<PAGE> 1
As Filed with The Securities and Exchange Commission on October 5, 1999
Registration Statement No.--
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
----------------
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
----------------
EBANK.COM, INC.
(Exact name of registrant as specified in its charter)
Georgia 58-2349097
---------------------------- ----------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
2410 Paces Ferry Road
Atlanta, Georgia 30339
----------------------
(Address of Principal executive offices)
ebank.com, Inc.1998 Stock Incentive Plan
----------------------------------------
(Full Title of the Plan)
Richard A. Parlontieri, Chief Executive Officer
ebank.com, Inc.
2410 Paces Ferry Road
Atlanta, Georgia 30339
----------------------
(770)437-1169
-------------
(Name, address, and telephone number of agent for service)
--------------------------------------------------
Copies Requested to:
Neil E. Grayson, Esq.
Nelson Mullins Riley & Scarborough, L.L.P.
999 Peachtree Street, N.E., Suite 1400
Atlanta, Georgia 30309
(404) 817-6000
(404) 817-6225 (Fax)
--------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=========================================================================================================
Title of Proposed Proposed
Securities Amount Maximum Maximum Amount of
to be to be Offering Aggregate Registration
Registered Registered Price Per Share (1) Offering Price (1) Fee
---------- ---------- ------------------- ------------------ ------------
<S> <C> <C> <C> <C>
Common Stock, par value 230,000
$.01 per share shares $10.375 $2,386,250 $663
=========================================================================================================
</TABLE>
(1) This estimation is solely for the purpose of calculating the registration
fee pursuant to Rule 457(c) and (h) and is based on 230,000 shares of common
stock being offered at an exercise price of $10.375 based upon the average of
the bid and asked price of the common stock on September 28, 1999, as quoted
on the OTC Bulletin Board.
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by ebank.com, Inc. (formerly Southeast
Commerce Holding Company) with the SEC are hereby incorporated by reference
into this registration statement:
(a) the Company's Annual Report for Southeast Commerce Holding
Company on Form 10-KSB for the fiscal year ended December 31,
1998 (File 333-41545);
(b) all other reports filed pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934 since the end of the
fiscal year covered by the Form 10-KSB referred to in (a)
above; and
(c) the description of the Company's common stock contained in
the Company's registration statement on Form SB-2 filed with
the SEC and declared effective on April 20, 1998 (File No.
333-41545).
In addition, all reports and other documents subsequently filed by the
company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, prior to the filing of a post-effective amendment which
indicates that all securities offered under this registration statement have
been sold or which deregisters all remaining unsold securities, shall be deemed
to be incorporated by reference in this registration statement and to be a part
hereof from the date of filing of such documents.
Item 4. Description of Securities.
No response is required to this item.
Item 5. Interests of Named Experts and Counsel.
As of the date of this prospectus, attorneys of Nelson Mullins Riley &
Scarborough, LLP beneficially owned 6,900 shares of ebank.com, Inc. common
stock.
Item 6. Indemnification of Directors and Officers.
The Georgia Business Corporation Code permits a corporation to
eliminate or limit the personal liability of a director to the corporation or
its shareholders for monetary damages for breach of duty of care or other duty
as a director, except a corporation cannot eliminate or limit the liability of
a director for:
- - an appropriation, in violation of his duties, of any business
opportunity of the corporation;
- - acts or omissions which involve intentional misconduct or a knowing
violation of law;
- - unlawful corporate distributions; or
- - any transaction from which the director received an improper personal
benefit.
2
<PAGE> 3
This provision relates only to breaches of duty by directors in their capacity
as directors, and not in any other corporate capacity, such as officers. It
limits liability only for breaches of fiduciary duties under the Georgia Code,
and not for violation of other laws, such as the federal securities laws. Our
articles of incorporation exonerate our directors from monetary liability to
the extent described above.
In addition to the rights provided by law, our bylaws provide broad
indemnification rights to our directors and the officers, employees, and agents
as the directors may select, with respect to various civil and criminal
liabilities and losses that may be incurred by the director, officer, agent, or
employee in any pending or threatened litigation or other proceedings. This
indemnification does not apply in the same situations described above with
respect to the exculpation from liability of our directors. We are also
obligated to reimburse directors and other parties for expenses, including
legal fees, court costs, and expert witness fees, incurred by those persons in
defending against any of these liabilities and losses, as long as the person in
good faith believes that he or she complied with the applicable standard of
conduct with respect to the underlying accusations giving rise to the
liabilities or losses and agrees to repay to us any advances made under the
bylaws. Any amendment or other modification to the bylaws which limits or
otherwise adversely affects the rights to indemnification currently provided in
the bylaws shall apply only to proceedings based upon actions and events
occurring after the amendment and delivery of notice of it to the indemnified
parties.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following exhibits are filed with this Registration Statement:
<TABLE>
<CAPTION>
Exhibit
Number Description of Exhibit
<S> <C>
4.1 - Articles of Incorporation of the Company
(incorporated by reference to Exhibit 3.1 of the
Company's Registration Statement on Form SB-2; File
No. 333-41545)
4.2 - Bylaws of the Company (incorporated by reference to
Exhibit 3.2 of the Company's Registration Statement
on Form SB-2 ; File No. 333-41545)
4.3 - ebank.com, Inc. 1998 Stock Incentive Plan
5.1 - Legal opinion of Nelson Mullins Riley & Scarborough,
L.L.P.
23.1 - Consent of Nelson Mullins Riley & Scarborough,
L.L.P. (contained in their opinion filed as Exhibit
5.1).
24 - Power of Attorney (contained on the signature pages
of this Registration Statement).
</TABLE>
Item 9. Undertakings.
The Company hereby undertakes that it will:
3
<PAGE> 4
(a) File, during any period in which it offers or sells
securities, a post-effective amendment to this registration
statement to:
(i) Include any prospectus required by Section 10(a)(3)
of the Securities Act;
(ii) Reflect in the prospectus any facts or events which,
individually or together, represent a fundamental
change in the information in the registration
statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered
(if the total dollar value of securities offered
would not exceed that which was registered) and any
deviation from the low or high end of the estimated
maximum offering range may be reflected in the form
of prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than a 20 percent
change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table
in the effective registration statement;
(iii) Include any additional or changed material
information on the plan of distribution;
provided, however, that the undertakings set forth in
paragraphs (i) and (ii) above do not apply if the information
required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with
or furnished to the Commission by the Company pursuant to the
Exchange Act that are incorporated by reference in this
Registration Statement;
(b) For determining liability under the Securities Act, treat
each such post-effective amendment as a new registration
statement of the securities offered, and the offering of the
securities at that time to be the initial bona fide offering;
and
(c) File a post-effective amendment to remove from registration
any of the securities that remain unsold at the end of the
offering.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Company pursuant to the foregoing provisions, or otherwise, the Company
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable.
4
<PAGE> 5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Atlanta, State of Georgia, on this 20th day of
September, 1999.
ebank.com, Inc.
By: /s/ Richard A. Parlontieri
-------------------------------------
Richard A. Parlontieri
President and Chief Executive Officer
Each person whose signature appears below constitutes and appoints
Richard A. Parlontieri, for himself or herself in name, place and stead, in any
and all capacities, as his or her true and lawful attorney-in-fact and agent,
with full power of substitution and resubstitution, to sign any and all
amendments to this Registration Statement, and to file the same with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto the attorney-in-fact and
agent full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he or she might or could do in person, hereby ratifying
and confirming all that the attorney-in-fact and agent, or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons, in the
capacities indicated, on the dates noted below.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Gary M. Bremer Director September 20, 1999
- -------------------------------------------- ------------------
Gary M. Bremer
Director
- -------------------------------------------- ------------------
Richard C. Carter
/s/ Louis J. Douglass, III Director September 20, 1999
- -------------------------------------------- ------------------
Louis J. Douglass, III
/s/ Terry L. Ferrero Director September 20, 1999
- -------------------------------------------- ------------------
Terry L. Ferrero
Director
- -------------------------------------------- ------------------
Stephen R. Gross
</TABLE>
5
<PAGE> 6
<TABLE>
<S> <C> <C>
/s/ G. Webb Howell Director September 20, 1999
- -------------------------------------------- ------------------
G. Webb Howell
/s/ Richard A. Parlontieri President, September 20, 1999
- -------------------------------------------- Chief Executive ------------------
Richard A. Parlontieri Officer
/s/ Frank E. Perisino Director September 20, 1999
- -------------------------------------------- ------------------
Frank E. Perisino
/s/ Mark D. Little Chief Financial September 20, 1999
- -------------------------------------------- Officer ------------------
Mark D. Little
</TABLE>
6
<PAGE> 7
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Sequential
Number Exhibit Page No.
------ ------- --------
<S> <C> <C>
4.1 - Articles of Incorporation of the Company
(incorporated by reference to Exhibit 3.1 of the
Company's Registration Statement on Form SB-2; File
No. 333-41545)
4.2 - Bylaws of the Company (incorporated by reference to
Exhibit 3.2 of the Company's Registration Statement
on Form SB-2; File No. 333-41545)
4.3 - ebank.com, Inc. 1998 Stock Incentive Plan
5.1 - Legal opinion of Nelson Mullins Riley & Scarborough,
L.L.P.
23.1 - Consent of Nelson Mullins Riley & Scarborough,
L.L.P. (contained in their opinion filed as Exhibit
5.1).
24 Power of Attorney (contained on the signature pages
of this Registration Statement).
</TABLE>
<PAGE> 1
EXHIBIT 4.3
EBANK.COM, INC.
1998 STOCK INCENTIVE PLAN
<PAGE> 2
EBANK.COM, INC.
1998 STOCK INCENTIVE PLAN
TABLE OF CONTENTS
<TABLE>
<S> <C> <C>
ARTICLE I DEFINITIONS............................................................................................ 1
ARTICLE II THE PLAN............................................................................................... 4
2.1 NAME.................................................................................................... 4
2.2 PURPOSE................................................................................................. 4
2.3 EFFECTIVE DATE.......................................................................................... 4
ARTICLE III PARTICIPANTS.................................................................................... 5
ARTICLE IV ADMINISTRATION.................................................................................. 5
4.1 DUTIES AND POWERS OF THE COMMITTEE...................................................................... 5
4.2 INTERPRETATION; RULES................................................................................... 5
4.3 NO LIABILITY............................................................................................ 6
4.4 MAJORITY RULE........................................................................................... 6
4.5 COMPANY ASSISTANCE...................................................................................... 6
ARTICLE V SHARES OF STOCK SUBJECT TO PLAN................................................................. 6
5.1 LIMITATIONS............................................................................................. 6
5.2 ANTIDILUTION............................................................................................ 8
ARTICLE VI OPTIONS......................................................................................... 9
6.1 TYPES OF OPTIONS GRANTED............................................................................... 9
6.2 OPTION GRANT AND AGREEMENT............................................................................. 9
6.3 OPTIONEE LIMITATIONS................................................................................... 9
6.4 $100,000 LIMITATION.................................................................................... 10
6.5 EXERCISE PRICE......................................................................................... 10
6.6 EXERCISE PERIOD........................................................................................ 10
6.7 OPTION EXERCISE........................................................................................ 10
6.8 NONTRANSFERABILITY OF OPTION........................................................................... 12
6.9 TERMINATION OF EMPLOYMENT OR SERVICE................................................................... 12
6.10 EMPLOYMENT RIGHTS...................................................................................... 12
6.11 CERTAIN SUCCESSOR OPTIONS.............................................................................. 12
6.12 EFFECT OF A CORPORATE TRANSACTION...................................................................... 12
ARTICLE VII STOCK CERTIFICATES................................................................................... 13
ARTICLE VIII TERMINATION AND AMENDMENT........................................................................... 13
8.1 TERMINATION AND AMENDMENT.............................................................................. 13
8.2 EFFECT ON GRANTEE'S RIGHTS............................................................................. 14
ARTICLE IX RELATIONSHIP TO OTHER COMPENSATION PLANS.............................................................. 14
ARTICLE X MISCELLANEOUS.......................................................................................... 14
10.1 REPLACEMENT OR AMENDED GRANTS.......................................................................... 14
10.2 FORFEITURE FOR COMPETITION............................................................................. 14
10.3 LEAVE OF ABSENCE....................................................................................... 14
10.4 PLAN BINDING ON SUCCESSORS............................................................................. 15
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C> <C>
10.5 HEADINGS, ETC., NO PART OF PLAN........................................................................ 15
10.6 SECTION 16 COMPLIANCE.................................................................................. 15
</TABLE>
EXHIBIT A TO EBANK.COM, INC. 1998 STOCK INCENTIVE PLAN-
FORM OF STOCK OPTION AGREEMENT
ii
<PAGE> 4
EBANK.COM, INC.
1998 STOCK INCENTIVE PLAN
ARTICLE I
DEFINITIONS
As used herein, the following terms have the following meanings unless
the context clearly indicates to the contrary:
"Board" shall mean the Board of Directors of the Company.
"Cause" (i) with respect to the Company or any subsidiary which
employs the recipient of an Option (the "recipient") or for which such
recipient primarily performs services, the commission by the recipient of an
act of fraud, embezzlement, theft or proven dishonesty, or any other illegal
act or practice (whether or not resulting in criminal prosecution or
conviction), or any act or practice which the Committee shall, in good faith,
deem to have resulted in the recipient's becoming unbondable under the
Company's or the subsidiary's fidelity bond; (ii) the willful engaging by the
recipient in misconduct which is deemed by the Committee, in good faith, to be
materially injurious to the Company or any subsidiary, monetarily or otherwise,
including, but not limited, improperly disclosing trade secrets or other
confidential or sensitive business information and data about the Company or
any subsidiaries and competing with the Company or its subsidiaries, or
soliciting employees, consultants or customers of the Company in violation of
law or any employment or other agreement to which the recipient is a party; or
(iii) the willful and continued failure or habitual neglect by the recipient to
perform his or her duties with the Company or the subsidiary substantially in
accordance with the operating and personnel policies and procedures of the
Company or the subsidiary generally applicable to all their employees. For
purposes of this Plan, no act or failure to act by the recipient shall be
deemed be "willful" unless done or omitted to be done by recipient not in good
faith and without reasonable belief that the recipient's action or omission was
in the best interest of the Company and/or the subsidiary. Notwithstanding the
foregoing, if the recipient has entered into an employment agreement that is
binding as of the date of employment termination, and if such employment
agreement defines "Cause," then the definition of "Cause" in such agreement
shall apply to the recipient in this Plan. Whether an act constitutes "Cause"
under either (i), (ii) or (iii) shall be determined by the Committee in its
sole discretion, and its determination shall be binding.
"Code" shall mean the United States Internal Revenue Code of 1986,
including effective date and transition rules (whether or not codified). Any
reference herein to a specific section of the Code shall be deemed to include a
reference to any corresponding provision of future law.
"Committee" shall mean a committee of at least two Directors appointed
from time to time by the Board, having the duties and authority set forth
herein in addition to any other authority granted by the Board. In selecting
the Committee, the Board shall consider (i) the benefits under Section 162(m)
of the Code of having a Committee composed of "outside directors" (as that term
is defined in the Code) for certain grants of Options to highly compensated
executives, and (ii) the benefits under Rule 16b-3 of having a Committee
composed of either the entire Board or a
<PAGE> 5
Committee of at least two Directors who are Non-Employee Directors for Options
granted to or held by any Section 16 Insider. At any time that the Board shall
not have appointed a committee as described above, any reference herein to the
Committee shall mean the Board.
"Company" shall mean ebank.com, Inc., a Georgia corporation.
"Change in Control" shall mean the occurrence of any of the following
events: (1) a change in the ownership, holding or power to vote more than 25%
of the Company's voting stock, (2) a change in the ownership or possession of
the ability to control the election of a majority of the Company's directors,
(3) a change in the ownership or possession of the ability to exercise a
controlling influence over the management or policies of the Company by any
person or by persons acting as a "group" (within the meaning of Section 13(d)
of the Securities Exchange Act of 1934), or (4) during any period of two
consecutive years, individuals who at the beginning of such period constitute
the Board of Directors of the Company (the "Continuing Directors") cease for
any reason to constitute at least two-thirds of the members of such Board of
Directors, provided that any individual whose election or nomination for
election as a member of such Board was approved by a vote of at least
two-thirds of the Continuing Directors then in office shall be considered a
Continuing Director. For purposes of this subparagraph only, the term "person"
refers to an individual or a corporation, partnership, trust, association,
joint venture, pool, syndicate, sole proprietorship, unincorporated
organization, or any other form of entity not specifically listed herein. The
decision of the Committee about whether a Change in Control has occurred shall
be conclusive and binding.
"Director" shall mean a member of the Board and any person who is an
advisory or honorary director of the Company.
"Employee" shall mean a person who constitutes an employee of the
Company as such term is defined in the instructions to the Form S-8
Registration Statement under the Securities Act of 1933, and also includes
non-employees to whom an offer of employment has been extended.
"Exchange Act" shall mean the Securities Exchange Act of 1934. Any
reference herein to a specific section of the Exchange Act shall be deemed to
include a reference to any corresponding provision of future law.
"Exercise Price" shall mean the price at which an Optionee may
purchase a share of Stock under a Stock Option Agreement.
"Fair Market Value" on any date shall mean (i) the closing sales price
of the Stock, regular way, on such date on the national securities exchange
having the greatest volume of trading in the Stock during the thirty-day period
preceding the day the value is to be determined or, if such exchange was not
open for trading on such date, the next preceding date on which it was open;
(ii) if the Stock is not traded on any national securities exchange, the
average of the closing high bid and low asked prices of the Stock on the
over-the-counter market on the day such value is to be determined, or in the
absence of closing bids on such day, the closing bids on the next preceding day
on which there were bids; or (iii) if the Stock also is not traded on the
over-the-counter market, the fair market value as determined in good faith by
the Board or the
2
<PAGE> 6
Committee based on such relevant facts as may be available to the Board, which
may include opinions of independent experts, the price at which recent sales
have been made, the book value of the Stock, and the Company's current and
future earnings.
"Grantee" shall mean a person who is an Optionee.
"Incentive Stock Option" shall mean an option to purchase any stock of
the Company, which complies with and is subject to the terms, limitations and
conditions of Section 422 of the Code and any regulations promulgated with
respect thereto.
"Non-Employee Director" shall have the meaning set forth in Rule 16b-3
under the Exchange Act, as the same may be in effect from time to time, or in
any successor rule thereto, and shall be determined for all purposes under the
Plan according to interpretative or "no-action" positions with respect thereto
issued by the Securities and Exchange Commission.
"Officer" shall mean a person who constitutes an officer of the
Company for the purposes of Section 16 of the Exchange Act, as determined by
reference to such Section 16 and to the rules, regulations, judicial decisions,
and interpretative or "no-action" positions with respect thereto of the
Securities and Exchange Commission, as the same may be in effect or set forth
from time to time.
"Option" shall mean an option, whether or not an Incentive Stock
Option, to purchase Stock granted pursuant to the provisions of Article VI
hereof.
"Optionee" shall mean a person to whom an Option has been granted
hereunder.
"Parent" shall mean any corporation (other than the Company or a
Subsidiary) in an unbroken chain of corporations ending with the Company if, at
the time of the grant (or modification) of the Option, each of the corporations
other than the Company or a Subsidiary owns stock possessing 50% or more of the
total combined voting power of the classes of stock in one of the other
corporations in such chain.
"Permanent and Total Disability" shall have the same meaning as given
to that term by Code Section 22(e)(3) and any regulations or rulings
promulgated thereunder.
"Plan" shall mean the ebank.com, Inc. 1998 Stock Incentive Plan, the
terms of which are set forth herein.
"Purchasable" shall refer to Stock which may be purchased by an
Optionee under the terms of this Plan on or after a certain date specified in
the applicable Stock Option Agreement.
"Qualified Domestic Relations Order" shall have the meaning set forth
in the Code or in the Employee Retirement Income Security Act of 1974, or the
rules and regulations promulgated under the Code or such Act.
3
<PAGE> 7
"Section 16 Insider" shall mean any person who is subject to the
provisions of Section 16 of the Exchange Act, as provided in Rule 16a-2
promulgated pursuant to the Exchange Act.
"Stock" shall mean the Common Stock, par value $0.01 per share, of the
Company or, in the event that the outstanding shares of Stock are hereafter
changed into or exchanged for shares of a different stock or securities of the
Company or some other entity, such other stock or securities.
"Stock Option Agreement" shall mean an agreement between the Company
and an Optionee under which the Optionee may purchase Stock hereunder, a sample
form of which is attached hereto as Exhibit A (which form may be varied by the
Committee in granting an Option).
"Subsidiary" shall mean any corporation (other than the Company) in an
unbroken chain of corporations beginning with the Company if, at the time of
the grant (or modification) of the Option, each of the corporations other than
the last corporation in the unbroken chain owns stock possessing 50% or more of
the total combined voting power of all classes of stock in one of the other
corporations in such chain.
ARTICLE II
THE PLAN
2.1 Name. This Plan shall be known as "ebank.com, Inc. 1998 Stock
Incentive Plan."
2.2 Purpose. The purpose of the Plan is to advance the interests
of the Company, its Subsidiaries, and its shareholders by affording Employees
and Directors of the Company and its Subsidiaries an opportunity to acquire or
increase their proprietary interests in the Company. The objective of the
issuance of the Options is to promote the growth and profitability of the
Company and its Subsidiaries because the Grantees will be provided with an
additional incentive to achieve the Company's objectives through participation
in its success and growth and by encouraging their continued association with
or service to the Company.
2.3 Effective Date. The Plan shall become effective on September
1, 1998; provided, however, that if the shareholders of the Company have not
approved the Plan on or prior to the first anniversary of such effective date,
then all options granted under the Plan shall be non-Incentive Stock Options.
If, at the time of any amendment to the Plan, shareholder approval is required
by the Code for Incentive Stock Options and such shareholder approval has not
been obtained (or is not obtained within 12 months thereof), any Incentive
Stock Options issued under the Plan shall automatically become options which do
not qualify as Incentive Stock Options.
4
<PAGE> 8
ARTICLE III
PARTICIPANTS
The class of persons eligible to participate in the Plan shall consist
of all Directors and Employees of the Company or any Subsidiary, provided that
the grant of any Option to a non-employee to whom an offer of employment has
been extended shall be conditioned upon that individual's acceptance of
employment.
ARTICLE IV
ADMINISTRATION
4.1 Duties and Powers of the Committee. The Plan shall be administered
by the Committee. The Committee shall select one of its members as its Chairman
and shall hold its meetings at such times and places as it may determine. The
Committee shall keep minutes of its meetings and shall make such rules and
regulations for the conduct of its business as it may deem necessary. The
Committee shall have the power to act by unanimous written consent in lieu of a
meeting, and to meet telephonically. In administering the Plan, the Committee's
actions and determinations shall be binding on all interested parties. The
Committee shall have the power to grant Options in accordance with the
provisions of the Plan and may grant Options singly, in combination, or in
tandem. Subject to the provisions of the Plan, the Committee shall have the
discretion and authority to determine those individuals to whom Options will be
granted, the number of shares of Stock subject to each Option, such other
matters as are specified herein, and any other terms and conditions of a Stock
Option Agreement. The Committee shall also have the discretion and authority to
delegate to any Officer its powers to grant Options under the Plan to any
person who is an Employee of the Company but not an Officer or Director. To the
extent not inconsistent with the provisions of the Plan, the Committee may give
a Grantee an election to surrender an Option in exchange for the grant of a new
Option, and shall have the authority to amend or modify an outstanding Stock
Option Agreement, or to waive any provision thereof, provided that the Grantee
consents to such action.
4.2 Interpretation; Rules. Subject to the express provisions of
the Plan, the Committee also shall have complete authority to interpret the
Plan, to prescribe, amend, and rescind rules and regulations relating to it, to
determine the details and provisions of each Stock Option Agreement, and to
make all other determinations necessary or advisable for the administration of
the Plan, including, without limitation, the amending or altering of the Plan
and any Options granted hereunder as may be required to comply with or to
conform to any federal, state, or local laws or regulations. If an option
granted under the Plan is intended to be an Incentive Stock Option but does not
qualify as an Incentive Stock Option for any reason, then the option granted
shall remain valid but shall be a non-Incentive Stock Option.
4.3 No Liability. Neither any member of the Board nor any member
of the Committee shall be liable to any person for any act or determination
made in good faith with respect to the Plan or any Option granted hereunder.
5
<PAGE> 9
4.4 Majority Rule. A majority of the members of the Committee
shall constitute a quorum, and any action taken by a majority at a meeting at
which a quorum is present, or any action taken without a meeting evidenced by a
writing executed by all the members of the Committee, shall constitute the
action of the Committee.
4.5 Company Assistance. The Company shall supply full and timely
information to the Committee on all matters relating to eligible persons, their
employment, death, retirement, disability, or other termination of employment,
and such other pertinent facts as the Committee may require. The Company shall
furnish the Committee with such clerical and other assistance as is necessary
in the performance of its duties.
ARTICLE V
SHARES OF STOCK SUBJECT TO PLAN
5.1 Limitations. Subject to any antidilution adjustment pursuant
to the provisions of Section 5.2 hereof, the maximum number of shares of Stock
that may be issued hereunder shall be 220,000. The number of shares of Stock
available for issuance hereunder shall automatically increase on the first
trading day each calendar year beginning January 1, 1999, by an amount equal to
3% of the shares of Stock outstanding on the trading day immediately preceding
January 1; but in no event shall any such annual increase exceed 75,000 shares
(subject to adjustment under Section 5.2) and, without the approval of the
Office of Thrift Supervision, in no event shall the total number of shares
available under the Plan exceed 15% of the number of outstanding shares of
Stock. Any or all shares of Stock subject to the Plan may be issued in any
combination of Incentive Stock Options or non-Incentive Stock Options, and the
amount of Stock subject to the Plan may be increased from time to time in
accordance with Article VIII, provided that the total number of shares of Stock
issuable pursuant to Incentive Stock Options may not be increased to more than
220,000 (other than pursuant to antidilution adjustments) without shareholder
approval. Shares subject to an Option may be either authorized and unissued
shares or shares issued and later acquired by the Company. The shares covered
by any unexercised portion of an Option that has terminated for any reason
(except as set forth in the following paragraph) may again be optioned under
the Plan, and such shares shall not be considered as having been optioned or
issued in computing the number of shares of Stock remaining available for
option hereunder.
If Options are issued in respect of options to acquire stock of any
entity acquired, by merger or otherwise, by the Company (or any Subsidiary of
the Company), to the extent that such issuance shall not be inconsistent with
the terms, limitations and conditions of Code section 422 or Rule 16b-3 under
the Exchange Act, the aggregate number of shares of Stock for which Options may
be granted hereunder shall automatically be increased by the number of shares
subject to the Options so issued; provided, however, that the aggregate number
of shares of Stock for which Options may be granted hereunder shall
automatically be decreased by the number of shares covered by any unexercised
portion of an Option so issued that has terminated for any reason, and the
shares subject to any such unexercised portion may not be optioned to any other
person.
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5.2 Antidilution.
(a) If (x) the outstanding shares of Stock are changed into
or exchanged for a different number or kind of shares or other securities of
the Company by reason of merger, consolidation, reorganization,
recapitalization, reclassification, combination or exchange of shares, or stock
split or stock dividend, (y) any spin-off, spin-out or other distribution of
assets materially affects the price of the Company's stock, or (z) there is any
assumption and conversion to the Plan by the Company of an acquired company's
outstanding option grants, then:
(i) the aggregate number and kind of shares of Stock
for which Options may be granted hereunder shall be adjusted
proportionately by the Committee; and
(ii) the rights of Optionees (concerning the number
of shares subject to Options and the Exercise Price) under outstanding
Options shall be adjusted proportionately by the Committee.
(b) If the Company shall be a party to any reorganization in
which it does not survive, involving merger, consolidation, or acquisition of
the stock or substantially all the assets of the Company, the Committee, in its
sole discretion, may (but is not required to):
(i) notwithstanding other provisions hereof, declare
that all Options granted under the Plan shall become exercisable
immediately notwithstanding the provisions of the respective Stock
Option Agreements regarding exercisability and that all such Options
shall terminate 30 days after the Committee gives written notice of
the immediate right to exercise all such Options and of the decision
to terminate all Options not exercised within such 30-day period;
and/or
(ii) notify all Grantees that all Options granted
under the Plan shall be assumed by the successor corporation or
substituted on an equitable basis with options issued by such
successor corporation.
(c) If the Company is to be liquidated or dissolved in
connection with a reorganization described in Section 5.2(b), the provisions of
such Section shall apply. In all other instances, the adoption of a plan of
dissolution or liquidation of the Company shall, notwithstanding other
provisions hereof, cause every Option outstanding under the Plan to terminate
to the extent not exercised prior to the adoption of the plan of dissolution or
liquidation by the shareholders.
(d) The adjustments described in paragraphs (a) through (c)
of this Section 5.2, and the manner of their application, shall be determined
solely by the Committee, and any such adjustment may provide for the
elimination of fractional share interests; provided, however, that any
adjustment made by the Board or the Committee shall be made in a manner that
will not cause an Incentive Stock Option to be other than an Incentive Stock
Option under applicable statutory and regulatory provisions. The adjustments
required under this Article V shall apply to
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<PAGE> 11
any successors of the Company and shall be made regardless of the number or
type of successive events requiring such adjustments.
ARTICLE VI
OPTIONS
6.1 Types of Options Granted. The Committee may, under this Plan,
grant either Incentive Stock Options or Options which do not qualify as
Incentive Stock Options. Within the limitations provided in this Plan, both
types of Options may be granted to the same person at the same time, or at
different times, under different terms and conditions, as long as the terms and
conditions of each Option are consistent with the provisions of the Plan.
Without limitation of the foregoing, Options may be granted subject to
conditions based on the financial performance of the Company or any other
factor the Committee deems relevant.
6.2 Option Grant and Agreement. Each Option granted hereunder
shall be evidenced by minutes of a meeting or the written consent of the
Committee and by a written Stock Option Agreement executed by the Company and
the Optionee. The terms of the Option, including the Option's duration, time or
times of exercise, exercise price, and whether the Option is intended to be an
Incentive Stock Option, shall be stated in the Stock Option Agreement. No
Incentive Stock Option may be granted more than ten years after the earlier to
occur of the effective date of the Plan or the date the Plan is approved by the
Company's shareholders. Separate Stock Option Agreements may be used for
Options intended to be Incentive Stock Options and those not so intended, but
any failure to use such separate agreements shall not invalidate, or otherwise
adversely affect the Optionee's interest in, the Options evidenced thereby.
6.3 Optionee Limitations. The Committee shall not grant an
Incentive Stock Option to any person who, at the time the Incentive Stock
Option is granted:
(a) is not an employee of the Company or any of its
Subsidiaries (as the term "employee" is defined by the Code); or
(b) owns or is considered to own stock possessing at least
10% of the total combined voting power of all classes of stock of the Company
or any of its Parent or Subsidiary corporations; provided, however, that this
limitation shall not apply if at the time an Incentive Stock Option is granted
the Exercise Price is at least 110% of the Fair Market Value of the Stock
subject to such Option and such Option by its terms would not be exercisable
after five years from the date on which the Option is granted. For the purpose
of this subsection (b), a person shall be considered to own: (i) the stock
owned, directly or indirectly, by or for his or her brothers and sisters
(whether by whole or half blood), spouse, ancestors and lineal descendants;
(ii) the stock owned, directly or indirectly, by or for a corporation,
partnership, estate, or trust in proportion to such person's stock interest,
partnership interest or beneficial interest therein; and (iii) the stock which
such person may purchase under any outstanding options of the Company or of any
Parent or Subsidiary.
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6.4 $100,000 Limitation. Except as provided below, the Committee
shall not grant an Incentive Stock Option to, or modify the exercise provisions
of outstanding Incentive Stock Options held by, any person who, at the time the
Incentive Stock Option is granted (or modified), would thereby receive or hold
any Incentive Stock Options of the Company and any Parent or Subsidiary, such
that the aggregate Fair Market Value (determined as of the respective dates of
grant or modification of each option) of the stock with respect to which such
Incentive Stock Options are exercisable for the first time during any calendar
year is in excess of $100,000 (or such other limit as may be prescribed by the
Code from time to time); provided that the foregoing restriction on
modification of outstanding Incentive Stock Options shall not preclude the
Committee from modifying an outstanding Incentive Stock Option if, as a result
of such modification and with the consent of the Optionee, such Option no
longer constitutes an Incentive Stock Option; and provided that, if the
$100,000 limitation (or such other limitation prescribed by the Code) described
in this Section 6.4 is exceeded, the Incentive Stock Option, the granting or
modification of which resulted in the exceeding of such limit, shall be treated
as an Incentive Stock Option up to the limitation and the excess shall be
treated as an Option not qualifying as an Incentive Stock Option.
6.5 Exercise Price. The Exercise Price of the Stock subject to
each Option shall be determined by the Committee. Subject to the provisions of
Section 6.3(b) hereof, the Exercise Price of an Incentive Stock Option or a
non-Incentive Stock Option shall not be less than the Fair Market Value of the
Stock as of the date the Option is granted (or in the case of an Incentive
Stock Option that is subsequently modified, on the date of such modification).
6.6 Exercise Period. The period for the exercise of each Option
granted hereunder shall be determined by the Committee, but the Stock Option
Agreement with respect to each Option intended to be an Incentive Stock Option
shall provide that such Option shall not be exercisable after the expiration of
ten years from the date of grant (or modification) of the Option.
6.7 Option Exercise.
(a) Unless otherwise provided in the Stock Option Agreement
or Section 6.6 hereof, an Option may be exercised at any time or from time to
time during the term of the Option as to any or all full shares which have
become Purchasable under the provisions of the Option, but not at any time as
to less than 100 shares unless the remaining shares that have become so
Purchasable are less than 100 shares. The Committee shall have the authority to
prescribe in any Stock Option Agreement that the Option may be exercised only
in accordance with a vesting schedule during the term of the Option. For so
long as required by the Office of Thrift Supervision, the Committee shall
prescribe a vesting period for each Option of no less than three years, which
may be subject to acceleration in the event of a Change in Control.
(b) An Option shall be exercised by (i) delivery to the
Company at its principal office a written notice of exercise with respect to a
specified number of shares of Stock and (ii) payment to the Company at that
office of the full amount of the Exercise Price for such number of shares in
accordance with Section 6.7(c). If requested by an Optionee, an Option may be
exercised with the involvement of a stockbroker in accordance with the federal
margin rules set
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forth in Regulation T (in which case the certificates representing the
underlying shares will be delivered by the Company directly to the
stockbroker).
(c) The Exercise Price is to be paid in full in cash
upon the exercise of the Option and the Company shall not be required to deliver
certificates for the shares purchased until such payment has been made;
provided, however, that in lieu of cash, in the Company's discretion all or any
portion of the Exercise Price may be paid by tendering to the Company shares of
Stock duly endorsed for transfer and owned by the Optionee, or by authorization
to the Company to withhold shares of Stock otherwise issuable upon exercise of
the Option, in each case to be credited against the Exercise Price at the Fair
Market Value of such shares on the date of exercise (however, no fractional
shares may be so transferred, and the Company shall not be obligated to make
any cash payments in consideration of any excess of the aggregate Fair Market
Value of shares transferred over the aggregate Exercise Price); provided
further, that the Board may provide in a Stock Option Agreement (or may
otherwise determine in its sole discretion at the time of exercise) that, in
lieu of cash or shares, all or a portion of the Exercise Price may be paid by
the Optionee's execution of a recourse note equal to the Exercise Price or
relevant portion thereof, subject to compliance with applicable state and
federal laws, rules and regulations. Notwithstanding the above, the Company
shall not be obligated to accept tender of shares of Stock as payment of the
Exercise Price if doing so would result in a charge to the Company's earnings
for financial reporting purposes.
(d) In addition to and at the time of payment of the
Exercise Price, the Optionee shall pay to the Company in cash the full amount
of any federal, state, and local income, employment, or other withholding taxes
applicable to the taxable income of such Optionee resulting from such exercise;
provided, however, that in the discretion of the Committee any Stock Option
Agreement may provide that all or any portion of such tax obligations, together
with additional taxes not exceeding the actual additional taxes to be owed by
the Optionee as a result of such exercise, may, upon the irrevocable election
of the Optionee, be paid by tendering to the Company whole shares of Stock duly
endorsed for transfer and owned by the Optionee, or by authorization to the
Company to withhold shares of Stock otherwise issuable upon exercise of the
Option, in either case in that number of shares having a Fair Market Value on
the date of exercise equal to the amount of such taxes thereby being paid, and
subject to such restrictions as to the approval and timing of any such election
as the Committee may from time to time determine to be necessary or appropriate
to satisfy the conditions of the exemption set forth in Rule 16b-3 under the
Exchange Act, if such rule is applicable.
(e) The holder of an Option shall not have any of the
rights of a shareholder with respect to the shares of Stock subject to the
Option until such shares have been issued and transferred to the Optionee upon
the exercise of the Option.
6.8 Nontransferability of Option. Other than as provided below,
no Option shall be transferable by an Optionee other than by will or the laws
of descent and distribution or, in the case of non-Incentive Stock Options,
pursuant to a Qualified Domestic Relations Order, and, during the lifetime of
an Optionee, Options shall be exercisable only by such Optionee (or by such
Optionee's guardian or legal representative, should one be appointed). However,
a non-Incentive Stock Option may, in connection with the Optionee's estate
plan, be assigned in whole or in part
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<PAGE> 14
during Optionee's lifetime to one or more members of the Optionee's immediate
family or to a trust established for the exclusive benefit of one or more such
family members. The assigned portion shall be exercisable only by the person or
persons who acquire a proprietary interest in the Option pursuant to such
assignment. The terms applicable to the assigned portion shall be the same as
those in effect for this Option immediately prior to such assignment and shall
be set forth in such documents issued to the assignee as the Committee may deem
appropriate.
6.9 Termination of Employment or Service. The Committee shall
have the power to specify, with respect to the Options granted to a particular
Optionee, the effect upon such Optionee's right to exercise an Option of
termination of such Optionee's employment or service under various
circumstances, which effect may include immediate or deferred termination of
such Optionee's rights under an Option; provided, however, that in no event may
an Incentive Stock Option be exercised after the expiration of ten years from
the date of grant thereof. Unless a Stock Option Agreement specifically
provides otherwise, in the event the recipient of an Option is terminated from
his or her employment or other service to the Company or its subsidiaries for
Cause, Options, whether vested or unvested, granted to such person shall
terminate immediately and shall not thereafter be exercisable.
6.10 Employment Rights. Nothing in the Plan or in any Stock Option
Agreement shall confer on any person any right to continue in the employ of the
Company or any of its Subsidiaries, or shall interfere in any way with the
right of the Company or any of its Subsidiaries to terminate such person's
employment at any time.
6.11 Certain Successor Options. To the extent not inconsistent
with the terms, limitations and conditions of Code section 422 and any
regulations promulgated with respect thereto, an Option issued in respect of an
option held by an employee to acquire stock of any entity acquired, by merger
or otherwise, by the Company (or any Subsidiary of the Company) may contain
terms that differ from those stated in this Article VI, but solely to the
extent necessary to preserve for any such employee the rights and benefits
contained in such predecessor option, or to satisfy the requirements of Code
section 424(a).
6.12 Effect of a Change in Control. All Options, to the extent
outstanding at the time of a Change in Control but not otherwise fully
exercisable, shall automatically accelerate so that the Options shall,
immediately prior to the effective date of the Change in Control, become
exercisable for all shares at the time subject to such Options and may be
exercised for any or all of those shares as fully vested shares of Stock.
ARTICLE VII
STOCK CERTIFICATES
The Company shall not be required to issue or deliver any certificate
for shares of Stock purchased upon the exercise of any Option granted hereunder
or any portion thereof prior to fulfillment of all of the following conditions:
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(a) The admission of such shares to listing on all stock
exchanges on which the Stock is then listed;
(b) The completion of any registration or other qualification of
such shares which the Committee shall deem necessary or advisable under any
federal or state law or under the rulings or regulations of the Securities and
Exchange Commission or any other governmental regulatory body;
(c) The obtaining of any approval or other clearance from any
federal or state governmental agency or body which the Committee shall
determine to be necessary or advisable; and
(d) The lapse of such reasonable period of time following the
exercise of the Option as the Board from time to time may establish for reasons
of administrative convenience.
Stock certificates issued and delivered to Grantees shall bear such
restrictive legends as the Company shall deem necessary or advisable pursuant
to applicable federal and state securities laws. The inability of the Company
to obtain approval from any regulatory body having authority deemed by the
Company to be necessary to the lawful issuance and sale of any Stock pursuant
to Options shall relieve the Company of any liability with respect to the
non-issuance or sale of the Stock as to which such approval shall not have been
obtained. However, the Company shall use its best efforts to obtain all such
approvals.
ARTICLE VIII
TERMINATION AND AMENDMENT
8.1 Termination and Amendment. The Board may at any time amend or
terminate the Plan; provided, however, that the Board (unless its actions are
approved or ratified by the shareholders of the Company within twelve months of
the date that the Board amends the Plan) may not amend the Plan to:
(a) Increase the total number of shares of Stock issuable
pursuant to Incentive Stock Options under the Plan, except as contemplated in
Section 5.2 hereof; or
(b) Change the class of employees eligible to receive
Incentive Stock Options that may participate in the Plan.
8.2 Effect on Grantee's Rights. No termination, amendment, or
modification of the Plan shall affect adversely a Grantee's rights under a
Stock Option Agreement without the consent of the Grantee or his legal
representative.
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ARTICLE IX
RELATIONSHIP TO OTHER COMPENSATION PLANS
The adoption of the Plan shall not affect any other stock option,
incentive, or other compensation plans in effect for the Company or any of its
Subsidiaries; nor shall the adoption of the Plan preclude the Company or any of
its Subsidiaries from establishing any other form of incentive or other
compensation plan for employees or Directors of the Company or any of its
Subsidiaries.
ARTICLE X
MISCELLANEOUS
10.1 Replacement or Amended Grants. At the sole discretion of the
Committee, and subject to the terms of the Plan, the Committee may modify
outstanding Options or accept the surrender of outstanding Options and grant
new Options in substitution for them. However no modification of an Option
shall adversely affect a Grantee's rights under a Stock Option Agreement
without the consent of the Grantee or his legal representative.
10.2 Forfeiture for Competition. If a Grantee provides services to
a competitor of the Company or any of its Subsidiaries, whether as an employee,
officer, director, independent contractor, consultant, agent, or otherwise,
such services being of a nature that can reasonably be expected to involve the
skills and experience used or developed by the Grantee while an Employee, then
that Grantee's rights under any Options outstanding hereunder shall be
forfeited and terminated, subject in each case to a determination to the
contrary by the Committee.
10.3 Leave of Absence. Unless provided otherwise in a particular
Stock Option Agreement, the following provisions shall apply upon an Optionee's
commencement of an authorized leave of absence:
(a) The exercise schedule in effect for such Option shall be
frozen as of the first day of the authorized leave, and the Option shall not
become exercisable for any additional installments of shares of Stock during
the period Optionee remains on such leave.
(b) Should the Optionee resume active Employee status within 60
days after the start date of the authorized leave, Optionee shall, for purposes
of the applicable exercise schedule, receive service credit for the entire
period of such leave. If the Optionee does not resume active Employee status
within such 60-day period, then no service credit shall be given for the entire
period of such leave.
(c) If the Option is an Incentive Stock Option, then the
following additional provision shall apply:
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If the leave of absence continues for more than
three months, then the Option shall automatically convert to a
non-Incentive Stock Option under the Federal tax laws upon the
expiration of such three-month period, unless the Optionee's
reemployment rights are guaranteed by statute or written agreement.
Following any such conversion of the Option, all subsequent exercises
of the Option, whether effected before or after Optionee's return to
active Employee status, shall result in an immediate taxable event,
and the Company shall be required to collect from Optionee the
Federal, state and local income and employment withholding taxes
applicable to such exercise.
(d) In no event shall the Option become exercisable for any
additional shares or otherwise remain outstanding if Optionee does not resume
Employee status prior to the Expiration Date of the option term.
10.4 Plan Binding on Successors. The Plan shall be binding upon
the successors and assigns of the Company.
10.5 Headings, etc., No Part of Plan. Headings of Articles and
Sections hereof are inserted for convenience and reference; they do not
constitute part of the Plan.
10.6 Section 16 Compliance. With respect to Section 16 Insiders,
transactions under this Plan are intended to comply with all applicable
conditions of Rule 16b-3 or its successors under the Exchange Act. To the
extent any provision of the Plan or action by the Committee fails to so comply,
it shall be deemed void to the extent permitted by law and deemed advisable by
the Committee. In addition, if necessary to comply with Rule 16b-3 with respect
to any grant of an Option hereunder, and in addition to any other vesting or
holding period specified hereunder or in an applicable Stock Option Agreement,
any Section 16 Insider acquiring an Option shall be required to hold either the
Option or the underlying shares of Stock obtained upon exercise of the Option
for a minimum of six months.
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EXHIBIT A to
ebank.com, Inc.
1998 Stock Incentive Plan -
Form of Stock Option Agreement
EBANK.COM, INC.
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT (this "Agreement"), entered into as of
this ____ day of _________ , ____ , by and between ebank.com, Inc., a Georgia
corporation (the "Company"), and _________________ (the "Optionee").
WHEREAS, on September 1, 1998, the Board of Directors of the Company
adopted a Stock Incentive Plan known as the "ebank.com, Inc. 1998 Stock
Incentive Plan" (the "Plan"), and recommended that the Plan be approved by the
Company's shareholders; and
WHEREAS, the Committee has granted the Optionee a stock option to
purchase the number of shares of the Company's common stock as set forth below,
and in consideration of the granting of that stock option the Optionee intends
to remain in the employ of the Company; and
WHEREAS, the Company and the Optionee desire to enter into a written
agreement with respect to such option in accordance with the Plan.
NOW, THEREFORE, as an employment incentive and to encourage stock
ownership, and also in consideration of the mutual covenants contained herein,
the parties hereto agree as follows.
1. Incorporation of Plan. This option is granted pursuant to the
provisions of the Plan and the terms and definitions of the Plan are
incorporated herein by reference and made a part hereof. A copy of the Plan has
been delivered to, and receipt is hereby acknowledged by, the Optionee.
2. Grant of Option. Subject to the terms, restrictions, limitations
and conditions stated herein, the Company hereby evidences its grant to the
Optionee, not in lieu of salary or other compensation, of the right and option
(the "Option") to purchase all or any part of the number of shares of the
Company's Common Stock, no par value per share (the "Stock"), set forth on
Schedule A attached hereto and incorporated herein by reference. The Option
shall be exercisable in the amounts and at the time specified on Schedule A.
The Option shall expire and shall not be exercisable on the date specified on
Schedule A or on such earlier date as determined pursuant to Section 8, 9, or
10 hereof. Schedule A states whether the Option is intended to be an Incentive
Stock Option.
3. Purchase Price. The price per share to be paid by the Optionee for
the shares subject to this Option (the "Exercise Price") shall be as specified
on Schedule A, which price
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shall be an amount not less than the Fair Market Value of a share of Stock as
of the Date of Grant (as defined below).
4. Exercise Terms. The Optionee must exercise the Option for at least
the lesser of 100 shares or the number of shares of Purchasable Stock as to
which the Option remains unexercised. In the event this Option is not exercised
with respect to all or any part of the shares subject to this Option prior to
its expiration, the shares with respect to which this Option was not exercised
shall no longer be subject to this Option.
5. Option Non-Transferable. Other than as provided below, no Option
shall be transferable by an Optionee other than by will or the laws of descent
and distribution or, in the case of non-Incentive Stock Options, pursuant to a
Qualified Domestic Relations Order, and, during the lifetime of an Optionee,
Options shall be exercisable only by such Optionee (or by such Optionee's
guardian or legal representative, should one be appointed). However, a
non-Incentive Stock Option may, in connection with the Optionee's estate plan,
be assigned in whole or in part during Optionee's lifetime to one or more
members of the Optionee's immediate family or to a trust established for the
exclusive benefit of one or more such family members. The assigned portion
shall be exercisable only by the person or persons who acquire a proprietary
interest in the Option pursuant to such assignment. The terms applicable to the
assigned portion shall be the same as those in effect for this Option
immediately prior to such assignment and shall be set forth in such documents
issued to the assignee as the Committee may deem appropriate.
6. Notice of Exercise of Option. This Option may be exercised by the
Optionee, or by the Optionee's administrators, executors or personal
representatives, by a written notice (in substantially the form of the Notice
of Exercise attached hereto as Schedule B) signed by the Optionee, or by such
administrators, executors or personal representatives, and delivered or mailed
to the Company as specified in Section 14 hereof to the attention of the
President, the Chief Operating Officer or such other officer as the Company may
designate. Any such notice shall (a) specify the number of shares of Stock
which the Optionee or the Optionee's administrators, executors or personal
representatives, as the case may be, then elects to purchase hereunder, (b)
contain such information as may be reasonably required pursuant to Section 12
hereof, and (c) be accompanied by (i) a certified or cashier's check payable to
the Company in payment of the total Exercise Price applicable to such shares as
provided herein, (ii) shares of Stock owned by the Optionee and duly endorsed
or accompanied by stock transfer powers having a Fair Market Value equal to the
total Exercise Price applicable to such shares purchased hereunder, or (iii) a
certified or cashier's check accompanied by the number of shares of Stock whose
Fair Market Value when added to the amount of the check equals the total
Exercise Price applicable to such shares purchased hereunder. Upon receipt of
any such notice and accompanying payment, and subject to the terms hereof, the
Company agrees to issue to the Optionee or the Optionee's administrators,
executors or personal representatives, as the case may be, stock certificates
for the number of shares specified in such notice registered in the name of the
person exercising this Option.
7. Adjustment in Option. The number of Shares subject to this Option,
the Exercise Price and other matters are subject to adjustment during the term
of this Option in accordance with Section 5.2 of the Plan.
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8. Termination of Employment.
(a) Except as otherwise specified in Schedule A hereto, in the event
of the termination of the Optionee's employment with the Company or any of its
Subsidiaries, other than a termination that is either (i) for Cause, (ii)
voluntary on the part of the Optionee and without written consent of the
Company, or (iii) for reasons of death or disability or retirement, the
Optionee may exercise this Option at any time within 30 days after such
termination to the extent of the number of shares which were Purchasable
hereunder at the date of such termination.
(b) Except as specified in Schedule A attached hereto, in the event of
a termination of the Optionee's employment that is either (i) for Cause or (ii)
voluntary on the part of the Optionee and without the written consent of the
Company, this Option, to the extent not previously exercised, shall terminate
immediately and shall not thereafter be or become exercisable.
(c) Unless and to the extent otherwise provided in Exhibit A hereto,
in the event of the retirement of the Optionee at the normal retirement date as
prescribed from time to time by the Company or any Subsidiary, the Optionee
shall continue to have the right to exercise any Options for shares which were
Purchasable at the date of the Optionee's retirement provided that, on the date
which is three months after the date of retirement, the Options will become
void and unexercisable unless on the date of retirement the Optionee enters
into a noncompete agreement with ebank.com, Inc. and continues to comply with
such noncompete agreement. This Option does not confer upon the Optionee any
right with respect to continuance of employment by the Company or by any of its
Subsidiaries. This Option shall not be affected by any change of employment so
long as the Optionee continues to be an employee of the Company or one of its
Subsidiaries.
9. Disabled Optionee. In the event of termination of employment
because of the Optionee's Permanent and Total Disability, the Optionee (or his
or her personal representative) may exercise this Option, within a period
ending on the earlier of (a) the last day of the one year period following the
Optionee's death or (b) the expiration date of this Option, to the extent of
the number of shares which were Purchasable hereunder at the date of such
termination.
10. Death of Optionee. Except as otherwise set forth in Schedule A
with respect to the rights of the Optionee upon termination of employment under
Section 8(a) above, in the event of the Optionee's death while employed by the
Company or any of its Subsidiaries or within three months after a termination
of such employment (if such termination was neither (i) for Cause nor (ii)
voluntary on the part of the Optionee and without the written consent of the
Company), the appropriate persons described in Section 6 hereof or persons to
whom all or a portion of this Option is transferred in accordance with Section
5 hereof may exercise this Option at any time within a period ending on the
earlier of (a) the last day of the one year period following the Optionee's
death or (b) the expiration date of this Option. If the Optionee was an
employee of the Company at the time of death, this Option may be so exercised
to the
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extent of the number of shares that were Purchasable hereunder at the date of
death. If the Optionee's employment terminated prior to his or her death, this
Option may be exercised only to the extent of the number of shares covered by
this Option which were Purchasable hereunder at the date of such termination.
11. Date of Grant. This Option was granted by the Committee on the
date set forth in Schedule A (the "Date of Grant").
12. Compliance with Regulatory Matters. The Optionee acknowledges that
the issuance of capital stock of the Company is subject to limitations imposed
by federal and state law and the Optionee hereby agrees that the Company shall
not be obligated to issue any shares of Stock upon exercise of this Option that
would cause the Company to violate law or any rule, regulation, order or
consent decree of any regulatory authority (including without limitation the
Securities and Exchange Commission) having jurisdiction over the affairs of the
Company. The Optionee agrees that he or she will provide the Company with such
information as is reasonably requested by the Company or its counsel to
determine whether the issuance of Stock complies with the provisions described
by this Section 12.
13. Restriction on Disposition of Shares. The shares purchased
pursuant to the exercise of an Incentive Stock Option shall not be transferred
by the Optionee except pursuant to the Optionee's will, or the laws of descent
and distribution, until such date which is the later of two years after the
grant of such Incentive Stock Option or one year after the transfer of the
shares to the Optionee pursuant to the exercise of such Incentive Stock Option.
14. Miscellaneous.
(a) This Agreement shall be binding upon the parties hereto and their
representatives, successors and assigns.
(b) This Agreement is executed and delivered in, and shall be governed
by the laws of, the State of Georgia.
(c) Any requests or notices to be given hereunder shall be deemed
given, and any elections or exercises to be made or accomplished shall be
deemed made or accomplished, upon actual delivery thereof to the designated
recipient, or three days after deposit thereof in the United States mail,
registered, return receipt requested and postage prepaid, addressed, if to the
Optionee, at the address set forth below and, if to the Company, to the
executive offices of the Company at 2410 Paces Ferry Road, Atlanta, Georgia
30309, or at such other addresses that the parties provide to each other in
accordance with the notice requirements hereof.
(d) This Agreement may not be modified except in writing executed by
each of the parties hereto.
IN WITNESS WHEREOF, the Committee has caused this Stock Option
Agreement to be executed on behalf of the Company, and the Optionee has
executed this Stock Option Agreement, all as of the day and year first above
written.
A-4
<PAGE> 22
EBANK.COM, INC. OPTIONEE
By:___________________________ ___________________________
Name: Name:
Title: Address:
A-5
<PAGE> 23
SCHEDULE A
TO
STOCK OPTION AGREEMENT
BETWEEN
EBANK.COM, INC.
AND
Dated: __________________
1. Number of Shares Subject to Option: _________________________ Shares.
2. This Option (Check one) [ ] is [ ] is not an Incentive Stock Option.
3. Option Exercise Price: $ ____________ per Share.
4. Date of Grant: ___________________
5. Option Vesting Schedule:
Check one:
( ) Options are exercisable with respect to all shares
on or after the date hereof
( ) Options are exercisable with respect to the number
of shares indicated below on or after the date
indicated next to the number of shares:
No. of Shares Vesting Date
<PAGE> 24
6. Option Exercise Period:
Check One:
( ) All options expire and are void unless exercised on
or before _______________, 19________.
( ) Options expire and are void unless exercised on or
before the date indicated next to the number of
shares:
No. of Shares Expiration Date
7. Effect of Termination of Employment of Optionee (if different from
that set forth in Sections 8 and 10 of the Stock Option Agreement):
<PAGE> 25
SCHEDULE B
NOTICE OF EXERCISE
The undersigned hereby notifies ebank.com, Inc. (the "Company") of
this election to exercise the undersigned's stock option to purchase shares of
the Company's common stock, no par value per share (the "Common Stock"),
pursuant to the Stock Option Agreement (the "Agreement") between the
undersigned and the Company dated _______________________, 19____. Accompanying
this Notice is (1) a certified or a cashier's check in the amount of $ payable
to the Company, and/or (2) _______________ shares of the Company's Common Stock
presently owned by the undersigned and duly endorsed or accompanied by stock
transfer powers, having an aggregate Fair Market Value (as defined in the
ebank.com, Inc. 1998 Stock Incentive Plan) as of the date hereof of
$________________, such amounts being equal, in the aggregate, to the purchase
price per share set forth in Section 3 of the Agreement multiplied by the
number of shares being purchased hereby (in each instance subject to
appropriate adjustment pursuant to Section 5.2 of the ebank.com, Inc. 1998
Stock Incentive Plan).
IN WITNESS WHEREOF, the undersigned has set his hand and seal, this
_______ day of__________________ ,____________ .
OPTIONEE [OR OPTIONEE'S ADMINISTRATOR,
EXECUTOR OR PERSONAL REPRESENTATIVE]
----------------------------------------
Name:
Position (if other than Optionee):
<PAGE> 26
FIRST AMENDMENT TO THE
EBANK.COM, INC.
1998 STOCK INCENTIVE PLAN
WHEREAS, the Board of Directors of ebank.com, Inc., a Georgia corporation
(the "Company") approved the 1998 Stock Incentive Plan (the "Plan") on
September 1, 1998, the Office of Thrift Supervision approved the Plan on
January 25, 1999, and the shareholders of the Company approved the Plan on May
3, 1999; and
WHEREAS, effective September 20, 1999, the Board of Directors approved the
following amendment to the Plan;
NOW, THEREFORE, the Plan is hereby amended as follows:
1. Amendment.
a. The first paragraph of Section 5.1 of the Plan is amended to
read as follows:
5.1 Limitations. The maximum number of shares that may be issued
hereunder shall initially be 220,000. The amount of Stock subject to the Plan
shall be increased as of September 20, 1999 and thereafter shall automatically
be increased each time the Company issues additional shares of Stock so that
the total number of shares issuable hereunder shall at all times equal 15% of
the then outstanding shares of Stock, unless in any case the Board of Directors
adopts a resolution providing that the number of shares issuable under this
Plan shall not be so increased. If for any reason the total number of shares
issuable under this Plan exceeds 15% of the then outstanding shares of Stock at
any time prior to August 17, 2001 (the third anniversary of the commencement of
operations of Commerce Bank), then the number of shares issuable under this
Plan shall automatically be reduced to equal 15% of the then outstanding shares
of Stock (but only to the extent the shares are not issuable pursuant to
outstanding Options), unless the Company obtains approval from the Office of
Thrift Supervision that such a reduction is not required. Notwithstanding the
above, the total number of shares of Stock issuable pursuant to Incentive Stock
Options may not be increased to more than 220,000 (other than pursuant to
antidilution adjustments) without shareholder approval. In addition, the number
of shares that may be issued hereunder shall be subject to any antidilution
adjustment pursuant to the provisions of Section 5.2 hereof. Any or all shares
of Stock subject to the Plan may be issued in any combination of Incentive
Stock Options or non-Incentive Stock Options. Shares subject to an Option may
be either authorized and unissued shares or shares issued and later acquired by
the Company. The shares covered by any unexercised portion of an Option that
has terminated for any reason (except as set forth in the following paragraph)
may again be optioned under the Plan, and such shares shall not be considered
as having been optioned or issued in computing the number of shares of Stock
remaining available for option hereunder.
<PAGE> 27
b. The first paragraph of Section 8.1 is amended to read as follows:
8.1 Termination and Amendment. The Board may at any time amend or
terminate the Plan; provided, however, that the Board (unless its actions
are approved or ratified by the shareholders of the Company within twelve
months of the date that the Board amends the Plan) may not amend the Plan
to:
2. Approval. Except as hereinabove amended and modified, the Plan is
approved, ratified, and affirmed without further modification or amendment.
IN WITNESS WHEREOF, the Company has caused this Amendment to be executed
as of September 20, 1999, in accordance with the authority provided by the
Board of Directors.
ebank.com, Inc.
By: /s/ Richard A. Parlontieri
-------------------------------------
Title: President
<PAGE> 1
EXHIBIT 5.1
LAW OFFICES
NELSON MULLINS RILEY & SCARBOROUGH, L.L.P.
A REGISTERED LIMITED LIABILITY PARTNERSHIP
NEIL E. GRAYSON 999 PEACHTREE STREET, N.E. OTHER OFFICES:
(404) 817-6113 FIRST UNION PLAZA CHARLESTON, SOUTH CAROLINA
INTERNET ADDRESS: SUITE 1400 CHARLOTTE, NORTH CAROLINA
[email protected] ATLANTA, GEORGIA 30309 COLUMBIA, SOUTH CAROLINA
TELEPHONE (404) 817-6000 GREENVILLE, SOUTH CAROLINA
FACSIMILE (404) 817-6050 MYRTLE BEACH, SOUTH CAROLINA
WWW.NMRS.COM --------
MUNICH, GERMANY
September 28, 1999
ebank.com, Inc.
2410 Paces Ferry Road
Suite 190
Atlanta, GA 30339
Ladies and Gentlemen:
We have acted as counsel to ebank.com, Inc. (the "Company") in connection
with the filing of a Registration Statement on Form S-8 (the "Registration
Statement") under the Securities Act of 1933, covering the offering of up to
230,000 shares (the "Shares") of the Company's common stock, par value $.01 per
share, which may be issued by the Company upon the exercise of stock options
under its 1998 Stock Incentive Plan. In connection therewith, we have examined
such corporate records, certificates of public officials and other documents and
records as we have considered necessary or proper for the purpose of this
opinion.
This opinion is limited by and is in accordance with the January 1, 1992,
edition of the Interpretive Standards applicable to Legal Opinions to Third
Parties in Corporate Transactions adopted by the Legal Opinion Committee of the
Corporate and Banking Law Section of the State Bar of Georgia.
Based on the foregoing, and having regard to legal considerations which we
deem relevant, we are of the opinion that the Shares, when issued and delivered
as described in the Registration Statement, will be legally issued, fully paid
and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
NELSON MULLINS RILEY & SCARBOROUGH, L.L.P.
/s/ Neil E. Grayson, Esq.
Neil E. Grayson, Esq.
