<PAGE>
As filed with the Securities and Exchange Commission on March 17, 1999
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. 1997 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 telephone number (including area code) of agent
for service)
WITH COPIES TO:
T. Kennerly Carroll, Jr.
Miller & Martin LLP
100 Galleria Parkway, N.W.
12th Floor
Atlanta, Georgia 30339
(770) 850-6146
CALCULATION OF REGISTRATION FEE
<TABLE>
- ------------------------------------------------------------------------------------------
Proposed maximum Proposed maximum
Title of securities Amount to be offering price aggregate offering Amount of
to be registered registered share prior Registration Fee
<S> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------
Common Stock, 200,000 $13.03* $2,606,831.88 $724.70
no par value shares
- ------------------------------------------------------------------------------------------
</TABLE>
Page 1 of 29 Pages
<PAGE>
*Represents average under employee stock option plan of the following: 10,000
shares with option price of $16.50 per share; 6,250 shares with option price of
$15.00 per share; 4,560 shares with option price of $14.25 per share; 22,200
shares with option price of $12.50 per share; 44,900 shares with option price of
$9.25 per share; and 112,090 shares at $14.19 per share which is the average
high and low price reported within 5 business days prior to the date of filing
in accordance with Rule 457(c).
Page 2 of 29 Pages
<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 Registrant's Annual Report on Form 10-KSB for its fiscal
year ended December 31, 1997;
(b) The Registrant's Quarterly Report for the quarter ended
September 30, 1998;
(c) Description of the Registrant's no par value Common Stock is
contained at pages 26 through 32 of the 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 (File Number 333-3116).
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 modified or superseded.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
Page 3 of 29 Pages
<PAGE>
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Registrant's Bylaws currently provide that, except in
cases where the proceeding is by or in the right of the Registrant or the
director or officer is adjudged liable on the basis that he or she improperly
received a personal benefit, the Registrant shall indemnify any officer or
director who is made a party to a proceeding because he or she is or was a
director against liability incurred in the proceeding if he or she acted in a
manner he or she believed in good faith to be in or not opposed to the
Registrant's best interests and in the case of a criminal proceeding he or she
had no reasonable cause to believe his or her conduct was unlawful. 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.
ITEM 8. EXHIBITS
The following exhibits are filed as part of the Registration
Statement:
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION
<S> <C>
4.1 First Sterling Banks, Inc. 1997 Incentive Stock Option Plan
4.2 Forms of First Sterling Banks, Inc. 1997 Incentive Stock
Option Plan Stock Option Agreement
5 Opinion and Consent of Miller & Martin LLP
23.1 Consent of Miller & Martin LLP (contained in Exhibit 5)
23.2 Letter on Unaudited Interim Financial Information
and Consent of Mauldin & Jenkins
24 Powers of Attorney (included on page 7)
</TABLE>
ITEM 9. UNDERTAKINGS
(a) The undersigned Registrant undertakes:
Page 4 of 29 Pages
<PAGE>
1. To file, during any period in which it offers or
sells securities, a post-effective amendment to this
Registration Statement to:
(i) Include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) Reflect in the prospectus any facts or events which,
individually or together, represent a fundamental change in
the information in the registration statement; and
notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was
registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the
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 a twenty percent (20%) change
in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement; and
(iii) Include any additional or changed material information on
the plan of distribution;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply
if 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 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
Page 5 of 29 Pages
<PAGE>
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) The undersigned Registrant hereby undertakes to deliver or
cause to be delivered with the prospectus, to each person to whom the
prospectus is sent or given, the latest annual report to security
holders that is incorporated by reference in the prospectus and
furnished pursuant to and meeting the requirements of Rule 14a-3 or
Rule 14c-3 under the Securities Exchange Act of 1934; and, where
interim financial information required to be presented by Article 3 of
Regulation S-X are not set forth in the prospectus, to deliver, or
cause to be delivered to each person to whom the prospectus is sent or
given, the latest quarterly report that is specifically incorporated by
reference in the prospectus to provide such interim financial
information.
(d) 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 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 16 day of March,
1999.
FIRST STERLING BANKS, INC.
By: /s/ EDWARD C. MILLIGAN
-------------------------------------
Edward C. Milligan
President and Chief Executive Officer
Page 6 of 29 Pages
<PAGE>
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.
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.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/S/ EDWARD C. MILLIGAN President, Chief Executive 3/16/99
- --------------------------- Officer and Director ----------
Edward C. Milligan
SIGNATURE TITLE DATE
/S/ BARBARA J. BOND Secretary (Principal financial 3/16/99
- --------------------------- and accounting officer) -----------
Barbara J. Bond
/S/ P. HARRIS HINES Director 3/16/99
- --------------------------- -----------
P. Harris Hines
/S/ HARRY L. HUDSON, JR. Director 3/16/99
- --------------------------- -----------
Harry L. Hudson, Jr.
/S/ JOHN S. THIBADEAU, JR. Director 3/16/99
- --------------------------- ------------
John S. Thibadeau, Jr.
/S/ BENJAMIN H. WOFFORD Director 3/16/99
- --------------------------- ------------
Benjamin H. Wofford
</TABLE>
Page 7 of 29 Pages
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Sequentially
Exhibit Numbered
Number Description Page
- ------- ----------- -----------
<S> <C> <C>
4.1 First Sterling Banks, Inc. 1997
Incentive Stock Option Plan 10
4.2 Forms of First Sterling Banks, Inc. 1997
Incentive Stock Option Plan Stock Option
Agreement 16
5 Opinion and Consent of Miller & Martin LLP 26
23.1 Consent of Miller & Martin LLP (contained in
Exhibit 5) 26
23.2 Letter on Unaudited Interim Financial Information
and Consent of Mauldin & Jenkins 29
24 Powers of Attorney (included on page 7) 7
</TABLE>
Page 8 of 29 Pages
<PAGE>
EXHIBIT 4.1
First Sterling Banks, Inc. 1997 Incentive Stock Option Plan
Page 9 of 29 Pages
<PAGE>
FIRST STERLING BANKS, INC.
1997 INCENTIVE STOCK OPTION PLAN
1. DEFINITIONS
a. "Code" - Internal Revenue Code of 1986, as amended.
b. "Committee" - the Compensation Committee of the Board of Directors.
c. "Common Stock" - common voting stock of the Company.
d. "Company" - FIRST STERLING BANKS, INC.
e. "Board" - voting members of the Board of Directors of the Company.
f. "Option" - right to purchase shares of Common Stock.
g. "Option Agreement" - formal agreement for each grant with specific
terms and conditions not inconsistent with this Plan.
h. "Optionee"- an eligible person under Section 5 below who has been
granted options under Plan.
i. "Plan"- First Sterling Banks, Inc. 1997 Incentive Stock Option Plan.
j. "Subsidiary" - a subsidiary of the Company or a subsidiary of a
subsidiary.
2. PURPOSE
The purposes of the First Sterling Banks, Inc. 1997 Incentive Stock
Option Plan are: (i) to assist the Company and the Subsidiaries 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/or the Subsidiaries; and (ii) to
increase the key employees' efforts for the Company's and or the
Subsidiaries' welfare by participating in the ownership and growth of
the Company. The Options granted under the Plan are intended to be
"Incentive Stock Options" within the meaning of Section 422 of the
Code.
3. SHARES SUBJECT TO THE PLAN
Subject to adjustments pursuant to the provisions of Section 14, there
shall be authorized and reserved for issuance upon the exercise of
Options to be granted under the Plan, 100,000 shares of Common Stock.
4. ADMINISTRATION
The Committee whose members are not participants in the Plan will have
complete authority to interpret the Plan, make grants, and determine
terms and conditions within the context of the Plan.
Page 10 of 29 Pages
<PAGE>
5. ELIGIBILITY
The following persons are eligible to receive Options under the Plan:
Full-time key employees of the Company or a Subsidiary who are selected
by the Committee from time to time and who, in the opinion of the
Committee, have contributed in the past or who may be expected to
contribute materially in the future to the successful performance of
the Company and/or the Subsidiaries.
6. GRANTING OF OPTIONS; OPTION EXERCISE PRICE
All Options granted under the Plan are intended to be "Incentive Stock
Options" within the meaning of Section 422 of the Code and shall be
evidenced by an Option Agreement. The Board, upon recommendation of the
Committee, may grant Options to full-time key employees of the Company
or a Subsidiary as desirable. Any Option granted hereunder shall have a
per share option exercise price at least equal to the fair market value
of a share of the Common Stock on the date of the grant. The Option
exercise price shall be subject to adjustments in accordance with the
provisions of Section 14 herein.
7. TERM OF OPTION
Subject to the provisions of Section 9 herein, the period during which
each Option may be exercised shall be fixed by the Committee at the
time such Option is granted, but such period shall expire not later
than ten years from the date the Option is granted. Except in the case
of any merger, consolidation or reorganization as described in Section
14, no Option granted under the Plan may be exercised prior to six
months after the date it is granted.
8. MANNER OF EXERCISE
The Options shall be exercised by written notice, delivered to the
Secretary of the Company and signed by the Optionee or his or her
successors stating the number of shares with respect to which the
Option is being exercised. Payment in full of the Option price of the
said shares must be made at the time of exercise, and payment may be
made in cash or shares of the Common Stock previously held by the
Optionee or a combination. Payment in shares may be made with shares
received upon the exercise or partial exercise of an Option, whether or
not involving a series of exercises or partial exercises and whether or
not share certificates for such shares surrendered have been delivered
to the Optionee. Shares surrendered in payment of the Option price
shall be valued at the fair market value as of the date of the
exercise.
Page 11 of 29 Pages
<PAGE>
9. TERMINATION OF OPTIONS
All unexercised Options will terminate upon (i) the lapse by their
terms, (ii) immediately upon the termination of the Optionee's
employment with the Company and the Subsidiaries, except by reason of
death, retirement or disability, or (iii) ninety (90) days after the
termination of the Optionee's employment with the Company and the
Subsidiaries because of death, disability or retirement. During such
90-day period, all unexercised Options may be exercised by the Optionee
or his legal representative in the event of death or mental disability.
10. 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). Optionee may exercise options for the purchase of
shares valued in excess of $100,000 (determined at the time of grant of
the Options) in a calendar year, but only if the right to exercise such
Options shall have first become available in prior calendar years.
No Optionee owning more than ten percent (10%) of the combined voting
power of all classes of stock of the Company then outstanding may
purchase Common 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 granted to such a person be exercisable on a date later than
five (5) years from the date of grant.
11. NONTRANSFERABILITY OF OPTIONS; RESTRICTIONS ON ISSUANCE OF
COMMON 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 as described in Section 6
of the Option price is received by the Company.
12. RIGHTS OF OPTIONEE
An Optionee will have no rights as a shareholder until a stock
certificate for the Common Stock is issued. Nothing in the Plan, in any
Option Agreement or resulting stock ownership, will give to an Optionee
any right to continuation of employment.
Page 12 of 29 Pages
<PAGE>
13. 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 or the
Committee deems necessary or desirable, provided that any such Option
shall qualify as an "Incentive Stock Option" within the meaning of
Section 422 of the Code.
14. 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.
After any merger, consolidation or reorganization of any form involving
the Company as a party thereto involving any exchange, conversion,
adjustment or other modification of the outstanding shares of the
Company's Common Stock, each Optionee at the time of such
reorganization shall, at no additional cost, be entitled, upon any
exercise of his or her Option, to receive, in lieu of the number of
shares as to which such option shall then be so exercised, the number
and class of shares of stock or other securities or such other property
to which such Optionee would have been entitled pursuant to the terms
of the agreement of merger or consolidation, if at the time of such
merger or consolidation, such Optionee had been a holder of record of a
number of shares of the Common Stock of the Company equal to the number
of shares as to which such Option shall then be so exercised.
Comparable rights shall accrue to each Optionee in the event of
successive mergers or consolidations of the character described above.
The foregoing adjustments and the manner of their application will be
in the sole discretion of the Committee to determine.
Anything contained herein to the contrary notwithstanding, upon the
dissolution or liquidation of the Company each Option granted under the
Plan shall terminate.
Page 13 of 29 Pages
<PAGE>
15. AMENDMENTS, SUSPENSION OR TERMINATION OF THE PLAN
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 14.
(b) Change the minimum purchase price for the optioned shares
except as provided in Section 14.
(c) Affect outstanding Options or any unexercised rights
thereunder except as provided in Section 14.
(d) Extend the option period provided in Section 7.
(e) Extend the termination date of the Plan.
16. EFFECTIVE DATE
The Plan shall take effect on September 24, 1997. Unless an earlier
termination date is specified under Section 9 above, this Plan shall
terminate on September 23, 2007. 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.
Page 14 of 29 Pages
<PAGE>
EXHIBIT 4.2
Forms of First Sterling Banks, Inc. 1997 Incentive Stock Option Plan
Stock Option Agreement
Page 15 of 29 Pages
<PAGE>
FIRST STERLING BANKS, INC.
1997 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 24th day of September, 1997, 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. 1997 Incentive Stock Option Plan
(the "Plan"). The Plan is incorporated herein by reference and made a part of
this Option Agreement.
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 September 23, 2007, 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 only 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 that the Option may be exercised only 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 (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.
Page 16 of 29 Pages
<PAGE>
The Option shall be exercised by written notice directed to the
Secretary of the Company. Such written notice shall be accompanied by payment in
full of the Option Price, in cash or by check or by shares of the Common Stock
as described in Section 8 of the Plan, 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. VESTING OF OPTION.
(a) YEARS OF SERVICE. The Option hereby granted shall vest only during
the Grantee's continuous employment with the Company and/or the Bank and/or any
subsidiary thereof, and shall be exercisable by Grantee only upon and after such
vesting and prior to its termination in accordance with the following schedule:
<TABLE>
<CAPTION>
<S> <C>
One-fifth (1/5) of Shares Commencing on the 1st anniversary
of September 24, 1997
Additional one-fifth (1/5) of Shares Commencing on the 2nd anniversary
of September 24, 1997
Additional one-fifth (1/5) of Shares Commencing on the 3rd anniversary
of September 24, 1997
Additional one-fifth (1/5) of Shares Commencing on the 4th anniversary
of September 24, 1997
Additional one-fifth (1/5) of Shares Commencing on the 5th anniversary
of September 24, 1997
</TABLE>
(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
Page 17 of 29 Pages
<PAGE>
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 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.
Page 18 of 29 Pages
<PAGE>
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.
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.
Page 19 of 29 Pages
<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: ----------------------------------
Page 20 of 29 Pages
<PAGE>
FIRST STERLING BANKS, INC.
1997 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 24th day of September, 1997, by and between
FIRST STERLING BANKS, INC. (the "Company") and ______________________________,
a resident of the State of Georgia (the "Grantee") and an employee of the
Company and The Westside 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. 1997
Incentive Stock Option Plan (the "Plan"). The Plan is incorporated herein by
reference and made a part of this Option Agreement.
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 September 23, 2007, 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 only 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 that the Option may be exercised only 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 (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.
Page 21 of 29 Pages
<PAGE>
The Option shall be exercised by written notice directed to the
Secretary of the Company. Such written notice shall be accompanied by payment in
full of the Option Price, in cash or by check or by shares of the Common Stock
as described in Section 8 of the Plan, 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. VESTING OF OPTION.
The Option hereby granted shall vest only during the Grantee's
continuous employment with the Company and/or the Bank and/or any subsidiary
thereof, and shall be exercisable by Grantee only upon and after such vesting
and prior to its termination in accordance with the following schedule:
<TABLE>
<CAPTION>
<S> <C>
5,400 Shares Immediately
5,400 Shares Commencing on the 1st anniversary of
September 24, 1997
5,400 Shares Commencing on the 2nd anniversary of
September 24, 1997
800 Shares Commencing on the 3rd anniversary on
September 24, 1997
</TABLE>
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.
Page 22 of 29 Pages
<PAGE>
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.
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.
Page 23 of 29 Pages
<PAGE>
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.
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: ----------------------------------
Page 24 of 29 Pages
<PAGE>
EXHIBIT 5
Opinion and Consent of Miller & Martin LLP
::ODMA\PCDOCS\DOCS\665028\1 Page 25 of 29 Pages
<PAGE>
MILLER & MARTIN LLP
ATTORNEYS AT LAW
100 GALLERIA PARKWAY, N.W.
TWELFTH FLOOR
ATLANTA, GEORGIA 30339-3122
CHATTANOOGA OFFICE: 770/953-3500 NASHVILLE OFFICE:
SUITE 1000 VOLUNTEER BUILDING 2500 NASHVILLE CITY CENTER
832 GEORGIA AVENUE 511 UNION STREET
CHATTANOOGA, TENNESSEE 37402-2289 NASHVILLE, TENNESSEE 37219-1738
423/756-6600 615/244-9270
FAX 423/785-8480 WRITER'S DIRECT NUMBER FAX 615/256-8197
770/850-6506
------------ --------------
T. KENNERLY CARROLL, JR. E-MAIL ADDRESS:
ATLANTA OFFICE [email protected]
March 10, 1999
First Sterling Banks, Inc.
P.O. Box 2147
Marietta, Georgia 30061
RE: FIRST STERLING BANKS, INC. 1997 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 200,000 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. 1997 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.
::ODMA\PCDOCS\DOCS\665028\1 Page 26 of 29 Pages
<PAGE>
First Sterling Banks, Inc.
March 10, 1999
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 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 in effect on this date.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement.
Sincerely,
MILLER & MARTIN LLP
/s/ T. KENNERLY CARROLL, JR.
----------------------------------
T. Kennerly Carroll, Jr.
::ODMA\PCDOCS\DOCS\665028\1 Page 27 of 29 Pages
<PAGE>
EXHIBIT 23.2
Letter on Unaudited Interim Financial Information and
Consent of Mauldin & Jenkins
Page 28 of 29 Pages
<PAGE>
MAULDIN & JENKINS
CPA'S & CONSULTANTS
1640 Powers Ferry Road
Building 26
Marietta, Georgia 30067
March 10, 1999
First Sterling Banks, Inc.
P.O. Box 2147
Marietta, Georgia 30061
RE: LETTER ON UNAUDITED INTERIM FINANCIAL INFORMATION AND CONSENT OF
INDEPENDENT ACCOUNTANTS
Ladies and Gentlemen:
We hereby acknowledge awareness of the use in this Registration
Statement on Form S-8 of a report on unaudited interim financial information.
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of our report dated February 6, 1998,
in the 1997 Annual Report to stockholders of First Sterling Banks, Inc.
appearing in the Annual Report on Form 10-KSB for the year ended
December 31, 1997.
MAULDIN & JENKINS
/s/ MAULDIN & JENKINS, LLC
----------------------------
Mauldin & Jenkins, LLC
Atlanta, Georgia
Page 29 of 29 Pages
