As filed with the Securities and Exchange Commission on May 19, 2000.
Registration No. 333-_________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------
BANKFIRST CORPORATION
(Exact name of registrant as specified in its charter)
TENNESSEE 58-1790903
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
625 Market Street
Knoxville, Tennessee 37902
(Address of principal executive offices)
------------
BANKFIRST CORPORATION
STOCK OPTION PLAN
(Full title of the plan)
------------
Fred R. Lawson
President and Chief Executive Officer
BankFirst Corporation
625 Market Street
Knoxville, Tennessee 37902
(865) 595-1100
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
With a copy to:
Jack H. McCall, Jr., Esq.
Hunton & Williams
2000 Riverview Tower
900 South Gay Street
Knoxville, Tennessee 37902
(865) 549-7700
------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===================================================================================================================
Proposed maximum Proposed maximum
Title of securities Amount to be offering price aggregate Amount of
to be registered registered per share offering price registration fee
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $2.50 3,125,000 shares $8.16* $25,500,000* $6,732*
per share
===================================================================================================================
</TABLE>
(*) Pursuant to Rule 457(c) and (h)(1) of the Securities Act of 1933, as amended
(the "Securities Act"), and solely for the purposes of calculating the
registration fee, the registration fee was calculated on the basis of the
average of the high and low sales prices for shares of BankFirst Corporation's
Common Stock on the Nasdaq Stock Market on May 15, 2000, as reported in The Wall
Street Journal.
================================================================================
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
Not required to be filed with the Securities and Exchange Commission (the
"Commission").
Item 2. Registrant Information and Employee Plan Annual Information.
Not required to be filed with the Commission.
I-1
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by BankFirst Corporation (the "Company")
with the Securities and Exchange Commission (the "Commission") under the
Securities and Exchange Act of 1934 (the "Exchange Act"), are hereby
incorporated by reference into this Registration Statement:
(a) the Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1999;
(b) the Company's Current Report on Form 8-K, dated March 21, 2000;
(c) the Company's Current report on Form 8-K, dated April 17, 2000; and
(d) the Company's Quarterly Report on Form 10-Q for the quarterly period
ended March 31, 2000.
Additionally incorporated by reference into this Registration Statement is
the Description of BankFirst Capital Stock section of the Company's Registration
Statement on Form S-1, as amended (Registration No. 333-57147).
In addition to the foregoing, all documents subsequently filed by the
Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act,
prior to the filing of a post-effective amendment which indicates that all
securities registered hereunder have been issued or which deregisters all
securities offered then remaining unsold, shall be deemed incorporated by
reference in this Registration Statement and to be a part hereof from the date
of the filing of such documents. Any statement, including financial statements,
contained in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained herein or in any
other subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement.
The Company will promptly provide without charge to each person to whom a
prospectus is delivered a copy of any or all information that has been
incorporated herein by reference (not including exhibits to the information that
is incorporated by reference unless such exhibits are specifically incorporated
by reference into such information) upon the written or oral request of such
person directed to BankFirst Corporation, 625 Market Street, Knoxville,
Tennessee 37902, (865) 595-1100.
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 Charter and Bylaws of the Company provide for the indemnification of
the Company's directors, officers, employees and agents to the full extent
permitted by the Tennessee Business Corporation Act (the "TBCA").
II-1
<PAGE>
The Company's directors, officers, employees and agents who successfully
defend any threatened, pending or completed action, suit or proceeding to which
they were made a party by reason of their status as a director, officer,
employee or agent of the Company are entitled to indemnification against all
expenses actually and reasonably incurred by them in connection with such
action, suit or proceeding.
Indemnification may be provided by the Company in other situations upon
court order or upon a determination by (1) a disinterested majority of the Board
of Directors of the Company; (2) independent legal counsel in a written opinion;
or (3) a majority of the shareholders of the Company that indemnification of the
director, officer, employee or agent is proper because such person met the
applicable standard of conduct specified by the TBCA and the Company's Charter
and Bylaws. Indemnification may be authorized if the individual (1) acted in
good faith; (2) reasonably believed that his conduct was in or not opposed to
the best interest of the corporation; and (3) in the case of any criminal
proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or plea of nolo contendere or its equivalent shall not, of itself,
create a presumption that the above standard of conduct has not been met.
No director of the Company can be held personally liable to the
corporation for monetary damages for any breach of his fiduciary duty to the
corporation; provided that a director may be liable (1) for breach of the
director's duty of loyalty to the corporation and its shareholders; (2) for acts
or omissions not in good faith or involving intentional misconduct or a knowing
violation of law; (3) for any action in which the director did not meet the
applicable standard of conduct; and (4) for any transaction from which the
director derived an improper personal benefit.
The TBCA provides that the Company may not indemnify a director in
connection with any action, suit or proceeding in which a judgment or other
final adjudication established the director's liability (1) to the corporation;
(2) for receipt of an improper personal benefit; (3) for breach of the
director's duty of loyalty to the corporation or its shareholders; (4) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law; or (5) for unlawful distributions pursuant to TBCA ss.
48-18-304.
To the extent that the foregoing indemnification provisions purport to
include indemnification for liabilities arising under the Securities Act of
1933, as amended (the "Securities Act"), in the opinion of the Commission such
indemnification is contrary to public policy and is, therefore, unenforceable.
In addition, the TBCA and the Company's Charter and Bylaws authorize the
Company to purchase officer and director liability insurance. The Company has
officer and director liability insurance in the amount of $5 million.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following exhibits are filed as part of this Registration Statement:
Exhibit No.
- -----------
4.1 Amended and Restated Charter of BankFirst Corporation (previously
filed as Exhibit 3.1 to the Company's Registration Statement on Form
S-4 (Registration No. 333-52051) and incorporated herein by
reference)
4.2 Bylaws of BankFirst Corporation (previously filed as Exhibit 3.2 to
the Company's Registration Statement on Form S-4 (Registration No.
333-52051) and incorporated herein by reference)
4.3 BankFirst Corporation Stock Option Plan, as amended
II-2
<PAGE>
Exhibit No.
- -----------
5.1 Opinion of Ritchie & Johnson, PLC as to the legality of the shares
of common stock of the Company being registered
15.1 Awareness Letter of Crowe, Chizek and Company LLP
23.1 Consent of Ritchie & Johnson, PLC (included in Exhibit 5.1 to the
Registration Statement)
23.2 Consent of Crowe, Chizek and Company LLP
23.3 Consent of G.R. Rush & Company, P.C.
24.1 Power of Attorney (included on signature page)
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:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement
(or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a
fundamental change in the information set forth in the
registration statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
registration statement or any material change in such
information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3 or Form S-8, and the information required
to be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by the registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference 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 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to 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.
(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
II-3
<PAGE>
registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act, and
is, therefore, unenforceable. 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 Securities Act and will be governed by the final
adjudication of such issue.
II-4
<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 Knoxville, State of Tennessee, on the 19th day of
May, 2000.
BANKFIRST CORPORATION
By: /s/ Fred R. Lawson
-------------------------------------
Fred R. Lawson
President and Chief Executive Officer
POWER OF ATTORNEY
Each of the undersigned, in his capacity as officer or director, or both,
as the case may be, of BankFirst Corporation does hereby appoint Fred R. Lawson
and C. David Allen, and each of them severally, his true and lawful attorneys or
attorney to execute in his name, place and stead, in his capacity as director or
officer, or both as the case may be, this Registration Statement and any and all
amendments and post-effective amendments thereto, and all instruments necessary
or incidental in connection therewith and to file the same with the Securities
and Exchange Commission. Each of said attorneys shall have power to act
hereunder with or without the other attorney and shall have full power and
authority to do and perform in the name and on behalf of each of said directors
or officers, or both as the case may be, every act whatsoever requisite or
necessary to be done in the premises, as fully and to all intents and purposes
as which each of said officers or directors, or both as the case may be, might
or could do in person, hereby ratifying and confirming all that said attorneys
or attorney may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on the date indicated.
Signature Title Date
--------- ----- ----
/s/ James L. Clayton Chairman and Director May 19, 2000
- ----------------------------
James L. Clayton
/s/ Fred R. Lawson President and Chief Executive May 19, 2000
- ---------------------------- Officer (Principal Executive
Fred R. Lawson Officer)
/s/ C. David Allen Chief Financial Officer and May 19, 2000
- ---------------------------- Secretary (Principal
C. David Allen Financial Officer)
/s/ Scot M. Braun Corporate Controller May 19, 2000
- ---------------------------- (Principal Accounting Officer)
Scot M. Braun
II-5
<PAGE>
/s/ C. Scott Mayfield, Jr. Director May 19, 2000
- ----------------------------
C. Scott Mayfield, Jr.
/s/ C. Warren Neel Director May 19, 2000
- ----------------------------
C. Warren Neel
/s/ Charles Earl Ogle, Jr. Director May 19, 2000
- ----------------------------
Charles Earl Ogle, Jr.
/s/ W. David Sullins, Jr. Director May 19, 2000
- ----------------------------
W. David Sullins, Jr.
/s/ L.A. Walker, Jr. Director & Executive Vice May 19, 2000
- ---------------------------- President of BankFirst
L.A. Walker, Jr. Corporation
/s/ Geoffrey A. Wolpert Director May 19, 2000
- ----------------------------
Geoffrey A. Wolpert
II-6
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
- ----------- -----------
4.1 Amended and Restated Charter of BankFirst Corporation (previously
filed as Exhibit 3.1 to the Company's Registration Statement on
Form S-4 (Registration No. 333-52051) and incorporated herein by
reference)
4.2 Bylaws of BankFirst Corporation (previously filed as Exhibit 3.2
to the Company's Registration Statement on Form S-4 (Registration
No. 333-52051) and incorporated herein by reference)
4.3* BankFirst Corporation Stock Option Plan, as amended
5.1* Opinion of Ritchie & Johnson, PLC as to the legality of the
shares of common stock of the Company being registered
15.1* Awareness Letter of Crowe, Chizek and Company LLP
23.1* Consent of Ritchie & Johnson, PLC (included in Exhibit 5.1 to the
Registration Statement)
23.2* Consent of Crowe, Chizek and Company LLP
23.3* Consent of G.R. Rush & Company, P.C.
24.1* Power of Attorney (included on Signature Page)
- --------------
*Filed herein.
II-7
EXHIBIT 4.3
BANKFIRST CORPORATION
STOCK OPTION PLAN
BANKFIRST CORPORATION, a Tennessee bank holding corporation, with
principal offices at 625 Market Street, Knoxville, Knox County, Tennessee (the
"Corporation"), hereby amends the BankFirst Corporation Incentive Stock Option
Plan to be known as the BANKFIRST CORPORATION STOCK OPTION PLAN (the "Plan") for
the benefit of its employees and members of its Board, as set forth below. The
BankFirst Corporation Incentive Stock Option Plan included language which
purported to give directors who were not employees incentive stock options,
which is improper. The Plan is amended to provide that the directors who are not
employees will have non-qualified stock options and the employees will have
incentive stock options. The amendment of the Plan does not in any manner affect
the number of options previously granted to employees and members of the Board.
ARTICLE I
PLAN INTRODUCTION
1.1. Name. This Plan shall be known as the "BankFirst Corporation Stock
Option Plan." The Plan was formerly known as the "BankFirst Corporation
Incentive Stock Option Plan".
1.2. Purpose. The purpose of the Plan is to secure for the Corporation and
its shareholders the benefits which flow from providing selected directors,
officers, and other key employees of Corporation and its subsidiaries (herein
collectively referred to as "directors, officers, and/or key employees") with
the incentive inherent in common stock ownership. By so encouraging and enabling
such selected directors, officers and key employees to become owners of the
Corporation's shares, the Corporation seeks to motivate, retain, and attract
those highly competent individuals upon whose judgment, initiative, leadership
and continued efforts the success of the Corporation in large measure depends.
1.3. Form of Plan. The Corporation is establishing the Stock Option Plan
pursuant to requirements of the Internal Revenue Code of 1986, as amended.
1.4. Effective Date. The effective date of the Plan is December 31, 1996,
the date of its approval by the Executive Committee of the Board. The
shareholders of the Corporation approved the Plan at its annual shareholders'
meeting held on April 21, 1997.
1.5. Definitions. As used herein, the following terms have the meanings
hereinafter set forth unless the context clearly indicates to the contrary:
(a) "Board" shall mean the Board of Directors of BankFirst
Corporation.
Page 1
<PAGE>
(b) "Code" shall mean the Internal Revenue Code of 1986, as amended.
(c) "Committee" shall mean the Executive Committee of the Board of
Directors.
(d) "Corporation" shall mean BankFirst Corporation.
(e) "Director" means a voting member of the Board, excluding any
person who serves solely in an advisory capacity or as a director emeritus.
(f) "Disability" means permanent disability within the meaning of
Section 22(e)(3) of the Code.
(g) "Employee" means an employee of the Corporation or any of its
subsidiaries.
(h) "Fair Market Value" shall mean the fair market value of the
stock established by the Board of Directors quarterly immediately prior to the
grant of any option hereunder.
(i) "Grantee" shall mean an employee and/or a member of the Board of
the Corporation to whom an incentive stock option or a non-qualified stock
option has been granted hereunder and has the same meaning as optionee.
(j) "Incentive Stock Option" means an option to purchase stock
granted under Section 4.1 of the Plan which is designated as Incentive Stock
Option and is intended to meet the requirements of Section 422 of the Code.
(k) "Non-Qualified Stock Option" means an option to purchase stock
granted under Section 4.1 of the Plan, which is not intended to be an incentive
stock option, and will be governed by Section 83 of the Code.
(l) "Option" means an incentive stock option or a non-qualified
stock option.
(m) "Option Period" means the period from the date of the grant of
an option to the date when the option expires as stated in the terms of the
Stock Option Agreement.
(n) "Optionee" shall mean a director, officer, or other key employee
to whom an Option has been granted hereunder.
(o) "Plan" shall mean the BankFirst Corporation Stock Option Plan,
the terms of which are set forth herein.
(p) "Retirement" means termination of employment with the
Corporation or any of its subsidiaries after obtain age of 65 (or earlier with
the Corporation's or its subsidiary's consent).
Page 2
<PAGE>
(q) "Stock" shall mean the Common Stock of BankFirst Corporation or,
in the event that such outstanding shares of stock are hereafter changed into or
exchanged for shares of a different stock or securities of the Corporation or
some other corporation or company, such other stock or securities.
(r) "Stock Option Agreement" shall mean the agreement between the
Corporation and the Optionee under which the Optionee may purchase Stock
hereunder.
(s) "Subsidiary or Subsidiaries" means any corporation which at the
time qualifies as a subsidiary of the Corporation under the definition of
"Subsidiary Corporation" in Section 424(f) of the Code.
ARTICLE II
PLAN PARTICIPATION, ADMINISTRATION, TERMINATION
2.1. Eligibility and Plan Participation. Selected directors, officers and
key employees of the Corporation and its subsidiaries shall be eligible to
participate in the Plan. The Committee may grant Options to any eligible
participant in accordance with such determinations as the Committee from time to
time in its sole discretion shall make. The granting of options hereunder shall
be entirely discretionary with the Committee and nothing in the Plan shall be
deemed to give any director, officer, or other key employee of the Corporation
any right to participate in the Plan or to receive options.
2.2. Plan Administration. The Plan shall be administered by the Committee
in accordance with the following provisions:
(a) Duties and Powers of Committee. Subject to the express
provisions of the Plan, the Committee shall have sole discretion and authority
to determine from among the directors, and the President and Chief Executive
Officer of the Corporation those to whom and the time or times at which an
Option may be granted hereunder, and the number of shares of Stock to be subject
to each Option. The President and Chief Executive Officer shall in accordance
with the authorization of the Committee have sole discretion and authority to
determine from among the officers and key employees those to whom and the time
or times at which an Option may be granted hereunder, and the number of shares
of Stock to be subject to each Option.
(b) Committee Governance. The Committee shall select one of its
members as the chairperson of the Committee and shall hold meetings at such
times and places as it may determine. The Committee may appoint a secretary and,
subject to the provisions of the Plan and to policies determined by the Board,
may make such rules and regulations for the conduct of its business as it shall
deem advisable. Written action of the Committee may be taken by a majority of
its members, and actions so taken shall be fully effective as if taken by a vote
of a majority of the members at a meeting duly called and held. A majority of
Committee members shall constitute a quorum for purposes of a meeting. The act
of a majority of the members present at any meeting for which there is a quorum
shall be a valid act of the Committee.
Page 3
<PAGE>
(c) Committee to Interpret Plan. Subject to the express terms and
conditions of the Plan, the Committee shall have sole power to (i) construe and
interpret the Plan; (ii) establish, amend or waive rules and regulations for its
administration; (iii) to determine and accelerate the exercisability of any
Option; (iv) to correct inconsistencies in the Plan or in any Stock Option
Agreement, or any other instrument relating to an Option; and (v) subject to the
provisions of Section 4.6, to amend the terms and conditions of any outstanding
Option, to the extent such terms and conditions are within the discretion of the
Committee as provided in the Plan. Notwithstanding the foregoing, no action of
the Board or Committee may, without the consent of the person or persons
entitled to exercise any outstanding Option, adversely affect the rights of such
person or persons.
(d) Exculpation. No member of the Board or the Committee shall be
liable for actions or determinations made in good faith with respect to the
Plan, or for awards under it.
(e) Corporation Assistance. The Corporation shall supply full and
timely information to the Committee on all matters relating to employees, their
employment, death, retirement, disability or other termination of employment,
and such other pertinent facts as the Committee may require. The Corporation
shall furnish the Committee with such clerical and other assistance as is
necessary in the performance of its duties.
2.3. Decisions Binding. All determinations and decisions made by the
Committee pursuant to the provisions of the Plan, including factual
determinations, shall be final, conclusive and binding on all persons, including
the Corporation, its Subsidiaries and affiliates, its shareholders, Optionees
and their estates and assignee.
2.4. Stock Option Agreements. Each Option under the Plan shall be
evidenced by a Stock Subscription Agreement which shall be signed by the
President of the Corporation, or as required by the circumstances, the Chairman
of the Committee, and by the Optionee, and shall contain such terms and
conditions as may be approved by the Committee, which need not be in the same in
all cases. Any Stock Option Agreement may be supplemented or amended in writing
from time to time as approved by the Committee, provided that the terms of such
Agreements as amended or supplemented, as well as the terms of the original
Stock Option Agreement, are not inconsistent with the provisions of the Plan. An
Employee who receives an Option under the Plan shall not, with respect to the
Option, be deemed to have become an Optionee, or to have any rights with respect
to the Option, unless and until a Stock Option Agreement has been signed by the
President of the Corporation, or as required by the circumstances the Chairman
of the Committee and by the Director and/or Employee and delivered to the
Committee, and the Director and/or Employee has otherwise complied with the
applicable terms and conditions of the Option. The Committee may condition any
Option grant upon the agreement by the Optionee to such confidentiality,
non-competition and non-solicitation covenants as the Committee deems
appropriate.
Page 4
<PAGE>
2.5. Limitation on Exercise of Options. No part of any Option may be
exercised to the extent the exercise would cause Optionee to have compensation
from the Corporation and its affiliated corporations for any year in excess of
any amount which is provided by the Code, and which is nondeductible by the
Corporation and its affiliated corporations pursuant to Code Section 162(m). Any
portion of an Option not exercisable because of this limitation shall continue
to be exercisable in any subsequent year in which the exercise would not cause
the loss of the Corporation or its affiliated Corporation's compensation tax
deduction, provided such exercise occurs before lapse of the Option, and
otherwise complies with the terms and conditions of the Plan and Stock Option
Ageement.
ARTICLE III
STOCK OPTION SHARES
3.1. Stock Limitations. Subject to adjustment pursuant to the provisions
of Section 3.3 hereof, the number of shares of Stock which may be issued and
sold hereunder shall not exceed 500,000 shares. Such shares may be authorized
and unissued shares or shares issued and thereafter acquired by the Corporation.
3.2. Options Granted Under the Plan. Shares of Stock with respect to which
an Option granted hereunder have been exercised shall not again be available for
Option hereunder. If Options granted hereunder shall terminate or expire for any
reason without being wholly exercised, new Options may be granted hereunder
covering the number of shares to which such Option termination relates.
3.3. Antidilution. In the event that the outstanding shares of Stock
hereafter are changed into or exchanged for a different number or kind of shares
or other securities of the Corporation or of another corporation by reason of
merger, consolidation, other reorganization, recapitalization, reclassification,
combination of shares, stock split-up, or stock dividend:
(a) The aggregate number and kind of shares subject to Options which
may be granted hereunder shall be adjusted accordingly.
(b) Rights under outstanding Options granted hereunder, both as to
the number of subject shares and the Option price, shall be adjusted
accordingly.
(c) Where dissolution or liquidation of the Corporation or any
merger or combination in which the Corporation is not a surviving corporation is
involved, each outstanding Option granted hereunder shall terminate, but the
Optionee shall be fully vested and shall have the right, immediately prior to
such dissolution, liquidation, merger, or combination, to exercise his/her
Option in whole or in part.
The foregoing adjustments and the manner of application of the
foregoing provisions shall be determined solely by the Committee, and any such
adjustment may provide for the elimination of fractional share interests.
Page 5
<PAGE>
3.4. Termination, Amendment and Modification of the Plan. The Board of
Directors may at any time suspend, discontinue, or terminate the Plan, and may
at any time and from time to time and in any respect amend or modify the Plan
and make rules for its administration; provided, however, that no such action of
the Board without approval of the majority of the shareholders of the
Corporation may:
(a) Increase the total number of shares of Stock subject to the Plan
except as contemplated in Section 3.3 hereof;
(b) Withdraw the administration of the Plan from the Committee; and
(c) Provided further, that no termination, amendment, or
modification of the Plan shall in any manner (1) affect any Option theretofore
granted under the Plan without the consent of the Optionee or permitted
transferee of the Option, or (2) prevent Options issued under the Plan from
being Incentive Stock Options as defined in Section 422 of the Code, or as a
Non-Qualified Stock Option as defined in Section 83 of the Code.
ARTICLE IV
STOCK OPTIONS
4.1. Eligibility and Grant. Selected Directors, Officers and key employees
of the Corporation and its subsidiaries who are expected to contribute
substantially to the growth and profitability of the Corporation and its
subsidiaries are eligible for selection by the Committee to receive Options.
Both Incentive Stock Options and Non-Qualified Stock Options may be granted
under the Plan. If the Option is designated as an Incentive Stock Option but
does not qualify as such under Section 422 of the Code, the Option (or portion
thereof) shall be treated as a Non-Qualified Stock Option and governed by
Section 83 of the Code. Neither the Corporation nor any of its subsidiaries will
be liable for any tax consequences of an Option, including but not limited to
the failure of the option intended to be an Incentive Stock Option to qualify as
such. All Options granted to selected Directors, Officers and key employees
under the Plan shall be evidenced by a Stock Option Agreement in such form as
the Committee may from time to time approve. All options are subject to the
terms of the Plan and such additional terms and conditions contained in the
Stock Option Agreement, which need not be the same in each case, not
inconsistent with the terms of the Plan, as the Committee finds desirable.
4.2. Option Price. The option price per share of Stock covered the Option
shall be determined by the Committee but shall not be less than 100% of the Fair
Market Value of such stock on the date the Option is granted. The Fair Market
Value shall be determined by the Committee in its sole discretion, provided, if
the Corporation's Stock is publicly traded on an established securities market,
the Fair Market Value shall be the closing market price of the Corporation's
Stock as reported on the date of the grant, or, if no trades were reported on
that date, the closing price on the most recent trading day immediately
preceding the date of the grant. An Option granted to any person who, at the
time the Option is granted, owns or is deemed to own within the meaning of
Section 424(d) of the Code, stock possessing more than 10% of the
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<PAGE>
total combined voting power of all classes of stock of the Corporation, shall
have an exercise price which is at least 110% of the Fair Market Value of the
Stock subject to the Option.
4.3. Option Vesting. No portion of the Option may be exercised unless
vested in accordance with the provisions of the Stock Option Agreement and this
Plan. Options shall vest at an annual rate of twenty percent (20%), allowing the
exercise of the stock options in accordance with the following schedule:
Date of Grant of Option Vesting Schedule
- ----------------------- ----------------
One (1) Year from Option Date 20%
Two (2) Years from Option Date 40%
Three (3) Years from Option Date 60%
Four (4) Years from Option Date 80%
Five (5) Years from Option Date 100%
"Vesting" as used in the Stock Option Agreement and this Plan shall act to give
the Optionee those rights determined by the Committee and no others. Both
unvested and vested portions of Options shall be subject to early termination.
All Optionees shall become fully vested upon the dissolution or liquidation of
the Corporation, or any merger or combination in which the Corporation is not a
surviving corporation.
4.4. Option Period. Each Option granted hereunder must be granted within
ten years from the effective date of the Plan.
4.5. Natural Termination and Expiration of Options. The period for the
exercise of each Option shall be determined by the Committee, but in no instance
shall such period exceed ten years from the date of grant of the Option.
4.6. Early Termination and Expiration of Options; Effect Thereof. Each of
the following shall be a "Terminating Event", the occurrence of which shall act
to terminate the Option prior to its natural expiration to the extent not
previously exercised:
(i) Termination of Employment. The termination of employment
or directorship of the Optionee for cause, the date of termination being
the date the Optionee is notified of the termination.
(ii) Reduction of Position. The reduction of the Optionee's
position for any reason whatsoever, the date of termination being the date
the Optionee is notified of the reduction. The Option shall not be
affected by any change in duties or position as long as the Optionee
continues to be an Optionee of the Corporation at the same or higher
position as that held on the Grant Date.
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<PAGE>
Upon the occurrence of a Terminating Event, the unvested portion of the Option
shall expire on the date of termination set forth above. To the extent that the
Optionee shall have been otherwise entitled to do so, the vested portion may
continue to be exercised by the Optionee (or, should the Optionee be deceased,
by the legatee or legatees of the Optionee under such Optionee's Last Will or by
such Optionee's personal representative or distributees), during a Transitory
Period to be determined by the Committee but in no event later than three (3)
months after the date of termination set forth above. No further vesting shall
occur during the Transitory Period, and the Option shall fully expire at the
conclusion of the Transitory Period.
4.7. Effect of Option Termination and Expiration. Once any Option granted
hereunder has terminated or expired, such Option shall be deemed irrevocably
expired. Regardless of any efforts by the Optionee to cure the event causing
such termination and/or expiration, such Option may not be revived unless
specifically reinstated in writing by an officer of the Corporation duly
authorized by disinterested members of the Board of Directors.
4.8. Option Exercise and Method. The option exercise and method are as
follows:
(a) Option Exercise. Options may be exercised in whole at any time,
or in part from time to time with respect to whole shares only, to the extent
that the Option has vested, and within the period permitted for the exercise
thereof. Further, except as otherwise provided herein, the Option may not be
exercised at any time unless the Optionee shall have been in the continuous
employ of the Corporation from the date the Option is granted to the date of
exercising the Option.
(b) Method of Option Exercise. Any Option granted pursuant to this
Plan shall contain provisions established by the Board of Directors setting
forth the manner of exercise of such Option. Notwithstanding the foregoing,
Options shall be exercised by providing (1) written notice of intent to exercise
the Option with respect to a specified number of shares delivered to the
Corporation at its principal office in Knoxville, Tennessee, and (2) payment in
full to the Corporation at said office of the amount of the Option price for the
number of shares of Stock with respect to which the Option is then being
exercised, such payment to be in cash or certified funds made payable to the
order of the Corporation.
4.9. Nontransferability of Option. No Option shall be transferred by an
Optionee otherwise than by Will or the laws of descent and distribution. During
the lifetime of an Optionee the Option shall be exercised only by him/her. No
transfer of an Option by the Optionee by will or by the laws of descent and
distribution shall be effective to bind the Corporation unless the Corporation
shall have been furnished with written notice thereof and an authenticated copy
of the Will and/or such other evidence as the Committee may deem necessary to
establish the validity of the transfer and the acceptance by the transferee or
transferees of the terms and conditions of such Option.
4.10. Rights as Shareholder. An Optionee or a transferee of an Option
shall have no rights as a shareholder with respect to any shares subject to such
Option prior to purchase of such shares by valid exercise of such Option as
provided herein and a stock certificate is issued and delivered by the
Corporation therefor.
Page 8
<PAGE>
4.11. Stock Certificates; Refunds. The Corporation shall issue and deliver
the certificate or certificates for shares of Stock purchased upon the valid
exercise of any Option granted hereunder or any portion thereof within fifteen
(15) business days of the exercise of the Option and payment therefor. In the
event the Option or a portion thereof is not validly exercised or is otherwise
not available in accordance with the terms of the Plan, the Corporation shall
refund the purchase price for that portion of the Option not validly exercised
or otherwise not available within fifteen (15) business days of the exercise of
the Option and payment therefor. No refund of the purchase price will be made
for a validly exercised Option after share certificates issue.
ARTICLE V
MISCELLANEOUS
5.1. Employment and Directorship. Nothing in the Plan or in any Option
granted hereunder or in any Stock Option Agreement relating thereto shall confer
upon any employee the right to continue in the employ of the Corporation, or the
director the right to serve on the Board of Directors.
5.2. Tax Obligations of Optionee. If for any reason the exercise of any
portion of any Option granted hereunder shall be determined to be a taxable
event, the Optionee shall be solely responsible for all employment related taxes
that may be incurred thereby.
5.3. Stock for Investment. The Stock Option Agreement shall provide that
the Optionee shall upon each exercise of a part or all of the Option granted
represent and warrant, or be deemed to represent and warrant, that his/her
purchase of stock pursuant to such Option is for investment only. At any time
the Board of Directors may waive the requirement of such a provision in any
Stock Option Agreement entered into under any stock option plan of the
Corporation.
5.4. Other Securities Law Restrictions. The Board of Directors shall
include Securities Law-related provisions in any Stock Option Agreement that, in
its discretion, is necessary to protect the interests of the Corporation.
5.5. Other Compensation Plans. The adoption of the Plan shall not affect
any other stock option or incentive or other compensation plans in effect for
the Corporation, nor shall the Plan preclude the Corporation from establishing
any other forms of incentive or other compensation for employees of the
Corporation.
5.6. Obligation to Sell Subject to Governmental Approval. The
Corporation's obligation to sell and deliver stock under the Plan in accordance
with the terms of this Agreement is at all times subject to all approvals of any
governmental authorities required in connection with the authorization,
issuance, sale or delivery of the stock.
5.7. Plan Binding on Successors. The Plan shall inure to the benefit of
and be binding upon the successors and assigns of the Corporation. The Plan
shall inure to the benefit of and be
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<PAGE>
binding upon the respective heirs, successors, administrators, and
representatives as permitted herein.
5.8. Headings. The headings of each of the provisions hereof are for
convenience and reference only and are not substantive. They are not to be used
in the interpretation hereof or to modify any of the terms or provisions of this
Plan.
5.9. Singular, Plural; Gender. Whenever used herein, nouns in the singular
shall include the plural and the masculine pronoun shall include the feminine
gender, and vice versa.
5.10. Shareholder Approval. The Plan was submitted to the shareholders of
the Corporation for approval by the holders of a majority of the outstanding
shares of Common Stock of the Corporation at the annual meeting held on April
21, 1997. The Plan was approved by the holders of a majority of the outstanding
shares of Common Stock of the Corporation.
Page 10
<PAGE>
ATTACHMENT "A"
Options Granted Before December 31, 1996
The following grants to various employees and nonemployees of the organization
were made under a prior organization and are inclusive in the BankFirst
Corporation Stock Option Plan.
<TABLE>
<CAPTION>
Grant Date Grantor Expiration Original Original 12/31/99 12/31/99
Date Number Shares Exercise Price Number of Exercise
Shares Price of
Shares
<S> <C> <C> <C> <C> <C> <C>
12/31/93 BankFirst 12/31/03 169,565 $11.50 523,505 $3.72
3/14/95 BankFirst 3/14/05 11,700 $20.00 36,145 $6.47
4/17/95 BankFirst 4/17/05 12,100 $20.00 37,345 $6.47
12/31/95 BankFirst 12/31/05 2,200 $20.00 6,810 $6.47
Total Options Issued by BankFirst Prior to 195,565 603,805
BankFirst Corporation
</TABLE>
Page 11
EXHIBIT 5.1
[Letterhead of Ritchie & Johnson, PLC]
May 19, 2000
Board of Directors
BankFirst Corporation
625 Market Street
Knoxville, Tennessee 37902
Re: Registration Statement on Form S-8
Relating to the Plan Shares Issuable Pursuant to the
BankFirst Corporation Stock Option Plan
Gentlemen:
We have acted as counsel for BankFirst Corporation, a Tennessee corporation (the
"Company"), in connection with the Registration Statement on Form S-8 (the
"Registration Statement") filed by the Company on May 19, 2000 with the
Securities and Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended, with respect to 3,125,000 shares of the Company's common
stock, par value $2.50 per share (the "Plan Shares"), issuable pursuant to
awards under the Company's Stock Option Plan (the "Plan") as referenced in the
Registration Statement.
In rendering this opinion, we have relied upon, among other things, our
examination of such documents and records of the Company and certificates of its
officers and of public officials as we have deemed necessary for purposes of the
opinions expressed below.
Based upon the foregoing, we are of the opinion that:
1. The Company is duly incorporated, validly existing and in good standing
under the laws of the State of Tennessee; and
2. The issuance of the Plan Shares has been validly authorized by the Company
and, upon issuance pursuant to the terms of the Plan, the Plan Shares will
be legally issued, fully paid and non-assessable.
<PAGE>
Page2
Board of Directors - BankFirst Corporation
Re: Registration Statement on Form S-8
Relating to the Plan Shares Issuable Pursuant to the
BankFirst Corporation Stock Option Plan
May 19, 2000
We hereby consent to the filing of this opinion with the Commission as Exhibit
5.1 to the Registration Statement.
Sincerely yours,
/s/ Wilson S. Ritchie
-------------------------
Wilson S. Ritchie
EXHIBIT 15.1
May 17, 2000
BankFirst Corporation
625 Market Street
Knoxville, Tennessee 37902
We have reviewed, in accordance with standards established by the AICPA, the
unaudited interim financial information of BankFirst Corporation (the Company)
as of March 31, 2000 and for the year-to-date periods ended March 31, 2000 and
1999 as indicated in our report dated May 8, 2000. Because we did not perform an
audit, we expressed no opinion on that information.
We are aware that our report referred to above, which was included in your
quarterly report on Form 10-Q, is being incorporated by reference in the Form
S-8 Registration Statement.
We also are aware that our report referred to above, under Rule 436(c) under the
Securities Act of 1933, is not considered a part of the registration statement
prepared or certified by an accountant or a report prepared or certified by an
accountant within the meaning of Sections 7 and 11 of the Act.
Crowe, Chizek and Company LLP
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in the Form S-8 Registration
Statement of BankFirst Corporation, of our report dated January 21, 2000 on the
consolidated financial statements of BankFirst Corporation as of December 31,
1999 and 1998 and for each of the three years in the period ending December 31,
1999 as included in the registrant's annual report on Form 10-K.
Crowe, Chizek and Company LLP
Louisville, Kentucky
May 17, 2000
EXHIBIT 23.3
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We hereby consent to the inclusion by incorporation by reference in the
Registration Statement on Form S-8 of BankFirst Corporation, of our report dated
January 22, 1998 on the 1997 consolidated financial statements of First Franklin
Bancshares, Inc.
/s/ G.R. Rush & Company, P.C.
-----------------------------
G.R. Rush & Company, P.C.
