<PAGE>
As filed with the Securities and Exchange Commission on October __, 1996
REGISTRATION STATEMENT NO. _________
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------------
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
------------------------------
FIRST STERLING BANKS, INC.
(Exact name of registrant as specified in its charter)
Georgia 58-2104977
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
1200 Barrett Parkway
Kennesaw, Georgia 30144
(Address and Zip Code of Principal Executive Offices)
------------------------------
First Sterling Banks, Inc.1996 Substitute Incentive Stock Option Plan
(Full title of the Plan)
Edward C. Milligan
First Sterling Banks, Inc.
P. O. Box 2147
Marietta, Georgia 30061
(770) 499-2265
(Name and address and phone number (including area code) of agent for service)
WITH COPIES TO:
T. Kennerly Carroll, Jr.
Glass, McCullough, Sherrill & Harrold
1409 Peachtree Street, N.E.
Atlanta, Georgia 30309
(404) 885-6713
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------
Proposed maximum Proposed maximum
Title of securities Amount to be offering price per aggregate offering Amount of
to be registered registered share price Registration Fee
- -----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 50,000 $9.87* $493,500 $170.17
no par value shares
- -----------------------------------------------------------------------------------------------------------
</TABLE>
* Represents average under employee stock option plan of the following:
17,000 shares with option price of $13.00 per share; 17,500 shares
with option price of $7.90 per share; 8,500 shares with option price
of $9.03 per share; 2,000 shares with option price of $8.40 per
share; and 5,000 shares with option price of $8.17 per share.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents are incorporated by reference in this Registration
Statement:
(a) The Prospectus ("Prospectus") of First Sterling Banks, Inc. formerly
known as Westside Financial Corporation (the "Registrant") relating to
600,000 shares of its common stock issued in connection with the
merger of Eastside Holding Corporation and the Registrant which is
part of the Registration Statement under the Securities Act of 1933 on
Form S-4 filed with the Securities and Exchange Commission on May 23,
1996;
(b) The Registrant's Quarterly Reports on Form 10-QSB for the quarters
ended March 31, 1996 and June 30, 1996;
(c) Description of the Registrant's no par value Common Stock is contained
at pages 26 through 32 of the Prospectus.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference herein and to be a part hereof from
the date of the filing of such documents. Any statement contained herein or in
a document incorporated or deemed to be incorporated herein by reference shall
be deemed to be modified or superseded for purposes hereof to the extent that a
statement contained herein or in any subsequently filed document which also is,
or is deemed to be, incorporated herein by reference modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed to
constitute a part hereof, except as so modified or superseded.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
2
<PAGE>
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Indemnification of directors and officers of the Registrant is governed by
Sections 14-2-850 through 859 of the Official Code of Georgia as follows:
Section 14-2-850. PART DEFINITIONS.
As used in this part, the term:
(1) "Corporation" includes any domestic or foreign predecessor
entity of a corporation in a merger or other transaction in which the
predecessor's existence ceased upon consummation of the transaction.
(2) "Director" means an individual who is or was a director of a
corporation or an individual who, while a director of a corporation,
is or was serving at the corporation's request as a director, officer,
partner, trustee, employee, or agent of another foreign or domestic
corporation, partnership, joint venture, trust, employee benefit plan,
or other enterprise. A director is considered to be serving an
employee benefit plan at the corporation's request if his duties to
the corporation also impose duties on, or otherwise involve services
by, him to the plan or to participants in or beneficiaries of the
plan. Director includes, unless the context requires otherwise, the
estate or personal representative of a director.
(3) "Expenses" include attorney's fees.
(4) "Liability" means the obligation to pay a judgment,
settlement, penalty, fine (including an excise tax assessed with
respect to an employee benefit plan), or reasonable expenses incurred
with respect to a proceeding.
(5) "Party" includes an individual who was, is, or is threatened
to be made a named defendant or respondent in a proceeding.
(6) "Proceeding" means any threatened, pending, or completed
action, suit, or proceeding, whether civil, criminal, administrative,
or investigative and whether formal or informal.
Section 14-2-851. AUTHORITY TO INDEMNIFY.
(a) Except as provided in subsections (d) and (e) of this Code
section, a corporation may indemnify or obligate itself to indemnify
an individual made a party to a proceeding because he is or was a
director against liability incurred in the proceeding if he acted in
a manner he believed in good faith to be in or not
3
<PAGE>
opposed to the best interests of the corporation and, in the case of
any criminal proceeding, he had no reasonable cause to believe his
conduct was unlawful.
(b) A director's conduct with respect to an employee benefit
plan for a purpose he believed in good faith to be in the interests of
the participants in and beneficiaries of the plan is conduct that
satisfies the requirement of subsection (a) of this Code section.
(c) The termination of a proceeding by judgment, order,
settlement, or conviction, or upon a plea of nolo contendere or its
equivalent is not, of itself, determinative that the director did not
meet the standard of conduct set forth in subsection (a) of this Code
section.
(d) A corporation may not indemnify a director under this Code
section:
(1) In connection with a proceeding by or in the right of
the corporation in which the director was adjudged liable to the
corporation; or
(2) In connection with any other proceeding in which he was
adjudged liable on the basis that personal benefit was improperly
received by him.
(e) Indemnification permitted under this Code 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 14-2-852. MANDATORY INDEMNIFICATION.
Unless limited by its articles of incorporation, to the extent
that a director has been successful, on the merits or otherwise, in
the 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 a
director of the corporation, the corporation shall indemnify the
director against reasonable expenses incurred by him in connection
therewith.
Section 14-2-853. ADVANCE FOR EXPENSES.
(a) A corporation may pay for or reimburse the reasonable
expenses incurred by a director who is a party to a proceeding in
advance of final disposition of the proceeding if:
(1) The director furnishes the corporation a written
affirmation of his good faith belief that he has met the standard
of conduct set forth in subsection (a) of Code Section 14-2-851;
and
4
<PAGE>
(2) The 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 this part.
(b) The undertaking required by paragraph (2) of subsection (a)
of this Code section must be an unlimited general obligation of the
director but need not be secured and may be accepted without reference
to financial ability to make repayment.
Section 14-2-854. COURT-ORDERED INDEMNIFICATION AND ADVANCE FOR EXPENSES.
Unless a corporation's articles of incorporation provide otherwise, a
director of the corporation who is a party to a proceeding may apply
for indemnification or advances for expenses to the court conducting
the proceeding or to another court of competent jurisdiction. On
receipt of an application, the court after giving any notice the court
considers necessary may order indemnification or advances for expenses
if it determines:
(1) The director is entitled to mandatory indemnification
under Code Section 14-2-852, in which case the court shall also
order the corporation to pay the director's reasonable expenses
incurred to obtain court ordered indemnification;
(2) The director is fairly and reasonably entitled to
indemnification in view of all the relevant circumstances,
whether or not he met the standard of conduct set forth in
subsection (a) of Code Section 14-2-851 or was adjudged liable as
described in subsection (d) of Code Section 14-2-851, but if he
was adjudged so liable his indemnification is limited to
reasonable expenses incurred unless the articles of incorporation
or a bylaw, contract, or resolution approved or ratified by the
shareholders pursuant to Code Section 14-2-856 provides
otherwise; or
(3) In the case of advances for expenses, the director is
entitled, pursuant to the articles of incorporation, bylaws, or
any applicable resolution or agreement, to payment or
reimbursement of his reasonable expenses incurred as a party to a
proceeding in advance of final disposition of the proceeding.
Section 14-2-855. DETERMINATION AND AUTHORIZATION OF INDEMNIFICATION.
(a) A corporation may not indemnify a director under Code
Section 14-2-851 unless authorized thereunder and a determination has
been made in the
5
<PAGE>
specific case that indemnification of the director is permissible in
the circumstances because he has met the standard of conduct set forth
in subsection (a) of Code Section 14-2-851.
(b) The determination shall be made:
(1) By the board of directors by majority vote of a quorum
consisting of directors not at the time parties to the
proceeding;
(2) If a quorum cannot be obtained under paragraph (1) of
this subsection, 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;
(3) By special legal counsel:
(A) Selected by the board of directors or its
committee in the manner prescribed in paragraph (1) or (2)
of this subsection; or
(B) If a quorum of the board of directors cannot be
obtained under paragraph (1) of this subsection and a
committee cannot be designated under paragraph (2) of this
subsection, selected by majority vote of the full board of
directors (in which selection directors who are parties may
participate); or
(4) By the shareholders, but 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.
(c) Authorization of indemnification or an obligation to
indemnify and evaluation as to reasonableness of expenses shall be
made in the same manner as the determination that indemnification is
permissible, except that if the determination is made by special legal
counsel, authorization of indemnification and evaluation as to
reasonableness of expenses shall be made by those entitled under
paragraph (3) of subsection (b) of this Code section to select
counsel.
Section 14-2-856. SHAREHOLDER APPROVED INDEMNIFICATION.
(a) If authorized by the articles of incorporation or a bylaw,
contract, or resolution approved or ratified by the shareholders by a
majority of the votes entitled to be cast, a corporation may indemnify
or obligate itself to indemnify a director made a party to a
proceeding including a proceeding brought by or in the
6
<PAGE>
right of the corporation, without regard to the limitations in other
Code sections of this part.
(b) The corporation shall not indemnify a director under this
Code section for any liability incurred in a proceeding in which the
director is adjudged liable to the corporation or is subjected to
injunctive relief in favor of the corporation:
(1) For any appropriation, in violation of his duties, of
any business opportunity of the corporation;
(2) For acts or omissions which involve intentional
misconduct or a knowing violation of law;
(3) For the types of liability set forth in Code Section
14-2-832; or
(4) For any transaction from which he received an improper
personal benefit.
(c) Where approved or authorized in the manner described in
subsection (a) of this Code section, a corporation may advance or
reimburse expenses incurred in advance of final disposition of the
proceeding only if:
(1) The director furnishes the corporation a written
affirmation of his good faith belief that his conduct does not
constitute behavior of the kind described in subsection (b) of
this Code section; and
(2) The 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 this Code section.
Section 14-2-857. INDEMNIFICATION OF OFFICERS, EMPLOYEES, AND AGENTS.
Unless a corporation's articles of incorporation provide
otherwise:
(1) An officer of the corporation who is not a director is
entitled to mandatory indemnification under Code Section 14-2-852
and is entitled to apply for court order indemnification under
Code Section 14-2-854, in each case to the same extent as a
director; and
7
<PAGE>
(2) A corporation may also indemnify and advance expenses
to an officer, employee, or agent who is not a director to the
extent, consistent with public policy, that may be provided by
its articles of incorporation, bylaws, general or specific action
of its board of directors, or contract.
Section 14-2-858. INSURANCE.
A corporation may purchase and maintain insurance on behalf of an
individual who is or was a director, officer, employee, or agent of
the corporation or who, while a director, officer, employee, or agent
of the corporation, is or was serving at the request of the
corporation as a director, officer, partner, trustee, employee, or
agent of another foreign or domestic corporation, partnership, joint
venture, trust, employee benefit plan, or other enterprise against
liability asserted against or incurred by him in that capacity or
arising from his status as a director, officer, employee, or agent,
whether or not the corporation would have power to indemnify him
against the same liability under Code Section 14-2-851 or Code Section
14-2-852.
Section 14-2-859. APPLICATION OF PART.
(a) A provision treating a corporation's indemnification of or
advance for expenses to directors that is contained in its articles of
incorporation, bylaws, a resolution of its shareholders or board of
directors, or in a contract or otherwise, is valid only if and to the
extent the provision is consistent with this part. If articles of
incorporation limit indemnification or advance for expenses,
indemnification and advance for expenses are valid only to the extent
consistent with the articles.
(b) This part does not limit a corporation's power to pay or
reimburse expenses incurred by a director in connection with his
appearance as a witness in a proceeding at a time when he has not been
made a named defendant or respondent to the proceeding.
The Registrant's Bylaws currently provide that the Registrant shall
indemnify those persons permitted to be indemnified by Sections 14-2-850 through
14-2-859 outlined above. Officers and directors of the Registrant are presently
covered by insurance which (with certain exceptions and within certain
limitations) indemnifies them against any losses or liabilities arising from his
or her status as a director or officer. The cost of such insurance is borne by
the Registrant as permitted by the Bylaws of the Registrant and the laws of the
State of Georgia.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
8
<PAGE>
ITEM 8. EXHIBITS
The following exhibits are filed as part of the Registration Statement:
Exhibit Description
------- -----------
4.1 First Sterling Banks, Inc.1996 Substitute Incentive Stock
Option Plan.
4.2 Form of First Sterling Banks, Inc. 1996 Substitute
Incentive Stock Option Plan Incentive Stock Option Agreement
for options granted by Eastside Holding Corporation prior to
February 21, 1996.
4.3 Form of First Sterling Banks, Inc. 1996 Substitute Incentive
Stock Option Plan Incentive Stock Option Agreement for
options granted by Eastside Holding Corporation on February 21,
1996.
5 Opinion and Consent of Glass, McCullough, Sherrill & Harrold.
23.1 Consent of Glass, McCullough, Sherrill & Harrold (contained
in Exhibit 5).
23.2 Consent of Mauldin & Jenkins.
24 Powers of Attorney (included on pages 11 through 12).
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 of 1933;
(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.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered
9
<PAGE>
would not exceed that which was registered) and any deviation
from low or high and of the estimated maximum offering range may
be reflected in form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than twenty percent (20%)
change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement;
(iii) 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;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the registration statement is on Form S-3, Form S-8 or Form F-3, 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
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
2. That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at the time shall be deemed to
be the initial BONA FIDE offering thereof.
3. To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial BONA FIDE offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities Act of 1933 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
10
<PAGE>
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 of 1933 Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all 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 Kennesaw, State of Georgia, on the 16th day of
October, 1996.
FIRST STERLING BANKS, INC.
By: /s/ Edward C. Milligan
--------------------------------
Edward C. Milligan
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints EDWARD C. MILLIGAN as his true and lawful
attorney-in-fact and agent, each with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, with either having full authority to sign any and all amendments to
this Registration Statement, and to file the same, with exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents full power and
authority to do and perform each and every act and thing requisite or necessary
to be done regarding the aforesaid, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that either of
said attorneys-in-fact and agents, or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
11
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
- --------- ----- ----
/s/ Edward C. Milligan President, Chief Executive 10/16/96
- ------------------------- Officer and Director
Edward C. Milligan
SIGNATURE TITLE DATE
- --------- ----- ----
/s/ Barbara J. Bond Secretary (Principal financial 10/23/96
- ------------------------- and accounting officer)
Barbara J. Bond
/s/ P. Harris Hines Director 10/23/96
- -------------------------
P. Harris Hines
/s/ Harry L. Hudson, Jr. Director 10/16/96
- -------------------------
Harry L. Hudson, Jr.
/s/ John S. Thibadeau, Jr. Director 10/16/96
- -------------------------
John S. Thibadeau, Jr.
/s/ Benjamin H. Wofford Director 10/17/96
- -------------------------
Benjamin H. Wofford
12
<PAGE>
INDEX TO EXHIBITS
Sequentially
Exhibit Numbered
Number Description Page
- --------- ----------- --------
4.1 First Sterling Banks, Inc. 1996 15
Substitute Incentive Stock Option
Plan.
4.2 Form of First Sterling Banks, Inc. 20
1996 Substitute Incentive Stock
Option Plan Incentive Stock Option
Agreement for options granted by
Eastside Holding Corporation prior to
February 21, 1996.
4.3 Form of First Sterling Banks, Inc. 25
1996 Substitute Incentive Stock
Option Plan Incentive Stock Option
Agreement for options granted by
Eastside Holding Corporation on
February 21, 1996
5 Opinion and Consent of Glass, 31
McCullough, Sherrill & Harrold.
23.1 Consent of Glass, McCullough, 31
Sherrill & Harrold (contained
in Exhibit 5).
23.2 Consent of Mauldin & Jenkins. 34
24 Powers of Attorney (included on 11
pages 11 through 12).
<PAGE>
EXHIBIT 4.1
First Sterling Banks, Inc.1996 Substitute Incentive Stock Option Plan
<PAGE>
FIRST STERLING BANKS, INC.
1996 SUBSTITUTE INCENTIVE STOCK OPTION PLAN
SECTION 1 - PURPOSE. The purposes of the First Sterling Banks, Inc.
1996 Substitute Incentive Stock Option Plan (the "Plan") are: (i) for First
Sterling Banks, Inc. (the "Company") to assume the Eastside Holding
Corporation 1995 Substitute Incentive Stock Option Plan for The Eastside
Bank & Trust Company Incentive Stock Option Plan, as amended February 17,
1993 (the "Former Plan"); (ii) for the Company to assume all outstanding
options granted under the Former Plan; (iii) to assist the Company and its
subsidiaries, including The Eastside Bank & Trust Company (the "Bank") in
securing and retaining key employees of outstanding ability by making it
possible to offer them an increased incentive to join or continue in the
service of the Company and Bank; and (iv) to increase the key employees'
efforts for the Company's and Bank's welfare by participating in the
ownership and growth of the Company. The Plan will be administered by the
Board of Directors of the Company (the "Board"), whose construction and
interpretation of the Plan and of agreements under the Plan will be final and
binding. The options granted under the Plan are intended to be "Incentive
Stock Options" within the meaning of Section 422 of the Internal Revenue Code
of 1986.
SECTION 2 - GRANT OF OPTIONS. The Board will grant options to purchase
shares of the common stock of the Company (the "Stock") to certain of the
full-time key employees (the "Participants") of the Company or the Bank who
must be employed by the Company or the Bank on the dates of grant and
exercise except as permitted in Section 4(c) below. Key employees to whom
options may be granted under the Plan will be those selected by the Board
from time to time who, in the sole discretion of the Board, have contributed
in the past or who may be expected to contribute materially in the future to
the successful performance of the Company or the Bank.
SECTION 3 - AMOUNT OF STOCK. Subject to adjustments made pursuant to the
provisions of Section 10, the aggregate amount of Stock which may be
purchased upon the exercise of all options which may be granted under the
Plan shall not exceed 50,000 shares.
SECTION 4 - EXERCISE OF OPTIONS; TERMINATION OF OPTIONS; OPTION PRICE.
(a) EXERCISE OF OPTIONS. Subject to the provisions of Section 4(c)
herein, the period during which each option may be exercised shall be fixed
by the Board at the time such option is granted, but such period shall expire
not later than ten (10) years from the date the option is granted.
<PAGE>
(b) OPTION PRICE. The price at which shares of Stock may be
purchased under an option granted pursuant to this Plan shall be determined
by the Board, but shall not be less than the fair market value of such shares
as determined by the Board on the date that the option is granted. The
determination by the Board in good faith of the fair market value of the
shares subject to any option shall be conclusive for all purposes hereunder.
The option price shall be subject to adjustments in accordance with
provisions of Section 10 herein.
(c) TERMINATION OF OPTIONS. All unexercised options will terminate
upon (i) the lapse by their terms, or (ii) the termination of employment of
the Participant for any reason excluding death, retirement or disability.
All unexercised options will terminate ninety (90) days after the
termination of employment by a Participant due to death, retirement or
disability. During such 90-day period, all unexercised options may be
exercised by the Participant or his legal representative in the event of
death or mental disability.
All unexercised options will terminate sixty (60) days after all
Participants are notified by the Company of the intended sale or exchange of
substantially all of the outstanding Stock, sale of substantially all of the
assets of the Company, or the merger, liquidation or dissolution of the
Company.
SECTION 5 - LIMITATIONS. Options shall not be granted to any individual
pursuant to this Plan, the effect of which would be to permit such person to
first exercise options, in any calendar year, for the purchase of shares
having a fair market value in excess of $100,000 (determined at the time of
the grant of the options in the manner described in Section 4(b) above). A
Participant may exercise options for the purchase of shares valued in excess
of $100,000 (determined at the time of grant of the options in the manner
described in Section 4(b) above) in a calendar year, but only if the right to
exercise such options shall have first become available in prior calendar
years.
No Participant owning more than ten percent (10%) of the combined voting
power of all classes of Stock of the Company then outstanding may purchase
Stock under this Plan for less than one hundred ten percent (110%) of its
fair market value on the date of grant nor may any option to such a
Participant be exercisable on a date later than five (5) years from the date
of grant.
SECTION 6 - NONTRANSFERABILITY OF OPTIONS; RESTRICTIONS ON ISSUANCE OF
STOCK. Options granted under this Plan are nontransferable except by will or
by the laws of descent and distribution. No shares shall be delivered
pursuant to any exercise of an option until the requirements of such laws and
regulations, as may be deemed by the Board to be applicable to them, are
satisfied and until payment in full in cash or by check of the option price
for them is received by the Company.
2
<PAGE>
SECTION 7 - EFFECTIVE DATE. The effective date of this Plan is October 7,
1996.
SECTION 8 - PARTICIPANT'S RIGHTS. A Participant will have no rights as a
shareholder until a stock certificate for the Stock is issued. Nothing in
the Plan, in any Incentive Stock Option Agreement or resulting stock
ownership, will give to a Participant any right to continuation of employment.
SECTION 9 - OTHER TERMS AND CONDITIONS. Any option granted hereunder
shall contain additional terms which are not inconsistent with the terms of
this Plan, as the Board deems necessary or desirable, provided that any such
option shall qualify as an "Incentive Stock Option" within the meaning of
Section 422 of the Internal Revenue Code of 1986.
SECTION 10 - CAPITAL ADJUSTMENTS AFFECTING STOCK. In the event of a
capital adjustment resulting from a stock dividend, stock split,
reorganization, merger, consolidation, or a combination or exchange of
shares, the number of shares of stock subject to this Plan and the number of
shares under any option granted hereunder shall be adjusted consistent with
such capital adjustment. The price of any share under option shall be
adjusted so that there will be no change in the aggregate purchase price
payable upon the exercise of any such option. The granting of an option
pursuant to this Plan shall not affect in any way the right or power of the
Company to make adjustments, reorganizations, reclassifications, or changes
of its capital or business structure or to merge, consolidate, dissolve,
liquidate or sell or transfer all or any part of its business or assets.
SECTION 11 - AMENDMENTS SUSPENSION OR TERMINATION. The Board of the
Company shall have the right, at any time, to amend, suspend or terminate the
Plan; provided, however, no amendments shall be made in the Plan without the
approval of the stockholders of the Company which:
(a) Increase the total number of shares for which options may be
granted under this Plan for all key employees or for any one of them except
as provided in Section 10.
(b) Change the minimum purchase price for the optioned shares
except as provided in Section 10.
(c) Affect outstanding options or any unexercised rights thereunder
except as provided in Section 10.
(d) Extend the option period provided in Section 4(a).
(e) Extend the termination date of the Plan.
SECTION 12 - EFFECTIVE DATE, TERM AND APPROVAL. The Plan shall take
effect on October 7, 1996. Unless an earlier termination date is specified
under Section 11 above, this Plan shall
3
<PAGE>
terminate on May 30, 2000. No options may be granted under the Plan after
its termination date, but any option granted prior thereto may be exercised
in accordance with its terms. The Plan and all options granted pursuant to
it are subject to all laws, approvals, requirements and regulations of any
governmental authority which may be applicable thereto and, notwithstanding
any provisions of the Plan or option agreement, the holder of an option shall
not be entitled to exercise his or her option nor shall the Company be
obligated to issue any shares to the holder if such exercise or issuance
shall constitute a violation by the holder or the Company of any provisions
of any such approval requirements, law or regulations.
4
<PAGE>
EXHIBIT 4.2
Form of First Sterling Banks, Inc.1996 Substitute Incentive Stock Option Plan
Incentive Stock Option Agreement for options granted
by Eastside Holding Corporation prior to
February 21, 1996
<PAGE>
FIRST STERLING BANKS, INC.
1996 SUBSTITUTE INCENTIVE STOCK OPTION PLAN
INCENTIVE STOCK OPTION AGREEMENT
WITH
--------------------------------------
THIS INCENTIVE STOCK OPTION AGREEMENT (the "Option Agreement") is made
and entered into effective as of the 7th day of October, 1996, by and between
FIRST STERLING BANKS, INC. (the "Company") and ________________________, a
resident of the State of Georgia (the "Grantee") and an employee of The
Eastside Bank & Trust Company (the "Bank") a wholly-owned subsidiary of the
Company. This Option Agreement is entered into by the Company and the
Grantee pursuant to the First Sterling Banks, Inc. 1996 Substitute Incentive
Stock Option Plan (the "Plan"). The Plan is incorporated herein by reference
and made a part of this Option Agreement. This Option Agreement is in
replacement of a similar Option Agreement between the Grantee and Eastside
Holding Corporation dated September 21, 1995 which is hereby terminated and
cancelled.
1. STOCK OPTION.
The Company hereby grants to Grantee the option (the "Option") to
purchase ____________________________ (__________) shares (the "Shares") of
the common stock (the "Common Stock") of the Company in accordance with the
terms and subject to the restrictions hereinafter set forth.
The Option has been granted on the effective date of this Option
Agreement and shall terminate on February 16, 2003, unless sooner terminated
in whole or in part as follows:
(a) The Option shall be fully terminated immediately upon the
termination of employment of the Grantee by the Bank and the Company,
excluding termination by reason of death, retirement or disability.
(b) The Option shall be fully terminated in the event the Grantee fails
to exercise the Option in accordance with Section 2 hereof within ninety (90)
days after the date of the termination of Grantee's employment with the Bank
and the Company due to death, retirement or disability. During such 90-day
period all unexercised options may be exercised by the Grantee or his legal
representative in the event of death or mental disability.
2. EXERCISE OF OPTION.
The Option may be exercised in lots of not less than one hundred (100)
Shares each unless the exercise for a lesser number of Shares would exhaust
the number of Shares available for purchase at the time of exercise. In
addition, the Option may be exercised only during a period (the "Exercise
Period") commencing on the effective date of this Option Agreement and ending
on the date that the Option is terminated under paragraph 1 above.
<PAGE>
The Option shall be exercised by written notice directed to the Secretary
of the Company at 1200 Barrett Parkway, Kennesaw, Georgia 30144. Such
written notice shall be accompanied by payment in full in cash or by check of
the Option Price for the number of Shares specified in such written notice.
3. OPTION PRICE.
The price per share at which Shares may be purchased pursuant to exercise
of the Option (the "Option Price") shall be $________ per Share.
4. NONTRANSFERABILITY.
The Option is not transferable except by will or by the laws of descent
and distribution.
5. LIMITATION OF RIGHTS.
The Grantee or the personal representative of the Grantee shall have no
rights as a stockholder with respect to the Shares covered by the Option
until the Grantee or the personal representative of the Grantee shall become
the holder of record of such Shares. Neither the Plan, the granting of the
Option, nor this Option Agreement shall impose any obligation on the Bank or
the Company or any subsidiary thereof to continue the employment of the
Grantee.
6. STOCK RESERVE.
The Company shall at all times during the Exercise Period under this
Option Agreement reserve and keep available such number of Shares of Common
Stock as will be sufficient to satisfy the requirements of this Option
Agreement and shall pay all original issue taxes (if any) on the exercise of
the Option and all other fees and expenses necessarily incurred by the
Company in connection therewith.
7. GRANTEE'S COVENANT.
The Grantee hereby agrees to use his best efforts to provide services to
the Bank or Company in a workmanlike manner and to promote the Bank's or
Company's interests.
8. RESTRICTIONS ON TRANSFER AND PLEDGE.
Except as provided in Section 4 hereof, the Option and all rights and
privileges granted hereunder shall not be transferred, assigned pledged or
hypothecated in any way, whether by operation of law or otherwise, and shall
not be subject to execution, attachment or similar process. Upon any attempt
to transfer, assign, pledge, hypothecate or otherwise dispose of the Option
or any right or privilege granted hereunder, except as provided herein, or
upon the
2
<PAGE>
levy or any attachment or similar process upon the rights and privileges
herein conferred, the Option and the rights and privileges hereunder shall
become immediately null and void.
9. RESTRICTIONS ON ISSUANCE OF SHARES.
If at any time the Board of Directors of the Company shall determine, in
its discretion, that listing, registration or qualification of the Shares
covered by the Option upon any securities exchange or under any state or
federal law, or the consent or approval of any governmental regulatory body,
is necessary or desirable as a condition to the exercise of the Option, the
Option may not be exercised in whole or in part unless and until such
listing, registration, qualification, consent or approval shall have been
effected or obtained free of any conditions not acceptable to the Board of
Directors of the Company.
10. PLAN CONTROLS.
In the event of any actual or alleged conflict between the provisions of
the Plan and the provisions of this Option Agreement, the provisions of the
Plan shall be controlling and determinative.
11. SUCCESSORS.
This Agreement shall be binding upon any successor of the Company in
accordance with the terms of this Option Agreement and the Plan.
12. INTERPRETATION.
It is the intent of the parties hereto that the Option qualify for
incentive stock option treatment pursuant to, and to the extent permitted by,
Section 422 of the Internal Revenue Code of 1986. All provisions hereof are
intended to have, and shall be construed to have, such meanings as are set
forth in applicable provisions of the Code and Treasury Regulations to allow
the Option to so qualify.
3
<PAGE>
IN WITNESS WHEREOF, the Company, acting by and through its duly
authorized officers, has caused this Option Agreement to be executed and the
Grantee has executed this Option Agreement, all as of the day and year first
above written.
FIRST STERLING BANKS, INC.:
By:
--------------------------------
Edward C. Milligan, President
GRANTEE:
By:
--------------------------------
Name:
---------------------------
4
<PAGE>
EXHIBIT 4.3
Form of First Sterling Banks, Inc.1996 Substitute Incentive Stock Option Plan
Incentive Stock Option Agreement for options granted
by Eastside Holding Corporation on
February 21, 1996
<PAGE>
FIRST STERLING BANKS, INC.
1996 SUBSTITUTE INCENTIVE STOCK OPTION PLAN
INCENTIVE STOCK OPTION AGREEMENT
WITH
------------------------------
THIS INCENTIVE STOCK OPTION AGREEMENT (the "Option Agreement") is made and
entered into effective as of the 7th day of October, 1996, by and between FIRST
STERLING BANKS, INC. (the "Company") and ______________________________, a
resident of the State of Georgia (the "Grantee") and an employee of The
Eastside Bank & Trust Company (the "Bank") a wholly-owned subsidiary of the
Company. This Option Agreement is entered into by the Company and the Grantee
pursuant to the First Sterling Banks, Inc. 1996 Substitute Incentive Stock
Option Plan (the "Plan"). The Plan is incorporated herein by reference and
made a part of this Option Agreement. This Option Agreement is in replacement
of a similar Option Agreement between the Grantee and Eastside Holding
Corporation ("EHC") dated February 21, 1996, which is hereby terminated and
cancelled.
1. STOCK OPTION.
The Company hereby grants to Grantee the option (the "Option") to purchase
______________________ (_________) shares (the "Shares") of the common stock
(the "Common Stock") of the Company in accordance with the terms and subject to
the restrictions hereinafter set forth.
The Option has been granted on the effective date of this Option Agreement
and shall terminate on February 20, 2006, unless sooner terminated in whole or
in part as follows:
(a) The Option shall be fully terminated immediately upon the termination
of employment of the Grantee by the Bank and the Company, excluding termination
by reason of death, retirement or disability.
(b) The Option shall be fully terminated in the event the Grantee fails to
exercise the Option in accordance with Section 2 hereof within ninety (90) days
after the date of the termination of Grantee's employment with the Bank and the
Company due to death, retirement or disability. During such 90-day period all
unexercised options may be exercised by the Grantee or his legal representative
in the event of death or mental disability.
2. EXERCISE OF OPTION.
The Option granted hereunder may be exercised at any time and from time to
time during the period (the "Exercise Period") commencing on the effective date
of this Option Agreement and ending on the date that the Option is terminated
under paragraph 1 above, provided and to the extent that this Option has vested
and is exercisable as provided hereinafter and in the Plan. The Option may be
exercised in lots of not less than one hundred
<PAGE>
(100) Shares each unless the exercise for a lesser number of Shares would
exhaust the number of Shares available for purchase at the time of exercise.
The Option shall be exercised by written notice directed to the Secretary
of the Company at 1200 Barrett Parkway, Kennesaw, Georgia 30144. Such written
notice shall be accompanied by payment in full in cash or by check of the
Option Price for the number of Shares specified in such written notice.
3. OPTION PRICE.
The price per share at which Shares may be purchased pursuant to exercise
of the Option (the "Option Price") shall be $13.00 per Share.
4. VESTING OF OPTION.
(a) YEARS OF SERVICE. The Option hereby granted shall vest only
during the Grantee's continuous employment with the Company (including EHC)
and/or the Bank and/or any subsidiary or affiliate thereof, and shall be
exercisable only upon and after such vesting and prior to its termination, by
Grantee in accordance with the following schedule (subject to earlier vesting
and exercise as provided in subparagraph (b) below):
One-Third (1/3) of Shares Commencing on the 1st anniversary
of February 21, 1996
Additional one-third (1/3) Commencing on the 2nd anniversary
of Shares of February 21, 1996
Additional one-third (1/3) Commencing on the 3rd anniversary
of Shares of February 21, 1996
(b) EARLIER VESTING. Notwithstanding the provisions of subparagraph
(a) above, in the event of a Change in Control (as hereinafter defined) during
the Grantee's employment with the Company and/or the Bank and/or any subsidiary
or affiliate thereof, the Option hereby granted shall vest with respect to all
of the Shares immediately prior to such Change in Control.
The term "Change in Control" shall mean:
(i) The acquisition (other than from the Company) by any person,
entity or "group" within the meaning of Sections 13(d)(3) or 14(d)(2) of
the Securities Exchange Act of 1934 ("34 Act") (excluding, for this
purpose, the Company, the Bank, or any of their subsidiaries, or any
employee benefit plan of the Company, the Bank, or any of their
subsidiaries) of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the 34 Act) of more than 50% of either the then
outstanding shares of
2
<PAGE>
Common Stock or of the combined voting power of the Company's then
outstanding voting securities entitled to vote generally in the election
of directors; or
(ii) Individuals who, as of the date hereof, constitute the board of
directors of the Company ("Incumbent Board") cease for any reason to
constitute at least a majority of the board of directors, provided that any
individual becoming a director subsequent to the date hereof whose
election, or nomination for election by the Company's shareholders, was
approved by a vote of at least a majority of the directors then comprising
the Incumbent Board shall be considered as though such individual is a
member of the Incumbent Board; or
(iii) Approval by the shareholders of the Company of the sale of
all or substantially all of the assets of the Company or of a merger,
consolidation or other reorganization in each case, with respect to which
persons who were the shareholders of the Company and optionees immediately
prior to such merger, consolidation or other reorganization, immediately
thereafter, do not own more than 50% of the combined voting power entitled
to vote generally in the election of directors of the merged, consolidated
or reorganized corporation's then outstanding voting securities; provided,
however, in such event the Change in Control will be deemed to have
occurred immediately prior to the merger, consolidation or other
reorganization.
5. NONTRANSFERABILITY.
The Option is not transferable except by will or by the laws of descent and
distribution.
6. LIMITATION OF RIGHTS.
The Grantee or the personal representative of the Grantee shall have no
rights as a stockholder with respect to the Shares covered by the Option until
the Grantee or the personal representative of the Grantee shall become the
holder of record of such Shares. Neither the Plan, the granting of the Option,
nor this Option Agreement shall impose any obligation on the Bank or the
Company or any subsidiary thereof to continue the employment of the Grantee.
7. STOCK RESERVE.
The Company shall at all times during the Exercise Period under this Option
Agreement reserve and keep available such number of Shares of Common Stock as
will be sufficient to satisfy the requirements of this Option Agreement and
shall pay all original issue taxes (if any) on the exercise of the Option and
all other fees and expenses necessarily incurred by the Company in connection
therewith.
8. GRANTEE'S COVENANT.
The Grantee hereby agrees to use his best efforts to provide services to
the Bank or Company in a workmanlike manner and to promote the Bank's or
Company's interests.
3
<PAGE>
9. RESTRICTIONS ON TRANSFER AND PLEDGE.
Except as provided in Section 5 hereof, the Option and all rights and
privileges granted hereunder shall not be transferred, assigned pledged or
hypothecated in any way, whether by operation of law or otherwise, and shall
not be subject to execution, attachment or similar process. Upon any attempt to
transfer, assign, pledge, hypothecate or otherwise dispose of the Option or any
right or privilege granted hereunder, except as provided herein, or upon the
levy or any attachment or similar process upon the rights and privileges herein
conferred, the Option and the rights and privileges hereunder shall become
immediately null and void.
10. RESTRICTIONS ON ISSUANCE OF SHARES.
If at any time the Board of Directors of the Company shall determine, in
its discretion, that listing, registration or qualification of the Shares
covered by the Option upon any securities exchange or under any state or
federal law, or the consent or approval of any governmental regulatory body, is
necessary or desirable as a condition to the exercise of the Option, the Option
may not be exercised in whole or in part unless and until such listing,
registration, qualification, consent or approval shall have been effected or
obtained free of any conditions not acceptable to the Board of Directors of the
Company.
11. PLAN CONTROLS.
In the event of any actual or alleged conflict between the provisions of
the Plan and the provisions of this Option Agreement, the provisions of the
Plan shall be controlling and determinative.
12. SUCCESSORS.
This Agreement shall be binding upon any successor of the Company in
accordance with the terms of this Option Agreement and the Plan.
13. INTERPRETATION.
It is the intent of the parties hereto that the Option qualify for
incentive stock option treatment pursuant to, and to the extent permitted by,
Section 422 of the Internal Revenue Code of 1986. All provisions hereof are
intended to have, and shall be construed to have, such meanings as are set
forth in applicable provisions of the Code and Treasury Regulations to allow the
Option to so qualify.
4
<PAGE>
IN WITNESS WHEREOF, the Company, acting by and through its duly authorized
officers, has caused this Option Agreement to be executed and the Grantee has
executed this Option Agreement, all as of the day and year first above written.
FIRST STERLING BANKS, INC.:
By:
--------------------------------
Edward C. Milligan, President
GRANTEE:
By:
--------------------------------
Name:
---------------------------
5
<PAGE>
EXHIBIT 5
Opinion and Consent of Glass, McCullough, Sherrill & Harrold
<PAGE>
[LETTERHEAD]
September 25, 1996
First Sterling Banks, Inc.
P. O. Box 2147
Marietta, Georgia 30061
RE: FIRST STERLING BANKS, INC. 1996 SUBSTITUTE INCENTIVE STOCK OPTION PLAN
Ladies and Gentlemen:
This opinion is given in connection with the filing by First Sterling
Banks, Inc., a corporation organized under the laws of the State of Georgia
(the "Company"), with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, of a Registration Statement on Form S-8
(the "Registration Statement") with respect to the registration of 50,000
shares of the no par value Common Stock of the Company ("Company Common
Stock") which may be issued pursuant to the exercise of stock options (the
"Options") under the First Sterling Banks, Inc. 1996 Substitute Incentive
Stock Option Plan (the "Plan").
In rendering this opinion, we have examined such corporate records and
documents as we have deemed relevant and necessary as the basis for the
opinion set forth herein, including the Articles of Incorporation and Bylaws
of the Company and certain resolutions of the Board of Directors of the
Company relating to the Plan.
For purposes of this opinion, we assume that all awards of Options have
been or will be granted in accordance with the Plan.
Based on the foregoing, it is our opinion that the shares of Company
Common Stock to be issued upon the exercise of Options, in accordance with
the terms of the Plan, upon receipt in
<PAGE>
First Sterling Banks, Inc.
September 25, 1996
Page 2
full by the Company of the consideration prescribed for each share pursuant
to the Options, will be duly authorized, validly issued, fully paid and
nonassessable under the Georgia Business Corporation Code as in effect on
this date.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement.
Sincerely,
GLASS, McCULLOUGH, SHERRILL & HARROLD
/s/ T. Kennerly Carroll
<PAGE>
EXHIBIT 23.2
Consent of Mauldin & Jenkins
<PAGE>
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated January 5, 1996, appearing on Page
F-48 of the Prospectus filed as part of the Registration Statement of
Westside Financial Corporation (now known as First Sterling Banks, Inc.) on
Form S-4 filed with the Securities and Exchange Commission on May 23, 1996.
/s/ MAULDIN & JENKINS, LLC
Atlanta, Georgia
October 29, 1996
