<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 3, 1999.
REGISTRATION NO. 333-_______
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
________________________
Form SB-2
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
________________________
UNITED AMERICAS BANKSHARES, INC.
(Name of Small Business Issuer in its Charter)
GEORGIA 6021 58-2399917
(State or other (Primary Standard Industrial (I.R.S. Employer
jurisdiction of Classification Code Number) Identification
incorporation or No.)
organization)
3789 Roswell Road, Atlanta, Georgia 30342 (404) 240-0101
(Address and telephone number of principal executive offices
and principal place of business)
________________________
Vincent D. Cater
United Americas Bankshares, Inc.
3789 Roswell Road
Atlanta, Georgia 30342
(404) 240-0101
(Name, address, and telephone number of agent for service)
COPIES TO:
F. Sheffield Hale, Esq.
Kilpatrick Stockton LLP
1100 Peachtree Street, N.E., Suite 2800
Atlanta, Georgia 30309
(404) 815-6500
Approximate date of proposed sale to the public: as soon as
practicable after this Registration Statement has become effective.
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please
check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for
the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule
462(d) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If the delivery of the prospectus is expected to be made pursuant
to Rule 434, please check the following box. [ ]
_______________________________________________________
<PAGE>
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
============================================================================================================================
TITLE OF EACH PROPOSED MAXIMUM AGGREGATE
CLASS OF SECURITIES AMOUNT TO BE OFFERING PRICE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED PER UNIT<F1> PRICE <F1> REGISTRATION FEE
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
common stock, no par value 1,200,000 Shares $10.00 $12,000,000 $3,336.00
============================================================================================================================
<FN>
<F1> Estimated solely for the purpose of calculating the registration
fee in accordance with Rule 457 under the Securities Act of 1933, as
amended.
</FN>
</TABLE>
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH
DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL
THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY
STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME
EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE SECURITIES ACT OF
1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON
SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SECTION 8(A), MAY
DETERMINE.
<PAGE>
<PAGE>
THE INFORMATION CONTAINED IN THIS PROSPECTUS IS NOT COMPLETE
AND MAY BE CHANGED. WE MAY NOT SELL THESE SECURITIES UNTIL THE
REGISTRATION STATEMENT FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER TO SELL
THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION, DATED MAY 3, 1999
1,200,000 SHARES
UNITED AMERICAS BANKSHARES, INC.
A Proposed Bank Holding Company for
UNITED AMERICAS BANK, N.A. (IN ORGANIZATION)
COMMON STOCK
________________________
United Americas Bankshares, Inc. is offering shares of our common
stock to organize United Americas Bank, N.A., a proposed national
bank. We will be the holding company and sole shareholder of United
Americas Bank after it is organized. Prior to this offering, there
has been no public market for the shares and we do not believe that
this offering will cause one to develop. We do not have any plans to
list the stock on any exchange or Nasdaq.
Per Share Total
--------- -----
Public Price $10.00 $12,000,000
Sales Fee $ .33 $ 400,000
------ -----------
Proceeds to Us $ 9.67 $11,600,000
AN INVESTMENT IN SHARES OF OUR COMMON STOCK INVOLVES SIGNIFICANT
RISK. WE URGE YOU TO READ CAREFULLY THE "RISK FACTORS" SECTION
BEGINNING ON PAGE 6, ALONG WITH THE REST OF THIS PROSPECTUS, BEFORE
YOU MAKE YOUR INVESTMENT DECISION.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE
SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES
OR DETERMINED IF THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
PLEASE NOTE THAT THESE SECURITIES:
* ARE NOT BANK ACCOUNTS OR DEPOSITS;
* ARE NOT FEDERALLY INSURED BY THE FDIC; AND
* ARE NOT INSURED BY ANY OTHER STATE OR FEDERAL AGENCY.
FOR PENNSYLVANIA RESIDENTS:
EACH PERSON WHO ACCEPTS AN OFFER TO PURCHASE SECURITIES EXEMPTED FROM
REGISTRATION BY SECTION 203(D), DIRECTLY FROM THE ISSUER OR AN
AFFILIATE OF THE ISSUER, SHALL HAVE THE RIGHT TO WITHDRAW HIS
ACCEPTANCE WITHOUT INCURRING ANY LIABILITY TO SELLER, UNDERWRITER (IF
ANY) OR ANY OTHER PERSON WITHIN 2 BUSINESS DAYS FROM THE DATE OF
RECEIPT BY THE ISSUER OF HIS WRITTEN BINDING CONTRACT OF PURCHASE OR,
IN THE CASE OF A TRANSACTION IN WHICH THERE IS NO BINDING CONTRACT OF
PURCHASE, WITHIN 2 BUSINESS DAYS AFTER HE MAKES THE INITIAL PAYMENT
FOR THE SECURITIES BEING OFFERED.
Some of our executive officers will sell our shares, but they
will not receive commissions on the sales. The shares of common stock
also are being offered by GMA Partners, Inc. in their capacity as a
sales agent in exchange for commissions. This offering is not being
underwritten and any sales are being made exclusively on a best
efforts basis. Proceeds will be mailed to, or we will promptly
deposit subscription proceeds in, an escrow account with our escrow
agent, The Bankers Bank, Atlanta, Georgia. The escrow agent will hold
the subscription proceeds until we receive subscriptions for at least
1,200,000 shares of common stock and the Board of Governors of the
Federal Reserve System and the Georgia Department of Banking and
Finance have approved United Americas Bankshares' application to
become a bank holding company. We plan to end the offering on [60
days after date of the final prospectus], 1999, unless we decide to
end it sooner or extend it to [180 days after end of initial offering
period], 1999. If we are unable to sell 1,200,000 shares of common
stock, the escrow agent will promptly return all subscription proceeds
to investors, with interest.
ACTING AS SALES AGENT: GMA PARTNERS, INC.
The date of this prospectus is ______ __, 1999.
<PAGE>
<PAGE>
SUMMARY INFORMATION
This summary highlights information contained elsewhere in this
prospectus. This summary is not complete and does not contain all the
information you should consider before investing in the common stock.
You should read carefully the entire prospectus.
IN GENERAL
- ----------
United Americas Bankshares is a Georgia corporation that was
incorporated on May 14, 1998 to organize and serve as the holding
company for United Americas Bank, a proposed national bank. United
Americas Bank has filed the necessary applications with the agencies
that will regulate it. Assuming this offering is successful, we
currently anticipate commencing operations from our primary facility
at 3789 Roswell Road, Atlanta, Georgia 30342 in the third quarter of
1999. On February 22, 1999, the Comptroller of the Currency granted
preliminary approval for United Americas Bank's charter. On March 29,
1999, United Americas Bank received preliminary approval to offer
deposit accounts insured by the FDIC. At the time of its opening,
United Americas Bank will be the only bank in Georgia organized
specifically to provide specialized customer service to Hispanics and
to the growing number of companies doing business in Latin America.
We anticipate that United Americas Bank will also provide standard
banking services to the general community. It will operate as a
community bank emphasizing prompt, personalized customer service to
individuals and businesses in the Atlanta market, which includes the
City of Atlanta and portions of the surrounding Georgia counties of
Fulton, Cobb, DeKalb, and Gwinnett. In our application filed with the
Comptroller of the Currency, we identified our goal to open two branch
facilities located in north metropolitan Atlanta, near Hispanic
economic centers, within 120 days of commencing operations. Although
the Comptroller of the Currency has granted preliminary approval for
our charter, we will need to apply for and obtain additional approval
before we open these branches.
MARKET OPPORTUNITY
- ------------------
We believe that Atlanta's expanding economy will support the
formation of United Americas Bank. Sources are not consistent and
vary significantly in their estimates of Georgia's Hispanic
population. The Selig Center for Economic Growth at the Terry College
of Business at the University of Georgia, which we believe to be a
relatively conservative source, estimates that the population of the
Hispanic community in Georgia will grow approximately 95% during the
1990's. Total population growth during the same period is estimated
to be 19% for Georgia and 9% for the United States. Hispanic buying
power in Georgia is expected to grow 170% to $3.7 billion in 1999 from
$1.4 billion in 1990. This growth would make Georgia the 5th fastest
growing state for Hispanic buying power and would be greater than the
expected 72% growth in buying power for Georgia, the 57% growth in
buying power for the United States, and the 29% increase in the U.S.
Consumer Price Index during the same nine-year period. The U.S.
Department of Commerce reported that merchandising exports to Mexico
from Georgia grew 112% from $324 million in 1993 to $686 million in
1997. Total exports from Georgia to Latin America in 1997 were
approximately $3 billion. We believe these figures demonstrate that
Hispanics represent a growing, financially viable market presence with
potential banking assets.
United Americas Bank will focus on three population segments
which we believe are currently under-served in the Atlanta market: the
Hispanic community, the individuals and businesses in the Atlanta area
who prefer community-oriented banking, and the small to medium-sized
businesses engaging in international commerce. We believe that
opportunities exist for community banks to capture both existing and
new banking relationships because of bank consolidation in the Atlanta
-2-<PAGE>
<PAGE>
market. This is particularly true with respect to middle-market
corporate customers who are especially sensitive to service issues.
In addition, there is a growing Hispanic community within the
expanding Atlanta market. Although more financial institutions are
providing services in Spanish, no bank has been established in the
Atlanta market specifically to serve the financial needs of the
Hispanic community. We believe that United Americas Bank will attract
many of these individuals and businesses through directed marketing in
both Spanish and English as well as products and services tailored to
the needs of Hispanics. Our goal is to have a higher concentration
than our competitors of employees who are fluent in both Spanish and
English. Our bilingual approach should help to attract more business
from customers who have often not trusted or otherwise felt
uncomfortable with existing financial institutions.
We also believe that an attractive opportunity exists in the
Atlanta market to provide certain types of international banking
services to small and medium-sized businesses. We believe these
businesses are often inadequately served, due to the smaller size of
their transactions, by the large regional and super-regional banks.
Many community banks cannot adequately address these international
needs because they lack international business expertise and products.
We believe that United Americas Bank will be able to provide banking
services to many international businesses, especially those Hispanic
businesses that conduct some portion of their business in the
international market, particularly in Latin America.
DIRECTORS AND OFFICERS
- ----------------------
The Chairman of our Board of Directors is Salvador Diaz-Verson,
Jr. Mr. Diaz-Verson served as President of American Family Corporation
(also known as AFLAC Insurance) and was on the Board of Directors of Synovus
Financial Corporation. He currently serves as the Chairman and President of
Diaz-Verson Capital Investments, Inc., as the Chairman of Atlanta's Hispanic
Chamber of Commerce and as a member of the Board of Directors of Regions Bank,
Columbus. Our Vice Chairman of the Board is Alex E. Suarez, who is a Vice
President of BT Alex. Brown Incorporated covering Latin America. Mr. Suarez
has eight years of banking experience in Georgia. Our Board of Directors
consists of ten organizers, nine of whom will also be the directors of United
Americas Bank. All of the directors are leaders in Atlanta's Hispanic
business community and intend to utilize their diverse backgrounds and
extensive local business relationships to attract customers from the Hispanic
and international communities. In addition, we have formed an Advisory Board
that will be initially comprised of at least twelve prominent Hispanics who
have significant ties to Georgia. We expect the Advisory Board to be a
valuable source of business leads and support. The directors and executive
officers intend to purchase approximately 193,000 shares of common stock,
representing an amount approximately equal to 16% of the shares of stock to
be outstanding after this offering. We anticipate that the Advisory Board
will purchase in the aggregate a percentage of the common stock which could
equal or exceed the amount purchased by our directors and executive officers.
The directors' financial interest in United Americas Bankshares is intended to
align their interests with those of the shareholders. See "Management"
(page 29).
Our management team includes individuals who have significant
experience in the banking industry and are members of the Hispanic and
international communities in the Southeast United States. Vincent D.
Cater will serve as President and Chief Executive Officer of United
Americas Bankshares and United Americas Bank. Mr. Cater has over 30
-3-<PAGE>
<PAGE>
years of experience in domestic and Latin American banking. Jorge L.
Forment will serve as Chief Financial Officer of United Americas
Bankshares and United Americas Bank, subject to approval by the
Comptroller of the Currency. Mr. Forment has 20 years of banking
experience, including nine years with Etowah Bank, a community bank in
Canton, Georgia, where he served as Senior Vice President and Chief
Financial Officer. Both Mr. Cater and Mr. Forment are fluent in
Spanish and English.
BUSINESS GOAL AND STRATEGIES
- ----------------------------
Our goal is to build and maximize shareholder value over the next
few years by aggressively marketing to the Hispanic and international
banking markets in Atlanta. We believe that a substantial number of
bank customers prefer to do business with a local institution that
demonstrates a better understanding of the community and can offer
more personalized services. Our strategies are to:
Growth Strategy:
---------------
* Position ourselves as an Hispanic-oriented bank in the
Atlanta market and provide products and services of
particular need to Hispanic customers.
* Hire employees proficient in both Spanish and English with
established customer relationships.
* Position ourselves as a community-oriented bank serving the
Atlanta market.
* Position ourselves as a bank focused on serving the
international needs of small to medium-sized businesses.
* Open additional branch offices in north metropolitan Atlanta
and other strategic locations as appropriate.
* Capitalize on opportunities provided to minority-owned
companies that are not available to other community banks
that are not minority controlled.
* Evaluate strategic acquisition opportunities on an ongoing
basis.
Operating Strategy:
------------------
* Provide individual attention and first-class services to
individuals and businesses in the Atlanta market.
* Utilize technology and strategic outsourcing to provide a
broad array of banking products and services, and to
expand our ability to provide products and services to
customers outside of the Atlanta market.
* Establish a community identity.
* Capitalize on the directors', advisors' and officers'
involvement in the Atlanta, Hispanic, and international
communities and their business experience.
* Provide international banking services to small and medium-
sized businesses.
* Provide directors, managers, and employees fluent in both
Spanish and English to serve those members of the
Hispanic and international community with language
barriers, which will differentiate us from other
institutions that have few employees fluent in Spanish
and English, particularly in senior management.
-4-<PAGE>
<PAGE>
PRODUCTS AND SERVICES
- ---------------------
We plan to offer our products and services through high quality,
personalized delivery systems while providing our customers with the
financial sophistication and array of products typically offered by a
larger bank. United Americas Bank's lending services will include
consumer loans to individuals, commercial loans to small and medium-
sized businesses and professional concerns, and real estate related
loans. United Americas Bank will offer a broad array of competitively
priced deposit services including demand deposits, regular savings
accounts, money market deposits, certificates of deposit, and
individual retirement accounts. To complement our lending and deposit
services, we will also provide cash management services, safe-deposit
boxes, travelers' checks, direct deposit, automatic drafts, and
courier services to commercial customers. We plan to provide
international banking services, including financing through The
Export-Import Bank of the United States, letters of credit,
documentary collections, foreign exchange, funds transfers, and trade
financing. We will offer specialized private banking services to
domestic and international individuals and corporations with business
operations in Atlanta. We intend to offer our services through a
variety of delivery systems including branch offices, automated teller
machines, telephone banking, and the Internet/World Wide Web.
EXECUTIVE OFFICES
- -----------------
Our principal executive offices will be located at 3789 Roswell
Road, Atlanta, Georgia 30342. Our telephone number is (404) 240-0101.
THE OFFERING
- ------------
Common stock offered . . . . 1,200,000 shares of United Americas Bankshares
common stock
Common stock to be outstanding
after the offering . . . . . 1,200,000 shares
Offering price . . . . . . . $10.00 per share
Use of proceeds . . . . . . . To capitalize United Americas Bank, to pay
organizational, offering, and pre-opening
expenses, to purchase United Americas Bank's
main office, and to provide working capital
for United Americas Bank to be used for
business purposes, including making loans
and other investments. See "Use of
Proceeds" (page 13).
The number of shares of common stock offered does not include up
to 190,000 shares of common stock issuable upon the exercise of
warrants issued to the organizers or 50,000 shares of common stock
issuable pursuant to options that have been or may be granted under
our stock incentive plan to our employees. See "Executive
Compensation" (page 36). The number of shares of common stock offered
also does not include 20 shares of common stock issued to facilitate
our organization to be redeemed at their original total cost of
$200.00 simultaneous with the closing of this offering.
-5-<PAGE>
<PAGE>
RISK FACTORS
An investment in the common stock involves a significant degree
of risk. You should not invest in the common stock unless you can
afford to lose your entire investment. You should consider carefully
the following risk factors and other information in this prospectus
before deciding to invest in the common stock.
The following paragraphs describe material risks of an investment
in the common stock. You should also carefully read the cautionary
statement following the Risk Factors regarding the use of forward-
looking statements.
WE HAVE NO OPERATING HISTORY UPON WHICH TO BASE OUR FUTURE EARNINGS PROSPECTS
- -----------------------------------------------------------------------------
Neither we nor United Americas Bank has any operating history on
which to base any estimate of our future earning prospects. We were
only recently formed, and United Americas Bank will not receive final
approval from the Office of the Comptroller of the Currency to begin
operations until after this offering is completed. We also will not
receive final approval from the FDIC to offer federally insured
deposits or the Board of Governors of the Federal Reserve System and
the Georgia Department of Banking and Finance to permit United
Americas Bank to be acquired by us until after this offering is
completed. Consequently, you will not have access to historical
information that would be helpful in deciding whether to invest in us.
YOU MAY NOT RECOVER ALL OR ANY PART OF YOUR INVESTMENT IF WE DO NOT
BECOME PROFITABLE
- --------------------------------------------------------------------
Typically, most new banks incur substantial start-up expenses,
are not profitable in the first year of operation, and, in some cases,
are not profitable for several years. If we are ultimately
unsuccessful, you may not recover all or any part of your investment
in the common stock. Additionally, many of United Americas Bank's
loans initially will be new loans to customers who are new to United
Americas Bank. Accordingly, it will take several years to determine
the borrowers' payment histories and, as a result, management will not
be able to evaluate reliably the quality of United Americas Bank's
loan portfolio until that time. Our profitability will depend on
United Americas Bank's profitability, and we cannot assure that United
Americas Bank will ever operate profitably. See "Management's
Discussion and Analysis of Financial Condition and Plan of Operations"
(page 15).
FAILURE TO IMPLEMENT OUR BUSINESS STRATEGIES MAY ADVERSELY AFFECT OUR
FINANCIAL PERFORMANCE
- ----------------------------------------------------------------------
Our strategy includes hiring and retaining experienced, qualified
employees, many of whom are fluent in both Spanish and English, and
opening two branch offices within the first 120 days of operation. If
we cannot hire or retain qualified employees, are unable to open new
branches, or otherwise cannot implement our business strategy, we will
be restricted in our ability to develop business and serve our
customers, which could have an adverse effect on our financial
performance. Even if these strategies are successfully implemented,
they may not have the favorable impact on operations that we
anticipate. See "Proposed Business of United Americas Bankshares and
United Americas Bank -- Business Strategy" (page 20).
-6-<PAGE>
<PAGE>
DEPARTURES OF OUR KEY PERSONNEL OR DIRECTORS MAY HAVE AN ADVERSE
EFFECT ON OUR OPERATIONS
- ----------------------------------------------------------------
To a large extent, our success will depend on the continued
services of our executive officers and directors. Our proposed
business could be materially adversely affected if we lost the
services of these individuals. Vincent D. Cater has been instrumental
in our organization and will be the key management official in charge
of daily business operations. We have entered into an employment
agreement with Mr. Cater, but cannot be assured of his continued
service. Additionally, our directors' community involvement, Hispanic
backgrounds and local business relationships are important to our
success. If the composition of our Board of Directors changes
materially, our growth could be adversely affected. See "Management"
(page 29).
WE MAY DISSOLVE AND LIQUIDATE IF REGULATORY CONDITIONS ARE NOT SATISFIED
- ------------------------------------------------------------------------
If we do not receive final approval for United Americas Bank to
start its banking operations within 18 months after the receipt of
preliminary approval, or if we do not satisfy other regulatory
requirements, then we will solicit shareholder approval for our
dissolution and liquidation. Although we have applied for all
regulatory approvals required to begin operations, we may not receive
final approvals in a timely manner, if at all. The closing of this
offering is not conditioned upon the receipt of final approvals to
begin business. If we dissolve and liquidate after the close of the
offering, we will distribute to you net assets remaining after payment
or provision for payment of all claims against us. You will receive
only a portion, if any, of your original investment because we will
have used the proceeds of the offering to pay all expenses and capital
costs incurred. These expenses include the expenses of the offering,
the organizational and pre-opening expenses, and the claims of
creditors.
POTENTIAL DELAY IN COMMENCING OPERATIONS MAY INCREASE OUR ACCUMULATED DEFICIT
- -----------------------------------------------------------------------------
Our target date to open United Americas Bank is July 1, 1999.
Any delay in the start of United Americas Bank's operations will
increase pre-opening expenses and postpone our realization of
potential revenues. This could cause our accumulated deficit to
increase as a result of continuing operating expenses, such as
salaries and other administrative expenses, coupled with our lack of
revenue. Although we expect to receive all regulatory approvals and
to begin business in the third quarter of 1999, we can give no
assurance as to when, if at all, these events will occur.
LOWER LENDING LIMITS THAN MANY OF OUR COMPETITORS MAY LIMIT OUR
ABILITY TO ATTRACT BORROWERS
- ----------------------------------------------------------------
At least during its first years of operations, United Americas
Bank's legally mandated lending limits will be lower than many of our
competitors because we initially will have less capital than many of
our competitors. Our lower lending limits may discourage potential
borrowers who have lending needs that exceed our limits, which could
limit our ability to grow. We may try to serve the needs of these
borrowers by selling loan participations to other institutions, but
this strategy may not succeed. See "Proposed Business of United
Americas Bankshares and United Americas Bank -- Lending Policy" (page 23).
<PAGE>
INDUSTRY COMPETITION MAY HAVE AN ADVERSE EFFECT ON OUR SUCCESS
- --------------------------------------------------------------
The banking business is highly competitive. Our profitability
will depend on our ability to compete successfully. United Americas
Bank will compete with numerous other lenders and deposit-takers,
-7-<PAGE>
<PAGE>
including other commercial banks, thrift institutions, credit unions,
finance companies, check cashing companies, mutual funds, insurance
companies, and brokers and investment banking firms. We will compete
primarily with other financial institutions in the Atlanta market, but
may also compete with Internet banks and financial institutions
located throughout the United States. Some of these institutions are
not subject to the same degree of regulation as we will be and have
greater resources than we will have. All of our competitors actively
solicit business from residents of Atlanta and many market and offer
services in Spanish. In addition, many are adding employees who are
fluent in both Spanish and English. See "Proposed Business of United
Americas Bankshares and United Americas Bank -- Competition" (page 25).
CHANGES IN INTEREST RATES MAY DECREASE OUR NET INTEREST INCOME
- --------------------------------------------------------------
United Americas Bank's operations depend substantially on its net
interest income, which is the difference between the interest income
earned on its interest-earning assets and the interest expense paid on
its interest-bearing liabilities. An increase or decrease in interest
rates could have a material adverse effect on United Americas Bank's
net interest income, capital, and liquidity. Like most depository
institutions, United Americas Bank's earnings and net interest income
are affected by changes in market interest rates and other economic
factors beyond its control. Although we intend to take measures to
decrease interest rate risk, these measures may not be effective in
minimizing the exposure to interest rate risk. Also, credit policies
of monetary authorities, particularly the Federal Reserve, will affect
United Americas Bank's results of operations. See "Management's
Discussion and Analysis of Financial Condition and Plan of Operations
- -- Liquidity and Interest Rate Sensitivity" (page 16).
UNPREDICTABLE ECONOMIC CONDITIONS MAY HAVE AN ADVERSE EFFECT ON OUR
FINANCIAL PERFORMANCE
- --------------------------------------------------------------------
The majority of United Americas Bank's borrowers and depositors
will be individuals and businesses located and doing business in the
Atlanta market. Our success will, therefore, depend on the general
economic conditions in Atlanta, which management cannot predict. Factors
that adversely affect Atlanta could adversely affect United Americas Bank's
financial performance. For example, an adverse change in the local economy
could make it more difficult for borrowers to repay their loans, which could
lead to loan losses for United Americas Bank. See "Proposed Business of United
Americas Bankshares and United Americas Bank" (page 18).
OUR ABILITY TO PAY DIVIDENDS IS LIMITED
- ---------------------------------------
We will initially have no source of income other than dividends
that we receive from United Americas Bank. Our ability to pay
dividends to you will therefore depend on United Americas Bank's
ability to pay dividends to us. Additionally, bank holding companies
and national banks are both subject to significant regulatory
restrictions on the payment of cash dividends. In light of these
restrictions and our need to retain and build capital, it will be the
policy of our Board of Directors to reinvest earnings for the period
of time necessary to help support our operations. As a result, we do
not plan to pay dividends until we recover any losses that we may have
incurred and we become profitable. Our future dividend policy will
depend on our earnings, capital requirements, financial condition, and
other factors that our Board of Directors considers relevant. See "Dividends"
(page 15) and "Supervision and Regulation -- Payment of Dividends" (page 45).
-8-<PAGE>
<PAGE>
ARBITRARILY DETERMINED PUBLIC OFFERING PRICE MAY BE HIGHER OR LOWER
THAN THE MARKET PRICE OF THE COMMON STOCK AFTER THE OFFERING
- -------------------------------------------------------------------
Because we were only recently formed and we are in the process of
organizing United Americas Bank, we could not set the public offering
price with reference to historical measures of our financial
performance. Therefore, the organizers arbitrarily determined the
offering price. The organizers did not retain an independent
investment banking firm to assist in determining the offering price.
You may not be able to resell the common stock for the offering price
or for any other amount. See "The Offering" (page 12).
IT IS UNLIKELY THAT AN ACTIVE TRADING MARKET WILL DEVELOP
- ---------------------------------------------------------
No public trading market currently exists for our common stock
and we do not believe a public trading market is likely to develop for
our common stock. We are not obligated, and we do not intend, to
apply for quotation of our common stock on the Nasdaq Stock Market or
for listing of our common stock on any national securities exchange.
GMA Partners, Inc. has not undertaken to, and will not, make a market
in our common stock and we are not aware of anyone who intends to make
a market in our common stock. Factors such as the limited size of the
offering, the lack of earnings history for United Americas Bank, the
absence of a reasonable expectation of dividends in the near future,
and the fact that our common stock will not be listed, mean that an
active and liquid market for our common stock probably will not
develop in the foreseeable future. Even if a trading market does
develop, it may not continue and you may not be able to sell your
shares at or above the price at which these shares are being offered
to the public. You should consider carefully the limited liquidity of
your investment before purchasing any shares of our common stock.
GOVERNMENT REGULATION MAY HAVE AN ADVERSE EFFECT ON OUR PROFITABILITY AND GROWTH
- --------------------------------------------------------------------------------
Bank holding companies and banks are subject to extensive state
and federal government supervision and regulation. Our ability to
achieve profitability and to grow could be adversely affected by state
and federal banking laws and regulations. These and other
restrictions limit the manner in which we may conduct our business and
obtain financing, including United Americas Bank's ability to attract
deposits, make loans, and achieve satisfactory interest spreads. Many
of these regulations are intended to protect depositors, the public,
and the FDIC, rather than shareholders. In addition, the burden
imposed by federal and state regulations may place us at a competitive
disadvantage compared to competitors who are less regulated.
Applicable laws, regulations, interpretations, and enforcement
policies have been subject to significant, and sometimes retroactively
applied, changes in recent years, and may be subject to significant
future changes. Future legislation or government policy may adversely
affect the banking industry or our operations. See "Supervision and
Regulation" (page 43).
EXERCISE OF WARRANTS AND STOCK OPTIONS WILL CAUSE DILUTION
- ----------------------------------------------------------
The organizers, officers, and employees may exercise warrants or
options to purchase common stock, which would result in the dilution
of your proportionate interest in us. As a part of his employment
agreement, Vincent D. Cater will be granted an option to purchase
25,000 shares of common stock at an exercise price of $10.00 per
share. In addition, if the Comptroller of the Currency approves Jorge
L. Forment as our Chief Financial Officer, he will be granted a stock
option to purchase 10,000 shares of common stock at an exercise price
of $10.00 per share. Each of the grants will be made under our 1999
Stock Incentive Plan. After the grants to Mr. Cater and Mr. Forment,
-9-<PAGE>
<PAGE>
there will be an additional 15,000 shares available for grant under
the plan. In addition, each organizer will be issued a warrant to
purchase the same number of shares of common stock as he purchases in
this offering. Warrants and stock options will not exceed 20% of the
initial offering. The warrants will vest in equal annual increments
of 20% over five years and will be exercisable at a price of $10.00
per share. The organizers, officers, and employees will have the
opportunity to profit from any rise in the market value of the common
stock or any increase in our net worth. In addition, the exercise of
the warrants or options could adversely affect the terms on which we
can obtain additional capital. For instance, the holders of the
warrants or options could exercise the warrants or options when we
could obtain capital by offering additional securities on terms more
favorable to us than those provided for by the warrants or options.
See "Executive Compensation" (page 36).
WE MAY NOT BE ABLE TO RAISE ADDITIONAL CAPITAL
- ----------------------------------------------
In the future, we may not be able to raise additional funds
through the issuance of additional shares of common stock or other
securities. Even if we are able to obtain additional capital through
the issuance of additional shares of common stock or other securities,
we may not issue these securities at prices or on terms better than or
equal to the public offering price and terms of this offering. The
issuance of new securities could dilute your ownership interest in us.
IF OUR ARTICLES OF INCORPORATION DETER A CHANGE IN CONTROL, YOU MAY BE
DEPRIVED OF AN OPPORTUNITY TO SELL YOUR SHARES AT A PREMIUM OVER
MARKET PRICES
- ----------------------------------------------------------------------
Our Articles of Incorporation contain authorized stock that may
be issued in a manner that deters an attempt to change control of us.
Provisions in the Articles of Incorporation allow our Board of
Directors to determine the terms of preferred stock that may be issued
by us without approval of the holders of common stock. Our Board of
Directors' ability to issue preferred stock without the consent of the
holders of common stock could enable the Board of Directors to prevent
changes in management and control of us. See "Certain Provisions of
the Articles of Incorporation and Bylaws" (page 41).
DIRECTORS AND OFFICERS COULD HAVE THE ABILITY TO INFLUENCE SHAREHOLDER ACTIONS
- ------------------------------------------------------------------------------
We anticipate that after this offering, our directors and
executive officers will directly or indirectly own approximately
193,000 shares, or approximately 16%, of the outstanding common stock.
In addition, we also anticipate that our Advisory Board members may
purchase in the aggregate a percentage of the Common Stock which could
equal or exceed the amount purchased by our directors and executive
officers. These persons may acquire additional shares of common stock
after the offering, which would increase this percentage. As a
result, our directors, advisors and executive officers together may be
able to control the outcome of director elections or block a
significant transaction that might otherwise be approved by the
shareholders. See "Certain Provisions of the Articles of
Incorporation and Bylaws" (page 41).
<PAGE>
OUR COMPUTER SYSTEMS, OR THOSE OF OUR SERVICE PROVIDERS, SUPPLIERS, OR
CUSTOMERS, MAY NOT OPERATE PROPERLY ON YEAR 2000-SENSITIVE DATES
- ----------------------------------------------------------------------
Banks are heavily dependent on complex computer systems for most
phases of their operations. The year 2000 issue common to most
corporations concerns the inability of certain software and databases
to recognize the year 2000 and other year 2000-sensitive dates. If
not corrected, this problem could disrupt the operations of financial
institutions, which are particularly sensitive to these disruptions.
-10-<PAGE>
<PAGE>
These disruptions could include events ranging from electrical or
water failure to computer systems failure, with any of these events
potentially resulting in a cessation of United Americas Bank's
activities until the problem is resolved.
We and United Americas Bank will rely on software and hardware
developed by independent third parties to provide the information
systems used by us. As a result, we will depend on the efforts of
those vendors to ensure that their data processing systems accommodate
year 2000 information. Although we intend to require vendor
certification regarding year 2000 readiness before we purchase any
equipment, we cannot verify independently that the equipment will in
fact be year 2000 compliant. Additionally, year 2000 problems
experienced by others (including our customers, service providers,
vendors, customers' vendors, correspondent banks, government agencies,
and the financial services industry in general) over which United
Americas Bank has no control could adversely affect it. If, for
example, one of United Americas Bank's major borrowers is unable to
conduct its operations as a result of a year 2000 problem, that
borrower could be unable to maintain its cash flow and could therefore
default on its loan. Loan defaults would lead to loan losses for
United Americas Bank. Consequently, if we, United Americas Bank, or
any of our service providers, correspondents, vendors, or customers
experiences a disruption of business resulting from a year 2000
problem, then our financial condition, results of operations, and
liquidity could be materially adversely affected. See "Proposed
Business of United Americas Bankshares and United Americas Bank --
Information Systems and the Year 2000" (Page 26).
CAUTIONARY STATEMENT ABOUT FORWARD-LOOKING STATEMENTS
Some of the statements in this prospectus under the captions
"Summary," "Risk Factors," "Management's Discussion and Analysis of
Financial Condition and Plan of Operations," and "Proposed Business of
United Americas Bankshares and United Americas Bank" and elsewhere in
this prospectus are "forward-looking statements." Forward-looking
statements include, among other things, statements about the
competitiveness of the banking industry, potential regulatory
obligations, our strategies, statistics about the growth of the
Hispanic community, and other statements that are not historical
facts. When used in this prospectus, the words "anticipate,"
"believe," "estimate," and similar expressions generally identify
forward-looking statements. Because forward-looking statements
involve risks and uncertainties, there are important factors that
could cause actual results to differ materially from those expressed
or implied by the forward-looking statements. These factors include,
among other things:
* Risks associated with starting a new business;
* A potential delay in beginning operations;
* The risk of dissolution if regulatory conditions are not
satisfied;
* Our dependence on our directors and key personnel;
* The potential adverse effect of competition;
* Interest rate risks;
* The potential adverse effect of unpredictable economic
conditions;
* Potential limitations on growth resulting from low lending
limits;
* Risks associated with the year 2000; and
*Other factors discussed under "Risk Factors."
-11-<PAGE>
<PAGE>
THE OFFERING
GENERAL
- -------
We are offering 1,200,000 shares of our common stock at a price of $10.00
per share, for a total price of $12,000,000. The minimum purchase for an
investor is 100 shares of common stock, unless we, in our sole discretion,
accept a subscription for a lesser number of shares. The maximum purchase
for any individual investor is 60,000 shares of common stock, unless we, in
our sole discretion, accept a subscription for a greater number of shares.
ORGANIZER SUBSCRIPTIONS
- -----------------------
Our organizers intend to purchase a total of 190,000 shares of common
stock in this offering. This represents 15.8% of the shares to be sold in
this offering.
OFFERING PERIOD
- ---------------
The offering period for the shares will end when a minimum of
1,200,000 shares of common stock are sold or at 5:00 p.m. Atlanta,
Georgia time, on [60 days after the date of the final prospectus],
1999, whichever occurs first. We may extend this date at our
discretion for additional periods not exceeding a total of 180 days
from the expiration of the initial offering period (i.e., until [180
days after the end of the initial offering period], 1999). We will
promptly notify subscribers of any extension.
SALE OF COMMON STOCK
- --------------------
The common stock will be sold in two ways. First, some of the
common stock will be sold by certain of our executive officers, who
will not receive any commissions on those sales. We will, however,
reimburse our officers for reasonable expenses they incur in
connection with the offering. Any of our affiliates who purchase
shares in this offering have committed to purchase those shares for
investment purposes only. Second, some of the shares will be sold by
GMA Partners, Inc., who we have hired to act as sales agent for our
account. GMA Partners will offer and sell the common stock to
investors at the public offering price, but is not obligated to
underwrite or otherwise purchase any of the common stock. GMA
Partners will receive a base fee of $300,000 plus expenses for its
services as sales agent. The remainder of the fee for GMA Partners
will be determined as follows:
* If $12,000,000 is deposited into the escrow account by June 30,
1999 and the closing takes place, the fee will increase by $100,000.
* If $12,000,000 is deposited into the escrow account between June 30,
1999 and August 30, 1999 and the closing takes place, the
fee will increase by $50,000.
HOW TO SUBSCRIBE
- ----------------
We will offer shares of our common stock to the public who may
subscribe for blocks of whole shares consisting of at least 100
shares. If you wish to subscribe for shares of our common stock, you
must complete the following steps before the offer ends:
-12-<PAGE>
<PAGE>
(1) Complete and sign the subscription agreement, which is
attached to this prospectus as Exhibit A, to subscribe for at least
100 shares of common stock;
(2) Make full payment of the entire purchase price for the
shares subscribed in United States currency by check, bank draft, or
money order payable to "The Bankers Bank, Atlanta, as Escrow Agent for
United Americas Bankshares, Inc."; and
(3) Deliver the subscription agreement, together with the
payment described above, to United Americas Bankshares, Inc.,
3789 Roswell Road, Atlanta, Georgia 30342.
ESCROW
- ------
A subscription is not binding until we accept it. We reserve the
right to accept or reject subscriptions, in whole or in part, or to
cancel this offering. All subscription payments we receive will be
deposited in an interest-bearing escrow account at The Bankers Bank
and will be released to us after we have accepted subscriptions for
1,200,000 shares and the Board of Governors of the Federal Reserve
System and the Georgia Department of Banking and Finance have approved
United Americas Bankshares' application to become a bank holding
company. If subscriptions for 1,200,000 shares are not received or
such regulatory approvals are not granted before the offering ends,
all the subscription funds, plus interest, will be returned to
investors.
USE OF PROCEEDS
We estimate that our net proceeds of the offering will be $11,500,000
after deducting the maximum commissions payable to GMA Partners of
$400,000 and offering expenses of $100,000. We intend to contribute,
in exchange for all of its shares of capital stock, approximately
$11,000,000 of the proceeds to the capital of United Americas Bank to
support its growth and operation strategies.
United Americas Bank intends to use these proceeds for the
following purposes:
<TABLE>
<CAPTION>
Intended Use Amount Percent
------------ ------ -------
<S> <C> <C>
Purchase of main office from us $1,000,000 9.09
Furniture, fixtures, and equipment for United Americas Bank's main
office 350,000 3.18
Funds for loans to customers, investments, to build or purchase
additional branches and other general purposes 9,650,000 87.73
----------- -----
Total $11,000,000 100%
=========== =====
</TABLE>
Until United Americas Bank applies the net proceeds of this
offering to the specific purposes described above, it plans to invest
the net proceeds in short-term, investment-grade securities,
certificates of deposit, or guaranteed obligations of the United
States government.
After capitalizing United Americas Bank, we will use the
remainder of the proceeds, in addition to the $1,000,000 purchase
price we receive from United Americas Bank to purchase the main office
from us, to pay off amounts outstanding under our $1,600,000 line of
credit with The Bankers Bank and for general corporate purposes. The
line of credit has an interest rate of 7.75% and a maturity date of
-13-<PAGE>
<PAGE>
February 26, 2000. Of the $1,600,000 credit line, we used $1,000,000
to purchase United Americas Bank's main office on April 7, 1999 and
will use $370,000 to pay the following organizational and pre-opening
expenses:
Salaries and benefits (estimated through United Americas Bank's
target opening date in the third quarter
of 1999) $226,000
Legal and professional fees 78,000
Other pre-opening expenses 66,000
--------
$370,000
========
As of March 31, 1999, we have paid approximately $230,000 of the
$370,000 in organizational and pre-opening expenses.
CAPITALIZATION
The following table shows our capitalization as of March 31, 1999
and our pro forma consolidated capitalization, as adjusted to give
effect to the receipt of the net proceeds from the sale of 1,200,000
shares of common stock in the offering.
Upon our incorporation, Salvador Diaz-Verson and Alex Suarez
purchased ten shares each of common stock at the price of $10.00 per
share. We will redeem these shares for $200.00 upon the issuance of
shares in this offering. The number of shares shown as outstanding
after giving effect to the offering, and the book value of those
shares, does not include shares of common stock issuable upon the
exercise of warrants or pursuant to options that have been or may be
granted under our stock incentive plan or otherwise. For additional
information regarding the number and terms of these warrants and
options, see "Executive Compensation -- Organizers' Warrants" and "--
Stock Incentive Plan" (page 37).
<TABLE>
<CAPTION>
Actual As Adjusted
------ -----------
<S> <C> <C>
Short-term debt . . . . . . . . . . . . . . . . . . . . . . . . . . . $320,000 $0
Shareholders' Equity
--------------------
Preferred stock, no par value; 1,500,000 shares authorized; no shares
issued and outstanding . . . . . . . . . . . . . . . . . . . . . . . 0 0
Common stock, no par value; 5,000,000 shares authorized; 20 shares
issued and outstanding (1,200,000 shares issued ($10.00 each) and
outstanding as adjusted) <F1> . . . . . . . . . . . . . . . . . . . 200 11,500,000
Stock subscription receivable . . . . . . . . . . . . . . . . . . . . (200) 0
Accumulated deficit<F2><F3> . . . . . . . . . . . . . . . . . . . . . (230,291) (370,000)
--------- -----------
Total shareholders' equity . . . . . . . . . . . . . . . . . . . . . $(230,291) $11,130,000
========= ===========
Book value per share<F4>. . . . . . . . . . . . . . . . . . . . . . . N/A $ 9.28
<FN>
<F1> The expenses of the offering will be charged against this
account. We estimate that the offering expenses will be $500,000,
which includes legal, accounting, and printing expenses and
registration fees.
-14-<PAGE>
<PAGE>
<F2> The "Actual" accumulated deficit reflects pre-opening expenses
incurred through March 31, 1999, consisting primarily of salaries
and employee benefits and professional and licensing fees.
<F3> The "As Adjusted" accumulated deficit results from estimated
organizational and pre-opening expenses of $370,000 incurred
through United Americas Bank's target opening date in the third
quarter of 1999. Actual organizational and pre-opening expenses
may be higher and may therefore increase the deficit accumulated
during the pre-opening stage and further reduce shareholders'
equity.
<F4> After giving effect to the receipt of the net proceeds from this
offering, there is an immediate dilution in the book value per
share of $.72, resulting from recognition of pre-opening expenses
and charging the offering expenses against additional paid-in
capital.
</FN>
</TABLE>
DIVIDENDS
We will initially have no source of income other than dividends
that United Americas Bank pays to us. Our ability to pay dividends to
our shareholders will therefore depend on United Americas Bank's
ability to pay dividends to us. Bank holding companies and banks are
both subject to significant regulatory restrictions on the payment of
cash dividends. In light of these restrictions and our need to retain
and build capital, we plan to reinvest earnings for the period of time
necessary to support successful operations. As a result, we do not
plan to pay dividends until we become profitable and recover any
losses incurred. Additionally, our future dividend policy will depend
on the earnings, capital requirements, financial condition of United
Americas Bankshares and United Americas Bank and on other factors that
our Board of Directors considers relevant.
Additionally, regulatory authorities may determine, under certain
circumstances relating to the financial condition of United Americas
Bank or United Americas Bankshares, that the payment of dividends
would be an unsafe or unsound practice and prohibit dividend payment.
See "Supervision and Regulation -- Payment of Dividends" (page 45).
MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND PLAN OF OPERATIONS
Our financial statements and related notes, which are included in
this prospectus, provide additional information relating to the
following discussion of our financial condition. See "Index to
Financial Statements" (page F-1).
We were organized on May 14, 1998 to serve as a holding company
for a proposed national bank. Since we were organized, our focus has
been on seeking, interviewing, and selecting our directors and
officers, applying for a national bank charter, applying for FDIC
deposit insurance, applying to become a bank holding company, and
raising equity capital through this offering.
Our operations from May 14, 1998 through the close of the
offering have been and will continue to be funded through a credit
line we secured through The Bankers Bank. The total amount available
on the line of credit is $1,600,000. As of March 31, 1999, the total
amount of the credit line outstanding was $320,000. This loan, which
has been guaranteed by the organizers, bears interest at 7.75% and is
due on February 26, 2000.
-15-<PAGE>
<PAGE>
From May 14, 1998 to March 31, 1999, the net loss amounted to $230,291.
The estimated net loss from May 14, 1998 through the third quarter of 1999,
the anticipated opening date of United Americas Bank, is $370,000, which is
attributable to the following estimated noninterest expenses:
<TABLE>
<CAPTION>
<S> <C>
Salaries and benefits (estimated through United Americas Bank's target
opening date in the third quarter of 1999) $226,000
Legal and professional fees 78,000
Other pre-opening expenses 66,000
--------
$370,000
========
</TABLE>
On April 7, 1999, we purchased approximately .65 acres of land
with a 6,100 square foot building for $1,000,000. The property is
located at 3789 Roswell Road, Atlanta, Georgia 30342 and will be the
site for the main office of United Americas Bank. We funded this
purchase, and will fund improvements to the existing structures on the
property, primarily through the credit line described above. The
amount outstanding on the line of credit as of April 7, 1999 was $1,266,431.
LIQUIDITY AND INTEREST RATE SENSITIVITY
- ---------------------------------------
Because we have been in the organizational stage, there are no
results to present at this time. Nevertheless, once United Americas
Bank begins operations, net interest income, our primary source of
earnings, will fluctuate with significant interest rate movements. To
lessen the impact of these margin swings, we intend to structure the
balance sheet so that repricing opportunities exist for both assets
and liabilities in roughly equal amounts at approximately the same
time intervals. Imbalance in these repricing opportunities at any
point in time constitutes interest rate sensitivity.
Interest rate sensitivity refers to the responsiveness of
interest-earning and interest-bearing assets and liabilities to
changes in market interest rates. The rate sensitive position, or
gap, is the difference in the volume of rate-sensitive assets and
liabilities at a given time interval. The general objective of gap
management is to manage actively rate sensitive assets and liabilities
to reduce the impact of interest rate fluctuations on the net interest
margin. We will generally attempt to maintain a balance between rate
sensitive assets and liabilities as the exposure period is lengthened
to minimize United Americas Bank's overall interest rate risks.
We will evaluate regularly the balance sheet's asset mix in terms
of several variables: yield, credit quality, appropriate funding
sources, and liquidity. To manage effectively the balance sheet's
liability mix, we plan to focus on establishing and expanding our
deposit base and converting assets to cash as necessary.
As United Americas Bank continues to grow, we will regularly
structure our rate sensitivity position in an effort to hedge against
rapidly rising or falling interest rates. United Americas Bank's
Asset and Liability Management Committee will meet on a quarterly
basis to develop a strategy for the upcoming period. The committee's
strategy will include anticipating future interest rate movements.
Liquidity represents the ability to provide steady sources of
funds for loan commitments and investment activities as well as to
maintain sufficient funds to cover deposit withdrawals and payment of
debt and operating obligations. We can obtain these funds by
-16-<PAGE>
<PAGE>
converting assets to cash or by attracting new depositors. United Americas
Bank's ability to maintain and increase deposits will serve as our primary
source of liquidity.
We know of no trends, demands, commitments, events, or uncertainties that
should result in or are reasonably likely to result in United Americas Bank's
liquidity increasing or decreasing in any material way in the foreseeable
future, other than this offering.
CAPITAL ADEQUACY
- ----------------
There are now two primary measures of capital adequacy for banks and bank
holding companies: (1) risk-based capital guidelines and (2) the leverage ratio.
The risk-based capital guidelines measure the amount of a bank's
required capital in relation to the degree of risk perceived in its
assets and its off-balance sheet items. Under the risk-based capital
guidelines, capital is divided into two "tiers." Tier 1 capital
consists of common shareholders' equity, noncumulative and cumulative
(bank holding companies only) perpetual preferred stock, and minority
interests. Goodwill is subtracted from the total. Tier 2 capital
consists of the allowance for loan losses, hybrid capital instruments,
term subordinated debt, and intermediate term preferred stock. Banks
are required to maintain a minimum risk-based capital ratio of 8%,
with at least 4% consisting of Tier 1 capital.
The second measure of capital adequacy relates to the leverage
ratio. The Office of the Comptroller of the Currency has established
a 3% minimum leverage ratio requirement. The leverage ratio is
computed by dividing Tier 1 capital into total assets. In the case of
United Americas Bank, as a newly chartered bank, and other banks that
have not received the highest regulatory rating by their primary
regulator, the minimum leverage ratio should be 3% plus an additional
cushion of at least 1% to 2%, depending upon risk profiles and other
factors.
In addition, the Federal Reserve, the Office of the Comptroller
of the Currency, and the FDIC have established a rule that adds a
measure of interest rate risk to the determination of supervisory
capital adequacy. In connection with this rule, the agencies have
also proposed a measurement process to measure interest rate risk.
Under this proposal, banks would report all items on the balance
sheet, as well as off-balance sheet items, according to maturity,
repricing dates, and cash flow characteristics. The bank would then
multiply its reporting position by duration-based risk factors and
weight its position according to rate sensitivity. The appropriate
supervisory agency would assess capital adequacy using this net risk
weighted position. The objective of this complex proposal is to
determine the bank's sensitivity to various rising and falling
interest rate scenarios.
We believe that the net proceeds of this offering will satisfy
our cash requirements for an indefinite period following the opening
of United Americas Bank. Accordingly, we do not anticipate that it
will be necessary to raise additional funds to operate United Americas
Bankshares or United Americas Bank over the next five years. Should
United Americas Bank experience more rapid growth or higher loan
losses than anticipated in its start-up period, additional capital
might be required. For additional information about planned
expenditures, see "Use of Proceeds" (page 13). For additional
information about our plan of operations, see "Proposed Business of
United Americas Bankshares and United Americas Bank" (page 18).
-17-<PAGE>
<PAGE>
PROPOSED BUSINESS OF UNITED AMERICAS BANKSHARES
AND UNITED AMERICAS BANK
BACKGROUND
- ----------
United Americas Bankshares. We were incorporated as a Georgia
--------------------------
corporation on May 14, 1998 to serve as a bank holding company for
United Americas Bank. We plan to use $11,000,000 of the proceeds of
this offering to capitalize United Americas Bank. In return, United
Americas Bank will issue all of its common stock to us, and we will be
United Americas Bank's sole shareholder. Initially, United Americas
Bank will be our sole operating subsidiary. We have applied to the
Federal Reserve and the Georgia Department of Banking and Finance for
prior approval to become a bank holding company. If these agencies
grant the necessary approvals, we will become a bank holding company
within the meaning of the Bank Holding Company Act of 1956, as
currently in effect, and the Georgia Bank Holding Company Act upon our
purchase of United Americas Bank's common stock. See "Supervision and
Regulation -- General" (page 43).
We have been organized to make it easier for United Americas Bank
to serve our future customers. The holding company structure will
provide flexibility for expansion of our banking business through the
possible acquisition of other financial institutions and the provision
of additional capital and banking-related services. A holding company
structure will make it easier for us to raise capital for United
Americas Bank because we will be able to borrow money secured by our
stock. The proceeds of debt incurred by us can be invested in United
Americas Bank as Tier 1 capital.
United Americas Bank. We filed applications on behalf of United
--------------------
Americas Bank with the Office of the Comptroller of the Currency and
with the FDIC on October 16, 1998 for authority to organize as a
national bank with federally insured deposits. United Americas Bank
will not be authorized to conduct its banking business until it
obtains a charter from the Office of the Comptroller of the Currency.
The issuance of the charter will depend, among other things, upon
United Americas Bank's receipt of at least $11,000,000 in capital from
us and upon compliance with other standard conditions expected to be
imposed by the FDIC and the Office of the Comptroller of the Currency.
These conditions are generally designed to familiarize United Americas
Bank with certain operating requirements and to prepare us to begin
business operations. The Office of the Comptroller of the Currency
requires that a new national bank obtain a charter and open for
business within 18 months after receipt of preliminary approval from
the Office of the Comptroller of the Currency. On February 22, 1999,
United Americas Bank received preliminary approval of its application
from the Office of the Comptroller of the Currency. On March 29,
1999, United Americas Bank received preliminary approval from the FDIC
for Federal deposit insurance.
MARKET OPPORTUNITIES
- --------------------
The Atlanta Market. The Atlanta market represents a geographic
------------------
area that includes the City of Atlanta, and portions of the
surrounding Georgia counties of Cobb, DeKalb, Fulton, and Gwinnett.
The Atlanta market forms a part of the Atlanta metropolitan
statistical area. Atlanta is served by several major road systems,
including Interstates 20, 75, 85, and 285 and Georgia 400. Atlanta is
the key economic focal point of much of northern Georgia and is a
major commercial center of the southeastern United States. According
to U.S. Department of Commerce data for 1990 to 1997, the Atlanta
Metropolitan Statistical Area had the second fastest growth in wage
employment of MSA's with over one million wage employees. During this
-18-<PAGE>
<PAGE>
time, wage employment increased 27% to 2.1 million in 1997 from 1.7
million in 1990.
We believe that the deposit growth potential for United Americas
Bank is strong. According to information derived from data compiled
by SNL Securities, Inc., the average annual growth rate of the deposit
base in the Atlanta metropolitan statistical area from June 1993 to
June 1997 was 11.79% and the deposits reported in the Atlanta market
as of June 30, 1997 totaled $45.2 billion. The metropolitan
statistical area included 871 branch offices of commercial banks and
55 branches of thrifts at June 30, 1997.
United Americas Bank intends to serve three related but distinct
segments of the Atlanta population: individuals and businesses in
Atlanta who prefer a community-oriented bank over a large regional or
super-regional bank; second, the Hispanic population; and third, the
rapidly growing small and medium-sized international business market
that we believe is currently under-served by large regional banks due
to the smaller size of their transactions. The Atlanta market is not
currently served by a bank organized specifically to serve the needs
of the Hispanic community.
Atlanta's Hispanic Population. Although sources differ on the
-----------------------------
rate of growth, even a more conservative estimate indicates growth for
the Hispanic community in Georgia at more than four times the rate of
growth for Georgia and ten times the rate of growth for the U.S.
generally. According to Georgia State University's Center for Applied
Research in Anthropology, Georgia's Hispanic population grew 182% from
168,529 in 1990 to 475,684 in 1997 and in Atlanta grew 123% to 240,952
in 1997 from 108,029 in 1990. Another estimate, based on Census
Bureau data and prepared by the Selig Center for Economic Growth at
the Terry College of Business of the University of Georgia projects
that Hispanic population growth in Georgia from 1990 through 1999 will
be approximately 95%, increasing to 215,265 in 1999 from 110,132 in
1990. Based on data from Strategic Research Corporation, the Atlanta
Hispanic population in 1998 was approximately 110,000, or
approximately 51% of the Selig Center's estimate for Georgia.
According to Selig Center data, total population growth for the same
period will be approximately 19% for Georgia and 9% for the United
States.
Hispanic consumers' buying power is growing at a faster rate than
the Hispanic population. We believe that the higher growth rate of
buying power indicates a strengthening of the economic position of the
Hispanic population as a whole. Hispanic consumers' buying power,
which is defined as the total personal income available, after taxes,
for spending on goods and services, is growing at three times the rate
of inflation.<F1> From 1990 to 1999, Georgia's Hispanic buying power is
approximately $3.7 billion. This growth would make Georgia the 5th
fastest growing state for Hispanic buying power. This growth would be
greater than the projected 72% growth in the buying power of Georgia's
population as a whole for the same period. The growth also would
exceed the projected 57% growth in the buying power of the population
of the United States for the same period and the projected 29%
increase in the Consumer Price Index for the United States. Georgia
is estimated to have the 17th largest Hispanic consumer market in the
country. According to Jeffrey M. Humphreys, Director of Economic
Forecasting at The Selig Center, the growth of Hispanic buying power
has been supported by better employment opportunities in the form of
Hispanics successfully starting and expanding their own businesses,
strong population growth, and a relatively young Hispanic population
with most adults in their early career stages. We believe these
__________________________________
[FN]
<F1> Unless otherwise indicated, information pertaining to the
Hispanic income levels and buying power wasestimated to grow 170% from
approximately $1.4 billion to obtained from the Selig Center for Economic
Growth at the Terry College of Business of the University of Georgia.
</FN>
-19-<PAGE>
<PAGE>
figures represent a growing, financially viable market presence with
potential banking assets. Because of the loyalty generally
demonstrated by ethnic constituencies, we believe that if we can
channel a share of these financial resources to United Americas Bank
we can form the nucleus for a stable account base.
Atlanta's International Latin American Business Environment. As
-----------------------------------------------------------
a single indicator of the trade with Latin America on the Georgia
economy, the U.S. Department of Commerce reported that merchandise
exports to Mexico from Georgia grew 112% from $324 million in 1993 to
$686 million in 1997. Total exports to Latin America in 1997 were
approximately $3 billion. The bulk of Georgia's exports to Latin
America are comprised of manufactured goods.
BUSINESS STRATEGY
- -----------------
Management Philosophy. United Americas Bank's philosophy will be
---------------------
to operate as a community bank emphasizing prompt, personalized
customer services to individuals and businesses that prefer community-
oriented banking and to focus on the under-served Hispanic and
international community in Atlanta. It is our hope that a major
portion of our shares will be owned by Hispanics, which we believe
will ensure that United Americas Bank will be fully responsive to the
Hispanic community and will aid in our success and growth.
Accordingly, we will implement the following growth and operating
strategies.
Growth Strategy. We plan to implement the following growth
---------------
strategies:
* HISPANIC-ORIENTED BANKING. We intend to position ourselves as
the bank of choice for Atlanta's Hispanic community by hiring
employees proficient in both English and Spanish and by
continually seeking officers and directors who are active in
the Hispanic community. We expect to provide products and
services which meet the particular needs of Hispanics.
* COMMUNITY-ORIENTED BANKING. We intend to position ourselves as a
community bank focused on providing high-quality, personalized
service. We hope to establish and grow our customer base by
attracting customers whose banking relationships have been
disrupted by the ongoing consolidation of the banking industry.
* MIDDLE-MARKET INTERNATIONAL BANKING. We intend to position
ourselves as an international bank focused on providing high-
quality, international service to the middle-market firms
which we believe are currently being under-served due to the
smaller size of their transactions.
* OPEN ADDITIONAL BRANCHES. We intend to expand our presence in
Atlanta by opening two new offices within the first 120 days
of operations. One branch is planned for the north
metropolitan Atlanta area, while the other is planned for the
Cobb County area. We also plan to add branches in other
strategic locations as appropriate. By adding these branches,
United Americas Bank will gain new channels through which we
can build our deposit base and solicit new customers.
* ATTRACT EMPLOYEES WITH ESTABLISHED CUSTOMER RELATIONSHIPS. We
will seek to hire employees who have, through their experience
in banking and position within the Atlanta, Hispanic, and
international communities, established significant customer
relationships. By hiring employees with established customer
relationships, we believe that United Americas Bank will be
-20-<PAGE>
<PAGE>
able to grow more rapidly than we would if we were to hire
employees who would require time to develop a customer base.
Operating Strategy. We will employ the following operating
------------------
strategies to achieve the level of community responsiveness and first-
class service that management believes will be necessary to attract
customers and to develop United Americas Bank's image as a local,
community-oriented bank with a Hispanic and international focus:
* QUALITY EMPLOYEES. We will strive to hire a highly-trained and
seasoned staff that can respond to individual customer needs.
In addition, we will attempt to hire staff that is proficient
in both Spanish and English to better serve the Hispanic and
international communities. We are committed to hiring experienced and
qualified staff, although this may result in higher personnel costs
than typically experienced by similar financial institutions.
* EXPERIENCED SENIOR MANAGEMENT. United Americas Bank's senior
management possesses extensive experience in the banking
industry as well as substantial business and banking contacts
in Atlanta. Senior management is composed of businessmen with
active involvement in the international and Hispanic communities. We
expect that the directors will bring substantial business and banking
contacts to United Americas Bank as a result of their experience and
involvement. See "Management" (page 29).
* OFFER FEE-GENERATING PRODUCTS AND SERVICES. We will structure
United Americas Bank's range of services, pricing strategies,
interest rates paid and charged, and hours of operation to
attract target customers and increase market share. United
Americas Bank will strive to offer small businesses, professionals,
entrepreneurs, and consumers the best loan services available, while
charging aggressively for such services and using technology and
engaging third-party service providers to perform certain functions at
a lower cost to increase fee income.
* COMMUNITY INVOLVEMENT. All of our officers and directors are
active in the Atlanta, international, and Hispanic
communities, and their continued active community involvement
will provide an opportunity to promote United Americas Bank
and its products and services.
* LOCATION. United Americas Bank's main office location is near a
high concentration of commercial businesses and residential
areas, including a high concentration of Hispanic businesses
and residential areas. We believe our accessibility to theses
areas will increase our ability to attract Hispanic customers.
* INDIVIDUAL CUSTOMER FOCUS. United Americas Bank will focus on
providing individualized service and attention to our target
customers, which include community-oriented individuals and
businesses, Hispanic individuals, and small to medium-sized
businesses with international transactions. As a result of
retaining employees, officers, and directors who are
proficient in both Spanish and English, United Americas Bank
also will be able to serve the needs of Hispanic customers who
are not able to adequately utilize, or are uncomfortable with,
the current financial institutions in Atlanta.
* MARKETING AND ADVERTISING. United Americas Bank will utilize
media services such as local newspapers, radio advertisements
during peak driving times, direct mail campaigns, and
-21-<PAGE>
<PAGE>
television to promote its products and services. In addition,
our directors, advisors, and officers have developed contacts
with numerous businesses and individuals in the Atlanta
market.
PRODUCTS AND SERVICES
- ---------------------
Consumer and Commercial Banking Services. United Americas Bank
----------------------------------------
will offer a full range of deposit services that are traditionally
available at most banks and thrift institutions, including checking
accounts, NOW accounts, savings accounts, and other time deposits of
various types, ranging from daily money market accounts to longer-term
certificates of deposit. The transaction accounts and time
certificates will be tailored to the principal market areas at rates
competitive to those offered in the area. In addition, retirement
accounts such as Individual Retirement Accounts will be available.
United Americas Bank will solicit these accounts from individuals,
businesses, associations, and governmental authorities.
United Americas Bank will offer a full range of short- to medium-
term commercial and consumer loans, including both secured and
unsecured loans for working capital (including inventory and
receivables), business expansion (including acquisition of real estate
and improvements), and purchase of equipment and machinery. United
Americas Bank will offer government guaranteed loans under the Small
Business Administration loan program. After origination of these
loans, United Americas Bank will sell the guaranteed portion of the
loan (approximately 75%) resulting in gains on the sale. In addition,
United Americas Bank will retain the servicing rights to these loans
which will generate servicing income on the portion sold. Consumer
loans include secured and unsecured loans for financing automobiles,
home improvements, education, and personal investments. United
Americas Bank will also offer permanent mortgage loans through an
alliance with a mortgage company.
In addition to deposit and loan services, United Americas Bank
will offer banking, cash management services, investment sweep
accounts, safe deposit boxes, travelers' checks, direct deposit of
payroll and social security checks, and automatic drafts for various
accounts. United Americas Bank will be a member of a network of
automated teller machines that may be used by customers in major
cities throughout Georgia, the United States, and in various cities
worldwide. United Americas Bank will also offer VISA and MasterCard
credit cards and merchant credit card processing to our customers
through third party vendors. United Americas Bank is reviewing
opportunities for offering Internet banking services and expects to
provide appropriate services through third party vendor relationships.
Additionally, United Americas Bank will offer to targeted
commercial customers a courier service that will pick up non-cash
deposits and minimal cash deposits of up to $200 from the customer's
place of business and deliver the deposits to United Americas Bank.
United Americas Bank will contract with a third party courier service
for bank related work.
International Banking Services. United Americas Bank will
------------------------------
provide international services to domestic businesses in the Atlanta
market. We will provide these businesses with convenient access to
personnel specially trained to provide international services. We
believe there is a demand for convenient access to international
services because the financial institutions currently offering
international services in the Atlanta area are typically located in
downtown office facilities or out-of-state offices and tend to focus
on large international transactions. Personnel in branch facilities
accessible to smaller businesses generally are not trained to address
these specialized needs.
-22-<PAGE>
<PAGE>
United Americas Bank's lending activities related to
international business will focus initially on two programs sponsored
by The Export-Import Bank of the United States. Working capital loans
will be provided to exporters under the working capital guarantee
program co-sponsored by the Small Business Administration and The
Export-Import Bank of the United States. This program provides
working capital to companies to allow them to fulfill export orders.
The second program, the medium-term export loan program, allows
exporters to finance goods and equipment to foreign buyers for up to
five years. Both programs are guaranteed by The Export-Import Bank of
the United States.
United Americas Bank's international banking services will also
include inbound and outbound international funds transfers, foreign
exchange, foreign collections, and import and export letters of
credit. United Americas Bank will also be actively involved in trade
finance such as the issuance of bankers acceptances. These drafts or
bills of exchange facilitate international trade and will be available
upon completion of a diligent credit review process.
Specialized Banking Services. United Americas Bank will offer
----------------------------
private banking services to both domestic and non-domestic individuals
and corporations establishing business operations in Atlanta.
Specialized private banking services will include bill paying,
statement and mail holding, currency exchange, international funds
transfers, and arranging personal lines of credit (including credit
card services) for qualified foreign nationals conducting business in
the United States.
United Americas Bank's private banking group will assist U.S.
domiciled executives with a variety of personal banking services
designed to support international business objectives. These services
will include introductions to correspondent financial services and to
general business contacts maintained by us in international trade
markets.
United Americas Bank will provide international banking services
to foreign businesses operating in Atlanta and to their executives and
employees. United Americas Bank will seek to have personnel with the
requisite language and cultural skills suited to serve foreign
nationals who are often unfamiliar with United States' banking
practices. The international banking experience of the proposed
management of United Americas Bank, along with the contacts of the
proposed directors of United Americas Bank in the international and
domestic business communities, will enhance United Americas Bank's
ability to compete and cater to the unique needs of this segment of
the market.
Lending Policy. United Americas Bank will have an initial legal
--------------
lending limit of $1,650,000. The lending strategy of United Americas
Bank will be to make loans primarily to persons who reside, work or
own property in the Atlanta market. Unsecured loans normally will be
made only to persons who maintain depository relationships with United
Americas Bank. Secured loans will be made to persons who are well
established and have net worth, collateral and cash flow to support
the loan.
United Americas Bank will provide each lending officer with
written guidelines for lending activities. Lending authority will be
delegated by the Board of Directors of United Americas Bank to loan
officers, each of whom will be limited in the amount of secured and
unsecured loans which they can make to a single borrower or related
group of borrowers. All loans in excess of an amount to be
established by the Board of Directors will require the approval of the
loan committee of the Board of Directors.
Making loans to businesses to fund working capital is a
traditional function of commercial banks. Such loans are expected to
be repaid out of the current earnings of the commercial entity, and
-23-<PAGE>
<PAGE>
the ability of the borrower to service its debt is dependent upon the
success of the commercial enterprise. It will be United Americas
Bank's policy to secure these loans with collateral in most cases.
Many of United Americas Bank's commercial loans will be secured by
real estate collateral because such collateral is superior to other
types of collateral available to small businesses. Loans secured by
commercial real estate, however, particularly if collateral dependent,
are subject to certain inherent risks. Commercial real estate may be
substantially illiquid, and commercial real estate values are
difficult to ascertain and subject to wide fluctuation, depending upon
economic conditions.
The inter-agency guidelines adopted by federal bank regulators,
including the Comptroller of the Currency, mandate that financial
institutions establish real estate lending policies and establishing
certain minimum real estate loan-to-value standards. United Americas
Bank will adopt these federal standards as its minimum standards.
These standards require maximum loan-to-value ratios for various types
of real estate loans as set forth below, although United Americas Bank
may make exceptions to the maximum guidelines, which exceptions must
be accounted for and tracked:
<TABLE>
<CAPTION>
Loan-to-Value Limit
Loan category (percent)
------------- ---------
<S> <C>
Raw land 65
Land development 75
Construction:
Commercial, multifamily1 and other nonresidential 80
1- to 4-family residential 85
Improved Property 85
Owner-occupied 1- to 4-family and home equity <F2>
___________________
<FN>
<F1> Multifamily construction includes condominiums and cooperatives.
<F2> A loan-to-value limit has not been established for permanent
mortgage or home equity loans on owner-occupied, 1- to 4-
family residential property. However, for any such loan with
a loan-to-value ratio that equals or exceeds 90 percent at
origination, appropriate credit enhancement in the form of
either mortgage insurance or readily marketable collateral is
required.
</FN>
</TABLE>
Loan Review and Non-Performing Assets. On at least an annual
-------------------------------------
basis, all significant relationships and a random sampling of other
loans will be reviewed by the Loan Committee of the Board of Directors
of United Americas Bank. Past due loans will be reviewed at least
weekly by lending officers and by the senior credit officer, and the
Board of Directors will review a summary report monthly.
Asset/Liability Management. A committee composed of officers and
--------------------------
directors of United Americas Bank will be charged with managing United
Americas Bank's assets and liabilities. The committee will attempt to
manage asset growth, liquidity and capital in order to optimize income
and reduce interest rate risk. The committee will direct United
Americas Bank's overall acquisition and allocation of funds. At
quarterly meetings, the committee will review and discuss the monthly
asset and liability funds budget in relation to the actual flow of
funds, as well as peer group comparisons; the ratio of the amount of
rate-sensitive assets to the amount of rate-sensitive liabilities; the
ratio of the allowance for loan losses to outstanding and non-
performing loans; and other variables, such as expected loan demand,
-24-<PAGE>
<PAGE>
investment opportunities, core deposit growth within specified
categories, regulatory changes, monetary policy adjustments and the
overall state of the economy.
Investment Policy. United Americas Bank's investment policy will
-----------------
be to optimize income, consistent with liquidity, asset quality and
regulatory constraints. The policy will be reviewed from time to time
by the Board of Directors of United Americas Bank. Individual
transactions, portfolio composition and performance will be reviewed
and approved monthly by the Board of Directors or a committee thereof.
The President of United Americas Bank will implement the policy and
will report to the full Board of Directors of United Americas Bank on
a monthly basis information concerning sales, purchases, resultant
gains or losses, average maturity, federal taxable equivalent yields
and appreciation or depreciation by investment categories.
Correspondent Banking. Correspondent banking involves the
---------------------
provision of services by one bank to another bank which cannot provide
that service for itself from an economic or practical standpoint.
United Americas Bank will be required to purchase correspondent
services offered by larger banks, including check collections,
services relating to the purchase of Federal Funds, security
safekeeping, investment services, coin and currency supplies, overline
and liquidity loan participations and sales of loans to or
participations with correspondent banks.
United Americas Bank will sell loan participations to
correspondent banks with respect to loans which exceed United Americas
Bank's lending limit. As compensation for services provided by a
correspondent, United Americas Bank may maintain certain balances with
such correspondents in non-interest bearing accounts.
COMPETITION
- -----------
The banking business is highly competitive. United Americas Bank
will compete as a financial intermediary with numerous other lenders
and deposit-takers, including other commercial banks, thrift
institutions, credit unions, finance companies, mutual funds,
insurance companies, and brokerage companies and investment banking
firms. According to information derived from data compiled by SNL
Securities, Inc., the Atlanta metropolitan statistical area as of
June 30, 1997 included 871 branch offices of commercial banks and 55
branches of thrifts. United Americas Bank will compete primarily with
other financial institutions in Atlanta, but may also compete with
Internet banks and financial institutions located throughout the
United States for products such as large certificates of deposit. All
of United Americas Bank's competitors actively solicit business from
residents of Atlanta and many are increasingly offering services in
Spanish and adding Spanish-speaking employees. Some of these
institutions are not subject to the same degree of regulation as we
will be and have greater resources than we will have available. Our
profitability will depend on our ability to compete successfully.
Some of United Americas Bank's competitors have substantially greater
resources and lending limits than United Americas Bank and provide
other services, such as extensive and established branch networks and
trust services, that United Americas Bank does not expect to provide
initially. As a result of these competitive factors, United Americas
Bank may have to pay higher rates of interest to attract depositors or
extend credit with lower interest rates to attract borrowers.
United Americas Bank will differentiate itself by providing
personalized, first-class service to individuals and businesses in the
Atlanta market. The Atlanta market is not currently served by a bank
organized specifically to serve the needs of the Hispanic community.
Furthermore, United Americas Bank will employ a staff of directors,
managers, and employees fluent in both English and Spanish to serve
-25-<PAGE>
<PAGE>
the significant portion of the Hispanic population that is unfamiliar
or uncomfortable with using traditional banking facilities. In
addition, we intend to have a higher concentration than our
competitors of employees who are fluent in both Spanish and English.
We believe that through education and marketing programs sponsored by
United Americas Bank, a cross-section of the Hispanic community will
become more inclined to utilize the services of United Americas Bank.
Finally, United Americas Bank will focus on providing international
services to small to medium-sized businesses which we believe are
currently under-served by the large regional banks.
BANK SITE
- ---------
We selected United Americas Bank's primary office and branch
sites to reach a large segment of the Atlanta population, including a
large number of Hispanics. United Americas Bank's primary office is
located at 3789 Roswell Road in Fulton County, approximately 3.8 miles
south of I-285. The site is near the Consulate General of Mexico.
United Americas Bank plans to open its first branch on Buford
Highway between Northeast Plaza and I-285 approximately 30 days after
the opening of United Americas Bank's primary office. Although an
exact site has not been identified, there are a large number of
potential sites in that area. We selected this location because of
its proximity to the large number of Hispanics that live in the
surrounding areas.
United Americas Bank plans to open its second branch within
approximately 120 days after operations at United Americas Bank's
primary office commence, and will probably locate it in Cobb County in
the South Cobb Drive and Windy Hill Road area. Again, there are
multiple sites available in that area near the Hispanic commercial
center of Cobb County and with easy access from I-285 on a major
thoroughfare.
These sites do not cover the growing Hispanic population in
Roswell and Alpharetta, the expanding middle class populations in
suburban Cobb and Gwinnett Counties, or the small, highly concentrated
pocket of Hispanics in Southeast Atlanta south of I-20 and east of I-
85. We believe these areas are potential sites for future expansion
of United Americas Bank. Any additional bank branches, including the
first two referenced above, will require the approval of the Office of
the Comptroller of the Currency. No applications for additional
branch locations have been filed.
INFORMATION SYSTEMS AND THE YEAR 2000
- -------------------------------------
The Year 2000 Problem. The year 2000 issue confronting us,
---------------------
United Americas Bank, and our suppliers, customers, customers'
suppliers, and competitors centers on the inability of computer
systems to recognize the year 2000 and other year 2000-sensitive
dates. Many existing computer programs and systems originally were
programmed with six-digit dates that provided only two digits to
identify the calendar year in the date field. As the year 2000
approaches, these programs and computers will recognize "00" as the
year 1900 rather than the year 2000. Like most financial service
providers, United Americas Bank's operations may be affected
significantly by the year 2000 issue because we depend on computer-
generated financial information. Software, hardware, and equipment,
both within and outside of our direct control, and third parties with
whom we electronically or operationally interface are likely to be
affected. These third parties include customers and third party
vendors providing data processing, information systems management,
computer system maintenance, and credit bureau information. If
computer systems are not able to identify the year 2000, many computer
applications could fail or create incorrect results. Consequently,
-26-<PAGE>
<PAGE>
many calculations that rely on date-related information, such as
interest, payment or due dates, and other operating functions, could
generate significantly misstated results, and we could lose our
ability to process transactions, prepare statements, or engage in
similar business activities. In addition, under certain
circumstances, failure to address adequately the year 2000 issue could
adversely affect the viability of United Americas Bank's suppliers and
creditors and the creditworthiness of our borrowers. If not
adequately addressed, the year 2000 issue could ultimately have a
significant adverse impact on our products, services, and competitive
condition and, in turn, our financial condition and results of
operations.
Regulatory Oversight. Financial institution regulators recently
--------------------
have increased their focus on year 2000 compliance issues and have
provided guidance concerning the responsibilities of senior management
and directors. The Federal Financial Institutions Examination Council
has issued several interagency statements on Year 2000 Project
Management Awareness. These statements require financial institutions
to, among other things, examine the year 2000 implications of their
reliance on vendors and with respect to data exchange and the
potential impact of the year 2000 issue on their customers, suppliers,
and borrowers. These statements also require each federally regulated
financial institution to survey its exposure, measure its risk, and
prepare a plan to address the year 2000 issue. In addition, the
federal banking regulators have issued safety and soundness guidelines
to be followed by insured depository institutions to ensure resolution
of any year 2000 problems. The federal banking agencies have asserted
that year 2000 testing and certification is a key safety and soundness
issue in conjunction with regulatory examinations. Consequently, an
institution's failure to address appropriately the year 2000 issue
could result in supervisory action, including the reduction of the
institution's supervisory ratings, the denial of applications for
approval of mergers or acquisitions, or the imposition of civil money
penalties.
Because we are still pending regulatory approval regarding our
status as a bank holding company and United Americas Bank has not yet
commenced operations, federal banking regulators are focusing on our
year 2000 readiness as part of the regulatory approval process. Once
United Americas Bankshares and United Americas Bank have obtained the
necessary regulatory approvals, the federal banking regulators will
continue to monitor our status on year 2000 issues as described above.
Our Readiness. Because we are a start-up entity and United
-------------
Americas Bank has not yet commenced business, we do not have existing
systems or equipment requiring year 2000 testing and remediation.
Rather, we plan to purchase all of our office equipment, hardware, and
software and obtain outsourcing service commitments only from vendors
and service providers that can certify that their products and
services are year 2000 compliant. We plan to purchase applications
software, microcomputers, teller equipment, and a network file server
only from vendors that can provide year 2000 compliance certificates
with respect to those products. We plan to obtain our data processing
services, automatic teller machine applications, voice response
system, Internet banking services, document imaging solutions, and
bond accounting systems from third party service providers that can
certify that the products and services they provide will be year 2000
compliant. We believe that we will be able to obtain these products
and services from vendors and service providers that can supply the
necessary certification. If we are unable to do so, however, we will
either forego acquiring the product or service until we receive the
required certification or, if the product or service is essential to
our operations, arrange for independent testing and verification of
year 2000 compliance.
As we acquire equipment and systems and commence operations, we
will test our year 2000 readiness on an ongoing basis. Although we do
not anticipate encountering difficulties in this area, we will require
-27-<PAGE>
<PAGE>
our vendors and service providers to upgrade or replace any equipment
that proves to be non-compliant. If we do not receive the necessary
upgrades or equipment, we will obtain new equipment or engage a new
service provider with demonstrated year 2000 compliance.
Although our internal systems, equipment, and operations require
significant oversight with respect to year 2000 issues, our customers'
year 2000 readiness could also have a significant effect on our
operations. For example, if a customer with an outstanding loan from
United Americas Bank is unable to maintain its cash flow as a result
of disruption caused by its own or its customers' year 2000 problems,
the customer could default in the repayment of the loan, which would
lead to increased loan losses for United Americas Bank. Although we
plan to consider this possibility when we establish the loan loss
reserve for United Americas Bank, the potential losses could exceed
our estimate and ultimately cause a net loss to United Americas Bank
and United Americas Bankshares. To address this concern, we will
communicate with customers on an ongoing basis regarding our year 2000
readiness and attempt to identify at the earliest opportunity those
customers that are likely to encounter year 2000 problems. We plan to
work with these customers to ensure, to the greatest extent possible,
that their year 2000 compliance issues do not disrupt our operations.
Resources Allocated. To ensure that senior members of management
-------------------
continue to monitor our year 2000 readiness on a consistent basis, our
Board of Directors plans to establish a Year 2000 Committee. The
members of the committee will establish guidelines for the acquisition
of new equipment and services that will be year 2000 compliant;
communicate with potential borrowers, vendors, and service providers
regarding year 2000 issues; and monitor our progress in this area.
Members of the committee will also attend conferences and information
sharing sessions to gain additional insight into the year 2000 issue
and potential strategies for addressing it. The committee's work will
continue until the year 2000 and, in the event a year 2000 problem
occurs, thereafter until the problem is resolved. The committee will
be comprised of senior management and will report to the Audit
Committee of the Board of Directors.
Because our year 2000 compliance program will principally involve
acquiring systems, equipment, and outsourced services that are year
2000 compliant, we do not expect that United Americas Bankshares or
United Americas Bank will incur material year 2000 compliance or
remediation costs. Rather, these costs will be included in the
initial cost of obtaining the equipment or services that we need to
begin operations. As a result, we have not established a separate
budget for year 2000 compliance expenses. The Year 2000 Committee
will, however, monitor our needs in this area and will establish a
budget for year 2000 expenses if it believes that our year 2000 costs
will be material.
Contingency Plans. The worst anticipated year 2000 malfunction
-----------------
that United Americas Bank will face is temporary loss of power and
other utilities and interruption of services from key vendors. In
that case, our preliminary contingency plan will be to attempt to
restore utilities and insure adequate records are available manually
to minimize disruption and inconvenience to our customers. We believe
that United Americas Bank would be able to continue to operate in that
manner without significant loss. We believe, however, that our
computer software and hardware systems will be substantially year 2000
compliant.
-28-<PAGE>
EMPLOYEES
- ---------
When we begin operations, United Americas Bank will have
approximately 12 full-time employees and 1 part-time employee. We do
not expect that we will have any employees who are not also employees
of United Americas Bank.
Vincent D. Cater will be the President and Chief Executive
Officer of United Americas Bankshares and United Americas Bank. Mr.
Cater has over 30 years of domestic and international banking
experience, including extensive experience in the areas of
international trade finance and operations. He was responsible for
South American relationships at Citizens and Southern National Bank,
Atlanta, and for a time was located in Costa Rica as General Manager
of Banco Centroamericano de Divisas, a subsidiary bank. In 1983, Mr.
Cater joined First American Bank of Georgia, N.A. as Executive Vice
President and Manager of International Banking. During his tenure, he
established an Edge Act subsidiary in Miami and later served as the
Edge Act subsidiary's President. In 1993, Mr. Cater organized and was
the President and CEO of AmTrade International Bank, which specialized
in international trade finance and correspondent banking.
Jorge L. Forment will serve as the Chief Financial Officer of
United Americas Bankshares and United Americas Bank. Mr. Forment
recently joined us from Milton National Bank in Roswell, Georgia,
where he served as Senior Vice President and Chief Financial Officer
between May 1998 and April 1999. Prior to joining Milton National
Bank, Mr. Forment worked with Etowah Bank in Canton, Georgia, where he
served as Senior Vice President and Chief Financial Officer. Mr.
Forment was employed with Etowah Bank for nine years. Prior to
working with Etowah Bank, Mr. Forment served as a Vice President of
Bank Consultants, Inc. in Atlanta, Georgia, where he was responsible
for preparing de novo community bank charter applications. Mr.
Forment also served as a Loan Review Officer with First National Bank,
Panama City, Florida from 1984 until 1988, and as an Associate
National Bank Examiner with the Comptroller of the Currency from 1979
until 1984. See "Management" (page 29).
FACILITIES
----------
United Americas Bank is located at 3789 Roswell Road in Atlanta,
Georgia 30342 in Fulton County. The primary office was previously
used as a bank building and is approximately 6,100 square feet and
includes a drive-up window. The property is subject to one
encumbrance, the credit line from The Bankers Bank used to fund the
purchase of the property. This loan will be repaid with the proceeds
from this offering. See "Use of Proceeds" (page 13).
MANAGEMENT
PROPOSED EXECUTIVE OFFICERS AND DIRECTORS OF UNITED AMERICAS
BANKSHARES AND UNITED AMERICAS BANK
- ------------------------------------------------------------
The following table sets forth, for the initial executive
officers and members of the Board of Directors of both United Americas
Bankshares and United Americas Bank, (1) names and ages at February 28,
1999, (2) position(s) with United Americas Bankshares and United
Americas Bank, (3) the number of shares of common stock they intend to
purchase in the offering, (4) the percentage of outstanding shares
-29-<PAGE>
<PAGE>
such number will represent, and (5) the number of shares subject to
warrants, and options as to Mr. Cater and Mr. Forment, that they will
receive when they purchase common stock in this offering. The
directors and executive officers have indicated that they intend to
purchase a total of 193,000 shares as listed below.
<TABLE>
<CAPTION>
Subject to
Percentage of Warrants and
Number of Outstanding Options
Name and Address (Age) Position(s) to be Held Shares Shares
- ---------------- ----- ---------------------- --------- -------------- -----------
<S> <C> <C> <C> <C> <C>
Salvador Diaz-Verson (47) Chairman of the Board of 100,000 8.3 100,000
Directors
Alex E. Suarez (39) Vice Chairman of the Board of 10,000 .83 10,000
Directors
Vincent D. Cater (55) President and Chief Executive 10,000 .83 35,000<F2>
Officer and Director
Jorge L. Forment (41) Chief Financial Officer and 3,000 .25 10,000<F3>
Senior Vice President
Luis A. Caceres (37) Director 10,000 .83 10,000
Rene M. Diaz (37) Director 10,000 .83 10,000
Reinaldo Pascual (35) Secretary and Director 10,000 .83 10,000
Filiberto Prieto (44) Director 10,000 .83 10,000
Norberto Sanchez (41) Director 10,000 .83 10,000
Ignacio Luis Taboada(1) (40) Director 10,000 .83 10,000
Sam Zamarripa (46) Director 10,000 .83 10,000
_______________________________
<FN>
<F1> Mr. Taboada will be a director of only United Americas
Bankshares.
<F2> Includes an option to purchase 25,000 shares to be issued to
Mr. Cater.
<F3> Includes an option to purchase 10,000 shares to be issued to
Mr. Forment.
</FN>
</TABLE>
Alex Suarez and Salvador Diaz-Verson have been our directors
since May 14, 1998 and are proposed directors of United Americas Bank.
Each other person listed above has been one of our directors since May
14, 1998 and is a proposed director of United Americas Bank, except
for Ignacio Taboada. Our directors serve one year terms, unless the
director resigns, is removed from office, or dies. United Americas
Bankshares' officers are appointed by the Board of Directors and hold
office at the will of the Board. See "Certain Provisions of the
Articles of Incorporation and Bylaws" (page 41).
Each proposed director of United Americas Bank will serve until
United Americas Bank's first shareholders meeting, which will be held
shortly after United Americas Bank receives its charter. We, as the
sole shareholder of United Americas Bank, will nominate each proposed
director to serve as director of United Americas Bank at that meeting.
After the first shareholders meeting, directors of United Americas
Bank will serve for a term of one year and will be elected by our
shareholders at United Americas Bank's annual meeting of shareholders.
United Americas Bank's officers will be appointed by its Board of
Directors and will hold office at the will of the Board.
SALVADOR DIAZ-VERSON, JR. Mr. Diaz-Verson has been selected to
serve as our Chairman of the Board. Mr. Diaz-Verson is Chairman and
President of Diaz-Verson Capital Investments, Inc., an investment
adviser registered with the Securities and Exchange Commission. Mr.
Diaz-Verson served as President and a member of the Board of Directors
of American Family Corporation (commonly known as AFLAC), a publicly-
held insurance holding company, from 1979 to 1991. He is currently a
-30-<PAGE>
<PAGE>
Director of the Board of Clemente Capital Inc., Regions Bank, Columbus
and Directo, Inc. He is a Trustee of Clark Atlanta University and the
Boys and Girls Club of America. In 1992, he received a six-year
presidential appointment to the Christopher Columbus Fellowship
Foundation. Mr. Diaz-Verson was on the Board of Synovus Financial
Corporation from 1985 to 1996 and Total Systems Services Inc. from
1983 to 1996. Mr. Diaz-Verson is also the current Chairman of
Atlanta's Hispanic Chamber of Commerce and is on the Board of
Directors of Directo, Inc., a cash card and related services company
with a focus on the Hispanic market.
ALEX E. SUAREZ. Mr. Suarez has been selected to serve as our
Vice Chairman of the Board. Mr. Suarez has been in the financial
services industry for over 14 years. He began his banking career in
1983 with First American Bank of Georgia, N.A. as a senior credit
analyst. While at First American, Mr. Suarez became the manager of
the letter of credit issuance department in the International Banking
Division. Prior to departing First American, Mr. Suarez co-founded
its Executive Banking Division. In January 1987 he became the third
Vice President of the former Buckhead Bank (which subsequently merged
with The Chattahoochee Bank, Bank South, and NationsBank), where he
engaged in private banking and corporate lending to small businesses
and served in various other capacities. In February 1992, Mr. Suarez
left The Chattahoochee Bank to become President of the Ayoub Group, a
merchant banking firm, formed with Sam Ayoub, the former CFO of The
Coca-Cola Company. The Ayoub Group engaged in trade finance and
venture capital investments for small firms. In June 1993, Mr. Suarez
left the Ayoub Group to join BT Alex. Brown Incorporated, a wholly-
owned subsidiary of Bankers Trust. He is presently an institutional
broker and Vice President covering banks and portfolio managers in
Latin America.
VINCENT D. CATER. Mr. Cater has been selected to serve as our
President and Chief Executive Officer. His banking experience spans
30 years in domestic and international banking. He began his career
in 1966 with Manufacturers Hanover Trust Company, New York, where he
completed the management training program and served as Assistant
Secretary in the Latin American division. He joined Citizens and
Southern National Bank, Atlanta, in 1970 and was responsible for South
American relationships. Mr. Cater was selected to relocate to Costa
Rica and serve as General Manager of Banco Centroamericano de Divisas,
in San Jose, a subsidiary bank. After four years, Mr. Cater returned
to Citizens & Southern Bank in Atlanta and held the title of Senior
Vice President responsible for all Latin American relationships with
total commitments in excess of $350 million. In 1983, Mr. Cater
joined the predecessor bank to First American Bank of Georgia, N.A. as
Executive Vice President and Manager of International Banking. During
his tenure, he established an Edge Act subsidiary in Miami and later
served as the Edge Act subsidiary's President. In 1993, Mr. Cater
organized AmTrade International Bank and held the titles of President
and CEO. With offices in Miami and Atlanta, AmTrade International
Bank specialized in international trade finance and correspondent
banking. Prior to joining the organizer group of United Americas
Bank, Mr. Cater provided consulting services to clients engaging in
business in Eastern Europe, Latin America and the United States.
JORGE L. FORMENT. Mr. Forment has been selected to serve as our
Chief Financial Officer. His position with us, however, is subject to
approval by the Comptroller of the Currency. He has twenty years of
banking experience. Mr. Forment recently joined us from Milton
National Bank in Roswell, Georgia, where he served as Senior Vice
President and Chief Financial Officer between May 1998 and April 1999.
Prior to joining Milton National Bank, Mr. Forment worked with Etowah
Bank in Canton, Georgia, where he served as Senior Vice President and
Chief Financial Officer. Mr. Forment was employed with Etowah Bank
for nine years. Prior to working with Etowah Bank, Mr. Forment served
as a Vice President of Bank Consultants, Inc. in Atlanta, Georgia
where he was responsible for preparing de novo community bank charter
-31-<PAGE>
<PAGE>
applications. Mr. Forment also served as a Loan Review Officer with
First National Bank, Panama City, Florida from 1984 until 1988, and as
an Associate National Bank Examiner with the Comptroller of the
Currency from 1979 until 1984.
LUIS A. CACERES. Mr. Caceres joined Arthur Andersen & Co. in
1984, where he specialized in the telecommunications and
transportation industries and earned his license as a Certified Public
Accountant. Mr. Caceres was President of Belca Foodservice, one of
Atlanta's most successful Hispanic-owned companies, until the company
was sold in 1997. He subsequently founded FBX Resources, a venture
capital firm specializing in railroad intermodal and air
transportation. Until 1998, he served on the Board of Directors of
UniPro Foodservice, Inc. a cooperative of food service distributors
where he was co-Chair of the Finance Committee and member of the
Executive Committee. He also served on the Board of the Atlanta
Hispanic Chamber of Commerce in 1996-1997. He was recognized in 1998
by the Atlanta Hispanic Chamber of Commerce as one of the outstanding
Hispanic entrepreneurs in the United States.
RENE M. DIAZ. Mr. Diaz has spent his entire career with Diaz
Foods, where he serves as President and Chief Executive Officer. He
has been recognized both locally and nationally as one of the
outstanding Hispanic entrepreneurs in the United States. Mr. Diaz is
currently active on many Boards of Directors, including Directo, Inc.,
the Alliance Theatre, Egleston/Scottish Rite Hospital, the Latin
American Association, the Carter Center, and Zoo Atlanta. He has also
served on the Boards of the Atlanta Arts Festival, UNICEF, the
American Cancer Society (DeKalb), and the Atlanta Hispanic Chamber of
Commerce. In 1996, he was the recipient of the National Adelante
Award and in 1995, he was recognized with the Georgia Business of the
Year Award. In 1998, he and his company were featured nationally on CNN.
REINALDO PASCUAL. Mr. Pascual is a Partner in the Atlanta law firm of
Kilpatrick Stockton LLP. His areas of specialty are Securities, Investment
Companies/Advisers, Mergers and Acquisitions, and Latin American Transactions.
He has been instrumental in leading Kilpatrick Stockton's development and
expansion effort in Central and South America. He currently serves on the
Boards of Directors of the Atlanta Hispanic Chamber of Commerce and the
Panamanian Chamber of Commerce of the Southeast. Mr. Pascual was recognized by
Georgia Trend magazine in 1997 as one of the outstanding Georgians under 40.
FILIBERTO PRIETO. Mr. Prieto is the founder and Chief Executive Officer
of El Taco Veloz, a chain of five fast food restaurants in Atlanta and the
owner and operator of Taco Prisa and La Kermes. He is also CEO of WPLO, a
prominent Spanish language radio station which serves the Hispanic community
in the greater Atlanta area. Currently a member of the Board of Directors of
the Atlanta Hispanic Chamber of Commerce, he was previously nominated for the
Small Business of the Year Award in 1995, and was named Businessman of the Year
in 1997. Also in 1997, he was nominated as Entrepreneur of the Year by Ernst &
Young. He also served as Vice President of the newly-formed Mexican American
Chamber of Commerce. Mr. Prieto is active in community affairs and development
and is recognized through WPLO for his charitable and fundraising activities.
NORBERTO SANCHEZ. Mr. Sanchez is the Chairman and Chief
Executive Officer of the Norsan Group which he founded in 1987.
Headquartered in Atlanta, the Norsan Group encompasses several
businesses, including restaurants throughout the Southeast and
institutional food preparation and distribution. Prior to the
formation of the Norsan Group, Mr. Sanchez was employed as an engineer
and project manager with companies in Texas and Mexico. Mr. Sanchez
has been active in a number of civic and professional groups, including
-32-<PAGE>
<PAGE>
having served as past Chairman of the Atlanta Hispanic Chamber of Commerce.
IGNACIO LUIS TABOADA. Mr. Taboada currently serves both as
President of Phoenix Global Mortgage Corporation and as Executive Vice
President of Euramex Management, Inc., a real estate development and
finance company. Phoenix Global is the only Hispanic-owned mortgage
banking company in Georgia. Mr. Taboada is the sole Hispanic Commissioner on
the Fulton County Housing Authority. He has served on the Board of Directors
of the Latin American Association and is Honorary Consul of Spain in Atlanta.
SAM ZAMARRIPA. Mr. Zamarripa is Senior Vice President for
Community Development of the Metropolitan Atlanta Chamber of Commerce.
From 1993 to 1997, he was Vice President of Marketing for Diaz-Verson
Capital Investments, Inc. He currently serves on the Boards of
Directors of the Latin American Association, Leadership Atlanta, and
the Regional Leadership Foundation and on the Board of Visitors of
Clayton State University. Previously, he served on the Boards of The
Mexican Center, Metropolitan Atlanta Chamber of Commerce, and the
National Association of Securities Professionals. Among other honors
and appointments, he has served on the State Elections and Voter
Registration Commission and as United States Delegate to the Western
Hemisphere Trade Ministerial.
ADVISORY BOARD OF DIRECTORS
- ---------------------------
In addition to our Board of Directors, we have formed an Advisory
Board of Directors, which we expect will provide us a valuable source
of business leads and support. The Advisory Board initially will be
comprised of the following prominent Hispanics who reside in Georgia:
RUDY M. BESERRA. Mr. Beserra is Assistant Vice President and
Director of Corporate Latin Affairs of The Coca-Cola Company. He
began his career at The Coca-Cola Company in 1989 after having served
as Special Assistant to President Ronald Reagan on Latino and Small
Business Affairs. Mr. Beserra is an active board member of a number
of prominent Latino-focused organizations and has received widespread
recognition for his work in national Hispanic affairs.
MANUEL CHAVEZ. Mr. Chavez is Chief Executive Officer of Parking
Company of America, Inc. and Managing Partner of Chavez Properties,
one of the largest central business district landowners in the United
States. Mr. Chavez has directed the management, acquisition and
disposition of property through innovative equity financing with
institutional and private sectors.
THOMAS W. DORTCH, JR. Mr. Dortch is President and Chief
Executive Officer of TWD, Inc. He worked for U.S. Senator Sam Nunn
for sixteen years and in 1990 became the first African-American in the
nation to serve as State Director for the United States Senate. In
this capacity, he provided Senator Nunn with advice on legislation
impacting small businesses, minorities, and civil and human rights
issues. He is President of the 100 Black Men of America, Inc.
CARLOS M. FRANCO, M.D., FACP. Dr. Franco is a practicing
physician and partner with Georgia Cancer Specialists, P.C. and a
staff physician with several local hospitals. He has authored or co-
authored numerous publications in his field. He is a member of
several medical societies and serves as Vice-Chairman of the Latin
American Association of Atlanta.
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<PAGE>
VINCENT GALAN, M.D. Dr. Galan is President and partner of
Riverdale Anesthesia Associates, PC and co-director and attending
anesthesiologist of the Pain Center at Southern Regional Medical
Center. Dr. Galan is involved in numerous committees at Southern
Regional and is a member of various professional associations.
EDUARD DE GUARDIOLA. Mr. De Guardiola is President and Director
of Focus Group, a multi-dimensional real estate company. He has over
twenty years of experience in all facets of real estate management and
development, including residential and retail. Prior to his
involvement in the private sector, Mr. De Guardiola spent
approximately five years as an attorney, specializing in commercial
real estate.
BILL PENA. Mr. Pena is the Regional President for Chile and
Argentina for The Home Depot. He has been with The Home Depot since
1994 and has been involved in all aspects of its international
initiatives. Prior to joining The Home Depot, Mr. Pena was the Senior
Vice President and General Merchandising Manager with Home Base, which
he helped found and grow beyond an initial public offering. Mr. Pena
also is the Chairman of the Board of Home Depot's joint venture with
Falabella, Chile's largest retailer, and is a member of the board of
the Council of the Americas.
MARITZA SOTO KEEN. Mrs. Keen has been the Executive Director of
the Latin American Association since 1984. Under her leadership, the
Latin American Association has grown into one of the most successful
and widely recognized non-profit social agencies in the United States.
Mrs. Keen has received numerous awards and honors in recognition of
her contributions to Atlanta and Georgia Hispanic community.
TEODORO MAUS. Mr. Maus has served as Consul General of Mexico in
Atlanta, Georgia since his appointment in 1995. He began his
diplomatic career in 1978 as the cultural attache of Mexico in New
York. In 1987, Mr. Maus was appointed to the permanent mission of
Mexico at the United Nations.
VICTOR RODRIGUEZ. Mr. Rodriguez is Managing Director of GMA
Partners, Inc., a merchant and investment banking firm located in
Atlanta, Georgia. He has over thirteen years experience in private
capital placement, merger and acquisition advisory services and
corporate finance. Mr. Rodriguez is currently a member of the Atlanta
Society of Financial Analysts.
RAMON A. SUAREZ, M.D. Dr. Suarez is Chairman of the Obstetrics
and Gynecology Division for Piedmont Clinic (Promina Health Care
System) and has been in private practice since 1983. Dr. Suarez is
actively involved with the Department of Obstetrics and Gynecology at
Emory University School of Medicine and in numerous professional
organizations.
MARIO TRUJILLO. Mr. Trujillo is Executive Vice President and
Chief Financial Officer of Directo, Inc. Prior to that time, Mr.
Trujillo was senior tax manager and member of the international
banking and real estate teams at Arthur Andersen & Co. Mr. Trujillo
also held positions as Executive Vice President and Chief Financial
Officer of Ackerman & Co. and subsequently, partner, Chief Financial
Officer and head of asset management for Madison Capital Partners. He
has served as Chairman of the Latin American Association and remains
active in Hispanic affairs.
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COMMITTEES OF THE BOARDS OF DIRECTORS
- -------------------------------------
Our Board of Directors will establish the committees described
below and may add additional committees as are necessary. The members
of each committee will be the same for United Americas Bank as they
are for us.
Asset and Liability Management Committee. The Asset and
----------------------------------------
Liability Management Committee will provide guidance to United
Americas Bankshares and United Americas Bank in balancing the yields
and maturities in loans and investments to deposits. The committee
will be comprised of members of the Board of Directors and the
officers. The Chairman will be selected by the Board of Directors.
Audit and Compliance Committee. The Audit and Compliance
------------------------------
Committee will recommend to the Board of Directors the independent
public accountants to be selected to audit United Americas Bankshares'
and United Americas Bank's annual financial statements and will
approve any special assignments given to the independent public
accountants. The Audit and Compliance Committee also reviews the
planned scope of the annual audit, any changes in accounting
principles, and the effectiveness and efficiency of United Americas
Bankshares' and United Americas Bank's internal accounting staff.
Additionally, the Audit and Compliance Committee will provide
oversight to United Americas Bankshares' and United Americas Bank's
compliance with regulatory rules and regulations, including the
Community Reinvestment Act and Year 2000 issues. The committee will
be comprised of members of the Board of Directors. The Chairman will
be selected by the Board of Directors.
Compensation Committee. The Compensation Committee will
----------------------
establish remuneration levels for officers of United Americas
Bankshares and United Americas Bank, review management organization
and development, review significant employee benefit programs, and
establish and administer executive compensation programs, including
the stock plan as described below. The committee will be comprised of
members of the Board of Directors. The Chairman will be selected by
the Board of Directors.
Year 2000 Committee. The Year 2000 Committee will establish
-------------------
guidelines for the acquisition of new equipment and services that will
be year 2000 compliant; communicate with potential borrowers, vendors,
and service providers regarding year 2000 issues; and monitor our
progress in this area. The Committee's work will continue until the
year 2000 and, in the event a year 2000 problem occurs, thereafter
until the problem is resolved. The committee will be chaired by Jorge
Forment.
Executive Committee. The Executive Committee will have authority
-------------------
to exercise the powers of the Board of Directors in managing the
affairs and assets of United Americas Bankshares and United Americas
Bank between Board meetings, except for the powers exclusively
reserved to the Board of Directors of United Americas Bank or United
Americas Bankshares. The Executive Committee also will be responsible
for making recommendations to the Board of Directors regarding matters
relating to the management and expansion of United Americas Bank. The
Executive Committee will be comprised of members of the Board of
Directors. The Chairman will be selected by the Board of Directors.
Loan Committee. The Loan Committee will review any loan request
--------------
made by a potential borrower over a certain credit threshold for
compliance with United Americas Bank's lending policies and federal
and state rules and regulations governing extensions of credit and
decide whether to extend credit to the potential borrower. The
committee will be comprised of members of the Board of Directors. The
Chairman will be selected by the Board of Directors.
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<PAGE>
EXECUTIVE COMPENSATION
1998 COMPENSATION
- -----------------
The following table shows information for 1998 with regard to
compensation for services rendered in all capacities to us by Mr.
Cater, our Chief Executive Officer and President. No executive
officer earned more than $100,000 in salary and bonus in 1998.
<TABLE>
<CAPTION>
SUMMARY COMPENSATION TABLE FOR 1998
Annual Compensation Long-Term Compensation
------------------------------------- --------------------------------------------------------------
Awards Payouts
-------------------------- ---------------------------------
Securities
Name and Other Annual Restricted Underlying All Other
Principal Compensation Stock Options/ LTIP Payouts Compensation ($)
Position Salary ($) Bonus ($) ($) Award(s) SARs (#) ($)
----------------------------------------------------------------------------------------------------------------------------
<S> <S> <C> <C> <C> <C> <C> <C>
Vincent D. 69,000 -0- 5,000 -0- -0- -0- -0-
Cater: President
and CEO
</TABLE>
EMPLOYMENT AGREEMENTS
- ---------------------
Effective May 20, 1998, we entered into an employment agreement
with Mr. Cater regarding his employment as our President and Chief
Executive Officer, which agreement was amended and restated on January 7,
1999. Under the terms of the employment agreement, Mr. Cater will
receive a salary of $135,000 per year. At the end of each year of
operation, he will be entitled to receive a cash bonus equal to 15% of
his annual salary, subject to our exceeding certain performance
targets which shall be determined annually by the Compensation
Committee. We will grant Mr. Cater an incentive stock option to
purchase 25,000 shares of common stock at an exercise price equal to
the fair market value of the shares of common stock on the date of
grant as determined by an independent consultant. Ten thousand of the
options will vest on the date of the opening of United Americas Bank
and an additional 5,000 shares will vest at the end of calendar year
thereafter for the next three years. We will also provide an
automobile allowance of $750.00 per month, country club membership
dues, and up to one other luncheon club membership, if deemed
appropriate by the Board of Directors, to Mr. Cater.
The initial term of Mr. Cater's employment commenced on June 1,
1998 and will continue until January 31, 2002. At the end of the
initial term of employment and at the end of each succeeding twelve-
month period, the agreement will be extended for a successive twelve-
month period unless either party provides notice of his or its intent
not to extend the agreement. If (1) Mr. Cater dies or (2) we abandon
our organizational efforts or certain other terms and conditions are
not met by April 30, 1999, neither we nor United Americas Bank will
have any further obligations under the agreement. Mr. Cater may be
terminated (1) by United Americas Bank and United Americas Bankshares
for good reason (as defined in the agreement); (2) at the election of
Mr. Cater if United Americas Bank or United Americas Bankshares
breaches any material provision of the agreement and the breach is not
cured within 30 days after written notice of the breach is given by
the Mr. Cater to us or if his powers, responsibilities, or duties are
materially diminished; or (3) upon Mr. Cater's death or disability.
If Mr. Cater terminates employment due to our breach or for good
reason, we will be required to pay the compensation and provide the
-36-<PAGE>
<PAGE>
benefits due under the agreement for a period of six months (or twelve
months if there is a change in control of us within the six-month
period). If Mr. Cater terminates his employment without cause, United
Americas Bankshares' obligations under the agreement will cease as of
the date of termination. If we terminate Mr. Cater's employment for
good reason, our obligations under the agreement will cease as of the
date of termination; provided, however, that if employment is
terminated as a result of death or disability, benefits will be
provided in accordance with the agreement. Mr. Cater will be
prohibited from competing with United Americas Bankshares or United
Americas Bank or soliciting our customers or employees within the
geographic area set forth in the agreement for a period of six months
from the date of termination.
DIRECTOR COMPENSATION
- ---------------------
The directors of United Americas Bankshares and United Americas
Bank will not be compensated separately for their services as
directors until net profits of United Americas Bankshares and United
Americas Bank exceed our net losses since inception on a cumulative
basis.
ORGANIZERS' WARRANTS
- --------------------
The organizers intend to purchase a total of 190,000 shares of
common stock in the offering at a price of $10.00 per share. This
represents approximately 16% of the shares that will be outstanding
after the offering.
In recognition of the efforts made and financial risks undertaken
by the organizers in organizing United Americas Bankshares and United
Americas Bank, we will issue to the organizers warrants to purchase
additional shares of common stock. We will issue to each organizer a
warrant to purchase one share of common stock for each share the
organizer purchases, up to a limit of 20% of the initial offering when
combined with total stock options. The organizers may purchase up to
190,000 shares through the exercise of these options and warrants.
The warrants will become exercisable in 20% annual increments
beginning on the one-year anniversary of the date of the closing of
the offering so long as the holder remains on our Board of Directors.
Exercisable warrants will remain exercisable for the 10 year period
following the date of the closing of the offering or for 90 days after
a warrant holder ceases to be a director, whichever is shorter. Each
warrant will be exercisable at a price of $10.00 per share subject to
adjustment for stock splits, recapitalizations, or other similar
events.
STOCK INCENTIVE PLAN
- --------------------
General. Our Stock Incentive Plan provides us with the
-------
flexibility to grant the stock incentives described in this section of
the prospectus to key employees, officers, and directors of United
Americas Bankshares and United Americas Bank for the purpose of giving
them a proprietary interest in, and to encourage them to remain in the
employ of, United Americas Bankshares or United Americas Bank. The
Board of Directors has reserved 50,000 shares of common stock, an
amount equal to 4% of the shares of common stock sold in this
offering, for issuance under the plan. The number of shares reserved
for issuance may change in the event of a stock split,
recapitalization, or similar event as described in the plan.
Administration. Our Compensation Committee, which is comprised
--------------
of at least 3 directors appointed by our Board of Directors, will
administer the plan. The Board of Directors will consider the
standards contained in both Section 162(m) of the Internal Revenue
Code of 1986, as currently in effect, and Rule 16(b)(3) under the
Securities Exchange Act of 1934, as currently in effect, when appointing
-37-<PAGE>
<PAGE>
members to the Compensation Committee. The Compensation
Committee or, as the case may be, the Board of Directors, will have
the authority to grant awards under the plan, to determine the terms
of each award, to interpret the provisions of the plan, and to make
all other determinations that it may deem necessary or advisable to
administer the plan.
Awards. The plan permits the Compensation Committee to make
------
awards of shares of common stock, awards of stock options and similar
securities related to the value of the common stock, and certain cash
awards to eligible persons. The Compensation Committee may grant
these awards on an individual basis or may design a program providing
for awards to a group of eligible persons. The plan permits the
committee to make awards of a variety of stock-based incentives,
including stock awards, stock options and other incentive compensation
based on the fair market value of the common stock. These incentives
are described more fully below.
The Compensation Committee determines, within the limits of the
plan, the number of shares of common stock subject to a stock
incentive and to whom any stock incentive is granted and the exercise
or settlement price and forfeiture or termination provisions of each
stock incentive. A holder of a stock incentive generally may not
transfer the stock incentive during his or her lifetime, but the
Compensation Committee may provide for limited transferability of non-
qualified stock options.
Options. The plan provides for incentive stock options and non-
-------
qualified stock options. The Compensation Committee will determine
whether an option is an incentive stock option or a non-qualified
stock option when it grants the option, and the option will be
evidenced by a stock incentive agreement describing the material terms
of the option.
The exercise price of an incentive stock option may not be less
than the fair market value of the common stock on the date of the
grant, or less than 110% of the fair market value if the participant
owns more than 10% of our outstanding common stock. When the
incentive stock option is exercised, we will be entitled to place a
legend on the certificates representing the shares of common stock
purchased upon exercise of the option to identify them as shares of
common stock purchased upon the exercise of an incentive stock option.
The exercise price of non-qualified stock options may be equal to,
less than, or more than the fair market value of the common stock on
the date that the option is awarded, based upon any reasonable measure
of fair market value. The Compensation Committee may permit the
exercise price to be paid in cash, by the delivery of previously owned
shares of common stock, or to be satisfied through a cashless exercise
executed through a sales agent or by having a number of shares of
common stock otherwise issuable at the time of exercise withheld.
The Compensation Committee will also determine the term of an
option. The term of an incentive stock option may not exceed 10 years
from the date of grant, but any incentive stock option granted to a
participant who owns more than 10% of the outstanding common stock
will not be exercisable after the expiration of 10 years after the
date the option is granted. The Compensation Committee may provide in
the stock incentive agreement for earlier termination of the option
upon the option holder's termination of employment, death, disability
or retirement. Incentive stock options are also subject to the
further restriction that the aggregate fair market value, determined
as of the date of the grant, of common stock as to which any incentive
stock option first becomes exercisable in any calendar year is limited
to $100,000 per recipient. If incentive stock options covering more
than $100,000 worth of common stock first become exercisable in any
one calendar year, the excess will be non-qualified options.
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Stock Appreciation Rights. The Compensation Committee may grant
-------------------------
stock appreciation rights separately or in connection with another
stock incentive, and the committee may provide that the holder may
exercise them at any time or that they will be paid at a certain time
or times or upon the occurrence or non-occurrence of certain events.
Stock appreciation rights may be settled in shares of common stock or
in cash, according to terms established by the Compensation Committee
with respect to any particular award.
Stock Awards. The Compensation Committee may grant shares of
------------
common stock to a participant either with or without restrictions or
conditions.
Other Stock Incentives. The Compensation Committee may award (1)
----------------------
the right to receive in the future an amount in cash, which is equal
to the full or partial fair market value of a specified number of
shares of common stock as of a specified date, (2) rights to receive
shares of common stock when the recipient, United Americas Bankshares,
or United Americas Bank achieves certain performance standards, (3)
rights to receive shares of common stock instead of cash dividends,
and (4) similar rights. The committee determines the numbers or units
to be granted, any applicable conditions or restrictions, and whether
the incentive will be paid in the form of cash or common stock.
Termination of Stock Incentive. The terms of particular stock
------------------------------
incentives may provide that they terminate, among other reasons, upon
the holder's termination of employment or other status with United
Americas Bankshares or United Americas Bank, upon a specified date,
upon the holder's death or disability, or upon the occurrence of a
change in control of us. Stock incentives may grant exercise,
conversion, or settlement rights to a holder's estate or personal
representative if the holder dies or becomes disabled.
Certain Reorganizations. The plan provides for appropriate
-----------------------
adjustment, as determined by the Compensation Committee, in the number
and kind of shares subject to unexercised options in the event of any
change in the outstanding shares of common stock by reason of a stock
split, stock dividend, combination or reclassification of shares,
recapitalization, merger or similar event. In the event of certain
corporate reorganizations, the committee may, within the terms of the
plan and the applicable stock incentive agreement, substitute, cancel,
accelerate, cashed-out, or otherwise adjust the terms of a stock
incentive.
Amendment and Termination of the Plan. The Board of Directors
-------------------------------------
has the authority to amend or terminate the plan, subject to
shareholder approval for certain types of amendments. Generally, the
Board's action may not adversely affect the rights of a holder of an
outstanding stock incentive without the holder's consent.
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
United Americas Bank may have banking and other business
transactions in the ordinary course of business with our directors and
officers and those of United Americas Bank, including members of their
families or corporations, partnerships, or other organizations in
which these directors and officers have a controlling interest. Currently, we
are aware of one related transaction. Reinaldo Pascual, an organizer and
proposed director of us and United Americas Bank, is an attorney with
Kilpatrick Stockton LLP, our counsel in connection with this offering.
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If additional transactions occur, the transaction: (1) will be on
substantially the same terms (including price or interest rate and
collateral) as those prevailing at the time for comparable
transactions with unrelated parties, and any banking transactions will
not be expected to involve more than the normal risk of collectibility
or present other unfavorable features to United Americas Bank, (2)
will be on terms no less favorable than could be obtained from an
unrelated third party, and (3) will be approved by a majority of the
directors, including a majority of the disinterested directors.
DESCRIPTION OF CAPITAL STOCK OF UNITED AMERICAS BANKSHARES
COMMON STOCK
- ------------
Our Articles of Incorporation authorize us to issue up to
5,000,000 shares of common stock, no par value, of which 1,200,000
shares will be issued pursuant to this offering. As of the date of
this prospectus, 50,000 shares of common stock, or approximately 4% of
the shares of common stock to be sold in the offering, were reserved
for issuance upon the exercise of stock options to be issued under the
1999 Stock Incentive Plan and 190,000 shares of common stock will be
reserved for issuance upon the exercise of the warrants to be issued
to the organizers. There are currently 20 shares of the common stock
issued. Messrs. Salvador Diaz-Verson and Alex Suarez each were issued
10 shares of common stock on May 14, 1998 in connection with our
organization. These shares will be redeemed by us upon completion of
the offering at their original aggregate price of $200.
All shares of common stock will be entitled to share equally in
dividends from legally available funds, when and if declared by the
Board of Directors. Upon our voluntary or involuntary liquidation or
dissolution, all shares of common stock will be entitled to share
equally in all of our assets that are available for distribution to
the shareholders. We do not anticipate that we will pay any cash
dividends on the common stock in the near future. Each holder of
common stock will be entitled to one vote for each share on all
matters submitted to the shareholders. Holders of common stock will
not have any right to acquire our authorized but unissued capital
stock whenever we issue new shares of capital stock. No cumulative
voting, redemption, sinking fund, or conversion rights or provisions
apply to the common stock. All shares of the common stock issued in
the offering will be fully paid and non-assessable.
PREFERRED STOCK
- ---------------
Our Articles of Incorporation also authorize our Board of
Directors to issue up to 1,500,000 shares of preferred stock, no par
value. The Board of Directors may determine the terms of the
preferred stock. Preferred stock may have voting, dividend,
conversion, exchange, redemption, and other rights, subject to
applicable law and determination by the Board of Directors. We have
not issued any preferred stock. We will not issue preferred stock to
the organizers except on the same terms as it is offered to all other
existing shareholders or to new shareholders. Although we have no
present plans to issue any preferred stock, ownership and control by
the holders of the common stock would be diluted if we were to issue
preferred stock that had voting rights.
The existence of preferred stock could impede a takeover of us
without the approval of our shareholders. This is because the Board
of Directors could issue shares of preferred stock to persons friendly
to current management, which could render more difficult or discourage
any attempt to gain control of us through a proxy contest, tender
offer, merger, or otherwise. In addition, the issuance of shares of
preferred stock with voting rights could adversely affect the rights
of the holders of common stock and, in certain circumstances,
issuances of preferred stock could decrease the market price of the
common stock.
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<PAGE>
CERTAIN PROVISIONS OF THE ARTICLES OF INCORPORATION AND BYLAWS
DIRECTORS
- ---------
Terms for Board of Directors. Article III of our Bylaws provides
----------------------------
that our Board of Directors are elected annually and serve a term of one year
which expires at the annual meeting of shareholders following their election,
or at their earlier resignation, removal from office, or death.
Change in Number of Directors. Article III of our Bylaws
-----------------------------
provides that the number of directors may be increased or decreased by
amendment to the Bylaws adopted by the Board of Directors at a meeting
at which a quorum is present or by election by the shareholders of a
different number of directors when electing the entire board of directors.
To adopt the amendment, more directors must vote for it than against it.
Removal of Directors. Article III of our Bylaws provides that
--------------------
the shareholders may remove any director, with or without cause, by a
majority of the votes entitled to be cast for the election of directors.
INDEMNIFICATION
- ---------------
Our Bylaws contain certain indemnification provisions which
provide that our directors, officers, employees, or agents will be
indemnified against expenses that they actually and reasonably incur
if they are successful on the merits of a claim or proceeding. In
addition, the Bylaws provide that we will advance to our directors,
officers, employees, or agents reasonable expenses of any claim or
proceeding, so long as the director, officer, employee, or agent
furnishes us with (1) a written affirmation of his or her good faith
belief that he or she has met the applicable standard of conduct, and
(2) a written statement that he or she will repay any advances if it
is ultimately determined that he or she is not entitled to
indemnification.
When a case or dispute is settled or otherwise not ultimately
determined on its merits, the indemnification provisions provide that
we will indemnify insiders when they meet the applicable standard of
conduct. The applicable standard of conduct is met if the insider
acted in a manner he or she in good faith believed to be in or not
opposed to our best interest and, in the case of a criminal action or
proceeding, if the insider had no reasonable cause to believe his or
her conduct was unlawful. Our Board of Directors, shareholders, or
independent legal counsel determines whether the insider has met the
applicable standard of conduct in each specific case.
Our Bylaws also provide that the indemnification rights contained
in the Bylaws do not exclude other indemnification rights to which an
insider may be entitled under any bylaw, resolution, or agreement,
either specifically or in general terms approved by the affirmative
vote of the holders of a majority of the shares entitled to vote. We
can also provide for greater indemnification than is provided for in
the Bylaws if we choose to do so, subject to approval by our
shareholders. We may not, however, indemnify an insider for liability
arising out of circumstances that would cause the insider to remain
liable for his or her actions as described under "Limitation of
Liability" below.
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<PAGE>
We are not aware of any pending or threatened action, suit, or
proceeding involving any of our directors, officers, employees, or
agents for which indemnification from us may be sought.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933, as currently in effect, may be permitted to
our directors, officers, and controlling persons under the foregoing
provisions, or otherwise, we have been advised that, in the opinion of
the Securities and Exchange Commission, this type of indemnification
is against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against
liabilities other than our payment of expenses incurred or paid by one
of our directors, officers, or controlling persons in the successful
defense of any action, suit, or proceeding is asserted by a director,
officer, or controlling person in connection with the securities being
registered, we will, unless in the opinion of our counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether the indemnification by
it is against public policy as expressed in the Securities Act of
1933, as currently in effect, and will be governed by the final
adjudication of the issue.
Limitation of Liability
- -----------------------
Article VI of our Articles of Incorporation eliminates, with
certain exceptions, the potential personal liability of a director for
monetary damages to us and our shareholders for breach of a duty as a
director. There is no elimination of liability for (1) a breach of
duty involving appropriation of a business opportunity, (2) an act or
omission not in good faith or involving intentional misconduct or a
knowing violation of law, (3) a transaction from which the director
derives an improper material tangible personal benefit, or (4) any
payment of a dividend or approval of a stock repurchase that is
illegal under the Georgia Business Corporation Code. Article VI does
not eliminate or limit the right of us or our shareholders to seek
injunctive or other equitable relief not involving monetary damages.
The Georgia Business Corporation Code allows Georgia corporations
to include in their Articles of Incorporation a provision eliminating
or limiting the liability of directors, except in the circumstances
described above. As a result, and to encourage qualified individuals
to serve and remain as directors, we included Article VI in our
Articles of Incorporation. While we have not experienced any problems
in locating directors, we could experience difficulty in the future as
our business activities increase and diversify. We also adopted
Article VI to enhance our ability to secure liability insurance for
our directors at a reasonable cost. We intend to obtain liability
insurance covering actions taken by our directors in their capacities
as directors. We believe that Article VI will enable us to obtain
insurance on terms more favorable than if it were not included in the
Articles of Incorporation.
AMENDMENTS
- ----------
Any amendment of our Articles of Incorporation requires the
affirmative vote of a majority of the Board of Directors and, in most
instances, the holders of the outstanding shares of common stock. The
Board of Directors may amend the Bylaws unless the shareholders in
amending or repealing a particular Bylaw provide expressly that the
Board of Directors may not amend or repeal that Bylaw. A Bylaw
limiting the authority of the Board of Directors, establishing
staggered terms for directors, or setting a supermajority quorum or
voting requirement for the shareholders may only be adopted by the
shareholders and may not be adopted, amended, or repealed by the Board
of Directors, except as provided in Georgia Business Corporation Code
sections 14-2-1113 or 14-2-1133.
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SHARES ELIGIBLE FOR FUTURE SALE
Upon completion of the offering, 1,200,000 shares of our common
stock will be issued and outstanding. These shares of common stock
will be freely tradable without restriction, except that our
"affiliates" must comply with the resale limitations of Rule 144 under
the Securities Act of 1933, as currently in effect. Rule 144 defines
an "affiliate" of a company as a person who directly, or indirectly
through one or more intermediaries, controls, or is controlled by, or
is under common control with, the company. Affiliates of a company
generally include its directors, officers, and principal shareholders.
A total of 193,000 shares will be owned directly or indirectly by our
affiliates upon completion of the offering and will be eligible for
public sale pursuant to Rule 144.
Purchasers of common stock in this offering or on the open market
may resell those shares immediately, although our affiliates will be
subject to the volume and other limitations of Rule 144. In general,
under Rule 144, as currently in effect, affiliates will be entitled to
sell within any three month period a number of shares that does not
exceed the greater of one percent of the outstanding shares of common
stock of the average weekly trading volume during the four calendar
weeks preceding his or her sale. Sales under Rule 144 are also
subject to certain manner of sale provisions, a notice requirement,
and the availability of current public information about us.
Affiliates will not be subject to the volume restrictions and other
limitations under Rule 144 beginning 90 days after their status as an
affiliate terminates.
We intend to issue warrants to purchase up to a total of 190,000
shares of common stock representing an amount equal to 16% of the
common stock sold in the offering. We also intend to grant options to
purchase up to a total of 50,000 shares of common stock, representing
approximately 4% of the common stock sold in the offering, under our
1999 Stock Incentive Plan. We intend to register the shares issuable
upon exercise of warrants and options granted under the plan. Upon
registration, these shares will be eligible for resale in the public
market without restriction by persons who are not our affiliates, and
to the extent they are held by affiliates, under Rule 144 without a
holding period.
Prior to the offering, there has been no public market for the
common stock, and we cannot predict the effect, if any, that the sale
of shares or the availability of shares for sale will have on the
market price prevailing from time to time. Nevertheless, sales of
substantial amounts of common stock in the public market could
adversely affect prevailing market prices and our ability to raise
equity capital in the future.
SUPERVISION AND REGULATION
THE FOLLOWING DISCUSSION OF STATUTES AND REGULATIONS THAT APPLY
TO BANK HOLDING COMPANIES AND BANKS IS A SUMMARY THEREOF AND IS
QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH STATUTES AND REGULATIONS.
GENERAL
- -------
We are in the process of becoming a registered bank holding
company subject to regulation by the Federal Reserve under the Bank
Holding Company Act of 1956, as currently in effect. We are required
to file financial information with the Federal Reserve periodically
and are subject to periodic examination by the Federal Reserve.
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<PAGE>
The Bank Holding Company Act requires every bank holding company
to obtain the Federal Reserve's prior approval before (1) it may
acquire direct or indirect ownership or control of more than 5% of the
voting shares of any bank that it does not already control; (2) it or
any of its non-bank subsidiaries may acquire all or substantially all
of the assets of a bank; and (3) it may merge or consolidate with any
other bank holding company. In addition, a bank holding company is
generally prohibited from engaging in, or acquiring, direct or
indirect control of the voting shares of any company engaged in non-
banking activities. This prohibition does not apply to activities
found by the Federal Reserve, by order or regulation, to be so closely
related to banking or managing or controlling banks as to be a proper
incident thereto. Some of the activities that the Federal Reserve has
determined by regulation or order to be closely related to banking
are: making or servicing loans and certain types of leases;
performing certain data processing services; acting as fiduciary or
investment or financial advisor; providing brokerage services;
underwriting bank eligible securities; underwriting debt and equity
securities on a limited basis through separately capitalized
subsidiaries; and making investments in corporations or projects
designed primarily to promote community welfare.
We must also register with the Georgia Department of Banking and
Finance and file periodic information with the Georgia Department of
Banking and Finance. As part of this registration, the Georgia
Department of Banking and Finance requires information regarding our
financial condition, operations, management, and intercompany
relationships and the financial condition, operations, management, and
intercompany relationships of our subsidiary banks. The Georgia
Department of Banking and Finance may also require other information
that is necessary to insure that provisions of Georgia law and the
regulations and orders issued by the Georgia Department of Banking and
Finance have been complied with, and the Georgia Department of Banking
and Finance may examine us and our subsidiary banks.
We are an "affiliate" of United Americas Bank under the Federal
Reserve Act which imposes certain restrictions on (1) loans by United
Americas Bank to us, (2) United Americas Bank's investment in our
stock or securities, (3) United Americas Bank's taking the stock or
securities of an "affiliate" as collateral for loans by United
Americas Bank to a borrower and (4) United Americas Bank's purchase of
assets from us. Further, a bank holding company and its subsidiaries
are prohibited from engaging in certain tie-in arrangements in
connection with any extension of credit, lease or sale of property, or
furnishing of services.
United Americas Bank will be a national bank chartered under the
National Bank Act and will be subject to the supervision of, and is
regularly examined by, the Office of the Comptroller of the Currency.
The Office of the Comptroller of the Currency regulates or monitors
all areas of United Americas Bank's operations and activities,
including reserves, loans, mergers, issuance of securities, payments
of dividends, interest rates, and establishment of branches. Interest
and certain other charges collected or contracted for by United
Americas Bank are also subject to state usury laws or federal laws
concerning interest rates. A bank can be held liable for any loss
incurred by, or reasonably expected to be incurred by, the FDIC in
connection with the default of a commonly-controlled institution.
United Americas Bank will be insured by the FDIC. The major
functions of the FDIC with respect to insured banks include paying
depositors to the extent provided by law if an insured bank is closed
without adequate provisions having been made to pay claims of
depositors, acting as a receiver of state banks placed in receivership
when appointed receiver by state authorities, and preventing the
development or continuance of unsound and unsafe banking practices.
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<PAGE>
PAYMENT OF DIVIDENDS
- --------------------
We are a legal entity separate and distinct from United Americas
Bank. The principal source of our revenues will be dividends that
United Americas Bank pays to us as its sole shareholder. Statutory
and regulatory limitations apply to United Americas Bank's payment of
dividends to us, as well as to our payment of dividends to our
shareholders.
As a national bank, United Americas Bank is required by federal
law to obtain the prior approval of the Office of the Comptroller of
the Currency for payments of dividends if the total of all dividends
declared by the Board of Directors in any year will exceed (1) the
total of United Americas Bank's net profits (as defined and
interpreted by regulation) for that year, plus (2) United Americas
Bank's retained net profits (as defined and interpreted by regulation)
of the preceding two years, less any required transfers to surplus.
The payment of dividends by United Americas Bankshares and United
Americas Bank may also be affected or limited by other factors, such
as the requirement to maintain adequate capital above regulatory
guidelines. In addition, if, in the opinion of the applicable
regulatory authority, a bank under its jurisdiction is engaged in or
is about to engage in an unsafe or unsound practice (which, depending
upon the financial condition of the bank, could include the payment of
dividends), the authority may require, after notice and hearing, that
the bank cease and desist from the unsafe or unsound practice. The
Federal Reserve and the Office of the Comptroller of the Currency have
issued policy statements that provide that bank holding companies and
insured banks should generally only pay dividends out of current
operating earnings. In addition to the formal statutes and
regulations, regulatory authorities consider the adequacy of a bank's
total capital in relation to its assets, deposits and such items.
Capital adequacy considerations could further limit the availability
of dividends to United Americas Bank.
MONETARY POLICY
- ---------------
The results of operations of United Americas Bank are affected by
credit policies of monetary authorities, particularly the Federal
Reserve. The instruments of monetary policy employed by the Federal
Reserve include open market operations in U.S. government securities,
changes in the discount rate on bank borrowings, and changes in
reserve requirements against bank deposits. In view of changing
conditions in the national economy and in the money markets, as well
as the effect of actions by monetary and fiscal authorities, including
the Federal Reserve, no prediction can be made as to possible future
changes in interest rates, deposit levels, loan demand, or the
business and earnings of United Americas Bank.
CAPITAL ADEQUACY
- ----------------
The Office of the Comptroller of the Currency and the Federal
Reserve have implemented risk-based rules for assessing bank and bank
holding company capital adequacy. These regulations establish minimum
capital standards in relation to assets and off-balance sheet
exposures as adjusted for credit risk. Banks and bank holding
companies are required to have (1) a minimum level of total capital
(as defined) to risk-weighted assets of 8%; (2) a minimum Tier 1
Capital (as defined) to risk-weighted assets of 4%; and (3) a minimum
shareholders' equity to risk-weighted assets of 4%. In addition, the
Federal Reserve and the Office of the Comptroller of the Currency have
established a minimum 3% leverage ratio of Tier 1 Capital to total
assets for the most highly-rated banks and bank holding companies.
"Tier 1 Capital" generally consists of common equity not including
unrecognized gains and losses on securities, minority interests in
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<PAGE>
equity accounts of consolidated subsidiaries and certain perpetual
preferred stock less certain intangibles. The Federal Reserve and the
Office of the Comptroller of the Currency will require a bank holding
company and a bank, respectively, to maintain a leverage ratio greater
than 3% if either is experiencing or anticipating significant growth
or is operating with less than well-diversified risks in the opinion
of the Federal Reserve or the Office of the Comptroller of the
Currency. The Federal Reserve and the Office of the Comptroller of
the Currency use the leverage ratio in tandem with the risk-based
ratio to assess the capital adequacy of banks and bank holding
companies. The capital adequacy standards also provide for the
consideration of interest rate risk in the overall determination of a
bank's capital ratio, requiring banks with greater interest rate risk
to maintain greater capital for the risk.
In addition, the Bank is subject to the prompt corrective action
provisions that Congress enacted as a part of the Federal Deposit
Insurance Corporation Improvement Act of 1991. The "prompt corrective
action" provisions set forth five regulatory zones in which all banks
are placed largely based on their capital positions. Regulators are
permitted to take increasingly harsh action as a bank's financial
condition declines. Regulators are also empowered to place in
receivership or require the sale of a bank to another depository
institution when a bank's capital leverage ratio reaches 2%. Better
capitalized institutions are generally subject to less onerous
regulation and supervision than banks with lesser amounts of capital.
The Office of the Comptroller of the Currency and the Federal
Reserve have adopted regulations implementing the prompt corrective
action provisions of the Federal Deposit Insurance Corporation
Improvement Act of 1991, which place financial institutions in the
following five categories based upon capitalization ratios: (1) a
"well capitalized" institution has a total risk-based capital ratio of
at least 10%, a Tier 1 risk-based ratio of at least 6% and a leverage
ratio of at least 5%; (2) an "adequately capitalized" institution has
a total risk-based capital ratio of at least 8%, a Tier 1 risk-based
ratio of at least 4% and a leverage ratio of at least 4%; (3) an
"undercapitalized" institution has a total risk-based capital ratio of
under 8%, a Tier 1 risk-based ratio of under 4% or a leverage ratio of
under 4%; (4) a "significantly undercapitalized" institution has a
total risk-based capital ratio of under 6%, a Tier 1 risk-based ratio
of under 3% or a leverage ratio of under 3%; and (5) a "critically
undercapitalized" institution has a leverage ratio of 2% or less.
Institutions in any of the three undercapitalized categories would be
prohibited from declaring dividends or making capital distributions.
The Federal Reserve regulations also establish procedures for
"downgrading" an institution to a lower capital category based on
supervisory factors other than capital.
LEGAL MATTERS
Kilpatrick Stockton LLP, Atlanta, Georgia will pass upon the
validity of the shares of common stock offered by this prospectus.
Reinaldo Pascual, a partner in Kilpatrick Stockton, serves on our
Board of Directors and is expected to purchase 10,000 shares, and
receive warrants to purchase 10,000 shares at a price of $10.00 per
share, in connection with this offering.
EXPERTS
Our audited financial statements at March 31, 1999 and for the
period from May 14, 1998 through March 31, 1999, included in this
prospectus have been included in reliance on the report of
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<PAGE>
Porter Keadle Moore, LLP, Atlanta, Georgia, independent certified public
accountants, given on the authority of that firm as experts in
accounting and auditing.
REPORTS TO SHAREHOLDERS
Upon the effective date of the Registration Statement on Form SB-2
that registers the shares of common stock offered by this prospectus
with the Securities and Exchange Commission, we will be subject to the
reporting requirements of the Securities Exchange Act of 1934, as
currently in effect, which include requirements to file annual reports
on Form 10-KSB and quarterly reports on Form 10-QSB with the
Securities and Exchange Commission. This reporting obligation will
exist for at least one year and will continue for successive fiscal
years, except that these reporting obligations may be suspended for
any subsequent fiscal year if, at the beginning of the year, the
common stock is held of record by less than 300 persons.
At any time that we are not a reporting company, we will furnish
our shareholders with annual reports containing audited financial
information for each fiscal year on or before the date of the annual
meeting of shareholders as required by Rule 80-6-1-.05 of the Georgia
Department of Banking and Finance. United Americas Bankshares' fiscal
year ends on December 31. Additionally, we will also furnish other
reports as it may determine to be appropriate or as otherwise may be
required by law.
ADDITIONAL INFORMATION
We have filed with the Securities and Exchange Commission a
Registration Statement on Form SB-2 under the Securities Act or 1933,
as currently in effect, with respect to the shares of common stock
offered by this prospectus. This prospectus does not contain all of
the information contained in the Registration Statement. For further
information with respect to us and the common stock, we refer you to
the Registration Statement and the exhibits to it. The Registration
Statement may be examined and copied at the public reference
facilities maintained by the Securities and Exchange Commission at
Room 1024, 450 Fifth Street, N.W., Judiciary Plaza, Washington, D.C.
20549 and at the regional offices of the Securities and Exchange
Commission located at Citicorp Center, 500 West Madison Street, Suite
1400, Chicago, Illinois 60661-2511 and Seven World Trade Center, 13th
Floor, New York, New York 10048. Copies of the Registration Statement
are available at prescribed rates from the Public Reference Section of
the Securities and Exchange Commission, Room 1024, 450 Fifth Street,
N.W., Judiciary Plaza, Washington, DC 20549. The Securities and
Exchange Commission also maintains a Web site (http://www.sec.gov)
that contains registration statements, reports, proxy and information
statements and other information regarding registrants, such as United
Americas Bankshares, that file electronically with the Securities and
Exchange Commission.
We have filed or will file various applications with the FDIC,
the Federal Reserve, the Georgia Department of Banking and Finance,
and the Office of the Comptroller of the Currency. These applications
and the information they contain are not incorporated into this
prospectus. You should rely only on information contained in this
prospectus and in our related Registration Statement in making an
investment decision. To the extent that other available information
not presented in this prospectus, including information available from
us and information in public files and records maintained by the FDIC,
the Federal Reserve, the Georgia Department of Banking and Finance,
and the Office of the Comptroller of the Currency, is inconsistent
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<PAGE>
with information presented in this prospectus or provides additional
information, that information is superseded by the information
presented in this prospectus and should not be relied on. Projections
appearing in the applications are based on assumptions that we believe
are reasonable, but as to which we can make no assurances. We
specifically disaffirm those projections for purposes of this
prospectus and caution you against relying on them for purposes of
making an investment decision.
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INDEX TO FINANCIAL STATEMENTS
Report of Independent Certified Public Accountants F-2
Balance Sheet, March 31, 1999 F-3
Statement of Operations, Period from Inception (May 14, 1998)
to March 31, 1999 F-4
Statement of Changes in Stockholders' Equity (Deficit),
Period from Inception (May 14, 1998) to March 31, 1999 F-5
Statement of Cash Flows, Period from Inception (May 14, 1998)
to March 31, 1999 F-6
Notes to Financial Statements F-7
F-1<PAGE>
<PAGE>
REPORT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
To the Board of Directors
United Americas Bankshares, Inc.:
We have audited the accompanying balance sheet of United Americas
Bankshares, Inc. (a development stage corporation), as of March 31,
1999, and the related statements of operations, changes in
stockholders' equity (deficit) and cash flows for the period from
inception (May 14, 1998) to March 31, 1999. These financial statements
are the responsibility of the Company's management. Our responsibility
is to express an opinion on these financial statements based on our
audit.
We conducted our audit in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit
to obtain reasonable assurance about whether the financial statements
are free of material misstatement. An audit includes examining, on a
test basis, evidence supporting the amounts and disclosures in the
financial statements. An audit also includes assessing the accounting
principles used and significant estimates made by management, as well
as evaluating the overall financial statement presentation. We believe
that our audit provides a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present
fairly, in all material respects, the financial position of United
Americas Bankshares, Inc. as of March 31, 1999, and the results of its
operations and its cash flows for the period from inception (May 14,
1998) to March 31, 1999, in conformity with generally accepted
accounting principles.
The accompanying financial statements have been prepared assuming that
United Americas Bankshares, Inc. will continue as a going concern. As
discussed in note 1 to the financial statements, the Company is in the
organization stage and has not commenced operations. Also, as
discussed in note 3, the Company's future operations are dependent on
obtaining capital through an initial stock offering and obtaining the
necessary final regulatory approvals. These factors and the expense
associated with development of a new banking institution raise
substantial doubt about the Company's ability to continue as a going
concern. Management's plans in regard to these matters are described
in note 3. The financial statements do not include any adjustments
relating to the recoverability of reported asset amounts or the amount
of liabilities that might result from the outcome of this uncertainty.
/s/ PORTER KEADLE MOORE, LLP
Atlanta, Georgia
April 12, 1999
F-2<PAGE>
<PAGE>
UNITED AMERICAS BANKSHARES, INC.
(A Development Stage Corporation)
<TABLE>
<CAPTION>
Balance Sheet
March 31, 1999
Assets
<S> <C>
Cash $ 11,434
Office equipment 3,081
Deposits 75,194
---------
$ 89,709
=========
Liabilities and Stockholders' Equity (Deficit)
Note payable $ 320,000
Commitments
Stockholders' equity (deficit):
Preferred stock, no par value, 1,500,000 shares authorized,
no shares issued or outstanding -
Common stock, no par value; 5,000,000 shares
to be authorized, none issued and outstanding 200
Stock subscription receivable (200)
Deficit accumulated during the development stage (230,291)
---------
Total stockholders' equity (deficit) (230,291)
---------
$ 89,709
=========
</TABLE>
See accompanying notes to financial statements.
F-3
<PAGE>
<PAGE>
UNITED AMERICAS BANKSHARES, INC.
(A Development Stage Corporation)
Statement of Operations
For the Period from Inception (May 14, 1998) to March 31, 1999
Operating expenses:
Compensation $ 122,132
Professional fees 54,296
Occupancy 7,890
Other, net 45,973
-------
Net loss $ 230,291
=======
See accompanying notes to financial statements.
F-4
<PAGE>
<PAGE>
UNITED AMERICAS BANKSHARES, INC.
(A Development Stage Corporation)
Statement of Changes in Stockholders' Equity (Deficit)
For the Period from Inception (May 14, 1998) to March 31, 1999
<TABLE>
<CAPTION>
Deficit
Accumulated
Stock During the
Common Subscriptions Development
Stock Receivable Stage Total
--------- ------------- ------------ ------
<S> <C> <C> <C> <C>
Issuance of organizational shares $ 200 (200) - -
Net loss - - (230,291) (230,291)
--- ---- -------- --------
Balance, March 31, 1999 $ 200 (200) (230,291) (230,291)
=== ==== ======== ========
</TABLE>
See accompanying notes to financial statements.
F-5
<PAGE>
<PAGE>
UNITED AMERICAS BANKSHARES, INC.
(A Development Stage Corporation)
Statement of Cash Flows
For the Period from Inception (May 14, 1998) to March 31, 1999
<TABLE>
<CAPTION>
<S> <C>
Cash flows from operating activities, consisting of
net loss $ (230,291)
--------
Cash flows from investing activities:
Purchase of office equipment (3,081)
Deposits (75,194)
--------
Cash used in investing activities (78,275)
--------
Cash flows from financing activities, consisting of
borrowings on note payable 320,000
--------
Net increase in cash and cash equivalents 11,434
Cash and cash equivalents at beginning of period -
--------
Cash and cash equivalents at end of period $ 11,434
========
Supplemental cash flow disclosure:
Cash paid for interest $ 5,695
Noncash financing activity:
Stock subscriptions receivable $ 200
</TABLE>
See accompanying notes to financial statements.
F-6
<PAGE>
<PAGE>
UNITED AMERICAS BANKSHARES, INC.
(A Development Stage Corporation)
Notes to Financial Statements
(1) Organization
------------
United Americas Bankshares, Inc. (the "Company"), a proposed
holding company for United Americas Bank, N.A. (in organization)
(the "Bank"), was established for the purpose of filing a joint
application to charter the Bank with the Office of the Comptroller
of the Currency ("OCC") and the Federal Deposit Insurance
Corporation ("FDIC"). On February 22,1999, preliminary approval
from the OCC to charter the Bank was received. On March 29, 1999,
the FDIC granted its preliminary approval. Provided the necessary
capital is raised, it is expected that operations will commence in
the third quarter of 1999 in the proposed permanent facility.
Operations through March 31, 1999, relate totally to expenditures
on behalf of the organizers for incorporating and organizing the
Company and beginning banking operations. These activities have
been funded through a line of credit with a bank with a total
commitment at March 31, 1999 of $1,600,000. At March 31, 1999, the
line of credit bore interest at 7.75%, and the line will be
collateralized by a first mortgage on the land and buildings to be
acquired by the Company (see Note 3) and is personally guaranteed
by the organizers. This line of credit matures in February 2000.
The Company plans to raise $12,000,000 through an offering of
1,200,000 shares of its common stock. The organizers, directors
and officers expect to subscribe for a minimum of approximately
$1,900,000 (190,000 shares) of the Company's common stock.
Additionally, the organizers, directors and officers are expected
to receive an aggregate of 190,000 warrants to acquire 190,000
shares of the Company's stock at $10 per share. These warrants
will vest ratably over five years and expire after ten years.
(2) Significant Accounting Policies
-------------------------------
BASIS OF PRESENTATION
The accompanying financial statements have been presented in
conformity with generally accepted accounting principles ("GAAP")
for a development stage corporation. Preparing financial
statements in conformity with GAAP requires that management make
certain estimates that may effect the amounts recorded in the
financial statements, and actual results could differ from those
estimates.
OFFICE EQUIPMENT
Office equipment is carried at cost. Once the Company's banking
operations begin, this equipment will be depreciated using the
straight-line basis over its estimated useful lives. Repairs and
maintenance costs are expensed as incurred.
PRE-OPENING EXPENSES
All pre-opening expenses are expensed as incurred.
F-7<PAGE>
<PAGE>
UNITED AMERICAS BANKSHARES, INC.
(A Development Stage Corporation)
Notes to Financial Statements (continued)
(2) SIGNIFICANT ACCOUNTING POLICIES, CONTINUED
-------------------------------
INCOME TAXES
The Company accounts for deferred income taxes using the liability
approach, and when this approach results in a net deferred tax
asset, management evaluates the likelihood of being able to
realize that asset. When management determines that some or all of
the net deferred tax asset is not realizable, a valuation
allowance is recorded for that amount. At March 31, 1999, the
Company's only significant deferred tax attribute was its net
operating loss since inception, and this deferred tax asset has
been fully reserved.
(3) LIQUIDITY AND GOING CONCERN CONSIDERATIONS
------------------------------------------
Management believes the current available borrowing on the
Company's line of credit is adequate to fund the anticipated costs
to be incurred by the Company during its development stage, but
the funding of banking operations is dependent on obtaining final
regulatory approval and the successful completion of the stock
offering.
As stated above, to provide permanent funding for its operation,
the Company plans to sale 1,200,000 shares of its common stock at
$10 per share in an initial public offering. Costs related to the
organization and registration of the Company's common stock will
be paid from the gross proceeds of the offering. Should sufficient
subscriptions for the offering not be obtained, amounts paid by
subscribers with their subscriptions will be returned and the
offer withdrawn.
(4) COMMITMENTS
-----------
Effective August 31, 1998, the Company entered into an agreement
to acquire for $1,000,000 the land and building that will be the
site for the Company's first permanent banking facility. This
purchase closed on April 7, 1999. The agreement required earnest
money and other deposits of approximately $75,000. The Company
expects to incur costs of approximately $200,000 in improvements
to the facility, and the purchase price and cost of improvements
will be funded by the $1,600,000 line of credit discussed above.
Additionally, the Company has entered into employment arrangements
with the individuals who will serve as its President and its Chief
Financial Officer. The agreements would provide for initial annual
salaries for these two individuals of $225,000 in the aggregate
and entitles them to the receipt of certain options and warrants
upon the occurrence of certain future events.
F-8
<PAGE>
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
<S> <C>
Summary Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Risk Factors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Cautionary Statement About Forward-Looking Statements . . . . . . . . . . . . . . . . . . . . . . . 11
The Offering . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Capitalization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Dividends . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Management's Discussion and Analysis of Financial Condition and Plan of Operations . . . . . . . . 15
Proposed Business of United Americas Bankshares and United Americas Bank . . . . . . . . . . . . . 18
Management . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Executive Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Certain Relationships and Related Transactions . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Description of Capital Stock of United Americas Bankshares . . . . . . . . . . . . . . . . . . . . 40
Certain Provisions of the Articles of Incorporation and Bylaws . . . . . . . . . . . . . . . . . . 41
Shares Eligible for Future Sale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Supervision and Regulation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Legal Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Experts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Reports to Shareholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Additional Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Index to Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F-1
</TABLE>
UNTIL ___________________, 1999 (40 DAYS AFTER THE DATE OF THIS
PROSPECTUS), ALL SALES AGENTS THAT BUY, SELL, OR TRADE THE COMMON
STOCK, WHETHER OR NOT PARTICIPATING IN THIS OFFERING, MAY BE REQUIRED
TO DELIVER A PROSPECTUS. THIS IS IN ADDITION TO THE SALES AGENTS'
OBLIGATION TO DELIVER A PROSPECTUS WHEN ACTING AS UNDERWRITERS AND
WITH RESPECT TO THEIR UNSOLD ALLOTMENTS OR SUBSCRIPTIONS.
1,200,000 SHARES
UNITED AMERICAS BANKSHARES, INC.
A PROPOSED BANK HOLDING COMPANY
FOR
UNITED AMERICAS BANK, N.A.
(IN ORGANIZATION)
COMMON STOCK
PROSPECTUS
____________________, 1999
<PAGE>
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 24. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Consistent with the applicable provisions of the laws of Georgia,
the Registrant's Bylaws provide that the Registrant shall have the
power to indemnify its directors, officers, employees and agents
against expenses (including attorneys' fees) and liabilities arising
from actual or threatened actions, suits or proceedings, whether or
not settled, to which they become subject by reason of having served
in the role if the director, officer, employee or agent acted in good
faith and in a manner he or she reasonably believed to be in or not
opposed to the best interests of the Registrant and, with respect to a
criminal action or proceeding, had no reasonable cause to believe his
or her conduct was unlawful. Advances against expenses shall be made
so long as the person seeking indemnification agrees to refund the
advances if it is ultimately determined that he or she is not entitled
to indemnification. A determination of whether indemnification of a
director, officer, employee or agent is proper because he or she met
the applicable standard of conduct shall be made (1) by the Board of
Directors of the Registrant, (2) in certain circumstances, by
independent legal counsel in a written opinion or (3) by the
affirmative vote of a majority of the shares entitled to vote.
In addition, Article VII of the Registrant's Bylaws, subject to
certain exceptions, eliminates the potential personal liability of a
director for monetary damages to the Registrant and to the
shareholders of the Registrant for breach of a duty as a director.
There is no elimination of liability for (1) a breach of duty
involving appropriation of a business opportunity of the Registrant,
(2) an act or omission involving intentional misconduct or a knowing
violation of law, (3) a transaction from which the director derives an
improper material tangible personal benefit or (4) as to any payment
of a dividend or approval of a stock repurchase that is illegal under
the Georgia Business Corporation Code. The Bylaws do not eliminate or
limit the right of the Registrant or its shareholders to seek
injunctive or other equitable relief not involving monetary damages.
Finally, Article VI of the Articles of Incorporation provide that
directors shall not be held personally liable to us or our
shareholders for monetary damages for breach of his or her duty of
care or other duty to the extent permitted by the Georgia Business
Corporation Code.
ITEM 25. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Estimated expenses of the sale of the Registrant's common stock,
$0.00 par value, are as follows:
<TABLE>
<CAPTION>
<S> <C>
Securities and Exchange Commission Registration Fee . . . . . . . . . . . . . $3,336
National Association of Securities Sales agents, Inc. Filing Fee* . . . . . . _____
Blue Sky Fees and Expenses* . . . . . . . . . . . . . . . . . . . . . . . . . _____
Legal Fees and Expenses* . . . . . . . . . . . . . . . . . . . . . . . . . . . _____
Accounting Fees and Expenses* . . . . . . . . . . . . . . . . . . . . . . . . _____
Printing and Engraving Expenses* . . . . . . . . . . . . . . . . . . . . . . . _____
Mail and Distribution* . . . . . . . . . . . . . . . . . . . . . . . . . . . . _____
Sales Agent Fees and Expenses . . . . . . . . . . . . . . . . . . . . . . . . _____
Miscellaneous* . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . _____
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . _____
</TABLE>
________________________________
*To be furnished by amendment.
II-1<PAGE>
<PAGE>
ITEM 26. RECENT SALES OF UNREGISTERED SECURITIES.
On May 14, 1998, the Registrant issued to Mr. Salvador Diaz-
Verson and Mr. Alex Suarez, in a private placement, 10 shares each of
the Registrant's common stock, no par value per share, for an
aggregate price of $100.00 per person in connection with our
organization. The sales were exempt from registration under the
Securities Act pursuant to Section 4(2) of the Act because it was a
transaction by an issuer that did not involve a public offering.
ITEM 27. EXHIBITS.
Exhibit
Number Description
- ------- -----------
3(i) Restated Articles of Incorporation
3(ii) Amended and Restated Bylaws
4(i) See Exhibits 3(i) and 3(ii) for provisions of the
Articles of Incorporation and Bylaws defining rights of
holders of the common stock
4(ii)* Form of common stock Certificate of United Americas
Bankshares, Inc.
5* Legal Opinion of Kilpatrick Stockton LLP
10(i) Purchase Agreement for main office property dated
August 31, 1998
10(ii) Employment Agreement dated May 20, 1998, as amended and
restated on January 7, 1999, among United Americas
Bank, N.A. (In Organization), United Americas
Bankshares, Inc., and Vincent D. Cater
10(iii) Promissory Note dated February 26, 1999 from United
Americas Bankshares, Inc. to The Bankers Bank.
10(iv) Form of United Americas Bankshares, Inc. Organizers'
Warrant Agreement
10(v) United Americas Bankshares, Inc. 1999 Stock Incentive
Plan
10(vi) Escrow Agreement dated as of April 19, 1999 between
United Americas Bankshares, Inc. and The Bankers Bank
10(vii) Sales Agent Agreement dated April 1, 1999 between
United Americas Bankshares, Inc. and GMA Partners, Inc.
23(i) Consent of Porter Keadle Moore, LLP
23(ii)* Consent of Kilpatrick Stockton LLP (contained in
Exhibit 5)
24 Power of Attorney (Reference is made to page II-4)
II-2<PAGE>
<PAGE>
Exhibit
Number Description
- ------ -----------
27.1 Financial Data Schedule (for SEC use only)
99.1 Subscription Agreement
* To be filed by amendment.
ITEM 28. UNDERTAKINGS.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers, and
controlling persons of the Registrant pursuant to foregoing
provisions, or otherwise, the Registrant has been advised that in the
opinion of the Securities and Exchange Commission this type of
indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a
claim for indemnification against 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 a 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 the
indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of the
issue.
The Registrant hereby undertakes as follows:
(1) For determining any liability under the Securities Act, to
treat the information omitted from the form of prospectus filed as
part of this Registration Statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the Registrant under Rule
424(b)(1), or (4) or 497(h) under the Securities Act as part of this
Registration Statement as of the time the Commission declared it
effective.
(2) For determining any liability under the Securities Act, to
treat each post-effective amendment that contains a form of prospectus
as a new registration statement for the securities offered in the
Registration Statement, and that offering of the securities at that
time as the initial bona fide offering of those securities.
II-3
<PAGE>
SIGNATURES
In accordance with the requirements of the Securities Act of
1933, as amended the Registrant certifies that it has reasonable
grounds to believe that it meets all of the requirements for filing on
Form SB-2 and authorized this Registration Statement to be signed on
its behalf by the undersigned in the city of Atlanta, State of
Georgia, as of May 3, 1999.
UNITED AMERICAS BANKSHARES, INC.
By: /s/ Vincent D. Cater
Vincent D. Cater
President
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints jointly and
severally, Vincent D. Cater and Salvador Diaz-Verson, and each of
them, their respective attorney-in-fact, each with the power of
substitution, for him or her in any and all capacities, to sign any
and all amendments to this Registration Statement (including post-
effective amendments) and any Registration Statement filed pursuant to
Rule 462(b) of the Securities Act of 1933, as amended, and to file the
same, with exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, hereby
ratifying and confirming all that each of said attorneys-in-fact, or
their respective substitute or substitutes, may do or cause to be done
by virtue hereof.
In accordance with the requirements of the Securities Act of
1933, as amended, this Registration Statement has been signed by the
following persons in the capacities and as of the dates stated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- -----
<S> <S> <C>
/s/ Vincent D. Cater President and Chief Executive Officer May 3, 1999
Vincent D. Cater
/s/ Salvador Diaz-Verson Chairman May 3, 1999
Salvador Diaz-Verson
/s/ Alex Suarez Vice Chairman May 3, 1999
Alex Suarez
/s/ Norberto Sanchez Director May 3, 1999
Norberto Sanchez
/s/ Rene M. Diaz Director May 3, 1999
Rene M. Diaz
[Signatures are continued on the next page.]
II-4<PAGE>
<PAGE>
Signature Title Date
--------- ----- ----
/s/ Reinaldo Pascual Director May 3, 1999
Reinaldo Pascual
/s/ Ignacio Luis Taboada Director May 3, 1999
Ignacio Luis Taboada
/s/ Sam Zamarripa Director May 3, 1999
Sam Zamarripa
/s/ Luis A. Caceres Director May 3, 1999
Luis A. Caceres
/s/ Filiberto Prieto Director May 3, 1999
Filiberto Prieto
</TABLE>
II-5
CERTIFICATE RELATED TO
RESTATED ARTICLES OF INCORPORATION
OF
UNITED AMERICAS BANKSHARES, INC.
1.
The name of the corporation is United Americas Bankshares, Inc.
The corporation was incorporated on May 14, 1998 as Buford
Holding Company (Control No. K818596).
2.
These Restated Articles of Incorporation were duly adopted
by the corporation's board of directors at a meeting held on September
16, 1998, pursuant to Section 14-2-1007 of the Georgia Business
Corporation Code.
3.
The text of the Restated Articles of Incorporation is set
forth in Exhibit "A" attached hereto.
IN WITNESS WHEREOF, the undersigned does hereby set his hand
and seal this 28th day of April, 1999.
UNITED AMERICAS BANKSHARES, INC.
By: /s/ Vincent D. Cater
Vincent D. Cater, President
<PAGE>
<PAGE>
EXHIBIT "A"
RESTATED ARTICLES OF INCORPORATION
OF
UNITED AMERICAS BANKSHARES, INC.
I.
The name of the Corporation is:
United Americas Bankshares, Inc.
II.
The Corporation shall have authority to issue not more than
5,000,000 shares of common stock (the "Common Stock") and 1,500,000
shares of preferred stock (the "Preferred Stock"), all of which shall
have no par value.
Subject to the provisions of any applicable law or the
Bylaws of the Corporation (as from time to time amended) with respect
to fixing the record date for the determination of shareholders
entitled to vote, and except as otherwise provided by any applicable
law or by the resolution or resolutions of the Board of Directors
providing for the issue of any series of Preferred Stock, the holders
of the Common Stock shall have and possess exclusive voting power and
rights for the election of directors and for all other purposes, with
each share being entitled to one vote.
The Board of Directors is hereby expressly authorized to
issue, at any time and from time to time, shares of Preferred Stock in
one or more series. The number of shares within any such series shall
be designated by the Board of Directors in one or more resolutions,
and the shares of each series so designated shall have such
preferences with respect to the Common Stock and other series of
Preferred Stock, and such other rights, restrictions or limitations
with respect to voting, dividends, conversion, exchange, redemption
and any other matters, as may be set forth in one or more resolutions
adopted by the Board of Directors. If and to the extent required by
law, Articles of Amendment setting forth any such designation,
preferences, rights, restrictions or limitations shall be filed with
the Georgia Secretary of State prior to the issuance of any shares of
such series.
The authority of the Board of Directors with respect to the
establishment of each series of Preferred Stock shall include, without
limiting the generality of the foregoing, determination of the
following matters which may vary between series:
(a) The number of shares constituting that series and
the distinctive designation of that series;
(b) The dividend rate on the shares of that series,
whether dividends shall be cumulative, and, if so, from
which date or dates, and the relative rights of priority, if
any, of payments of dividends on shares of that series;
(c) Whether that series shall have voting rights, in
addition to the voting rights provided by law, and if so,
the terms of such voting rights;
<PAGE>
(d) Whether that series shall have conversion
privileges, and, if so, the terms and conditions of such
conversion, including provisions for adjustment of the
conversion rate in such events as the Board of Directors
shall determine;
(e) Whether the shares of that series shall be
redeemable, and, if so, the terms and conditions of such
redemption, including the date or dates upon or after which
they shall be redeemable, and the amount per share payable
in case of redemption, which amount may vary under different
conditions;
(f) Whether that series shall have a sinking fund for
the redemption or purchase of shares of that series, and if
so, the terms and amount of such sinking fund;
(g) The rights of the shares of that series in the
event of voluntary or involuntary liquidation, dissolution
or winding-up of the Corporation, and the relative rights of
priority, if any, of payment of shares of that series; and
(h) Any other relative preferences, rights,
restrictions or limitations of that series, including but
not limited to any obligations of the Corporation to
repurchase shares of that series upon specified events.
III.
No director of the Corporation shall be personally liable to
the Corporation or its shareholders for monetary damages for breach of
his duty of care or other duty as a director, provided, that this
provision shall eliminate or limit the liability of a director only to
the extent permitted from time to time by the Georgia Business
Corporation Code or any successor law or laws.
AMENDED AND RESTATED BYLAWS
OF
UNITED AMERICAS BANKSHARES, INC.
ARTICLE I
OFFICES
-------
Section 1. Registered Office. The corporation shall
-----------------
maintain at all times a registered office in the State of Georgia and
a registered agent at that office.
Section 2. Other Offices. The corporation may also have
-------------
offices at such other places both within and without the State of
Georgia as the business of the corporation may require.
ARTICLE II
SHAREHOLDERS MEETINGS
---------------------
Section 1. Annual Meetings.
---------------
1.1. Date, time and purpose of meeting. The annual meeting
---------------------------------
of the shareholders of the corporation shall be held at 10:00 a.m. on
the last business day of the fifth month following the close of each
fiscal year or at such other time and date prior thereto and following
the close of the fiscal year as shall be determined by the board of
directors, for the purpose of electing directors and transacting such
other business as may properly be brought before the meeting.
1.2. Failure to hold meeting. The failure to hold an
-----------------------
annual meeting at the time stated in or fixed in accordance with these
bylaws shall not affect the validity of any corporate action.
Section 2. Special Meetings.
----------------
2.1. Call of special meetings. The chairman of the board
------------------------
of directors, if any, or the chairman may call a special meeting of
the shareholders at any time. The chairman or the secretary must call
a special meeting:
(1) when so directed by the board of directors;
(2) at the request in writing of shareholders owning at
least 25% of the outstanding shares of the corporation
entitled to vote thereat provided that such request
shall state the purposes for which the meeting is to be
called.
<PAGE>
<PAGE>
2.2. Business conducted. Except as otherwise provided in
------------------
these bylaws, only business within the purpose or purposes described
in the notice of the meeting may be conducted at a special meeting.
Section 3. Place of Meetings. Meetings of the shareholders
-----------------
of the corporation shall be held at the principal office of the
corporation or at any other place within or without the United States
as may be specified in the notice of the meeting.
Section 4. Notice of Meetings.
------------------
4.1. Notice requirements. Notice of every meeting of
-------------------
shareholders, stating the place, date and time of the meeting, shall
be given to each shareholder of record entitled to vote at such
meeting not less than 10 nor more than 60 days before the date of the
meeting.
4.2. Notice by mail. Notice may be given in any manner
--------------
permitted by law. Any written notice deposited in the United States
mail with prepaid first class postage thereon addressed to the
shareholder at his address as it appears on the corporation's record
of shareholders shall be deemed delivered when so deposited.
4.3. Waiver by attendance. A shareholder's attendance, in
--------------------
person or by proxy, at a meeting of shareholders shall constitute:
(1) a waiver of notice of the meeting and of all objections
to lack of notice or defective notice of the meeting,
unless the shareholder at the beginning of the meeting
objects to holding the meeting or transacting business
at the meeting; and
(2) a waiver of objection to consideration of a particular
matter at the meeting that is not within the purpose or
purposes described in the meeting notice, unless the
shareholder objects to considering the matter when it
is presented.
4.4. Other waivers of notice. Notice of a meeting of
-----------------------
shareholders need not be given to any shareholder who signs a waiver
of notice, in person or by proxy, either before or after the meeting.
Neither the business transacted nor the purpose of the meeting need be
specified in the waiver, except that any waiver of the notice of a
meeting at which the shareholders consider an amendment of the
articles of incorporation, a plan of merger or share exchange, or a
sale or other disposition of assets, or any other action which would
entitle the shareholder to dissent and obtain payment for his shares
shall not be effective unless:
-2-<PAGE>
<PAGE>
(1) prior to the execution of the waiver, the shareholder
shall have been furnished the same material that would
have been required to be sent to the shareholder in a
notice of the meeting, including notice of any
applicable dissenters' rights; or
(2) the waiver expressly waives the right to receive the
material required to be furnished.
Section 5. Quorum.
------
5.1. Required number. At all meetings of the shareholders
---------------
a majority of the shares outstanding and entitled to vote thereat,
present in person or by proxy, shall constitute a quorum for the
transaction of all business, except as otherwise provided by law, by
the articles of incorporation, or by these bylaws.
5.2. Adjournment. If a quorum is not present at any
-----------
meeting of the shareholders, a majority of the shares present and
entitled to vote thereat may adjourn the meeting from time to time,
without notice other than announcement at the meeting before
adjournment of the date, time, and place for the adjourned meeting,
until a quorum shall be present. At such adjourned meeting at which a
quorum shall be present, any business may be transacted which might
have been transacted at the original meeting. If, after the meeting
is adjourned, a new record date is fixed for the adjourned meeting, a
notice of the adjourned meeting shall be given to each shareholder of
record entitled to vote at the meeting.
5.3. When shares present. Once a share is represented for
-------------------
any purpose at a meeting other than solely to object to holding the
meeting or transacting business at the meeting, it is present for
quorum purposes for the remainder of the meeting and for any
adjournment of that meeting unless a new record date is set for the
adjourned meeting.
Section 6. Order of Business. At the annual meeting of
-----------------
shareholders the order of business shall be as follows:
1. Calling of meeting to order.
2. Proof of notice of meeting.
3. Reading of minutes of last previous annual
meeting.
4. Reports of officers.
5. Reports of committees.
6. Election of directors.
7. Miscellaneous business.
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<PAGE>
Section 7. Voting.
------
7.1. Number of votes per share. Unless the articles of
-------------------------
incorporation or applicable law otherwise provide, each outstanding
share, regardless of class, shall be entitled to one vote on each
matter voted on at a meeting of shareholders.
7.2. Votes required. If a quorum exists, action on a matter
--------------
is approved if the votes cast favoring the action exceed the votes
cast opposing the action, unless the articles of incorporation, these
bylaws, or applicable law require a different vote.
7.3. Voting for Directors. Directors shall be elected by a
--------------------
plurality of the votes cast by the shares entitled to vote in the
election at a meeting at which a quorum is present. Shareholders do
not have a right to cumulate their votes for directors.
7.4. Proxies. A shareholder may vote his shares in person
-------
or by proxy. A shareholder may appoint a proxy to vote or otherwise
act for him by signing an appointment form. An appointment is valid
for 11 months unless a shorter or longer period is expressly provided
in the appointment form.
Section 8. Action Without Meeting.
----------------------
8.1. Generally. Action required or permitted to be taken
---------
at a meeting of shareholders may be taken without a meeting if the
action is evidenced by one or more written consents describing the
action taken and executed by:
(1) all of the shareholders entitled to vote on the action;
or
(2) if so provided in the articles of incorporation,
persons who would be entitled to vote, at a meeting,
shares having voting power to cast not less than the
minimum number of votes that would be necessary to
authorize or take the action at a meeting at which all
shareholders entitled to vote were present and voted.
8.2. Requirements for consent. A written consent is valid
------------------------
only if:
(1) the consenting shareholder was furnished the same
material that would have been required to be sent to
shareholders in a notice of a meeting at which the
proposed action would have been submitted to the
shareholders for action, including notice of any
applicable dissenters' rights; or
-4-<PAGE>
<PAGE>
(2) it contains an express waiver of the right to receive
the material otherwise required to be furnished.
Section 9. List of Shareholders.
--------------------
9.1. Maintenance of list. The corporation shall keep or
-------------------
cause to be kept a record of its shareholders, giving their names and
addresses and the number, class and series, if any, of shares held by
each. After a record date for a meeting of shareholders is fixed, the
corporation shall prepare an alphabetical list of the names of all its
shareholders who are entitled to notice of the meeting. The list
shall show the address of and number of shares held by each
shareholder, and shall comply as to form in all other respects with
applicable law.
9.2. Inspection by shareholders. The list of shareholders
--------------------------
shall be made available for inspection by any shareholder, his agent,
or his attorney at the time and place of a meeting of shareholders.
9.3. Validity of action. Refusal or failure to prepare or
------------------
make available the list of shareholders shall not affect the validity
of action taken at a meeting of shareholders.
ARTICLE III
DIRECTORS
---------
Section 1. Powers. Except as otherwise provided by any
------
legal agreement among shareholders, the property, affairs and business
of the corporation shall be managed and directed by its board of
directors, which may exercise all powers of the corporation and do all
lawful acts and things which are not by law, by any legal agreement
among shareholders, by the articles of incorporation or by these
bylaws directed or required to be exercised or done by the
shareholders.
Section 2. Number, Election and Term.
-------------------------
2.1. Number of directors. The number of directors which
-------------------
shall constitute the whole board shall initially be two (2). The
number of directors may be increased or decreased from time to time by
amendment of these bylaws or by election by the shareholders of a
different number of directors when electing the entire board of
directors.
2.2. Qualifications. Directors shall be natural persons
--------------
who are 18 years of age or older, but need not be residents of the
State of Georgia nor shareholders of the corporation.
2.3. Term of office. The terms of the directors shall
expire at the annual meeting of shareholders following their election,
or at their earlier resignation, removal from office, or death. A
decrease in the number of directors by amendment of these bylaws shall
-5-<PAGE>
<PAGE>
not shorten an incumbent director's term. A director whose term has
expired shall remain in office until his successor is elected and
qualified, or until there is a decrease in the number of directors. A
director elected to fill a vacancy shall be elected for the unexpired
term of his predecessor in office. A director elected by the board of
directors to fill a vacancy created by reason of an increase in the
number of directors shall serve until the next election of directors
by the shareholders and until the election and qualification of his
successor.
Section 3. Vacancies. Except as otherwise provided in the
---------
articles of incorporation, these bylaws, or applicable law, a vacancy
on the board of directors, including a vacancy resulting from an
increase in the number of directors, may be filled by the
shareholders, the board of directors, or the affirmative vote of a
majority of all the directors remaining in office, if the directors
remaining in office constitute fewer than a quorum of the board.
Section 4. Meetings and Notice.
-------------------
4.1. Place of meetings. The board of directors may hold
-----------------
regular or special meetings either within or without the State of
Georgia.
4.2. Notice of meetings. Regular meetings of the board of
------------------
directors may be held without notice at such date, time, and place as
shall from time to time be determined by the board. Special meetings
of the board of directors may be called by the chairman of the board,
if any, or the chairman, or by any two directors, on at least one
day's oral, telegraphic, or written notice of the date, time, and
place of the meeting. The notice of a meeting need not state the
purpose of the meeting.
4.3. Waiver of notice. Notice of a meeting of the board of
----------------
directors need not be given to any director who signs a waiver of
notice either before or after the meeting. Attendance of a director
at a meeting shall constitute a waiver of notice of such meeting
unless the director at the beginning of the meeting or promptly upon
his arrival objects to holding the meeting or transacting business at
the meeting and does not thereafter vote for or assent to action taken
at the meeting.
Section 5. Quorum. Except as otherwise provided by law,
------
the articles of incorporation, or these bylaws, a majority of
directors shall constitute a quorum for the transaction of business.
If a quorum is present when a vote is taken, the affirmative vote of a
majority of directors present is the act of the board of directors.
If a quorum shall not be present, or shall no longer be present, at
any meeting of the board, the directors present thereat may adjourn
the meeting from time to time, without notice other than announcement
at the meeting, until a quorum shall be present.
-6-<PAGE>
<PAGE>
Section 6. Conference Telephone Meeting. Unless the
----------------------------
articles of incorporation or these bylaws provide otherwise, directors
may participate in a meeting of the board by means of conference
telephone or similar communications equipment whereby all persons
participating in the meeting can simultaneously hear each other.
Participation in the meeting shall constitute presence in person.
Section 7. Action Without Meeting. Action required or
----------------------
permitted to be taken at a meeting of the board of directors may be
taken without a meeting if the action is evidenced by one or more
written consents describing the action taken and signed by each
director. Action by consent has the effect of a meeting vote and may
be described as such in any document.
Section 8. Committees.
----------
8.1. Creation. The board of directors from time to time
--------
may create one or more committees and appoint one or more directors to
serve on them at the pleasure of the board.
8.2. Authority. To the extent specified by the board of
---------
directors, the articles of incorporation or these bylaws, each
committee may exercise the authority of the board of directors, except
that, unless otherwise permitted by law, a committee may not:
(1) approve or propose to shareholders action that is
required to be approved by shareholders;
(2) fill vacancies on the board of directors or on any of
its committees;
(3) amend the articles of incorporation;
(4) adopt, amend, or repeal these bylaws; or
(5) approve a plan of merger not requiring shareholder
approval.
8.3. Meetings, notice, quorum and voting. Sections 4
-----------------------------------
through 7 of this Article shall also apply to committees and their
members, unless otherwise provided by the articles of incorporation,
these bylaws, or applicable law.
Section 9. Removal of Directors.
--------------------
9.1. Removal right. The shareholders may remove any
-------------
director, with or without cause, by a majority of the votes entitled
to be cast for the election of directors.
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<PAGE>
9.2. Meeting required. A director may be removed only at a
----------------
meeting called for the purpose of removing him and the meeting notice
must state that the purpose, or one of the purposes, of the meeting is
removal of the director.
9.3. Replacement. A vacancy resulting from the removal of
-----------
a director by the shareholders may be filled by the shareholders at
the same meeting at which the director was removed or any subsequent
meeting of the shareholders; or, if (but only if) the shareholders do
not fill such a vacancy within sixty (60) days after the removal, by
majority vote of the remaining directors.
Section 10. Compensation of Directors. Directors shall be
-------------------------
entitled to such reasonable compensation for their services as
directors or members of any committee of the board as shall be fixed
from time to time by resolution adopted by the board, and shall also
be entitled to reimbursement for any reasonable expenses incurred in
attending any meeting of the board or any such committee.
ARTICLE IV
OFFICERS
--------
Section 1. Number. The officers of the corporation shall
------
be chosen by the board of directors and shall be a chairman, a vice
chairman, a secretary and a treasurer (the "principal officers"). The
board of directors may also choose a president and may choose one or
more vice-presidents (any of whom may have such distinguishing
designations or titles as the board may determine), assistant
secretaries and assistant treasurers, and such other officers as the
board shall from time to time deem necessary. Any number of offices
may be held by the same person.
Section 2. Compensation. The salaries of all officers and
------------
agents of the corporation shall be fixed by the board of directors or
by a committee or officer appointed by the board or by the chairman.
Section 3. Term of Office. Unless otherwise provided by
--------------
the board of directors, the principal officers shall be chosen
annually by the board at the first meeting of the board following the
annual meeting of shareholders of the corporation, or as soon
thereafter as is conveniently possible. Other officers may be chosen
from time to time. Each officer shall serve until his successor shall
have been chosen and qualified, or until his death, resignation or
removal, and any failure to choose officers of the corporation
annually shall not affect the validity of any action taken by or the
authority of an officer previously duly chosen and qualified and not
theretofore resigned or removed by the board of directors.
-8-<PAGE>
<PAGE>
Section 4. Removal. Any officer may be removed from office
-------
at any time, with or without cause, by the board of directors whenever
in its judgment the best interest of the corporation will be served
thereby.
Section 5. Vacancies. Any vacancy in an office resulting
---------
from any cause may be filled by the board of directors.
Section 6. Powers and Duties. Except as hereinafter
-----------------
provided and subject to the control of the board of directors, the
officers of the corporation shall each have such powers and duties as
generally pertain to their respective offices, as well as such powers
and duties as from time to time may be conferred by the board of
directors.
(1) Chairman. The chairman shall be the chief executive
--------
officer of the corporation, shall preside at all meetings of the
shareholders and the board of directors, shall have general and active
management of the business of the corporation and shall see that all
orders and resolutions of the board of directors are carried into
effect. He may execute bonds, mortgages and other contracts requiring
a seal, under the seal of the corporation, except where required by
law to be otherwise signed and executed and except where the signing
and execution thereof shall be expressly delegated by the board of
directors to some other officer or agent of the corporation.
(2) Vice Chairman. In the absence of the chairman or in
-------------
the event of his inability or refusal to act, the vice chairman shall
perform the duties of the chairman, and when so acting, shall have all
the powers of and be subject to all the restrictions upon the
chairman. The vice chairman shall perform such other duties and have
such other powers as the board of directors or the chairman may from
time to time prescribe.
(3) Secretary. The secretary shall attend all meetings of
---------
the board of directors and all meetings of the shareholders, shall
have responsibility for the preparation of minutes of all meetings of
the board of directors and of the shareholders and shall keep, or
cause to be kept, as permanent records of the corporation, in a book
or books for that purpose, all minutes of such meetings, all executed
consents evidencing corporate actions taken without a meeting, records
of all actions taken by a committee of the board of directors in place
of the board, and waivers of notice of all meetings of the board and
its committees. He shall have responsibility for authenticating
records of the corporation. He shall give, or cause to be given,
notice of all meetings of the shareholders and special meetings of the
board of directors, and shall perform such other duties as may be
prescribed by the board of directors or chairman, under whose
supervision he shall be. He shall have charge of the corporate seal
of the corporation and shall be authorized to use the seal of the
corporation on all documents which are authorized to be executed on
behalf of the corporation under its seal.
-9-<PAGE>
<PAGE>
(4) Assistant Secretary. The assistant secretary or if
-------------------
there is more than one, any assistant secretary, shall, in the absence
of the secretary or in the event of his inability or refusal to act,
perform the duties and exercise the powers of the secretary and shall
perform such other duties and have such other powers as the board of
directors, the chairman, or the secretary may from time to time
prescribe.
(5) Treasurer. The treasurer shall have the legal custody
---------
of the corporate funds and securities and shall keep or cause to be
kept full and accurate accounts of receipts and disbursements and
other appropriate accounting records in books belonging to the
corporation and shall deposit all funds and other valuable effects in
the name and to the credit of the corporation in such depositories as
may be designated by the board of directors. He shall render to the
chairman and the board of directors, at its regular meetings, or when
the chairman or board of directors so requires, an account of all his
transactions as treasurer and of the financial condition of the
corporation. If required by the board of directors, he shall give the
corporation a bond in such sum, or such conditions, and with such
surety or sureties as shall be satisfactory to the board of directors
for the faithful performance of the duties of his office.
(6) Assistant Treasurer. The assistant treasurer, or if
-------------------
there is more than one, any assistant treasurer, shall, in the absence
of the treasurer or in the event of his inability or refusal to act,
perform the duties and exercise the powers of the treasurer and shall
perform such other duties and have such other powers as the board of
directors, the chairman, or the treasurer may from time to time
prescribe.
Section 7. Securities of Corporation. Any security issued
-------------------------
by any other corporation or entity and owned or controlled by the
corporation may be voted, and all rights and powers incident to the
ownership of such securities, including without limitation execution
of any consent of shareholders or other consents in respect thereof,
may be exercised on behalf of the corporation by the chairman, who may
in his discretion delegate any of the foregoing powers, by executing
proxies or otherwise. The board of directors may from time to time
confer like powers on any person or persons.
Section 8. Checks and Drafts. All checks, drafts, and
-----------------
similar items drawn on the corporation's bank account shall be signed
by such officer or officers or agent or agents as the board of
directors shall from time to time determine.
-10-<PAGE>
<PAGE>
ARTICLE V
SHARES
------
Section 1. Form and Content of Certificate.
-------------------------------
1.1. Form. Every holder of fully-paid shares in the
----
corporation shall be entitled to have a certificate in such form as
the board of directors may from time to time prescribe in accordance
with applicable law.
1.2. Required signatures. Except as otherwise provided by
-------------------
the board of directors from time to time, each share certificate shall
be signed by any two officers of the corporation, who may, but shall
not be required to, seal the certificate with the seal of the
corporation or a facsimile thereof. If the person who signed a share
certificate, either manually or in facsimile, no longer holds office
when the certificate is issued, the certificate is nevertheless valid.
Section 2. Lost Certificates. The board of directors may
-----------------
direct that a new share certificate be issued in place of any
certificate theretofore issued by the corporation and alleged to have
been lost, stolen or destroyed, upon the making of an affidavit of
that fact by the person claiming the certificate to be lost, stolen or
destroyed. When authorizing such issue of a new certificate, the board
of directors may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or
destroyed certificate, or his legal representative, to advertise the
same in such manner as it shall require and/or to give the corporation
a bond in such sum and on such conditions as it may direct as
indemnity against any claim that may be made against the corporation
with respect to the certificate alleged to have been lost, stolen or
destroyed, and/or satisfy any other reasonable requirements imposed by
the board of directors.
Section 3. Transfers. (1) Transfers of shares of the
---------
corporation shall be made only on the books of the corporation by the
registered holder thereof, or by his duly authorized attorney, or with
a transfer agent or registrar appointed as provided in Section 5 of
this Article, and on surrender of the certificate or certificates for
such shares properly endorsed and the payment of all taxes thereon.
(2) The corporation shall be entitled to recognize the
exclusive right of a person registered on its books as the owner of
shares to receive dividends, and to vote as such owner, and for all
other purposes, and shall not be bound to recognize any equitable or
other claim to or interest in such share or shares on the part of any
other person, whether or not it shall have express or other notice
thereof, except as otherwise provided by law.
(3) Shares of the corporation may be transferred by
delivery of the certificates therefor, accompanied either by an
assignment in writing on the back of the certificates or by separate
written power of attorney to sell, assign and transfer the same,
-11-<PAGE>
<PAGE>
signed by the record holder thereof, or by his duly authorized
attorney-in-fact, and accompanied by such evidence that all such
signatures are genuine as the corporation may, at its option, request,
but no transfer shall affect the right of the corporation to pay any
dividend upon the stock to the holder of record as the holder in fact
thereof for all purposes, and no transfer shall be valid, except
between the parties thereto, until such transfer shall have been made
upon the books of the corporation as herein provided.
(4) The board may, from time to time, make such additional
rules and regulations as it may deem expedient, not inconsistent with
these bylaws or the articles of incorporation, concerning the issue,
transfer and registration of certificates for shares of the
corporation, and nothing contained herein shall limit or waive any
rights of the corporation with respect to such matters under
applicable law or any subscription or other agreement.
Section 4. Record Date.
-----------
4.1. Fixing of record date. For the purpose of determining
---------------------
the shareholders entitled to notice of a meeting of shareholders, to
demand a special meeting, to vote, or to take any other action, or
entitled to receive payment of any dividend or other distribution or
allotment of any rights, or entitled to exercise any rights in respect
of any change, conversion or exchange of shares, or for the purpose of
any other lawful action, the board of directors may fix, in advance, a
record date, which shall not be more than 70 days before any meeting
or action requiring a determination of shareholders.
4.2. No record date fixed. If no record date is fixed by
--------------------
the board of directors for the determination of shareholders entitled
to notice of and to vote at any meeting of shareholders, the record
date shall be at the close of business on the day before the day on
which the first notice thereof is given, or, if notice is waived, at
the close of business on the day before the day on which the meeting
is held. If no record date is fixed by the board for determining
shareholders entitled to express consent to corporate action in
writing without a meeting when no prior action by the board of
directors is required by law, the record date shall be the first date
on which a signed written consent to such action shall have been
delivered to the corporation in any manner permitted by law on behalf
of all shareholders. If no record date is fixed for other purposes,
the record date shall be at the close of business on the day on which
the board of directors adopts the resolution or otherwise takes formal
action relating thereto.
4.3. Adjournment of meeting. A determination of the
----------------------
shareholders entitled to notice of or to vote at a meeting of
shareholders shall be effective for any adjournment of the meeting
unless the board of directors fixes a new record date. The board of
directors must fix a new record date if the meeting is adjourned to a
date more than 120 days after the date fixed for the original meeting.
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<PAGE>
Section 5. Transfer Agent and Registrar. The board of
----------------------------
directors may appoint such transfer agents and/or registrars as it
shall determine, and may require all certificates of stock to bear the
signature or signatures of any of them.
ARTICLE VI
GENERAL PROVISIONS
------------------
Section 1. Distributions and Share Dividends.
---------------------------------
Distributions upon the shares of the corporation, subject to the
provisions, if any, of the articles of incorporation, or any lawful
agreement among shareholders, may be declared by the board of
directors at any regular or special meetings, pursuant to law.
Distributions may be paid in cash or in property, subject to the
provisions of the articles of incorporation. Before payment of any
distribution, there may be set aside out of any funds of the
corporation available for dividends such sum or sums as the directors
from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing
distributions, or for repairing or maintaining any property of the
corporation, or for such other purpose as the directors shall think
conducive to the interest of the corporation, and the directors may
modify or abolish any such reserve in the manner in which it was
created.
Section 2. Fiscal Year. The fiscal year of the corporation
-----------
shall be fixed, and shall be subject to change, by the board of
directors.
Section 3. Seal. The corporate seal shall have inscribed
----
thereon the name of the corporation, the year of its organization and
the words "Corporate Seal" and "Georgia". The seal may be used by
causing it or a facsimile thereof to be impressed or affixed or
reproduced or otherwise. In the event it is inconvenient to use such
a seal at any time, the signature or name of the corporation followed
by or used in conjunction with the word "Seal" or the words "Corporate
Seal" or words of similar import shall be deemed the seal of the
corporation.
Section 4. Annual Statements.
-----------------
4.1. Required statements. Not later than four months after
-------------------
the close of each fiscal year, and in any case prior to the next
annual meeting of shareholders, the corporation shall prepare the
following financial statements:
(1) a balance sheet showing in reasonable detail the
financial condition of the corporation as of the close
of its fiscal year; and
(2) a profit and loss statement showing the results of its
operations during its fiscal year.
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<PAGE>
4.2. Principles used; other information. If financial
----------------------------------
statements are prepared by the corporation on the basis of generally
accepted accounting principles, the annual financial statements must
also be prepared, and must disclose that they are so prepared, on that
basis. If otherwise prepared, they must so disclose and must be
prepared on the same basis as other reports or statements prepared by
the corporation for the use of others. If the statements are reported
upon by a public accountant, his report must accompany them. If not,
the statements shall be accompanied by a statement of the chairman or
the person responsible for the corporation's accounting records:
(1) stating his reasonable belief whether the statements
were prepared on the basis of generally accepted
accounting principles and, if not, describing the basis
of preparation; and
(2) describing any respects in which the statements were
not prepared on a basis of accounting consistent with
the statements prepared for the preceding year.
4.3. Requests for financial statements. Upon written
----------------------------------
request, the corporation promptly shall mail to any shareholder of
record a copy of the most recent annual balance sheet and profit and
loss statement. If prepared for other purposes, the corporation shall
also furnish upon written request a statement of changes in
shareholders' equity for the fiscal year.
ARTICLE VII
INDEMNIFICATION OF OFFICERS AND DIRECTORS
-----------------------------------------
Section 1. Authority to Indemnify. Every person who is or
----------------------
was an officer or director of this corporation may in accordance with
Section 3 hereof be indemnified for any liability and expense that may
be incurred by him in connection with or resulting from any
threatened, pending or completed action, suit, or proceeding, whether
civil, criminal, administrative or investigative and whether formal or
informal, or in connection with any appeal relating thereto, in which
he may have become involved, as a party, prospective party or
otherwise, by reason of his being an officer or director of this
corporation, if he acted in a manner he believed in good faith to be
in or not opposed to the best interest of the corporation and, in the
case of any criminal proceeding, he had no reasonable cause to believe
his conduct was unlawful. As used in this Article, the terms
"expense" and "liability" shall include attorneys fees and reasonable
expenses incurred with respect to a proceeding and the obligation to
pay a judgment, settlement, penalty, and fine including an excise tax
assessed with respect to an employee benefit plan.
Notwithstanding the foregoing, the corporation shall not
indemnify an officer or director in connection with a proceeding by or
in the right of the corporation in which the officer or director was
adjudged liable to the corporation or in connection with any other
proceeding in which he was adjudged liable on the basis that personal
-14-<PAGE>
<PAGE>
benefit was improperly received by him. In addition, indemnification
permitted pursuant to this section in connection with a proceeding by
or in the right of the corporation is limited to reasonable expenses
incurred in connection with the proceeding.
Section 2. Mandatory Indemnification. Every officer or
-------------------------
director, to the extent that he has been successful, on the merits or
otherwise, in defense of any proceeding to which he was a party, or in
defense of any claim, issue or matter therein, because he is or was an
officer or director, of this corporation, shall be indemnified by the
corporation against reasonable expenses incurred by him in connection
therewith.
Section 3. Determination and Authorization of Indemnification.
--------------------------------------------------
Except as provided in Section 2 above, any indemnification under Section 1
above shall not be made unless a determination has been made in the specific
case that indemnification of the officer or director is permissible under
the circumstances because he has met the standard of conduct set forth in
Section 1 above. The determination shall be made: (a) by the board of
directors by majority vote of a quorum consisting of directors not at
the time parties to the proceeding; (b) if such a quorum cannot be
obtained, then by majority vote of a committee duly designated by the
board of directors (in which designation directors who are parties may
participate), consisting solely of two or more directors not at the
time parties to the proceeding; (c) by special legal counsel (i)
selected by the board of directors or its committee in the manner
prescribed above or (ii) if a quorum of the board of directors cannot
be obtained and a committee cannot be designated, then selected by
majority vote of the full board of directors (in which selection
directors who are parties may participate); or (d) by the
shareholders, but the shares owned by or voted under the control of
directors who are at the time parties to the proceeding may not be
voted on the determination.
Once it has been determined that indemnification of the
officer or director is permissible, an authorization of
indemnification or an obligation to indemnify and an evaluation as to
reasonableness of expenses shall be made in the same manner as the
determination that indemnification is permissible, except that if
determination is made by special legal counsel, authorization of
indemnification and evaluation as to reasonableness of expenses shall
be determined in the manner prescribed in item (c) above.
Section 4. Advance for Expenses. Expenses incurred with
--------------------
respect to any claim, action, suit or proceeding of the character
described in Section 1 to this Article VII may be advanced by the
corporation prior to the time of the disposition thereof upon the
receipt of written affirmation from the director of his good faith
belief that he has met the standard of conduct set forth in Section 1
above and the officer or director furnishes the corporation a written
undertaking executed personally or on his behalf to repay any advances
if it is ultimately determined that he is not entitled to
indemnification under Section 1 of this Article.
-15-<PAGE>
<PAGE>
ARTICLE VIII
AMENDMENTS
----------
Except as provided below, the board of directors or
shareholders may amend or repeal the corporation's bylaws or adopt new
bylaws. The board of directors may amend or repeal the corporation's
bylaws or adopt new bylaws unless the shareholders in amending or
repealing a particular Bylaw provide expressly that the board of
directors may not amend or repeal that Bylaw. A Bylaw limiting the
authority of the board of directors or establishing staggered terms
for directors may only be adopted, amended or repealed by the
shareholders. A Bylaw which sets a supermajority quorum or voting
requirement for the shareholders may only be adopted by the
shareholders and may not be adopted, amended or repealed by the board
of directors, except as provided in Georgia Business Corporation Code
Section 14-2-1113 or Section 14-2-1133.
-16-
<PAGE>
STATE OF GEORGIA
COUNTY OF FULTON
PURCHASE AND SALE AGREEMENT
THIS AGREEMENT is made and entered into this 31st day of
August, 1998, by and among JERRY RICHMAN, D.D.S., an individual
(herein called "Seller"); AMERICAN INTERNATIONAL BANKSHARES, INC., a
Georgia corporation (herein called "Buyer"); INTERNATIONAL EQUITY
ADVISORS GROUP, LLC, a Georgia limited liability company (herein
called "IEA"); and RICHARD BOWERS & CO., a Georgia corporation (herein
called "Bowers") (IEA and Bowers are herein collectively called
"Brokers").
W I T N E S S E T H:
1. AGREEMENT TO SELL AND PURCHASE. For and in
------------------------------
consideration of the Initial Earnest Money, to be paid by Buyer to
Escrow Agent, the mutual covenants and agreements contained herein and
other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged by Seller, Buyer and Brokers, Seller
hereby agrees to sell and convey to Buyer, and Buyer hereby agrees to
purchase and take from Seller, subject to and in accordance with all
of the terms and conditions of this Agreement, the following:
(a) All that certain lot, tract or parcel of improved real
estate more particularly described on EXHIBIT "A" attached
hereto, together with all plants, shrubs and trees located
thereon, and together with all rights, ways and easements
appurtenant thereto, including, without limitation, all of
Seller's right, title and interest in and to the land underlying
and the air space overlying any public or private ways or streets
crossing or abutting said real estate (herein collectively called
the "LAND");
(b) All buildings, structures and other improvements of any
and every nature located on the Land and all fixtures attached or
affixed, actually or constructively, to the Land or to any such
buildings, structures or other improvements (herein collectively
called the "IMPROVEMENTS");
(c) All goods, equipment, machinery, apparatus, fittings,
furniture, furnishings, supplies, spare parts, tools and other
personal property of every kind located on the Land or within the
Improvements and used in connection with the operation,
management or maintenance of the Land or the Improvements,
excluding any such items owned by tenants of the Land or the
Improvements, but specifically including, without limitation, the
property described on EXHIBIT "B" attached hereto (herein
collectively called the "PERSONALTY");
<PAGE>
<PAGE>
(d) All of the right, title, interest, powers, privileges,
benefits and options of Seller, or otherwise accruing to the
owner of the Property, in, to and under those service and other
contracts and agreements, if any, scheduled and identified on
EXHIBIT "C" attached hereto (herein called the "SERVICE
AGREEMENTS") of which Buyer elects to accept an assignment at
Closing (herein called the "ASSIGNED SERVICE AGREEMENTS");
(e) All of the right, title, interest, powers, privileges,
benefits and options of Seller, or otherwise accruing to the
owner of the Property, in, to and under all guaranties,
warranties and agreements from all contractors, subcontractors,
vendors or suppliers regarding their performance, quality of
workmanship or quality of materials supplied in connection with
the construction, manufacture, development, installation, repair
or maintenance of the Improvements or the Personalty, or any
component thereof (herein called the "WARRANTIES");
(f) All of the right, title, interest, powers, privileges,
benefits and options of Seller, or otherwise accruing to the
owner of the Property, in and to all certificates, licenses,
permits, authorizations, consents and approvals from governmental
authorities with respect to (i) the design, development,
construction and installation of the Improvements and the
Personalty and the performance of the Work, (ii) vehicular
ingress and egress to and from the Land, and (iii) the use,
operation and occupancy of the Improvements, including, without
limitation, the certificate of occupancy for the Improvements
(herein called the "PERMITS"); and
(g) All of the right, title, interest, powers, privileges,
benefits and options of Seller, or otherwise accruing to the
owner of the Property, in and to (i) any impact fee credits with,
or impact fee payments to, any county or municipality in which
the Land is located arising from any construction of
improvements, or dedication or contribution of property, by
Seller, or its predecessor in title or interest, related to the
Land, (ii) any development rights, allocations of development
density or other similar rights allocated to or attributable to
the Land or the Improvements, and (iii) any utility capacity
allocated to or attributable to the Land or the Improvements,
whether the matters described in the preceding CLAUSES (i), (ii)
AND (iii) arise under or pursuant to governmental requirements,
administrative or formal action by governmental authorities, or
agreement with governmental authorities or third parties (herein
called the "ENTITLEMENTS").
The Land, the Improvements and the Personalty are herein sometimes
collectively called the "PROJECT"; and all of the matters described in
this PARAGRAPH 1 are herein sometimes collectively called the
"PROPERTY".
2. PURCHASE PRICE; METHOD OF PAYMENT. The purchase price
---------------------------------
for the Property (herein called the "PURCHASE PRICE"), shall be ONE
MILLION DOLLARS ($1,000,000.00). The Purchase Price shall be paid by
Buyer to Seller on the Closing Date as follows:
2<PAGE>
<PAGE>
(a) The Purchase Price, after crediting the Earnest Money
and the remaining money held in the Rent Subsidy Escrow Account,
and subject to the prorations and adjustments herein described,
shall be paid by Buyer to Seller either by: (i) a check drawn on
a local bank from the real estate escrow account of Kilpatrick
Stockton, LLP, counsel for Buyer and closing attorneys; (ii) a
cashier's check of a national or state charter bank with its
principal offices in Atlanta, Georgia (or such other banking
institution as Seller may approve in writing); or (iii) by wire
delivery of funds through the Federal Reserve System to an
account designated in writing by Seller.
(b) Notwithstanding the foregoing, in the event that Seller
advises Buyer that Seller is a "Foreign Person" (as defined in
Section 1445 of the Internal Revenue Code of 1986, as amended,
and regulations promulgated thereunder, herein called the
"CODE"), or in the event that Seller fails or refuses to deliver
the certificate and affidavit of non-foreign status described in
paragraph 9(a) of this Agreement, or in the event that Buyer
receives notice from any Seller-transferor's agent or Buyer-
transferee's agent (as each of such terms are defined in the
Code), or Buyer has actual knowledge that, such certificate and
affidavit is false, Buyer shall deduct and withhold from the
Purchase Price a tax equal to ten percent (10%) of the Purchase
Price, as required by Section 1445 of the Code. Buyer shall
remit such amount to, and file the required form with, the
Internal Revenue Service, and Buyer shall receive a credit
against the Purchase Price for the amount so withheld.
(e) Notwithstanding the foregoing, in the event that Seller
advises Buyer that Seller is a "nonresident" of the State of
Georgia, (as defined in O.C.G.A. Section 48-7-128(a)), is not otherwise
eligible for an exemption from the withholding requirements of
O.C.G.A. Section 48-7-128, or in the event that Seller fails or refuses
to deliver the affidavit of Seller's residence or a certificate
of Seller's exemption described in PARAGRAPH 9(a) of this
Agreement, or in the event that Buyer receives actual or
constructive notice that the Seller's affidavit is false or con-
tains erroneous information, Buyer shall deduct and withhold from
the Purchase Price a State of Georgia tax equal to three percent
(3%) of the Purchase Price, or, alternatively, three percent (3%)
of Seller's gain if documented in compliance with O.C.G.A. Section 48-
7-128. Buyer shall remit such amount to, and file the required
form with the Commissioner of the Georgia Department of Revenue,
and Buyer shall receive a credit against the Purchase Price for
the amount so withheld.
3. Earnest Money.
-------------
(a) Within one business day (1) day after the Effective
Date, Buyer shall deliver to Bowers, as escrow agent (in such
capacity, herein called "ESCROW AGENT"), the sum of FIFTEEN THOUSAND
AND NO/100 DOLLARS ($15,000.00) (which sum, together with all interest
actually earned thereon during the term of this Agreement, is herein
called the "INITIAL EARNEST MONEY"). If Buyer has not terminated this
Agreement prior to the Due Diligence Date in accordance with the terms
and provisions of paragraph 5(c) hereof, Buyer shall deliver to Escrow
Agent a check drawn upon good funds in the amount of TWENTY FOUR
THOUSAND AND 00/100 DOLLARS ($24,000.00) (which sum, together with all
interest actually earned thereon during the term of this Agreement, is
herein called the "ADDITIONAL EARNEST MONEY"). The Initial Earnest
3<PAGE>
<PAGE>
Money and the Additional Earnest Money are hereinafter collectively
called the "EARNEST MONEY". On the Closing Date, the Earnest Money
shall be applied as part payment of the Purchase Price (as hereinafter
defined).
(b) Until the Due Diligence Date, Escrow Agent shall hold
and disburse the Earnest Money in accordance with the terms and
conditions of this Agreement, including, without limitation, the terms
and conditions set forth on EXHIBIT "D" attached hereto, and shall
invest the Earnest Money with SunTrust Bank or a national bank whose
depositors are insured by the Federal Deposit Insurance Corporation or
other financial institutions located in Atlanta, Georgia as are
reasonably acceptable to Buyer.
(c) On the Closing Date, the Earnest Money will be applied
as part payment of the Purchase Price. In the event Buyer does not
exercise its option to terminate this Agreement pursuant to PARAGRAPH
5(c) of this Agreement, Escrow Agent shall pay over the Earnest Money
to the Seller on the day after the Due Diligence Date.
4. Closing.
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(a) The closing of the purchase and sale of the Property
(herein called "CLOSING"), shall be held at the offices of Kilpatrick
Stockton, LLP, Suite 2800, 1100 Peachtree Street, Atlanta, Georgia
30309-4530, at such time and on such date (herein called the "CLOSING
DATE"), as may be specified by written notice from Buyer to Seller not
less than TEN (10) DAYS prior thereto; PROVIDED, HOWEVER, that the
Closing Date shall be on or before the date TWO HUNDRED FORTY (240)
DAYS AFTER THE EFFECTIVE DATE (herein called the "FINAL CLOSING DATE")
and, if Buyer shall fail to give notice designating the Closing Date,
the Closing Date shall be, and the Closing shall take place at 10:00
A.M. on, the Final Closing Date. In the event Buyer specifies a date
earlier than the Final Closing Date as the Closing Date, Buyer may
thereafter postpone the Closing Date to a later date on or before the
Final Closing Date by written notice from Buyer to Seller on or before
the last date specified as the Closing Date.
(b) Notwithstanding the foregoing, Buyer may extend the
Final Closing Date for TWO (2) periods of thirty (30) days each
(herein called the "EXTENSION PERIODS") by delivering to Seller
written notice of each extension and a check drawn upon good funds in
the amount of EIGHT THOUSAND FIVE HUNDRED DOLLARS ($8,500.00) for each
Extension Period, not later than FIVE (5) DAYS prior to the initial
Final Closing Date, or the first extended Final Closing Date, as the
case may be. Such additional amount or amounts paid to Seller by
Buyer shall be considered Rent Subsidy, pursuant to PARAGRAPH 14
below, which Rent Subsidy shall be non-refundable and shall not be
applied as part payment of the Purchase Price.
5. Access and Inspection; Delivery of Documents and In-
----------------------------------------------------
formation by Seller; Examination by Buyer.
-----------------------------------------
(a) Between the date of this Agreement and the Closing
Date, Buyer and Buyer's agents and designees shall have the right to
enter the Project for the purposes of inspecting the Project,
conducting soil tests, and making surveys, mechanical and structural
engineering studies, environmental assessments, and any other
4<PAGE>
<PAGE>
investigations and inspections as Buyer may reasonably require to
assess the condition of the Project; PROVIDED, HOWEVER, that such
activities by or on behalf of Buyer on the Property shall not
materially damage the Property; and PROVIDED FURTHER, HOWEVER, that
Buyer shall indemnify and hold Seller harmless from and against any
and all claims for injury to person or damage to property, to the
extent resulting from the activities of Buyer or Buyer's agents or
designees on the Property, EXCLUDING, HOWEVER, claims arising out of
the discovery of, or the non-negligent accidental or inadvertent
release of, any Pollutants resulting from Buyer's investigations
(unless the Pollutants are brought onto the Project by Buyer or
Buyer's agents, employees, consultants or contractors).
(b) On or before the date THREE (3) DAYS AFTER THE
EFFECTIVE DATE, Seller shall deliver to Buyer, if not previously
delivered, or make available to Buyer for examination or copying by
Buyer, at the address for Buyer set forth below Buyer's execution of
this Agreement, the following documents and information with respect
to the Property (to the extent such items are in the possession or
under the control of Seller or Seller's family, agents or employees):
(i) All appraisals, surveys, plans, specifications,
environmental, engineering and mechanical data relating to the
Project, including such items relating to tenant improvements,
and reports such as soils reports and environmental audits, which
are in Seller's possession;
(ii) All real property and other ad valorem tax bills and
utility bills regarding the Project for the two-year period
preceding the date of this Agreement;
(iii) True, correct and complete copies of the Service
Agreements;
(iv) True, correct and complete copies of the Warranties;
(v) True, correct and complete copies of the Permits;
(vi) True, correct and complete copies of all documents and
correspondence relating to the Entitlements;
(vii) A full, correct and complete list and identifying
description of all of the Personalty;
(viii) True, correct and complete copies of all policies
of insurance carried by Seller with respect to the Property,
together with evidence of the premiums paid by Seller therefor;
and
(ix) A copy of any policy of title insurance issued in favor
of Seller.
(c) Buyer shall have until SIXTY (60) DAYS AFTER THE
EFFECTIVE DATE (herein called the "DUE DILIGENCE DATE") in which to
examine and investigate the Property, and to determine whether the
Property is suitable and satisfactory to Buyer and whether the
Property can be operated in a manner that is economically feasible and
otherwise suitable and satisfactory to Buyer. In the event that Buyer
5<PAGE>
<PAGE>
shall determine, in Buyer's sole and absolute judgment and discretion,
that the Property is in any manner unsuitable or unsatisfactory to
Buyer or cannot be operated in a manner that is economically feasible
and otherwise suitable and satisfactory to Buyer, Buyer shall have the
right, at Buyer's option, to terminate this Agreement by giving
written notice thereof to Seller on or before the DUE DILIGENCE DATE,
in which event ONE HUNDRED DOLLARS ($100.00) of the Earnest Money
shall be delivered to Seller as consideration for Seller's execution
of and entry into this Agreement, the balance of the Earnest Money
shall be refunded to Buyer immediately upon request, all rights and
obligations of the parties under this Agreement shall expire, and this
Agreement shall terminate. Seller acknowledges that Buyer will expend
time, money and other resources in connection with the examination and
investigation of the Property hereinabove described, and that,
notwithstanding the fact that Buyer may terminate this Agreement
pursuant to this paragraph, such time, money and other resources
expended, together with the payment of the portion of the Earnest
Money hereinabove described to be paid to Seller in the event of a
termination of this Agreement, constitute good, valuable, sufficient
and adequate consideration for Seller's execution of and entry into
this Agreement. If Buyer gives Escrow Agent notice of Buyer's having
elected to terminate this Agreement pursuant to this SUBPARAGRAPH (c),
then: (i) Escrow Agent shall be, and is hereby, absolutely,
unconditionally and irrevocably authorized, directed and instructed to
disburse the Earnest Money as set forth in this SUBPARAGRAPH (c)
immediately upon receipt of a copy of such notice, without any inquiry
as to the propriety, effectiveness or timeliness of such termination
and without the requirement of any further authorization, direction or
instruction from either Seller or Buyer; and (ii) Seller covenants and
agrees not to delay, hinder or impede in any manner whatsoever the
disbursement of the Earnest Money as set forth in this SUBPARAGRAPH (c).
6. Prorations and Adjustments to Purchase Price.
--------------------------------------------
(a) The following prorations and adjustments shall be made
between Buyer and Seller at Closing, or thereafter if Buyer and Seller
shall agree:
(i) All city, state and county ad valorem taxes and similar
impositions levied or imposed upon or assessed against the
Property (herein called the "TAXES"), for the year in which
Closing occurs shall be prorated as of the Closing Date. If the
amount of such Taxes is undetermined on the Closing Date, the
proration shall be based upon estimated taxes computed by
multiplying the most recent applicable assessment by the most
recent applicable tax rate. In the event Seller has paid only a
portion of the Taxes billed for the year in which Closing occurs
due to the pendency of a protest of such Taxes, then, in
connection with Closing, Seller shall deposit with Escrow Agent
an amount equal to Seller's pro rata share of the resulting
underpayment. Any such deposit with Escrow Agent shall be held
in escrow by Escrow Agent pending final resolution of such
protest, pursuant to escrow instructions reasonably acceptable in
form and substance to Buyer, Seller, Escrow Agent and their
respective counsel. In the event that, after the Closing Date,
any additional Taxes are levied, imposed upon or assessed against
the Property for periods prior to the Closing Date, Buyer shall
give Seller written notice of such Taxes, and Seller shall be
responsible for payment of such additional Taxes in full, subject
to any credit allocated to Seller pursuant to CLAUSE (ii), below,
within the time fixed for payment thereof and before the same
become delinquent. Without limiting the obligations of Seller
6<PAGE>
<PAGE>
pursuant to the immediately preceding sentence, Seller shall, and
does hereby, indemnify, defend and hold harmless Buyer from and
against any such additional Taxes (including all interest and
penalties assessed or imposed in connection therewith) relating
to periods prior to the Closing Date.
(ii) Seller shall receive a credit in the amount of one half
(1/2) of the Taxes paid by Seller levied or imposed upon or
assessed against the Property allocable to the period between the
Due Diligence Date and the Closing Date.
(iii) Buyer shall receive a credit in the amount of Rent
Subsidy paid (excluding any Rent Subsidy paid during any
Extension Period) and all funds held in the Rent Subsidy Escrow
Account as of the Closing Date, and Buyer shall transfer and
assign to Seller all of Buyer's right, title and interest in and
to the Rent Subsidy Escrow Account at Closing.
(iv) All utility charges for the Project (including, without
limitation, telephone, water, storm and sanitary sewer,
electricity, gas, garbage and waste removal) shall be prorated as
of the Closing Date, transfer fees required with respect to any
such utility shall be paid by or charged to Buyer, and Seller
shall be credited with any deposits transferred to the account of
Buyer; PROVIDED, HOWEVER, that at either party's election any one
or more of such utility accounts shall be closed as of the
Closing Date, in which event Seller shall be liable and
responsible for all charges for service through the Closing Date
and shall be entitled to all deposits theretofore made by Seller
with respect to such utility, and Buyer shall be responsible for
reopening and reinstituting such service in Buyer's name, and
shall be responsible for any fees, charges and deposits required
in connection with such new account.
(v) All amounts payable under any of the Assigned Service
Agreements shall be prorated as of the Closing Date; PROVIDED,
HOWEVER, that there shall be no proration of (x) Seller's
insurance premiums for the Project, or (y) matters pertaining to
Seller's employees shall be governed by the provisions of
SUBPARAGRAPH (b), below.
(vi) Any other items which are customarily prorated in
connection with the purchase and sale of properties similar to
the Property shall be prorated as of the Closing Date.
In the event that the amount of any item to be prorated is not
determinable at the time of Closing, except as otherwise provided
herein, such proration shall be made on the basis of the best
available information, and the parties shall re-prorate such item
promptly upon receipt of the applicable bills therefor and shall make
between themselves any equitable adjustment required by reason of any
difference between the estimated amount used as a basis for the
proration at Closing and the actual amount subject to proration. In
the event any prorated item is due and payable at the time of Closing,
the same shall be paid at Closing. If any prorated item is not paid
at Closing, Seller shall deliver to Buyer the bills therefor promptly
upon receipt thereof and Buyer shall be responsible for the payment in
full thereof within the time fixed for payment thereof and before the
same shall become delinquent. In making the prorations required by
this paragraph, the economic burdens and benefits of ownership of the
Property for the Closing Date shall be allocated to Buyer.
7<PAGE>
<PAGE>
(b) Except as expressly set forth in this Agreement, Buyer
shall not assume any liability, indebtedness, duty or obligation of
Seller of any kind or nature whatsoever, and Seller shall pay, satisfy
and perform all of the same.
7. Title.
-----
(a) Seller covenants to convey to Buyer at Closing good and
marketable fee simple title in and to the Property. For the purposes
of this Agreement, "GOOD AND MARKETABLE FEE SIMPLE TITLE" shall mean
fee simple ownership which is: (i) free of all claims, liens and
encumbrances of any kind or nature whatsoever other than the Permitted
Exceptions, herein defined; and (ii) insurable by a title insurance
company reasonably acceptable to Buyer, at then current standard rates
under the standard form of ALTA owner's policy of title insurance
(ALTA Form B-1992), with the standard or printed exceptions therein
deleted (but the deletion of the standard survey exception is subject
to Buyer's obtaining a survey of the Property acceptable to said title
insurance company) and without exception other than for the Permitted
Exceptions. For the purposes of this Agreement, the term "PERMITTED
EXCEPTIONS" shall mean: (A) current city, state and county ad valorem
taxes not yet due and payable; (B) easements for the installation or
maintenance of public utilities serving only the Property; and (C) any
other matters specified on EXHIBIT "E" attached hereto.
(b) Buyer shall have until the DUE DILIGENCE DATE in which
to examine title to the Property and in which to give Seller written
notice of objections which render Seller's title less than good and
marketable fee simple title. Thereafter, Buyer shall have until the
Closing Date in which to re-examine title to the Property and in which
to give Seller written notice of any additional objections disclosed
by such reexamination. Seller shall have until TEN (10) DAYS prior to
the Closing Date in which to satisfy all objections specified in
Buyer's initial notice of title objections, or agree to satisfy any
such objections that can only be satisfied at Closing, and until the
Closing Date in which to satisfy all objections specified in any
subsequent notice by Buyer of title objections. If Seller fails so to
satisfy any such objections, then, at the option of Buyer, Buyer may:
(i) terminate this Agreement, in which event the Earnest Money and the
balance in Rent Subsidy Escrow Account shall be refunded to Buyer
immediately upon request, all rights and obligations of Seller and
Buyer under this Agreement shall expire, and this Agreement shall
terminate; or (ii) if any such objection is based upon a deed to
secure debt, deed of trust, mortgage, judgment, lien or other
liquidated monetary claim, satisfy the objection, after deducting from
the Purchase Price the cost of satisfying objection; or (iii) waive
such satisfaction and performance and consummate the purchase and sale
of the Property, or (iv) if any such objection is of the type
described in clause (ii), above, or is an objection that arises after
the Effective Date, exercise such rights and remedies as may be provided for
in PARAGRAPH 15 hereof in the event of a breach or default by Seller.
8. Survey. Buyer shall have the right to cause an as-
------
built survey of the Property to be prepared by a surveyor registered
and licensed in the State of Georgia and designated by Buyer, which
survey shall depict such information as Buyer shall require. Upon
completion of a plat of the survey, Buyer shall furnish Seller with a
copy thereof. Seller's conveyance of the Property to Buyer at Closing
shall be in accordance with the description attached to this Agreement
as EXHIBIT "A". Upon request by Buyer, Seller shall also convey the
Property to Buyer by Quitclaim Deed in accordance with the legal description
prepared from the survey of the Land to be obtained pursuant to this Agreement.
8<PAGE>
<PAGE>
9. Proceedings at Closing. On the Closing Date, the
----------------------
Closing shall take place as follows:
(a) Seller shall deliver to Buyer the following documents
and instruments, duly executed by or on behalf of Seller:
(i) a Limited Warranty Deed, in recordable form, in
the form of, and on the terms and conditions set forth in,
that attached hereto as EXHIBIT "F", conveying the Land and
the Improvements;
(ii) a Bill of Sale with limited warranty of title, in
the form of, and on the terms and conditions set forth in,
that attached hereto as EXHIBIT "G", conveying the
Personalty;
(iii) an Assignment, in the form of, and on the
terms and conditions set forth in, that attached hereto as
EXHIBIT "H", transferring and assigning the Assigned Service
Agreements, the Warranties, the Permits, the Impact Fee
Credits;
(iv) a Seller's Affidavit, in the form of, and on the
terms and conditions set forth in, that attached hereto as
EXHIBIT "I", with respect to the Property;
(v) if Seller is not a Foreign Person, a Certificate
and Affidavit of Non-Foreign Status, in the form of, and on
the terms and conditions set forth in, that attached hereto
as EXHIBIT "J";
(vi) a Certificate and Affidavit as to whether (A)
Seller is a resident of the State of Georgia (as defined in
O.C.G.A. Section 48-7-128(a), or (B) Seller is deemed to be a
resident of the State of Georgia pursuant to O.C.G.A. Section 48-
7-128, or (C) the sale of the Property by Seller is
otherwise exempt from the withholding requirements of
O.C.G.A. Section 48-7-128, in the form of, and on the terms and
conditions set forth in that attached hereto as EXHIBIT "K";
(vii) a completed 1099-S request for taxpayer
identification number and certification, and acknowledgment,
in the form of that attached hereto as EXHIBIT "L";
(viii) a certificate, in form and substance
satisfactory to counsel for Buyer, to the effect that the
representations and warranties of Seller in this Agreement
are true and correct in all material respects on and as of
the Closing Date; and
(ix) upon Buyer's request, a quitclaim deed conveying
all of Seller's right, title and interest in and to the
Property in accordance with the legal description prepared
from the survey of the Land to be obtained pursuant to this
Agreement.
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(b) Seller shall deliver to Buyer the following items
(to the extent such items are in the possession or under the
control of Seller or Seller's family, agents or employees), if
the same have not been theretofore delivered by Seller to Buyer:
(i) The originals of the Permits;
(ii) The originals of all books, records, correspon-
dence, memoranda, reports and other information and data
pertinent to the continued use, occupancy and operation of
the Property, including, without limitation, all records,
information and data relevant to income and operating
expenses for the Property;
(iii) A certificate from a licensed exterminating
company addressed to and in favor of Buyer, dated within
THIRTY (30) DAYS prior to the Closing Date, certifying that
there is no evidence of infestation by termites or any other
insect or wood-destroying organism affecting the
Improvements and no evidence of any damage caused by any
existing or prior infestation, or, if such certificate
indicates any such infestation or damage, then Seller shall,
in the sole discretion of Buyer, either promptly correct and
repair the same or pay to Buyer, by credit to Buyer at
Closing, the reasonable cost of such correction and repair;
and
(iv) To the extent the same are in the possession of
Seller on the date of Seller's execution of this Agreement,
or reasonably can be obtained by Seller prior to Closing, a
copy of all prior surveys of the Land or any portion thereof
and all plans and specifications for any of the
Improvements.
(c) Buyer shall pay the remainder of the Purchase
Price, after crediting the Earnest Money and making the
adjustments and prorations provided for in this Agreement, to
Seller in accordance with the provisions of this Agreement.
10. Costs of Closing. Seller shall pay ONE THOUSAND AND
----------------
00/100 ($1,000.00) of the State of Georgia Realty Transfer Tax payable
on the transfer of the Project, all recording costs and other costs
relating to any title clearance matters and Seller's attorneys' fees.
Buyer shall pay all recording costs relating to the purchase by Buyer
of the Property, the cost of any survey obtained pursuant to PARAGRAPH
8 hereof, the premium for any owner's policy of title insurance issued
in favor of Buyer insuring Buyer's title to the Property, Buyer's
attorneys' fees and any additional State of Georgia Realty Transfer
Tax. All other costs and expenses of the transaction contemplated
hereby shall be borne by the party incurring the same.
11. Warranties, Representations and Additional Covenants of Seller.
--------------------------------------------------------------
Seller represents, warrants and covenants to and with Buyer,
knowing that Buyer is relying on each such representation, warranty
and covenant, that:
(a) Seller has the lawful right, power, authority and
capacity to sell the Property in accordance with the terms,
provisions and conditions of this Agreement.
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(b) There are no actions, suits or proceedings pending or
threatened against, by or affecting Seller which affect title to
the Property or which question the validity or enforceability of
this Agreement or of any action taken by Seller under this
Agreement, in any court or before any governmental authority,
domestic or foreign.
(c) The execution of and entry into this Agreement, the
execution and delivery of the documents and instruments to be
executed and delivered by Seller on the Closing Date, and the
performance by Seller of Seller's duties and obligations under
this Agreement and of all other acts necessary and appropriate
for the full consummation of the purchase and sale of the
Property as contemplated by and provided for in this Agreement,
are consistent with and not in violation of, and will not create
any adverse condition under, any contract, agreement or other
instrument to which Seller is a party or any judicial order or
judgment of any nature by which Seller is bound, and this
Agreement, and the covenants and agreements of Seller under this
Agreement, are the valid and binding obligations of Seller,
enforceable in accordance with their terms.
(d) Seller has "good and marketable fee simple title" as
defined herein, to the Project, subject to the liens and security
interests securing loans to Seller that will be paid in full,
satisfied and canceled at Closing; and, without limiting the
generality of the foregoing, Seller owns all of the Personalty
and none of the Personalty is leased.
(e) On the Closing Date, either: (A) there will be no
indebtedness to any contractor, laborer, mechanic, materialman,
architect, engineer or any other person for work, labor or
services performed or rendered, or for materials supplied or
furnished, in connection with the Property for which any such
person could claim a lien against the Property; or (B) Seller
will provide at Closing such assurances, and collateral therefor,
as Buyer's title insurer requires to insure Buyer's title to the
Project without exception therefor.
(f) To the best of Seller's knowledge, except as shown on
the survey described in EXHIBIT "E" attached hereto, there are no
encroachments on the Land, and the Improvements are situated
entirely within the boundaries of the Land and within applicable
building lines.
(g) Seller will pay or cause to be paid promptly when due
all city, state and county ad valorem taxes and similar taxes and
assessments, all sewer and water charges and all other
governmental charges levied or imposed upon or assessed against
the Property between the date hereof and the Closing Date, and
will pay or cause to be paid all expenses incurred in the use,
occupancy and operation of the Property between the date hereof
and the Closing Date.
(h) To the best of Seller's knowledge, no portion of the
Land is located within any Special Flood Hazard Area designated
by the Federal Emergency Management Agency, or in any area
similarly designated by any agency of any other governmental
authority; no portion of the Land meets the definition of
"wetlands" codified at 40 C.F.R. part 230.3(t), or has been
similarly designated by any agency of any governmental authority;
and no portion of the Land constitutes "wetlands" that have been
filled, whether or not pursuant to appropriate permits.
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(i) To the best of Seller's knowledge, no portion of the
Land is subject to any other classification, designation or
preliminary determination of any agency of any federal, state or
local government, or pursuant to any federal, state or local law,
which would restrict the use, development, occupancy or operation
of the Property, including, without limitation, any designation
or classification as an archeological site, any classification or
determination under the Endangered Species Act, or any
designation as an historical site.
(j) To the best of Seller's knowledge, the Project is not
subject to any use, development or occupancy restrictions (except
those imposed by applicable zoning and subdivision laws and
regulations), special taxes and assessments or utility "tap-in"
fees (except those generally applicable throughout the tax
district in which the Project is located), or charges or
restrictions, whether existing of record or arising by operation
of law, unrecorded agreement, the passage of time or otherwise
(other than the Permitted Exceptions).
(k) No portion of the Project is used or, during the
period of Seller's ownership of the Project, has been used
by Seller or Seller's employees, agents or contractors, or
any party acting by, through or under Seller, for the
storage, processing, treatment or disposal of Pollutants; to
the best of Seller's knowledge, no portion of the Project
has been used for the storage, processing, treatment or
disposal of Pollutants prior to the period of Seller's
ownership of the Project; no Pollutants have been placed in
the Improvements during the period of Seller's ownership of
the Project by Seller or Seller's employees, agents or
contractors, or any party acting by, through or under
Seller; to the best of Seller's knowledge, the Improvements
do not contain, nor have they ever contained, Pollutants; no
Pollutants have been released, introduced, spilled,
discharged or disposed of, nor has there been a threat of
release, introduction, spill, discharge or disposal of a
Pollutant, on, in, or under the Project during the period of
Seller's ownership of the Project by Seller or Seller's
employees, agents or contractors, or any party acting by,
through or under Seller or, to the best of Seller's
knowledge, anytime prior thereto; to the best of Seller's
knowledge, there are no pending claims, administrative
proceedings, judgments, declarations, or orders, whether
actual or threatened, relating to the presence of Pollutants
on, in or under the Project; to the best of Seller's
knowledge, the Project is in compliance with all federal,
state and local laws, regulations, orders and requirements
regarding the regulation of Pollutants; to the best of
Seller's knowledge, no Pollutants have been released,
introduced, spilled, discharged or disposed of on, in or
under any adjacent property; and, to the best of Seller's
knowledge, there are no underground storage tanks located on
or in the Project. As used in this Agreement, "POLLUTANTS"
means any material or substance, or combination of materials
or substances, which by reason of quantity, concentration,
composition, or characteristic is regulated under any
federal, state or local environmental or common law, rule,
regulation, ordinance or requirement, as may be amended,
replaced or superseded, and shall include, without
limitation: (i) any hazardous substance as defined by the
Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C.A. Section 9601 et seq.; (ii) any
hazardous substance, constituent or waste as defined by the
Georgia Hazardous Site Response Act, O.C.G.A. Section 12-8-90 et
seq.; (iii) any material identified as a hazardous waste
under the Solid Waste Disposal Act, as amended by the
12<PAGE>
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Resource Conservation and Recovery Act, 42 U.S.C.A. Section 6901
et seq.; (iv) any solid or hazardous waste identified under
the Georgia Comprehensive Solid Waste Management Act,
O.C.G.A. Section 21-8-20 et seq., and the Georgia Hazardous Waste
Management Act, O.C.G.A. Section 12-8-60 et seq.; (v) any material
regulated as a Toxic pollutant as defined under the Federal
Water Pollution Control Act, 33 U.S.C.A. Section 1251 et seq.;
(vi) any hazardous substance or toxic pollutant as defined
under the Federal Water Pollution Control Act, 33 U.S.C.A. Section
1251 et seq.; (vii) any hazardous substance as defined by
the Oil Pollution Act, 33 U.S.C.A. Section 2701 et seq., the
Georgia Oil Hazardous Material Spills or Releases Act,
O.C.G.A. Section 12-14-1 et seq., the Georgia Water Quality
Control Act, O.C.G.A. Section 12-5-20 et seq. or the Georgia
Underground Storage Tank Act, O.C.G.A. Section 12-13-1 et seq.;
(viii) any hazardous air pollutant as defined under the
Federal Clean Air Act, 42 U.S.C.A. Section 7401 et seq. and the
Georgia Air Quality Act, O.C.G.A. Section 12-9-1 et seq.; (ix) any
substance regulated under the Federal Insecticide, Fungicide
and Rodenticide Act, 7 U.S.C.A. Section 135 et seq.; (x) a special
nuclear or byproduct material within the meaning of the
Atomic Energy Act, 42 U.S.C.A. Section 2014 et seq.; and (xi) any
material or substance, or combination of materials or
substances displaying any explosive, volatile, radioactive,
toxic, corrosive, flammable, ignitable or reactive
characteristic or which may cause a nuisance, injury, harm
or degradation to human health, welfare or the environment.
Notwithstanding anything contained herein to the contrary,
Seller shall not be deemed to be in breach of this
subparagraph (k) by reason of the presence on the Project of
Pollutants, the prior use of Pollutants on the Project, or
the storage on the Project of Pollutants, if such Pollutants
are substances and materials commonly used in the operation,
maintenance or repair of properties similar to the Project
and stored and/or used in accordance with all applicable
laws, regulations, and ordinances.
(l) Seller has received no notice of any violations or
potential violation of any, zoning, building, health,
environmental or other laws, codes, ordinances, regulations,
orders or requirements of any city, county, state or other
governmental authority having jurisdiction thereof, or any
private restrictive covenants affecting the Project; and all
certificates, licenses, permits, authorizations, consents and
approvals required by any such governmental authority for the
continued use, occupancy and operation of the Project have been
obtained, are paid for, and are free of restrictions.
(m) Seller has not received any written notice of, nor does
Seller have any actual knowledge of, any pending or threatened
condemnation actions involving all or any portion of the Project
or any interest therein; and, to the best of Seller's knowledge
and belief, there are no existing, proposed or contemplated plans
to widen, modify or realign any public rights-of-way located
adjacent to any portion of the Land.
(n) To the best of Seller's knowledge, all utilities
(including, without limitation, water, storm and sanitary sewer,
electricity, gas and telephone) are available on the Land through
private easements or properly dedicated public easements in
capacities sufficient to serve and operate the Project.
13<PAGE>
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(o) Except as provided in the Permitted Exceptions, to the
best of Seller's knowledge, access to the Land from streets and
roads adjoining the Land is not limited or restricted.
(p) There are no management, maintenance, service or other
contracts with respect to the Property other than the Service
Agreements; and all of the Service Agreements can be canceled on
THIRTY (30) days notice or less; the Service Agreements are
presently in full force and effect, under the Franchise
Agreementhave not been modified, supplemented or amended, and, if
in writing, are the entire agreement between Seller and the other
parties thereto; Seller has fully and completely paid and
performed all of the duties, obligations, liabilities and
responsibilities of the owner of the Property under the Service
Agreements arising on or before the date hereof; and, as of the
Closing Date, there will be no management, maintenance, service
or other contracts with respect to the Property other than the
Assigned Service Agreements.
(q) To the best of Seller's knowledge (i) the Improvements
are in good order and repair, and in a good, safe, substantial
condition, free from defects, (ii) all plumbing, heating,
electrical and air conditioning systems and equipment and systems
therein are in good order and repair and operating condition
(iii) all electrical, plumbing, heating and air-conditioning and
exterior drainage systems, in or on the Project are in good
condition and working order, (iv) there is no termite or other
pest infestation, dry-rot or similar damage affecting the
Property (v) the Improvements are water-tight and (vi) there is
no subsidence or other soil condition that does or may in the
future adversely affect the Project.
(r) To the best of Seller's knowledge, the Personalty is in
good order, condition and repair.
(s) Between the date hereof and the Closing Date, Seller:
(i) shall continue to carry and maintain in force all existing
policies of casualty and public liability insurance with respect
to the Project; and (ii) shall not make or enter into any lease
or other agreement for the use, occupancy or possession of all or
any part of the Project without the prior written approval of
Buyer; there are no leases, occupancy agreements or other similar
agreements with respect to the Project except for the Lease
Agreement between Seller and PRIVE INC., a copy of which is
attached hereto as EXHIBIT "M".
(t) All information and data furnished by Seller to Buyer
with respect to the Property will be true, correct, complete and
not misleading in any material respect.
(u) Seller will not cause or permit any action to be taken
which will cause any of the foregoing representations, warranties
or covenants to be untrue or unperformed on the Closing Date in
any material respect; and Seller will not cause or permit any
action to be taken which will cause any of the conditions of
Buyer's obligations set forth in PARAGRAPH 13, below, to be
unsatisfied or unperformed on or as of the Closing Date.
14<PAGE>
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(v) Seller will deliver on the Closing Date all documents
and instruments required by this Agreement and perform all acts
necessary or appropriate for the consummation of the purchase and
sale of the Property as contemplated by and provided for in this
Agreement.
Seller acknowledges and agrees that no examination or investigation of
the Property or of the operation of the Property by or on behalf of
Buyer prior to Closing shall in any way modify, affect or diminish
Seller's obligations under the representations, warranties, covenants
and agreements set forth in this Agreement.
12. Disclaimer. Except as expressly set forth herein and
----------
except as may be set forth in any documentation executed and delivered
at Closing, Seller hereby specifically disclaims any representation or
warranty, express or implied, including, without limitation, those
concerning (a) the nature and condition of the Property and the
suitability of the Property for any and all activities and uses which
Buyer may elect to conduct thereon, (b) the manner, construction,
condition and state of repair or lack of repair of any improvements
located on, or comprising, the Property or any part thereof, and
(c) the compliance of the Property or its operation with any laws,
rules, ordinances or regulations of any government or other body,
including, but not limited to, the Americans with Disability Act and
other laws regarding access for handicapped persons, it being
understood that Buyer shall have full opportunity prior to the Due
Diligence Date to determine for itself the condition of the Property.
The sale of the Property is made on an "AS IS" AND "WHERE IS" basis,
and Buyer expressly acknowledges that, in consideration of the
agreements of Seller herein, except as otherwise expressly set forth
herein and except as may expressly be set forth in any documentation
executed and delivered at Closing, SELLER HAS NOT MADE, AND DOES NOT
MAKE, ANY WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, OR ARISING
BY OPERATION OF LAW, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF
QUANTITY, QUALITY, CONDITION, HABITABILITY, MERCHANTABILITY,
SUITABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE PROJECT, ANY
IMPROVEMENTS, ANY PERSONAL PROPERTY, SOIL CONDITIONS OR THE PRESENCE
OR RELEASE OF HAZARDOUS MATERIALS.
13. Conditions of Buyer's Obligations.
---------------------------------
(a) Buyer's obligation to consummate the purchase and sale
of the Property on the Closing Date shall be subject to the
satisfaction or performance of the following terms and conditions, any
one or more of which may be waived in writing by Buyer, in whole or in
part, on or as of the Closing Date:
(i) Seller shall have fully and completely kept, observed,
performed, satisfied and complied in all material respects with
all terms, covenants, conditions, agreements, requirements,
restrictions and provisions required by this Agreement to be
kept, observed, performed, satisfied or complied with by Seller
before, on or as of the Closing Date;
(ii) The representations and warranties of Seller in this
Agreement (and the substantive facts contained in any
representations and warranties limited to Seller's knowledge and
belief) shall be true and correct in all material respects on and
as of the Closing Date, in the same manner and with the same
15<PAGE>
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effect as though such representations and warranties had been
made on and as of the Closing Date;
(iii) Buyer shall not have terminated this Agreement
pursuant to an express right so to terminate set forth in this
Agreement;
If any of the foregoing conditions have not been satisfied or
performed or waived in writing by Buyer on or as of the Closing Date,
Buyer shall have the right, at Buyer's option, either: (i) to
terminate this Agreement by giving written notice to Seller on or
before the Closing Date, in which event all rights and obligations of
Seller and Buyer under this Agreement shall expire, and this Agreement
shall terminate; or (ii) if such failure of condition constitutes a
breach of representation or warranty by Seller, constitutes a failure
by Seller to perform any of the terms, covenants, conditions,
agreements, requirements, restrictions or provisions of this
Agreement, or otherwise constitutes a default by Seller under this
Agreement, to exercise such rights and remedies as may be provided for
in paragraph 15 of this Agreement. In either of such events, the
Earnest Money and the remaining money held in the Rent Subsidy Escrow
Account shall be refunded to Buyer immediately upon request free and
clear from all claims of Seller.
(b) Buyer's obligation to consummate the purchase and sale
of the Property on the Closing Date shall be subject to Buyer's having
obtained from the appropriate governmental authorities (i) a Charter
for the operation of a bank by Buyer, and (ii) approval of the Project
as a location for banking operations. If Buyer has not terminated
this Agreement prior to the Due Diligence Date in accordance with the
terms and provisions of PARAGRAPH 5(c) hereof, Buyer shall file an
application for its Charter with the appropriate authorities within
FOURTEEN (14) DAYS after the Due Diligence Date, shall certify in
writing to Seller that said application has been filed, shall pay the
Charter application fee, and shall pursue the approval of such
application diligently and in good faith in such manner as shall
reasonably be determined by Buyer in Buyer's sole discretion. In the
event either (i) the foregoing conditions are not satisfied on or as
of the Closing Date, or (ii) Buyer determines, in its sole discretion
for any reason at any time prior to the Closing Date, that it will not
succeed in obtaining its Charter, Buyer may, at any time on or before
the Closing Date, by written notice to Seller, terminate this
Agreement, in which event (i) the Additional Earnest Money and the
remaining money held in the Rent Subsidy Escrow Account shall be
refunded to Buyer immediately upon request, (ii) all rights and
obligations of the parties under this Agreement shall expire, and this
Agreement shall terminate, and (iii) Seller shall retain the Initial
Earnest Money and the amounts theretofore paid from the Rent Subsidy
Escrow Account free and clear from all claims of Buyer.
14. Possession.
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(a) Seller shall surrender possession of the Property to
Buyer on the Closing Date.
(b) Buyer shall pay to Seller payments in lieu of rent that
Seller would otherwise be able to obtain for the Property (herein
called the "RENT SUBSIDY") in the amounts of (i) $6,000.00 per month
for the period commencing on the first date following the Due
Diligence Date until the initial Final Closing Date specified in
SUBPARAGRAPH 4(a), and (ii) $8,500.00 per month for the months during
16<PAGE>
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any Extension Period (herein called the "RENTAL PERIOD"). Buyer shall
pay the Rent Subsidy for the first six (6) months of the Rental Period
(i.e. for the period between the Due Diligence Date and the initial
Final Closing Date specified in SUBPARAGRAPH 4(a), above) in advance
on the first day following the Due Diligence Date by delivering to the
Escrow Agent the sum of $36,000.00 (which sum, together with all
interest actually earned thereon during the term of this Agreement, is
herein called the "RENT SUBSIDY ESCROW ACCOUNT"). Rent Subsidy for
the Extension Period shall be paid as provided in PARAGRAPH 4(b),
above.
(c) Throughout the Rental Period, Escrow Agent shall hold
and disburse the Rent Subsidy Escrow Account in accordance with the
terms and conditions of this Agreement, including, without limitation,
the terms and conditions set forth on EXHIBIT "D" attached hereto, and
shall invest the Rent Subsidy Escrow Account with SunTrust Bank or a
national bank whose depositors are insured by the Federal Deposit
Insurance Corporation or other financial institutions located in
Atlanta, Georgia as are reasonably acceptable to Buyer. Escrow Agent
shall pay the Rent Subsidy from the Rent Subsidy Escrow Account to
Seller on behalf of Buyer monthly in the amount of $6,000.00 per month
on the day following the Due Diligence Date, and on the same day of
each month thereafter until the earlier of the initial Final Closing
Date , or the date of termination of this Agreement. Rent Subsidy
paid pursuant to this PARAGRAPH 14 from the Rent Subsidy Escrow
Account for the first six (6) months of the Rental Period shall be
applied as part payment of the Purchase Price at Closing. If this
Agreement is terminated by Buyer prior to Closing, the Rent Subsidy
theretofore actually paid from the Rent Subsidy Escrow Account shall
be nonrefundable and all amounts remaining in the Rent Subsidy Escrow
Account shall be refunded to Buyer. If Buyer gives Escrow Agent
notice of Buyer's having elected to terminate this Agreement pursuant
to PARAGRAPH 13(b), then: (i) Escrow Agent shall be, and is hereby,
absolutely, unconditionally and irrevocably authorized, directed and
instructed to disburse the Rent Subsidy Escrow Account as set forth in
this SUBPARAGRAPH (c) immediately upon receipt of a copy of such
notice, without any inquiry as to the propriety, effectiveness or
timeliness of such termination and without the requirement of any
further authorization, direction or instruction from either Seller or
Buyer; and (ii) Seller covenants and agrees not to delay, hinder or
impede in any manner whatsoever the disbursement of the Rent Subsidy
Escrow Account as set forth in this SUBPARAGRAPH (c).
(d) The payment of the Rent Subsidy shall not cause Buyer
to be deemed to be in possession of the Project prior to Closing.
Seller shall remain in possession of the Project until Closing. For
the period between the Effective Date and the Closing Date, Seller
shall operate and maintain the Property in the ordinary course of
business, shall maintain all utilities (including, without limitation,
telephone, water, storm and sanitary sewer, electricity, air
conditioning, gas, garbage and waste removal) and Service Agreements
as currently operated, and shall maintain and repair the Project so
that, throughout the term of this Agreement and on the Closing Date,
the Project will be in the same condition as it now exists, natural
wear and tear and loss by insured casualty alone excepted. Seller
shall be responsible for all expenses relating to the operation and
maintenance of the Project prior to the Closing Date. Seller shall be
entitled to any operating income from the Property prior to the
Closing Date, excluding any income from Buyer's activities.
15. Remedies.
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(a) If the purchase and sale of the Property is not
consummated in accordance with the terms and conditions of this
Agreement due to circumstances or conditions which constitute a
default by Buyer under this Agreement, the Earnest Money shall be
delivered to Seller which, together with the amounts paid from the
Rent Subsidy Escrow Account prior to such default, shall serve as full
liquidated damages for such default. Seller and Buyer acknowledge
that Seller's actual damages in the event of a default by Buyer under
this Agreement will be difficult to ascertain, that such liquidated
damages represent the Seller's and Buyer's best estimate of such
damages, and that Seller and Buyer believe such liquidated damages are
a reasonable estimate of such damages. Seller and Buyer expressly
acknowledge that the foregoing liquidated damages are intended not as
a penalty, but as full liquidated damages, as permitted by O.C.G.A. Section
13-6-7, in the event of Buyer's default and as compensation for
Seller's taking the Property off the market during the term of this
Agreement. Such delivery of the Earnest Money and the retention of
the amounts paid from the Rent Subsidy Escrow Account shall be the
sole and exclusive remedy of Seller by reason of a default by Buyer
under this Agreement, and Seller hereby waives and releases any right
to sue Buyer, and hereby covenants not to sue Buyer, for specific
performance of this Agreement or to prove that Seller's actual damages
exceed the Earnest Money and the amounts paid from the Rent Subsidy
Escrow Account which are herein provided Seller as full liquidated damages.
(b) If (i) any representation or warranty of Seller set
forth in this Agreement shall prove to be untrue or incorrect in any
material respect, or (ii) Seller shall fail to keep, observe, perform,
satisfy or comply with, fully and completely in any material respect,
any of the terms, covenants, conditions, agreements, requirements,
restrictions or provisions required by this Agreement to be kept,
observed, performed, satisfied or complied with by Seller, or (iii)
the purchase and sale of the Property is otherwise not consummated in
accordance with the terms and provisions of this Agreement due to
circumstances or conditions which constitute a default by Seller under
this Agreement (the matters described in the foregoing CLAUSES (i),
(ii) AND (iii) are herein sometimes collectively called "SELLER
DEFAULTS"), the Earnest Money, the amount of Rent paid to Seller, and
any amount remaining in the Rent Subsidy Escrow Account shall be
refunded to Buyer immediately upon request or Buyer may seek specific
performance. Upon the occurrence of any of the Seller Defaults, Buyer
shall not be entitled to seek, prove or recover from Seller monetary
damages; PROVIDED, HOWEVER, in the event specific performance is not
available, or if Seller shall knowingly or intentionally fail to keep,
observe, perform, satisfy or comply with, fully and completely in any
material respect, any of the terms, covenants, conditions, agreements,
requirements, restrictions or provisions required by this Agreement to
be kept, observed, performed, satisfied or complied with by Seller,
Buyer's remedies shall specifically include, without limitation, the
right to seek, prove and recover (to the extent proven) monetary
damages from Seller, including, without limitation, an amount equal to
all actual out-of-pocket costs and expenses paid or incurred by Buyer
in connection with its execution of and entry into this Agreement and
its proposed acquisition of the Property, including, without
limitation, (A) attorney's fees and disbursements in connection with
the negotiation and execution of this Agreement, the examination of
title to the Property, and any other legal matter undertaken by Buyer
pertaining to the Property and (B) any examinations, investigations,
tests and inspections, undertaken by Buyer with respect to the Property.
16. Indemnification. Except for matters resulting from
---------------
Buyer's exercise of its rights pursuant to paragraph 5(a), Seller
18<PAGE>
<PAGE>
shall, and does hereby, indemnify, defend and hold Buyer harmless
from, against and in respect of: (i) physical injury to or the death
of persons or damage to property occurring prior to and including the
Closing Date (x) on or in the Project, or (y) in any manner arising
out of, by reason of or in connection with the use, occupancy or
operation of the Project; (ii) any matter arising out of, by reason of
or with respect to the ownership or operation of the Property prior to
and including the Closing Date; (iii) any and all actions, causes of
action, suits, claims, demands, judgments, liens, proceedings and
investigations (or any appeal thereof or relative thereto or other
review thereof), of any kind or nature whatsoever, arising out of, by
reason of, as a result of or in connection with any of the matters
covered by the immediately preceding CLAUSES (i) OR (ii); and (iv) any
and all liabilities, damages, losses, costs, expenses (including
counsel fees and expenses and disbursements of counsel; PROVIDED,
HOWEVER, such counsel must be preapproved by Seller in writing),
amounts of judgment, assessments, fines or penalties, and amounts paid
in compromise or settlement, suffered, incurred or sustained by Buyer
on account of, by reason of, as a result of or in connection with any
of the matters covered by the immediately preceding CLAUSES (i), (ii) OR (iii).
17. Risk of Loss and Insurance. Between the date of this
--------------------------
Agreement and Closing, the risks and obligations of ownership and loss
of the Property and the correlative rights against insurance carriers
and third parties shall belong to Seller. In the event of the damage
or destruction of a material portion of the Property (as determined by
Buyer in its reasonable judgment) prior to Closing, Buyer shall have
the right, at Buyer's option, to terminate this Agreement by giving
written notice thereof to Seller within the first to occur of (i)
sixty (60) after Buyer has received notice from Seller of such damage
or destruction or (ii) Closing, in which event the Earnest Money and
the Rent Subsidy Escrow Account shall be refunded to Buyer immediately
upon request, all rights and obligations of Seller and Buyer under
this Agreement shall expire, and this Agreement shall terminate. If
Buyer does not so terminate this Agreement, the Purchase Price shall
be reduced by the total of any insurance proceeds received by Seller
prior to Closing by reason of such damage or destruction and by the
amount of any deductible applicable to the policy of insurance, and,
at Closing, Seller shall assign to Buyer all insurance proceeds to be
paid or to become payable after Closing by reason of such damage or destruction.
18. Condemnation. In the event of the taking of all or any
------------
part of the Property, or any interest therein, by eminent domain pro-
ceedings, or the commencement or bona fide threat of the commencement
of any such proceedings, prior to Closing, Buyer shall have the right,
at Buyer's option, to terminate this Agreement by giving written
notice thereof to Seller within the first to occur of (i) thirty (30)
after Buyer has received notice from Seller of such proceedings or the
threat of commencement of such proceedings or (ii) Closing, in which
event the Earnest Money and the Rent Subsidy Escrow Account shall be
refunded to Buyer immediately upon request, all rights and obligations
of Seller and Buyer under this Agreement shall expire, and this
Agreement shall terminate. If Buyer does not so terminate this
Agreement, the Purchase Price shall be reduced by the total of any
awards or other proceeds received by Seller prior to Closing with respect to
any taking, and, at Closing, Seller shall assign to Buyer all rights of Seller
in and to any awards or other proceeds to be paid or to become payable after
Closing by reason of any taking. Seller shall notify Buyer of eminent domain
proceedings within five (5) days after Seller learns thereof.
19. Brokers and Commission.
----------------------
19<PAGE>
<PAGE>
(a) All negotiations relative to this Agreement and the
purchase and sale of the Property as contemplated by and provided for
in this Agreement have been conducted by and between Seller and Buyer
without the intervention of any person or other party as agent or
broker, with the exception of Brokers. Seller, Buyer and Brokers
warrant and represent to each other that, other than with regard to
Brokers, Seller and Buyer have not entered into any agreement or
arrangement and have not received services from any broker or broker's
employees or independent contractors which would give rise to any
claim of lien or lien against the Property pursuant to the Georgia
Commercial Real Estate Broker Lien Act, and there are and will be no
broker's commissions or fees payable in connection with this Agreement
or the purchase and sale of the Property by reason of their respective
dealings, negotiations or communications except the commission payable
to Brokers by SELLER in accordance with the terms and provisions of
SUBPARAGRAPH (b), below. BUYER shall in no event be responsible or
liable for the payment of any commission or fee to Brokers in
connection with the purchase and sale of the Property. Brokers agree
that, notwithstanding anything to the contrary contained in this
Agreement, if the purchase and sale of the Property is not consummated
in accordance with this Agreement, regardless of the reason or the
party at fault, and regardless of whether such failure results from
the misconduct, bad faith act or breach or default of a party under
this Agreement, no commission, fee or other charge shall have been
earned by or be payable to Brokers, and neither Seller nor Buyer shall
be obligated or liable to Brokers for any commission, fee or other
charge of any kind in regard to this Agreement or the purchase and
sale of the Property. If the purchase and sale of the Property is
consummated in accordance with this Agreement, payment of the
commission specified in SUBPARAGRAPH (b), below, shall constitute full
and complete payment and satisfaction of any and all commissions,
fees, charges and claims of Brokers and Brokers' agents, employees,
representatives and affiliates arising from, in connection with or
with respect to this Agreement and the purchase and sale of the
Property. Brokers acknowledge that Brokers are a party to this
Agreement for the sole purpose of setting forth Brokers' rights to the
payment of a commission or fee in connection with the purchase and
sale of the Property and Brokers' covenants as contained in this
paragraph. Brokers agree that Brokers have no other rights with
respect to the payment of a commission or fee in connection with this
Agreement or the purchase and sale of the Property, except as
specifically set forth in this paragraph. Seller, Buyer and Brokers
shall and do each hereby indemnify, defend and hold harmless each of
the others from and against the claims, demands, actions and judgments
of any and all brokers, agents and other intermediaries alleging a
commission, fee or other payment to be owing by reason of their
respective dealings, negotiations or communications in connection with
this Agreement or the purchase and sale of the Property.
(b) IEA has acted as agent for BUYER, in this transaction
and is to be paid a commission in the amount of TWO PERCENT (2%) of
the Purchase Price in cash at Closing by SELLER. IEA has not acted as
agent in this transaction for SELLER. Bowers has acted as agent for
Seller in this transaction and is to be paid a commission in the
amount of FOUR PERCENT (4%) of the Purchase Price in cash at Closing
by Seller. Bowers has not acted as agent in this transaction for
BUYER. Each Broker agrees to provide at Closing a sworn affidavit
with respect to the payment in full of all compensation due such
Broker in connection with the transactions contemplated by this
Agreement and waiving and releasing any and all lien rights under the
Commercial Real Estate Broker Lien Act, O.C.G.A. Sections 44-14-600 et seq.,
and running in favor of Buyer, Seller and Buyer's title insurer.
20<PAGE>
<PAGE>
20. Further Assurances; Survival. At Closing, and from
----------------------------
time to time thereafter, Seller shall do all such additional and
further acts, and shall execute and deliver all such additional and
further deeds, affidavits, instruments, certificates and documents, as
Buyer, Buyer's counsel or Buyer's title insurer may reasonably require
fully to vest in and assure to Buyer full right, title and interest in
and to the Property to the full extent contemplated by this Agreement
and otherwise to effectuate the purchase and sale of the Property as
contemplated by and provided for in this Agreement. The provisions of
PARAGRAPHS 6, 21 AND 23 of this Agreement and the indemnification
provisions of PARAGRAPHS 5(a), 16 AND 19 of this Agreement shall
survive the consummation of the purchase and sale of the Property on
the Closing Date, the delivery of the deed to Buyer and the payment of
the Purchase Price. Notwithstanding any provision of this Agreement to
the contrary, the indemnification provisions of PARAGRAPHS 5(a), 16
AND 19 of this Agreement shall survive any termination of this
Agreement.
21. Confidentiality. Seller agrees that, until the Closing
---------------
Date, all information concerning this transaction, including the terms
and conditions of the letter agreement dated July 15, 1998 signed by
Seller and Buyer and this Agreement, and all other documents related
to this transaction, shall be kept strictly confidential and shall
not, without the prior written consent of Buyer, be disclosed or used
for any purpose; PROVIDED, HOWEVER, Seller may notify any lenders
holding a security interest in the Property of the transactions
contemplated by this Agreement. This paragraph shall apply to the
Seller and its respective trustees, employees, attorneys, accountants,
contractors, consultants, advisors and agents. In addition to any
other remedies available to Buyer, Buyer shall have the right to seek
equitable relief, including without limitation, injunctive relief or
specific performance, against Seller in order to enforce the
provisions of this paragraph.
22. Buyer's Approvals. Seller acknowledges that there may
-----------------
be required to be obtained from appropriate governmental authorities
certain authorizations, consents or approvals (including rezonings and
special use permits) for Buyer's proposed use or development of the
Property in its current condition for a bank (all of the foregoing
being herein collectively called "BUYER'S APPROVALS"). Buyer shall
have the right to seek and make applications for Buyer's Approvals, in
Buyer's sole judgment and discretion, PROVIDED, HOWEVER, Buyer may not
seek any Buyer's Approvals to construct any additional buildings,
structures or other improvements on the Land without the prior written
consent of Seller. At Buyer's request, Seller shall cooperate with
Buyer in connection with Buyer's efforts to obtain Buyer's Approvals
and, in connection therewith, Seller, as the owner of title to the
Property, shall execute such documents and instruments as may be
required by applicable governmental requirements or governmental
authorities in connection with Buyer's applications for Buyer's
Approvals.
23. Seller's Tax Deferred Exchange. Seller may convey the
------------------------------
Property or any portion thereof or interest therein as part of one or
more Internal Revenue Code Section 1031 Tax Deferred Exchanges for its
benefit. In such event, Seller shall be assigning all contract rights
and obligations hereunder to a qualified intermediary, as a part of,
and in furtherance of, such tax deferred exchange. Buyer agrees to
assist and cooperate in any such exchange, and Buyer further agrees to
21<PAGE>
<PAGE>
execute any and all documents as are reasonably necessary in
connection with any such exchange, provided Buyer incurs no additional
liability. Buyer shall not be obligated to incur any cost or expense
in connection with any such exchange, other than that which Buyer
elects to incur to have its counsel review the documents and instruments
incident thereto. As part of any such exchange, Seller shall convey the real
property described herein directly to Buyer and Buyer shall not be obligated
to acquire or convey any other property as part of any such exchange.
24. General Provisions.
------------------
(a) Notices. Whenever any notice, demand or request is
-------
required or permitted under this Agreement, such notice, demand or
request shall be in writing and shall be delivered by hand, be sent by
registered or certified mail, postage prepaid, return receipt
requested, or be sent by nationally recognized commercial courier for
next business day delivery, to the addresses set forth below their
respective executions hereof, or to such other addresses as are
specified by written notice given in accordance herewith, or shall be
transmitted by facsimile to the number for each party set forth below
their respective executions hereof, or to such other numbers as are
specified by written notice given in accordance herewith. All
notices, demands or requests delivered by hand shall be deemed given
upon the date so delivered; those given by mailing as hereinabove
provided shall be deemed given on the date of deposit in the United
States Mail; those given by commercial courier as hereinabove provided
shall be deemed given on the date of deposit with the commercial courier; and
those given by facsimile shall be deemed given on the date of facsimile
transmittal. Nonetheless, the time period, if any, in which a response to any
notice, demand or request must be given shall commence to run from the date of
receipt of the notice, demand or request by the addressee thereof. Any notice,
demand or request not received because of changed address or facsimile number
of which no notice was given as hereinabove provided or because of refusal to
accept delivery shall be deemed received by the party to whom addressed on the
date of hand delivery, on the date of facsimile transmittal, on the first
calendar day after deposit with commercial courier, or on the third calendar
day following deposit in the United States Mail, as the case may be.
(b) Facsimile as Writing. The parties expressly
--------------------
acknowledge and agree that, notwithstanding any statutory or decisional law
to the contrary, the printed product of a facsimile transmittal shall be deemed
to be "written" and a "writing" for all purposes of this Agreement.
(c) Assignment; Parties. Buyer may not assign or
-------------------
transfer this Agreement or any interest of Buyer under this Agreement
without the prior written consent of Seller unless such assignment is
made to an affiliate of Buyer. Notice of any such assignment,
including the name and address of the assignee, shall be given
promptly to Seller. For purposes of this subparagraph, the term
affiliate shall include any entity controlled by one (1) or more of
the current owners of Buyer. If said affiliate is not seeking a
Charter for the operation of a bank, the provisions of subparagraph
13(b) shall be of no further force or effect.
(d) Headings. The use of headings, captions and numbers in
--------
this Agreement is solely for the convenience of identifying and
indexing the various provisions in this Agreement and shall in no
event be considered otherwise in construing or interpreting any
provision in this Agreement.
22<PAGE>
<PAG
(e) Exhibits. Each and every exhibit referred to or
--------
otherwise mentioned in this Agreement is attached to this Agreement
and is and shall be construed to be made a part of this Agreement by
such reference or other mention at each point at which such reference
or other mention occurs, in the same manner and with the same effect
as if each exhibit were set forth in full and at length every time it
is referred to or otherwise mentioned.
(f) Defined Terms. Capitalized terms used in this
-------------
Agreement shall have the meanings ascribed to them at the point where
first defined, irrespective of where their use occurs, with the same
effect as if the definitions of such terms were set forth in full and
at length every time such terms are used.
(g) Pronouns. Wherever appropriate in this Agreement,
--------
personal pronouns shall be deemed to include the other genders and the
singular to include the plural.
(h) Severability. If any term, covenant, condition or
------------
provision of this Agreement, or the application thereof to any person
or circumstance, shall ever be held to be invalid or unenforceable,
then in each such event the remainder of this Agreement or the
application of such term, covenant, condition or provision to any
other person or any other circumstance (other than those as to which
it shall be invalid or unenforceable) shall not be thereby affected,
and each term, covenant, condition and provision hereof shall remain
valid and enforceable to the fullest extent permitted by law.
(i) Non-Waiver. Failure by any party to complain of any
----------
action, non-action or breach of any other party shall not constitute a
waiver of any aggrieved party's rights hereunder. Waiver by any party
of any right arising from any breach of any other party shall not
constitute a waiver of any other right arising from a subsequent
breach of the same obligation or for any other default, past, present
or future.
(j) Time of Essence; Dates. Time is of the essence of this
----------------------
Agreement. Anywhere a day certain is stated for payment or for
performance of any obligation, the day certain so stated enters into
and becomes a part of the consideration for this Agreement. If any
date set forth in this Agreement shall fall on, or any time period set
forth in this Agreement shall expire on, a day which is a Saturday,
Sunday, federal or state holiday, or other non-business day, such date
shall automatically be extended to, and the expiration of such time
period shall automatically to be extended to, the next day which is
not a Saturday, Sunday, federal or state holiday or other non-business
day. The final day of any time period under this Agreement or any
deadline under this Agreement shall be the specified day or date, and
shall include the period of time through and including such specified
day or date. All references to the "EFFECTIVE DATE" shall be deemed to
refer to the later of the date of Buyer's or Seller's execution of
this Agreement, as indicated below their executions hereon.
(k) Applicable Law. This Agreement shall be governed by,
--------------
construed under and interpreted and enforced in accordance with the
laws of the State of Georgia.
23<PAGE>
<PAGE>
(l) Entire Agreement; Modification. This Agreement
------------------------------
supersedes all prior discussions and agreements among Seller, Buyer
and Brokers with respect to the purchase and sale of the Property and
other matters contained herein, and this Agreement contains the sole
and entire understanding among Seller, Buyer and Brokers with respect
thereto. This Agreement shall not be modified or amended except by an
instrument in writing executed by or on behalf of Seller and Buyer;
PROVIDED, HOWEVER, that, if and only if any such modification or
amendment alters the amount of Brokers' commissions (if the commissions are
stated as a fixed amount), the method of calculation of Brokers' commissions
(if the commissions are stated as a percentage of the Purchase Price), or the
method of payment of Brokers' commissions, such instrument shall be executed
by or on behalf of Brokers.
(m) Counterparts. This Agreement may be executed in
------------
several counterparts, each of which shall be deemed an original, and
all of such counterparts together shall constitute one and the same instrument.
(n) Attorney's Fees. In the event of any litigation
---------------
between Buyer and Seller arising under or in connection with this
Agreement, the prevailing party shall be entitled to recover from the
other party the expenses of litigation (including reasonable attorneys'
fees, expenses and disbursements) incurred by the prevailing party.
(o) Authority. Each party hereto warrants and represents
---------
that such party has full and complete authority to enter into this
Agreement and each person executing this Agreement on behalf of a party
warrants and represents that he has been fully authorized to execute this
Agreement on behalf of such party and that such party is bound by the
signature of such representative.
(p) Counsel. Each party hereto warrants and represents
-------
that each party has been afforded the opportunity to be represented by counsel
of its choice in connection with the execution of this Agreement and has had
ample opportunity to read, review, and understand the provisions of this
Agreement.
(q) No Construction Against Preparer. No provision of this
--------------------------------
Agreement shall be construed against or interpreted to the disadvantage of any
party by any court or other governmental or judicial authority by reason of
such party's having or being deemed to have prepared or imposed such provision.
(r) Recording. Neither this Agreement, nor a memorandum of this
---------
Agreement, shall be recorded in the deed records of Fulton County, Georgia;
PROVIDED, HOWEVER, that in no event shall the foregoing be deemed or construed
to limit or restrict the right of Buyer to file a lis pendens or other record
notice of the existence of this Agreement in connection with any claim by
Buyer for specific performance of this Agreement.
(s) Offer and Acceptance. This instrument shall constitute
--------------------
an offer by Buyer to Seller and shall remain open for acceptance until
6:00 p.m., Atlanta, Georgia time, on the later of Monday, August 31,
1998, or such other date as may be specified in writing by Buyer. In
order for this offer to be validly accepted, two (2) counterparts of
24<PAGE>
<PAGE>
this Agreement, fully executed on behalf of Seller, must have been
actually delivered to Buyer at the address provided below prior to the
expiration of the offer.
25<PAGE>
IN WITNESS WHEREOF, the parties have caused their duly
authorized representatives to execute, seal and deliver this
Agreement, all as of the day and year first written above.
SELLER:
Jerry Richman, D.D.S.
/s/ Jerry Richman (SEAL)
Initial address for notices:
Jerry Richman, D.D.S.
Building 4, Suite 200
4200 Northside Parkway, N.W.
Atlanta, Georgia 30327-3054
Telephone Number: (404) 841-9500
Telecopy Number: (404) 841-0405
With a copy to:
Henry M. Feinstein
Six North Parkway Square
4200 Northside Parkway, N.W.
Atlanta, Georgia 30327-3054
Telephone Number: (404) 231-2300
Telecopy Number: (404) 237-6995
Date of Seller's Execution:
8/31/98
26<PAGE>
BUYER:
American International
Bankshares, Inc.,
a Georgia corporation
By: /s/ Vincent D. Cater
Name: Vincent D. Cater
Title: President
(Corporate Seal)
Initial address for notices:
23 Stillhouse Road
Atlanta, Georgia 30339
Attention: Vincent D. Cater
Telephone Number: (770) 951-8535
Telecopy Number: (770) 951-8535
With a copy to:
Kilpatrick Stockton
1100 Peachtree Street
Suite 2800
Atlanta, Georgia 30309-4530
Attention: Andy Kauss, Esq.
Telephone Number: (404) 815-6620
Telecopy Number: (404) 815-6555
Date of Buyer's Execution:
8/31/98
27<PAGE>
BROKER:
INTERNATIONAL EQUITY ADVISORS
GROUP, LLC, a Georgia limited
liability company
By: /s/ Mario Trujillo (Seal)
Name: Mario Trujillo
Title: Manager
Initial address for notices:
3350 Peachtree Road
Suite 1150
Atlanta, Georgia 30326
Attention: Mario Trujillo
Telephone Number: (404) 365-6674
Telecopy Number: (404) 365-6601
BROKER:
RICHARD BOWERS & CO, a Georgia
corporation
By: /s/ Sharon O. Altenbach
Name: Sharon O. Altenbach
Title: Vice President/
Assoc. Broker
(Corporate Seal)
Initial address for notices:
3475 Lenox Road
Suite 800
Atlanta, Georgia 30326
Attention: Sharon O. Altenbach
Telephone Number: (404) 816-1600
Telecopy Number: (404) 842-0319
28<PAGE>
Escrow Agent executes this Agreement to acknowledge and
agree to hold and disburse the Earnest Money and the Rent Subsidy
Escrow Account in accordance with the terms and provisions of this
Agreement.
ESCROW AGENT:
RICHARD BOWERS & CO, a
_______________ corporation
By: /s/ Sharon O. Altenbach
Name: Sharon O. Altenbach
Title: Vice Pres./
Assoc. Broker
Initial address for notices:
3475 Lenox Road
Suite 800
Atlanta, Georgia 30326
Attention: Sharon O. Altenbach
Telephone Number: (404) 816-1600
Telecopy Number: (404) 842-0319
29<PAGE>
<PAGE>
PURCHASE AND SALE AGREEMENT
INDEX
Exhibit "A" Legal Description
Exhibit "B" Schedule of Personalty
Exhibit "C" Schedule of Service Agreements
Exhibit "D" Escrow Provisions
Exhibit "E" Schedule of Permitted Exceptions
Exhibit "F" Form of Warranty Deed
Exhibit "G" Form of Bill of Sale
Exhibit "H" Form of Assignment
Exhibit "I" Form of Seller's Affidavit
Exhibit "J" Form of Certificate and Affidavit of Non-Foreign Status
Exhibit "K" Form of Georgia Resident Affidavit
Exhibit "L" Form of 1099-S Request for Taxpayer Identification
Number and Certification, and Acknowledgment
Exhibit "M" Lease Agreement
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is entered into on this 20th day of
May, 1998, as amended and restated on January 7, 1999 between UNITED
AMERICAS BANKSHARES, INC., a Georgia corporation (the "Company"), and
VINCENT D. CATER (the "Executive").
WHEREAS, the parties hereto desire to enter into an agreement for
Company's employment of Executive on the terms and conditions
contained herein;
THEREFORE, in consideration of the premises and the mutual
covenants, benefits and conditions herein contained, the parties
hereto agree as follows:
1. EMPLOYMENT. The Company hereby employs Executive, and
----------
Executive hereby accepts employment, as President, Chief Executive
Officer and Senior Credit Officer of the Company; and in such capacity
Executive will report to the Board of Directors and will perform such
customary managerial services and duties as the Board may from time to
time designate during the term hereof which are consistent with duties
customarily required of senior officers of financial institutions.
Executive will devote his full business time, attention and energies
to the diligent performance of his duties as an employee of the
Company. Executive will not, without the prior written consent of the
Company, directly or indirectly, at any time during the term of his
employment with the Company: (a) accept employment with or render
services of a business, professional or commercial nature to any other
business; (b) engage in any venture or activity that the Company may
in good faith consider to be competitive with or adverse to the
business of the Company, whether alone, as a partner, or as an
officer, director, employee or shareholder or otherwise except for
passive investments in publicly traded companies; or (c) engage in any
venture or activity that the Company may in good faith consider to
interfere with Executive's performance of his duties hereunder.
2. TERM. Executive's employment is for an initial term ending
----
on January 31, 2002. When the initial term expires, this Agreement
will be automatically renewed for successive one-year terms, unless
sooner terminated in accordance with SECTION 4.
3. Salary and Benefits. As compensation for Executive's
services to the Company during the term of this Agreement, the Company
will pay the following compensation and benefits to Executive:
3.1. ANNUAL SALARY. The Company will pay to Executive,
-------------
during the first year of this Agreement, an annual salary at the rate
of $135,000 per year, payable (i) monthly, (ii) in accordance with the
customary payroll policy of the Company in effect at the time such
payment is made, or (iii) as the Company and Executive may otherwise
mutually agree. The annual salary of the Executive will be reviewed
by the Board of Directors of the Company on an annual basis and will
be annually increased in an amount not less than four percent (4%) of
the Executive's then-current annual salary.
<PAGE>
<PAGE>
3.2. VACATION AND OTHER BENEFITS. Executive will be
---------------------------
entitled to (a) vacation during each year of employment by the Company
in accordance with the policies of the Company in effect from time to
time, (b) share in any employee benefits provided by the Company from
time to time on the same basis as similarly situated employees of the
Company, so long as the Company continues to provide or offer such
benefits to such employees, and (c) a car allowance package of $750
per month. In addition, Executive will receive membership dues for
the Cherokee Country Club and up to one other luncheon club if deemed
appropriate by the Board of Directors.
3.3. STOCK OPTIONS. (a) Upon the date the Company
-------------
completes the initial public offering of its common stock, the Company
will grant to Executive options (the "Options") to acquire 25,000
shares of Company common stock at an exercise price equal to the fair
market value of the shares of Company common stock on the date of
grant as determined by an independent consultant. 10,000 of the
Options will vest on the date of the opening of the banking subsidiary
of the Company and an additional 5,000 shares will vest on each
calendar year-end thereafter for the next three years. The terms and
conditions governing the Options will be as set forth in the Form of
Stock Option Agreement attached hereto as Exhibit A or an incentive
stock option agreement substantially similar to the form attached as
Exhibit A.
(b) If the Company terminates Executive's employment
without Cause, any then-vested options may be exercised for a period
of ninety (90) days from the date of termination. If at any time
during the term of Executive's employment there is a Change in
Control, all outstanding options will become immediately exerciseable
by Executive.
3.4. INCENTIVE BONUS. Subject to the Company exceeding
---------------
certain performance targets which shall be determined annually by the
Compensation Committee of the Board, Executive will be entitled to
receive options to acquire an additional 2,000 shares of Company
common stock per year and a cash bonus equal to 15% of Executive's
annual salary.
4. TERMINATION.
-----------
4.1. TERMINATION BY EXECUTIVE. (a) Executive may terminate
------------------------
his employment hereunder by Notice of Termination (as described in
Section 6.1) if (i) the Company materially breaches this Agreement and
such breach is not cured within thirty (30) days after written notice
of such breach is given by Executive to the Company, or (ii) if there
is Good Reason. If Executive terminates his employment in accordance
with clause (i) or (ii) of this SECTION 4.1(a), Executive will
receive:
(A) his then-current annual salary (subject to
withholding of all applicable taxes) for a period
of six (6) months from his date of termination,
provided, however, if there is a Change in Control
within such 6-month period, Executive will receive
his then-current annual salary for a period of one
(1) year from his date of termination; and
-2-<PAGE>
<PAGE>
(B) any incentive bonus amounts that Executive had
previously earned from the Company for fiscal
years that ended before the date of termination,
but which may not have been declared or paid as of
his date of termination. Executive will also
receive a prorated bonus for any uncompleted
fiscal year at the date of termination (using the
assumption that the performance targets have been
achieved), based upon the number of days that he
was employed during such fiscal year.
(b) If Executive terminates his employment other than
pursuant to clauses (i) or (ii) of SECTION 4.1(a), the Company's
obligations under this Agreement will cease as of the date of such
termination. The Company agrees that if Executive terminates
employment and is entitled to benefits under this SECTION 4.1,
Executive will not be required to mitigate damages by reducing the
amount he is entitled to receive hereunder by earnings from subsequent
employment.
4.2. BY COMPANY. (a) The Company may terminate Executive's
----------
employment under this Agreement at any time during the term of this
Agreement by Notice of Termination (as described in SECTION 6.1,
provided that no such notice will be required in the event of death),
(i) for Cause, (ii) if Executive becomes Disabled, (iii) upon
Executive's death, or (iv) if preliminary regulatory approval to
charter the banking subsidiary of the Company is not received prior to
April 30, 1999.
(b) If the Company terminates Executive's employment
under this Agreement pursuant to clauses (i) through (iv) of SECTION
4.2(a), the Company's obligations under this Agreement will cease as
of the date of employment termination; provided, however, that if
Executive's employment terminates as a result of death or Disability,
any unpaid benefits payable under this Agreement and any benefits
payable under any other benefit plans of the Company upon Executive's
death or Disability will be provided by the Company. If Executive
dies after June 30 in any year, all shares which would vest at the end
of the then current calendar year will accelerate and the Executive's
estate shall have ninety (90) days after his death to exercise all
vested options.
5. DEFINITIONS. For purpose of this Agreement, the following
-----------
terms have the meanings specified below:
5.1. "BOARD" OR "BOARD OF DIRECTORS." The Board of
-----------------------------
Directors of the Company.
5.2. "CAUSE." (a) the commission by Executive in the
------
course of his employment by the Company 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);
(b) any willful act or omission by Executive that may
have a materially adverse effect on the Company or is in reckless
disregard of the interests of the Company;
-3-<PAGE>
<PAGE>
(c) the gross neglect by Executive to perform his
duties with the Company in accordance with the operating and personnel
policies and procedures of the Company generally applicable to all
employees of the Company (other than any failure or neglect caused by
or resulting from Executive's incapacity due to physical or mental
illness or injury) or willful insubordination to the Board of
Directors in the conduct of his duties hereunder; or
(d) the consistent failure by Executive to perform the
duties and objectives specified for Executive from time to time by the
Board of Directors of the Company consistent with Section 1 hereof.
5.3. "CHANGE IN CONTROL." A "Change in Control" means a
-----------------
change in the ownership or sale of the then-outstanding common stock
of the Company by the shareholders thereof or the acquisition of the
Company by another company or other entity or by shareholders thereof,
(i) through a sale or other acquisition of all or substantially all of
the Company's assets, (ii) through an acquisition of more than 50% of
the then-outstanding common stock of the Company in a single
transaction or in related transactions, whether or not any of such
shareholders included in the more than 50% group were shareholders of
the Company before to the Change of Control, or (iii) as a result of a
merger, consolidation or other reorganization involving the Company,
after which such other company, association, entity or shareholders
thereof own either directly or indirectly, more than 50% of the
outstanding common stock or of the assets of the Company.
5.4. "CODE." The Internal Revenue Code of 1986, as amended.
----
5.5. "DISABILITY" OR "DISABLED." Executive's absence from
------------------------
his duties on a full-time basis for 180 consecutive business days as a
result of incapacity due to physical or mental illness or injury.
5.6. "GOOD REASON." A "Good Reason" for termination by
-----------
Executive of Executive's employment means the occurrence (without the
Executive's express written consent), within the twenty-four (24)
month period following the date of a Change in Control or during the
period commencing on the first date on which a Threatened Change in
Control becomes manifest and until it ends, of any one of the
following acts by the Company, or failure by the Company to act,
unless, in the case of any act or failure to act described in
paragraph (i), (v), or (vi) below, such act or failure to act is
corrected before to the Date of Termination specified in the Notice of
Termination given in respect thereof:
(i) the assignment to Executive of any duties
inconsistent with Executive's title and status as set forth this
Agreement, or a substantial adverse alteration in the nature or status
of Executive's responsibilities at the Company from those in effect
immediately before the Change in Control or Threatened Change in
Control (other than any such alteration primarily attributable to the
fact that the Company may no longer be a public company);
(ii) a substantial reduction of the Executive's annual
salary;
-4-<PAGE>
<PAGE>
(iii) the relocation of Company's principal
executive offices to a location outside of Atlanta, Georgia, or the
Company's requiring Executive to be based anywhere other than the
Company's principal executive offices, except for required travel on
the Company's business to an extent substantially consistent with
Executive's present business travel obligations;
(iv) the failure by the Company, without Executive's
consent, to pay to Executive any portion of Executive's then-current
compensation (including annual salary and annual bonus);
(v) the failure by the Company to continue in effect
any compensation plan in which Executive participates immediately
before to the Change in Control or Threatened Change in Control, which
is material to Executive's total compensation unless an equitable
arrangement (embodied in an ongoing substitute or alternative plan)
has been made with respect to such plan, or the failure by the Company
to continue the Executive's participation in such plan (or in such
substitute or alternative plan) on a basis not materially less
favorable, both in terms of the amount of benefits provided and the
level of Executive's participation relative to other participants, as
existed at the time of the Change in Control or Threatened Change in
Control;
(vi) any purported termination of Executive's
employment which is not effected pursuant to a Notice of Termination
satisfying the requirements of Section 6.1; for purposes of this
Agreement, no such purported termination will be effective.
The Executive's right to terminate his employment for Good Reason
will not be affected by the Executive's incapacity due to physical or
mental illness, except for a Disability as defined in Section 5.5.
The Executive's continued employment will not constitute consent to,
or a waiver of rights with respect to, any act or failure to act
constituting Good Reason hereunder.
5.7. "PERSON." Any individual, corporation, limited
------
liability company, Company, partnership, joint venture, association,
joint-stock company, trust, unincorporated organization or other
entity.
5.8. "THREATENED CHANGE IN CONTROL." Any pending tender
----------------------------
offer for the Company's outstanding shares of common stock, or any
pending bona fide offer to acquire the Company by merger or
consolidation, or any other pending action or plan to effect a Change
in Control of the Company.
6. TERMINATION PROCEDURES.
----------------------
6.1. "NOTICE OF TERMINATION." During the term of this
---------------------
Agreement, any termination of Executive's employment (other than by
reason of death) must be communicated by written Notice of Termination
from one party to the other party in accordance with SECTION 4.1 or
4.2. For purposes of this Agreement, a "Notice of Termination" means
a notice which indicates the specific termination provision in this
Agreement relied upon and will set forth in reasonable detail the
facts and circumstances claimed to provide a basis for termination of
Executive's employment under the provision so indicated.
-5-<PAGE>
<PAGE>
6.2. "DATE OF TERMINATION." "Date of Termination," with
-------------------
respect to any termination of Executive's employment during the term
of this Agreement, will mean (i) if Executive's employment is terminated by
his death, the date of his death, (ii) if Executive's employment is terminated
for Disability, thirty (30) days after Notice of Termination is given
(provided that Executive will not have returned to the full-time performance
of Executive's duties during such thirty (30) day period), and (iii) if
Executive's employment is terminated for any other reason, the date specified
in the Notice of Termination (which, in the case of a termination by the
Company, will not be less than thirty (30) days, except in the case of a
termination for Cause and, in the case of a termination by the Executive under
clauses (i) or (ii) of Section 4.1(a), will not be less than thirty
(30) days from the date such Notice of Termination is given).
7. COVENANTS OF EXECUTIVE. Executive acknowledges that before
----------------------
and during the term of this Agreement, the Company has furnished and
will furnish Confidential Information developed by the Company and of
continuing value to the Company, which could be used by Executive on
behalf of a competitor of the Company to its substantial detriment. Moreover,
the parties recognize that during the course of his employment with the
Company, Executive may develop important relationships with customers and
others having valuable business relationships with the Company. In view of
the foregoing, Executive acknowledges and agrees that the restrictive covenants
contained in this Section 7 are reasonably necessary to protect the Company's
legitimate business interests and goodwill
7.1. Covenant Against Disclosure or Use of Confidential
--------------------------------------------------
Information. Executive agrees that he will not, except with the
- -----------
prior written approval of the Company, disclose Confidential
Information to any person or firm other than the Company, or use
Confidential Information for personal financial gain within three (3)
years of the expiration or termination of this Agreement for whatever
cause, except that these restrictions will not apply to information
that will become generally known through no fault of Executive,
information that is disclosed to Executive by a third party that has
legitimate and unrestricted possession thereof and the unrestricted
right to make such disclosure, information that Executive can
demonstrate was within his legitimate and unrestricted possession
before his employment by the Company or its predecessor or other
information not rising to the level of a trade secret after 2 years
from expiration or termination of this Agreement. "Confidential
Information" means all business records, trade secrets, know-how
concerning marketing, customer lists or compilations, financial
information, personnel data, information contained in any documents
prepared by or for the Company and its Executives at the Company's
expense or on the Company's time or otherwise in furtherance of the
Company's business, and made available only to the Company and such of
its authorized agents as may be necessary to further the Company's
business, and other confidential information obtained by Executive in
the course of his employment hereunder. Executive further agrees to
return to the Company all of the above business records and any and
all copies of the same in his control upon termination of employment
with the Company for any reason whatsoever.
7.2. Covenant Against Post-Termination Competition.
---------------------------------------------
Executive agrees if his employment hereunder is terminated for any
reason he will not, directly or indirectly, individually or on behalf
of any Person other than the Company, for a period of six (6) months
after such termination:
(a) own, control, manage or otherwise participate in the
ownership, control or management of a business engaged in the
provision of banking products and services including commercial and
-6-<PAGE>
<PAGE>
institutional lending and related services ("Banking Services") within
any part of the Territory; except for passive investments in publicly
traded companies;
(b) solicit any Customers for the purpose of selling to
them products or services competitive with the products or services
sold by the Company at the time of such termination;
(c) provide Banking Services for or on behalf of any Person
(other than for or on behalf of the Company) which is engaged within
the Territory in a business similar to the Business; or
(d) solicit or induce, or in any manner attempt to solicit
or induce, any person employed by the Company to leave such
employment, whether or not such employment is pursuant to a written
contract with the Company and whether or not such employment is at
will.
For the purpose of this Section, "Customers" means all
Persons that (a) Executive serviced or solicited on behalf of the
Company, (b) whose dealings with the Company were coordinated or
supervised, in whole or in part, by Executive, or (c) about whom
Executive obtained Confidential Information, in each case during the
one-year period immediately prior to any termination or expiration of
Executive's employment with the Company. "Territory" means the
Georgia counties of Fulton, DeKalb, Cobb, Gwinnett, Fayette, Douglas
and the county of Dade in Florida if the Company conducts business in
that market, which is the territory in which the Company conducts its
business.
7.3. Return of Company Documents and Equipment. Upon
-----------------------------------------
termination or expiration of Executive's employment for any reason, or
at any time upon the Company's request, Executive shall deliver to the
Company: all (a) files, customer lists, price lists, management reports,
memoranda, research, forms, financial data and reports, and
other documents supplied to or created by him in connection with his
employment hereunder (including all copies of the foregoing) in his
possession or control; (b) computers, modems, diskettes, instruments,
tools, devices, equipment, videos, tapes, drawings, papers, notes and
other materials, and any copies thereof, in Executive's possession or
control that relate in any way to the business or to Executive's
employment with the Company; and (c) other property relating to the
employment of Executive, including without limitation credit cards,
telephone cards, office keys, desk keys, car keys and security passes.
7.4. SURVIVAL. Executive's obligations under this
--------
Section 7 will survive any expiration or termination of this Agreement.
8. MISCELLANEOUS PROVISIONS.
------------------------
8.1 NOTICES. All notices, demands or other communications
-------
required or permitted to be given hereunder shall be in writing and
delivered in person or sent (a) by pre-paid, first class, certified or
registered air mail, return receipt requested, (b) by a national
express courier service or (c) by facsimile transmission to the
intended recipient thereof, at its address or facsimile number below.
Any such notice shall be deemed to have been duly given immediately if
given by confirmed facsimile, or five (5) days after mailing, or the
second business day after delivery to a national express courier
-7-<PAGE>
<PAGE>
service, and in proving the same it shall be sufficient to show that
the envelope containing the notice was duly addressed, stamped and
posted (or that the envelope was delivered to the national express
courier service), or that receipt of a facsimile was confirmed by the
recipient.
To the Company: United Americas Bankshares, Inc.
______________________
______________________
Attention: Salvador Diaz-Verson, Chairman
With a copy to: Reinaldo Pascual, Esq.
Kilpatrick Stockton LLP
Suite 2800
1100 Peachtree Street, N.E.
Atlanta, Georgia 30309-4530
Facsimile: (404) 815-6500
To Executive: Vincent D. Cater
23 Stillhouse Road
Atlanta, Georgia 30339
Either party may change the address to which notices, requests,
demands and other communications shall be delivered or mailed by
giving notice thereof to the other party in the same manner provided
herein.
8.2 PROVISIONS SEVERABLE. If any provision or covenant, or
--------------------
any part thereof, of this Agreement is held by any court to be
invalid, illegal or unenforceable, either in whole or in part, such
invalidity, illegality or unenforceability will not affect the
validity, legality or enforceability of the remaining provisions or
covenants, or any part thereof, of this Agreement, all of which will
remain in full force and effect. To the extent legally permissible,
any illegal, invalid or unenforceable provision of this Agreement will
be replaced by a valid provision that will implement the commercial
purpose of the illegal, invalid or unenforceable provision.
8.3 REMEDIES. Executive acknowledges that if he breaches
--------
or threatens to breach his covenants and agreements in this Agreement,
his actions may cause irreparable harm and damage to the Company which
could not be compensated in damages. Accordingly, if Executive
breaches or threatens to breach this Agreement, the Company will be
entitled to injunctive relief, in addition to any other rights or
remedies of the Company.
8.4 WAIVER. No failure of either party to insist, in one
------
or more instances, on performance by the other in strict accordance
with the terms and conditions of this Agreement will be deemed a
waiver or relinquishment of any right granted in this Agreement or of
the future performance of any such term or condition or of any other
term or condition of this Agreement, unless such waiver is contained
in a writing signed by the party making the waiver.
8.5 AMENDMENTS AND MODIFICATIONS. This Agreement may be
----------------------------
amended or modified only by a writing signed by both parties hereto.
-8-<PAGE>
<PAGE>
8.6 GOVERNING LAW. The validity and effect of this
-------------
Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Georgia, without regard to
its principles of conflicts of law.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed under seal the day and year first-above written.
UNITED AMERICAS BANKSHARES, INC.
/s/ Salvador Diaz-Verson
By: Salvador Diaz-Verson
(COMPANY SEAL) Title: cHAIRMAN
EXECUTIVE
/s/ Vincent D. Cater (L.S.)
Vincent C. Cater
-9-
<PAGE>
EXHIBIT A
NONQUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT, made as of the ______ day of
_____________________, 19___ (the "Grant Date"), between United
Americas Bankshares, Inc., a Georgia corporation (the "Company"), and
Vincent D. Cater (the "Optionee").
WHEREAS, the Optionee performs services for the Company; and
WHEREAS, the Board of Directors of the Company has determined to
grant the Option to the Optionee as provided herein.
NOW, THEREFORE, the parties hereto agree as follows:
1. Grant of Option.
---------------
1.1 The Company hereby grants to the Optionee the right and
option (the "Option") to purchase all or any part of an aggregate of
25,000 whole shares of the Company's Common Stock, $____ par value per
share ("Shares") subject to, and in accordance with, the terms and
conditions set forth in this Agreement.
1.2 The Option is not intended to qualify as an Incentive
Stock Option within the meaning of Section 422 of the Code.
2. Purchase Price.
--------------
The price at which the Optionee shall be entitled to
purchase Shares upon the exercise of the Option shall be
$_____________ per Share.
3. Duration of Option.
------------------
The Option shall be exercisable to the extent and in the
manner provided herein for a period of ten (10) years from the Grant
Date (the "Exercise Term"); provided, however, that the Option may be
earlier terminated as provided in Section 6 hereof.
4. Exercisability of Option.
------------------------
Unless otherwise provided in this Agreement, the Option shall
entitle the Optionee to purchase, in whole at any time or in part from
time to time, 10,000 of the total number of Shares covered by the
Option upon the opening of the banking subsidiary of the Company (the
"First Vesting Date") and an additional 3,000 of the total number of
Shares covered by the Option on each on the first, second, third,
fourth and fifth anniversaries of the First Vesting Date, and each
such right of purchase shall be cumulative and shall continue, unless
sooner exercised or terminated as herein provided during the remaining
period of the Exercise Term.
5. Manner of Exercise and Payment.
------------------------------
5.1 Subject to the terms and conditions of this Agreement,
the Option may be exercised by delivery of written notice to the
Company, at its principal executive office. Such notice shall state
<PAGE>
<PAGE>
that the Optionee is electing to exercise the Option and the number of
Shares in respect of which the Option is being exercised and shall be
signed by the person or persons exercising the Option. If requested
by the Company, such person or persons shall (i) deliver this
Agreement to the Secretary of the Company who shall endorse thereon a
notation of such exercise and (ii) provide satisfactory proof as to
the right of such person or persons to exercise the Option.
5.2 The notice of exercise described in Section 5.1 shall
be accompanied by the full purchase price for the Shares in respect of
which the Option is being exercised, in cash, by check or by transferring
Shares to the Company having a Fair Market Value on the day preceding the
date of exercise equal to the cash amount for which such Shares are substituted.
5.3 Upon receipt of notice of exercise and full payment for
the Shares in respect of which the Option is being exercised, the Company
shall take such action as may be necessary to effect the transfer to the
Optionee of the number of Shares as to which such exercise was effective.
5.4 The Optionee shall not be deemed to be the holder of,
or to have any of the rights of a holder with respect to any Shares
subject to the Option until (i) the Option shall have been exercised
pursuant to the terms of this Agreement and the Optionee shall have
paid the full purchase price for the number of Shares in respect of
which the Option was exercised, (ii) the Company shall have issued and
delivered the Shares to the Optionee, and (iii) the Optionee's name
shall have been entered as a stockholder of record on the books of the
Company, whereupon the Optionee shall have full voting and other
ownership rights with respect to such Shares.
6. Termination of Employment.
-------------------------
If the employment of the Optionee with the Company and its
Subsidiaries shall terminate for any reason, all nonvested Options
shall be forfeited. If the Company terminates Optionee's employment
without Cause (as defined in the employment agreement between Optionee
and the Company), all then vested Options may be exercised for a
period of ninety (90) days from the date of termination, but in no
event later than the expiration of the Exercise Term. If Optionee's
employment is terminated by the Optionee for any reason other than
death or disability or if the Company terminates Optionee for Cause,
the Optionee's right to exercise any then outstanding Options (whether
or not vested) shall terminate immediately upon termination of employment.
If the Optionee's termination of employment is due to death,
all nonvested Options shall be forfeited, and all then vested Options
shall continue to be exercisable at any time within six (6) months
after the date of such termination of employment, but in no event
after the expiration of the Exercise Term. In the event of the
Optionee's death, the Option shall be exercisable, to the extent
provided in this Agreement, by such persons that have acquired Optionee's
rights by will or the laws of descent and distribution, or if no such person
exists, by the Optionee's estate or a representative of the Optionee's estate.
7. Effect of Change in Control.
---------------------------
Notwithstanding anything contained to the contrary in this
Agreement, in the event of a Change in Control (as defined in the
Optionee's Employment Agreement) , the Option shall become immediately
and fully exercisable.
2
<PAGE>
<PAGE>
8. Nontransferability.
------------------
During the lifetime of the Optionee, this Option shall be
exercisable only by the Optionee, or if the Optionee is disabled, by
his duly appointed guardian or legal representative.
9. No Right to Continued Employment.
--------------------------------
Nothing in this Agreement shall be interpreted or construed
to confer upon the Optionee any right with respect to continuance of
employment by the Company or a Subsidiary, nor shall this Agreement
interfere in any way with the right of the Company or a Subsidiary to
terminate the Optionee's employment at any time.
10. Adjustments.
-----------
In the event of (i) any dividend payable in Shares of Common
Stock, (ii) any recapitalization, reclassification, split-up, consolidation of,
or other change in, the Common Stock, or (iii) an exchange of the then
outstanding shares of Common Stock, in connection with a merger, consolidation,
or other reorganization of the Company, or a sale by the Company of all or a
portion of its assets, for a different number or class of shares of stock or
other securities of the Company or for shares of the stock or other securities
of any other corporation; then the number and class of Shares or other
securities that shall be subject to this Option and/or the purchase
price per Share which must be paid thereafter upon exercise of this
Option shall automatically be appropriately adjusted to reflect the
event described in (i), (ii), or (iii) above. The Company's
adjustment shall be effective and final, binding and conclusive for
all purposes of this Agreement.
11. Terminating Events.
------------------
Subject to Section 7 hereof, upon the effective date of (i)
the liquidation or dissolution of the Company or (ii) a merger or consolidation
of the Company (a "Transaction"), the Option shall continue in effect in
accordance with its terms and the Optionee shall be entitled to receive in
respect of all Shares subject to the Option, upon exercise of the Option, the
same number and kind of stock, securities, cash, property or other considera-
tion that each holder of Shares was entitled to receive in the Transaction.
12. Withholding of Taxes.
--------------------
The Company shall have the right to deduct from any
distribution of cash to the Optionee an amount equal to the federal,
state and local income taxes and other amounts as may be required by
law to be withheld (the "Withholding Taxes") with respect to the
Option. If the Optionee is entitled to receive Shares upon exercise
of the Option, the Optionee shall pay the Withholding Taxes to the
Company in cash prior to the issuance of such Shares. In satisfaction
of the Withholding Taxes, the Optionee may make a written election
(the "Tax Election"), which may be accepted or rejected in the
discretion of the Company, to have withheld a portion of the Shares
issuable to him or her upon exercise of the Option, having an
aggregate Fair Market Value equal to the withholding Taxes, provided
that, if the Optionee may be subject to liability under Section 16(b)
of the Exchange Act, the election must comply with the requirements
applicable to Share transactions by such Optionees.
3<PAGE>
<PAGE>
13. Modification of Agreement.
------------------------
This Agreement may be modified, amended, suspended or terminated,
and any terms or conditions may be waived, but only by a written
instrument executed by the parties hereto.
14. Severability.
------------
Should any provision of this Agreement be held by a court of
competent jurisdiction to be unenforceable or invalid for any reason,
the remaining provisions of this Agreement shall not be affected by
such holding and shall continue in full force in accordance with their
terms.
15. Governing Law.
-------------
The validity, interpretation, construction and performance
of this Agreement shall be governed by the laws of the State of
Georgia without giving effect to the conflicts of laws principles
thereof.
16. Successors in Interest.
----------------------
This Agreement shall inure to the benefit of and be binding
upon each successor corporation. This Agreement shall inure to the
benefit of the Optionee's legal representatives. All obligations
imposed upon the Optionee and all rights granted to the Company under
this Agreement shall be final, binding and conclusive upon the
Optionee's heirs, executors, administrators and successors.
17. Resolution of Disputes.
----------------------
Any dispute or disagreement which may arise under, or as a
result of, or in any way relate to, the interpretation, construction
or application of this Agreement shall be determined by the Board of
Directors. Any determination made hereunder shall be final, binding
and conclusive on the Optionee and the Company for all purposes.
ATTEST: UNITED AMERICAS BANKSHARES, INC.
By:_______________________________
Secretary Chairman of the Board
__________________________________
Vincent D. Cater
4
PROMISSORY NOTE
<TABLE>
<CAPTION>
Principal Loan Date Maturity Loan No. Call Collatera Account Officer Initial
<C> <S> <S>
$1,600,000.00 02/26/1999 02/26/2000 4018744-101 KTV
</TABLE>
References in the shaded area are for Lender's use only and do not limit
the applicability of this document to any particular loan or item
Borrower: United Americas Bankshares, Inc. Lender: The Bankers Bank
23 Stillhouse Road 2410 Paces Ferry Road
Atlanta, GA 30339 600 Paces Summit
Atlanta, GA 30339
<TABLE>
<CAPTION>
<S> <C> <S> <C> <S> <C>
Principal Amount: $1,600,000.00 Initial Rate: 7.750% Date of Note: February 26, 1999
</TABLE>
PROMISE TO PAY. UNITED AMERICAS BANKSHARES, INC. ("BORROWER")
PROMISES TO PAY TO THE BANKERS BANK ("LENDER"), OR ORDER, IN LAWFUL
MONEY OF THE UNITED STATES OF AMERICA, THE PRINCIPAL AMOUNT OF ONE
MILLION SIX HUNDRED THOUSAND & 00/100 DOLLARS ($1,600,000.00) OR SO
MUCH AS MAY BE OUTSTANDING, TOGETHER WITH INTEREST ON THE UNPAID
OUTSTANDING PRINCIPAL BALANCE OF EACH ADVANCE. INTEREST SHALL BE
CALCULATED FROM THE DATE OF EACH ADVANCE UNTIL REPAYMENT OF EACH
ADVANCE.
PAYMENT. BORROWER WILL PAY THIS LOAN IN ONE PAYMENT OF ALL
OUTSTANDING PRINCIPAL PLUS ALL ACCRUED UNPAID INTEREST ON FEBRUARY 26,
2000. IN ADDITION, BORROWER WILL PAY REGULAR QUARTERLY PAYMENTS OF
ACCRUED UNPAID INTEREST BEGINNING MAY 26, 1999, AND ALL SUBSEQUENT
INTEREST PAYMENTS ARE DUE ON THE SAME DAY OF EACH QUARTER AFTER THAT.
Borrower will pay Lender at Lender's address shown above or at such
other place as Lender may designate in writing. Unless otherwise
agreed or required by applicable law, payments will be applied first
to accrued unpaid interest, then to principal, and any remaining
amount to any unpaid collection costs and late charges.
VARIABLE INTEREST RATE. The interest rate on this Note is subject to
change from time to time based on changes in an index which is the
Prime rate as published in the Money Rates section of the Wall Street
Journal (the "Index"). If two or more rates exist, then the highest
rate will prevail. Lender will tell Borrower the current index rate
upon Borrower's request. Borrower understands that Lender may make
loans based on other rates as well. The interest rate change will not
occur more often than each day. THE INDEX CURRENTLY IS 7.750% PER
ANNUM. THE INTEREST RATE TO BE APPLIED TO THE UNPAID PRINCIPAL
BALANCE OF THIS NOTE WILL BE AT A RATE EQUAL TO THE INDEX, RESULTING
IN AN INITIAL ANNUAL RATE OF SIMPLE INTEREST OF 7.750%. NOTICE:
Under no circumstances will the interest rate of this Note be more
than the maximum allowed by applicable law.
PREPAYMENT. Borrower may pay without penalty all or a portion of the
amount owed earlier than it is due. Early payments will not, unless
agreed to by Lender in writing, relieve Borrower of Borrower's
obligation to continue to make payments of accrued unpaid interest.
Rather, they will reduce the principal balance due.
LATE CHARGE. If a payment is 15 days or more late, Borrower will be
charged $100.00.
<PAGE>
DEFAULT. Borrower will be in default if any of the following happens:
(a) Borrower fails to make any payment when due. (b) Borrower breaks
any promise Borrower has made to Lender or Borrower fails to comply
with or to perform when due any other term, obligation, covenant, or
condition contained in this Note or any agreement related to this
Note, or in any other agreement or loan Borrower has with Lender. (c)
Any representation or statement made or furnished to Lender by
Borrower or on Borrower's behalf is false or misleading in any
material respect either now or at the time made or furnished. (d)
Borrower becomes insolvent, a receiver is appointed for any part of
Borrower's property. Borrower makes an assignment for the benefit of
creditors, or any proceeding is commenced either by Borrower or
against Borrower under any bankruptcy or insolvency laws. (e) Any
creditor tries to take any of Borrower's property on or in which
Lender has a lien or security interest. This includes a garnishment
of any of Borrower's accounts with Lender. (f) Any guarantor dies or
any of the other events described in this default section occurs with
respect to any guarantor of this Note. (g) A material adverse change
occurs in Borrower's financial condition, or Lender believes the
prospect of payment or performance of the Indebtedness is impaired.
(h) Lender in good faith deems itself insecure.
LENDER'S RIGHTS. Upon default, Lender may declare the entire unpaid
principal balance on this Note and all accrued unpaid interest
immediately due, without notice, and then Borrower will pay that
amount. Upon default, including failure to pay upon final maturity,
Lender, at its option, may also, if permitted under applicable law,
increase the variable interest rate on this Note to 3.000 percentage
points over the Index. The interest rate will not exceed the maximum
rate permitted by applicable law. Lender may hire or pay someone else
to help collect this Note if Borrower does not pay. Borrower also
will pay Lender that amount. This includes, subject to any limits
under applicable law, Lender's costs of collection, including court
costs and fifteen percent (15%) of the principal plus accrued interest
as attorneys' fees, if any sums owing under this Note are collected
by or through an attorney-at-law, whether or not there is a lawsuit,
and legal expenses for bankruptcy proceedings (including efforts to
modify or vacate any automatic stay or injunction), appeals, and any
anticipated post-judgment collection services. If not prohibited by
applicable law, Borrower also will pay any court costs, in addition to
all other sums provided by law. This Note has been delivered to
Lender and accepted by Lender in the State of Georgia. Subject to the
provisions on arbitration, this Note shall be governed by and
construed in accordance with the laws of the State of Georgia.
DISHONORED ITEM FEE. Borrower will pay a fee to Lender of twenty
dollars ($20.00) or five percent (5%) of the face amount of the check,
whichever is greater, if Borrower makes a payment on Borrower's loan
and the check or preauthorized charge with which Borrower pays is
later dishonored.
RIGHT OF SETOFF. Borrower grants to Lender a contractual possessory
security interest in, and hereby assigns, conveys, delivers, pledges,
and transfers to Lender all Borrower's right, title and interest in
and to, Borrower's accounts with Lender (whether checking, savings, or
some other account), including without limitation all accounts held
jointly with someone else and all accounts Borrower may open in the
future, excluding, however, all IRA and Keogh accounts, and all trust
accounts for which the grant of a security interest would be
prohibited by law. Borrower authorizes Lender, to the extent
permitted by applicable law, to charge or setoff all sums owing on
this Note against any and all such accounts.
<PAGE>
COLLATERAL. This Note is secured by 1st lien DSD on a 6,131 square
foot bank facility located on Roswell Road in Atlanta, Georgia.
LINE OF CREDIT. This Note evidences a straight line of credit. Once
the total amount of principal has been advanced, Borrower is not
entitled to further loan advances. Advances under this Note may be
requested orally by Borrower or by an authorized person. All oral
requests shall be confirmed in writing on the day of the request. All
communications, instructions, or directions by telephone or otherwise
to Lender are to be directed to Lender's office shown above. The
following party or parties are authorized to request advances under
the line of credit until Lender receives from Borrower at Lender's
address shown above written notice of revocation of their authority:
Vincent D. Carter, President. Borrower agrees to be liable for all
sums either: (a) advanced in accordance with the instructions of an
authorized person or (b) credited to any of Borrower's accounts with
Lender. The unpaid principal balance owing on this Note at any time
may be evidenced by endorsements on this Note or by Lender's internal
records, including daily computer print-outs. Lender will have no
obligation to advance funds under this Note if: (a) Borrower or any
guarantor is in default under the terms of this Note or any agreement
that Borrower or any guarantor has with Lender, including any
agreement made in connection with the signing of this Note; (b)
Borrower or any guarantor ceases doing business or is insolvent; (c)
any guarantor seeks, claims or otherwise attempts to limit, modify or
revoke such guarantor's guarantee of this Note or any other loan with
Lender; (d) Borrower has applied funds provided pursuant to this Note
for purposes other than those authorized by Lender; or (e) Lender in
good faith deems itself insecure under this Note or any other
Agreement between Lender and Borrower.
ARBITRATION. Lender and Borrower agree that all disputes, claims and
controversies between them, whether individual, joint, or class in
nature, arising from this Note or otherwise, including without
limitation contract and tort disputes, shall be arbitrated pursuant to
the Rules of the American Arbitration Association, upon request of
either party. No act to take or dispose of any collateral securing
this Note shall constitute a waiver of this arbitration agreement or
be prohibited by this arbitration agreement. This includes, without
limitation, obtaining injunctive relief or a temporary restraining
order; invoking a power of sale under any deed of trust or mortgage;
obtaining a writ of attachment or imposition of a receiver; or
exercising any rights relating to personal property, including taking
or disposing of such property with or without judicial process
pursuant to Article 9 of the Uniform Commercial Code. Any disputes,
claims, or controversies concerning the lawfulness or reasonableness
or any act, or exercise of any right, concerning any collateral
securing this Note, including any claim to rescind, reform, or
otherwise modify any agreement relating to the collateral securing
this Note, shall also be arbitrated, provided, however, that no
arbitrator shall have the right or the power to enjoin or restrain any
act of any party. Judgment upon any award rendered by any arbitrator
may be entered in any court having jurisdiction. Nothing in this Note
shall preclude any party from seeking equitable relief from a court of
competent jurisdiction. The statute of limitations, estoppel, waiver,
laches, and similar doctrines which would otherwise be applicable in
an action brought by a party shall be applicable in any arbitration
proceeding, and the commencement of an arbitration proceeding shall be
deemed the commencement of an action for these purposes. The Federal
Arbitration Act shall apply to the construction, interpretation, and
enforcement of this arbitration provision.
ACCRUAL METHOD. Interest will be calculated on an actual/360 day
basis.
<PAGE>
GENERAL PROVISIONS. Lender may delay or forgo enforcing any of its
rights or remedies under this Note without losing them. Borrower and
any other person who signs, guarantees or endorses this Note, to the
extent allowed by law, waive presentment, demand for payment, protest
and notice of dishonor. Upon any change in the terms of this Note,
and unless otherwise expressly stated in writing, no party who signs
this Note, whether as maker, guarantor, accommodation maker or
endorser, shall be released from liability. All such parties waive
any right to require Lender to take action against any other party who
signs this Note as provided in O.C.G.A. Section 10-7-24 and agree that
Lender may renew or extend (repeatedly and for any length of time)
this loan, or release any party or guarantor or collateral; or impair,
fail to realize upon or perfect Lender's security interest in the
collateral; and take any other action deemed necessary by Lender
without the consent of or notice to anyone. All such parties also
agree that Lender may modify this loan without the consent of or
notice to anyone other than the party with whom the modification is
made.
IN WITNESS WHEREOF, THIS NOTE HAS BEEN SIGNED AND SEALED BY THE
UNDERSIGNED, WHO ACKNOWLEDGES A COMPLETED COPY HEREOF.
BORROWER:
United Americas Bankshares,
Inc.
By: /s/ Vincent D. Cater (SEAL)
Vincent D. Cater
LENDER:
THE BANKERS BANK
By: _________________________
Authorized Officer
EXHIBIT 10(V)
FORM OF WARRANT AGREEMENT
THIS AGREEMENT is made and entered into as of this ____ day of
_____________, _____, by and between UNITED AMERICAS BANKSHARES, INC.,
a Georgia corporation (the "Corporation"), and _________________________
(the "Warrant Holder").
RECITALS
WHEREAS, the Warrant Holder has served as an organizer in the
formation of the Corporation and the formation and establishment of
United Americas Bank, N.A. (the "Bank"), the wholly-owned subsidiary
of the Corporation; and
WHEREAS, the Warrant Holder has purchased __________ shares of the
Corporation's common stock, no par value per share (the "Common
Stock"), at a price per share of $10.00; and
WHEREAS, the Warrant Holder will provide services to the
Corporation as a director of the Corporation; and
WHEREAS, the Corporation, in recognition of the financial risk
undertaken by the Warrant Holder in organizing the Bank and the
Company, desires to provide the Warrant Holder with the right to
acquire the lesser of the same number of shares, as the Warrant Holder
purchased in the initial stock offering of the Corporation's Common
Stock, including any additional shares purchased specifically to
attain the minimum subscription requirements of the initial offering
of Common Stock.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. GRANT OF WARRANT. Subject to the terms, restriction,
limitations, and conditions stated herein, the Corporation hereby
grants to the Warrant Holder the right (the "Warrant") to purchase all
or any part of an aggregate of _______________ shares of the Common
Stock, subject to adjustment in accordance with Section 7 hereof.
2. TERM.
(a) The term for the exercise of said Warrant begins at 9:00
a.m., Eastern Time, on the first anniversary of the date that
the Corporation first issues its common stock (the "Issue
Date") and ends at 5:00 p.m., Eastern Time, on the earlier of
the tenth anniversary of the issuance date or ninety (90) days
after the Warrant Holder ceases to serve as a director of the
Corporation (the "Expiration Time"). The Warrant will vest at
the rate of twenty percent (20%) per year beginning on the
first anniversary of the Issue Date. On each successive
anniversary of the Issue Date, an additional twenty percent
(20%) of the Warrant shall vest. The vested portion of the
Warrant may be exercised in whole, or from time to time in
part, at any time prior to the Expiration Time.
<PAGE>
(b) Notwithstanding any other provision of this Agreement, if
the Bank's capital falls below the minimum requirements as
determined by the primary federal regulator of the
Corporation or the Bank (the "Regulator"), the Regulator may
direct the Corporation to require the Warrant Holder to
exercise or forfeit his or her Warrant. The Corporation
will notify the Warrant Holder within forty-five (45) days
from the date the Regulator notifies the Corporation in
writing that the Warrant Holder must exercise or forfeit
this Warrant. The Corporation will cancel the Warrant if
not exercised within twenty-one (21) days of the
Corporation's notification to the Warrant Holder. The
Corporation agrees to comply with any Regulator request that
the Corporation invoke its right to require the Warrant
Holder to exercise or forfeit his or her Warrant under the
circumstances stated above.
3. PURCHASE PRICE. The price per share to be paid by the Warrant
Holder for the shares of Common Stock subject to this Warrant shall be
$10.00, subject to adjustment as set forth in Section 6 hereof (such
price, as adjusted, hereinafter called the "Purchase Price").
4. EXERCISE OF WARRANT. The Warrant may be exercised by the
Warrant Holder by delivery to the Corporation, at the address of the
Corporation set forth under Section 10(a) hereof or such other address
as to which the Corporation advises the Warrant Holder pursuant to
Section 10(a) hereof, of the following:
(a) Written notice of exercise specifying the number of
shares of Common Stock with respect to which the Warrant is
being exercised; and
(b) A cashier's or certified check payable to the Corporation
for the full amount of the aggregate Purchase Price for the
number of shares as to which the Warrant is being exercised.
5. ISSUANCE OF SHARES. Upon receipt of the items set forth in
Section 4, and subject to the terms hereof, the Corporation shall
cause to be delivered to the Warrant Holder stock certificates for the
number of shares specified in the notice to exercise, such share or
shares to be registered under the name of the Warrant Holder.
Notwithstanding the foregoing, the Corporation shall not be required
to issue or deliver any certificate for shares of the Common Stock
purchased upon exercise of the Warrant or any portion thereof prior to
the fulfillment of the following conditions:
(a) The admission of such shares for listing on all stock
exchanges on which the Common Stock is then listed;
(b) The completion of any registration or other qualification of
such shares which the Corporation shall deem necessary or
advisable under any federal or state law or under the
rulings or regulations of the Securities and Exchange
Commission or nay other governmental regulatory body;
(c) The obtaining of any approval or other clearance from any
federal or state governmental agency or body, which the
Corporation shall determine to be necessary or advisable; or
(d) The lapse of such reasonable period of time following the
exercise of the Warrant as the Corporation from time to time
may establish for reasons of administrative convenience.
The Corporation shall have no obligation to obtain the fulfillment
of these conditions; provided, however, the Warrant Holder shall have
one full calendar year after these conditions have been fulfilled to
exercise his or her warrants granted herein, notwithstanding any other
provision herein.
<PAGE>
<PAGE>
6. ANTIDILUTION, ETC.
(a) If, prior to the Expiration Time, the Corporation shall
subdivide its outstanding shares of Common Stock into a
greater number of shares, or declare and pay a dividend of
its Common Stock payable in additional shares of its Common
Stock, the Purchase Price as then in effect shall be
proportionately reduced, and the number of shares of Common
Stock then subject to exercise under the Warrant (and not
previously exercised) shall be proportionately increased.
(b) If, prior to the Expiration Time, the Corporation shall
combine its outstanding shares of the Common Stock into a
smaller number of shares, the Purchase Price, as then in
effect, shall be proportionately increased, and the number
of shares of Common Stock then subject to exercise under the
Warrant (and not previously exercised), shall be
proportionately reduced.
7. REORGANIZATION, RECLASSIFICATION, CONSOLIDATION, OR MERGER.
If, prior to the Expiration Time, there shall be any reorganization
or reclassification of the Common Stock (other than a subdivision or
combination of shares provided for in Section 6 hereof), or any
consolidation or merger of the Corporation with another entity, the
Warrant Holder shall thereafter be entitled to receive, during the
term hereof and upon payment of the Purchase Price, the number of
shares of stock or other securities or property of the Corporation or
of the successor entity (or its parent company) resulting from such
consolidation or merger, as the case may be, to which a holder of the
Common Stock, deliverable upon the exercise of this Warrant, would
have been entitled upon such reorganization, reclassification,
consolidation, or merger; and in any case, appropriate adjustment (as
determined by the Board of Directors of the Corporation in its sole
discretion) shall be made in the application of the provisions herein
set forth with respect to the rights and interest thereafter of the
Warrant Holder to the end that the provisions set forth herein
(including the adjustment of the Purchase Price and the number of
shares issuable upon the exercise of this Warrant) shall thereafter be
applicable, as near as may reasonably be practicable, in relation to
any shares or other property thereafter deliverable upon the exercise
hereof.
8. NOTICE OF ADJUSTMENTS. Upon any adjustment provided for in
Section 6 or Section 7 hereof, the Corporation, within thirty (30)
days thereafter, shall give written notice thereof to the Warrant
Holder at the address set forth under Section 10(a) hereof or such
other address as the Warrant Holder may advise the Corporation
pursuant to Section 10(a) hereof, which notice shall state the Warrant
Price as adjusted and the increased or decreased number of shares
purchasable upon the exercise of this Warrant, setting forth in
reasonable detail the method of calculation of each.
9. TRANSFER AND ASSIGNMENT.
(a) This Warrant may not be assigned, transferred (except as
aforesaid), pledged, or hypothecated in any way (whether by
operation of law or otherwise) and shall not be subject to
execution, attachment, or similar process. Any attempted
assignment, transfer, pledge, hypothecation, or other
disposition of this Warrant shall be null and void and
without legal effect.
(b) Shares of Common Stock acquired by exercise of the Warrant
granted hereby may not be transferred or sold unless the
transfer is exempt from further regulatory approval or
otherwise permissible under applicable law, including state
and federal securities laws, and will bear a legend to this
effect.
<PAGE>
10. MISCELLANEOUS.
(a) All notices, requests, demands, and other communications
required or permitted hereunder shall be in writing and
shall be deemed to have been duly given when delivered by
hand, telegram, or facsimile transmission, or if mailed, by
postage prepaid first class mail, on the third business day
after mailing, to the following address (or at such other
address as a party may notify the other thereunder):
To the Corporation:
United Americas Bankshares, Inc.
3789 Roswell Road
Atlanta, Georgia 30342
Attention: Vincent D. Cater, President
To the Warrant Holder:
(b) The Corporation covenants that it has reserved and will keep
available, solely for the purpose of issue upon the exercise
hereof, a sufficient number of shares of Common Stock to
permit the exercise hereof in full.
(c) No holder of this Warrant, as such, shall be entitled to
vote or receive dividends with respect to the shares of
Common Stock subject hereto or be deemed to be a shareholder
of the Corporation for any purpose until such Common Stock
has been issued.
(d) This Warrant may be amended only by an instrument in writing
executed by the party against whom enforcement of amendment
is sought.
(e) This Warrant may be executed in counterparts, each of which
shall be deemed an original, but all of which shall
constitute one and the same instrument.
(f) This Warrant shall be governed by and construed and enforced
in accordance with the laws of the State of Georgia.
[The remainder of this page is intentionally left blank.]
<PAGE>
IN WITNESS WHEREOF, the Corporation has caused this Warrant to be
signed by its duly authorized officers and its corporate seal to be
affixed hereto, and the Warrant Holder has executed this Warrant under
seal, all as of the day and year first above written.
UNITED AMERICAS BANKSHARES, INC.
By:_______________________________
Vincent D. Cater
President
WARRANT HOLDER
________________________________(SEAL)
UNITED AMERICAS BANKSHARES, INC.
1999 STOCK INCENTIVE PLAN<PAGE>
TABLE OF CONTENTS
ARTICLE 1. ESTABLISHMENT, PURPOSE, AND DURATION ...................... 1
1.1 Establishment of the Plan.................................... 1
1.2 Purpose of the Plan .......................................... 1
1.3 Duration of the Plan ......................................... 1
ARTICLE 2. DEFINITIONS ............................................... 1
ARTICLE 3. ADMINISTRATION ............................................ 4
3.1 The Committee ................................................ 4
3.2 Authority of the Committee ................................... 4
3.3 Decisions Binding ............................................ 5
ARTICLE 4. SHARES SUBJECT TO THE PLAN ................................ 5
4.1 Number of Shares ............................................. 5
4.2 Lapsed Awards ................................................ 5
4.3 Adjustments In Authorized Shares.............................. 6
ARTICLE 5. ELIGIBILITY AND PARTICIPATION ............................. 6
ARTICLE 6. STOCK OPTIONS ............................................. 6
6.1 Grant of Options ............................................. 6
6.2 Agreement .................................................... 6
6.3 Option Price ................................................. 7
6.4 Duration of Options........................................... 7
6.5 Exercise of Options........................................... 7
6.6 Payment....................................................... 7
6.7 Limited Transferability ...................................... 8
6.8 Shareholder Rights............................................ 8
ARTICLE 7. STOCK APPRECIATION RIGHTS ................................. 8
7.1 Grants of SARs ............................................... 8
7.2 Duration of SARs ............................................. 9
7.3 Exercise of SAR .............................................. 9
7.4 Determination of Payment of Cash and/or Common Stock
Upon Exercise of SAR ........................................ 9
7.5 Nontransferability ........................................... 9
7.6 Shareholder Rights ........................................... 9
ARTICLE 8. RESTRICTED STOCK; STOCK AWARDS ............................ 9
8.1 Grants ....................................................... 9
8.2 Restricted Period; Lapse of Restrictions .....................10
8.3 Rights of Holder; Limitations Thereon.........................10
8.4 Delivery of Unrestricted Shares...............................11
8.5 Nonassignability of Restricted Stock..........................11
ARTICLE 9. PERFORMANCE SHARE AWARDS...................................11
i<PAGE>
<PAGE>
9.1 Award ........................................................11
9.2 Earning the Award.............................................11
9.3 Payment.......................................................12
9.4 Shareholder Rights............................................12
ARTICLE 10. BENEFICIARY DESIGNATION...................................12
ARTICLE 11. DEFERRALS.................................................13
ARTICLE 12. RIGHTS OF EMPLOYEES.......................................13
12.1 Employment...................................................13
12.2 Participation................................................13
ARTICLE 13. CHANGE IN CONTROL ........................................13
13.1 Definition ..................................................13
13.2 Limitation on Awards ........................................14
ARTICLE 14. AMENDMENT, MODIFICATION AND TERMINATION ..................14
14.1 Amendment, Modification and Termination .....................14
14.2 Awards Previously Granted ...................................15
14.3 Compliance With Code Section 162(m) .........................15
ARTICLE 15. WITHHOLDING ..............................................15
15.1 Tax Withholding .............................................15
15.2 Share Withholding ...........................................15
ARTICLE 16. INDEMNIFICATION ..........................................15
ARTICLE 17. SUCCESSORS ...............................................16
ARTICLE 18. LEGAL CONSTRUCTION .......................................16
18.1 Gender and Number ...........................................16
18.2 Severability ...............................................16
18.3 Requirements of Law .........................................16
18.4 Regulatory Approvals and Listing.............................16
18.5 Securities Law Compliance ...................................16
18.6 Governing Law ...............................................16
ii
<PAGE>
UNITED AMERICAS BANKSHARES, INC.
1999 STOCK INCENTIVE PLAN
ARTICLE 1. ESTABLISHMENT, PURPOSE, AND DURATION
1.1 ESTABLISHMENT OF THE PLAN. United Americas Bankshares,
-------------------------
Inc., a Georgia bank holding company (hereinafter referred to as the
"Company"), hereby establishes a stock option and incentive award plan
known as the "United Americas Bankshares, Inc. 1999 Stock Incentive
Plan" (the "Plan"), as set forth in this document. The Plan permits
the grant of Incentive Stock Options, Nonqualified Stock Options,
Restricted Stock, Stock Awards, Performance Share Awards and Stock
Appreciation Rights.
The Plan shall become effective on the date it is approved by the
Board of Directors (the "Effective Date"), subject to approval of the
Plan by the Company's shareholders within the 12-month period
immediately thereafter, and shall remain in effect as provided in
SECTION 1.3.
1.2 Purpose of the Plan. The purpose of the Plan is to secure
-------------------
for the Company and its shareholders the benefits of the incentive
inherent in stock ownership in the Company by employees, directors,
and consultants or other persons who perform services for the Company,
and who are responsible for its future growth and continued success.
The Plan promotes the success and enhances the value of the Company by
linking the personal interests of Participants (as defined below) to
those of the Company's shareholders, and by providing Participants
with an incentive for outstanding performance. The Plan is further
intended to provide flexibility to the Company in its ability to
motivate, attract and retain the services of Participants upon whose
judgment, interest and special effort the successful conduct of its
operation largely depends.
1.3 Duration of the Plan. The Plan shall commence on the
--------------------
Effective Date, and shall remain in effect, subject to the right of
the Board of Directors to amend or terminate the Plan at any time
pursuant to ARTICLE 14, until the day prior to the tenth (10th)
anniversary of the Effective Date.
ARTICLE 2. DEFINITIONS
Whenever used in the Plan, the following terms shall have the
meanings set forth below:
(a) "Agreement" means an agreement entered into by each
---------
Participant and the Company, setting forth the terms and
provisions applicable to Awards granted to Participants
under this Plan.
(b) "Award" means, individually or collectively, a grant under
-----
this Plan of Incentive Stock Options, Nonqualified Stock
Options, Restricted Stock, Stock Awards, Performance Share
Awards or Stock Appreciation Rights.
(c) "Beneficial Owner" or "Beneficial Ownership" shall have the
----------------
meaning ascribed to such term in Rule 13d-3 of the Exchange
Act.
(d) "Board" or "Board of Directors" means the Board of Directors
----- ------------------
of the Company.
-1-<PAGE>
<PAGE>
(e) "Cause" means: (i) willful misconduct on the part of a
-----
Participant that is materially detrimental to the Company;
or (ii) the conviction of a Participant for the commission
of a felony. The existence of "Cause" under either (i) or
(ii) shall be determined by the Committee. Notwithstanding
the foregoing, if the Participant has entered into an
employment agreement that is binding as of the date of
employment termination, and if such employment agreement
defines "Cause," and/or provides a means of determining
whether "Cause" exists, such definition of "Cause" and means
of determining its existence shall supersede this provision.
(f) "Code" means the Internal Revenue Code of 1986, as amended
----
from time to time, or any successor act thereto.
(g) "Committee" means the committee appointed to administer the
---------
Plan with respect to grants of Awards, as specified in
ARTICLE 3, and to perform the functions set forth therein.
(h) "Common Stock" means the common stock of the Company, par
------------
value $.01 per share.
(i) "Company" means United Americas Bankshares, Inc., a Georgia
-------
bank holding company, or any successor thereto as provided
in ARTICLE 17.
(j) "Corresponding SAR" means an SAR that is granted in relation
-----------------
to a particular Option and that can be exercised only upon
the surrender to the Company, unexercised, of that portion
of the Option to which the SAR relates.
(k) "Director" means any individual who is a member of the Board
--------
of Directors of the Company.
(l) "Disability" shall have the meaning ascribed to such term in
----------
the Company's long-term disability plan covering the
Participant, or in the absence of such plan, a meaning
consistent with Section 22(e)(3) of the Code.
(m) "Employee" means any employee of the Company or the
--------
Company's Subsidiaries. Directors who are not otherwise
employed by the Company or the Company's Subsidiaries are
not considered Employees under this Plan.
(n) "Effective Date" shall have the meaning ascribed to such
--------------
term in SECTION 1.1.
(o) "Exchange Act" means the Securities Exchange Act of 1934, as
------------
amended from time to time, or any successor act thereto.
<PAGE>
(p) "Fair Market Value" shall be determined as follows:
-----------------
(i) If, on the relevant date, the Shares are traded on a
national or regional securities exchange or on The
Nasdaq Stock Market ("Nasdaq") and closing sale prices
for the Shares are customarily quoted, on the basis of
the closing sale price on the principal securities
exchange on which the Shares may then be traded or, if
there is no such sale on the relevant date, then on the
immediately preceding day on which a sale was reported;
-2-<PAGE>
<PAGE>
(ii) If, on the relevant date, the Shares are not listed on
any securities exchange or traded on Nasdaq, but
nevertheless are publicly traded and reported on Nasdaq
without closing sale prices for the Shares being
customarily quoted, on the basis of the mean between
the closing bid and asked quotations in such other
over-the-counter market as reported by Nasdaq; but, if
there are no bid and asked quotations in the over-the-
counter market as reported by Nasdaq on that date, then
the mean between the closing bid and asked quotations
in the over-the-counter market as reported by Nasdaq on
the immediately preceding day such bid and asked prices
were quoted; and
(iii) If, on the relevant date, the Shares are not
publicly traded as described in (i) or (ii), on the
basis of the good faith determination of the Committee.
(q) "Incentive Stock Option" or "ISO" means an option to
----------------------
purchase Shares granted under Article 6 which is designated
as an Incentive Stock Option and is intended to meet the
requirements of Section 422 of the Code.
(r) "Initial Value" means, with respect to a Corresponding SAR,
-------------
the Option Price per share of the related Option, and with
respect to an SAR granted independently of an Option, the
Fair Market Value of one share of Common Stock on the date
of grant.
(s) "Insider" shall mean an Employee who is, on the relevant
-------
date, an officer or a director, or a ten percent (10%)
beneficial owner of any class of the Company's equity
securities that is registered pursuant to Section 12 of the
Exchange Act or any successor provision, as "officer" and
"director" are defined under Section 16 of the Exchange Act.
(t) "Named Executive Officer" means a Participant who, as of the
-----------------------
date of vesting and/or payout of an Award is one of the
group of "covered employees," as defined in the regulations
promulgated under Code Section 162(m), or any successor
statute.
(u) "Nonqualified Stock Option" or "NQSO" means an option to
-------------------------
purchase Shares granted under ARTICLE 6, and which is not
intended to meet the requirements of Code Section 422.
(v) "Option" means an Incentive Stock Option or a Nonqualified
------
Stock Option.
(w) "Option Price" means the price at which a Share may be
------------
purchased by a Participant pursuant to an Option, as
determined by the Committee.
(x) "Participant" means an Employee, a Director, a consultant or
-----------
other person who performs services for the Company or a
Subsidiary, who has been determined by the Committee to
contribute significantly to the profits or growth of the
Company and who has been granted an Award under the Plan
which is outstanding.
-3-<PAGE>
<PAGE>
(y) "Performance Share Award" means an Award, which, in
-----------------------
accordance with and subject to an Agreement, will entitle
the Participant, or his estate or beneficiary in the event
of the Participant's death, to receive cash, Common Stock or
a combination thereof.
(z) "Person" shall have the meaning ascribed to such term in
------
Section 3(a)(9) of the Exchange Act and used in Sections
13(d) and 14(d) thereof, including a "group" as defined in
Section 13(d) thereof.
(aa) "Retirement" shall mean retiring from employment with the
----------
Company or any Subsidiary on or after attaining age 65.
(bb) "Restricted Stock" means an Award of Common Stock granted in
----------------
accordance with the terms of ARTICLE 8 and the other
provisions of the Plan, and which is nontransferable and
subject to a substantial risk of forfeiture. Shares of
Common Stock shall cease to be Restricted Stock when, in
accordance with the terms hereof and the applicable
Agreement, they become transferable and free of substantial
risk of forfeiture.
(cc) "SAR" means a stock appreciation right that entitles the
---
holder to receive, with respect to each share of Common
Stock encompassed by the exercise of such SAR, the amount
determined by the Committee and specified in an Agreement.
In the absence of such specification, the holder shall be
entitled to receive in cash, with respect to each share of
Common Stock encompassed by the exercise of such SAR, the
excess of the Fair Market Value on the date of exercise over
the Initial Value. References to "SARs" include both
Corresponding SARs and SARs granted independently of
Options, unless the context requires otherwise.
(dd) "Shares" means the shares of Common Stock of the Company
------
(including any new, additional or different stock or
securities resulting from the changes described in SECTION
4.3).
(ee) "Stock Award" means a grant of Shares under ARTICLE 8 that
-----------
is not generally subject to restrictions and pursuant to
which a certificate for the Shares is transferred to the
Employee.
(ff) "Subsidiary" means any company during any period in which it
----------
is a "subsidiary corporation" (as that term is defined in
Code Section 424(f)) with respect to the Company.
ARTICLE 3. ADMINISTRATION
3.1 The Committee. The Plan shall be administered by the Board
-------------
of Directors or by the Compensation Committee of the Board, or by any
other committee or subcommittee appointed by the Board that is granted
authority to administer the Plan. The members of the Committee shall
be appointed from time to time by, and shall serve at the discretion
of, the Board of Directors.
-4-<PAGE>
<PAGE>
3.2 Authority of the Committee. Subject to the provisions of
--------------------------
the Plan, the Committee shall have full power to select the Employees,
Directors, consultants and other persons who perform services for the
Company or a Subsidiary, who are responsible for the future growth and
success of the Company who shall participate in the Plan (who may
change from year to year); determine the size and types of Awards;
determine the terms and conditions of Awards in a manner consistent
with the Plan (including conditions on the exercisability of all or a
part of an Option or SAR, restrictions on transferability and vesting
provisions on Restricted Stock or Performance Share Awards and the
duration of the Awards); construe and interpret the Plan and any
agreement or instrument entered into under the Plan; establish, amend
or waive rules and regulations for the Plan's administration; and
(subject to the provisions of ARTICLE 14) amend the terms and
conditions of any outstanding Award to the extent such terms and
conditions are within the discretion of the Committee as provided in
the Plan, including accelerating the time any Option or SAR may be
exercised and establishing different terms and conditions relating to
the effect of the termination of employment or other services to the
Company. Further, the Committee shall make all other determinations
which may be necessary or advisable in the Committee's opinion for the
administration of the Plan. All expenses of administering this Plan
shall be borne by the Company.
3.3 Decisions Binding. All determinations and decisions made by
-----------------
the Committee pursuant to the provisions of the Plan and all related
orders and resolutions of the Board shall be final, conclusive and
binding on all Persons, including the Company, the shareholders,
Employees, Participants and their estates and beneficiaries.
ARTICLE 4. SHARES SUBJECT TO THE PLAN
4.1 Number of Shares. Subject to adjustment as provided in
----------------
SECTION 4.3, the total number of Shares available for grant of Awards
under the Plan shall be fifty thousand (50,000) Shares. The Shares
may, in the discretion of the Company, be either authorized but
unissued Shares or Shares held as treasury shares, including Shares
purchased by the Company, whether on the market or otherwise. The
following rules shall apply for purposes of the determination of the
number of Shares available for grant under the Plan:
(a) The grant of an Option, SAR, Stock Award, Restricted
Stock Award or Performance Share Award shall reduce the
Shares available for grant under the Plan by the number
of Shares subject to such Award.
(b) While an Option, SAR, Stock Award, Restricted Stock
Award or Performance Share Award is outstanding, it
shall be counted against the authorized pool of Shares,
regardless of its vested status.
4.2 Lapsed Awards. If any Award granted under this Plan is
-------------
canceled, terminates, expires or lapses for any reason, or if Shares
are withheld in payment of the Option Price or for withholding taxes,
any Shares subject to such Award or that are withheld shall again be
available for the grant of an Award under the Plan. However, in the
event that prior to the Award's cancellation, termination, expiration
or lapse, the holder of the Award at any time received one or more
"benefits of ownership" pursuant to such Award (as defined by the
Securities and Exchange Commission, pursuant to any rule or
interpretation promulgated under Section 16 of the Exchange Act), the
Shares subject to such Award shall not again be made available for
regrant under the Plan.
-5-<PAGE>
<PAGE>
4.3 Adjustments In Authorized Shares. In the event of any
--------------------------------
change in corporate capitalization, such as a stock split, or a
corporate transaction, such as any merger, consolidation, separation,
including a spin-off, or other distribution of stock or property of
the Company, any reorganization (whether or not such reorganization
comes within the definition of such term in Code Section 368) or any
partial or complete liquidation of the Company, such adjustment shall
be made in the number and class of Shares which may be delivered under
the Plan, and in the number and class of and/or price of Shares
subject to outstanding Awards granted under the Plan, as may be
determined to be appropriate and equitable by the Committee, in its
sole discretion, to prevent dilution or enlargement of rights;
provided, however, that the number of Shares subject to any Award
shall always be a whole number and the Committee shall make such
adjustments as are necessary to insure Awards of whole Shares.
ARTICLE 5. ELIGIBILITY AND PARTICIPATION
Any key Employee of the Company or any Subsidiary, including any
such Employee who is also a director of the Company or any Subsidiary,
any non-employee Director, and any consultant or other person who
performs services for the Company or a Subsidiary, whose judgment,
initiative and efforts contribute or may be expected to contribute
materially to the successful performance of the Company or any
Subsidiary shall be eligible to receive an Award under the Plan. In
determining the individuals to whom such an Award shall be granted and
the number of Shares which may be granted pursuant to that Award, the
Committee shall take into account the duties of the respective
individual, his or her present and potential contributions to the
success of the Company or any Subsidiary, and such other factors as
the Committee shall deem relevant in connection with accomplishing the
purpose of the Plan.
ARTICLE 6. STOCK OPTIONS
6.1 Grant of Options. Subject to the terms and provisions of
----------------
the Plan, Options may be granted to Participants at any time and from
time to time as shall be determined by the Committee. The Committee
shall have discretion in determining the number of Shares subject to
Options granted to each Participant. An Option may be granted with or
without a Corresponding SAR. No Participant may be granted ISOs
(under the Plan and all other incentive stock option plans of the
Company and any Subsidiary) which are first exercisable in any
calendar year for Common Stock having an aggregate Fair Market Value
(determined as of the date an Option is granted) that exceeds
$100,000. The preceding annual limit shall not apply to NQSOs. The
Committee may grant a Participant ISOs, NQSOs or a combination
thereof, and may vary such Awards among Participants; provided that
only an Employee may be granted ISOs. The maximum number of Shares
subject to Options which can be granted under the Plan during any
calendar year to any individual is 25,000 Shares.
6.2 Agreement. Each Option grant shall be evidenced by an
---------
Agreement that shall specify the Option Price, the duration of the
Option, the number of Shares to which the Option pertains and such
other provisions as the Committee shall determine. The Option
Agreement shall further specify whether the Award is intended to be an
ISO or an NQSO. Any portion of an Option that is not designated as an
ISO or otherwise fails or is not qualified as an ISO (even if
designated as an ISO) shall be a NQSO. If the Option is granted in
connection with a Corresponding SAR, the Agreement shall also specify
the terms that apply to the exercise of the Option and Corresponding
SAR.
-6-<PAGE>
<PAGE>
6.3 Option Price. The Option Price for each grant of an ISO
------------
shall not be less than one hundred percent (100%) of the Fair Market
Value of a Share on the date the Option is granted. In no event,
however, shall any Participant who owns (within the meaning of Section
424(d) of the Code) stock of the Company possessing more than ten
percent (10%) of the total combined voting power of all classes of
stock of the Company be eligible to receive an ISO at an Option Price
less than one hundred ten percent (110%) of the Fair Market Value of a
share on the date the ISO is granted. The Option Price for each grant
of a NQSO shall be established by the Committee and, in its
discretion, may be less than the Fair Market Value of a Share on the
date the Option is granted.
6.4 Duration of Options. Each Option shall expire at such time
-------------------
as the Committee shall determine at the time of grant; provided,
however, that no Option shall be exercisable later than the tenth
(10th) anniversary date of its grant; provided, further, however, that
any ISO granted to any Participant who at such time owns (within the
meaning of Section 424(d) of the Code) stock of the Company possessing
more than ten percent (10%) of the total combined voting power of all
classes of stock of the Company, shall not be exercisable later than
the fifth (5th) anniversary date of its grant.
Notwithstanding any other provision in this Plan, if the capital
of the Company or United Americas Bank, N.A. (the "Bank"), a wholly
owned subsidiary of the Company, falls below the minimum requirements
as determined by the primary federal regulator of the Company or the
Bank (the "Regulator"), the Regulator may direct the Company to
require the Participant to exercise (if exercisable) or forfeit his or
her Option. The Company will notify the Participant within forty-five
(45) days from the date the Regulator notifies the Company in writing
that the Participant must exercise or forfeit the Option. The Option
will terminate if not exercised within twenty-one (21) days of the
Company's notification to the Participant. The Company agrees to
comply with any Regulator request that the Company invoke its right to
require the Participant to exercise or forfeit his or her Option under
the circumstances stated above.
6.5 Exercise of Options. Options granted under the Plan shall
-------------------
be exercisable at such times and be subject to such restrictions and
conditions as the Committee shall in each instance approve, including
conditions related to the employment of the Participant with the
Company or any Subsidiary, which need not be the same for each grant
or for each Participant. Each Option shall be exercisable for such
number of Shares and at such time or times, including periodic
installments, as may be determined by the Committee at the time of the
grant. The Committee may provide in the Agreement for automatic
accelerated vesting and other rights upon the occurrence of a Change
in Control of the Company. Except as otherwise provided in the
Agreement and ARTICLE 13, the right to purchase Shares that are
exercisable in periodic installments shall be cumulative so that when
the right to purchase any Shares has accrued, such Shares or any part
thereof may be purchased at any time thereafter until the expiration
or termination of the Option. The exercise or partial exercise of
either an Option or its Corresponding SAR shall result in the
termination of the other to the extent of the number of Shares with
respect to which the Option or Corresponding SAR is exercised.
6.6 Payment. Options shall be exercised by the delivery of a
-------
written notice of exercise to the Company, setting forth the number of
-7-<PAGE>
<PAGE>
Shares with respect to which the Option is to be exercised,
accompanied by full payment for the Shares. The Option Price upon
exercise of any Option shall be payable to the Company in full,
either: (a) in cash, (b) cash equivalent approved by the Committee,
(c) if approved by the Committee, by tendering previously acquired
Shares (or delivering a certification of ownership of such Shares)
having an aggregate Fair Market Value at the time of exercise equal to
the total Option Price (provided that the Shares which are tendered
must have been held by the Participant for six months, if required for
accounting purposes, and for the period required by law, if any, prior
to their tender to satisfy the Option Price), or (d) by a combination
of (a), (b) and (c). The Committee also may allow cashless exercises
as permitted under Federal Reserve Board's Regulation T, subject to
applicable securities law restrictions, or by any other means which
the Committee determines to be consistent with the Plan's purpose and
applicable law. As soon as practicable after receipt of a written
notification of exercise and full payment, the Company shall deliver
to the Participant, in the Participant's name, Share certificates in
an appropriate amount based upon the number of Shares purchased under
the Option(s), and may place appropriate legends on the certificates
representing such Shares.
6.7 Limited Transferability. If permitted by the Committee in
-----------------------
the Agreement, a Participant may transfer an Option granted hereunder,
including, but not limited to, transfers to members of his or her
Immediate Family (as defined below), to one or more trusts for the
benefit of such Immediate Family members, or to one or more
partnerships where such Immediate Family members are the only
partners, if (i) the Participant does not receive any consideration in
any form whatsoever for such transfer, (ii) such transfer is permitted
under applicable tax laws, and (iii) the Participant is an Insider,
such transfer is permitted under Rule 16b-3 of the Exchange Act as in
effect from time to time. Any Option so transferred shall continue to
be subject to the same terms and conditions in the hands of the
transferee as were applicable to said Option immediately prior to the
transfer thereof. Any reference in any such Agreement to the
employment by or performance of services for the Company by the
Participant shall continue to refer to the employment of, or
performance by, the transferring Participant. For purposes hereof,
"Immediate Family" shall mean the Participant and the Participant's
spouse, children and grandchildren. Any Option that is granted
pursuant to any Agreement that did not initially expressly allow the
transfer of said Option and that has not been amended to expressly
permit such transfer, shall not be transferable by the Participant
other than by will or by the laws of descent and distribution and such
Option thus shall be exercisable in the Participant's lifetime only by
the Participant.
6.8 Shareholder Rights. No Participant shall have any rights as
------------------
a shareholder with respect to Shares subject to his Option until the
issuance of such Shares to the Participant pursuant to the exercise of
such Option.
ARTICLE 7. STOCK APPRECIATION RIGHTS
7.1 Grants of SARs. The Committee shall designate Participants
--------------
to whom SARs are granted, and will specify the number of Shares of
Common Stock subject to each grant. An SAR may be granted with or
without a related Option. All SARs granted under this Plan shall be
subject to an Agreement in accordance with the terms of this Plan. A
payment to the Participant upon the exercise of a Corresponding SAR
may not be more than the difference between the Fair Market Value of
the Shares subject to the ISO on the date of grant and the Fair Market
Value of the Shares on the date of exercise of the Corresponding SAR.
The maximum number of Shares underlying SARs which can be awarded
under the Plan during any calendar year to any individual is 25,000.
-8-<PAGE>
<PAGE>
7.2 Duration of SARs. The duration of an SAR shall be set forth
----------------
in the Agreement as determined by the Committee. An SAR that is
granted as a Corresponding SAR shall have the same duration as the
Option to which it relates. An SAR shall terminate due to the
Participant's termination of employment at the same time as the date
specified in ARTICLE 6 with respect to Options, regardless of whether
the SAR was granted in connection with the grant of an Option.
7.3 Exercise of SAR. An SAR may be exercised in whole at any
---------------
time or in part from time to time and at such times and in compliance
with such requirements as the Committee shall determine as set forth
in the Agreement; provided, however, that a Corresponding SAR that is
related to an Incentive Stock Option may be exercised only to the
extent that the related Option is exercisable and only when the Fair
Market Value of the Shares exceeds the Option Price of the related
ISO. An SAR granted under this Plan may be exercised with respect to
any number of wholes shares less than the full number of shares for
which the SAR could be exercised. A partial exercise of an SAR shall
not affect the right to exercise the SAR from time to time in
accordance with this Plan and the applicable Agreement with respect to
the remaining shares subject to the SAR. The exercise of either an
Option or Corresponding SAR shall result in the termination of the
other to the extent of the number of Shares with respect to which the
Option or its Corresponding SAR is exercised.
7.4 Determination of Payment of Cash and/or Common Stock Upon
---------------------------------------------------------
Exercise of SAR. At the Committee's discretion, the amount payable as
- ----------------
a result of the exercise of an SAR may be settled in cash, Common
Stock, or a combination of cash and Common Stock. A fractional share
shall not be deliverable upon the exercise of an SAR, but a cash
payment shall be made in lieu thereof.
7.5 Nontransferability. Each SAR granted under the Plan shall
------------------
be nontransferable except by will or by the laws of descent and
distribution. During the lifetime of the Participant to whom the SAR
is granted, the SAR may be exercised only by the Participant. No
right or interest of a Participant in any SAR shall be liable for, or
subject to any lien, obligation or liability of such Participant. A
Corresponding SAR shall be subject to the same restrictions on
transfer as the ISO to which it relates. Notwithstanding the
foregoing, if the Agreement so provides, a Participant may transfer an
SAR (other than a Corresponding SAR that relates to an Incentive Stock
Option) under the same rules and conditions as are set forth in
SECTION 6.7.
7.6 Shareholder Rights. No Participant shall have any rights as
------------------
a shareholder with respect to Shares subject to an SAR until the
issuance of Shares (if any) to the Participant pursuant to the
exercise of such SAR.
ARTICLE 8. RESTRICTED STOCK; STOCK AWARDS
8.1 Grants. The Committee may from time to time in its
------
discretion grant Restricted Stock and Stock Awards to Participants and
may determine the number of Shares of Restricted Stock or Stock Awards
to be granted. The Committee shall determine the terms and conditions
of, and the amount of payment, if any, to be made by the Employee for
such Shares or Restricted Stock. A grant of Restricted Stock may, in
addition to other conditions, require the Participant to pay for such
Shares of Restricted Stock, but the Committee may establish a price
below Fair Market Value at which the Participant can purchase the
Shares of Restricted Stock. Each grant of Restricted Stock shall be
evidenced by an Agreement containing terms and conditions not
inconsistent with the Plan as the Committee shall determine to be
appropriate in its sole discretion. The maximum number of Shares of
Common Stock or Restricted Stock which can be awarded under the Plan
during any calendar year to any individual is 25,000 Shares.
8.2 Restricted Period; Lapse of Restrictions. At the time a
----------------------------------------
grant of Restricted Stock is made, the Committee shall establish a
period or periods of time (the "Restricted Period") applicable to such
grant which, unless the Committee otherwise provides, shall not be
less than one year. Subject to the other provisions of this ARTICLE
8, at the end of the Restricted Period all restrictions shall lapse
and the Restricted Stock shall vest in the Participant. At the time a
grant is made, the Committee may, in its discretion, prescribe
conditions for the incremental lapse of restrictions during the
Restricted Period and for the lapse or termination of restrictions
upon the occurrence of other conditions in addition to or other than
the expiration of the Restricted Period with respect to all or any
portion of the Restricted Stock. Such conditions may, but need not,
include the following:
(a) The death, Disability or Retirement of the Employee to
whom Restricted Stock is granted, or
(b) The occurrence of a Change in Control (as defined in
SECTION 13.1).
The Committee may also, in its discretion, shorten or terminate the
Restricted Period, or waive any conditions for the lapse or
termination of restrictions with respect to all or any portion of the
Restricted Stock at any time after the date the grant is made.
8.3 Rights of Holder; Limitations Thereon. Upon a grant of
-------------------------------------
Restricted Stock, a stock certificate (or certificates) representing
the number of Shares of Restricted Stock granted to the Participant
shall be registered in the Participant's name and shall be held in
custody by the Company or a bank selected by the Committee for the
Participant's account. Following such registration, the Participant
shall have the rights and privileges of a shareholder as to such
Restricted Stock, including the right to receive dividends, if and
when declared by the Board of Directors, and to vote such Restricted
Stock, except that the right to receive cash dividends shall be the
right to receive such dividends either in cash currently or by payment
in Restricted Stock, as the Committee shall determine, and except
further that, the following restrictions shall apply:
(a) The Participant shall not be entitled to delivery of a
certificate until the expiration or termination of the
Restricted Period for the Shares represented by such
certificate and the satisfaction of any and all other
conditions prescribed by the Committee;
(b) None of the Shares of Restricted Stock may be sold,
transferred, assigned, pledged, or otherwise encumbered
or disposed of during the Restricted Period and until
the satisfaction of any and all other conditions
prescribed by the Committee; and
(c) All of the Shares of Restricted Stock that have not
vested shall be forfeited and all rights of the
Participant to such Shares of Restricted Stock shall
terminate without further obligation on the part of the
Company, unless the Participant has remained an
-10-<PAGE>
<PAGE>
employee of (or non-Employee Director of or active
consultant providing services to) the Company or any of
its Subsidiaries, until the expiration or termination
of the Restricted Period and the satisfaction of any
and all other conditions prescribed by the Committee
applicable to such Shares of Restricted Stock. Upon
the forfeiture of any Shares of Restricted Stock, such
forfeited Shares shall be transferred to the Company
without further action by the Participant and shall, in
accordance with SECTION 4.2, again be available for
grant under the Plan. If the Participant paid any
amount for the Shares of Restricted Stock that are
forfeited, the Company shall pay the Participant the
lesser of the Fair Market Value of the Shares on the
date they are forfeited or the amount paid by the
Participant.
With respect to any Shares received as a result of adjustments
under SECTION 4.3 hereof and any Shares received with respect to cash
dividends declared on Restricted Stock, the Participant shall have the
same rights and privileges, and be subject to the same restrictions,
as are set forth in this ARTICLE 8.
8.4 Delivery of Unrestricted Shares. Upon the expiration or
-------------------------------
termination of the Restricted Period for any Shares of Restricted
Stock and the satisfaction of any and all other conditions prescribed
by the Committee, the restrictions applicable to such Shares of
Restricted Stock shall lapse and a stock certificate for the number of
Shares of Restricted Stock with respect to which the restrictions have
lapsed shall be delivered, free of all such restrictions except any
that may be imposed by law, to the holder of the Restricted Stock.
The Company shall not be required to deliver any fractional Share but
will pay, in lieu thereof, the Fair Market Value (determined as of the
date the restrictions lapse) of such fractional Share to the holder
thereof. Concurrently with the delivery of a certificate for
Restricted Stock, the holder shall be required to pay an amount
necessary to satisfy any applicable federal, state and local tax
requirements as set out in ARTICLE 15 below.
8.5 Nonassignability of Restricted Stock. Unless the Committee
------------------------------------
provides otherwise in the Agreement, no grant of, nor any right or
interest of a Participant in or to, any Restricted Stock, or in any
instrument evidencing any grant of Restricted Stock under the Plan,
may be assigned, encumbered or transferred except, in the event of the
death of a Participant, by will or the laws of descent and
distribution.
ARTICLE 9. PERFORMANCE SHARE AWARDS
9.1 Award. The Committee may designate Participants to whom
-----
Performance Share Awards will be granted from time to time for no
consideration and specify the number of shares of Common Stock covered
by the Award. No more than 25,000 Performance Shares may be earned by
any individual with respect to any calendar year.
9.2 Earning the Award. A Performance Share Award, or portion
-----------------
thereof, will be earned, and the Participant will be entitled to
receive Common Stock, a cash payment or a combination thereof, only
upon the achievement by the Participant, the Company, or a Subsidiary
-11-<PAGE>
<PAGE>
of such performance objectives as the Committee, in its discretion,
shall prescribe on the date of grant. To the extent required, the
performance objectives applicable to Awards to Named Executive
Officers intended to qualify under Code Section 162(m) shall be
selected from among the following measures: return on equity or
assets, earnings per share, total earnings, earnings growth, return on
capital, profit before taxes, profit after taxes, economic value added
and increase in Fair Market Value of the Shares. The determination
as to whether such objectives have been achieved shall be made by the
Committee, and such determination shall be conclusive; provided,
however, that the period in which such performance is measured shall
be at least one year.
The Committee may in determining whether performance targets
have been met adjust the Company's financial results to exclude the
effect of unusual charges or income items or other events, including
acquisitions or dispositions of businesses or assets, restructurings,
reductions in force, currency fluctuations or changes in accounting,
which are distortive of financial results (either on a segment or
consolidated basis); provided, that for purposes of determining the
Performance Share Awards of Named Executive Officers, the Committee
shall exclude unusual items whose exclusion has the effect of
increasing income or earnings if such items constitute "extraordinary
items" under generally accepted accounting principles or are
significant unusual items. In addition, the Committee will adjust its
calculations to exclude the effect on financial results of changes in
the Code or other tax laws, or the regulations relating thereto.
9.3 Payment. In the discretion of the Committee, the amount
-------
payable when a Performance Share Award is earned may be settled in
cash, by the grant of Common Stock or a combination of cash and Common
Stock. The aggregate Fair Market Value of the Common Stock received
by the Participant pursuant to a Performance Share Award, together
with any cash paid to the Participant, shall be equal to the aggregate
Fair Market Value, on the date the Performance Shares are earned, of
the number of Shares of Common Stock equal to each Performance Share
earned. A fractional Share will not be deliverable when a Performance
Share Award is earned, but a cash payment will be made in lieu
thereof.
9.4 Shareholder Rights. No Participant shall have, as a result
------------------
of receiving a Performance Share Award, any rights as a shareholder
until and to the extent that the Performance Shares are earned and
Common Stock is transferred to such Participant. If the Agreement so
provides, a Participant may receive a cash payment equal to the
dividends that would have been payable with respect to the number of
Shares of Common Stock covered by the Award between (a) the date that
the Performance Shares are awarded and (b) the date that a transfer of
Common Stock to the Participant, cash settlement, or combination
thereof is made pursuant to the Performance Share Award. A
Participant may not sell, transfer, pledge, exchange, hypothecate, or
otherwise dispose of a Performance Share Award or the right to receive
Common Stock thereunder other than by will or the laws of descent and
distribution. After a Performance Share Award is earned and paid in
Common Stock, a Participant will have all the rights of a shareholder
with respect to the Common Stock so awarded.
ARTICLE 10. BENEFICIARY DESIGNATION
To the extent applicable, each Participant under the Plan may,
from time to time, name any beneficiary or beneficiaries (who may be
-12-<PAGE>
<PAGE>
named contingently or successively) to whom any benefit under the Plan
is to be paid in case of his or her death before he or she receives
any or all of such benefit. Each such designation shall revoke all
prior designations by the same Participant, shall be in a form
prescribed by the Company and shall be effective only when filed by
the Participant, in writing, with the Company during the Participant's
lifetime. In the absence of any such designation, benefits remaining
unpaid at the Participant's death shall be paid to the Participant's
estate. If required, the spouse of a married Participant domiciled in
a community property jurisdiction shall join in any designation of a
beneficiary or beneficiaries other than the spouse.
ARTICLE 11. DEFERRALS
The Committee may permit a Participant to defer to another plan
or program such Participant's receipt of Shares or cash that would
otherwise be due to such Participant by virtue of the exercise of an
Option, the vesting of Restricted Stock, or the earning of a
Performance Share Award. If any such deferral election is required or
permitted, the Committee shall, in its sole discretion, establish
rules and procedures for such payment deferrals.
ARTICLE 12. RIGHTS OF EMPLOYEES
12.1 Employment. Nothing in the Plan shall interfere with or
----------
limit in any way the right of the Company or a Subsidiary to terminate
any Participant's employment by, or performance of services for, the
Company at any time, nor confer upon any Participant any right to
continue in the employ or service of the Company or a Subsidiary. For
purposes of the Plan, transfer of employment of a Participant between
the Company and any one of its Subsidiaries (or between Subsidiaries)
shall not be deemed a termination of employment.
12.2 Participation. No Employee shall have the right to be
-------------
selected to receive an Award under this Plan, or, having been so
selected, to be selected to receive a future Award.
ARTICLE 13. CHANGE IN CONTROL
13.1 Definition. For purposes of the Plan, a "Change in
----------
Control" means any of the following events:
(a) The acquisition (other than from the Company) by any
Person of Beneficial Ownership of thirty-five percent
(35%) or more of the combined voting power of the
Company's then outstanding voting securities; provided,
however, that for purposes of this SECTION 13.1, Person
shall not include any person who on the date hereof
owns 10% or more of the Company's outstanding
securities, and a Change in Control shall not be deemed
to occur solely because thirty-five percent (35%) or
more of the combined voting power of the Company's then
outstanding securities is acquired by (i) a trustee or
other fiduciary holding securities under one or more
employee benefit plans maintained by the Company or any
of its subsidiaries, or (ii) any corporation, which,
immediately prior to such acquisition, is owned
directly or indirectly by the shareholders of the
Company in the same proportion as their ownership of
stock in the Company immediately prior to such
acquisition.
-13-<PAGE>
<PAGE>
(b) Approval by shareholders of the Company of (1) a merger
or consolidation involving the Company if the
shareholders of the Company, immediately before such
merger or consolidation do not, as a result of such
merger or consolidation, own, directly or indirectly,
more than fifty percent (50%) of the combined voting
power of the then outstanding voting securities of the
corporation resulting from such merger or consolidation
in substantially the same proportion as their ownership
of the combined voting power of the voting securities
of the Company outstanding immediately before such
merger or consolidation, or (2) a complete liquidation
or dissolution of the Company or an agreement for the
sale or other disposition of all or substantially all
of the assets of the Company.
(c) A change in the composition of the Board such that the
individuals who, as of the Effective Date, constitute
the Board (such Board shall be hereinafter referred to
as the "Incumbent Board") cease for any reason to
constitute at least a majority of the Board; provided,
however, for purposes of this SECTION 13.1 that any
individual who becomes a member of the Board subsequent
to the Effective Date whose election, or nomination for
election by the Company's shareholders, was approved by
a vote of at least a majority of those individuals who
are members of the Board and who were also members of
the Incumbent Board (or deemed to be such pursuant to
this proviso) shall be considered as though such
individual were a member of the Incumbent Board; but,
provided, further, that any such individual whose
initial assumption of office occurs as a result of
either an actual or threatened election contest (as
such terms are used in Rule 14a-11 of Regulation 14A
promulgated under the Exchange Act, including any
successor to such Rule), or other actual or threatened
solicitation of proxies or consents by or on behalf of
a Person other than the Board, shall not be so
considered as a member of the Incumbent Board.
13.2 Limitation on Awards. Notwithstanding any other provisions
--------------------
of the Plan and unless provided otherwise in the Agreement, if the
right to receive or benefit from any Award under this Plan, either
alone or together with payments that a Participant has the right to
receive from the Company or a Subsidiary, would constitute a
"parachute payment" (as defined in Section 280G of the Code), all such
payments shall be reduced to the largest amount that will result in no
portion being subject to the excise tax imposed by Section 4999 of the
Code.
ARTICLE 14. AMENDMENT, MODIFICATION AND TERMINATION
14.1 Amendment, Modification and Termination. The Board may, at
---------------------------------------
any time and from time to time, alter, amend, suspend or terminate the
Plan in whole or in part; provided, that, unless approved by the
holders of a majority of the total number of Shares of the Company
represented and voted at a meeting at which a quorum is present, no
amendment shall be made to the Plan if such amendment would (a)
materially modify the eligibility requirements provided in ARTICLE 5;
-14-<PAGE>
<PAGE>
(b) increase the total number of Shares (except as provided in SECTION
4.3) which may be granted under the Plan; (c) extend the term of the
Plan; or (d) amend the Plan in any other manner which the Board, in
its discretion, determines should become effective only if approved by
the shareholders even if such shareholder approval is not expressly
required by the Plan or by law.
14.2 Awards Previously Granted. No termination, amendment or
-------------------------
modification of the Plan shall adversely affect in any material way
any Award previously granted under the Plan, without the written
consent of the Participant holding such Award. The Committee shall,
with the written consent of the Participant holding such Award, have
the authority to cancel Awards outstanding and grant replacement
Awards therefor.
14.3 Compliance With Code Section 162(m). At all times when the
-----------------------------------
Committee determines that compliance with Code Section 162(m) is
required or desired, all Awards granted under this Plan to Named
Executive Officers shall comply with the requirements of Code Section
162(m). In addition, in the event that changes are made to Code
Section 162(m) to permit greater flexibility with respect to any Award
or Awards under the Plan, the Committee may, subject to this ARTICLE
14, make any adjustments it deem appropriate.
ARTICLE 15. WITHHOLDING
15.1 Tax Withholding. The Company shall have the power and the
---------------
right to deduct or withhold, or require a Participant to remit to the
Company, an amount sufficient to satisfy federal, state and local
taxes (including the Participant's FICA obligation) required by law to
be withheld with respect to any taxable event arising in connection
with an Award under this Plan.
15.2 Share Withholding. With respect to withholding required
-----------------
upon the exercise of Options, or upon any other taxable event arising
as a result of Awards granted hereunder which are to be paid in the
form of Shares, Participants may elect, subject to the approval of the
Committee, to satisfy the withholding requirement, in whole or in
part, by having the Company withhold Shares having a Fair Market Value
on the date the tax is to be determined equal to the minimum statutory
total tax which could be imposed on the transaction. All elections
shall be irrevocable, made in writing, signed by the Participant, and
elections by Insiders shall additionally comply with all legal
requirements applicable to Share transactions by such Participants.
ARTICLE 16. INDEMNIFICATION
Each person who is or shall have been a member of the Committee,
or the Board, shall be indemnified and held harmless by the Company
against and from any loss, cost, liability or expense that may be
imposed upon or reasonably incurred by him or her in connection with
or resulting from any claim, action, suit or proceeding to which he or
she may be a party or in which he or she may be involved by reason of
any action taken or failure to act under the Plan and against and from
any and all amounts paid by him or her in settlement thereof, with the
Company's approval, or paid by him in satisfaction of any judgment in
-15-<PAGE>
<PAGE>
any such action, suit or proceeding against him, provided he shall
give the Company an opportunity, at its own expense, to handle and
defend the same before he undertakes to handle and defend it on his
own behalf. The foregoing right of indemnification shall be in
addition to any other rights of indemnification to which such persons
may be entitled under the Company's Articles of Incorporation or
Bylaws, as a matter of law, or otherwise, or any power that the
Company may have to indemnify them or hold them harmless.
ARTICLE 17. SUCCESSORS
All obligations of the Company under the Plan, with respect to
Awards granted hereunder, shall be binding on any successor to the
Company, whether the existence of such successor is the result of a
direct or indirect purchase, merger, consolidation or otherwise, of
all or substantially all of the business and/or assets of the Company.
ARTICLE 18. LEGAL CONSTRUCTION
18.1 Gender and Number. Except where otherwise indicated by the
-----------------
context, any masculine term used herein shall also include the
feminine; the plural shall include the singular and the singular shall
include the plural.
18.2 Severability. If any provision of the Plan shall be held
------------
illegal or invalid for any reason, the illegality or invalidity shall
not affect the remaining parts of the Plan, and the Plan shall be
construed and enforced as if the illegal or invalid provision had not
been included.
18.3 Requirements of Law. The granting of Awards and the
-------------------
issuance of Shares under the Plan shall be subject to all applicable
laws, rules and regulations, and to such approvals by any governmental
agencies or national securities exchanges as may be required.
18.4 Regulatory Approvals and Listing. The Company shall not be
--------------------------------
required to issue any certificate or certificates for Shares under the
Plan prior to (i) obtaining any approval from any governmental agency
which the Company shall, in its discretion, determine to be necessary
or advisable, (ii) the admission of such shares to listing on any
national securities exchange or Nasdaq on which the Company's Shares
may be listed, and (iii) the completion of any registration or other
qualification of such Shares under any state or federal law or ruling
or regulation of any governmental body which the Company shall, in its
sole discretion, determine to be necessary or advisable.
Notwithstanding any other provision set forth in the Plan, if required
by the then-current Section 16 of the Exchange Act, any "derivative
security" or "equity security" offered pursuant to the Plan to any
Insider may not be sold or transferred for at least six (6) months
after the date of grant of such Award. The terms "equity security"
and "derivative security" shall have the meanings ascribed to them in
the then-current Rule 16(a) under the Exchange Act.
18.5 Securities Law Compliance. With respect to 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 provisions of the Plan or action by
the Committee fails to so comply, it shall be deemed null and void, to
the extent permitted by law and deemed advisable by the Committee.
18.6 Governing Law. To the extent not preempted by Federal law,
-------------
the Plan, and all agreements hereunder, shall be construed in
accordance with and governed by the laws of the State of Georgia.
-16-<PAGE>
<PAGE>
AS APPROVED BY THE BOARD OF DIRECTORS OF UNITED AMERICAS
BANKSHARES, INC. ON APRIL 21, 1999.
UNITED AMERICAS BANKSHARES, INC.
By: /s/ Vincent D. Cater
Vincent D. Cater, President
-17-
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (this "Agreement") is entered into and
effective as of the 19th day of April, 1999, by and between
UNITED AMERICA'S BANCSHARES, INC., a Georgia corporation (the
"Company"), and The Bankers Bank (the "Escrow Agent").
W I T N E S S E T H:
WHEREAS, the Company proposes to offer and sell (the "Offering")
up to 1,200,000 shares of Common Stock, $0 par value per share (the
"Shares"), to investors at $10.00 per Share pursuant to a registered
public offering; and
WHEREAS, the Company desires to establish an escrow for funds
forwarded by subscribers for Shares, and the Escrow Agent is willing
to serve as Escrow Agent upon the terms and conditions herein set
forth.
NOW, THEREFORE, in consideration of the premises and other good
and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto agree as follows:
1. DEPOSIT WITH ESCROW AGENT.
-------------------------
(a) The Escrow Agent agrees that it will from time to time
accept, in its capacity as escrow agent, subscription funds for the
Shares (the "Escrowed Funds") received by it from subscribers or from
the Company when it has received checks from subscribers. All checks
shall be made payable to the Escrow Agent. If any check does not
clear normal banking channels in due course, the Escrow Agent will
promptly notify the Company. Any check which does not clear normal
banking channels and is returned by the drawer's bank to Escrow Agent
will be promptly turned over to the Company along with all other
subscription documents relating to such check. Any check received
that is made payable to a party other than the Escrow Agent shall be
returned to the Company for return to the proper party. The company
in its sole and absolute discretion may reject any subscription for
shares for any reason and upon such rejection it shall notify and
instruct the Escrow Agent in writing to return the Escrowed Funds by
check made payable to the subscriber. If the Company rejects or
cancels any subscription for any reason the Company will retain any
interest earned on the Escrowed Funds to help defray organizational
costs.
(b) Subscription agreements (the "Subscription Documents") for
the Shares shall be reviewed for accuracy by the Company and,
immediately thereafter, the Company shall deliver to the Escrow Agent
the following information: (i) the name and address of the subscriber;
(ii) the number of Shares subscribed for by such subscriber; (iii) the
subscription price paid by such subscriber; (iv) the subscriber's tax
identification number certified by such subscriber; and (v) a copy of
the subscription agreement.
2. INVESTMENT OF ESCROWED FUNDS. Upon collection of each check
----------------------------
by the Escrow Agent, the Escrow Agent shall invest the funds in
deposit accounts or certificates of deposit which
<PAGE>
are fully insured by the Federal Deposit Insurance Corporation or
another agency of the United States government, short-term securities
issued or fully guaranteed by the United States government, federal
funds, or such other investments as the Escrow Agent and the Company
shall agree. The Company shall provide the Escrow Agent with
instructions from time to time concerning in which of the specific
investment instruments described above the Escrowed Funds shall be
invested, and the Escrow Agent shall adhere to such instructions.
Unless and until otherwise instructed by the Company, the Escrow Agent
shall by means of a "Sweep" or other automatic investment program
invest the Escrowed Funds in blocks of $10,000 in federal funds.
Interest and other earnings shall start accruing on such funds as soon
as such funds would be deemed to be available for access under
applicable banking laws and pursuant to the Escrow Agent's own banking
policies.
3. Distribution of Escrowed Funds. The Escrow Agent shall
------------------------------
distribute the Escrowed Funds in the amounts, at the times, and upon
the conditions hereinafter set forth in this Agreement.
(a) If at any time on or prior to the expiration date of the
offering as described in the prospectus relating to the offering, (the
"Closing Date"), (i) the Escrow Agent has certified to the Company in
writing that the Escrow Agent has received at least $12,000,000 in
Escrowed Funds, and (ii) the Escrow Agent has received a certificate
from the President or the Chairman of the Board of the Company that
all other conditions to the release of funds as described in the
Company's Registration Statement filed with the Securities and
Exchange Commission pertaining to the public offering have been met,
then the Escrow Agent shall deliver the Escrowed Funds and any
interest earned thereon to the Company to the extent such Escrowed
Funds are collected funds. If any portion of the Escrowed Funds are
not collected funds, then the Escrow Agent shall notify the Company of
such facts and shall distribute such funds to the Company only after
such funds become collected funds. For purposes of this Agreement,
"collected funds" shall mean all funds received by the Escrow Agent
which have cleared normal banking channels.
(b) In the event that the Escrow Agent (a) shall not have
received, prior to termination of the offering, Subscription Documents
executed by subscribers agreeing to purchase at least 1,200,000 shares
of Company common stock and Escrowed Funds in the amount of at least
$12,000,000 with respect thereto, or (b) shall have received a written
notice from the Company that it is terminating the offering and this
Escrow Agreement, then the Escrow Agent shall return all Escrowed
Funds then held by it under this Escrow Agreement, with any interest
accrued thereon to the respective subscribers at the address indicated
on the Subscription Documents, or as such subscribers may otherwise
direct, together with the corresponding executed Subscription
Documents. After the distribution of all Subscription Documents and
Escrowed Funds in accordance with the terms of this Section 3(b),
except for the provisions of Section 5(b) hereof, this Escrow
Agreement shall terminate.
For purposes of Paragraph 3(b) above, the specific allocations of
net profits attributable to each subscriber shall be determined by the
Company as follows: each subscriber's allocated share of earnings on
the Escrowed Funds, after deducting your fees, if any, shall be that
fraction (i) the numerator of which is the dollar amount of such
subscriber's accepted subscription multiplied by the number of days
between the date of acceptance of the purchaser's subscription and the
date of the offering's termination, inclusive (the subscriber's "Time
2<PAGE>
<PAGE>
Subscription Factor"), and (ii) the denominator of which is the aggregate Time
Subscription Factors of all purchasers depositing Escrowed Funds in the Escrow
Account.
4. FEE OF ESCROW AGENT. The escrow account will accrue a
-------------------
service charge of $15.00 per month. In addition, a $20.00 per check
fee will be charged if the escrow account has to be refunded due to a
failure to complete the subscription. All of these fees are payable
upon the release of the Escrowed Funds, and the Escrow Agent is hereby
authorized to deduct such fees from the Escrowed Funds prior to any
release thereof pursuant to Section 3 hereof.
5. LIABILITY OF ESCROW AGENT.
-------------------------
(a) In performing any of its duties under the Agreement, or upon
the claimed failure to perform its duties hereunder, the Escrow Agent
shall not be liable to anyone for any damages, losses or expenses
which it may incur as a result of the Escrow Agent so acting, or
failing to act; provided, however, the Escrow Agent shall be liable
for damages arising out of its willful default or misconduct or its
gross negligence under this Agreement. Accordingly, the Escrow Agent
shall not incur any such liability with respect to (i) any action
taken or omitted to be taken in good faith upon advice of its counsel
or counsel for the Company which is given with respect to any
questions relating to the duties and responsibilities of the Escrow
Agent hereunder ; or (ii) any action taken or omitted to be taken in
reliance upon any document, including any written notice or
instructions provided for this Escrow Agreement, not only as to its
due execution and to the validity and effectiveness of its provisions
but also as to the truth and accuracy of any information contained
therein, if the Escrow Agent shall in good faith believe such document
to be genuine, to have been signed or presented by a proper person or
persons, and to conform with the provisions of this Agreement.
(b) The Company agrees to indemnify and hold harmless the Escrow
Agent against any and all losses, claims, damages, liabilities and
expenses, including, without limitation, reasonable costs of
investigation and counsel fees and disbursements which may be imposed
by the Escrow Agent or incurred by it in connection with its
acceptance of this appointment as Escrow Agent hereunder or the
performance of its duties hereunder, including, without limitation,
any litigation arising from this Escrow Agreement or involving the
subject matter thereof; except, that if the Escrow Agent shall be
found guilty of willful misconduct or gross negligence under this
agreement, then, in that event, the Escrow agent shall bear all such
losses, claims, damages and expenses.
(c) If a dispute ensues between any of the parties hereto which,
in the opinion of the Escrow Agent, is sufficient to justify its doing
so, the Escrow Agent shall retain legal counsel of its choice as it
reasonably may deem necessary to advise it concerning its obligations
hereunder and to represent it in any litigation to which it may be a
part by reason of this Agreement. The Escrow Agent shall be entitled
to tender into the registry or custody of any court of competent
jurisdiction all money or property in its hands under the terms of
this Agreement, and to file such legal proceedings as it deems
appropriate, and shall thereupon by discharged from all further duties
under this Agreement. Any such legal action may be brought in any
such court as the Escrow Agent shall determine to have jurisdiction
thereof. In connection with such dispute, the Company shall indemnify the
Escrow Agent against its court costs and reasonable attorney's fees incurred.
<PAGE>
(d) The Escrow Agent may resign at any time upon giving thirty
(30) days written notice to the Company. If a successor escrow agent
3<PAGE>
<PAGE>
is not appointed by Company within thirty (30) days after notice of
resignation, the Escrow Agent may petition any court of competent
jurisdiction to name a successor escrow agent and the Escrow Agent
herein shall be fully relieved of all liability under this Agreement
to any and all parties upon the transfer of the Escrowed Funds and all
related documentation thereto, including appropriate information to
assist the successor escrow agent with the reporting of earnings of
the Escrowed Funds to the appropriate state and federal agencies in
accordance with the applicable state and federal income tax laws, to
the successor escrow agent designated by the Company appointed by the
court.
6. APPOINTMENT OF SUCCESSOR. The Company may, upon the
------------------------
delivery of thirty (30) days written notice appointing a successor
escrow agent to the Escrow Agent, terminate the services of the Escrow
Agent hereunder. In the event of such termination, the Escrow Agent
shall immediately deliver to the successor escrow agent selected by
the Company, all documentation and Escrowed Funds including interest
earnings thereon in its possession, less any fees and expenses due to
the Escrow Agent or required to be paid by the Escrow Agent to a third
party pursuant to this Agreement.
7. NOTICE. All notices, requests, demands and other
------
communications or deliveries required or permitted to be given
hereunder shall be in writing and shall be deemed to have been duly
given three days after having been deposited for mailing if sent by
registered mail, or certified mail return receipt requested, or
delivery by courier, to the respective addresses set forth below:
If to the subscribers for Shares: To their respective addresses
as specified in their
Subscription Agreements.
The Company: United America's Bancshares, Inc.
23 Stillhouse Road
Atlanta, GA 30339
Attention: Mr. Vince Cater
President
With a copy to: Kilpatrick and Stockton
1100 Peachtree Street, Suite 2800
Atlanta, GA 30309-4530
Attention: Mr. Reinaldo Pascual
Attorney at Law
The Escrow Agent: The Bankers Bank
2410 Paces Ferry Road
600 Paces Summit
Atlanta, GA 30339-4098
Attention: Mr. William R. Burkett
Senior Vice President
8. Representations of the Company. The Company hereby
------------------------------
acknowledges that the status of the Escrow Agent with respect to the
offering of the Shares is that of agent only for the limited purposes
herein set forth, and hereby agrees it will not represent or imply
that the Escrow Agent, by serving as the Escrow Agent hereunder or
4<PAGE>
<PAGE>
otherwise, has investigated the desirability or advisability in an
investment in the Shares, or has approved, endorsed or passed upon the
merits of the Shares, nor shall the Company use the name of the Escrow
Agent in any manner whatsoever in connection with the offer or sale of
the Shares, other than by acknowledgment that it has agreed to serve
as Escrow Agent for the limited purposes herein set forth.
9. General.
-------
(a) This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Georgia.
(b) The section headings contained herein are for reference
purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
(c) This Agreement sets forth the entire agreement and
understanding of the parties with regard to this escrow transaction
and supersedes all prior agreements, arrangements and understandings
relating to the subject matter hereof.
(d) This Agreement may be amended, modified, superseded or
canceled, and any of the terms or conditions hereof may be waived,
only by a written instrument executed by each party hereto or, in the
case of a waiver, by the party waiving compliance. The failure of any
part at any time or times to require performance of any provision
hereof shall in no manner affect the right at a later time to enforce
the same. No waiver in any one or more instances by any part of any
condition, or of the breach of any term contained in this Agreement,
whether by conduct or otherwise, shall be deemed to be, or construed
as, a further or continuing waiver of any such condition or breach, or
a waiver of any other condition or of the breach of any other terms of
this Agreement.
(e) This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
(f) This Agreement shall inure to the benefit of the parties
hereto and their respective administrators, successors and assigns.
The Escrow Agent shall be bound only by the terms of this Escrow
Agreement and shall not be bound by or incur any liability with
respect to any other agreement or understanding between the parties
except as herein expressly provided. The Escrow Agent shall not have
any duties hereunder except those specifically set forth herein.
(g) No interest in any part to this Agreement shall be assignable
in the absence of a written agreement by and between all the parties
to this Agreement, executed with the same formalities as this original
Agreement.
IN WITNESS WHEREOF, the parties have duly executed this Agreement
as the date first written above.
5<PAGE>
<PAGE>
COMPANY: ESCROW AGENT:
UNITED AMERICA'S BANCSHARES, INC. THE BANKERS BANK
By: /s/ Vince Cater By: /s/ Ken Vassey
Vince Cater Ken Vassey
President Senior Vice President
6
April 1, 1999
Mr. Vincent D. Cater
President and Chief Executive Officer
United Americas Bankshares, Inc.
23 Stillhouse Road
Atlanta, GA 30339
Dear Vince:
This letter sets forth your agreement ("Agreement") with GMA
Partners, Inc. ("GMA") as to the terms and conditions on which GMA
will provide financial advisory services to United Americas
Bankshares, Inc. (the "Company") and assist the Company, on a best
efforts basis, to raise approximately $12,000,000 in equity capital
through the sale of the Company's common stock (the "Transaction").
The proceeds of the Transaction will be used for the initial
capitalization of United Americas Bank, N.A. ("Bank"), a wholly owned
subsidiary of the Company.
During the term of this Agreement, GMA shall serve as the
Company's exclusive financial adviser and sales agent with respect to
the Transaction, although it is contemplated that officers and
directors of the Company may assist the Company in effecting the
Transaction. GMA will not, however, purchase any securities of the
Company for resale or otherwise act as an underwriter as that term is
defined in the Securities Act of 1933, as amended (the "Act"), in
connection with the Transaction.
The Company anticipates that the equity capital will be raised
through the sale of common shares of the Company commencing in April
of this year. The shares will be offered to investors via a
Registration Statement to be prepared by the Company and filed with
the Securities and Exchange Commission and state securities regulators
as required (the "Offering"). It is anticipated the Company's Board of
Directors and Board of Advisors, together with their Hispanic
contacts, will invest approximately fifty-one percent (51%) of the
funds required to complete the Transaction. Proceeds of the Offering
will be placed in escrow as described in the draft Registration
Statement prepared by the Company and delivered to GMA prior to
execution of this Agreement and released as described therein.
This Agreement shall become effective upon the execution hereof
by the Company. The term of this Agreement shall be four (4) months
from the date of the acceptance of this Agreement (the "Term"),
provided that GMA may continue to work with and solicit funds from
prospective investors contacted (as defined below) prior to the<PAGE>
<PAGE>
Vincent D. Cater
United Americas Bankshares, Inc.
April 1, 1999
Page 2
termination of this Agreement. This Agreement may be terminated by
either the Company or GMA after the four (4) months for any reason by
providing the other party five (5) business days written notice of its
election to terminate. The Company shall be liable for fees and
expense reimbursements as provided for in this Agreement and the
Company's indemnification obligations set forth herein shall survive
such termination. If the Company, or any successor thereof, Closes the
Transaction during the Term of this Agreement or receives money into
the escrow account within six (6) months after the Registration
Statement is initially filed with the Securities and Exchange
Commission from any party with which the Company, its officers,
directors, shareholders or GMA has had "contact " (as defined below)
concerning the proposed Transaction during the term of this Agreement;
then GMA shall be due and paid the Success Fee (as hereinafter
defined) upon the Closing of the Transaction. For the purpose of this
Agreement, "contact" is defined as meetings, telephonic or telecopier
communication, written communication or transmission of communication
or information by computer medium with or to prospective equity
investors.
I. PERFORMANCE OF SERVICES.
GMA agrees to provide the following services to the Company in
connection with the transaction:
(i) Serve as the exclusive financial advisor to the Company in
connection with all phases of the Offering;
(ii) Coordinate preparation of a list of potential investors for the
purpose of identifying and contacting target investors;
(iii) Act as sales agent in marketing the shares and assist the Company
in the Transaction on a best efforts basis; and
(iv) Perform other related activities reasonably requested by the
Company in regard to the Transaction.
GMA represents and warrants that it and its applicable agents and
employees have all requisite licenses and permits to perform its
obligations contained herein, and that it and its applicable agents
and employees are duly licensed, where such licensure is necessary or
appropriate, as a broker or dealer under Federal laws and under the
laws of each state where GMA will offer or sell the Company's
securities.
The Company agrees to provide to GMA, among other things, all
financial data, corporate records, and information requested or
reasonably required by GMA to provide its services outlined in this
Agreement. GMA shall have the right to rely upon the accuracy and
completeness of all information provided regarding the Company,
without the need for GMA to independently verify such accuracy or<PAGE>
<PAGE>
Vincent D. Cater
United Americas Bankshares, Inc.
April 1, 1999
Page 3
completeness. All information, including in any offering memorandum,
shall be provided by and be the responsibility of the Company.
II. COMPENSATION OF SERVICES
In consideration of services performed, the Company agrees to pay
or compensate GMA as follows:
a. Upon invoice, reimbursement for all reasonable documented
expenses incurred in connection with the performance of
GMA's services pursuant to this Agreement, including the
cost of legal counsel retained on our behalf. Expenses
shall primarily consist of, but are not limited to legal,
travel, delivery and data services as well as other related
communications expenses. Once expenses reach an aggregate
total of $30,000, GMA will seek the Company's approval
before accruing any additional expenses; provided, however,
legal fees will not exceed $20,000. It is anticipated that
the Company will pay for road show expenses directly and
that counsel retained by the Company will be responsible for
preparing the required offering materials.
The Company agrees to pay GMA and be responsible for the following
fees (the "Success Fee") upon payment to the Company of the funds in
escrow upon the termination of the Escrow Agreement as described in
the Registration Statement (the "Closing"):
b. If less than $10.5 million is transferred from the escrow account
to the company on the date of Closing (the "Closing Date"),
the Success Fee shall equal the product of $0.15 per share
times the number of shares sold by GMA retail brokers to
their retail clients and contacts, not including any shares
sold to GMA's partners, Board of Directors members, or
Advisory Board members.
c. If more than $10.5 million is deposited into the escrow account
on or prior to six (6) months from the acceptance of this
Agreement and the Closing occurs, the Success Fee shall
equal the lesser of: (i) the sum of $100,000 plus the
product of 2/15 times the amount deposited into the escrow
account above $10.5 million, or (ii) $300,000.
d. If $12 million is deposited into the escrow account within two
(2) months after the Registration Statement is initially
filed with the Securities and Exchange Commission and the
Closing occurs, the Success Fee will be increased by
$100,000.
<PAGE>
<PAGE>
Vincent D. Cater
United Americas Bankshares, Inc.
April 1, 1999
Page 4
e. If $12 million is deposited into the escrow account between two
months and four months after the Registration Statement is
initially filed with the Securities and Exchange Commission
and the Closing occurs, the Success Fee will be increased by
$50,000.
III. Indemnification
In the event that GMA becomes involved in any capacity in any
action, proceeding or investigation in connection with the performance
by GMA of the services contemplated by this letter, which involvement
is not a result of GMA's breach of GMA's representations and
warranties contained herein, gross negligence or willful malfeasance
in the performance of such services, the Company will, upon the
written request of GMA from time to time, reimburse GMA for its
reasonable legal and other expenses (including the reasonable cost of
any investigation and preparation) incurred in connection therewith.
The Company will also indemnify GMA against any losses, claims,
damages or liabilities to which it may become subject in connection
with the performance by GMA of the services contemplated by this
letter, except to the extent that any such loss, claim, damage,
liability or expense results from GMA's breach of GMA's
representations and warranties contained herein, gross negligence or
willful malfeasance in performing the services which are the subject
of this letter. If for any reason the foregoing indemnification is
unavailable to GMA or insufficient to hold GMA harmless, then the
Company shall contribute to the amount paid or payable by GMA as a
result of such loss, claim, damage or liability in such proportion as
is appropriate to reflect not only the relative benefits received by
the Company on the one hand and GMA on the other hand, but also the
relative fault of the Company and GMA, as well as any relative
equitable considerations, except that the Company shall not in any
event be responsible for any such loss, claim, damage or liability
resulting from GMA's breach of GMA's representations and warranties
contained herein, gross negligence or willful malfeasance in
performing the services which are the subject of this Agreement;
provided, however, that in no event shall the amount contributed by
GMA pursuant to this paragraph exceed the amount of fees actually
received by GMA under this Agreement. The Company's reimbursement,
indemnity and contribution obligations under this paragraph shall be
in addition to any liability which it may otherwise have, shall extend
upon the same terms and conditions to GMA's employees and controlling
persons (if any), and shall be binding upon and inure to the benefit
of any successors, assigns, heirs and personal representatives of GMA
and any such person. The Company agrees that neither GMA nor any of
its directors, agents, or affiliates shall have any liability to the
Company for any losses, damages, liabilities or expenses arising out
of the performance of services by GMA under this Agreement, unless it
is finally determined judicially that such losses, damages,
liabilities or expenses resulted directly from the breach of GMA's
representations and warranties contained herein, gross negligence or
willful malfeasance of GMA.
V. DISCLOSURE
<PAGE>
<PAGE>
Vincent D. Cater
United Americas Bankshares, Inc.
April 1, 1999
Page 5
Any financial or other advice or documentation rendered by GMA or
prepared by or on behalf of GMA pursuant to this Agreement shall not
be disclosed publicly in any manner without the prior consent of GMA.
All non-public information provided by the Company to GMA will be
considered to be confidential information and shall be maintained as
such by GMA until the same becomes known to third parties or the
public without release thereof by GMA.
The Company agrees to provide GMA, among other things, all
reasonable information requested or reasonably required by GMA or a
potential investor, including but not limited to, information
concerning projected financial results and contingent liabilities or
claims. The Company will advise GMA in a timely manner if in
management's judgment any material change, adverse or otherwise,
occurs in its business or finances during the term of this Agreement.
IV. PUBLIC NOTICE
Following the completion of a Transaction, the Company agrees
that GMA has the right to place advertisements in financial and other
newspapers and journals as GMA deems appropriate, describing its
services to the Company, provided that GMA shall submit copies of such
advertisements to the Company so that the Company may consent to the
form, content and timing of such advertisements. Such consent shall
not be unreasonably withheld or delayed.
V. ENTIRE AGREEMENT, ETC.
This Agreement sets forth the entire understanding of the parties
relating to the subject matter hereof and supersedes and cancels any
prior communications, understandings and agreements. This Agreement
cannot be modified or changed, nor can any of its provisions be
waived, except by written agreement executed by both parties hereto.
VI. GOVERNING LAW
This Agreement shall be governed by and construed in accordance
with the laws of the State of Georgia. The parties hereto agree to
submit to arbitration any action or dispute arising under this
Agreement or any action to enforce the terms hereof. Such arbitration
shall be determined pursuant to the procedure and rules as prescribed
and adopted by the National Association of Securities Dealers, Inc.
VII. SEVERABILITY
<PAGE>
<PAGE>
Vincent D. Cater
United Americas Bankshares, Inc.
April 1, 1999
Page 6
If any term, provision, covenant or restriction contained in this
Agreement, including Article III, is held by a court of competent
jurisdiction or other authority to be invalid, void, unenforceable or
against its regulatory policy, the remainder of the terms, provisions,
covenants and restrictions contained in this Agreement shall remain in
full force and effect and shall in no way be affected, impaired or
invalidated.
VIII. ACCEPTANCE
Please confirm your acceptance of the foregoing terms of the
Agreement by signing and then returning an executed original of the
Agreement whereupon it shall become a binding agreement between the
Company and GMA. The terms of this Agreement will expire on April 3,
1999, unless accepted by you prior to such date.
Very truly yours,
GMA Partners, Inc.
By: __________________________
Victor Rodriguez,
Managing Director
Accepted and agreed to as of April ____, 1999:
United Americas Bankshares, Inc.
By: ________________________
Vincent D. Cater, President and Chief Executive Officer
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We have issued our report dated April 12, 1999, accompanying the
financial statements of United Americas Bankshares, Inc. contained in
the Registration Statement and Prospectus. We consent to the use of
the aforementioned report in the Registration Statement and
Prospectus, and to the use of our name as it appears under the caption
"Experts."
/s/ PORTER KEADLE MOORE, LLP
Atlanta, Georgia
April 29, 1999
<TABLE> <S> <C>
<ARTICLE> 9
<LEGEND>
The financial statements presented in the Form SB-2 are from the date of
inception (May 14, 1998) to March 31, 1999 of the Registrant.
</LEGEND>
<CIK> 0001084915
<NAME> UNITED AMERICAS BANKSHARES, INC.
<S> <C>
<PERIOD-TYPE> OTHER
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> MAY-14-1998
<PERIOD-END> MAR-31-1999
<CASH> 11,434
<INT-BEARING-DEPOSITS> 0
<FED-FUNDS-SOLD> 0
<TRADING-ASSETS> 0
<INVESTMENTS-HELD-FOR-SALE> 0
<INVESTMENTS-CARRYING> 0
<INVESTMENTS-MARKET> 0
<LOANS> 0
<ALLOWANCE> 0
<TOTAL-ASSETS> 89,709
<DEPOSITS> 0
<SHORT-TERM> 320,000
<LIABILITIES-OTHER> 0
<LONG-TERM> 0
0
0
<COMMON> 0
<OTHER-SE> (230,291)
<TOTAL-LIABILITIES-AND-EQUITY> 89,709
<INTEREST-LOAN> 0
<INTEREST-INVEST> 0
<INTEREST-OTHER> 0
<INTEREST-TOTAL> 0
<INTEREST-DEPOSIT> 0
<INTEREST-EXPENSE> 0
<INTEREST-INCOME-NET> 0
<LOAN-LOSSES> 0
<SECURITIES-GAINS> 0
<EXPENSE-OTHER> 230,291
<INCOME-PRETAX> (230,291)
<INCOME-PRE-EXTRAORDINARY> (230,291)
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (230,291)
<EPS-PRIMARY> 0
<EPS-DILUTED> 0
<YIELD-ACTUAL> 0
<LOANS-NON> 0
<LOANS-PAST> 0
<LOANS-TROUBLED> 0
<LOANS-PROBLEM> 0
<ALLOWANCE-OPEN> 0
<CHARGE-OFFS> 0
<RECOVERIES> 0
<ALLOWANCE-CLOSE> 0
<ALLOWANCE-DOMESTIC> 0
<ALLOWANCE-FOREIGN> 0
<ALLOWANCE-UNALLOCATED> 0
</TABLE>
FINAL SUBSCRIPTION AGREEMENT
United Americas Bankshares, Inc.
3789 Roswell Road
Atlanta, Georgia 30342
Ladies and Gentlemen:
I hereby subscribe to purchase the number of shares of United
Americas Bankshares, Inc.'s common stock indicated below.
I have received a copy of United Americas Bankshares, Inc.'s
final prospectus, dated __________, 1999. I understand that my
purchase of United Americas Bankshares, Inc.'s common stock involves
significant risk, as described under "Risk Factors" in the final
prospectus. I also understand that no federal or state agency has
made any finding or determination regarding the fairness of United
Americas Bankshares, Inc.'s offering of common stock, the accuracy or
adequacy of the final prospectus, or any recommendation or endorsement
concerning an investment in the common stock.
I am acquiring the shares for investment for my own account and
am not acquiring the shares with a view toward, or for resale in
connection with, any distribution within twelve months of the purchase
thereof. I have no understanding, agreement or arrangement to sell,
distribute, partition, participate or otherwise transfer or assign any
part of the shares to any other person, firm or corporation, and I
have no obligation, indebtedness or commitment that would compel me to
secure funds by the sale of the shares.
I enclose my check in the amount of $10.00 multiplied by the
number of shares I wish to buy. My check is made payable to "The
Bankers Bank - Escrow Agent for United Americas Bankshares, Inc."
When United Americas Bankshares, Inc. receives this agreement and
my check, this subscription will be final and binding and will be
irrevocable until the offering is closed.
Number of Shares
(minimum 100 shares): ___________
Total Subscription Price
(at $10.00 per share): ___________
___________________________________________
Please PRINT or TYPE exact name(s) in which
the shares should be registered
(over)
<PAGE>
A-1
SUBSTITUTE W-9
Under the penalties of perjury, I certify that: (1) the Social
Security Number or Taxpayer Identification Number given below is
correct; and (2) I am not subject to backup withholding. INSTRUCTION:
YOU MUST CROSS OUT #2 ABOVE IF YOU HAVE BEEN NOTIFIED BY THE INTERNAL
REVENUE SERVICE THAT YOU ARE SUBJECT TO BACKUP WITHHOLDING BECAUSE OF
UNDERREPORTING INTEREST OR DIVIDENDS ON YOUR TAX RETURN.
____________________________ ______________________________________
Date Signature(s)*
____________________________ ______________________________________
Street Address Please indicate the form of
ownership desired for the
shares (individual, joint
City/State/Zip Code tenants with right of
survivorship, tenants in
common, trust, corporation,
partnership, custodian, etc.)
____________________________
Area Code/Telephone Number
____________________________
Email Address, if available
____________________________
Social Security or Federal
Taxpayer Identification No.
*When signing as attorney, trustee, administrator or guardian, please
give your full title as such. If a corporation, please sign in full
corporate name by president or other authorized officer. In case of
joint tenants, each joint owner must sign.
TO BE COMPLETED BY UNITED AMERICAS BANKSHARES, INC.
Accepted as of __________________, 1999, as to _______________ shares.
UNITED AMERICAS BANKSHARES, INC.
By: _______________________________
Signature
_______________________________
Print Name
