<PAGE> 1
As filed with the Securities and Exchange Commission on May 26, 1999
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
FLORIDA BANKS, INC.
- --------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
Florida 58-2364573
- --------------------------------- --------------------------------
(State or other jurisdiction (I.R.S. Employer Identification
of incorporation or organization) Number)
5210 Belfort Road, Suite 310, Jacksonville, Florida 32256
---------------------------------------------------------
(Address of Principal Executive Offices) (Zip Code)
EMPLOYEE STOCK PURCHASE PLAN
---------------------------------------------------------
(Full Title of the Plan)
Charles E. Hughes, Jr.
President and Chief Executive Officer
5210 Belfort Road, Suite 310
Jacksonville, Florida 32256
(904) 332-7770
--------------------------------------------
(Name, address, telephone number, including
area code, of agent for service)
---------------------------
Copies Requested to:
Robert C. Schwartz, Esq.
Smith, Gambrell & Russell, LLP
1230 Peachtree Street, N.E., Suite 3100
Atlanta, Georgia 30309
(404) 815-3758
---------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
====================================================================================================================================
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Per Aggregate Offering Amount of
to be Registered Registered Share(1) Price(1) Registration Fee
------------------- ------------ ------------------ ------------------ ----------------
<S> <C> <C> <C> <C>
Options and Shares of
$.01 par value 200,000 $9.3125 $1,862,500 $517.78
Common Stock Shares
====================================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) based upon the average of the high and low reported
prices of the Common Stock on the Nasdaq National Market System on May 24, 1999.
================================================================================
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The documents listed below are hereby incorporated by reference into
this Registration Statement, and all documents subsequently filed by the Company
pursuant to Section 13(a), 13(c), 14 and 15(d) of the Securities and Exchange
Act of 1934, prior to the filing of a post-effective amendment which indicates
that all securities offered have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be part hereof from the date of filing such
documents:
1. The Company's Annual Report on Form 10-K for the year ended December
31, 1998;
2. The Company's Quarterly Report on Form 10-Q for the quarter ended March
31, 1999; and
3. The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A as filed with the
Commission on July 24, 1998.
ITEM 4. DESCRIPTION OF SECURITIES.
No response is required to this item.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
No response is required to this item.
ITEM 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
As provided under Florida law, the Company's Articles of Incorporation
provide that a director shall not be personally liable to the Company or its
shareholders for monetary damages for breach of duty of care or any other duty
owed to the Company as a director if he acted in good faith and in a manner he
reasonably believed to be in the best interests of the Company and, with respect
to any criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful; except that such provision shall not eliminate or limit
the liability of a director (i) for a violation of the criminal law, unless the
director had reasonable cause to believe his conduct was lawful or had no
reasonable cause to believe his conduct was unlawful, (ii) for any transaction
from which the director derived an improper personal benefit, (iii) for unlawful
distributions to shareholders of the Company in violation of Section 607.06401
of the FBCA, or (iv) for willful misconduct or a conscious disregard for the
best interests of the Company in a proceeding by or in the right of the Company
to procure judgment in its favor or in a proceeding by or in the right of a
shareholder.
Article VI of the By-Laws provides that the Company shall indemnify a
director who has been successful in the defense of any proceeding to which he
was a party or in defense of any claim, issue or
II-1
<PAGE> 3
matter therein because he is or was a director of the Company, against
reasonable expenses incurred by him in connection with such defense.
The By-Laws also provide that the Company is required to indemnify any
director, officer, employee or agent made a party to a proceeding because he is
or was a director, employee or agent against liability incurred in the
proceeding if he acted in a manner he believed in good faith or to be in or not
opposed to the best interests of the Company and, in the case of any criminal
proceeding, he had no reasonable cause to believe his conduct was unlawful.
Determination concerning whether or not the applicable standard of conduct has
been met can be made by (a) a disinterested majority of the Board of Directors,
(b) a majority of a committee of disinterested directors, (c) independent legal
counsel, or (d) an affirmative vote of a majority of shares held by
disinterested stockholders. No indemnification may be made to or on behalf of a
director, officer, employee or agent in connection with a proceeding by or in
the right of the Company in which such person was adjudged liable to the
Company.
The Company maintains director and officer liability insurance.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 (the "Act") may be permitted to directors, officers or persons
controlling the Company pursuant to the foregoing provisions, the Company has
been informed that in the opinion of the Commission such indemnification is
against public policy as expressed in the Act and is therefore unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
No response to this item is required.
ITEM 8. EXHIBITS.
The following exhibits are filed with this Registration Statement.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
- ------- ----------------------
<S> <C>
5.1 Opinion of Smith, Gambrell & Russell, LLP.
10.1 Employee Stock Purchase Plan.
23.1 Consent of Deloitte & Touche, LLP.
23.2 Consent of Smith, Gambrell & Russell, LLP (contained in their opinion
filed as Exhibit 5.1).
24.1 Powers of Attorney (contained on the signature page to this
Registration Statement).
</TABLE>
II-2
<PAGE> 4
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement to include
any material information with respect to the plan of distribution not
previously disclosed in the Registration Statement or any material change
to such information in the Registration Statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's Annual Report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
Registration Statement shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of such securities
at the time shall be deemed to be the initial bona fide offering thereof.
(h) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
II-3
<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 Jacksonville, State of Florida, on the 23rd day of
April, 1999.
FLORIDA BANKS, INC.
By: /s/ Charles E. Hughes, Jr.
----------------------------------------
Charles E. Hughes, Jr.
President and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Charles E. Hughes, Jr. and T. Edwin Stinson, Jr.,
his true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution for him, in his name, place and stead, in any
and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, including a
Registration Statement filed under Rule 462(b) of the Securities Act of 1933, as
amended, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents 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 and to all intents and purposes as he might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact and agents 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 below by the following persons in the
capacities indicated and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ M.G. Sanchez Chairman of the Board April 23, 1999
- ------------------------------------------
M.G. Sanchez
/s/ Charles E. Hughes, Jr. President, Chief Executive April 23, 1999
- ------------------------------------------ Officer and Director (Principal
Charles E. Hughes, Jr. Executive Officer)
/s/ T. Edwin Stinson, Jr. Chief Financial Officer, Secretary April 23, 1999
- ------------------------------------------ and Treasurer and Director
T. Edwin Stinson, Jr. (Principal Accounting Officer)
</TABLE>
<PAGE> 6
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Nancy E. LaFoy Director April 23, 1999
- --------------------------
Nancy E. LaFoy
/s/ T. Stephen Johnson Director April 23, 1999
- ---------------------------
T. Stephen Johnson
Director _______, 1999
- ---------------------------
Clay M. Biddinger
/s/ P. Bruce Culpepper Director April 23, 1999
- ---------------------------
P. Bruce Culpepper
/s/ J. Malcolm Jones, Jr. Director April 23, 1999
- ---------------------------
J. Malcolm Jones, Jr.
/s/ W. Andrew Krusen Director April 23, 1999
- ---------------------------
W. Andrew Krusen
Director ________, 1999
- ---------------------------
Wilford C. Lyon, Jr.
/s/ David McIntosh Director April 23, 1999
- ---------------------------
David McIntosh
</TABLE>
<PAGE> 7
EXHIBIT INDEX
-------------
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
- ------ ----------------------
<S> <C>
5.1 Opinion of Smith, Gambrell & Russell, LLP.
10.1 Employee Stock Purchase Plan.
23.1 Consent of Deloitte & Touche, LLP.
</TABLE>
<PAGE> 1
EXHIBIT 5.1
SMITH, GAMBRELL & RUSSELL, LLP
ATTORNEYS AT LAW
Telephone SUITE 3100, PROMENADE II WEBSITE
(404) 815-3500 1230 PEACHTREE STREET, N.E. WWW.SGRLAW.COM
Facsimile ATLANTA, GEORGIA 30309-3592
(404) 815-3509
--------
ESTABLISHED 1893
March 17, 1999
Florida Banks, Inc.
4110 Southpoint Boulevard
Suite 212
Jacksonville, Florida 32216-0925
RE: Florida Banks, Inc.
Registration Statement on Form S-8
200,000 Shares of $.01 par value
Common Stock
Employee Stock Purchase Plan
-----------------------------
Ladies and Gentlemen:
We have acted as counsel for Florida Banks, Inc. (the "Company") in
connection with the registration of 200,000 shares of its $.01 par value Common
Stock (the "Shares") reserved to the Company's Employee Stock Purchase Plan, as
amended (the "Plan"), pursuant to a Registration Statement on Form S-8 (the
"Registration Statement") to be filed with the Securities and Exchange
Commission pursuant to the Securities Act of 1933, as amended, covering the
Shares.
In connection therewith, we have examined the following:
(1) The Articles of Incorporation of the Company, certified by the
Secretary of State of the State of Florida;
(2) The Bylaws of the Company, certified as complete and correct by the
Secretary of the Company;
(3) The minute book of the Company, certified as correct and complete by
the Secretary of the Company; and
<PAGE> 2
Florida Banks, Inc.
March 17, 1999
Page Two
(4) The Registration Statement, including all exhibits thereto.
Based upon such examination and upon examination of such other instruments
and records as we have deemed necessary, we are of the opinion that the Shares
covered by the Registration Statement have been legally authorized and when
issued in accordance with the terms described in said Registration Statement,
will be validly issued, fully paid and nonassessable.
We consent to the filing of this opinion as an exhibit to the
aforementioned Registration Statement on Form S-8 and to the reference to this
firm under the caption "Legal Matters" in the Prospectus. In giving this
consent, we do not thereby admit that we come within the category of persons
whose consent is required under Section 7 of the Securities Act of 1933, or the
rules and regulations of the Securities and Exchange Commission thereunder.
Sincerely,
SMITH, GAMBRELL & RUSSELL, LLP
/s/ Robert C. Schwartz
Robert C. Schwartz
<PAGE> 1
EXHIBIT 10.1
FLORIDA BANKS, INC.
EMPLOYEE STOCK PURCHASE PLAN
1. Purpose. The purpose of the Florida Banks, Inc. Employee Stock Purchase
Plan (the "Plan") is to encourage and enable eligible employees of Florida
Banks, Inc. (the "Company") and any of its subsidiaries to acquire
proprietary interests in the Company through the ownership of Common Stock
of the Company. The Company believes that employees who participate in the
Plan will have a closer identification with the Company by virtue of their
ability as stockholders to participate in the Company's growth and
earnings. It is the intention of the Company to have the Plan qualify as an
"employee stock purchase plan" under Section 423 of the Internal Revenue
Code of 1986, as amended (the "Code"). Accordingly, the provisions of the
Plan shall be construed so as to extend and limit participation in a manner
consistent with the requirements of that section of the Code.
2. Definitions. The following words or terms have the following meanings:
(a) "Plan" shall mean this Florida Banks, Inc. Employee Stock Purchase
Plan.
(b) "Company" shall mean Florida Banks, Inc., a Florida corporation.
(c) "Board of Directors" shall mean the Board of Directors of the Company
or the Executive Committee of such Board.
(d) "Shares," "Stock" or "Common Stock" shall mean shares of the $.01 par
value Common Stock of the Company.
(e) "Committee" shall mean the Stock Option Committee of the Board of
Directors of the Company.
(f) "Subsidiary" shall mean a subsidiary corporation as defined in Section
424(f) of the Code.
(g) "Eligible Employee" shall mean a person regularly employed by the
Company or a Subsidiary (or any predecessor) on the effective date of
any offering of stock pursuant to the Plan who has been employed by
the Company or a Subsidiary for at least 90 days and who has a
customary working schedule of at least 20 hours per week and five
months per calendar year; provided, however, that the Board of
Directors may exclude the employees of any specified Subsidiaries from
any offering under the Plan.
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<PAGE> 2
(h) "Offer Period" shall mean, with respect to any offering of Stock
hereunder, the period specified by the Board of Directors or the
Committee during which such offering is effective and outstanding.
(i) "Grant Date" shall mean the commencement date of the applicable Offer
Period.
(j) "Exercise Date" shall mean the termination date of the applicable Offer
Period.
(k) "Options" shall mean the right or rights granted to Eligible Employees
to purchase the Company's Common Stock under an offering made under
the Plan and pursuant to such Eligible Employees' elections to
participate in such offering.
(l) "Fair Market Value" shall mean the closing sales price of the Stock as
quoted on the over-the-counter market or, if the Stock is not on such
date listed on the over-the-counter market, on the principal market
in which such Stock is traded on such date; provided, however, that if
the Stock is not actively traded on any market which reports closing
sales prices, Fair Market Value shall mean the arithmetic mean of the
bid and asked prices for the Stock; provided further that if the Stock
is not traded, Fair Market Value shall be determined by the Committee.
(m) "Base Pay" shall mean, with respect to any Eligible Employee, the base
salary or wages of such Eligible Employee paid by the Company to the
Eligible Employee during the Base Pay Determination Period and
reported by the Company to the Eligible Employee as "regular
earnings."
(n) "Base Pay Determination Period" shall mean that period of time
immediately preceding the applicable Offer Period which includes the
same number of regular employee pay dates of the Company as will occur
during the applicable Offer Period.
3. Shares Reserved for Plan. The Shares of the Company's Common Stock to be
sold to Eligible Employees under the Plan may, at the election of the
Company, be either treasury shares or shares originally issued for such
purpose. The maximum number of Shares which shall be reserved and made
available for sale under the Plan shall be 200,000. The Shares reserved may
be issued and sold pursuant to one or more offerings under the Plan. With
respect to each offering, the Board of Directors, or the Committee, will
specify the number of Shares to be made available, the commencement date
and the termination date of the applicable Offer Period, and such other
terms and conditions not inconsistent with the Plan as may be necessary or
appropriate. In no event shall the Offer Period for any offering exceed 27
months from the date the option is granted.
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<PAGE> 3
In the event of a subdivision, combination or reclassification of the
Company's Shares, the maximum number of Shares which may thereafter be
issued and sold under the Plan and the number of Shares subject to options
to purchase at the time of such subdivision, combination or
reclassification will be proportionately increased or decreased, the terms
relating to the price at which Shares subject to options to purchase will
be sold will be appropriately adjusted, and such other action will be taken
as in the opinion of the Board of Directors is appropriate under the
circumstances.
4. Administration of the Plan. Except as otherwise provided herein, the Plan
shall be administered by the Committee. Subject to the provisions of
Paragraph 6, the Committee shall be vested with full authority to make,
administer and interpret such equitable rules and regulations regarding the
Plan as it may deem advisable. Except as otherwise provided herein, any
determination, decision or action of the Committee in connection with the
construction, interpretation, administration or application of the Plan
shall be final, conclusive and binding upon all Eligible Employees and any
and all persons claiming under or through an Eligible Employee.
The Committee may act by a majority vote at a regular or special
meeting of the Committee or by decision reduced to writing and signed by a
majority of the members of the Committee without holding a formal meeting.
Vacancies in the membership of the Committee shall be filled by the Board
of Directors.
The Committee may request that the management of the Company appoint a
"Plan Administrator" to carry out the administrative and ministerial
functions necessary to implement the determinations, decisions and actions
of the Committee with respect to any offering under the Plan.
5. Offerings. The Plan will be implemented by offerings made by the Company
from time to time as determined by the Committee, but in any event not more
than twelve times per year. Participation in any offering under the Plan
shall neither limit nor require participation in any other offering, except
that no employee may have more than one authorization for a payroll
deduction in effect simultaneously. No offering under this Plan shall run
concurrently with any other offering under this Plan.
6. Participation in the Plan. (a) Options to purchase the Company's Common
Stock under the Plan shall be granted only to Eligible Employees. With
respect to any offering under the Plan, options to purchase Shares shall be
granted to all Eligible Employees of the Company and its Subsidiaries
(other than any Subsidiary whose employees have been excluded from such
offering by the Board of Directors) who have elected to participate in such
offering as provided hereunder; provided, however, that the Board of
Directors may determine that any offering of Common Stock under the Plan
will not be extended to highly compensated employees (within the meaning of
Section 414(q) of the Code) of the Company or its Subsidiaries and provided
further that in no event may an employee be
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<PAGE> 4
granted an option under this Plan if such employee, immediately after the
option is granted, owns Stock possessing five percent or more of the total
combined voting power or value of all classes of capital stock of the
Company or any Subsidiary.
(b) For the purposes of determining stock ownership under this Paragraph 6,
the rules of Section 424(d) of the Code shall apply and Stock which the
employee may purchase under all outstanding options (whether or not granted
under this Plan) shall be treated as Stock owned by the employee. Any
decision relating to whether to include or exclude any highly compensated
employee of the Company pursuant to this Paragraph 6 shall be made only by
the Board of Directors or the Committee.
(c) An Eligible Employee may become a participant by completing the form
provided by the Company for such purpose in connection with the applicable
offering and filing it with the Plan Administrator (or such other person as
may be designated by the Company on such form) prior to the commencement
date of the applicable offering. In completing such form, the Eligible
Employee shall designate the method by which he will pay for the Shares
subject to his option by either authorizing a payroll deduction as provided
herein or electing to make a lump sum payment prior to the termination of
the applicable offering. An Eligible Employee may not elect both a payroll
deduction and a lump sum payment with respect to the same offering.
(d) With respect to any offer hereunder, each participating Eligible
Employee shall have the same rights and privileges subject to the
limitations set forth in Paragraph 10; provided, that the use of Base Pay
(which varies among Eligible Employees) as the basis for determining the
number of Shares for which an Eligible Employee may be granted an option
shall not be construed to create a difference in such rights and privileges
so long as each Eligible Employee has the right to elect the same
percentage of his Base Pay as a payroll deduction or a lump sum payment
under Paragraph 8.
7. Purchase Price. The purchase price for Shares purchased pursuant to the
Plan will be the lesser of (a) an amount equal to 85% of the Fair Market
Value of the Stock on the Grant Date, or if no Shares were traded on that
day, on the last day prior thereto on which Shares were traded; or (b) an
amount equal to 85% of the Fair Market Value of the Stock on the Exercise
Date, or if no Shares were traded on that day, on the last day prior
thereto on which Shares were traded.
8. Payroll Deductions and Lump Sum Payment. (a) If in the form filed
pursuant to Paragraph 6(c) a participant authorizes a payroll deduction,
such participant shall specify an amount which, in the aggregate during
such offering, is not less than 2 percent and not more than 20 percent of
his Base Pay which will be deducted from his pay in equal (or as nearly
equal as is practicable) installments on each payday during the time he is
a participant in such offering. Payroll deductions for a participant shall
commence on the commencement date of the offering to which the
authorization for a payroll deduction is
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<PAGE> 5
applicable and shall end on the termination date of such offering unless
sooner terminated by the participant as provided in Paragraph 13.
(b) If in the form filed pursuant to Paragraph 6(c) a participant elects to
make a lump sum payment, such participant shall specify an amount which is
not less than 2 percent and not more than 20 percent of his Base Pay which
such participant intends to pay to the Company in a lump sum prior to the
termination of the applicable offering in payment of the Shares subject to
his option.
(c) All payroll deductions made for a participant and all cash payments
made by a participant shall be credited to his account under the Plan.
Except as otherwise provided herein, a participant who has authorized
payroll deductions with respect to an offering may not make any separate
cash payment into such account with respect to such offering. A participant
who has elected to make a lump sum payment instead of payroll deductions
with respect to an offering may not make any cash payment with respect to
such offering other than a lump sum payment.
(d) If for any reason other than the termination of the participant's
employment subject to Paragraph 13(c), a participant who has authorized
payroll deductions with respect to an offering has no pay or his pay is
insufficient (after other authorized deductions) to permit deduction of his
scheduled payroll deductions hereunder during a portion of the Offer
Period, such participant may, prior to the termination of the applicable
Offer Period, make a lump sum payment for credit to his account in an
amount not greater than the aggregate of the scheduled payroll deductions
or portions thereof which were not made.
(e) A participant may discontinue his participation in the Plan as provided
in Paragraph 13, but no other change can be made during an offering and,
specifically, a participant may not alter the rate of his payroll
deductions for that offering and may not switch between the payroll
deduction and lump sum payment options.
9. Grants of Options. Subject to the limitations set forth below in this
Paragraph 9 or in Paragraph 10, each Eligible Employee participating in an
offering shall be granted an option to purchase a fixed maximum number of
Shares determined by the following procedure:
Step 1 - Determine (a) the aggregate amount which would be withheld
from the Eligible Employee's pay during the applicable Offer
Period in accordance with such Eligible Employee's
authorization for a payroll deduction or (b) the amount
specified by such Eligible Employee as the intended amount
of such Eligible Employee's lump sum payment, whichever is
applicable;
-5-
<PAGE> 6
Step 2 - Determine the figure which represents 85% of the Fair Market
Value on the Grant Date;
Step 3 - Divide the figure determined in Step 1 by the figure
determined in Step 2 and round off the quotient to the
nearest whole number. Subject to the limitations set forth
herein, this final figure shall be the fixed maximum number
of Shares for which the Eligible Employee may be granted an
option to purchase under the applicable offering.
In the event the total maximum number of Shares for which options would
otherwise be granted in accordance with this Paragraph 9 under any offering
hereunder exceeds the number of Shares offered, the Company shall allot the
Shares available among the Eligible Employees in such manner as it shall
determine, but generally pro rata, and shall grant options to purchase only for
a reduced number of Shares instead of the maximum number otherwise determined by
the procedure set forth above. In such event, the payroll deductions and the
amounts of the lump sum payments to be made pursuant to the authorizations
therefor shall be reduced accordingly and the Company shall give written notice
of such reduction to each employee affected thereby.
On the Grant Date each participating Eligible Employee shall be granted an
option to purchase the number of Shares determined under this Paragraph 9,
subject to the limitations set forth in Paragraph 10. Notice that an option has
been granted shall be given to each participating Eligible Employee and such
notice shall show the maximum number of Shares subject to such option and the
amount, if any, to be deducted from the Eligible Employee's pay for each payroll
period during the applicable Offer Period or the amount, if any, to be paid by
the Eligible Employee in a lump sum prior to the termination of the applicable
Offer Period, whichever is applicable.
All Shares included in any offering under the Plan in excess of the total
number of Shares for which options are granted hereunder and all Shares with
respect to which options granted hereunder are not exercised shall continue to
be reserved for the Plan and shall be available for inclusion in any subsequent
offering under the Plan.
10. Limitations Of Number Of Options Which May Be Granted And Shares Which May
Be Purchased. The following limitations shall apply with respect to the
number of Shares for which each Eligible Employee who elects to participate
in an offering under the Plan may be granted an option hereunder:
(1) No Eligible Employee may purchase Shares under any one offering
pursuant to the Plan for an aggregate purchase price in excess of 20%
of his Base Pay; and
(2) No Eligible Employee shall be granted an option to purchase Shares
under the Plan if such Eligible Employee immediately after such option
is granted, owns stock or
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<PAGE> 7
holds options to purchase stock possessing in the aggregate five
percent (5%) or more of the total combined voting power or value of
the capital stock of the Company or of any Subsidiary (under the rules
set forth in Section 424(d) of the Code); and
(3) No Eligible Employee may be granted an option to purchase Shares which
permits his right to purchase Stock under the Plan and all other stock
option plans of the Company and of any Subsidiary pursuant to Section
423 of the Code to accrue at a rate which exceeds in any one calendar
year $25,000 of the fair market value of such Stock (determined on the
Grant Date).
11. Exercise of Option. (a) Payroll Deductions. (1) Unless a
participant who has authorized payroll deductions with respect to the
applicable offering gives written notice to the Company as hereinafter
provided, his option to purchase Shares with payroll deductions made
during such offering will be exercised automatically for him on the
termination date of the applicable offering, for the purchase of the
number of whole Shares subject to such participant's option which the
accumulated payroll deductions and cash payments, if any, in his
account at that time will purchase at the applicable option price.
(2) By written notice to the Company not later than the day prior to the
termination date of the applicable offering, a participant who has
authorized payroll deductions may elect, effective on the termination date
of such offering, to:
(i) Withdraw all the accumulated payroll deductions and cash
payments, if any, in his account at the termination date; or
(ii) Exercise his option for a specified number of whole Shares less
than the number of whole Shares subject to such option which the
accumulated payroll deductions and cash payments, if any, in his
account at the termination date will purchase at the applicable
option price.
(b) Lump Sum Payments. (1) Unless a participant who has elected to make a
lump sum payment with respect to an offering and who has made such lump sum
payment (whether or not in the full amount specified by such participant on
the form filed pursuant to Paragraph 6(c)) with respect to the applicable
offering gives written notice to the Company as hereinafter provided, his
option to purchase Shares with such lump sum payment will be exercised
automatically for him on the termination date of the applicable offering,
for the purchase of the number of whole Shares subject to such
participant's option which the amount of such lump sum payment will
purchase at the applicable option price. Notwithstanding the terms of any
written notice given to the Company pursuant to Paragraph 11(b)(2), in the
event that a participant who has elected to make a lump sum payment with
respect to an offering has not made such lump sum payment (whether or not
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in the full amount specified by such participant on the form filed pursuant
to Paragraph 6(c)) prior to the termination date of such offering, his
option to purchase Shares under such offering will be canceled
automatically for him on the termination date of such offering.
(2) By written notice to the Company not later than the day prior to the
termination date of the applicable offering, a participant who has elected
to make a lump sum payment may elect, effective on the termination date of
such offering, to:
(i) Withdraw the full amount of the lump sum payment in his account
at the termination date; or
(ii) Exercise his option for a specified number of whole Shares less
than the number of whole Shares subject to such option which the
amount of the lump sum payment in his account at the termination
date will purchase at the applicable option price.
12. Delivery and Holding Period. As promptly as practicable after the
termination of each offering, the Company will deliver to each participant,
as appropriate, either the Shares purchased upon the exercise of his option
together with a cash payment equal to the balance without interest of any
payroll deductions and/or cash payments credited to his account during such
offering which were not used for the purchase of Shares, or (2) a cash
payment equal to the total of payroll deductions and/or cash payments
credited to his account together with interest on such payments computed as
specified hereunder. No Shares purchased upon the exercise of the option
may be sold, pledged, assigned, transferred or disposed of in any manner
otherwise than by will or by the laws of descent and distribution for a
period of six months following the Exercise Date of the Offer Period in
which such Shares were purchased.
13. Withdrawal. (a) A participant may withdraw payroll deductions and/or
cash payments credited to his account under the Plan at any time by giving
written notice to the Company. All of the participant's payroll deductions
and/or cash payments credited to his account will be paid to him promptly
after receipt of his notice of withdrawal, and no further payroll
deductions will be made from his pay except in accordance with an
authorization for a new payroll deduction filed with respect to a different
offering in accordance with Paragraph 6(c) and no additional cash
payment(s) will be accepted by the Company for the account of the
participant with respect to such offering.
(b) A participant's withdrawal will not have any effect upon his
eligibility to participate in a succeeding offering or in any similar plan
which may hereafter be adopted by the Company; provided, however, in the
event that a participant who is subject to Section 16 under the Securities
Exchange Act of 1934, as amended, gives notice of withdrawal from an
offering hereunder, or if any such participant who has elected to make a
lump sum
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payment hereunder fails to make such payment prior to termination of the
applicable offering, then such participant shall be prohibited from
participation in another offering under the Plan for a period of at least
six months from (i) the date such notice of withdrawal is delivered to the
Company or (ii) in case of a participant electing to make a lump sum
payment and not making such payment, the termination date of the offering.
(c) Upon termination of the participant's employment for any reason,
including retirement, the payroll deductions and/or cash payments credited
to his account will be returned to him, or, in the case of his death, to
the person or persons entitled thereto under Paragraph 15 and all options
granted to such participant hereunder and not previously exercised shall be
deemed canceled.
14. Interest. No interest will be payable on withholding accounts; provided,
however, that the Company may elect, at its sole discretion, to pay
interest on such withholding accounts at a market rate of interest, as
determined in good faith by the Board of Directors in its sole discretion.
15. Designation of Beneficiary. A participant may file a written designation
of a beneficiary who is to receive any Shares and cash to the participant's
credit under the Plan in the event of such participant's death prior to
delivery to him of such Shares and cash. Such designation of beneficiary
may be changed by the participant at any time by written notice. Upon the
death of a participant and upon receipt by the Company of proof of the
identity and existence at the participant's death of a beneficiary validly
designated by him under the Plan, the Company shall deliver such Shares and
cash to such beneficiary. In the event of the death of a participant and in
the absence of a beneficiary validly designated under the Plan who is
living at the time of such participant's death, the Company shall deliver
such Shares and cash to the executor or administrator of the estate of the
participant, or if no such executor or administrator has been appointed (to
the knowledge of the Company) the Company shall deliver such Shares and
cash to the applicable court having jurisdiction over the administration of
such estate. No designated beneficiary shall, prior to the death of the
participant by whom he has been designated, acquire any interest in the
Shares or cash credited to the participant under the Plan.
16. Rights As Shareholder. An Eligible Employee shall have no rights as a
shareholder with respect to Shares subject to an option until such option
has been exercised with respect to such Shares in connection with the terms
hereunder. A certificate for the Shares purchased will be issued as soon as
practicable after the termination of the applicable offering. Such Shares
will be registered in the name of the applicable Eligible Employee.
17. Options Not Transferable. Neither an Eligible Employee's options nor the
payroll deductions or cash payments credited to such Eligible Employee's
account may be sold, pledged, assigned or transferred in any manner
otherwise than by will or by the laws of descent and distribution, and
during the lifetime of the Eligible Employee, such options
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may only be exercised by him or her. If this provision is violated the
right of the Eligible Employee to exercise such options shall terminate and
the only right remaining hereunder with respect to such options and such
payroll deductions and cash payments will be to have paid over to the
person entitled thereto the amount then credited to the Eligible Employee's
account.
18. Application of Funds. All funds received by the Company pursuant to
payroll deductions or cash payments authorized or made in accordance with
the terms hereof and held by the Company at any time may be used for any
valid corporate purpose and will not be maintained in a segregated account.
Except as expressly provided herein, participants shall not be entitled to
earn interest on any such funds held by the Company hereunder. Until paid
over to the applicable Eligible Employee or used to purchase Shares as
provided hereunder, the amount of each Eligible Employee's payroll
deductions and cash payments in connection with any applicable offering
shall represent an indebtedness of the Company to such Eligible Employee.
19. Governmental Approvals or Consents. The Plan shall not be effective unless
it is approved by the stockholders of the Company within 12 months after
the Plan is adopted by the Board of Directors of the Company. The Plan and
any offerings and sales to Eligible Employees under it are subject to any
governmental approvals or consents that may be or become applicable in
connection therewith. The Board of Directors of the Company may make such
changes in the Plan and include such terms in any offering under the Plan
as may be necessary or desirable, in the opinion of counsel, so that the
Plan will comply with the rules and regulations of any governmental
authority and so that Eligible Employees participating in the Plan will be
eligible for tax benefits under the Code or the laws of any state.
20. Amendment or Termination. The Board of Directors of the Company may at any
time terminate or amend the Plan. No such termination shall affect options
previously granted, nor may an amendment make any change in any option
theretofore granted which would adversely affect the rights of any
participant nor may an amendment be made without prior approval of the
stockholders of the Company if such amendment would:
(1) Increase the maximum number of shares authorized under Paragraph 3 for
sale under the Plan otherwise than as required to reflect a
subdivision, a combination or a reclassification as provided in
Paragraph 3 hereof; or
(2) Change the designation of corporations whose employees are eligible to
participate in the Plan; provided that the exclusion from an offering
of the employees of a Subsidiary of the Company at the direction of
the Committee shall not constitute such an amendment requiring
shareholder approval.
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21. Notices. All notices or other communications by a participant to the
Company under or in connection with the Plan shall be deemed to have been
duly given when received by the Chief Financial Officer of the Company or
when received in the form specified by the Company at the location, or by
the person, designated by the Company for the receipt thereof.
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EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of Florida Banks, Inc. on Form S-8 of our report dated January 29, 1999
appearing in the Annual Report on Form 10-K of Florida Banks, Inc. for the year
ended December 31, 1998. We also consent to the reference to us under the
caption "Experts" in the Prospectus.
/s/ Deloitte & Touche LLP
Jacksonville, Florida
May 26, 1999