As filed with the Securities and Exchange Commission on January 27, 1998.
File No. 333-________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
JW CHARLES FINANCIAL SERVICES, INC.
(Exact Name of Issuer as Specified in its Charter)
Florida 58-1545984
- ------------------------------- ------------------------
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
980 North Federal Highway, Suite 120
Boca Raton, Florida 33432
(561) 338-2600
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(Address and Telephone Number of Issuer's Principal Executive Offices)
JW Charles Financial Services, Inc. 1997 Employee Stock Purchase Plan
- ---------------------------------------------------------------------
((Full Title of the Plans)
Joel E. Marks
Vice Chairman and Chief Financial Officer
1117 Perimeter Center West, Suite 500E
Atlanta, GA 30338
(770) 399-8805
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(Name, Address and Telephone Number, Including Area Code, of
Agent for Service)
Copies to:
W. Randy Eaddy, Esq.
KILPATRICK STOCKTON LLP
1100 Peachtree Street, N.E.
Atlanta, Georgia 30309-4530
(404) 815-6500
<TABLE>
<CAPTION>
Calculation of Registration Fee
------------------------------------------------------------------------------------------------------------------------------
Proposed Maximum Proposed Maximum
Title of Securities Amount to Offering Price Aggregate Amount of
to be Registered be Registered Per Share <F1> Offering Price Registration Fee
------------------------------------------------------------------------------------------------------------------------------
<C> <C> <C> <C> <C>
Common Stock 400,000 shares $13.13 $5,252,000 $1,549.34
- ------------------------------------------------------------------------------------------------------------------------------
<FN>
<F1> Determined in accordance with Rule 457(c) under the
Securities Act of 1933, based on $13.13, the average of the high
and low prices on the American Stock Exchange on January 21, 1998.
</FN>
/TABLE
<PAGE>
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents are incorporated by
reference into this Registration Statement and are deemed to be a
part hereof from the date of the filing of such documents:
(1) The Company's Annual Report on Form 10-K for the fiscal
year ended December 31, 1996.
(2) The Proxy Statement dated April 30, 1997 filed by the
Company pursuant to Section 14(a) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")
for the Annual Meeting of Stockholders held June 10,
1997, and all other reports filed by the Company
pursuant to Section 13(a) or 15(d) of the Exchange Act,
since the filing of the Proxy Statement.
(3) The description of the Common Stock contained in the
Company's registration statement on Form 8-A, dated
April 30, 1997, including all amendments or reports
filed for the purpose of updating such description.
(4) All other documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Exchange Act prior to the filing of a post-effective
amendment which indicates that all securities offered
pursuant to this Registration Statement have been sold
or which deregisters all securities that remain unsold.
ITEM 4. DESCRIPTION OF SECURITIES
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Registrant's Restated Articles of Incorporation provide
for indemnification of directors to the fullest extent permitted
by Florida law and, to the extent permitted by such law,
eliminate or limit the personal liability of directors to the
Registrant and its shareholders for monetary damages for certain
breaches of fiduciary duty and the duty of care. Insofar as
indemnification for liabilities under the Securities Act of 1933,
as amended (the "Securities Act") may be permitted to directors,
officers, or persons controlling the Registrant pursuant to the
foregoing provisions, the Registrant has been informed that, in
the opinion of the Commission, such indemnification is against
public policy as expressed in the Securities Act and is therefore
unenforceable. Pursuant to its Bylaws, the Registrant may
indemnify its officers, employees, agents, and other persons to
the fullest extent permitted by Florida law.
II-1
<PAGE>
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
The exhibits included as part of this Registration
Statement are as follows:
Exhibit Number Description
- -------------- -----------
4 JW Charles Financial Services, Inc.
1997 Employee Stock Purchase Plan
5 Opinion and Consent of Kilpatrick
Stockton LLP, counsel to the
Registrant
23(a) Consent of Price Waterhouse LLP
23(b) Consent of Ernst & Young LLP
ITEM 9. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes: (1)
to file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement,
to include any material information with respect to the plan of
distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement; (2) that, for the purpose of determining
any liability under the Securities Act, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof; (3) to remove from registration by
means of a post-effective amendment any of the securities being
registered which remain unsold at the termination of the
offering.
(b) The undersigned Registrant hereby undertakes that,
for purposes of determining any liability under the Securities
Act, each filing of the Registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act that is
incorporated by reference in the Registration Statement shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
II-2
<PAGE>
(c) Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors, officers
and controlling persons of the Registrant pursuant to the
foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities
(other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the
Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the
Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-8 and
has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City
of Atlanta, State of Georgia, on January 22, 1998.
JW CHARLES FINANCIAL SERVICES, INC.
By: /s/ Joel E. Marks
Joel E. Marks
Vice-Chairman and Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Marshall T.
Leeds and Joel E. Marks as attorneys-in-fact, having the power of
substitution, for them in any and all capacities, to sign any
amendments to this Registration Statement on Form S-8 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 said
attorneys-in-fact, or their substitute or substitutes, may do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this
Registration Statement has been signed by the following persons
in the capacities indicated on January 22, 1998.
/s/ Marshall T. Leeds President, Chief Executive Officer and
MARSHALL T. LEEDS Chairman of the Board of Directors
(Principal Executive Officer)
/s/ Joel E. Marks Vice Chairman, Chief Financial Officer,
JOEL E. MARKS Secretary and Director (Principal
Financial and Accounting Officer)
/s/ Wm. Dennis Ferguson
WM. DENNIS FERGUSON Director
/s/ Gregg S. Glaser Director
GREGG S. GLASER
/s/ Stephen W. Cropper Director
STEPHEN W. CROPPER
/s/ John R. Faiella Director
JOHN R. FAIELLA
II-4
<PAGE>
/s/ John P. Robilotto Director
JOSEPH P. ROBILOTTO
/s/ Jerome Siegel Director
JEROME SIEGEL
/s/ Curtis Sykora Director
CURTIS SYKORA
/s/ Michael B. Weinberg Director
MICHAEL B. WEINBERG
II-5
<PAGE>
EXHIBIT INDEX
TO
REGISTRATION STATEMENT ON FORM S-8
Exhibit Number Description
4 JW Charles Financial Services, Inc. 1997
Employee Stock Purchase Plan.
5 Opinion and Consent of Kilpatrick Stockton
LLP, counsel to the Registrant
23(a) Consent of Price Waterhouse LLP
23(b) Consent of Ernst & Young LLP
JW CHARLES FINANCIAL SERVICES, INC
1997 EMPLOYEE STOCK PURCHASE PLAN
1. PURPOSE. JW Charles Financial Services, Inc., a Florida
corporation (the "Company"), hereby adopts the JW Charles Financial
Services, Inc. 1997 Employee Stock Purchase Plan (the "Plan"). The
purpose of the Plan is to provide an opportunity for the employees of the
Company and its qualified subsidiaries to purchase shares of the common
stock, par value $.001 per share ("Common Stock"), of the Company through
voluntary contributions, including automatic periodic payroll deductions,
thereby attracting, retaining and rewarding such persons and
strengthening the mutuality of interest between such persons and the
Company's stockholders.
2. SHARES SUBJECT TO PLAN. An aggregate of 400,000 shares (the
"Shares") of Common Stock of the Company may be sold pursuant to the
Plan. Such Shares may be authorized but unissued Common Stock, treasury
shares or Common Stock reacquired by the Company or purchased in the open
market.
3. ADMINISTRATION. The Plan shall be administered by the Board of
Directors of the Company or a committee (the "Committee") consisting of
not less than two directors of the Company appointed by the Board of
Directors, and, if the Board of Directors has determined that the Plan
shall comply with Rule 16b-3 promulgated under the Securities Exchange
Act of 1934, as amended, or any successor regulation ("Rule 16b-3"), none
of such Committee members shall participate in the Plan and each shall
qualify as a "non-employee director" within the meaning of Rule 16b-3.
The Committee is authorized, subject to the provisions of the Plan, to
establish such rules and regulations as it deems necessary for the proper
administration of the Plan and to make such determinations and
interpretations, and to take such action, in connection with the Plan and
any Shares made available hereunder as it deems necessary or advisable.
The Committee shall have the right to determine prior to any Offering
Period (as defined in Section 8 below) the maximum number of Shares which
may be offered during the Offering Period and the manner of allocating
the Shares among eligible employees.
All determinations and interpretations made by the Committee shall
be binding and conclusive on all participating employees (each a
"Participant") and their legal representatives. No member of the Board,
no member of the Committee and no employee of the Company or any
subsidiary shall be liable for any act or failure to act hereunder by any
other member or employee, or by any agent to whom duties in connection
with the administration of this Plan have been delegated or, except in
circumstances involving his or her bad faith, gross negligence or fraud,
for any act or failure to act by the member or employee.
4. ELIGIBILITY. All regular full and part-time employees of the
Company, and of each qualified subsidiary of the Company -- other than
(a) employees whose customary employment is 20 hours or less per week,
or whose customary employment is not for more than five months in any
<PAGE>
calendar year, and (b) any employee who, immediately after any purchase
of Shares, would own stock possessing 5% or more of the total combined
voting power or value of all classes of stock of the Company or of its
parent or subsidiary corporations -- shall be eligible to participate in
the Plan as of the first "Enrollment Date" (as defined in Section 5
below) immediately following the later of the eligible employee's initial
date of hire or the effective date of the Plan's adoption. For the
purposes of this Plan, the term "qualified subsidiary" means any
subsidiary of which 50% or more of the total combined voting power of all
classes of stock of which is owned by the Company or any other qualified
subsidiary on the first day of an Offering Period (as defined in Section
8). For purposes of this Section 4, the provisions of Section 424(d) of
the Internal Revenue Code of 1986, as amended (the "Code"), concerning
attribution of stock ownership shall apply in determining the stock
ownership of an employee, and the shares of Common Stock and any other
class of stock of the Company that an employee may purchase under
outstanding rights or options shall be treated as shares owned by the
employee.
For purposes of participation in the Plan, an employee on a leave of
absence shall be deemed to be an employee for the first 90 days of such
leave of absence, and such employee's employment shall be deemed to have
terminated at the close of business on the 90th day of such leave of
absence unless such employee shall have returned to regular full-time or
part-time employment (as the case may be) prior to the close of business
on such 90th day. Termination by the Company or a qualified subsidiary
of any employee's leave of absence, other than termination of such leave
of absence due to the employee's return to full-time or part-time
employment, shall also be treated as a termination of an employee's
employment for all purposes of the Plan and shall terminate such
employee's participation in the Plan and right to exercise any option to
purchase Common Stock granted under the Plan. The 90-day period referred
to in this Section 4 shall be extended to last day of the period of leave
during which the employee's right to return to employment is guaranteed
by statute or contract. No other individuals shall be eligible to
participate in the Plan, except the employees designated as eligible in
this Section 4.
5. PARTICIPATION. Prior to any "Enrollment Date", an eligible
employee may elect to participate in the Plan as of such date.
Enrollment Dates shall occur on the first day of each Offering Period (as
defined in Section 8). Any such election shall be made by completing and
delivering to the Company's Personnel Department (the "Department") an
enrollment and payroll deduction authorization form, prior to such
Enrollment Date, authorizing payroll deductions in such amounts as the
employee may request, but in no event less than any minimum nor more than
any maximum amounts specified from time to time by the Committee. During
an Offering Period, a Participant may at any time, but effective as of
the second immediately following payroll period, increase or decrease his
or her payroll deductions with respect to the payroll periods remaining
in the Offering Period by completing and delivering to the Department a
revised payroll deduction authorization form; PROVIDED THAT (a) changes
2<PAGE>
in payroll deductions shall not be permitted to the extent that they
would result in total payroll deductions below any minimum or above any
maximum amounts specified by the Committee; and (b) an eligible employee
who elects not to participate in the Plan through payroll deductions as
of any Enrollment Date may not participate in the Plan through payroll
deductions until the next Enrollment Date (at which time the filing of a
new election form in accordance with this Section 5 will be required).
The Committee may, in its discretion, limit the number of changes
permitted during any Offering Period and may establish earlier or later
effective dates for any such change.
In addition to payroll deductions, the Committee may allow, in its
sole discretion and subject to such terms and procedural requirements as
it may establish, for the delivery of payments by Participants directly
to the Committee or it designee, provided, however, that the total
payroll deductions and direct cash payments may not exceed any limits
specified by the Committee.
6. PAYROLL DEDUCTION AND CASH CONTRIBUTION ACCOUNTS. The Company
shall establish on its books and records a "Payroll Deduction Account"
for each Participant and shall credit to such account all payroll
deductions made on behalf of each Participant and all cash dividends paid
on Shares held in the Participant's Plan Share Account (as described in
Sections 10 and 11 below). No interest shall be credited to any Payroll
Deduction Account. All cash dividends paid on shares of Common Stock
held in a Participant's brokerage or Plan Share Account (as described in
Section 10 below) will be deposited into the Participant's Payroll
Deduction Account, and will be used to purchase Common Stock.
The Company may also establish on its books and records a separate
"Cash Contribution Account" for a Participant and credit to such account
any voluntary cash contributions that the Committee, in its sole
discretion, may permit to be made by the Participant during an Offering
Period. No interest shall be credited to any such Cash Contribution
Account.
7. WITHDRAWAL. The termination of a Participant's employment with
the Company or any qualified subsidiary of the Company will constitute a
withdrawal from the Plan. Payroll deductions on behalf of the
Participant will be discontinued commencing with the Participant's last
payroll period while still employed, and no periodic cash contributions
will be accepted following any such termination of employment. Any
payment to the Participant which is designated by the Company or
qualified subsidiaries as severance pay shall not be eligible for payroll
deductions under the Plan, and a Participant shall not be eligible to
make cash contributions to the Plan during any period in which he or she
is receiving severance pay. A non-terminated Participant may terminate
participation in the Plan during an Offering Period at any time by
completing and delivering a written notice to the Company. Upon receipt
of such notice, payroll deductions on behalf of the Participant shall be
discontinued commencing with the second immediately following payroll
period (or such earlier or later date as the Committee shall determine).
Amounts credited to the Payroll Deduction Account or Cash Contribution
Account of any Participant who withdraws or ceases to participate in the
3<PAGE>
Plan (including any employee who ceases to participate in the Plan for a
non-termination of employment reason (e.g., a prolonged leave of
absence)) shall be used to purchase Shares as described in Section 9
below. An eligible employee may resume participation in the Plan at the
next Enrollment Date, by filing a new election form in accordance with
Section 5.
8. OFFERING PERIODS; LIMITS ON RIGHTS TO PURCHASE. The Plan shall
be administered on the basis of consecutive three-month Offering Periods,
with a new Offering Period commencing on the first day (or, for periods
during which the Board of Directors has determined that the Plan shall
comply with Rule 16b-3, the first trading day occurring on or after the
first day) of each January, April, July and October during the term of
the Plan, or on such other date as the Committee shall determine, and
continuing thereafter to the end of such period, subject to termination
in accordance with Section 17 hereof. The first Offering Period
hereunder shall commence (subject to the Committee's discretion to
determine otherwise) on October 1, 1997 and shall end on December 31,
1997. "Trading day" shall mean a day on which the American Stock
Exchange is open for trading. The Committee shall have the power to
change the duration of Offering Periods (including the commencement dates
thereof) with respect to future offerings.
The last day (or trading day, for periods during which the Board of
Directors has determined that the Plan shall comply with Rule 16b-3) of
each Offering Period prior to the termination of the Plan (or such other
trading date as the Committee shall determine) shall constitute the
purchase date (the "Share Purchase Date") on which each Participant for
whom a Payroll Deduction Account or Cash Contribution Account has been
maintained shall purchase the number of Shares determined under Section
9(a). Notwithstanding the foregoing, the Company shall not permit the
exercise of any right to purchase Shares (a) by an employee who,
immediately after such purchase, would own shares possessing 5% or more
of the total combined voting power or value of all classes of stock of
the Company or its parent or subsidiary corporation or (b) which would
permit an employee's rights to purchase shares under this Plan, or under
any other qualified employee stock purchase plan maintained by the
Company or any parent or subsidiary of the Company, to accrue at a rate
in excess of $25,000 of the fair market value of such shares determined
at the time such rights are granted for each calendar year in which the
right is outstanding at any time. For the purposes of clause (a) of the
immediately preceding sentence, the provisions of Code Section 424(d)
concerning attribution of stock ownership shall apply in determining the
stock ownership of an employee, and the shares which an employee may
purchase under outstanding rights or options shall be treated as shares
owned by the employee.
On the first day of each Offering Period, each eligible employee
shall be deemed to have been granted a right to purchase shares of Common
Stock subject to the limitations herein, and such right shall be deemed
to have expired on the Share Purchase Date for such Offering Period;
provided that for each Offering Period, in no event can any employee
purchase more shares than a maximum equal to $25,000 divided by the fair
4<PAGE>
market value of the Shares on the first day of the Offering Period.
Notwithstanding the foregoing, no right may be exercised after the
earlier of the last day of the Offering Period for which the right was
issued or twenty-seven (27) months from the date such right is granted.
All outstanding rights granted under the Plan shall expire at such time
as the maximum aggregate number of shares of Common Stock available under
the Plan, as set forth in Section 2, has been acquired pursuant to the
exercise of rights under the Plan. A right will expire upon the
effective date of an eligible employee's termination of employment as set
forth in Section 7, or on the date of the eligible employee's death.
9. PURCHASE OF SHARES.
(a) Subject to the limitations set forth in Sections 5, 7 and
8, on each Share Purchase Date, there shall be purchased for each
Participant as many Shares as may be purchased with the combined amounts
credited to his or her Payroll Deduction and Cash Contribution Accounts
as of the day immediately preceding the applicable Share Purchase Date
(or such other date as the Committee shall determine) (the "Cutoff
Date"). Shares may be purchased for Participants under the Plan only
through payroll deductions and cash contributions to such Accounts.
Shares may be purchased from the Company, in a public market transaction,
from a market maker, or by other negotiated transactions, including
purchases from Participants or employees who are entitled to receive
Common Stock from the Plan or any other benefit program maintenance by
the Company. The manner and timing of the issuances or purchases of
Common Stock hereunder shall be in accordance with applicable securities
laws.
(b) The "Purchase Price" for Shares purchased under the Plan
with funds from the Participant's Payroll Deduction Account shall be 85%
of the fair market value of shares of Common Stock on the Share Purchase
Date or the first day of the Offering Period, whichever is lower. If the
first day of the Offering Period is not a trading day, the first trading
day of the Offering Period shall be used to determine the fair market
value of a share of Company Stock on the first day of the Offering
Period. The Purchase Price for shares purchased with funds from a
Participant's Cash Contribution Account will be 90% of the fair market
value of such shares as of the Share Purchase Date (or such different
purchase price established by the Committee that complies with the
provisions of Code Section 423). For this purpose, fair market value
shall be the closing sales price for such stock (or the closing bid, if
no sales were reported) as quoted on any established stock exchange or
national market system, including without limitation The Nasdaq Stock
Market, on which the Common Stock is listed, for the last market trading
day on the date of such determination, as reported in The Wall Street
Journal; unless the Board of Directors has determined that the Plan shall
not comply with Rule 16b-3, in which case the fair market value may be
such value as is determined by an independent financial advisor to the
Committee. The Committee shall have the authority to establish a
different Purchase Price as long as any such Purchase Price complies with
(i) the provisions of Section 423 of the Code and (ii) Rule 16b-3 if the
Board of Directors has determined that the Plan shall comply with such
Rule.
5<PAGE>
(c) On each Share Purchase Date, the amount credited to each
Participant's Payroll Deduction and Cash Contribution Accounts as of the
immediately preceding Cutoff Date shall be applied to purchase as many
Shares as may be purchased with such amount at the applicable Purchase
Price. Any amounts remaining in a Participant's Payroll Deduction
Account or Cash Contribution Account as of the relevant Cutoff Date in
excess of the amount that may properly be applied to the purchase of
Shares shall be retained in the Participant's Payroll Deduction or Cash
Contribution Account for the purchase of Shares at a subsequent Share
Purchase Date.
10. BROKERAGE ACCOUNTS OR PLAN SHARE ACCOUNTS. By enrolling in the
Plan, each Participant shall be deemed to have authorized the
establishment of a brokerage account on his or her behalf at any
securities brokerage firm (including, without limitation, any Company
affiliate) selected by the Committee. Alternatively, the Committee may
provide for Plan share accounts ("Plan Share Accounts") for Participants
to be established by the Company or by an outside entity selected by the
Committee which is not a brokerage firm. (The Committee may designate
the Department to make any selection permitted by this Section 10.)
Shares purchased by a Participant pursuant to the Plan shall be held in
the Participant's brokerage or Plan Share Account in street name, or if
the employee so indicates on his or her payroll deduction authorization
form, in the Participant's name or the Participant's name jointly with a
member of the Participant's family, with right of survivorship.
11. RIGHTS AS STOCKHOLDER. A Participant shall have no rights as a
stockholder with respect to Shares which may be issued under this Plan
until payment for such Shares has been completed at the close of business
on the relevant Share Purchase Date. Cash dividends paid on Shares held
in a Participant's Plan Share Account will be deposited into the
Participant's Payroll Deduction Account (or Cash Contribution Account if
such Participant does not have a Payroll Deduction Account) and used to
purchase Shares as described in Section 9. Each Participant shall have
full shareholder rights with respect to all shares of Common Stock
purchased upon exercise of a right to purchase Shares under the Plan,
including, but not limited to, voting, dividend and liquidation rights.
Shares for which such a right has been exercised which are held in the
name of the Company or its agent for the Participant's account will be
covered by proxies provided to such Participant by the Company or its
agent.
12. CERTIFICATES. Certificates for Shares purchased under the Plan
will not be issued automatically. However, certificates for whole Shares
purchased shall be issued as soon as practicable following a
Participant's written request to the Department. The Company may assess
or impose a reasonable charge for the issuance of such certificates, and
shall notify the Participant in advance of issuance of the estimated
amount of such charges. Fractional interests in Shares (if permitted by
the Committee) shall be carried forward in a Participant's Plan Share
Account until they equal one whole Share or until the termination of the
Participant's participation in the Plan, in which event an amount in cash
equal to the value of such fractional interest (based on the fair market
value of a share of Common Stock on the date of such termination) shall
be paid to the Participant in cash. Distributions of stock certificates
6<PAGE>
will be made promptly after the death, disability, retirement or other
termination of employment of a Participant. In the event of a
Participant's death, such stock certificates will be distributed to the
Participant's beneficiary most recently designated by such Participant on
a form prescribed by the Committee or its designee for such purpose. If
such Participant makes no such designation, or if all the designated
beneficiaries predecease such Participant, distribution will be made to
such Participant's estate. If a stock certificate is issued to a
Participant, the Participant will be required to notify the Company of
his or her disposition of such shares, if his or her disposition occurs
within time periods established by the Company.
13. RIGHTS NOT TRANSFERABLE. Rights granted under this Plan are
not transferable by a Participant other than by will or the laws of
descent and distribution, and are exercisable during an employee's
lifetime only by the Participant.
14. EMPLOYMENT RIGHTS. Neither participation in the Plan, nor the
exercise of any right granted under the Plan, shall be made a condition
of employment, or of continued employment, with the Company or any
subsidiary. Participation in the Plan does not limit the right of the
Company or any subsidiary to terminate a Participant's employment at any
time for any reason or give any right to a Participant to remain employed
by the Company or any subsidiary in any particular position or at any
particular rate of remuneration.
15. APPLICATION OF FUNDS. All payroll deductions and cash
contributions from Participants and all funds received by the Company for
Shares sold by the Company on any Share Purchase Date pursuant to this
Plan may be used for any corporate purpose. The Company shall not be
obligated to segregate such payroll deductions or cash contributions from
Participants.
16. WITHHOLDING TAX AND/OR REQUIRING PAYMENT OF TAXES. The Company
shall have the right to withhold with respect to any payments made to
Participants under the Plan any taxes required by law to be withheld with
regard to such payments and the right to require, prior to the delivery
of any shares of Common Stock, payment by Participants of any taxes
required by law with respect to the issuance or delivery of such shares
(or any portion thereof) for which such taxes have not been withheld.
17. AMENDMENTS AND TERMIANTION. The Board of Directors may amend
the Plan at any time, provided that no such amendment shall be effective
unless approved within 12 months after the date of adoption of such
amendment by the affirmative vote of stockholders holding the majority of
the outstanding shares of Common Stock entitled to vote if such
stockholder approval is required for the Plan to continue to comply with
Code Section 423 or, for periods during which the Board of Directors has
determined that the Plan shall comply with Rule 16b-3, the applicable
requirements of Rule 16b- 3. The Board of Directors may suspend the Plan
or discontinue the Plan at any time. Upon termination of the Plan, all
payroll deductions and cash contributions to the Plan shall cease, and
all amounts then credited to the Participants' Payroll Deduction Accounts
7<PAGE>
and Cash Contribution Accounts shall be equitably applied to the purchase
of whole Shares then available for sale, and any remaining amounts shall
be promptly refunded to the Participants.
18. APPLICABLE LAWS. This Plan, and all rights granted hereunder,
are intended to meet the requirements of an "employee stock purchase
plan" under Code Section 423, as from time to time amended, and the Plan
shall be construed and interpreted to accomplish this intent. The
delivery or issuance of any shares of Common Stock may be postponed by
the Company for such period as may be required to comply with the
applicable requirements under the Federal and state securities laws, and
any applicable listing requirements of The Nasdaq Stock Market and any
national securities exchange and with all requirements under any other
law or regulation applicable to the issuance or delivery of such shares.
Further, the Company shall not be obligated to deliver or issue any
shares of Common Stock if the delivery or issuance of such shares shall
constitute a violation of any applicable provision of The Nasdaq Stock
Market and any national securities exchange or any law or regulation of
any governmental authority. Sales of Shares under the Plan are subject
to, and shall be accomplished only in accordance with, the requirements
of all applicable securities and other laws.
19. CHANGES IN CAPITALIZATION AND SIMILAR CHANGES. In the event of
any change in the outstanding shares of Common Stock by reason of any
stock dividend or split, recapitalization, merger, consolidation,
combination or exchange of shares or other similar corporate change, the
maximum aggregate number and class of shares available for sale under the
Plan shall be equitably adjusted by the Committee. Such determination of
the Committee shall be conclusive.
20. EXPENSES. Except to the extent otherwise provided herein, all
expenses of administering the Plan, including expenses incurred in
connection with any purchase of Shares in the open market for sale to
Participants, shall be borne by the Company and its subsidiaries.
21. ARBITRATION OF DISPUTES. Any dispute between the Company or
any of its affiliates and any Participant relating to this Plan shall be
submitted to arbitration before the National Association of Securities
Dealers, Inc. or the New York Stock Exchange, Inc. in accordance with
its rules and regulations.
22. EFFECTIVE DATE AND STOCKHOLDER APPROVAL. The Plan became
effective on March 25, 1997, subject to stockholder approval, which was
obtained on June 10, 1997.
8
KILPATRICK STOCKTON LLP Attorneys at Law
Suite 2800
1100 Peachtree Street
Atlanta, Georgia 30309-4530
Telephone: 404.815.6500
Facsimile: 404.815.6555
Exhibit 5
January 22, 1998
JW Charles Financial Services, Inc.
980 North Federal Highway, Suite 120
Boca Raton, Florida 33242
Re: Form S-8 Registration Statement
Gentlemen:
We have acted as counsel for JW Charles Financial Services,
Inc., a Florida corporation (the "Company"), in the preparation of
the Form S-8 Registration Statement relating to the Company's 1997
Employee Stock Purchase Plan and the proposed offer and sale of up
to 400,000 shares of the Company's common stock, par value $.001 per
share (the "Common Stock"), pursuant thereto.
In such capacity, we have examined certificates of public
officials and originals or copies of such corporate records,
documents, and other instruments relating to the authorization of
the Plan and the authorization and issuance of the shares of Common
Stock as we have deemed relevant under the circumstances.
Based on and subject to the foregoing, it is our opinion that
the Plan and the proposed offer and sale thereunder of up to 400,000
shares of Common Stock have been duly authorized by the Board of
Directors of the Company, and that the shares, when issued in
accordance with the terms and conditions of the Plan, will be
validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit
to said Registration Statement.
Sincerely,
KILPATRICK STOCKTON LLP
By: /s/ W. Randy Eaddy
W. Randy Eaddy, a partner
ACCOUNTANT'S CONSENT
Exhibit 23(a)
CONSENT OF PRICE WATERHOUSE LLP
We consent to the incorporation by reference in this
Registration Statement on Form S-8 of JW Charles Financial
Services, Inc., of our report dated March 19, 1997, appearing
on page F-2 of JW Charles Financial Services, Inc.'s Annual
Report on Form 10-K for the year ended December 31, 1996.
/s/ Price Waterhouse LLP
PRICE WATERHOUSE LLP
Tampa, Florida
January 20, 1998
ACCOUNTANT'S CONSENT
Exhibit 23(b)
CONSENT OF ERNST & YOUNG LLP
We consent to the incorporation by reference in this
Registration Statement (form S-8 No. 333-00000) pertaining
to the 1997 Employee Stock Purchase Plan of JW Charles Financial
Services, Inc. for the registration of 400,000 shares of its common
stock, of our report dated March 3, 1995 with respect to the consolidated
financial statements of JW Charles Financial Services, Inc. included in
its Annual Report on Form 10-K for the year ended December 31, 1996 filed
with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
West Palm Beach, Florida
January 20, 1998
