<PAGE>
As filed with the Securities and Exchange Commission on May 27, 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
of incorporation or organization) Identification No.)
1200 Barrett Parkway
Kennesaw, Georgia 30144
(Address and Zip Code of Principal Executive Offices)
-----------------------------------------------------
First Sterling Banks, Inc. Assumption of Options Granted Under the Georgia
Bancshares, Inc. Directors
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
1275 Peachtree Street, N.E.
Suite 700
Atlanta, Georgia 30309
(404) 962-6146
<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, no par value 40,760 shares $4.22* $171,823.78 $47.77
</TABLE>
1 of 44 Pages
<PAGE>
*Represents average under director stock option plan of the following:
14,266 shares with option price of $3.92 per share; 12,228 shares with option
price of $4.17 per share; and 14,266 shares with option price of $4.55 per
share.
2 of 44 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, 1998;
(b) The Registrant's Quarterly Report for the quarter ended March 31,
1999;
(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.
3 of 44 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 Option Assumption Agreement Between First Sterling Banks, Inc. and
Option Holders in the Georgia Bancshares, Inc. Directors Stock Option
Plan and the Georgia Bancshares, Inc. Employee Incentive Stock Option
Plan
4.2 Georgia Bancshares, Inc. Directors Stock Option Plan (contained in
Exhibit 4.1)
4.3 Form of Georgia Bancshares, Inc. Director Option To Purchase Shares Of
Common Stock and Director Subscription Form
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
</TABLE>
4 of 44 Pages
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION
- ------- -----------
<S> <C>
24 Powers of Attorney (included on page 7)
</TABLE>
ITEM 9. UNDERTAKINGS
(a) The undersigned Registrant undertakes:
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.
5 of 44 Pages
<PAGE>
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) 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
6 of 44 Pages
<PAGE>
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 24 day of May, 1999.
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.
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 5/24/99
- ------------------------- President, Chief Executive -----------------
Edward C. Milligan Officer and Director
SIGNATURE TITLE DATE
/s/ Barbara J. Bond 5/24/99
- ------------------------- Secretary (Principal financial -----------------
Barbara J. Bond and accounting officer)
7 of 44 Pages
<PAGE>
/s/ P. Harris Hines 5/26/99
- -------------------------- Director -----------------
P. Harris Hines
/s/ Harry L. Hudson, Jr. 5/26/99
- -------------------------- Director -----------------
Harry L. Hudson, Jr.
/s/ John S. Thibadeau, Jr. 5/26/99
- -------------------------- Director -----------------
John S. Thibadeau, Jr.
/s/ Benjamin H. Wofford 5/26/99
- -------------------------- Director -----------------
Benjamin H. Wofford
/s/ Eugene L. Argo 5/26/99
- -------------------------- Director -----------------
Eugene L. Argo
/s/ Ted A. Murphy 5/26/99
- -------------------------- Director -----------------
Ted A. Murphy
/s/ James L. Armstrong, Jr. 5/26/99
- -------------------------- Director -----------------
James L. Armstrong, Jr.
/s/ Christopher H. Burnett 5/26/99
- -------------------------- Director -----------------
Christopher H. Burnett
8 of 44 Pages
<PAGE>
INDEX TO EXHIBITS
Sequentially
Exhibit Numbered
Number Description Page
- ------ ----------- ----
4.1 Option Assumption Agreement Between
First Sterling Banks, Inc. and Option Holders
in the Georgia Bancshares, Inc. Directors Stock
Option Plan and the Georgia Bancshares, Inc.
Employee Incentive Stock Option Plan 11
4.2 Georgia Bancshares, Inc. Directors Stock
Option Plan (contained in Exhibit 4.1) 19
4.3 Form of Georgia Bancshares, Inc. Director
Option To Purchase Shares Of Common Stock
and Director Subscription Form 33
5 Opinion and Consent of Miller & Martin LLP 41
23.1 Consent of Miller & Martin LLP (contained in Exhibit 5) 41
23.2 Letter on Unaudited Interim Financial Information
and Consent of Mauldin & Jenkins 44
24 Powers of Attorney (included on page 7) 7
9 of 44 Pages
<PAGE>
EXHIBIT 4.1
Option Assumption Agreement Between First Sterling Banks, Inc. and Option
Holders in the Georgia Bancshares, Inc. Directors Stock Option Plan and the
Georgia Bancshares, Inc. Employee Incentive Stock Option Plan
10 of 44 Pages
<PAGE>
OPTION ASSUMPTION AGREEMENT
Pursuant to and in accordance with the terms and provisions of Section
2.3 of that certain Merger Agreement (the "Merger Agreement") dated December 30,
1998, between First Sterling Banks, Inc. ("FSLB") and Georgia Bancshares, Inc.
("GABS"), each GABS Option (as defined in the Merger Agreement and as set forth
on Schedule 1 hereto) and the GABS Stock Option Plans, copies of which are
attached hereto as Schedules 2.1 and 2.2, are hereby assumed by FSLB in
accordance with the terms of the particular GABS Stock Option Plan under which
such GABS Options were issued and the stock option agreement by which such GABS
Options are evidenced. As provided in the Merger Agreement, from and after the
time that the Merger is consummated, (i) each GABS Option assumed by FSLB may be
exercised solely for FSLB Stock, (ii) the number of shares of FSLB Stock (as
defined in the Merger Agreement) subject to each GABS Option shall be equal to
the number of GABS Stock subject to such GABS Option immediately prior to the
time of consummation of the Merger, and (iii) the per share exercise price under
each such GABS Option shall be equal to the exercise price of such GABS Option
immediately prior to the time of the consummation of the Merger.
Each undersigned holder of GABS Options acknowledges and agrees that the
number of shares of FSLB Stock subject to the GABS Options of such holder
assumed hereunder and the per share exercise price applicable thereto are as set
forth on Schedule 1 hereto.
Dated effective as of the 23rd day of April, 1999.
FIRST STERLING BANKS, INC.
By:/S/ EDWARD C. MILLIGAN
--------------------------------------------
Edward C. Milligan
Chairman, President and CEO
OPTION HOLDERS
/S/ EUGENE ARGO
--------------------------------------------
Eugene Argo
/S/ JAMES ARMSTRONG
--------------------------------------------
James Armstrong
[Signatures Continue on Next Page]
11 of 44 Pages
<PAGE>
[Continued From Preceding Page]
/S/ THOMAS CARNES
--------------------------------------------
Thomas Carnes
/S/ JEROME MERLIN BY SYLVIA J. MERLIN,
EXECUTRIX
--------------------------------------------
Jerome Merlin
/S/ DEAN T. TEUSAW
--------------------------------------------
Dean T. Teusaw
/S/ TED A. MURPHY
--------------------------------------------
Ted A. Murphy
/S/ HUGH NORTON
--------------------------------------------
Hugh Norton
/S/ BUDDY PITTARD
--------------------------------------------
Buddy Pittard
/S/ DAVID L. EDGAR
--------------------------------------------
David L. Edgar
/S/ WILLIAM SCOTT HUDGINS
--------------------------------------------
William Scott Hudgins
/S/ TENA S. JONES
--------------------------------------------
Tena S. Jones
/S/ GLORIA DANLEY
--------------------------------------------
Gloria Danley
[Signatures Continue on Next Page]
12 of 44 Pages
<PAGE>
[Continued From Preceding Page]
/S/ RODNEY TORBUSH
--------------------------------------------
Rodney Torbush
/S/ JOHN REGAN
--------------------------------------------
John Regan
/S/ HELEN MORGAN
--------------------------------------------
Helen Morgan
/S/ TERENCE LEWIS
--------------------------------------------
Terence Lewis
/S/ ALICE CONKLIN
--------------------------------------------
Alice Conklin
/S/ ALICE OJWANG
--------------------------------------------
Alice Ojwang
/S/ ANNETTE M. RAYMOND
--------------------------------------------
Annette M. Raymond
/S/ BOBBIE LYNN WRIGHT
--------------------------------------------
Bobbie Lynn Wright
/S/ CATHY JOHNSON
--------------------------------------------
Cathy Johnson
[Signatures Continue on Next Page]
13 of 44 Pages
<PAGE>
[Continued From Preceding Page]
/S/ DEBRA OKUN
--------------------------------------------
Debra Okun
/S/ ELIZABETH WOODRUFF
--------------------------------------------
Elizabeth Woodruff
/S/ GERALD P. LUMUS
--------------------------------------------
Gerald P. Lumus
/S/ JUDY REYES
--------------------------------------------
Judy Reyes
/S/ RAYMOND E. CAIN
--------------------------------------------
Raymond E. Cain
/S/ SOPHIA WILLIS
--------------------------------------------
Sophia Willis
14 of 44 Pages
<PAGE>
SCHEDULE 1
15 of 44 Pages
<PAGE>
STOCK OPTIONS ASSUMED
<TABLE>
<CAPTION>
NUMBER OF OPTION EXERCISE
SHARES PRICE
DATE (PRE- AND (PER SHARE PRE- AND
ISSUED POST MERGER) POST-MERGER) EXPIRES
<S> <C> <C> <C> <C>
DIRECTORS STOCK OPTION
PLAN:
EUGENE ARGO 6/1/96 2,038 3.92 6/1/06
JAMES ARMSTRONG 6/1/96 2,038 3.92 6/1/06
THOMAS CARNES 6/1/96 2,038 3.92 6/1/06
JEROME MERLIN 6/1/96 2,038 3.92 6/1/06
DEAN T. TEUSAW 6/1/96 2,038 3.92 6/1/06
TED MURPHY 6/1/96 2,038 3.92 6/1/06
HUGH NORTON 6/1/96 2,038 3.92 6/1/06
EUGENE ARGO 6/1/97 2,038 4.17 6/1/07
JAMES ARMSTRONG 6/1/97 2,038 4.17 6/1/07
THOMAS CARNES 6/1/97 2,038 4.17 6/1/07
DEAN T. TEUSAW 6/1/97 2,038 4.17 6/1/07
TED MURPHY 6/1/97 2,038 4.17 6/1/07
HUGH NORTON 6/1/97 2,038 4.17 6/1/07
EUGENE ARGO 6/1/98 2,038 4.55 6/1/08
JAMES ARMSTRONG 6/1/98 2,038 4.55 6/1/08
THOMAS CARNES 6/1/98 2,038 4.55 6/1/08
TED MURPHY 6/1/98 2,038 4.55 6/1/08
HUGH NORTON 6/1/98 2,038 4.55 6/1/08
BUDDY PITTARD 6/1/98 2,038 4.55 6/1/08
DEAN T. TEUSAW 6/1/98 2,038 4.55 6/1/08
GABS EMPLOYEE INCENTIVE
STOCK OPTION PLAN:
TED A. MURPHY 6/1/97 1,250 5.00 6/1/07
DAVID L. EDGAR 6/1/97 563 5.00 6/1/07
WILLIAM SCOTT HUDGINS 6/1/97 425 5.00 6/1/07
TENA S. JONES 6/1/97 350 5.00 6/1/07
GLORIA DANLEY 6/1/97 250 5.00 6/1/07
RODNEY TORBUSH 6/1/97 188 5.00 6/1/07
JOHN REGAN 6/1/98 125 7.40 6/1/08
DAVID L. EDGAR 6/1/98 575 7.40 6/1/08
</TABLE>
16 of 44 Pages
<PAGE>
<TABLE>
<CAPTION>
NUMBER OF OPTION EXERCISE
SHARES PRICE
DATE (PRE- AND (PER SHARE PRE- AND
ISSUED POST MERGER) POST-MERGER) EXPIRES
<S> <C> <C> <C> <C>
HELEN MORGAN 6/1/98 125 7.40 6/1/08
TERENCE LEWIS 6/1/98 250 7.40 6/1/08
WILLIAM SCOTT HUDGINS 6/1/98 325 7.40 6/1/08
TENA S. JONES 6/1/98 375 7.40 6/1/08
TED A. MURPHY 6/1/98 1,250 7.40 6/1/08
ALICE CONKLIN 6/1/98 250 7.40 6/1/08
ALICE OJWANG 6/1/98 125 7.40 6/1/08
ANNETTE M. RAYMOND 6/1/98 125 7.40 6/1/08
BOBBIE LYNN WRIGHT 6/1/98 75 7.40 6/1/08
CATHY JOHNSON 6/1/98 125 7.40 6/1/08
DEBRA OKUN 6/1/98 75 7.40 6/1/08
ELIZABETH WOODRUFF 6/1/98 75 7.40 6/1/08
GERALD P. LUMUS 6/1/98 75 7.40 6/1/08
GLORIA DANLEY 6/1/98 200 7.40 6/1/08
JUDY REYES 6/1/98 125 7.40 6/1/08
RAYMOND E. CAIN 6/1/98 75 7.40 6/1/08
RODNEY TORBUSH 6/1/98 200 7.40 6/1/08
SOPHIA WILLIS 6/1/98 75 7.40 6/1/08
TOTAL 48,411
</TABLE>
17 of 44 Pages
<PAGE>
SCHEDULE 2.1
18 of 44 Pages
<PAGE>
GEORGIA BANCSHARES, INC.
DIRECTORS STOCK OPTION PLAN
1. PURPOSE.
This Directors Stock Option Plan (the "Plan") of Georgia Bancshares, Inc.
(the "Company ") is intended to promote the best interests of the Company and
its shareholders by rewarding long-term and continued active service of the
members of the Board of Directors (the "Board") of the Company. Unless otherwise
indicated by the context herein, reference to the "Company" includes the Company
and its subsidiaries.
2. EFFECTIVE DATE AND TERM OF PLAN.
The Plan shall become effective upon such date as it may be approved by
the shareholders of the Company and shall remain in effect for seven years from
the date on which it is so approved or until termination by the Board, whichever
occurs first.
3. ADMINISTRATION OF THE PLAN.
(a) The Plan shall be administered by the Board and, subject to the
provisions of this Plan, the Board shall have full and final
authority to interpret the Plan, adopt, amend and rescind rules
and regulations relating to the Plan, and make all other
determinations and take all other actions necessary and advisable
for the administration of the Plan.
(b) The Board shall act by a majority of its members then in office.
Decisions and determinations of the Board on all matters relating
to the Plan shall be in its sole discretion and shall be
conclusive. No member of the Board shall be liable for any action
taken or decision made in good faith relating to this Plan or any
grant hereunder.
4. STOCK SUBJECT TO THE PLAN.
There are authorized for issuance and delivery by exercise of options to
be granted under the Plan an aggregate of 40,000 shares of the Company's common
stock (the "Common Stock"), subject to adjustment as provided in this Plan. If
any option issued under this Plan shall expire, terminate or be canceled for any
reason prior to its exercise in full, then the shares of Common Stock subject to
such option shall be added to the shares of Common Stock otherwise available for
issuance pursuant to the exercise of options under the Plan.
19 of 44 Pages
<PAGE>
5. TERMS AND CONDITIONS OF STOCK OPTIONS.
Each option granted under the Plan shall be evidenced by an option
agreement in such form, not inconsistent with this Plan, as the Board shall
approve from time to time, which option agreement shall comply with and be
subject to the following terms and conditions.
(a) ELIGIBILITY. All directors of the Company are eligible to receive
options under the Plan.
(b) ANNUAL OPTION GRANTS. Commencing on June 1, 1996, and annually
thereafter on such date during the term of this Plan, each
director who attended, during the previous fiscal year, at least
75% of the meetings of the Company's Board and committees for
which such director was a member (unless a majority of the entire
Board of Directors determines to excuse for good cause such lack
of attendance), shall be granted on such date an option to
purchase 815 shares of Common Stock (or such pro rata number of
shares as remain available under this Plan, if less than 815) for
such Board service. Notwithstanding the foregoing, these options
may be relinquished for the previous year upon the vote of
two-thirds of the entire Board of Directors.
(c) OPTION EXERCISE PRICE. The option exercise price for each option
granted under the Plan shall be the book value per share as of
December 31 of the fiscal year for which the option was granted.
"Book Value" for purposes of this Plan shall be determined by the
Company's independent certified public accountants and such
calculations shall be deemed conclusive for purposes of this Plan.
(d) EXERCISE OF OPTION. Options may be exercised only by written
notice to the Company, accompanied by payment, in cash or check
payable to the Company, of the full exercise price for the shares
as to which they are exercised.
(e) TERM. An option granted under the Plan shall not be exercisable
after the expiration of ten years from the date of grant.
(f) TERMINATION OF SERVICE. The options granted under this Plan shall
not be subject to earlier termination in the event of the
cessation for any reason of a recipient's service on the Board.
(g) NONTRANSFERABILITY. An option granted under this Plan shall be
transferable only by will or by applicable laws of descent and
distribution and during a recipient's lifetime shall be
exercisable only by the recipient to whom the option is granted.
Except as permitted by the preceding sentence, each option granted
under this Plan shall not be transferred, assigned, pledged or
hypothecated in any way (whether by operation of law or otherwise)
and the
20 of 44 Pages
<PAGE>
option shall not be subject to execution, attachment or civil
process. Any attempt to transfer, assign, pledge, hypothecate or
otherwise dispose of any option contrary to the provisions of the
Plan or upon the levy or any attachment or similar process upon
such option, the option shall immediately become null and void. No
shares obtained upon the exercise of an option may be sold or
otherwise disposed of prior to six months after the date the
respective option is granted.
(h) Each option agreement may contain such other terms and conditions
not inconsistent with the provisions of the Plan as the Board may
deem appropriate from time to time.
6. STOCK ADJUSTMENTS; CHANGES IN CAPITALIZATION.
In the event the outstanding shares of Common Stock are increased,
decreased or exchanged for a different number or kind of shares or other
securities or if additional shares or other property (other than ordinary cash
dividends) are distributed with respect to the shares of Common Stock or other
securities, through merger, consolidation, sale of all or substantially all of
the assets of the Company, reorganization, recapitalization, reclassification,
dividend, stock split, reverse stock split, spin off, split off or other
distribution with respect to such shares of Common Stock, or other securities,
an appropriate and proportionate adjustment shall be made in (i) the maximum
number and kind of shares of Common Stock reserved for issuance under the Plan,
(ii) the number and kind of shares or other securities subject to the then
outstanding options under the Plan, and (iii) the price for each share subject
to any then outstanding options of the Plan. No fractional shares will be issued
under the Plan on account of any such adjustment.
7. CHANGE IN CONTROL.
Notwithstanding the provisions of Section 5(b) of this Plan, if there
occurs a "Change in Control," as hereinafter defined, there shall be granted to
each member of the Board of Directors who was in office after the most recent
meeting of shareholders at which directors were elected that preceded such
Change in Control and who was not thereafter removed from the Board for cause an
option exercisable with respect to each such director's pro rata share of any
remaining Common Stock not subject to previously granted options under the Plan,
I.E., each such director shall be deemed to have been granted an option to
purchase an amount of shares of Common Stock equal to the remaining shares of
Common Stock available for option under the terms of this Plan divided by the
number of directors serving on the Board at the time rounded downward to the
closest whole number of shares. Further, notwithstanding any provisions of this
Plan to the contrary or the provisions of any outstanding option agreement
regarding exercisability, each of the options deemed to be granted hereunder and
each outstanding option granted previously under the Plan shall become
exercisable immediately in full for the aggregate number of shares covered
thereby in the event of a Change in Control. The grant of options pursuant to
this Section 7 may be cancelled or conditioned by the affirmative vote or
written consent of a majority of the members of the Board of Directors who were
in office after the most recent meeting of shareholders at which directors were
elected that preceded the respective Change in Control and who were not
thereafter removed from
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the Board for cause. For the purposes of this Section 7, the term "Change of
Control" shall mean any event whereby (i) the Board (or, if the approval of the
Board is not required as a matter of law, the shareholders of the Company) shall
approve (a) any consolidation or merger of the Company in which the Company is
not the continuing or surviving corporation or pursuant to which shares of
Common Stock would be converted to cash, securities or other property, other
than a merger of the Company in which the holders of Common Stock immediately
prior to the merger have the same proportionate ownership of common stock of the
surviving corporation immediately after the merger, or (b) any sale, lease,
exchange or other transfer (in one transaction or a series of related
transactions) of all, or substantially all, the assets of the Company, or (c)
the adoption of a plan or proposal for the liquidation or dissolution of the
Company, or (ii) any person (as such term is defined in Section 13(d) of the
Securities Exchange Act of 1934), corporation or other entity other than the
Company shall make a tender offer or exchange offer to acquire any Common Stock
(or securities convertible into Common Stock) for cash, securities or any other
consideration; provided, that after consummation of such offer, the person,
corporation or other entity in question would be the "beneficial owner" (as such
term is defined in Rule 13d-3 promulgated under the Securities Exchange Act of
1934), directly or indirectly, of 25% or more of the outstanding Common Stock
(calculated as provided in Rule 13d-3(d) in the case of rights to acquire Common
Stock), or (iii) in the opinion of the Board of Directors such event is likely
to lead to changes in control of the ownership of Common Stock. Upon the
occurrence of a Change in Control, and the Board's direction to immediately
grant options, the Company shall furnish each option recipient of the deemed
grant of options pursuant to this Section 7 and to each recipient of previously
granted options a notice setting forth the nature of the Change in Control and
the requirement that each holder of an option purchase, within ten days from
actual receipt of such notice, all or any portion of the shares of Common Stock
which are subject to his or her option pursuant to the other terms and
conditions hereof, and any such option that remains unexercised, whether deemed
to be granted under this Section 7 or previously outstanding, shall terminate as
to any balance remaining of unacquired shares as of the eleventh day from the
date of such actual receipt of notice.
8. LIMITATION OF RIGHTS.
(a) NO RIGHT TO CONTINUE AS A DIRECTOR. Neither the Plan, nor the
granting of any options, nor any other action taken pursuant to
the Plan, shall constitute evidence of any agreement or
understanding, express or implied, that the Company will retain a
recipient as a director for any period of time, or at any
particular rate of compensation.
(b) NO STOCKHOLDER'S RIGHTS FOR OPTIONS. The holder of any options
granted under the Plan shall have no rights as a stockholder with
respect to the shares of Common Stock covered by such options
until the date of the issuance to such holder of a stock
certificate therefor, and no adjustment shall be made for
dividends or other rights for which the record date is prior to
the date such certificate is issued.
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9. WITHHOLDING TAXES.
Whatever shares of Common Stock are to be issued and delivered under the
Plan, the Board shall have the right, at or prior to the delivery of any
certificate or certificates for such shares, to require the recipient to remit
to the Company, in the form of cash or check payable to the order of the
Company, an amount sufficient to satisfy withholding requirements with respect
to federal, state and local income and employment taxes.
10. AMENDMENT, MODIFICATION AND TERMINATION.
The Board at any time may terminate and in any respect amend or modify
the Plan; provided, however, that no action by the Board, without approval of
the Company's shareholders may (except as otherwise provided in Section 6
hereof), (i) increase the total number of shares of Common Stock available under
the Plan in the aggregate, (ii) extend the period during which any option may be
exercised, (iii) extend the term of the Plan, (iv) change the option price or
(v) alter the class of persons eligible to receive options under the Plan. No
amendment, modification or termination of the Plan shall in any manner adversely
affect the rights of any recipient with respect to any option previously
granted.
11. NOTICES.
All notices or other communications hereunder must be in writing and will
be deemed given on the date delivered if delivered in person, or on the third
business day after mailed by depositing the same postage prepaid in a post
office addressed to the Company at its principal office and to any other person
at their last known address furnished to the Company.
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SCHEDULE 2.2
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GEORGIA BANCSHARES, INC.
EMPLOYEE INCENTIVE STOCK OPTION PLAN
1. PURPOSE OF THE PLAN.
This Employee Incentive Stock Option Plan (the "Plan") for GEORGIA
BANCSHARES, INC. (the "Company") is intended to encourage valued employees of
the Company to develop a proprietary interest in the success of the Company, and
to attract and retain such employees of the Company. Unless otherwise indicated
by the context, reference to the "Company" includes the Company and any
subsidiary.
2. ADMINISTRATION OF THE PLAN.
2.1 The Board of Directors shall appoint a Stock Option Plan Committee
(the "Committee") which shall administer the Plan. The Committee shall consist
of not less than three (3) members of the Board of Directors; provided, however,
that each member of the Committee shall not at any time within one year prior to
his service as an administrator of the Plan or during such service have received
a grant or award of equity securities pursuant to the Plan.
Subject to the provisions of this Plan, the Committee shall have full
authority, in its discretion: (i) to determine from the eligible employees of
the Company and any subsidiary those employees to whom options will be granted;
(ii) to determine when such options shall be granted; (iii) to determine the
option price of the shares subject to each option, which price shall not be less
than the minimum specified in Section 6 hereof; (iv) to determine when each
option shall become exercisable and the duration of the exercise period; and (v)
to interpret the Plan and to prescribe, and rescind rules and regulations
relating to it.
2.2 Determinations or interpretations by the Committee of any provisions
of the Plan, or of any option granted under it, shall be final. No member of the
Committee shall be liable for any action or determination made in good faith
with respect to the Plan or any option granted under it.
3. TYPES OF OPTIONS.
The options granted under this Plan to any eligible person may be either
"Incentive Stock Options", as defined in Section 422 of the Internal Revenue
Code of 1986, as amended (the "Code"), or "Nonqualified Stock Options", which
are not Incentive Stock Options. The options granted under this Plan shall be
designated as either Incentive Stock Options or Nonqualified Stock Options.
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4. ELIGIBILITY.
4.1 All regularly employed employees of the Company or any subsidiary (as
defined in Code Section 424(f)), including officers and directors who are such
employees, shall be eligible to participate in this Plan.
4.2 No option may be granted to any employee who owns stock possessing
more than ten percent of the total combined voting power of all classes of stock
of the Company or any subsidiary, unless the option price is fixed and not less
than 110 % of the fair market value of the stock, subject to the option at the
time such option is granted, and, notwithstanding the provisions of Section 7
hereof, the exercise period is limited to not more then five (5) years from the
date such option is granted. For purposes of the immediately preceding sentence,
a person shall be considered as owning the stock owned directly or indirectly by
or for his brothers and sisters, whether by the whole or half blood, spouse,
ancestors, and lineal descendants; and the stock owned directly or indirectly by
a corporation, partnership, estate or trust shall be considered as being owned
proportionately by its shareholders, partners, or beneficiaries.
4.3 The aggregate fair market value (determined as of the time the option
is granted) of the common stock with respect to which Incentive Stock Options
are exercisable for the first time by any employee during any calendar year
shall not exceed $100,000.
5. STOCK SUBJECT TO THE PLAN.
The stock subject to the options granted under the Plan shall be shares
of the Company's common stock which are authorized but unissued or reacquired by
the Company, or any authorized but unissued or reacquired shares into which such
shares of common stock are exchanged, reclassified or converted. Subject to
adjustment as provided in Section 13 hereof, the aggregate number of shares for
which options may be granted under the Plan shall not exceed Forty Thousand
(40,000). However, any shares subject to option under the Plan, which option for
any reason expires or is terminated unexercised as to such shares, may again be
subject to an option under the Plan.
6. OPTION PRICE.
6.1 The exercise price for each option granted under this Plan shall be
determined by the Committee at the time the option is granted, but in no event
shall such exercise price be less than 100% of the fair market value of the
Company's common stock on the date of grant.
6.2 If the stock is listed on an established stock exchange on the date
any option is granted, the fair market value of the stock on that date shall be
deemed to be the mean between the highest and lowest quoted selling prices of
the stock on such stock exchange on that date, or if no sale of the Company's
stock shall have been made on any stock exchange on that date, on the next
preceding day on which there was a sale of stock. If the stock is not listed on
an established stock exchange on the date any
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option is granted, the fair market value of the stock on that date shall be
deemed to be either (i) if the stock is not actively traded in the
over-the-counter market, an amount arrived at by the Committee by applying any
reasonable valuation method; or (ii) if the stock is actively traded in the
over-the-counter market, the mean between dealer "bid" and "ask" closing prices
of the stock in the over-the-counter market on that date as reported by the
National Association of Securities Dealers Automated Quotation System.
7. TERM OF THE OPTIONS.
The term of each option shall be determined by the Committee at the time
the option is granted; provided, however, that no option shall be exercisable
after the expiration of ten (10) years from the date of grant and all options
shall be subject to earlier termination as hereinafter provided.
8. EXERCISE OF OPTION.
The time at which or the event upon the happening of which each option
granted hereunder becomes exercisable, in whole or in part, shall be determined
by the Committee at the time the option is granted.
9. DATE OF GRANT AND FORM OF AGREEMENT.
Each option granted under this Plan, unless otherwise specifically
indicated, shall be granted as of the date of the Committee resolution granting
the option. The Committee shall notify the recipient of the grant in writing
delivered either in person or by certified mail. The notification shall serve as
the option agreement and shall contain a summary of the essential terms and
conditions of the Plan and a complete statement of the particular terms and
conditions of the options represented thereby. Any inconsistencies between the
terms of the Plan and the terms of the option agreement shall be governed by the
terms of the Plan.
10. MANNER OF EXERCISE.
10. 1 Any person electing to exercise, in whole or in part, any option
granted under the Plan shall give written notice to the Company of his election
and of the number of whole shares he has elected to purchase, such notice to be
accompanied with payment in full.
10.2 Payment for shares being purchased pursuant to the exercise of an
option shall be made in cash, by certified check, by shares of common stock of
the Company or by a combination thereof. Any stock transferred to the Company
under the exercise of an option shall be valued in the same manner as provided
for in Section 6.2 hereof with the exception that the value shall be determined
as of the date of exercise rather than the date the option is granted.
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10.3 The Company shall not be required to issue fractional shares in the
exercise of any option granted under this Plan, and any fractional shares
otherwise issuable on the exercise of any such option shall be disregarded.
11. RESTRICTION ON TRANSFER.
Each option granted under this Plan shall be transferable only by will or
pursuant to applicable laws of descent and distribution and during his lifetime
shall be exercisable only by the employee to whom the option is granted. Except
as permitted by the preceding sentence, the option granted under this Plan shall
not be transferred, assigned, pledged, or hypothecated in any way (whether by
operation of law or otherwise) and the option shall not be subject to execution,
attachment or similar process. Any attempt to transfer, assign, pledge,
hypothecate, or otherwise dispose of any option contrary to the provisions of
the Plan, or upon the levy or any attachment or similar process upon such
option, the option shall immediately become null and void. In the event the
employee is (a) directly or indirectly the beneficial owner of more than 10% of
any class of any equity security of the Company, or (b) a director or officer of
the Company, no shares obtained upon the exercise of an option may be sold or
otherwise disposed of prior to six months after the date the respective option
is granted.
12. TERMINATION OF EMPLOYMENT.
12.1 If the employment of an employee with the Company or any subsidiary
terminates for any reason other than death or disability, any options granted to
the employee under this Plan which have not been exercised shall automatically
terminate on the effective date of the employee's termination of employment;
provided, however, the Committee reserves the right to grant, in writing, to an
employee the right to exercise any options granted under this Plan for a period
not to exceed ninety (90) days from the date of such termination, to the extent
of the number of shares which were purchasable thereunder at the date of such
termination. The transfer of an employee from the Company to any subsidiary or
vice versa, or from one subsidiary to another subsidiary, shall not be deemed a
termination of employment for purposes of the Plan.
12.2 In the event of the death of an employee, any option held by him at
the time of the death shall become fully exercisable, shall be transferred as
provided in his will or as determined by applicable laws of descent and
distribution, and may be exercised, in whole or in part, by the estate of the
employee, or any person that acquired the option by such bequest or inheritance
from the employee, at any time or from time to time on or before the earlier of
one year after the date of death or the expiration date prescribed in the option
agreement. In the event that an employee becomes permanently and totally
disabled (as determined by the Committee in its sole discretion), any option
held by him on the date of disability (such date to be determined by the
Committee in its sole discretion) shall become fully exercisable and may be
exercised in whole or in part, by the employee or his duly appointed guardian or
conservator at any time or from time to time, on or before the earlier of one
year after the date of disability or the expiration date prescribed in the
option agreement.
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13. ADJUSTMENTS DUE TO CERTAIN EVENTS.
13. 1 In the event that there is a change in the common stock of the
Company by reason of dividends paid in shares of common stock, combination or
reclassification of shares, recapitalization, stock split, merger, consolidation
or otherwise, the Committee shall make such adjustment, if any, as it may deem
equitable in the number and kind of shares which may become subject to options
to be granted under the Plan, in the number and kind of shares covered by
options theretofore granted, or in the exercise price of shares covered by any
such option.
13.2 Upon the complete liquidation of the Company, other than pursuant to
a plan of reorganization, any unexercised options granted under this Plan shall
be canceled. In the event of the complete liquidation of any subsidiary
employing the employee or in the event such subsidiary ceases to be a
subsidiary, any unexercised part of any option granted shall be canceled unless
the employee shall be become employed by the Company or another subsidiary
concurrently with such event.
14. CHANGE IN CONTROL.
Notwithstanding the provisions of the Plan or the provisions of any
option agreement regarding exercisability of an option, the Company shall have
the right, exercisable in its sole discretion by notice to employee, to require
employee to purchase, within ten (10) days from the date of such notice, all or
any portion of the shares which are subject to the option pursuant to the other
terms and conditions hereof, and the option shall terminate as to any balance
remaining of the shares as of the eleventh (1lth) day from the date of such
notice, in the event (i) the Board (or, if the approval of the Board is not
required as a matter of law, the shareholders of the Company) shall approve (a)
any consolidation or merger of the Company in which the Company is not the
continuing or surviving corporation or pursuant to which shares of common stock
would be converted to cash, securities or other property, other than a merger of
the Company in which the holders of common stock immediately prior to the merger
have the same proportionate ownership of common stock of the surviving
corporation immediately after the merger, or (b) any sale, lease, exchange or
other transfer (in one transaction or a series of related transactions) of all,
or substantially all, the assets of the Company, or (c) the adoption of a plan
or proposal for the liquidation or dissolution of the Company, or (ii) any
person (as such term is defined in Section 13(d) of the Securities Exchange Act
of 1934), corporation or other entity other than the Company shall make a tender
offer or exchange offer to acquire any common stock (or securities convertible
into common stock) for cash, securities or any other consideration, provided
that (a) at least a portion of such securities sought pursuant to the offer in
question is acquired and (b) after consummation of such offer, the person,
corporation or other entity in question is the "beneficial owner" (as such term
is defined in Rule 13d-3 promulgated under the Securities Exchange Act of 1934),
directly or indirectly, of 50% or more of the outstanding common stock
(calculated as provided in Rule 13d-3(d) in the case of rights to acquire common
stock).
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15. RIGHTS AS A STOCKHOLDER.
An employee shall not by reason of the Plan or any option granted
pursuant to the Plan have any rights of a stockholder of the Company unless
shares have been issued and a certificate therefor has been delivered to him.
Nothing in the Plan or any option granted hereunder shall (i) confer upon any
employee any right to continue in the employ of the Company or (ii) interfere in
any way with the right of the Company to terminate the employment of any
employee.
16. LISTING AND REGISTRATION OF SHARES.
Each option shall be subject to the requirement that if at any time the
Committee shall determine that the listing, registration, or qualification of
the shares covered thereby upon any securities exchange or under any federal or
state law or the consent or approval of any governmental regulatory body, is
necessary or desirable as the condition of, or in connection with, the granting
of any such option or the issue or purchase of shares thereunder, such 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 Committee. In this regard,
the Committee may impose such conditions upon the exercise of any option granted
under the Plan as it may deem necessary or advisable to assure compliance with
such laws, rules and regulations.
17. AMENDMENT OR TERMINATION OF THE PLAN.
The Board of Directors may, without further stockholder approval, amend
or discontinue this Plan at any time, provided that no unexercised option
granted under this Plan may be altered or canceled, except in accordance with
its terms or as otherwise provided in Section 13 hereunder, without the written
consent of the participant to whom such option was granted; and further provided
that without the approval of the stockholders, no amendment may (i) increase the
maximum number of shares for which options may be granted under the Plan (except
in accordance with Section 13 hereunder), (ii) permit the grant of options under
the Plan after the expiration date of the Plan, (iii) change the designation of
the class of employees eligible to receive options under the Plan, or (iv)
materially increase the benefits accruing to eligible employees.
18. TAX WITHHOLDING.
Whatever shares of common stock are to be issued and delivered under the
Plan, the Board shall have the right, at or prior to the delivery of any
certificate or certificates for such shares, to require the recipient to remit
to the Company an amount sufficient to satisfy withholding requirements with
respect to federal, state, and local income and employment taxes.
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19. TERM OF THE PLAN.
This Plan shall become effective on the earlier of the date of its
adoption by the Board of Directors of the Company or its approval by the
stockholders of the Company. The Plan shall expire and no options shall be
granted pursuant to the Plan after ten (10) years from the effective date of the
Plan.
20. STOCKHOLDER APPROVAL.
This Plan shall be submitted to the stockholders of the Company for their
approval within twelve (12) months of its adoption by the Board of Directors. In
the event that the stockholder approval is not obtained, any options theretofore
and thereafter granted shall not be Incentive Stock Options.
21. NOTICES.
All notices or other communications hereunder must be in writing and will
be deemed given on the date delivered if delivered in person, or on the third
business day after mailed by depositing the same postage prepaid in a post
office addressed to the Company at its principal office and to any other person
at their last known addressed furnished to the Company.
IN WITNESS WHEREOF, the Company has executed this instrument by its
officers, duly authorized by its Board of Directors, and affixed its corporate
seal this ____ day of ___________, 199__.
GEORGIA BANCSHARES, INC.
By:
-----------------------------
President
Attest:
-----------------------------
Secretary
[CORPORATE SEAL]
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EXHIBIT 4.3
Form of Georgia Bancshares, Inc. Director Option To Purchase Shares Of Common
Stock and Director Subscription Form
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OPTION NUMBER D - _______ SHARES
GEORGIA BANCSHARES, INC.
DIRECTOR OPTION TO PURCHASE
SHARES OF COMMON STOCK
This certifies that, for value received, _______________________ (the
"Holder") is entitled, subject to the terms and conditions hereinafter set
forth, at any time and from time to time after the date set forth hereinbelow
and before 5:00 P.M., Tucker, Georgia, time, ____________________________ (such
date being __________ years from the date of this Option, and being hereinafter
referred to as the "Exercise Termination Date"), but not thereafter, to purchase
_______ shares of the Common Stock, $10.00 par value per share (the "Shares"),
of Georgia Bancshares, Inc. (the "Company").
The purchase price payable upon exercise of this Option shall be the book
value per share as of December 31, ________, as determined by the Company's
independent certified public accountants (the "Option Price"), which is subject
to adjustment upon the occurrence of the contingencies set forth in this Option.
Upon delivery of this Option with the subscription form attached hereto,
duly executed, together with payment of the Option Price for the Shares thereby
purchased, at the principal office of the Company, or at such other address as
the Company may designate by notice in writing to the Holder, the Holder shall
be entitled to receive, and the Company shall, within a reasonable time (not to
exceed ten business days after this Option shall have been exercised as set
forth hereinabove) deliver to the Holder a certificate(s) for the Shares
containing such legends with respect to transferability as required by
applicable statutes, rules and regulations, together with a newly executed
Option containing the same date, terms and conditions of this Option and
governing the purchase of the balance remaining of the Shares purchasable
hereunder.
THESE SECURITIES HAVE BEEN ISSUED OR SOLD IN RELIANCE UPON THE PRIVATE PLACEMENT
EXEMPTION CONTAINED IN SECTION 4(2) OF THE SECURITIES ACT OF 1933 AND REGULATION
D PROMULGATED THEREUNDER AND IN RELIANCE UPON PARAGRAPH (13) OF CODE SECTION
10-5-9 OF THE GEORGIA SECURITIES ACT OF 1973. THESE SECURITIES MAY NOT BE SOLD
OR TRANSFERRED EXCEPT IN A TRANSACTION WHICH, IN THE OPINION OF COUNSEL FOR THE
COMPANY, IS EXEMPT UNDER APPLICABLE FEDERAL OR STATE SECURITIES LAWS OR PURSUANT
TO AN EFFECTIVE REGISTRATION UNDER FEDERAL OR STATE SECURITIES LAWS OR IS
OTHERWISE IN COMPLIANCE WITH APPLICABLE FEDERAL AND STATE SECURITIES LAWS.
THESE SECURITIES HAVE BEEN ISSUED OR SOLD IN RELIANCE ON PARAGRAPH (13) OF
CODE SECTION 10-5-9 OF THE GEORGIA SECURITIES ACT OF 1973, AND MAY NOT BE
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SOLD OR TRANSFERRED EXCEPT IN A TRANSACTION WHICH IS EXEMPT UNDER SUCH ACT OR
PURSUANT TO AN EFFECTIVE REGISTRATION UNDER SUCH ACT.
This Option is subject to the following terms and conditions:
1. EXERCISE OF OPTION. This Option, except as otherwise provided
herein, may be exercised at any time after the date set forth hereinbelow and
prior to 5:00 P.M., Tucker, Georgia time on the Exercise Termination Date, but
not thereafter, in whole or in part, from time to time, as to all or any part of
the number of Shares then subject thereto.
2. COVENANTS OF THE COMPANY. The Company covenants and agrees as
follows:
(a) all Shares issued upon the exercise of this Option, and full
payment therefor, will be duly authorized, validly issued, fully paid and
non-assessable and free from all taxes, liens and charges with respect to their
issuance.
(b) at all times prior to the Exercise Termination Date, the
Company will have authorized and reserved a sufficient number of Shares to
provide for the exercise of this Option.
3. ADJUSTMENT OF SHARES AND OPTION PRICE. The number of Shares
subject to issuance upon exercise of this Option and the Option Price shall be
subject to adjustment from time to time in accordance with the following
provisions:
(a) If the Company shall subdivide its outstanding Shares into a
greater number of shares or combine its outstanding Shares into a lesser number
of shares, the number of Shares subject to issuance upon exercise of this Option
(and not previously exercised) shall be adjusted proportionately. That is, the
number of Shares subject to issuance upon exercise of this Option shall be
multiplied by a fraction of which the denominator is the number of Shares
outstanding immediately prior to the subdivision or combination and the
numerator of which is the number of Shares outstanding immediately after the
subdivision or combination. Upon a subdivision or combination of Shares, the
Option Price shall be adjusted by making the following calculation: (i) the
number of Shares subject to issuance by exercise of this Option prior to the
subdivision or combination shall be multiplied by the Option Price in effect
just prior to the subdivision or combination; and (ii) the number of Shares
subject to issuance by exercise of this Option after the subdivision or
combination shall be divided into the result of the computation in (i) above.
(b) If the Company declares and pays a dividend upon its Shares
payable in additional Shares, the number of Shares subject to issuance upon
exercise of this Option (and not previously exercised) and the Option Price
shall be adjusted by treating the stock dividend as a stock split in accordance
with the provisions of subparagraph (a) above.
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(c) If the Company effects any reorganization or reclassification
of its Shares (other than as provided for in subparagraph (a) and (b) above), or
any consolidation or merger of the Company with another entity, or any sale of
all or substantially all of the Company's assets which results in shareholders
becoming entitled to receive any securities or property other than the Shares of
the Company, appropriate adjustment or provision (as determined by agreement of
the Company or any successor entity and the Holder) shall be made with respect
to the rights and interests of the Holder so that all of the provisions of this
Option shall thereafter be applicable, as nearly as may be, in relation to any
securities or property thereafter deliverable upon the exercise of this Option.
(d) No adjustment to the Option Price or the number of Shares
subject to issuance upon exercise of this Option shall be made under any of the
following circumstances: (i) the sale of any of the Company's securities in an
arms' length transaction at a price which has been approved by the Company's
Board of Directors; or (ii) the issuance or exercise of any stock options, stock
purchase warrants, or common stock issued pursuant to conversion rights attached
to any securities issued by the Company which have been approved by the
Company's Board of Directors.
(e) If any event occurs as to which the other provisions of this
Paragraph 3 are not strictly applicable, or, if strict application would not
protect the number of Shares receivable by Holder upon exercise of this Option
in accordance with the intent of these provisions, the Company's Board of
Directors shall adjust the application of these provisions in accordance with
their intent so as to reasonably protect the rights of the Holder hereunder.
(f) The Company shall not be required to issue a fraction of a
Share upon exercise of this Option. If any fraction of a Share would, except for
the provision of this subparagraph, be issuable upon exercise of this Option,
the Company will: (i) if the fraction of a Share otherwise issuable is equal to
or less than one-half, round down and issue to the Holder only the largest whole
number of Shares to which the Holder is otherwise entitled; or (ii) if the
fraction of a Share otherwise issuable is greater than one-half, round up and
issue to the Holder one full Share in addition to the largest whole number of
Shares to which the Holder is otherwise entitled.
(g) Upon any adjustment of the Option Price and any increase or
decrease in the number of Shares issuable upon exercise of this Option, then,
and in each such case, the Company, within thirty days thereafter, shall give
written notice thereof to the Holder which notice shall state the Option Price
as adjusted and the increased or decreased number of Shares, setting forth in
reasonable detail the method of calculation of each.
4. NO RIGHT AS SHAREHOLDER. Nothing contained in this Option shall be
construed as conferring upon the Holder any of the rights of a shareholder of
the Company.
5. INVESTMENT REPRESENTATIONS. The Holder, by acceptance of this
Option, hereby represents, acknowledges and agrees as follows:
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(a) that the Holder is acquiring this Option and the Shares
issuable upon exercise of this Option for his own account, for investment
purposes only and not with a view to sale or distribution thereof, in whole or
in part;
(b) that neither this Option nor the Shares issuable upon exercise
of this Option have been registered under the Securities Act of 1933, as
amended, or any applicable state securities or Blue Sky laws (collectively the
"Acts");
(c) that the Holder shall not sell, transfer or otherwise dispose
of this Option (except as otherwise provided in this Option) or the Shares
issuable upon exercise of this Option, unless the Holder delivers to the Company
an opinion, addressed to the Company, by counsel selected by the Holder and
acceptable to the Company and its counsel, in form and substance satisfactory to
the Company and its counsel, to the effect that the sale, transfer or other
disposition of the Shares can be effected without registration and in compliance
with the Acts, or that exemption from the Acts are available for such sale,
transfer or other disposition. Any certificate for the Shares issued upon
exercise of this Option shall bear such legends describing the foregoing
restrictions;
(d) that the Holder has such knowledge and experience in financial
and business matters that he is capable of evaluating the merits and risks of an
investment in the Shares issuable upon exercise of this Option;
(e) the Holder has been given the opportunity to inquire of the
officers and directors of the Company, as well as full and complete access to
all documents, books and records concerning the business of the Company, its
financial status, current circumstances, and future prospects of the Company;
(f) all other relevant information regarding the Company has been
made available to the Holder as deemed necessary for the Holder to make an
informed investment decision; and
(g) the Holder can bear the economic risks of an investment in the
Shares issuable upon exercise of this Option as the Shares are not freely
transferable and there is not presently any public market for the Shares of the
Company.
The foregoing terms and provisions of this Paragraph 5 are true
and correct as of the date hereof, and shall be true and correct as of any time
the Holder shall exercise this Option and on the date of such purchase, and
shall survive any such purchase or the termination or expiration of this Option.
6. TRANSFER RESTRICTIONS. The Holder may not transfer this Option
except by will or the laws of descent and distribution. This Option shall not be
otherwise transferable, assigned, pledged, hypothecated or disposed of in any
way, whether by operation of law or otherwise, and shall be exercisable during
the Holder's lifetime only by the Holder or his guardian or legal
representative.
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<PAGE>
7. REQUIRED EXERCISE OR TERMINATION. If the Company (or its
shareholders, as the case may be) shall propose to sell or exchange either (i)
all or in excess of 50% of the outstanding Shares of the Company or (ii) all or
substantially all of the assets of the Company, then the Company shall have to
right, exercisable in its sole discretion by notice to the Holder, to require
the Holder to purchase, within ten days from the date of such notice, all or any
portion of the Shares which are subject to this Option pursuant to the other
terms and conditions hereof, and this Option shall terminate as to any balance
remaining of the Shares as of the eleventh day from the date of such notice from
the Company to the Holder.
8. MISCELLANEOUS PROVISIONS.
(a) Any notice or communication to be given pursuant to this
Option shall be in writing and shall be delivered in person or by certified
mail, return receipt requested, in the United States Mail, postage prepaid.
Notices to the Company shall be addressed to the Company's principal office.
Notice to the Holder shall be addressed to the Holder's address as reflected in
the records of the Company. Notices shall be effective upon delivery in person,
or if mailed at midnight on the third business day after mailing.
(b) The terms of this Option shall be binding upon and inure to
the benefit of the parties hereto and their legal representative, any successors
and permitted assigns.
(c) This Option shall be governed by and construed in accordance
with the laws of the State of Georgia.
(d) The headings contained herein are for convenience and
reference only and are not intended to define, limit or describe the scope or
intent of any of the provisions of this Option.
(e) In the event that any one or more of the provisions contained
in this Option shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision hereof, and this Option shall be construed
as if such invalid, illegal or unenforceable provision had never been contained
herein.
(f) This Option may be amended only by an instrument in writing
executed by the party against whom enforcement of the amendment is sought.
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<PAGE>
IN WITNESS WHEREOF, the Company has caused this Option to be signed by
its duly authorized officers and its corporate seal to be affixed hereto this
____ day of ___________, 199__.
GEORGIA BANCSHARES, INC.
By:
-----------------------------------
President
Attest:
--------------------------------------
Secretary
[CORPORATE SEAL]
Accepted and Agreed
to by the Holder:
- -----------------------------------
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<PAGE>
DIRECTOR SUBSCRIPTION FORM
(To Be Executed Upon Exercise Of Option)
To: Georgia Bancshares, Inc.
The undersigned hereby exercises the right to purchase ___________ shares
of Common Stock (the "Shares") covered by the attached Option in accordance with
the terms and conditions thereof, and herewith makes full payment of the
aggregate Option Price of $___________ for such Shares. The undersigned hereby
directs that the certificate(s) for such Shares be issued in the name of, and
delivered to ________________________________ whose address is
______________________________. If the number of Shares so purchased shall not
be all of the Shares purchasable under such Option, a new Option for the balance
remaining of the Shares purchasable thereunder shall be issued in the name of
and delivered to the undersigned at the address shown below.
This ______ day of ________________, ______.
---------------------------------
(Signature must conform in all
respects to name of Holder as
specified on the face of the
Option)
Signature Guaranteed By:
- ---------------------------------- ---------------------------------
Commercial Bank or Member Street Address
Firm of a Stock Exchange
---------------------------------
City, State, Zip Code
---------------------------------
Social Security Number
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<PAGE>
EXHIBIT 5
Opinion and Consent of Miller & Martin LLP
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<PAGE>
WRITER'S DIRECT NUMBER
404/962-6406
T. KENNERLY CARROLL, JR. E-MAIL ADDRESS:
ATLANTA OFFICE [email protected]
May 27, 1999
First Sterling Banks, Inc.
P.O. Box 2147
Marietta, Georgia 30061
RE: GEORGIA BANCSHARES, INC. DIRECTORS 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 40,760 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 Company's
assumption of the Options issued under the Georgia Bancshares, Inc. Directors
Stock Option Plan (the "Plan") pursuant to the Option Assumption Agreement (the
"Assumption Agreement") between First Sterling Banks, Inc. and option holders in
the Georgia Bancshares, Inc. Directors Stock Option Plan and the Georgia
Bancshares, Inc. Employee Incentive Stock Option 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 granted in accordance with the Plan.
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<PAGE>
First Sterling Banks, Inc.
May 27, 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 and the Assumption Agreement, 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.
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<PAGE>
EXHIBIT 23.2
Letter on Unaudited Interim Financial Information and
Consent of Mauldin & Jenkins
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<PAGE>
MAULDIN & JENKINS
CPA'S & CONSULTANTS
1640 Powers Ferry Road
Building 26
Marietta, Georgia 30067
May 27, 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 4, 1999, in the 1998 Annual
Report to stockholders of First Sterling Banks, Inc. appearing in the Annual
Report on Form 10-KSB for the year ended December 31, 1998.
MAULDIN & JENKINS
/s/ Mauldin & Jenkins
----------------------------------
Atlanta, Georgia
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