adjustments to the terms and conditions of
Awards in recognition of unusual or nonrecurring events affecting BB&T or any
Affiliate, or the financial statements of BB&T or any Affiliate, or of changes in
applicable laws, regulations or accounting principles, if the Administrator determines
that such adjustments are appropriate in order to prevent dilution or enlargement of the
benefits or potential benefits intended to be made available under the Plan or necessary
or appropriate to comply with applicable laws, rules or regulations.
14.03.
Cash
Settlement
. Notwithstanding any provision of the Plan, an Award or an Agreement to the
contrary, the Administrator may cause any Award granted under the Plan to be canceled in
consideration of an alternative award or cash payment of an equivalent cash value, as
determined by the Administrator, made to the holder of such canceled Award.
ARTICLE XV
EFFECTIVE
DATE; TERM
The
effective date of the Plan shall be April 27, 2004 (the “
Effective
Date
”). Awards may be granted under the Plan on and after the Effective
Date, but no Awards will be granted after April 26, 2014. Awards which are
outstanding on April 26, 2014 (or such earlier termination date as may be
established by the Board pursuant to Section 14.01 herein) shall continue in
accordance with their terms, unless otherwise provided in the Plan or an
Agreement.
ARTICLE XVI
GENERAL PROVISIONS
16.01.
Shareholder Rights
. Except as otherwise determined by the Administrator (and
subject to the provisions of Section 8.04 herein regarding Restricted Awards), a
Participant and his legal representative, legatees or distributees shall not be deemed to
be the holder of any shares subject to an Award and shall not have any rights of a
shareholder unless and until certificates for such shares have been issued and delivered
to him or them under the Plan. A certificate or certificates for shares of Common Stock
acquired upon exercise of an Option or SAR shall be issued in the name of the Participant
(or his beneficiary) and distributed to the Participant (or his beneficiary) as soon as
practicable following receipt of notice of exercise and, with respect to Options, payment
of the purchase price (except as may otherwise be determined by BB&T in the event of
payment of the Option Price pursuant to Section 6.05(c) herein). Except as otherwise
provided in Section 8.04 herein regarding Restricted Stock Awards, a certificate for any
shares of Common Stock issuable pursuant to a Restricted Award, Performance Award or
Phantom Stock Award shall be issued in the name of the Participant (or his beneficiary)
and distributed to the Participant (or his beneficiary) after the Award (or portion
thereof) has vested or been earned.
16.02.
Withholding
. BB&T shall withhold all required local, state, federal, foreign
and other taxes and any other amount required to be withheld by any governmental authority
or law from any amount payable in cash with respect to an Award. Prior to the delivery or
transfer of any certificate for shares or any other benefit conferred under the Plan,
BB&T shall require any recipient of an Award to pay to BB&T in cash the amount of
any tax or other amount required by any governmental authority to be withheld and paid
over by BB&T to such authority for the account of such recipient. Notwithstanding the
foregoing, the Administrator may establish procedures to permit a recipient to satisfy
such obligation in whole or in part, and any local, state, federal, foreign or other
income tax obligations relating to such an Award, by electing (the “election”)
to have BB&T withhold shares of Common Stock from the shares to which the recipient is
entitled. The number of shares to be withheld shall have a Fair Market Value as of the
date that the amount of tax to be withheld is determined as nearly equal as possible to
(but not exceeding) the amount of such obligations being satisfied. Each election must be
made in writing to the Administrator in accordance with election procedures established by
the Administrator.
16.03.
Section
16(b) Compliance
. To the extent that any Participants in the Plan are subject to
Section 16(b) of the Exchange Act, it is the general intention of BB&T that
transactions under the Plan shall comply with Rule 16b-3 under the Exchange Act and that
the Plan shall be construed in favor of such Plan transactions meeting the requirements of
Rule 16b-3 or any successor rules thereto. Notwithstanding anything in the Plan to the
contrary, the Administrator, in its sole and absolute discretion, may bifurcate the Plan
so as to restrict, limit or condition the use of any provision of the Plan to Participants
who are officers or directors subject to Section 16 of the Exchange Act without so
restricting, limiting or conditioning the Plan with respect to other Participants.
16.04.
Code
Section 162(m) Performance-Based Compensation
. To the extent to which Section 162(m)
of the Code is applicable, BB&T intends that compensation paid under the Plan to
Covered Employees will, to the extent practicable, constitute “qualified
performance-based compensation” within the meaning of Section 162(m) and related
regulations, unless otherwise determined by the Administrator. Accordingly, Awards granted
to Covered Employees which are intended to qualify for the performance-based exception
under Code Section 162(m) and related regulations shall be deemed to include any such
additional terms, conditions, limitations and provisions as are necessary to comply with
the performance-based compensation exemption of Section 162(m), unless the Administrator,
in its discretion, determines otherwise.
16.05.
No Right
or Obligation of Continued Employment or Service
. Neither the Plan, the grant of an
Award nor any other action related to the Plan shall confer upon any individual any right
to continue in the service of BB&T or an Affiliate as an Employee, Director or
Independent Contractor or affect in any way with the right of BB&T or an Affiliate to
terminate an individual’s employment or service at any time.
16.06.
Unfunded
Plan; No Effect on Other Plans
.
(a)
The Plan shall be unfunded, and BB&T shall not be required to create a trust
or segregate any assets that may at any time be represented by Awards under the
Plan. The Plan shall not establish any fiduciary relationship between BB&T
and any Participant or other person. Neither a Participant nor any other person
shall, by reason of the Plan, acquire any right in or title to any assets, funds
or property of BB&T or any Affiliate, including, without limitation, any
specific funds, assets or other property which BB&T or any Affiliate, in
their discretion, may set aside in anticipation of a liability under the Plan. A
Participant shall have only a contractual right to the Common Stock or other
amounts, if any, payable under the Plan, unsecured by any assets of BB&T or
any Affiliate. Nothing contained in the Plan shall constitute a guarantee that
the assets of such entities shall be sufficient to pay any benefits to any
person.
(b)
The amount of any compensation deemed to be received by a Participant pursuant
to an Award shall not constitute compensation with respect to which any other
employee benefits of such Participant are determined, including, without
limitation, benefits under any bonus, pension, profit sharing, life insurance or
salary continuation plan, except as otherwise specifically provided by the terms
of such plan or as may be determined by the Administrator.
(c)
The adoption of the Plan shall not affect any other stock incentive or other
compensation plans in effect for BB&T or any Affiliate, nor shall the Plan
preclude BB&T from establishing any other forms of stock incentive or other
compensation for employees or service providers of BB&T or any Affiliate.
16.07.
Applicable Law
. The Plan shall be governed by and construed in accordance with the
laws of the State of North Carolina, without regard to the conflict of laws provisions of
any state, and in accordance with applicable United States federal laws.
16.08.
Deferrals
. The Administrator may permit or require a Participant to defer receipt
of the delivery of shares of Common Stock, the payment of cash or the provision of any
other benefit that would otherwise be due pursuant to the exercise, vesting or earning of
an Award. If any such deferral is required or permitted, the Administrator shall, in its
discretion, establish rules and procedures for such deferrals.
16.09.
Beneficiary Designation
. The Administrator may permit a Participant to designate in
writing a person or persons as beneficiary, which beneficiary shall be entitled to receive
settlement of Awards (if any) to which the Participant is otherwise entitled in the event
of death. In the absence of such designation by a Participant, and in the event of the
Participant’s death, the estate of the Participant shall be treated as beneficiary
for purposes of the Plan, unless the Administrator determines otherwise. The Administrator
shall have sole discretion to approve and interpret the form or forms of such beneficiary
designation.
16.10.
Gender
and Number
. Except where otherwise indicated by the context, words in any gender shall
include any other gender, words in the singular shall include the plural and the plural
shall include the singular.
16.11.
Severability
. If any provision of the Plan shall be held illegal or invalid for any
reason, such illegality or invalidity shall not affect the remaining parts of the Plan,
and the Plan shall be construed and enforced as if the illegal or invalid provision had
not been included.
16.12.
Rules of Construction
. Headings are given to the articles and sections of
this Plan solely as a convenience to facilitate reference. The reference to any statute,
regulation or other provision of law shall be construed to refer to any amendment to or
successor of such provision of law.
16.13.
Successors and Assigns
. The Plan shall be binding upon BB&T, its successors and
assigns, and Participants, their executors, administrators and permitted transferees and
beneficiaries.
IN
WITNESS WHEREOF, this BB&T Corporation 2004 Stock Incentive Plan, is, by the
authority of the Board of Directors of BB&T, executed on behalf of BB&T,
the 27
th
day of April, 2004.
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BB&T CORPORATION
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By:
/s/ Scott E. Reed
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Name:
Scott E. Reed
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Title:
Senior Executive Vice President
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and Chief Financial Officer
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ATTEST:
/s/ Henry G. Williamson, Jr.
Henry G. Williamson, Jr.
Acting Secretary
[Corporate Seal]
