<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington D. C. 20549
-----------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------------
THE COLONIAL BANCGROUP, INC.
(Exact name of registrant as specified in its charter)
Delaware 63-0661573
(State of Incorporation) (I.R.S. Employer Identification No.)
One Commerce Street, Suite 800
Montgomery, Alabama 36104 (334) 240-5000
(Address of principal executive offices) (Telephone No.)
------------------------------
1993 Nonstatutory Stock Option Plan of
Southern Banking Corporation
Southern Bank of Central Florida
1989 Employee Incentive Stock Option Plan
Southern Bank of Central Florida 1989 Organizing
Director Stock Option Plan
(Full title of plans)
Copies to:
W. Flake Oakley, IV Michael D. Waters, Esquire
Chief Financial Officer, Treasurer Miller, Hamilton, Snider & Odom
and Secretary One Commerce Street, Suite 802
Post Office Box 1108 Montgomery, Alabama 36103
Montgomery, Alabama 36102
(Name and address of agent for service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE (1)
=====================================================================================================
Title of Amount to be Prop. Max. Prop. Max. Amount of Fee
Securities to be Registered Offering Price Per Aggregate Offering
Registered Unit Price
- -----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock par 323,788(2) $11.48(3) $2,729,230.70 $941.11
value $2.50 per
share
=====================================================================================================
</TABLE>
(1) Calculated pursuant to Rule 457(h)(1).
(2) The Registrant assumed all options to issue common stock of Southern
Banking Corporation ("SBC") pursuant to an Amended and Restated
Agreement and Plan of Merger dated as of February 15, 1996. Such
options are held by 17 current or former officers, employees or
directors of SBC. The Registrant acquired SBC by Merger on July 3,
1996.
(3) The exercise price for these shares varies from $7.45 per share to
$11.48 per share with a total exercise price for all options of
$2,729,230.70.
<PAGE> 2
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. 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 (the "Exchange Act") prior to the filing of a post-effective amendment
which indicates that all securities offered have been sold or which deregisters
all securities remaining unsold, shall be deemed to be incorporated by
reference in this registration statement and to be a part hereof from the date
of filing of such documents:
(a) The registrant's latest annual report filed pursuant to
Section 13(a) or 15(d) of the Exchange Act that contains
audited financial statements for the registrant's latest
fiscal year for which such statements have been filed.
(b) All other reports filed pursuant to Section 13(a) or
15(d) of the Exchange Act since the end of the fiscal year
covered by the registrant's annual report referred to in (a)
above.
(c) The description of the registrant's Common Stock
contained in the registrant's registration statement on Form
8-A
2
<PAGE> 3
dated November 22, 1994, effective February 22, 1995.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Certain legal issues respecting the shares of Common Stock of the
registrant to be issued and the tax consequences upon issuance of such shares
are being passed upon by the law firm of Miller, Hamilton, Snider & Odom,
L.L.C., Post Office Box 46, Mobile, Alabama 36601. John C. H. Miller, Jr., a
member of such firm, is a director of the registrant. Mr. Miller's firm
performs legal services for the registrant. Mr. Miller currently owns 10,175
shares of registrant's Common stock and may acquire 10,000 shares pursuant to
stock options. Other attorneys in such firm own shares of BancGroup Common
Stock, but such shares are immaterial in amount.
Item 6. Indemnification of Directors and Officer.
Pursuant to Section 145 of the Delaware General Corporation Law,
officers, directors, employees and agents of the registrant are entitled to
indemnification against liabilities incurred while acting in such capacities on
behalf of the registrant, including reimbursement of certain expenses. In
addition, the registrant maintains an officer's and director's insurance policy
and separate indemnification agreements (the "Indemnification Agreements")
pursuant to which officers and directors of the registrant would be entitled to
indemnification against certain liabilities, including reimbursement of certain
expenses.
The Indemnification Agreements are intended to provide additional
indemnification to directors and officers of BancGroup beyond the specific
provisions of the Delaware
3
<PAGE> 4
General Corporation Law. Under the Delaware General Corporation Law, a company
may indemnify its directors and officers in circumstances other than those
under which indemnification and the advance of expenses are expressly permitted
by applicable statutory provisions.
Under the Delaware General Corporation Law, a director, officer,
employee or agent of a corporation (i) must be indemnified by the corporation
for all expenses incurred by him (including attorneys' fees) when he is
successful on the merits or otherwise in defense of any action, suit or
proceeding brought by reason of the fact that he is or was a director, officer,
employee or agent of the corporation, (ii) may be indemnified by the
corporation against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement of any such proceeding (other than a proceeding by
or in the right of the corporation) even if he is not successful on the merits
if he acted in good faith and in a manner he reasonably believed to be in or
not opposed to the best interest of the corporation (and, in the case of a
criminal proceeding, had no reasonable cause to believe his conduct was
unlawful), and (iii) may be indemnified by the corporation for expenses
(including attorneys' fees) incurred by him in the defense or settlement of a
proceeding brought by or in the right of the corporation, if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation; provided that no indemnification may be made
under the circumstances described in clause (iii) if the director, officer,
employee or agent is adjudged liable to the corporation, unless a court
determines that, despite the adjudication of liability but in view of all of
the circumstances, he is fairly and reasonably entitled to indemnification for
the expenses which the court shall deem proper. The indemnification described
in clauses (ii) and (iii) above (unless ordered by a court) may be
4
<PAGE> 5
made only as authorized in a specific case upon determination by (i) a majority
of a quorum of disinterested directors, (ii) independent legal counsel in a
written opinion, or (iii) the stock holders, that indemnification is proper in
the circumstances because the applicable standard of conduct has been met.
Expenses (including attorneys' fees) incurred by an officer or director in
defending a proceeding may be advanced by the corporation prior to the final
disposition of the proceeding upon receipt of an undertaking by or on behalf of
the director or officer to repay the advance if it is ultimately determined
that he is not entitled to be indemnified by the corporation. Expenses
(including attorneys' fees) incurred by other employees and agents may be
advanced by the corporation upon terms and conditions deemed appropriate by the
board of directors.
The indemnification provided by the Delaware General Corporation Law
has at least two limitations that are addressed by the Indemnification
Agreements: (i) BancGroup is under no obligation to advance expenses to a
director or officer, and (ii) except in the case of a proceeding in which a
director or officer is successful on the merits or otherwise, indemnification
of a director or officer is discretionary rather than mandatory.
The Indemnification Agreements, therefore, cover any and all expenses
(including attorneys' fees and all other charges paid or payable in connection
therewith) incurred in connection with investigating, defending, being a
witness or participating in (including an appeal), or preparing to defend, be a
witness in or participate in, any threatened, pending or completed action, suit
or proceeding, or any inquiry or investigation, whether civil, criminal,
administrative or otherwise, related to the fact that such director or officer
is or was a director, officer, employee or agent of BancGroup or is or was
serving at the request
5
<PAGE> 6
of BancGroup as a director, officer, employee, agent, partner, committee member
or fiduciary of another corporation, partnership, joint venture, employee
benefit plan, trust or other enterprise, or by reason of anything done or not
done by such director or officer in any such capacity.
The Indemnification Agreements also provide for the prompt advancement
of all expenses incurred in connection with any proceeding and obligate the
director or officer to reimburse BancGroup for all amounts so advanced if it is
subsequently determined, as provided in the Indemnification Agreements, that
the director or officer is not entitled to indemnification.
The Indemnification Agreements further provide that the director or
officer is entitled to indemnification for, and advancement of, all expenses
(including attorneys' fees) incurred in any proceeding seeking to collect from
BancGroup an indemnity claim or advancement of expenses under the
Indemnification Agreements, BancGroup's Certificate of Incorporation, or the
Delaware General Corporation Law, regardless of whether the director or officer
is successful in such proceeding.
The Indemnification Agreements impose upon BancGroup the burden of
proving that the director or officer is not entitled to indemnification in any
particular case, and the Indemnification Agreements negate certain presumptions
which might otherwise be drawn against a director or officer in certain
circumstances. Further, the Indemnification Agreements provide that if
BancGroup pays a director or officer pursuant to an Indemnification Agreement,
BancGroup will be subrogated to such director's or officer's rights to recover
from third parties.
6
<PAGE> 7
The Indemnification Agreements stipulate that a director's or
officer's rights under such contracts are not exclusive of any other indemnity
rights a director or officer may have; however, the Indemnification Agreements
prevent double payment. The Indemnification Agreements require the maintenance
of directors' and officers' liability insurance if such insurance can be
maintained on terms, including rates, satisfactory to BancGroup.
The benefits of the Indemnification Agreements would not be available
if (i) the action with respect to which indemnification is sought was initiated
or brought voluntarily by the officer or director (other than an action to
enforce the right to indemnification under the Indemnification Agreements);
(ii) the officer or director is paid for such expense or liability under an
insurance policy; (iii) the proceeding is for an accounting of profits pursuant
to Section 16(b) of the Securities Exchange Act of 1934, as amended; (iv) the
conduct of the officer or director is adjudged as constituting an unlawful
personal benefit, or active or deliberate dishonesty or willful fraud or
illegality; or (v) a court determines that indemnification or advancement of
expenses is unlawful under the circumstances.
The Indemnification Agreements would provide indemnification for
liabilities arising under the Securities Act of 1933, as amended. BancGroup
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in such act and is,
therefore, unenforceable.
Item 7. Exemption from Registration Claimed.
Not applicable.
7
<PAGE> 8
Item 8. Exhibits.
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<S> <C>
4.1 1993 Nonstatutory Stock Option Plan of Southern
Banking Corporation.
4.2 Southern Bank of Central Florida 1989 Employee
Incentive Stock Option Plan.
4.3 Southern Bank of Central Florida 1989 Organizing
Director Stock Option Plan.
4.4 Amended and Restated Agreement and Plan of Merger
dated as of February 15, 1996 between The
Colonial BancGroup, Inc. and Southern Banking
Corporation included as Exhibit 10(F) of the
registrant's registration statement on Form S-4,
registration no. 333-01163, and incorporated
herein by reference.
4.5 Article 4 of the Restated Certificate of
Incorporation of the Registrant filed as Exhibit
4.1 to the Registrant's report on form 8-K dated
February 21, 1995, and incorporated herein by
reference.
4.6 Article II of the Bylaws of the Registrant filed
as Exhibit 4.2 to the Registrant's report on form
8-K dated February 21, 1995, and incorporated
herein by reference.
4.7 Dividend Reinvestment and Class A Common Stock
Purchase Plan of the Registrant dated January 15,
1986, and Amendment No. 1 thereto dated as of
June 10, 1986, filed as Exhibit 4(C) to the
Registrant's Registration Statement on Form S-4
(File No. 33-07015), effective July 15, 1986, and
incorporated herein by reference.
</TABLE>
8
<PAGE> 9
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<S> <C>
4.8 Trust Identure dated as of March 25, 1986,
included as Exhibit 4 to the Registrant's
Amendment No. 1 to Regtistration Statement on
Form S-2, file number 33-4004, effective March
25, 1986, and incorporated herein by reference.
5 Opinion of Messrs. Miller, Hamilton, Snider &
Odom, L.L.C.
23.1 Consent of Messrs. Miller, Hamilton, Snider &
Odom, L.L.C.
23.2 Consent of independent accountants, Coopers &
Lybrand, L.L.P.
24 Power of Attorney, filed as Exhibit 24 to the
registrant's Registration Statement on Form S-4,
Registration no. 333-01345, and incorporated
herein by reference.
</TABLE>
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers of sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or in the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the registration
statement;
9
<PAGE> 10
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
Provided, however, that paragraphs, (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the registrant
pursuant to section 13 or section 15(d) of the Exchange Act that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to
be a new registration relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant 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
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(h) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant
10
<PAGE> 11
pursuant to the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the securities
being registered, the registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
11
<PAGE> 12
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 of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized in the City of Montgomery, Alabama, on the 19th day of August,
1996.
THE COLONIAL BANCGROUP, INC.
BY: /s/ Robert E. Lowder
------------------------------------
Its Chairman of the Board
of Directors, President and
Chief Executive Officer
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>
SIGNATURES TITLE DATE
- ---------- ----- ----
<S> <C> <C>
/s/ Robert E. Lowder Chairman of the Board **
- ---------------------------------- of Directors, President
Robert E. Lowder and Chief Executive
Officer
/s/ W. Flake Oakley, IV Chief Financial **
- ---------------------------------- Officer, Secretary
W. Flake Oakley, IV and Treasurer (Principal
Financial Officer and
Principal Accounting
Officer)
</TABLE>
12
<PAGE> 13
<TABLE>
<S> <C> <C>
* Director **
- ----------------------------------
Young J. Boozer
* Director **
- ----------------------------------
William Britton
* Director **
- ----------------------------------
Jerry J. Chesser
* Director **
- ----------------------------------
Augustus K. Clements, III
* Director **
- ----------------------------------
Robert C. Craft
Director
- ----------------------------------
Patrick F. Dye
* Director **
- ----------------------------------
Clinton O. Holdbrooks
* Director **
- ----------------------------------
D. B. Jones
</TABLE>
13
<PAGE> 14
<TABLE>
<S> <C> <C>
* Director **
- ----------------------------------
Harold D. King
* Director **
- ----------------------------------
John Ed Mathison
* Director **
- ----------------------------------
Milton E. McGregor
* Director **
- ----------------------------------
John C. H. Miller, Jr.
* Director **
- ----------------------------------
Joe D. Mussafer
* Director **
- ----------------------------------
William E. Powell
Director **
- ----------------------------------
Donald J. Prewitt
* Director **
- ----------------------------------
Jack H. Rainer
* Director **
- ----------------------------------
Frances E. Roper
</TABLE>
14
<PAGE> 15
<TABLE>
<S> <C> <C>
* Director **
- -----------------------------------
Ed V. Welch
</TABLE>
* The undersigned, acting pursuant to a power of attorney, has signed
this Registration Statement on Form S-4 for and on behalf of the
persons indicated above as such persons' true and lawful
attorney-in-fact and in their names, places and stead, in the
capacities indicated above and on the date indicated below.
/s/ W. Flake Oakley, IV
- -------------------------
W. Flake Oakley, IV
Attorney-in-Fact
** Dated: August 19, 1996
15
<PAGE> 16
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
EXHIBITS
TO
FORM S-8
Registration Statement
Under
The Securities Act of 1933
THE COLONIAL BANCGROUP, INC.
(Exact name of registrant as specified in its charter)
16
<PAGE> 17
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<S> <C>
4.1 1993 Nonstatutory Stock Option Plan of
Southern of Banking Corporation.
4.2 Southern Bank of Central Florida 1989
Employee Incentive Stock Option Plan.
4.3 Southern Bank of Central Florida 1989
Organizing Director Stock Option Plan.
4.4 Amended and Restated Agreement and
Plan of Merger dated as of February
15, 1996 between The Colonial
BancGroup, Inc. and Southern Banking
Corporation included as Exhibit 10(F)
of the registrant's registration
statement on Form S-4, registration
no. 333-01163, and incorporated herein
by reference.
4.5 Article 4 of the Restated Certificate
of Incorporation of the Registrant
filed as Exhibit 4.1 to the
Registrant's report on form 8-K dated
February 21, 1995, and incorporated
herein by reference.
4.6 Article II of the Bylaws of the
Registrant filed as Exhibit 4.2 to the
Registrant's report on form 8-K dated
February 21, 1995, and incorporated
herein by reference.
4.7 Dividend Reinvestment and Class A
Common Stock Purchase Plan of the
Registrant dated January 15, 1986, and
Amendment No. 1 thereto dated as of
June 10, 1986, filed as Exhibit 4(C)
to the Registrant's Registration
Statement on Form S-4 (File No.
33-07015), effective July 15, 1986,
and incorporated herein by reference.
</TABLE>
17
<PAGE> 18
<TABLE>
<CAPTION>
Exhibit No. Description
- ---------- -----------
<S> <C>
4.8 Trust Identure dated as of March 25,
1986, included as Exhibit 4 to the
Registrant's Amendment No. 1 to
Regtistration Statement on Form S-2,
file number 33-4004, effective March
25, 1986, and incorporated herein by
reference.
5 Opinion of Messrs. Miller, Hamilton,
Snider & Odom, L.L.C.
23.1 Consent of Messrs. Miller,
Hamilton, Snider & Odom, L.L.C.
23.2 Consent of independent accountants,
Coopers & Lybrand, L.L.P.
24 Power of Attorney, filed as Exhibit 24
to the registrant's Registration
Statement on Form S-4, Registration
no. 333-01345, and incorporated
herein by reference.
</TABLE>
18
<PAGE> 1
Exhibit 4.1
1993 Nonstatutory Stock Option Plan of
Southern Banking Corporation
19
<PAGE> 2
1993 NONSTATUTORY STOCK OPTION PLAN OF
SOUTHERN BANKING CORPORATION
1. PURPOSE:
The purpose of the 1993 Nonstatutory Stock Option Plan of
SOUTHERN BANKING CORPORATION, as amended (hereinafter referred to as the
"PLAN") is to provide a special incentive to the directors and selected key
employees of SOUTHERN BANKING CORPORATION and/or its subsidiaries (hereinafter
referred to as the "BANK") to promote the Bank's business. The Plan is
designed to accomplish this purpose by offering such directors and employees an
opportunity to acquire common stock of the Bank so they will share in the
Bank's success.
2. ADMINISTRATION:
(A) The Plan shall be administered by an Option Committee to
be established by the Board of Directors of the Bank (the "BOARD").
(B) The Option Committee shall be composed of not less than
three (3) Directors of the Bank appointed by the Board of Directors. Members
of the Committee shall serve at the pleasure of the Board of Directors.
Vacancies occurring in the membership of the Committee shall be filled by
appointment by the Board of Directors. The committee shall meet from time to
time. A majority of the Committee shall constitute a quorum thereof and the
acts of a majority of the members present at any meeting of the Committee at
which a quorum is present, or the acts approved in writing by a majority of the
entire Committee, shall be the acts of the Committee.
The Committee shall have the authority, consistent with the Plan:
a. To determine the time or times when options shall be
granted and the
<PAGE> 3
number of shares of common stock to be subject to each option,
subject to the limitations contained in Paragraph 6;
b. To determine the method of payment of the option price by
each participant, subject to the limitations contained in
Paragraph 6;
c. To determine the time or times when each option becomes
exercisable and the duration of the exercise period, subject
to the limitations contained in Paragraph 6.
d. To recommend to the Board for its approval the form or
forms of the instruments evidencing any options granted under
the Plan and of any other instruments required under the Plan,
and to change such forms from time to time;
e. To establish, amend and rescind rules and regulations for
the administration of the Plan and the options for its own
acts and proceedings; and
f. To decide all questions and settle all controversies and
disputes which may arise in connection with the Plan. All
decisions, determinations and interpretations of the Committee
shall be binding on all parties concerned.
3. PARTICIPANTS:
Plan participants shall be directors and certain key employees of the
Bank as identified by the Bank. All participants shall be approved by the
Board of Directors.
4. LIMITATIONS:
Any stock option plan approved by the Bank must meet all applicable
regulations of
21
<PAGE> 4
both the Internal Revenue Service and the Florida Department of Banking and
Finance, and must be approved by the shareholders of the Bank, as well as the
Bank's legal counsel. The total number of shares of stock of the Bank which
may be issued under this Plan and any other plans adopted by the Bank shall not
exceed TWENTY (20%) PERCENT of the Bank's total authorized shares.
5. STOCK TO BE ISSUED:
The stock to be subject to options under the Plan shall be shares of
SOUTHERN BANKING CORPORATION common capital stock of $2.00 per share par value.
Stock to be issued under the Plan shall constitute an original issue of
authorized stock.
6. TERMS AND CONDITIONS OF OPTIONS:
All options granted under the Plan shall be subject to the following
terms and conditions and to such other terms and conditions as the Committee
shall determine to be appropriate to accomplish the purpose of the Plan:
a. TOTAL OPTIONS: The total number of shares of Bank stock which may
be issued under this Plan together with the shares that may be issued under any
other option plans adopted by the Bank shall not exceed TWENTY (20%) percent of
the Bank's total authorized shares.
b. OPTION PRICE: The price at which each of the options granted
under this Plan may be exercised shall be established by the Board. This price
shall be not less than the greater of the fair market value of the stock as of
the date the option is granted or the par value of such shares. If such shares
are not publicly traded, the book value shall be substituted for the fair
market value.
22
<PAGE> 5
c. VESTING AND PERIOD OF OPTIONS: Subject to the conditions
stated below, for each option granted the Option Committee shall determine the
time or times when each option becomes exercisable and the duration of the
exercise period.
All options allocated to a participant, whether granted or ungranted,
shall become immediately granted (vested) and exercisable upon sale or change
in the control of the Bank, provided, however, that the Bank in the said sale
shall have the right to treat the same as having been exercised and to
distribute either cash proceeds or exchange stock on the basis of exchange
value less the exercised price. For purposes of this paragraph, the term "sale
or change in control of the Bank" is not meant to encompass an internal
reorganization.
The participant must be employed by the Bank or serve on the Board of
Directors of SOUTHERN BANKING CORPORATION or any of its subsidiaries on the
grant date in order to be granted an option.
d. NOTICE OF INTENT TO EXERCISE: A participant electing to
exercise an option shall give written notice to the Bank, as specified by the
Committee, of his/her election and the number of shares he/she has elected to
purchase. The options may be exercisable at one time or in installments in
multiples of 500 shares. Such notice shall be accompanied by such instruments
or documents as may be required by the Committee, and unless otherwise directed
by the Committee, the participant shall, at the time of exercise, tender the
purchase price of the share he/she has elected to purchase.
e. PAYMENT FOR ISSUANCE OF SHARES: Upon exercise of any option
granted hereunder, payment in full shall be made at the time of such exercise
for all shares
23
<PAGE> 6
then being purchased. No part of the option share price may be paid for with
previously issued shares.
The Bank shall not be obligated to issue any shares of stock upon the
exercise of any option granted pursuant to the Plan unless and until, in the
opinion of the Bank's counsel, all applicable laws and regulations have been
complied with, nor, in the event the authorized stock is at the time listed
upon any stock exchange, unless and until the shares to be issued have been
listed or authorized to be added to the list upon official notice of issuance
upon such exchange, nor unless or until all other legal matters in connection
with the issuance and delivery of shares have been approved by the Bank's
counsel. Without limiting the generality of the foregoing, the Bank may
require from the participant such investment representation or such agreement,
if any, as counsel for the Bank may consider necessary in order to comply with
the Securities Act of 1933, the Florida Department of Banking and Finance, and
the Federal Deposit Insurance Corporation rules and regulations, and any
applicable state or federal requirements and acts as then in effect. A
participant shall have the rights of a stockholder only as to shares actually
acquired by him/her under the Plan.
f. NONTRANSFERABILITY OF OPTIONS: No option may be transferred
by the participant other than by will or by the laws of descent and
distribution, and during the participant's lifetime the option may be exercised
only by him/her.
g. [deleted]
h. TERMINATION OR RETIREMENT: If the employment with SOUTHERN
BANKING CORPORATION or any
24
<PAGE> 7
of its subsidiaries of a participant terminates for any reason other than
his/her death (such termination shall include the participant's retirement),
any options which remain unexercised 120 days after termination may not
subsequently be exercised by the participant. For purposes of this
sub-paragraph, a participant's employment shall not be considered terminated in
the case of total and permanent disability, partial disability, sick leave or
other bona fide leave of absence otherwise allowed by the Bank. In the event
of termination of employment due to deliberate, willful, or gross misconduct as
determined by the Bank, the conviction of a felony, the conviction of any crime
involving moral turpitude or unethical business practices, conduct involving an
intentional violation of the Bank's rules and procedures, an intentional
violation any statute, rule or regulation governing the operation of the Bank,
conduct which brings or is likely to bring discredit to the Bank, or the misuse
of any confidential information which comes to the participant's attention by
virtue of his/her position, all unexercised options of such participant shall
immediately terminate and all rights thereon shall cease.
i. DEATH OF PARTICIPANT: If a participant dies at a time when
he/she is entitled to exercise an option, then at any time or times within one
(1) year after his/her death (or such further period as the Committee may
allow) such option may be exercised, as to all or any of the shares which the
participant was entitled to purchase immediately prior to his/her death, by
his/her executor or administrator or the person or persons to whom the option
is transferred by will or the applicable laws of descent and distribution, and
except as so exercised such option shall expire at the end of such period. In
no event, however, may an option be exercised after the expiration period as
defined in Paragraph 6(c).
25
<PAGE> 8
j. INCOME TAX WITHHOLDING: At the time options granted pursuant
to this Plan are exercised, the Committee is responsible for causing the Bank
to properly withhold income taxes upon the amounts transferred.
7. REGISTRATION OF CERTIFICATES:
Certificates representing shares of Common Stock may be registered
either in the name of the recipient of an option or in the name or names of his
Successors. Certificates may also be registered in the names of the recipient
and another person, in which case such certificates will be registered in the
names of the recipient and such other person as "joint tenants with the right
of survivorship and not as tenants in common." Designation of the appropriate
form of registration of certificates shall be made in the written notice given
to the Bank upon exercise of an option.
8. EXPENSES OF PLAN:
All costs of and for the formulation and administration of the Plan
will be an expense of the Bank.
9. CHANGES IN STOCK:
In the event the Bank shall at any time declare a stock dividend on
its common capital stock, $3.00 par value, or shall split up or subdivide or
combine the outstanding shares of its common capital stock, the number of
shares which are the subject of any option issued under this Plan shall be
proportionately increased or decreased as the case may be. In the event that
there may be a dispute between the interested parties as to the precise amount
of any such adjustment, the determination of the certified public accountants
customarily used by the Bank to audit its books and records shall be
26
<PAGE> 9
determinative of the matter.
10. EMPLOYMENT RIGHTS:
The adoption of the Plan does not confer upon any employee of the Bank
any right to continue employment with the Bank, nor does it interfere in any
way with the right of the Bank to terminate the employment of any of its
employees at any time.
11. AMENDMENTS:
The Board of Directors of the Bank may at any time or times amend or
terminate the Plan or amend any outstanding option or options for the purpose
of satisfying the requirements of any changes in applicable laws or
regulations, or for any other purpose which may at the time be permitted by
law, provided that except to the extent required or permitted under Section 8,
no such amendment shall, without the approval of the stockholders of the Bank,
increase the maximum number of shares available under the Plan. Furthermore,
the Board of Directors may not, without the consent of the participant, void or
diminish options previously granted, withdraw the administration of the Plan
from a committee of directors, alter the assignability of an option, nor
increase or accelerate the conditions and actions required for the exercise of
the same, except if the participant is discharged from the Bank's employment
under the conditions set forth in Section 6(h). Neither the Committee nor the
Board of Directors may substantially change the options after the commencement
of negotiations that results in a vesting for sale purposes as described in
Paragraph 6(c). All amendments shall be presented to the Bank's shareholders
for approval, such approval requiring the favorable vote of a majority of the
total number of votes eligible to be cast at a duly called meeting.
27
<PAGE> 10
12. TAX PLANNING:
The Bank disclaims all responsibility for determining and advising
optionees as to the tax consequences that the Plan will impose on each
optionee. All grantees of stock options under the Plan should seek and follow
the advise of independent tax counsel regarding the deferral of any or all
benefits earned under the Plan in order to maximize the grantee's personal tax
benefits.
13. EXCULPATION:
Each member of the Board of Directors or the Committee, and each
officer and employee of the Bank or any subsidiary thereof, shall be fully
justified in relying or acting in good faith upon any information furnished in
connection with the administration of the Plan by any appropriate person or
persons other than himself/herself. In no event shall any person who is or
shall have been a member of the Board, or the Committee, or an officer or
employee of the Bank be held liable for any determination made or other actions
taken or any omission to act in reliance upon any information, or for any
action (including the furnishing of information) taken or any failure to act,
if done in good faith.
14. NOTICES:
All notices under the Plan shall be made in writing, and if to the
Bank, shall be delivered personally to the Secretary of the Bank or mailed to
its principal office, 919 W. SR 436, Altamonte Springs, FL 32714, addressed to
the attention of the Secretary; and if to the recipient of an option, shall be
delivered personally or mailed to the recipient at the address appearing in the
records of the Bank. Such addresses may be changed at any time by written
notice to the other party.
28
<PAGE> 11
15. CONSTRUCTION:
Wherever the context and facts require such construction, the pronouns
used in this agreement shall include the masculine, feminine, neuter, singular,
and plural. The various headings used in this Plan document are for
convenience only and shall not be used in interpreting the text of the
paragraph or subparagraph in which they appear.
16. GOVERNING LAW:
This Plan shall be construed and interpreted in accordance with, and
the validity of this Plan, and any amendments thereto, shall be judged by the
laws of the State of Florida where it was prepared and adopted. Venue for any
disputes hereunder of any nature or kind shall be in Seminole County, Florida.
17. ADOPTION AND APPROVAL OF PLAN.
Date Plan adopted by Board of Directors: April 21, 1993
Date Plan approved by Shareholders: March 17, 1993
29
<PAGE> 1
Exhibit 4.2
Southern Bank of Central Florida
1989 Employee Incentive Stock Option Plan
30
<PAGE> 2
SOUTHERN BANK OF CENTRAL FLORIDA
1989 EMPLOYEE INCENTIVE STOCK OPTION PLAN
1. PURPOSES OF PLAN. The Purposes of this 1989 Employee
Incentive Stock Option Plan ("Plan") are to provide certain employees of
SOUTHERN BANK OF CENTRAL FLORIDA ("Bank") with an opportunity for investment in
the Bank's Common Stock ("Common Stock"), to provide an additional inducement
for such employees to remain with the Bank, and to encourage them to increase
their efforts to make the Bank more successful. It is intended that options
issued under this Plan will qualify as incentive stock options under Section
422A of the Internal Revenue Code of 1954, as amended ("Code"), and the terms
of this Plan shall be interpreted in accordance with this intention. This Plan
is formulated under the provisions of Chapter 658.35, Florida Statutes, as
amended.
2. EFFECTIVE DATE AND TERMINATION OF PLAN. This Plan was
adopted by the Board of Directors of the Bank on March 15, 1989, and is
effective on such date subject to approval of the shareholders of the Bank
given before March 15, 1989. The Board of Directors may terminate this Plan at
any time, although termination of the Plan will in no way affect the rights and
obligations theretofore granted and in effect. If not sooner terminated by the
Board of Directors or by the granting and full exercise of all stock options
authorized to be granted pursuant to this Plan, the Plan will terminate on
March 14, 1999 and no option shall granted after such date.
3. ADMINISTRATION OF PLAN. The Plan shall be administered by
the Compensation Committee of the Bank, which shall be composed of not less
then three (3) directors of the Bank ("Committee") appointed by the Board of
Directors. Members of the
<PAGE> 3
Committee shall serve at the pleasure of the Board of Directors. Vacancies
occurring in the membership of the Committee shall be filled by appointment by
the Board of Directors. The Committee shall meet from time to time and shall
keep minutes of its meetings. A majority of the Committee shall constitute a
quorum thereof and the acts of a majority of the members present at any meeting
of the Committee at which a quorum is present, or acts approved in writing by a
majority of the entire Committee, shall be the acts of the Committee. Members
of the Committee shall not be eligible to be selected for the grant of an
option under this Plan during such membership.
4. ELIGIBILITY. Subject to the provisions of the Plan, the
Committee shall determine and designate from time to time those key officers
and employees of the Bank, including Directors who are officers or employees of
the Bank, to whom options are to be granted and the number of authorized but
unissued shares of Common Stock subject to each option. In determining the
number of shares, the Committee shall consider the position and
responsibilities of the employee being considered, the nature and value to the
Bank of his or her services and accomplishments, his or her present and
potential contribution to the success of the Bank, and such other factors as
the Committee may deem relevanct. The grant of each option shall be confirmed
by a Stock Option Agreement (in the form prescribed by the Committee) which
shall be executed by the Bank and the recipient as promptly as practicable
after such grant. In no event shall an option be granted to an individual who,
at the time such option is granted, owns shares possessing more than ten (10%)
percent of the total combined voting power of all classes of stock of the Bank
or of any parent or subsidiary corporation thereof unless such individual has
previously been
32
<PAGE> 4
approved by Federal and/or State regulatory authorities as the case may be.
5. NUMBER OF SHARES SUBJECT TO OPTIONS. The total amount of
authorized but unissued shares of Common Stock on which options may be granted
under this Plan shall not exceed Twenty-six thousand (26,000) shares. If an
option is terminated, in whole or in part, for any reason other than the
exercise thereof, the shares allocated to the option or the portion thereof so
terminated may be reallocated to another option to be granted under the Plan.
The number of shares provided in this Section shall be subject to adjustment as
provided in Section 16 hereof
6. OPTION PRICE. The option price per share of Common Stock
shall be determined in each case by the Board of Directors but shall not be
less than one hundred (100%) percent of the fair market value of a share of
Common Stock on the date the option is granted, the book value thereof or
$11.65 per share, whichever is greater. The option price provided in this
Section shall be subject to adjustment as provided in Section 16 hereof.
7. GRANTING OF OPTIONS. The Board of Directors, at any time and
periodically from time to time, may authorize, in accordance with the
recommendations of the Committee, the granting of options to employees of the
Bank under the terms of the Plan and subject to the restrictions cited in this
Section. The granting of options is subject to the following terms:
A. The aggregate fair market value or book value of the stock (on
the date of grant of the option) for which any employee may be
granted options under this Plan or any other incentive stock
option plan of the Bank or any parent
33
<PAGE> 5
or subsidiary corporation thereof in any calendar year
(January 1 through December 31) shall not exceed $100,000 plus
any unused limit carryover as cited in subsections 7.B, 7.C
and 7.D immediately below.
B. If the aggregate fair market value or book value of the stock
for which an employee was granted incentive stock options in
any calendar year is less than $100,000, one-half (1/2) of
such difference shall be unused limit carryover to each of the
three (3) succeeding calendar years.
C. The amount of the unused limit carryover from any calendar
year which may be taken into account in any succeeding
calendar year shall be the amount of such carryover reduced by
the amount of such carryover which was used in prior calendar
years.
D. The amount of any incentive stock options granted during any
calendar year shall be treated as first using up the $100,000
limitation for such year and then shall be treated as using up
unused limit carryovers to such year in the order of the
calendar years in which such carryovers arose.
E. The date on which the option shall be granted shall be the
date of the Board of Directors' authorization of such grant.
F. All options under the Plan must be granted within ten (10)
years from the date the Plan is adopted, or the date the Plan
is approved by the shareholders, whichever is earlier.
8. SUCCESSIVE OPTIONS. In no event shall an option (for
purposes of this Section 8 referred to as a "New Option") granted under the
Plan to any individual be
34
<PAGE> 6
exercised while there is outstanding (as defined in Sect. 422A(c)(7) of the
Code) any incentive stock option granted, before the grant of the New Option,
to such individual to purchase Common Stock of the Bank or of a corporation
which (at the time of granting of such incentive stock option) was a parent or
subsidiary of the Bank, or a predecessor corporation of any of such
corporations.
9. PERIOD OF OPTION AND WHEN EXERCISABLE. No option may be
granted which is exercisable after the expiration of ten (10) years from the
date the option was granted. The following subsections pertain to the
exercising of options under the Plan (i) by employees, (ii) by retired
employees and (iii) in case of death:
A. An employee is not eligible to exercise all or any part of an
option granted under the Plan until one (1) year of continued
employment following the date the option is granted. As an
additional requirement, an employee may exercise a maximum of
twenty (20%) percent of an option during the period ending on
the first anniversary date of the grant of such option, a
maximum of twenty (20%) percent of an option during the period
ending on the second anniversary date of the grant of such
option, a maximum of twenty (20%) percent of an option during
the period ending on the third anniversary date of the grant
of such option, a maximum of twenty (20%) percent of an option
during the period ending on the fourth anniversary date of the
grant of such option, and the entire option or balance thereof
during the period ending on the fifth anniversary date of the
grant of such option. If the employee fails to purchase all
of such shares for which options may be exercised in any one
35
<PAGE> 7
year he or she shall have the right to purchase the balance in
any later year of the option term. Notwithstanding the
foregoing, no option may be exercised after the expiration of
ten (10) years from the date such option was granted.
B. No person may exercise an option after he or she ceases to be
an employee of the Bank unless he or she ceases to be an
employee of the Bank as a result of retirement (early, normal
or disability) and the Committee approves such exercise. In
the instance of early or normal retirement, the option may be
exercised within the three (3) month period immediately
following the employee's date of retirement and in the case of
disability retirement (which disability must be acknowledged
as such by the Committee) the option may be exercised by the
employee within a period of twelve (12) months after the date
of retirement. A person entitled to exercise an option
pursuant to this subsection B may exercise up to one hundred
(100%) percent of any option within either the three (3) or
twelve (12) month period immediately following his or her date
of retirement without regard to either of the waiting periods
specified in subsection A hereof. Notwithstanding the above,
all options may only be exercised in accordance with Section 8
and Section 17 hereof and no options may be exercised after
the expiration of their fixed term.
C. If an employee or former employee who was granted an option
dies, and at the time of death was entitled to exercise an
option granted under this Plan, the option may be exercised
within twelve (12) months after the death of the
36
<PAGE> 8
employee or former employee (but no later than the end of the
fixed term of the option) by his or her estate, or by a person
who acquired the right to exercise the option by bequest or
inheritance ("Successors"). The option may be exercised only
for the number of shares for which it could have been
exercised at the time the employee or former employee died and
is subject to all the terms and conditions set forth in this
Plan (including the two waiting periods set forth in
subsection 9.A hereof).
D. All rights to any option shall cease if an employee is
terminated by the Bank for cause. For purposes of this Plan
only, cause is defined as conviction of a felony, conviction
of any crime involving moral turpitude or unethical business
practices, conduct involving an intentional violation or
repeated violation of the bank's rules and procedures, conduct
involving an intentional violation or repeated violations of
any statute, rule or regulation governing the operation of the
bank, conduct which brings or is likely to bring discredit to
the bank, or the misuse of any confidential information which
comes to the employee's attention by virtue of his or her
position as an employee.
10. EXERCISE OF OPTION AND PAYMENT IN FULL. Each option granted
under the plan shall be deemed exercised when the holder (1) indicates the
decision to do so in a written note (in the from prescribed by the Committee)
sent to the Bank, and (ii) at the same time tenders to the Bank payment in full
for the shares for which the option is exercised. Such exercise shall also be
subject to all provisions of this Plan and shall comply with such other
reasonable requirements as the Committee may establish. The
37
<PAGE> 9
option price may be paid in full (i) in cash, or (ii) in cash plus application
of a portion of or all of the amount held by the Bank for the employee's
account pursuant to section 14 hereof, or (iii) by application of a portion of
or all of the amount held by the Bank for the employee's account pursuant to
Section 14 hereof. An option granted under this Plan may be exercised for any
lesser number of shares than the full amount for which it could be exercised.
Such a partial exercise of an option shall not affect the right to exercise the
option from time to time in accordance with the terms of this Plan for the
remaining shares subject to the option. As soon as practicable after receipt
by the Bank of such notice, and of payment in full of the option price of all
shares with respect to which an option has been exercised, a certificate or
certificates representing such shares will be issued (subject to the provisions
of Section 15 hereof) in the name or names provided in such notice and shall be
delivered to the employees or his or her successors at the main office of the
Bank.
11. NONTRANSFERABILITY OF OPTION. Each option granted under the
Plan shall, by its terms, be nontransferable by the recipient except by Will or
the laws of descent and distribution, and each option shall be exercisable
during the recipient's lifetime only by him or her.
12. [deleted]
13. OTHER TERMS OF OPTION. Options granted pursuant to the Plan
shall contain such other terms, provisions and conditions not inconsistent
herewith as shall be determined by the Committee.
14. PAYROLL DEDUCTIONS. In order to facilitate the accumulation
of funds to enable him or her to exercise his or her option, each holder shall
have the right
38
<PAGE> 10
to direct the Bank or a subsidiary thereof to withhold amounts from his or her
compensation. Such direction shall be on the form prescribed by the Bank.
Amounts so withheld will not bear interest and will be held by the Bank subject
to the directions of the holder.
15. REGISTRATION OF CERTIFICATES. Certificates representing
shares of Common Stock may be registered either in the name of the recipient of
an option or in the name or names of his or her Successors. Certificates may
also be registered in the names of the recipient and another person, in which
case such certificates will be registered in the names of the recipient and
such other person as "joint tenants with the right of survivorship and not as
tenants in common." Designation of the appropriate form of registration of
certificates shall be made in the written notice given to the Bank upon
exercise of an option.
16. ADJUSTMENT UPON CHANGE OF SHARES. In the event of a
reorganization, sale, merger, consolidation, reclassification,
recapitalization, combination or exchange of shares, stock split, stock
dividend, rights offering, change of ownership or control or other event
affecting shares of the Bank, the number and class of shares for which options
may thereafter be granted, the number and class of shares then subject to
options previously granted, and the price per share payable upon exercise of
such options, shall be equitably adjusted by the Committee to reflect the
change and to prevent substantial dilution or enlargement of the rights granted
to, or available for, participants in the Plan.
17. COMPLIANCE WITH LAW AND APPROVAL OF REGULATORY
39
<PAGE> 11
BODIES. No option shall be exercisable and no shares will be delivered under
this Plan except in compliance with all applicable federal and state laws and
regulations including, without limitation, compliance with withholding tax
requirements and with the rules of all domestic stock exchanges on which the
Bank's shares may be listed. Any share certificate issued to evidence shares
for which an option is exercised may bear legends and statements the Committee
shall deem advisable to assure compliance with federal and state laws and
regulations. No option shall be exercisable, and no shares will be delivered
under this Plan until the Bank has obtained consents or approvals from
regulatory bodies, federal or state, having jurisdiction over such matters as
the Committee may deem advisable.
In the case of the exercise of an option by a person or estate
acquiring the right to exercise the option by bequest or inheritance, the
Committee may require reasonable evidence as to the ownership of the option and
may require consents and releases of taxing authorities that it may deem
advisable.
18. INTERPRETATION AND AMENDMENTS. The Committee may make such
rules and regulations and establish such procedures for the administration of
the Plan as it deems appropriate. In the event of any dispute or disagreement
as to the interpretation of this Plan or of any rule, regulation or procedure,
or as to any question, right or obligation arising out of or related to the
Plan, the decision of the Committee shall be final and binding upon all
persons.
The Board of Directors may alter, amend or terminate this Plan as it
shall deem advisable except that the Board of Directors may not, without
further approval of the shareholders of the Bank: (i) increase the total
number of shares which may be made the
40
<PAGE> 12
subject of options granted under the Plan, either in the aggregate or to any
individual employee (except as contemplated in Section 16 hereof); (ii) alter
the manner of determining the option price set forth in Section 6 hereof; (iii)
alter the class of employees eligible to receive options; (iv) withdraw the
administration of the Plan from a committee of directors; (v) extend the period
during which options may be granted or exercised; (vi) alter the assignability
of an option; or (vii) allow the exercise of an option while there is
outstanding any incentive stock option of the Bank which was granted before the
granting of such option.
Anything contained in this Section 18 to the contrary notwithstanding,
in no event may the Board, without the written consent of an employee affected
by the modification, amend, modify, terminate or otherwise impair any
outstanding option granted pursuant to the Plan, except for those modifications
provided for in Section 16 hereof.
19. EXCULPATION. Each member of the Board of Directors or the
Committee, and each officer and employee of the Bank or any subsidiary thereof,
shall be fully justified in relying or acting in good faith upon any
information furnished in connection with the administration of the Plan by any
appropriate person or persons other than himself or herself. In no event shall
any person who is or shall have been a member of the Board, or the Committee,
or an officer or employee of the Bank be held liable for any determination made
or other action taken or any omission to act in reliance upon any such
information, or for any action (including the furnishing of information) taken
or any failure to act, if done in good faith.
20. NOTICES. All notices under the Plan shall be made in
writing, and if to the
41
<PAGE> 13
Bank, shall be delivered personally to the Secretary of the Bank or mailed to
its principal office, 2127 W. SR 434, Longwood, FL 32779, addressed to the
attention of the Secretary; and if to the recipient of an option, shall be
delivered personally or mailed to the recipient at the address appearing in the
payroll records of the Bank. Such addresses may be changed at any time by
written notice to the other party.
21. EMPLOYMENT STATUS. Neither the adoption of the Plan nor its
operation, nor any option granted pursuant to the Plan, nor any document
describing or referring to the Plan, or any part thereof, shall confer upon any
employee any right to continue in the employ of the Bank or shall in any way
affect the right and power of the Bank to terminate the employment of any
employee at any time with or without assigning a reason therefor to the same
extent as the Bank might have done if the Plan had not been adopted.
22. RIGHTS AS A SHAREHOLDER. The recipient of an option shall
have not rights as a shareholder with respect to any shares covered by his or
her option until the date of issuance of a stock certificate to him or her for
such shares. No adjustment shall be made for dividends or other rights for
which the record date is prior to the date such stock certificate is issued.
23. CONSTRUCTION. Wherever the context and facts require such
construction, the pronouns used in this agreement shall include the masculine,
feminine, neuter, singular, and plural. The various headings used in this Plan
document are for convenience only and shall not be used in interpreting the
text of the paragraph or subparagraph in which they appear.
42
<PAGE> 14
24. GOVERNING LAW. This Plan shall be construed and interpreted
in accordance with, and the validity of this Plan, and any amendments thereto,
shall be judged by the laws of the State of Florida where it was prepared and
adopted. Venue for any disputes hereunder of any nature of kind shall be in
Seminole County, Florida.
25. ADOPTION AND APPROVAL OF PLAN.
Date Plan adopted by Board of Directors: March 15, 1989
Date Plan approved by Regulatory Agencies: May 16, 1989
Date Plan approved by Shareholders: March 15, 1989
43
<PAGE> 1
Exhibit 4.3
Southern Bank of Central Florida
1989 Organizing Director Stock Option Plan
44
<PAGE> 2
SOUTHERN BANK OF CENTRAL FLORIDA
1989 ORGANIZING DIRECTOR STOCK OPTION PLAN
1. PURPOSES OF PLAN. The Purposes of this 1989 Organizing
Director Stock Option Plan ("Plan") are to provide certain organizing directors
of the SOUTHERN BANK OF CENTRAL FLORIDA ("Bank") with an opportunity for
investment in the Bank's Common Stock ("Common Stock"), and to encourage them
to increase their efforts to make the Bank more successful. This Plan is
formulated under the provisions of Chapter 658.35, Florida Statutes, as
amended.
2. EFFECTIVE DATE AND TERMINATION OF PLAN. This Plan was
adopted by the Board of Directors of the Bank on March 15, 1989, and is
effective on such date subject to approval of the shareholders of the Bank
given before March 15, 1989. The Board of Directors may terminate this Plan at
any time, although termination of the Plan will in no way effect rights and
obligations theretofore granted and in effect. If not sooner terminated by the
Board of Directors or by the granting and full exercise of all stock options
authorized to be granted pursuant to this Plan, the Plan will terminate on
March 14, 1999 and no option shall be granted after such date.
3. ADMINISTRATION OF PLAN. The Plan shall be administered by
the Compensation Committee of the Bank, which shall be composed of not less
than three (3) directors of the Bank ("Committee") appointed by the Board of
Directors. Members of the Committee shall serve at the pleasure of the Board
of Directors. Vacancies occurring in the membership of the Committee shall be
filled by appointment by the Board of Directors. The Committee shall meet from
time to time and shall keep minutes of its meetings. A
<PAGE> 3
majority of the Committee shall constitute a quorum thereof and the acts of a
majority of the members present at any meeting of the Committee at which a
quorum is present, or acts approved in writing by a majority of the entire
Committee, shall be the acts of the Committee.
4. ELIGIBILITY. Subject to the provisions of the Plan, the
Committee shall determine and designate those certain organizing directors to
whom the options are to or shall be granted and each such organizing director
shall have not less than 3,000 authorized but unissued shares of common stock
subject to his respective option. The grant of this option shall be confirmed
by a Stock Option Agreement (in the form prescribed by the Committee) which
shall be executed by the Bank and the recipient as promptly as practicable
after such grant. The organizing directors are:
James A. Bowyer
Charles W. Brinkley, Jr.
Roger M. Bruce, Jr.
Kevin G. Dinneen
Robert T. Ferris, DDS
Bruce W. Flower
Emil Gasperoni, Sr.
Charles J. Givins, Jr.
Robert B. Hartless, II
C. A. Johnson, II
Walter E. Judge
Jay W. Leek
L. C. Norman
Jon C. Peterson
Donald Prewitt
B. Carter Randall
Harry E. Rice
Richard L. Smith
John G. Squires
All rights to the options of a particular organizing director shall
cease if that
46
<PAGE> 4
organizing director is removed as a director for cause. Cause is defined as a
conviction of a felony, conviction of any crime involving moral turpitude or
unethical business practices, conduct involving an intentional violation of the
bank's rules and procedures or an intentional violation of any statute, rule or
regulation governing the operation of the bank, conduct which brings or is
likely to bring discredit to the bank, or the misuse of any confidential
information which comes to the director's attention by virtue of his position
as a director.
5. NUMBER OF SHARES SUBJECT TO OPTIONS. The total amount of
Common Stock on which options may be granted under this Plan shall not exceed
Fifty-four Thousand (54,000) authorized but unissued shares of common stock.
The number of shares provided in this Section shall be subject to adjustment as
provided in Section 13 hereof.
6. OPTION PRICE. The option price per share of Common Stock
shall be determined by the Board of Directors but shall not be less than one
hundred (100%) percent of the fair market value of a share of Common Stock on
the date the option is granted, the book value thereof or $11.65 per share,
whichever is greater. The option price provided in this Section shall be
subject to adjustment as provided in Section 16 hereof.
7. PERIOD OF OPTION AND WHEN EXERCISABLE. No option is
exercisable after the expiration of ten (10) years from the date the option was
granted.
8. EXERCISE OF OPTION AND PAYMENT IN FULL. Each option granted
under the Plan shall be deemed exercised when the holder (i) indicates the
decision to do so in a written note (in the form prescribed by the Committee)
sent to the Bank, and (ii) at the same time tenders to the Bank payment in full
for the shares for which the option
47
<PAGE> 5
is exercised. Such exercise shall also be subject to all provisions of this
Plan and shall comply with such other reasonable requirements as the Committee
may establish. The option price must be paid in full in cash. An option
granted under this Plan may be exercised for any lesser number of shares than
the full amount for which it could be exercised. Such a partial exercise of an
option shall not affect the right to exercise the option from time to time in
accordance with the terms of this Plan for the remaining shares subject to the
option. As soon as practicable after receipt by the Bank of such notice, and
of payment in full of the option price of all shares with respect to which an
option has been exercised, a certificate or certificates representing such
shares shall be issued (subject to the provisions of Section 12 hereof) in the
name or names provided in such notice and shall be delivered to the organizing
director or his or her Successors at the main office of the Bank.
9. NONTRANSFERABILITY OF OPTION. Each option granted under
the Plan shall, by its terms, be nontransferable by the recipient except by
Will or the laws of descent and distribution, and each option shall be
exercisable during the recipient's lifetime only by him.
10. [Deleted]
11. OTHER TERMS OF OPTION. Options granted pursuant to the Plan
shall contain such other terms, provisions and conditions not inconsistent
herewith as shall be determined by the Committee.
12. REGISTRATION OF CERTIFICATES. Certificates representing
shares of Common Stock may be registered either in the name of the recipient of
an option or in the name or names of his Successors. Certificates may also be
registered in the names
48
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of the recipient and another person, in which case such certificates will be
registered in the names of the recipient and such other person as "joint
tenants with the right of survivorship and not as tenants in common."
Designation of the appropriate form of registration of certificates shall be
made in the written notice given to the Bank upon exercise of an option.
13. ADJUSTMENT UPON CHANGE OF SHARES. In the event of a
reorganization, sale, merger, consolidation, reclassification,
recapitalization, combination or exchange of shares, stock split, stock
dividend, rights offering, change of ownership or control or other events
affecting shares of the Bank, the number and class of shares for which options
may thereafter be granted, the number and class of shares then subject to
previously granted, and the price per share payable upon exercise of such
options, shall be equitably adjusted by the Committee to reflect the change and
to prevent substantial dilution or enlargement of the rights granted to, or
available for participants in the Plan.
14. COMPLIANCE WITH LAW AND APPROVAL OF REGULATORY BODIES. No
option shall be exercisable and no shares will be delivered under this Plan
except in compliance with all applicable federal and state laws and regulations
including, without limitation, compliance withholding tax requirements and with
the rules of all domestic stock exchanges on which the Bank's shares may be
listed. Any share certificate issued to evidence shares for which an option is
exercised may bear legends and statements the Committee shall deem advisable to
assure compliance with federal and state laws and regulations. No option shall
be exercisable, and no shares will be delivered under this Plan until the Bank
has obtained consents or approvals from regulatory bodies, federal or state,
having jurisdiction over such matters as the Committee may deem advisable.
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In the case of the exercise of an option by a person or estate
acquiring the right to exercise the option by bequest or inheritance, the
Committee may require reasonable evidence as to the ownership of the option and
may require consents and releases of taxing authorities that it may deem
advisable.
15. INTERPRETATION AND AMENDMENTS. The Committee may make such
rules and regulations and establish such procedures for the administration of
the Plan as it deems appropriate. In the event of any dispute or disagreement
as to the interpretation of this Plan or of any rule, regulation or procedure,
or as to any question, right or obligation arising out of or related to the
Plan, the decision of the Committee shall be final and binding upon all
persons.
The Board of Directors may alter, amend or terminate this Plan as it
shall deem advisable except that the Board of Directors may not, without
further approval of the shareholders of the Bank: (i) increase the total number
of shares which may be made the subject of options granted under the Plan,
either in the aggregate or to any individual organizing director (except as
contemplated in Section 13 hereof); (ii) alter the manner of determining the
option price set forth in Section 6 hereof; (iii) withdraw the administration
of the Plan from a committee of directors; (iv) extend the period which options
may be granted or exercised; or (v) alter the assignability of an option.
Anything contained in this Section 15 to the contrary notwithstanding,
in no event may the Board, without the written consent of the organizing
director affected by the modification, amend, modify, terminate or otherwise
impair any outstanding option granted pursuant to the plan, except for those
modifications provided for in Section 13 hereof.
50
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16. EXCULPATION. Each member of the Board of Directors or the
Committee, and each officer and employee of the Bank or any subsidiary thereof,
shall be fully justified in relying or acting in good faith upon any information
furnished in connection with the administration of the Plan by any appropriate
person or persons other than himself. In no event shall any person who is or
shall have been a member of the Board, or the Committee, or an officer or
employee of the Bank be held liable for any determination made or other action
taken or any omission to act in reliance upon any such information, or for any
action (including the furnishing of information) taken or any failure to act, if
done in good faith.
17. NOTICES. All notices under the Plan shall be made in
writing, and if to the Bank, shall be delivered personally to the Secretary of
the Bank or mailed to its principal office, 2127 W. SR 434, Longwood, FL 32779,
addressed to the attention of the Secretary, and if to the recipient of an
option, shall be delivered personally or mailed to the recipient at the address
appearing in the payroll records of the Bank. Such addresses may be changed at
any time by written notice to the other party.
18. RIGHTS AS A SHAREHOLDER. The recipient of an option shall not
have rights as a shareholder with respect to any shares covered by his option
until the date of issuance of a stock certificate to him for such shares. No
adjustment shall be made for dividends or other rights for which the record
date is prior to the date such stock certificate is issued.
19. CONSTRUCTION. Wherever the context and facts require such
construction, the pronouns used in this agreement shall include the masculine,
feminine, neuter, singular
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and plural. The various headings used in this Plan document are for convenience
only and shall not be used in interpreting the text of the paragraph or
subparagraph in which they appear.
20. GOVERNING LAW. This Plan shall be construed and interpreted
in accordance with, and the validity of this Plan, and any amendments thereto,
shall be judged by the laws of the State of Florida where it was prepared and
adopted. Venue for any disputes hereunder of any nature of kind shall be in
Seminole County, Florida
21. ADOPTION AND APPROVAL OF PLAN.
Date Plan adopted by Board of Directors: March 15, 1989
Date Plan adopted by Regulatory Agency: October 20, 1989
Date Plan approved by Shareholders: March 15, 1989
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Exhibit 5
Opinion of Counsel
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August 14, 1996
Montgomery Office
The Colonial BancGroup, Inc.
Post Office Box 1108
Montgomery, Alabama 36101
RE: Registration Statement on Form S-8 relating to the issuance of
shares of Common Stock of The Colonial BancGroup, Inc., in
connection with stock option plans (the "Plans") of Southern
Banking Corporation assumed by Merger.
Gentlemen:
We are familiar with the proceedings taken and proposed to be taken by
The Colonial BancGroup, Inc., a Delaware corporation (the "Company"), in
connection with the proposed issuance by the Company of up to 323,788 shares of
its Common Stock, par value of $2.50 per share, in connection with the Plans,
as defined above. We have also acted as counsel for the Company in connection
with the preparation and filing with the Securities and Exchange Commission
under the Securities Act of 1933, as amended, of the registration statement on
Form S-8 referred to in the caption above. In this connection we have reviewed
such documents and matters of law as we have deemed relevant and necessary as a
basis for the opinions expressed herein.
Upon the basis of the foregoing, we are of the opinion that:
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The Colonial BancGroup, Inc.
August 14, 1996
Page 2
(i) The Company is a corporation duly organized and existing under
the laws of the State of Delaware;
(ii) The shares of Common Stock of the Company referred to above, to
the extent actually issued pursuant to the Plans, will be duly and validly
authorized and issued and will be fully paid and nonassessable shares of common
stock of the Company;
(iii) Under the laws of the State of Delaware, no personal liability
attaches to the ownership of the shares of Common Stock of the Company.
We hereby consent to the filing of this opinion as an exhibit to the
above-referenced registration statement. In consenting to the inclusion of our
opinion in the registration statement we do not thereby admit that we are a
person whose consent is required pursuant to Section 7 of the Securities Act of
1933, as amended.
Sincerely yours,
MILLER, HAMILTON, SNIDER & ODOM, L.L.C.
BY:/s/ Michael D. Waters
---------------------------------------
Michael D. Waters
MDW/mfm
55
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Exhibit 23.1
Consent of Counsel
56
<PAGE> 2
Miller, Hamilton, Snider & Odom, L.L.C., consents to the use of its
name in the Prospectus, which is a part of the Registration Statement on Form
S-8, under the heading "LEGAL OPINIONS," and to the inclusion of its opinion as
an exhibit to the registration statement.
MILLER, HAMILTON, SNIDER & ODOM, L.L.C.
BY: /s/ Michael D. Waters
----------------------------
Michael D. Waters
DATED: August 14, 1996
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EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement on
Form S-8 of our report dated February 23, 1996, on our audits of the
consolidated financial statements of The Colonial BancGroup, Inc. as of
December 31, 1995 and 1994, and for the years ended December 31, 1995, 1994,
and 1993, which report is included in The Colonial BancGroup, Inc.'s Annual
Report on Form 10-K for the year ended December 31, 1995.
/s/ Coopers & Lybrand L.L.P.
Birmingham, Alabama
August 16, 1996
