<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.)
<TABLE>
<S> <C>
ONE COMMERCE STREET, SUITE 800
MONTGOMERY, ALABAMA 36104 (334) 240-5000
(Address of principal executive offices) (Telephone No.)
---------------------------------
</TABLE>
NONSTATUTORY STOCK OPTIONS AND OPTION AGREEMENTS OF
COMMERCIAL BANCORP OF GEORGIA, INC.
(FULL TITLE OF PLANS)
Copies to:
<TABLE>
<S> <C>
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>
<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 177,038 $18.24(2) $3,209,078.20 $1106.58
value $2.50 per
share
=====================================================================================================
</TABLE>
(1) Calculated pursuant to Rule 457(h)(1).
(2) The exercise price varies from $16.13 per share to $18.24 per share
with $3,209,078.20 as the total price for all shares.
(3) The Registrant assumed all options to issue common stock of Commercial
Bancorp of Georgia, Inc. ("CBG") pursuant to an Agreement and Plan of Merger
dated as of December 21, 1995. Such options are held by 19 officers, directors,
organizers, employees or former employees of CBG. The Registrant acquired CBG
by Merger on July 3, 1996.
<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
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<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 Officers.
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 on officer's and director's an insurance
policy and a separate indemnification agreement ("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
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<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
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<PAGE> 5
indemnification described in clauses (ii) and (iii) above (unless ordered by a
court) may be 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
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<PAGE> 6
was a director, officer, employee or agent of BancGroup or is or was serving at
the request 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
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<PAGE> 7
rights to recover from third parties.
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.
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<PAGE> 8
<TABLE>
<CAPTION>
ITEM 8. Exhibits.
Exhibit No. Description
- ----------- -----------
<S> <C>
4.1 Stock Option Agreements for the issue of common stock to
Jerry Barfield, Jim Clausen, Michael Couch, Susan Hite, Craig
Jarvis, and Richard Sikes.
4.2 Option Agreement for Paul Birkhead, Jim Clausen, Richard
Craven, Paul A. Duke, Carole E. Kendell, Larry Key, William
S. Pate, Chris A. Peifer, Richard Sikes, William W. Schultz,
Stan Taylor, Michael Tennant, Worth L. Thompson, and Issac H.
Willis.
4.3 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.
4.4 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.
4.5 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.
4.6 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
</TABLE>
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<PAGE> 9
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<S> <C>
Form S-4 (File No. 33-07015), effective July 15, 1986, and
incorporated herein by reference.
4.7 Trust Indenture dated as of March 25, 1986, included as
Exhibit 4 to the Registrant's Amendment No. 1 to Registration
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)
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<PAGE> 10
which, individually or in the aggregate, represent a fundamental change in the
information set forth in the registration statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
Provided, however, that paragraphs, (a)(1)(i) and (a)(1)(ii) do not
apply if the 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.
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<PAGE> 11
(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 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.
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<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 30th 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>
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<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>
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<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>
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<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 30, 1996
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<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)
<PAGE> 17
<TABLE>
<CAPTION>
EXHIBIT INDEX
Exhibit No. Description
- ----------- -----------
<S> <C>
4.1 Stock Option Agreements for the issue of common stock to
Jerry Barfield, Jim Clausen, Michael Couch, Susan Hite, Craig
Jarvis, and Richard Sikes.
4.2 Option Agreement for Paul Birkhead, Jim Clausen, Richard
Craven, Paul A. Duke, Carole E. Kendell, Larry Key, William
S. Pate, Chris A. Peifer, Richard Sikes, William W. Schultz,
Stan Taylor, Michael Tennant, Worth L. Thompson, and Issac H.
Willis.
4.3 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.
4.4 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.
4.5 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.
4.6 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
</TABLE>
<PAGE> 18
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<S> <C>
Form S-4 (File No. 33-07015), effective July 15, 1986, and
incorporated herein by reference.
4.7 Trust Indenture dated as of March 25, 1986, included as
Exhibit 4 to the Registrant's Amendment No. 1 to Registration
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>
<PAGE> 1
Exhibit 4.1
Stock Option Agreements for Certain
Directors, Officers and Employees
<PAGE> 2
STOCK OPTION NO. 3
COMMERCIAL BANCORP OF GEORGIA, INC.
STOCK OPTION AGREEMENT
This Stock Option Agreement (the "Agreement") is made and entered into
as of the 24th day of May, 1995, by and between Commercial Bancorp of Georgia,
Inc. (the "Company") and Richard Sikes ("Optionee").
WITNESSETH:
WHEREAS, effective as of May 24, 1995, the Board of Directors of the
Company granted to Optionee an option to purchase shares of Common Stock of the
Company in accordance with the terms hereof to reward Optionee for his efforts
on behalf of the Company and its subsidiaries and to encourage his continued
loyalty and diligence; and
WHEREAS, the Company and Optionee desire hereby to set forth the terms
of Optionee's option in this Agreement;
NOW, THEREFORE, for and in consideration of the premises and mutual
promises herein contained, and for other good and valuable consideration, the
receipt and sufficiency of which are acknowledged, the parties acknowledge and
agree as follows:
1. Grant of Option. Effective as of the date hereof, the Company
grants to Optionee a non-qualified stock option to purchase 9,000 shares of
Common Stock of the Company (such 9,000 shares hereinafter are referred to as
the "Optioned Shares," and the option granted herein is hereinafter referred to
as the "Option").
2. Option Price. The price per share for each of the Optioned
Shares is $12.00 (the "Option Price"), which is 100% of the per share fair
market value of the Optioned Shares on the date of grant. The Option is a non-
qualified stock option.
3. Exercise of Option.
(a) General. The Option may be exercised by Optionee's
delivery to the Secretary of the Company of a written notice of exercise
executed by Optionee (the "Notice of Exercise"). The Notice of Exercise shall
be substantially in the form set forth as Exhibit A attached hereto and made a
part hereof, and shall identify the Option that is being exercised and the
number of Optioned Shares for which such Option is being exercised.
(b) Partial Exercise. Optionee may exercise the Option
for less than the
<PAGE> 3
full number of exercisable Optioned Shares, but such exercise may not be made
for less than 100 shares or the total remaining Optioned Shares, if less than
100 shares.
4. Termination of Option. Notwithstanding any provisions to the
contrary herein, the Option shall not be exercisable either in whole or in part
after the earliest of:
(a) Ten years from the date of grant;
(b) The date on which the Company or any subsidiary
thereof gives notice to Optionee of the termination of Optionee's employment
with the Company or such subsidiary if such termination is due to the discharge
of Optionee for "cause." "Cause" as used herein shall mean any act or acts by
Optionee involving personal dishonesty, incompetence, willful misconduct,
breach of fiduciary duty involving personal profit, intentional failure to
perform stated duties or willful violation of any law, rule or regulation
(other than traffic violations or similar offenses). Provided, however,
disability because of illness or accident or any other physical or mental
disability shall not constitute a basis for discharge for cause;
(c) The date on which Optionee resigns or otherwise
voluntarily terminates his employment with the Company or any of its
subsidiaries for any reason other than death or Disability (as hereinafter
defined) or normal retirement approved by the Board of Directors of the
Company;
(d) The date of expiration of the one year period that
begins on the date on which Optionee ceases to be an employee of the Company or
any subsidiary of the Company due to "Disability"; provided, if Optionee dies
during such one year period, the terms of subsection (d) shall control.
"Disability" shall mean, with respect to an individual, the total and permanent
disability of such individual as determined by the Secretary in his or her sole
discretion; or
(e) The date that is immediately prior to the first
anniversary of the date on which Optionee dies (i) while employed by the
Company or any subsidiary of the Company, or (ii) within the one year period
that begins on the date on which Optionee ceases to be an employee of the
Company or any subsidiary of the Company due to Disability.
5. Options Non-Transferable. The Option shall not be
transferable by Optionee other than by will or by the laws of descent and
distribution, and any purported transfer shall be null and void. During the
lifetime of Optionee, the Option shall be exercisable only by Optionee (or, if
he becomes disabled or otherwise incapacitated, by the guardian of his property
or his duly appointed attorney-in-fact) and shall not be assignable or
transferable by Optionee and, subject to Section 6 hereof, no other person
shall acquire any rights in the Option.
<PAGE> 4
6. Death of Optionee and Transfer of Option. In the event of the
death of Optionee while in the employ of the Company or any subsidiary of the
Company or within a period of one year after the termination of his employment
with the Company or any subsidiary due to Disability, all or any of the
unexercised portion of the Option owned by the deceased Optionee may be
exercised by Optionee's beneficiary at any time prior to the first anniversary
of the date of the death of Optionee, but in no event later than the date as of
which such Option expires pursuant to Section 4 hereof. Such exercise shall be
effected in accordance with the terms hereof as if such beneficiary was the
Optionee herein. Beneficiary shall mean, with respect to any Optionee, the
person or persons who acquire the Option of such Optionee by bequest or
inheritance. To the extent that an Option has not yet been distributed to such
person or persons from a deceased Optionee's estate, an Option may be exercised
by the executor or administrator (if applicable) of the deceased Optionee's
estate.
7. Medium and Time of Payment of Option Price.
(a) General. The Option Price shall be payable by
Optionee (or his successors in accordance with Section 6 hereof) upon exercise
of the Option and shall be paid in cash or shares of Common Stock of the
Company, or any combination thereof.
(b) Payment in Shares of the Common Stock. If Optionee
pays all or part of the Option Price with shares of Common Stock of the
Company, the following conditions shall apply:
(i) Optionee shall deliver to the Secretary of
the Company a certificate or certificates for shares of the Common Stock duly
endorsed for transfer to the Company with signature guaranteed by a member firm
of a national stock exchange or by a national or state bank (or guaranteed or
notarized in such other manner as the Secretary of the Company may require);
(ii) Optionee must have held any shares of the
Common Stock used to pay the Option Price for at least six months prior to the
date such payment is made;
(iii) Such shares shall be valued on the basis of
the Fair Market Value of the Common Stock on the date of exercise. Fair Market
Value of the Common Stock as of a date of determination shall mean the
following:
(a) Stock Listed and Shares Traded. If the
Common Stock is listed and traded on a national
securities exchange as such term is defined by the
Securities Exchange Act of 1934, as amended) or on
The Nasdaq National Market on the date of
determination, the Fair Market Value per share shall
be the closing price of a share of the Common Stock
on said national securities exchange or Nasdaq
<PAGE> 5
National Market on the date of determination. If the
Common Stock is traded in the over-the-counter market
or the Nasdaq SmallCap Market, the Fair Market Value
per share shall be the average of the closing bid and
asked prices on the date of determination.
(b) Stock Listed But No Shares Traded. If
the Common Stock is listed on a national securities
exchange or on The Nasdaq National Market but no
shares of the Common Stock are traded on the date of
determination but there were shares traded on dates
within a reasonable period before the date of
determination, the Fair Market Value shall be the
closing price of the Common Stock on the most recent
date before the date of determination. If the common
Stock is regularly traded in the over-the-counter
market or the Nasdaq SmallCap Market but no shares of
the Common Stock are traded on the date of
determination (or if records of such trades are
unavailable or burdensome to obtain) but there were
shares traded on dates within a reasonable period
before the date of determination, the Fair Market
Value shall be the average of the closing bid and
asked prices of the Common Stock on the most recent
date before the date of determination.
(c) Stock Not Listed. If the Common
Stock is not listed on a national securities exchange
or on The Nasdaq National Market and is not regularly
traded in the over-the-counter market or the Nasdaq
SmallCap Market, then the Secretary shall determine
the Fair Market Value of the Common Stock from all
relevant available facts, which may include the
average of the closing bid and ask prices reflected
in the over-the-counter market on a date within a
reasonable period either before or after the date of
determination or opinions of independent experts as
to value and may take into account any recent sales
and purchases of such Common Stock to the extent they
are representative.
(iv) If Optionee delivers Common Stock with a
value that is less than the Option Price, then Optionee shall pay the balance
of the Option Price in cash. If Optionee delivers Common Stock with a value
that is greater than the Option Price, then the Company shall issue to Optionee
a new stock certificate representing a number of shares equal to the difference
between the number of shares so delivered and the number of shares having a
value equal to the Option Price (together with a cash payment equal to the
value of any fractional share of Common Stock otherwise required to be issued
to Optionee).
In addition to the payment of the Option Price, Optionee also shall pay in cash
(or have withheld from his normal pay) an amount equal to the amount, if any,
which the Company
<PAGE> 6
at the time of exercise is required to withhold under the income tax and FICA
withholding provisions of the Internal Revenue Code of 1986, as amended, and of
the income tax laws of the state of Optionee's residence, and of any other
applicable law.
8. Agreement of Optionee. Optionee acknowledges and understands
that certain restrictions may apply with respect to shares of the Common Stock
acquired by him pursuant to his exercise of the Option (possibly including
restrictions on resale applicable to "affiliates," as such term is defined in
Rule 144 promulgated under the Securities Act of 1933, as amended, and
restrictions on resale applicable to shares of Common Stock that have not been
registered under the Securities Act of 1933, as amended, and applicable state
securities laws). Optionee hereby agrees to execute such documents and take
such actions as the Company may require with respect to state and federal
securities laws and any restrictions on the resale of such shares which may
pertain. All certificates representing the shares of Common Stock issued
pursuant to this Agreement shall be marked with the following restrictive
legend or similar legend, if such marking, in the opinion of counsel to the
Company, is necessary or desirable:
The shares represented by this certificate have not been registered
under the Securities Act of 1933, as amended, or the securities laws
of any state. Accordingly, these shares may not be sold,
hypothecated, pledged or otherwise transferred except (i) pursuant to
an effective registration statement under the Securities Act of 1933,
as amended, and any applicable securities laws or regulations of any
state with respect to such shares, (ii) in accordance with Securities
and Exchange Commission Rule 144, or (iii) upon the issuance to the
Company of a favorable opinion of counsel or the submission to the
Company of such other evidence as may be satisfactory to the Company
that such proposed sale, assignment, encumbrance or other transfer
will not be in violation of the Securities Act of 1933, as amended, or
any applicable securities laws of any state or any rules or
regulations thereunder. Any attempted transfer of this certificate or
the shares represented hereby which is in violation of the preceding
restrictions will not be recognized by the Company, nor will any
transferee be recognized as the owner thereof by the Company.
9. Delivery of Stock Certificates. As promptly as practical
after the date of exercise of an Option and the receipt by the Company of full
payment therefor, the Company shall deliver to Optionee a stock certificate
representing the shares of the Common Stock acquired by Optionee pursuant to
his exercise of the Option.
10. Adjustments Upon Changes in Capitalization.
(a) Recapitalization. In the event that the outstanding
shares of the Common Stock of the Company are hereinafter increased or
decreased or changed into or exchanged for a different number or kind of shares
or other securities of the Company by
<PAGE> 7
reason of a recapitalization, reclassification, stock split, combination of
shares or dividend payable in shares of the Common Stock the Secretary shall
make an appropriate adjustment in the number and kind of shares as to which
outstanding Option, or portions thereof then unexercised, shall be exercisable,
to the end that the Optionee's proportionate interest shall be maintained as
before the occurrence of such event; any such adjustment in any unexercised
portions of the Option shall be made without change in the total price
applicable to the unexercised portion of such Option and with a corresponding
adjustment to the Option Price per share. No fractional shares shall be issued
or optioned in making the foregoing adjustments, and the number of Optioned
Shares subject to any unexercised portion of the Option shall be the next lower
number of shares, rounding all fractions downward.
(b) Limits on Adjustments. Any issuance by the Company
of stock of any class, or securities convertible into shares of stock of any
class, shall not affect, and no adjustment by reason thereof shall be made with
respect to, the number or price of the Optioned Shares, except as specifically
provided otherwise in Section 10(a).
11. Notices. All notices or other communications hereunder
shall be in writing and shall be effective (i) when personally delivered by
courier (including overnight carriers) or otherwise to the party to be given
such notice or other communication or (ii) on the third business day following
the date deposited in the United States mail if such notice or other
communication is sent by certified or registered mail with return receipt
requested and postage thereon fully prepaid. The addresses for such notices
shall be as follows:
If to the Company:
Commercial Bancorp of Georgia, Inc.
390 Crogan Street N.W.
Lawrenceville, Georgia 30246
If Optionee:
Richard Sikes
-----------------
-----------------
-----------------
Any party hereto, by notice of the other party hereunder, may change its
address for receipt of notices hereunder.
12. Miscellaneous.
(a) The granting of the Option and the execution of this
Agreement shall
<PAGE> 8
not give Optionee any rights to similar grants in future years or any right to
be retained in the employ of the Company or any subsidiary of the Company or to
interfere in any way with the right of the Company or any subsidiary to
terminate Optionee's employment at any time.
(b) Unless and except as otherwise specifically provided
in this Agreement, Optionee shall have no rights of a shareholder with respect
to any shares covered by the Option until the date of issuance of a stock
certificate to him for such shares.
(c) If any term, provision, covenant or restriction
contained in this Agreement is held by a court or federal regulatory agency of
competent jurisdiction to be invalid, void or unenforceable, the remainder of
the terms, provisions, covenants and restrictions contained in this Agreement
shall remain in full force and effect, and shall in no way be affected,
impaired or invalidated. If for any reason such court or regulatory agency
determines that this Agreement will not permit Optionee to acquire the full
number of Optioned Shares as provided in Section 1 hereof, it is the express
intention of the Company to allow Optionee to acquire such lesser number of
shares as may be permissible without any amendment or modification hereof.
(d) This Agreement shall be construed and enforced in
accordance with the laws of Georgia.
(e) This Agreement contains the entire understanding
among the parties and supersedes any prior understanding and agreements between
them representing the subject matter hereof. There are no representations,
agreements, arrangements or understandings, oral or written, between and among
the parties hereto relating to the subject matter hereof which are not fully
expressed herein.
(f) Section and other headings contained in this Agreement are
for reference purposes only and are in no way intended to describe, interpret,
define or limit the scope, extent or intent of this Agreement or any provision
hereof.
(g) This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original and all of which shall
constitute one agreement, and the signatures of any party or any counterpart
shall be deemed to be a signature to, and may be appended to, any other
counterpart.
<PAGE> 9
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the first date written above.
COMMERCIAL BANCORP OF GEORGIA, INC.
By:
-----------------------------------------
Title:
--------------------------------------
OPTIONEE:
-----------------------------------
Richard Sikes
<PAGE> 10
EXHIBIT A
COMMERCIAL BANCORP OF GEORGIA, INC.
NOTICE OF EXERCISE OF STOCK OPTION
This Notice of Exercise is given pursuant to the terms of the Stock
Option Agreement, dated March 2, 1995, between Commercial Bancorp of Georgia,
Inc. (the "Company") and the undersigned Optionee (the "Agreement"), which
Agreement represents Stock Option No. 3 and which is made a part hereof and
incorporated herein by reference.
EXERCISE OF OPTION. Optionee hereby exercises his option to purchase
_________________ of his Optioned Shares. Optionee hereby delivers, together
with this written statement of exercise, the full Option Price with respect to
the exercised Optioned Shares, which consists of: [COMPLETE ONLY ONE]
[ ] cash in the total amount of $___________________.
[ ] ___________ shares of the Company's Common Stock.
[ ] cash in the total amount of $__________ and _________
shares of the Company's Common Stock
[ ] other (specify):_____________________________________
ACKNOWLEDGEMENT. Optionee hereby acknowledges that, to the extent he
is an "affiliate" of the Company (as that term is defined in Rule 144
promulgated under the Securities Act of 1933, as amended) or to the extent that
the Optioned Shares have not been registered under the Securities Act of 1933,
as amended, or applicable state securities laws, any shares of the Company's
Common Stock acquired by him as a result of his exercise of the Option pursuant
to this Notice are subject to, and the certificates representing such shares
shall be legended to reflect, certain trading restrictions under applicable
securities laws, and Optionee hereby agrees to comply with all such
restrictions and to execute such documents or take such other actions as the
Company may require in connection with such restrictions.
<PAGE> 11
Executed this day of
-------- ------------------, ----------.
OPTIONEE:
----------------------------------
Signature
Richard Sikes
----------------------------------
Print or Type Name
Commercial Bancorp of Georgia, Inc. hereby acknowledges receipt of
this Notice of Exercise and receipt of payment in the form and amount indicated
above, all on this ___________ day of ________________________, ________.
COMMERCIAL BANCORP OF GEORGIA, INC.
By:
-----------------------------------
Title:
--------------------------------
<PAGE> 12
STOCK OPTION NO. 7
COMMERCIAL BANCORP OF GEORGIA, INC.
STOCK OPTION AGREEMENT
This Stock Option Agreement (the "Agreement") is made and entered into
as of the 24th day of May, 1995, by and between Commercial Bancorp of Georgia,
Inc. (the "Company") and Jerry Barfield ("Optionee").
WITNESSETH:
WHEREAS, effective as of May 24, 1995, the Board of Directors of the
Company granted to Optionee an option to purchase shares of Common Stock of the
Company in accordance with the terms hereof to reward Optionee for his efforts
on behalf of the Company and its subsidiaries and to encourage his continued
loyalty and diligence; and
WHEREAS, the Company and Optionee desire hereby to set forth the terms
of Optionee's option in this Agreement;
NOW, THEREFORE, for and in consideration of the premises and mutual
promises herein contained, and for other good and valuable consideration, the
receipt and sufficiency of which are acknowledged, the parties acknowledge and
agree as follows:
1. Grant of Option. Effective as of the date hereof, the Company
grants to Optionee a non-qualified stock option to purchase 9,000 shares of
Common Stock of the Company (such 9,000 shares hereinafter are referred to as
the "Optioned Shares," and the option granted herein is hereinafter referred to
as the "Option").
2. Option Price. The price per share for each of the Optioned
Shares is $12.00 (the "Option Price"), which is 100% of the per share fair
market value of the Optioned Shares on the date of grant. The Option is a non-
qualified stock option.
3. Exercise of Option.
(a) General. The Option may be exercised by Optionee's
delivery to the Secretary of the Company of a written notice of exercise
executed by Optionee (the "Notice of Exercise"). The Notice of Exercise shall
be substantially in the form set forth as Exhibit A attached hereto and made a
part hereof, and shall identify the Option that is being exercised and the
number of Optioned Shares for which such Option is being exercised.
(b) Partial Exercise. Optionee may exercise the Option
for less than the
<PAGE> 13
full number of exercisable Optioned Shares, but such exercise may not be made
for less than 100 shares or the total remaining Optioned Shares, if less than
100 shares.
4. Termination of Option. Notwithstanding any provisions to the
contrary herein, the Option shall not be exercisable either in whole or in part
after the earliest of:
(a) Ten years from the date of grant;
(b) The date on which the Company or any subsidiary
thereof gives notice to Optionee of the termination of Optionee's employment
with the Company or such subsidiary if such termination is due to the discharge
of Optionee for "cause." "Cause" as used herein shall mean any act or acts by
Optionee involving personal dishonesty, incompetence, willful misconduct,
breach of fiduciary duty involving personal profit, intentional failure to
perform stated duties or willful violation of any law, rule or regulation
(other than traffic violations or similar offenses). Provided, however,
disability because of illness or accident or any other physical or mental
disability shall not constitute a basis for discharge for cause;
(c) The date on which Optionee resigns or otherwise
voluntarily terminates his employment with the Company or any of its
subsidiaries for any reason other than death or Disability (as hereinafter
defined) or normal retirement approved by the Board of Directors of the
Company;
(d) The date of expiration of the one year period that
begins on the date on which Optionee ceases to be an employee of the Company or
any subsidiary of the Company due to "Disability"; provided, if Optionee dies
during such one year period, the terms of subsection (d) shall control.
"Disability" shall mean, with respect to an individual, the total and permanent
disability of such individual as determined by the Secretary in his or her sole
discretion; or
(e) The date that is immediately prior to the first
anniversary of the date on which Optionee dies (i) while employed by the
Company or any subsidiary of the Company, or (ii) within the one year period
that begins on the date on which Optionee ceases to be an employee of the
Company or any subsidiary of the Company due to Disability.
5. Options Non-Transferable. The Option shall not be
transferable by Optionee other than by will or by the laws of descent and
distribution, and any purported transfer shall be null and void. During the
lifetime of Optionee, the Option shall be exercisable only by Optionee (or, if
he becomes disabled or otherwise incapacitated, by the guardian of his property
or his duly appointed attorney-in-fact) and shall not be assignable or
transferable by Optionee and, subject to Section 6 hereof, no other person
shall acquire any rights in the Option.
<PAGE> 14
6. Death of Optionee and Transfer of Option. In the event of the
death of Optionee while in the employ of the Company or any subsidiary of the
Company or within a period of one year after the termination of his employment
with the Company or any subsidiary due to Disability, all or any of the
unexercised portion of the Option owned by the deceased Optionee may be
exercised by Optionee's beneficiary at any time prior to the first anniversary
of the date of the death of Optionee, but in no event later than the date as of
which such Option expires pursuant to Section 4 hereof. Such exercise shall be
effected in accordance with the terms hereof as if such beneficiary was the
Optionee herein. Beneficiary shall mean, with respect to any Optionee, the
person or persons who acquire the Option of such Optionee by bequest or
inheritance. To the extent that an Option has not yet been distributed to such
person or persons from a deceased Optionee's estate, an Option may be exercised
by the executor or administrator (if applicable) of the deceased Optionee's
estate.
7. Medium and Time of Payment of Option Price.
(a) General. The Option Price shall be payable by
Optionee (or his successors in accordance with Section 6 hereof) upon exercise
of the Option and shall be paid in cash or shares of Common Stock of the
Company, or any combination thereof.
(b) Payment in Shares of the Common Stock. If Optionee
pays all or part of the Option Price with shares of Common Stock of the
Company, the following conditions shall apply:
(i) Optionee shall deliver to the Secretary of
the Company a certificate or certificates for shares of the Common Stock duly
endorsed for transfer to the Company with signature guaranteed by a member firm
of a national stock exchange or by a national or state bank (or guaranteed or
notarized in such other manner as the Secretary of the Company may require);
(ii) Optionee must have held any shares of the
Common Stock used to pay the Option Price for at least six months prior to the
date such payment is made;
(iii) Such shares shall be valued on the basis of
the Fair Market Value of the Common Stock on the date of exercise. Fair Market
Value of the Common Stock as of a date of determination shall mean the
following:
(a) Stock Listed and Shares Traded. If the
Common Stock is listed and traded on a national
securities exchange as such term is defined by the
Securities Exchange Act of 1934, as amended) or on
The Nasdaq National Market on the date of
determination, the Fair Market Value per share shall
be the closing price of a share of the Common Stock
on said national securities exchange or Nasdaq
<PAGE> 15
National Market on the date of determination. If the
Common Stock is traded in the over-the-counter market
or the Nasdaq SmallCap Market, the Fair Market Value
per share shall be the average of the closing bid and
asked prices on the date of determination.
(b) Stock Listed But No Shares Traded. If
the Common Stock is listed on a national securities
exchange or on The Nasdaq National Market but no
shares of the Common Stock are traded on the date of
determination but there were shares traded on dates
within a reasonable period before the date of
determination, the Fair Market Value shall be the
closing price of the Common Stock on the most recent
date before the date of determination. If the common
Stock is regularly traded in the over-the-counter
market or the Nasdaq SmallCap Market but no shares of
the Common Stock are traded on the date of
determination (or if records of such trades are
unavailable or burdensome to obtain) but there were
shares traded on dates within a reasonable period
before the date of determination, the Fair Market
Value shall be the average of the closing bid and
asked prices of the Common Stock on the most recent
date before the date of determination.
(c) Stock Not Listed. If the Common
Stock is not listed on a national securities exchange
or on The Nasdaq National Market and is not regularly
traded in the over-the-counter market or the Nasdaq
SmallCap Market, then the Secretary shall determine
the Fair Market Value of the Common Stock from all
relevant available facts, which may include the
average of the closing bid and ask prices reflected
in the over-the-counter market on a date within a
reasonable period either before or after the date of
determination or opinions of independent experts as
to value and may take into account any recent sales
and purchases of such Common Stock to the extent they
are representative.
(iv) If Optionee delivers Common Stock with a
value that is less than the Option Price, then Optionee shall pay the balance
of the Option Price in cash. If Optionee delivers Common Stock with a value
that is greater than the Option Price, then the Company shall issue to Optionee
a new stock certificate representing a number of shares equal to the difference
between the number of shares so delivered and the number of shares having a
value equal to the Option Price (together with a cash payment equal to the
value of any fractional share of Common Stock otherwise required to be issued
to Optionee).
In addition to the payment of the Option Price, Optionee also shall pay in cash
(or have withheld from his normal pay) an amount equal to the amount, if any,
which the Company
<PAGE> 16
at the time of exercise is required to withhold under the income tax and FICA
withholding provisions of the Internal Revenue Code of 1986, as amended, and of
the income tax laws of the state of Optionee's residence, and of any other
applicable law.
8. Agreement of Optionee. Optionee acknowledges and understands
that certain restrictions may apply with respect to shares of the Common Stock
acquired by him pursuant to his exercise of the Option (possibly including
restrictions on resale applicable to "affiliates," as such term is defined in
Rule 144 promulgated under the Securities Act of 1933, as amended, and
restrictions on resale applicable to shares of Common Stock that have not been
registered under the Securities Act of 1933, as amended, and applicable state
securities laws). Optionee hereby agrees to execute such documents and take
such actions as the Company may require with respect to state and federal
securities laws and any restrictions on the resale of such shares which may
pertain. All certificates representing the shares of Common Stock issued
pursuant to this Agreement shall be marked with the following restrictive
legend or similar legend, if such marking, in the opinion of counsel to the
Company, is necessary or desirable:
The shares represented by this certificate have not been registered
under the Securities Act of 1933, as amended, or the securities laws
of any state. Accordingly, these shares may not be sold,
hypothecated, pledged or otherwise transferred except (i) pursuant to
an effective registration statement under the Securities Act of 1933,
as amended, and any applicable securities laws or regulations of any
state with respect to such shares, (ii) in accordance with Securities
and Exchange Commission Rule 144, or (iii) upon the issuance to the
Company of a favorable opinion of counsel or the submission to the
Company of such other evidence as may be satisfactory to the Company
that such proposed sale, assignment, encumbrance or other transfer
will not be in violation of the Securities Act of 1933, as amended, or
any applicable securities laws of any state or any rules or
regulations thereunder. Any attempted transfer of this certificate or
the shares represented hereby which is in violation of the preceding
restrictions will not be recognized by the Company, nor will any
transferee be recognized as the owner thereof by the Company.
9. Delivery of Stock Certificates. As promptly as practical
after the date of exercise of an Option and the receipt by the Company of full
payment therefor, the Company shall deliver to Optionee a stock certificate
representing the shares of the Common Stock acquired by Optionee pursuant to
his exercise of the Option.
10. Adjustments Upon Changes in Capitalization.
(a) Recapitalization. In the event that the outstanding
shares of the Common Stock of the Company are hereinafter increased or
decreased or changed into or exchanged for a different number or kind of shares
or other securities of the Company by
<PAGE> 17
reason of a recapitalization, reclassification, stock split, combination of
shares or dividend payable in shares of the Common Stock the Secretary shall
make an appropriate adjustment in the number and kind of shares as to which
outstanding Option, or portions thereof then unexercised, shall be exercisable,
to the end that the Optionee's proportionate interest shall be maintained as
before the occurrence of such event; any such adjustment in any unexercised
portions of the Option shall be made without change in the total price
applicable to the unexercised portion of such Option and with a corresponding
adjustment to the Option Price per share. No fractional shares shall be issued
or optioned in making the foregoing adjustments, and the number of Optioned
Shares subject to any unexercised portion of the Option shall be the next lower
number of shares, rounding all fractions downward.
(b) Limits on Adjustments. Any issuance by the Company
of stock of any class, or securities convertible into shares of stock of any
class, shall not affect, and no adjustment by reason thereof shall be made with
respect to, the number or price of the Optioned Shares, except as specifically
provided otherwise in Section 10(a).
11. Notices. All notices or other communications hereunder
shall be in writing and shall be effective (i) when personally delivered by
courier (including overnight carriers) or otherwise to the party to be given
such notice or other communication or (ii) on the third business day following
the date deposited in the United States mail if such notice or other
communication is sent by certified or registered mail with return receipt
requested and postage thereon fully prepaid. The addresses for such notices
shall be as follows:
If to the Company:
Commercial Bancorp of Georgia, Inc.
390 Crogan Street N.W.
Lawrenceville, Georgia 30246
If Optionee:
Jerry Barfield
--------------------
--------------------
--------------------
Any party hereto, by notice of the other party hereunder, may change its
address for receipt of notices hereunder.
12. Miscellaneous.
(a) The granting of the Option and the execution of this
Agreement shall
<PAGE> 18
not give Optionee any rights to similar grants in future years or any right to
be retained in the employ of the Company or any subsidiary of the Company or to
interfere in any way with the right of the Company or any subsidiary to
terminate Optionee's employment at any time.
(b) Unless and except as otherwise specifically provided
in this Agreement, Optionee shall have no rights of a shareholder with respect
to any shares covered by the Option until the date of issuance of a stock
certificate to him for such shares.
(c) If any term, provision, covenant or restriction
contained in this Agreement is held by a court or federal regulatory agency of
competent jurisdiction to be invalid, void or unenforceable, the remainder of
the terms, provisions, covenants and restrictions contained in this Agreement
shall remain in full force and effect, and shall in no way be affected,
impaired or invalidated. If for any reason such court or regulatory agency
determines that this Agreement will not permit Optionee to acquire the full
number of Optioned Shares as provided in Section 1 hereof, it is the express
intention of the Company to allow Optionee to acquire such lesser number of
shares as may be permissible without any amendment or modification hereof.
(d) This Agreement shall be construed and enforced in
accordance with the laws of Georgia.
(e) This Agreement contains the entire understanding
among the parties and supersedes any prior understanding and agreements between
them representing the subject matter hereof. There are no representations,
agreements, arrangements or understandings, oral or written, between and among
the parties hereto relating to the subject matter hereof which are not fully
expressed herein.
(f) Section and other headings contained in this Agreement are
for reference purposes only and are in no way intended to describe, interpret,
define or limit the scope, extent or intent of this Agreement or any provision
hereof.
(g) This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original and all of which shall
constitute one agreement, and the signatures of any party or any counterpart
shall be deemed to be a signature to, and may be appended to, any other
counterpart.
<PAGE> 19
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the first date written above.
COMMERCIAL BANCORP OF GEORGIA, INC.
By:
--------------------------------------
Title:
-----------------------------------
OPTIONEE:
--------------------------------
Jerry Barfield
<PAGE> 20
STOCK OPTION NO. 5
COMMERCIAL BANCORP OF GEORGIA, INC.
STOCK OPTION AGREEMENT
This Stock Option Agreement (the "Agreement") is made and entered into
as of the 24th day of May, 1995, by and between Commercial Bancorp of Georgia,
Inc. (the "Company") and Mike Couch ("Optionee").
WITNESSETH:
WHEREAS, effective as of May 24, 1995, the Board of Directors of the
Company granted to Optionee an option to purchase shares of Common Stock of the
Company in accordance with the terms hereof to reward Optionee for his efforts
on behalf of the Company and its subsidiaries and to encourage his continued
loyalty and diligence; and
WHEREAS, the Company and Optionee desire hereby to set forth the terms
of Optionee's option in this Agreement;
NOW, THEREFORE, for and in consideration of the premises and mutual
promises herein contained, and for other good and valuable consideration, the
receipt and sufficiency of which are acknowledged, the parties acknowledge and
agree as follows:
1. Grant of Option. Effective as of the date hereof, the Company
grants to Optionee a non-qualified stock option to purchase 9,000 shares of
Common Stock of the Company (such 9,000 shares hereinafter are referred to as
the "Optioned Shares," and the option granted herein is hereinafter referred to
as the "Option").
2. Option Price. The price per share for each of the Optioned
Shares is $12.00 (the "Option Price"), which is 100% of the per share fair
market value of the Optioned Shares on the date of grant. The Option is a non-
qualified stock option.
3. Exercise of Option.
(a) General. The Option may be exercised by Optionee's
delivery to the Secretary of the Company of a written notice of exercise
executed by Optionee (the "Notice of Exercise"). The Notice of Exercise shall
be substantially in the form set forth as Exhibit A attached hereto and made a
part hereof, and shall identify the Option that is being exercised and the
number of Optioned Shares for which such Option is being exercised.
(b) Partial Exercise. Optionee may exercise the Option
for less than the
<PAGE> 21
full number of exercisable Optioned Shares, but such exercise may not be made
for less than 100 shares or the total remaining Optioned Shares, if less than
100 shares.
4. Termination of Option. Notwithstanding any provisions to the
contrary herein, the Option shall not be exercisable either in whole or in part
after the earliest of:
(a) Ten years from the date of grant;
(b) The date on which the Company or any subsidiary
thereof gives notice to Optionee of the termination of Optionee's employment
with the Company or such subsidiary if such termination is due to the discharge
of Optionee for "cause." "Cause" as used herein shall mean any act or acts by
Optionee involving personal dishonesty, incompetence, willful misconduct,
breach of fiduciary duty involving personal profit, intentional failure to
perform stated duties or willful violation of any law, rule or regulation
(other than traffic violations or similar offenses). Provided, however,
disability because of illness or accident or any other physical or mental
disability shall not constitute a basis for discharge for cause;
(c) The date on which Optionee resigns or otherwise
voluntarily terminates his employment with the Company or any of its
subsidiaries for any reason other than death or Disability (as hereinafter
defined) or normal retirement approved by the Board of Directors of the
Company;
(d) The date of expiration of the one year period that
begins on the date on which Optionee ceases to be an employee of the Company or
any subsidiary of the Company due to "Disability"; provided, if Optionee dies
during such one year period, the terms of subsection (d) shall control.
"Disability" shall mean, with respect to an individual, the total and permanent
disability of such individual as determined by the Secretary in his or her sole
discretion; or
(e) The date that is immediately prior to the first
anniversary of the date on which Optionee dies (i) while employed by the
Company or any subsidiary of the Company, or (ii) within the one year period
that begins on the date on which Optionee ceases to be an employee of the
Company or any subsidiary of the Company due to Disability.
5. Options Non-Transferable. The Option shall not be
transferable by Optionee other than by will or by the laws of descent and
distribution, and any purported transfer shall be null and void. During the
lifetime of Optionee, the Option shall be exercisable only by Optionee (or, if
he becomes disabled or otherwise incapacitated, by the guardian of his property
or his duly appointed attorney-in-fact) and shall not be assignable or
transferable by Optionee and, subject to Section 6 hereof, no other person
shall acquire any rights in the Option.
<PAGE> 22
6. Death of Optionee and Transfer of Option. In the event of the
death of Optionee while in the employ of the Company or any subsidiary of the
Company or within a period of one year after the termination of his employment
with the Company or any subsidiary due to Disability, all or any of the
unexercised portion of the Option owned by the deceased Optionee may be
exercised by Optionee's beneficiary at any time prior to the first anniversary
of the date of the death of Optionee, but in no event later than the date as of
which such Option expires pursuant to Section 4 hereof. Such exercise shall be
effected in accordance with the terms hereof as if such beneficiary was the
Optionee herein. Beneficiary shall mean, with respect to any Optionee, the
person or persons who acquire the Option of such Optionee by bequest or
inheritance. To the extent that an Option has not yet been distributed to such
person or persons from a deceased Optionee's estate, an Option may be exercised
by the executor or administrator (if applicable) of the deceased Optionee's
estate.
7. Medium and Time of Payment of Option Price.
(a) General. The Option Price shall be payable by
Optionee (or his successors in accordance with Section 6 hereof) upon exercise
of the Option and shall be paid in cash or shares of Common Stock of the
Company, or any combination thereof.
(b) Payment in Shares of the Common Stock. If Optionee
pays all or part of the Option Price with shares of Common Stock of the
Company, the following conditions shall apply:
(i) Optionee shall deliver to the Secretary of
the Company a certificate or certificates for shares of the Common Stock duly
endorsed for transfer to the Company with signature guaranteed by a member firm
of a national stock exchange or by a national or state bank (or guaranteed or
notarized in such other manner as the Secretary of the Company may require);
(ii) Optionee must have held any shares of the
Common Stock used to pay the Option Price for at least six months prior to the
date such payment is made;
(iii) Such shares shall be valued on the basis of
the Fair Market Value of the Common Stock on the date of exercise. Fair Market
Value of the Common Stock as of a date of determination shall mean the
following:
(a) Stock Listed and Shares Traded. If the
Common Stock is listed and traded on a national
securities exchange as such term is defined by the
Securities Exchange Act of 1934, as amended) or on
The Nasdaq National Market on the date of
determination, the Fair Market Value per share shall
be the closing price of a share of the Common Stock
on said national securities exchange or Nasdaq
National Market on the date of determination. If the
Common Stock
<PAGE> 23
is traded in the over-the-counter market or the
Nasdaq SmallCap Market, the Fair Market Value per
share shall be the average of the closing bid and
asked prices on the date of determination.
(b) Stock Listed But No Shares Traded. If
the Common Stock is listed on a national securities
exchange or on The Nasdaq National Market but no
shares of the Common Stock are traded on the date of
determination but there were shares traded on dates
within a reasonable period before the date of
determination, the Fair Market Value shall be the
closing price of the Common Stock on the most recent
date before the date of determination. If the common
Stock is regularly traded in the over-the-counter
market or the Nasdaq SmallCap Market but no shares of
the Common Stock are traded on the date of
determination (or if records of such trades are
unavailable or burdensome to obtain) but there were
shares traded on dates within a reasonable period
before the date of determination, the Fair Market
Value shall be the average of the closing bid and
asked prices of the Common Stock on the most recent
date before the date of determination.
(c) Stock Not Listed. If the Common
Stock is not listed on a national securities exchange
or on The Nasdaq National Market and is not regularly
traded in the over-the-counter market or the Nasdaq
SmallCap Market, then the Secretary shall determine
the Fair Market Value of the Common Stock from all
relevant available facts, which may include the
average of the closing bid and ask prices reflected
in the over-the-counter market on a date within a
reasonable period either before or after the date of
determination or opinions of independent experts as
to value and may take into account any recent sales
and purchases of such Common Stock to the extent they
are representative.
(iv) If Optionee delivers Common Stock with a
value that is less than the Option Price, then Optionee shall pay the balance
of the Option Price in cash. If Optionee delivers Common Stock with a value
that is greater than the Option Price, then the Company shall issue to Optionee
a new stock certificate representing a number of shares equal to the difference
between the number of shares so delivered and the number of shares having a
value equal to the Option Price (together with a cash payment equal to the
value of any fractional share of Common Stock otherwise required to be issued
to Optionee).
In addition to the payment of the Option Price, Optionee also shall pay in cash
(or have withheld from his normal pay) an amount equal to the amount, if any,
which the Company at the time of exercise is required to withhold under the
income tax and FICA withholding
<PAGE> 24
provisions of the Internal Revenue Code of 1986, as amended, and of the income
tax laws of the state of Optionee's residence, and of any other applicable law.
8. Agreement of Optionee. Optionee acknowledges and understands
that certain restrictions may apply with respect to shares of the Common Stock
acquired by him pursuant to his exercise of the Option (possibly including
restrictions on resale applicable to "affiliates," as such term is defined in
Rule 144 promulgated under the Securities Act of 1933, as amended, and
restrictions on resale applicable to shares of Common Stock that have not been
registered under the Securities Act of 1933, as amended, and applicable state
securities laws). Optionee hereby agrees to execute such documents and take
such actions as the Company may require with respect to state and federal
securities laws and any restrictions on the resale of such shares which may
pertain. All certificates representing the shares of Common Stock issued
pursuant to this Agreement shall be marked with the following restrictive
legend or similar legend, if such marking, in the opinion of counsel to the
Company, is necessary or desirable:
The shares represented by this certificate have not been registered
under the Securities Act of 1933, as amended, or the securities laws
of any state. Accordingly, these shares may not be sold,
hypothecated, pledged or otherwise transferred except (i) pursuant to
an effective registration statement under the Securities Act of 1933,
as amended, and any applicable securities laws or regulations of any
state with respect to such shares, (ii) in accordance with Securities
and Exchange Commission Rule 144, or (iii) upon the issuance to the
Company of a favorable opinion of counsel or the submission to the
Company of such other evidence as may be satisfactory to the Company
that such proposed sale, assignment, encumbrance or other transfer
will not be in violation of the Securities Act of 1933, as amended, or
any applicable securities laws of any state or any rules or
regulations thereunder. Any attempted transfer of this certificate or
the shares represented hereby which is in violation of the preceding
restrictions will not be recognized by the Company, nor will any
transferee be recognized as the owner thereof by the Company.
9. Delivery of Stock Certificates. As promptly as practical
after the date of exercise of an Option and the receipt by the Company of full
payment therefor, the Company shall deliver to Optionee a stock certificate
representing the shares of the Common Stock acquired by Optionee pursuant to
his exercise of the Option.
10. Adjustments Upon Changes in Capitalization.
(a) Recapitalization. In the event that the outstanding
shares of the Common Stock of the Company are hereinafter increased or
decreased or changed into or exchanged for a different number or kind of shares
or other securities of the Company by reason of a recapitalization,
reclassification, stock split, combination of shares or dividend
<PAGE> 25
payable in shares of the Common Stock the Secretary shall make an appropriate
adjustment in the number and kind of shares as to which outstanding Option, or
portions thereof then unexercised, shall be exercisable, to the end that the
Optionee's proportionate interest shall be maintained as before the occurrence
of such event; any such adjustment in any unexercised portions of the Option
shall be made without change in the total price applicable to the unexercised
portion of such Option and with a corresponding adjustment to the Option Price
per share. No fractional shares shall be issued or optioned in making the
foregoing adjustments, and the number of Optioned Shares subject to any
unexercised portion of the Option shall be the next lower number of shares,
rounding all fractions downward.
(b) Limits on Adjustments. Any issuance by the Company
of stock of any class, or securities convertible into shares of stock of any
class, shall not affect, and no adjustment by reason thereof shall be made with
respect to, the number or price of the Optioned Shares, except as specifically
provided otherwise in Section 10(a).
11. Notices. All notices or other communications hereunder
shall be in writing and shall be effective (i) when personally delivered by
courier (including overnight carriers) or otherwise to the party to be given
such notice or other communication or (ii) on the third business day following
the date deposited in the United States mail if such notice or other
communication is sent by certified or registered mail with return receipt
requested and postage thereon fully prepaid. The addresses for such notices
shall be as follows:
If to the Company:
Commercial Bancorp of Georgia, Inc.
390 Crogan Street N.W.
Lawrenceville, Georgia 30246
If Optionee:
Mike Couch
--------------------
--------------------
--------------------
Any party hereto, by notice of the other party hereunder, may change its
address for receipt of notices hereunder.
12. Miscellaneous.
(a) The granting of the Option and the execution of this
Agreement shall not give Optionee any rights to similar grants in future years
or any right to be retained in
<PAGE> 26
the employ of the Company or any subsidiary of the Company or to interfere in
any way with the right of the Company or any subsidiary to terminate Optionee's
employment at any time.
(b) Unless and except as otherwise specifically provided
in this Agreement, Optionee shall have no rights of a shareholder with respect
to any shares covered by the Option until the date of issuance of a stock
certificate to him for such shares.
(c) If any term, provision, covenant or restriction
contained in this Agreement is held by a court or federal regulatory agency of
competent jurisdiction to be invalid, void or unenforceable, the remainder of
the terms, provisions, covenants and restrictions contained in this Agreement
shall remain in full force and effect, and shall in no way be affected,
impaired or invalidated. If for any reason such court or regulatory agency
determines that this Agreement will not permit Optionee to acquire the full
number of Optioned Shares as provided in Section 1 hereof, it is the express
intention of the Company to allow Optionee to acquire such lesser number of
shares as may be permissible without any amendment or modification hereof.
(d) This Agreement shall be construed and enforced in
accordance with the laws of Georgia.
(e) This Agreement contains the entire understanding
among the parties and supersedes any prior understanding and agreements between
them representing the subject matter hereof. There are no representations,
agreements, arrangements or understandings, oral or written, between and among
the parties hereto relating to the subject matter hereof which are not fully
expressed herein.
(f) Section and other headings contained in this Agreement are
for reference purposes only and are in no way intended to describe, interpret,
define or limit the scope, extent or intent of this Agreement or any provision
hereof.
(g) This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original and all of which shall
constitute one agreement, and the signatures of any party or any counterpart
shall be deemed to be a signature to, and may be appended to, any other
counterpart.
<PAGE> 27
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the first date written above.
COMMERCIAL BANCORP OF GEORGIA, INC.
By:
----------------------------------------
Title:
-------------------------------------
OPTIONEE:
---------------------------------
Mick Couch
<PAGE> 28
STOCK OPTION NO. 8
COMMERCIAL BANCORP OF GEORGIA, INC.
STOCK OPTION AGREEMENT
This Stock Option Agreement (the "Agreement") is made and entered into
as of the 2nd day of March, 1995, by and between Commercial Bancorp of Georgia,
Inc. (formerly Commercial Bancorp of Gwinnett, Inc.) (the "Company") and James
J. Clausen ("Optionee").
WITNESSETH:
WHEREAS, pursuant to an Amended and Restated Employment Agreement
dated March 25, 1988 between Commercial Bancorp of Georgia, Inc. and Optionee,
as amended by Amendment No. 1 thereto dated as of April 18, 1990, Commercial
Bancorp of Georgia, Inc. granted to Optionee non-incentive stock options for
the purchase of Common Stock of Commercial Bancorp of Georgia, Inc. to provide
incentive for Optionee to devote his best efforts on behalf of Commercial
Bancorp of Georgia, Inc. and encourage his continued loyalty and diligence; and
WHEREAS, at the time Optionee's employment with Commercial Bancorp of
Georgia, Inc. and its subsidiary was terminated Optionee and Commercial Bancorp
of Georgia, Inc. agreed that such options would remain in full force and effect
until the expiration of the applicable option period without regard to the
termination of Optionee's employment;
WHEREAS, on March 2, 1995, Commercial Bancorp of Georgia, Inc. merged
with and into the Company (then known as Commercial Bancorp of Gwinnett, Inc.)
(the "Merger") and the Company assumed all of the obligations of Commercial
Bancorp of Georgia, Inc. with regard to outstanding stock options, as adjusted
to reflect the share exchange ratio applicable to the Merger which resulted in
the conversion of such date of each outstanding option for the purchase of one
share of Common Stock of Commercial Bancorp of Georgia, Inc. into an option for
the purchase of 1.035 shares of Common Stock of the Company and a proportionate
reduction in the exercise price of the option; and
WHEREAS, the Company and Optionee desire hereby to set forth the terms
of Optionee's options following the Merger in this Agreement;
NOW, THEREFORE, for an in consideration of the premises and mutual
promises
<PAGE> 29
herein contained, and for other good and valuable consideration, the receipt
and sufficiency of which are acknowledged, the parties acknowledge and agree as
follows:
1. Options Granted. The Company and Optionee acknowledge and
agree that pursuant to the Merger Optionee holds nonqualified stock options for
the purchase of 8,197 shares of Common Stock of the Company (the "1989
Options") and 12,420 shares of Common Stock of the Company (the "1990
Options"). The 1989 Options and the 1990 Options hereinafter are referred to
collectively as the "Options," and the 20,617 shares subject to the Options
hereinafter are referred to collectively as the "Optioned Shares."
2. Option Price. The price per share for each of the 1989
Options is $9.565, and the price per share for each of the 1990 Options is
$9.864 (collectively, the "Option Prices"). The Options are non-qualified
Options.
3. Exercise of Options.
(a) General. The Options may be exercised by Optionee's
delivery to the Secretary of the Company of a written notice of exercise
executed by Optionee (the "Notice of Exercise"). The Notice of Exercise shall
be substantially in the form set forth as Exhibit A attached hereto and made a
part hereof, and shall identify the Option(s) that is (are) being exercised and
the number of Optioned Shares for which such Option(s) is (are) being
exercised.
(b) Partial Exercise. Optionee may exercise the Options
for less than the full number of exercisable Optioned Shares, but such exercise
may not be made for less than 100 shares or the total remaining Optioned
Shares, if less than 100 shares.
4. Termination of Option. Notwithstanding any provisions to the
contrary herein, the Options shall not be exercisable either in whole or in
part after February 14, 1996 with regard to the 1989 Options and January 16,
1997 with regard to the 1990 Options.
5. Options Non-Transferable. The Options shall not be
transferable by Optionee other than by will or by the laws of descent and
distribution, and any purported transfer shall be null and void. During the
lifetime of Optionee, the Options shall be exercisable only by Optionee (or, if
he becomes disabled or otherwise incapacitated, by the guardian of his property
or his duly appointed attorney-in-fact) and shall not be assignable or
transferable by Optionee and, subject to Section 6 hereof, no other person
shall acquire any rights in the Options.
6. Death of Optionee and Transfer of Options. In the event of
the death of Optionee, all or any of the unexercised portion of the Options
owned by the deceased Optionee may be exercised by Optionee's beneficiary at
any time prior to the date as of which such Option expires pursuant to Section
4 hereof. Such exercise shall be effected in accordance with the terms hereof
as if such beneficiary was the Optionee herein.
<PAGE> 30
Beneficiary shall mean, with respect to an Optionee, the person or persons who
acquire the Options of such Optionee by bequest or inheritance. To the extent
that an Option has not yet been distributed to such person or persons from a
deceased Optionee's estate, an Option may be exercised by the executor or
administrator (if applicable) of the deceased Optionee's estate.
7. Medium and Time of Payment of Option Price.
(a) General. The Option Price shall be payable by
Optionee (or his successors in accordance with Section 6 hereof) upon exercise
of the related Option and shall be paid in cash or shares of Common Stock of
the Company, or any combination thereof.
(b) Payment in Shares of the Common Stock. If Optionee
pays all or part of the Option Price with shares of Common Stock of the
Company, the following conditions shall apply:
(i) Optionee shall deliver to the Secretary of
the Company a certificate or certificates for share of the Common Stock duly
endorsed for transfer to the Company with signature guaranteed by a member firm
of a national stock exchange or by a national or state bank (or guaranteed or
notarized in such other manner as the Secretary of the Company may require);
(ii) Optionee must have held any shares of the
Common Stock used to pay the Option Price for at least six months prior to the
date such payment is made;
(iii) Such shares shall be valued on the basis of
the Fair Market Value of the Common Stock on the date of exercise. Fair Market
Value of the Common Stock as of a date of determination shall mean the
following:
(a) Stock Listed and Shares Traded. If the
Common stock is listed and traded on a national
securities exchange as such term is defined by the
Securities Exchange Act of 1934, as amended) or on
The Nasdaq National Market on the date of
determination, the Fair Market Value per share shall
be the closing price of a share of the Common Stock
on said national securities exchange or Nasdaq
National Market on the date of determination. If the
Common Stock is traded in the over-the-counter market
or the Nasdaq SmallCap Market, the Fair Market Value
per share shall be the average of the closing bid and
asked prices on the date of determination.
(b) Stock Listed But No Shares Traded. If
the Common Stock is listed on a national securities
exchange or on The Nasdaq National Market but no
shares of the Common Stock are traded on the date of
<PAGE> 31
determination but there were shares traded on dates
within a reasonable period before the date of
determination, the Fair Market Value shall be the
closing price of the Common Stock on the most recent
date before the date of determination. If the Common
Stock is regularly traded in the over-the- counter
market or the Nasdaq SmallCap Market but no shares of
the Common Stock are traded on the date of
determination (or if records of such trades are
unavailable or burdensome to obtain) but there were
shares traded on dates within a reasonable period
before the date of determination, the Fair Market
Value shall be the average of the closing bid and
asked prices of the Common Stock on the most recent
date before the date of determination.
(c) Stock Not Listed. If the Common
Stock is not listed on a national securities exchange
or on The Nasdaq National Market and is not regularly
traded in the over-the-counter market or the Nasdaq
SmallCap Market, then the Secretary shall determine
the Fair Market Value of the Common Stock from all
relevant available facts, which may include the
average of the closing bid and ask prices reflected
in the over-the-counter market on a date within a
reasonable period either before or after the date of
determination or opinions of independent experts as
to value and may take into account any recent sales
and purchases of such Common Stock to the extent they
are representative.
(iv) If Optionee delivers Common Stock with a
value that is less than the Option Price, then Optionee shall pay the balance
of the Option Price in cash. If Optionee delivers Common Stock with a value
that is greater than the Option Price, then the Company shall issue to Optionee
a new stock certificate representing a number of shares equal to the difference
between the number of shares so delivered and the number of shares having a
value equal to the Option Price (together with a cash payment equal to the
value of any fractional share of Common Stock otherwise required to be issued
to Optionee).
In addition to the payment of the Option Price, Optionee also shall pay in cash
(or have withheld from his normal pay) an amount equal to the amount, if any,
which the Company at the time of exercise is required to withhold under the
income tax and FICA withholding provisions of the Internal Revenue Code of
1986, as amended, and of the income tax laws of the state of Optionee's
residence, and of any other applicable law.
8. Agreement of Optionee. Optionee acknowledges and understands
that certain restrictions may apply with respect to shares of the Common Stock
acquired by him pursuant to his exercise of the Options (possibly including
restrictions on resale applicable to "affiliates," as such term is defined in
Rule 144 promulgated under the Securities Act of
<PAGE> 32
1933, as amended, and restrictions on resale applicable to shares of Common
Stock that have not been registered under the Securities Act of 1933, as
amended, and applicable state securities laws). Optionee hereby agrees to
execute such documents and take such actions as the Company may require with
respect to state and federal securities laws and any restrictions on the resale
of such shares which may pertain. All certificates representing the shares of
Common Stock issued pursuant to this Agreement shall be marked with the
following restrictive legend or similar legend, if such marking, in the opinion
of counsel to the Company, is necessary or desirable:
The shares represented by this certificate have not been registered
under the Securities Act of 1933, as amended, or the securities laws
of any state. Accordingly, these shares may not be sold,
hypothecated, pledged or otherwise transferred except (i) pursuant to
an effective registration statement under the Securities Act of 1933,
as amended, and any applicable securities laws or regulations of any
state with respect to such shares, (ii) in accordance with Securities
and Exchange Commission Rule 144, or (iii) upon the issuance to the
Company of a favorable opinion of counsel or the submission to the
Company of such other evidence as may be satisfactory to the Company
that such proposed sale, assignment, encumbrance or other transfer
will not be in violation of the Securities Act of 1933, as amended, or
any applicable securities laws of any state or any rules or
regulations thereunder. Any attempted transfer of this certificate or
the shares represented hereby which is in violation of the preceding
restrictions will not be recognized by the Company, nor will any
transferee be recognized as the owner thereof by the Company.
9. Delivery of Stock Certificates. As promptly as practical
after the date of exercise of an Option and the receipt by the Company of full
payment therefor, the Company shall deliver to Optionee a stock certificate
representing the shares of the Common Stock acquired by Optionee pursuant to
his exercise of the Option.
10. Adjustments Upon Changes in Capitalization.
(a) Recapitalization. In the event that the outstanding
shares of the Common Stock of the Company are hereinafter increased or
decreased or changed into or exchanged for a different number or kind of shares
or other securities of the Company by reason of a recapitalization,
reclassification, stock split, combination of shares or dividend payable in
shares of the Common Stock the Secretary shall make an appropriate adjustment
in the number and kind of shares as to which outstanding Options, or portions
thereof then unexercised, shall be exercisable, to the end that the Optionee's
proportionate interest shall be maintained as before the occurrence of such
event; any such adjustment in any outstanding Options shall be made without
change in the total price applicable to the unexercised portion of such Option
and with a corresponding adjustment to the Option Prices per share. No
fractional shares shall be issued or optioned in making the foregoing
<PAGE> 33
adjustments, and the number of Optioned Shares subject to any outstanding
Options shall be the next lower number of shares, rounding all fractions
downward.
(b) Limits on Adjustments. Any issuance by the Company
of stock of any class, or securities convertible into shares of stock of any
class, shall not affect, and no adjustment by reason thereof shall be made with
respect to, the number or price of the Optioned Shares, except as specifically
provided otherwise in Section 10(a).
11. Notices. All notices or other communications hereunder shall
be in writing and shall be effective (i) when personally delivered by courier
(including overnight carriers) or otherwise to the party to be given such
notice or other communication or (ii) on the third business day following the
date deposited in the United States mail if such notice or other communication
is sent by certified or registered mail with return receipt requested and
postage thereon fully prepaid. The addresses for such notices shall be as
follows:
If to the Company:
Commercial Bancorp of Georgia, Inc.
390 Crogan Street, N.W.
Lawrenceville, Georgia 30246
If to Optoinee:
James J. Clausen
------------------
------------------
------------------
Any party hereto, by notice of the other party hereunder, may change its
address for receipt of notices hereunder.
12. Miscellaneous.
(a) The granting of the Options and the execution of this
Agreement shall not give Optionee any rights to similar grants in future years
or any right to be retained in the employ of the Company or any subsidiary of
the Company.
(b) Unless and except as otherwise specifically provided
in this Agreement, Optionee shall have no rights of a shareholder with respect
to any shares covered by the Options until the date of issuance of a stock
certificate to him for such shares.
(c) If any term, provision, covenant or restriction
contained in this Agreement is held by a court or federal regulatory agency of
competent jurisdiction to be invalid, void or unenforceable, the remainder of
the terms, provisions, covenants and
<PAGE> 34
restrictions contained in this Agreement shall remain in full force and effect,
and shall in no way be affected impaired or invalidated. If for any reason
such court or regulatory agency determines that this Agreement will not permit
Optionee to acquire the full number of Optioned Shares as provided in Section 1
hereof, it is the express intention of the Company to allow the Optionee to
acquire such lesser number of shares as may be permissible without any
amendment or modification hereof.
(d) This Agreement shall be construed and enforced in
accordance with the laws of Georgia.
(e) This Agreement contains the entire understanding
among the parties and supersedes any prior understanding and agreements between
them representing the subject matter hereof. There are no representations,
agreements, arrangements or understandings, oral or written, between and among
the parties hereto relating to the subject matter hereof which are not fully
expressed herein.
(f) Section and other headings contained in this Agreement are
for reference purposes only and are in no way intended to describe, interpret,
define or limit the scope, extent or intent of this Agreement or any provision
hereof.
(g) This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original and all of which shall
constitute one agreement , and the signatures of any party or any counterpart
shall be deemed to be a signature to, and may be appended to, any other
counterpart.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the first date written above.
COMMERCIAL BANCORP OF GEORGIA, INC.
By:
--------------------------------
Title:
-----------------------------
OPTIONEE:
-----------------------------------
James J. Clausen
<PAGE> 35
EMPLOYMENT CONTRACT
THIS AGREEMENT is made and entered into this 25th day of January,
1993, by and between Commercial Bank of Gwinnett, N.A. (the "Bank"), a
federally chartered national bank and a wholly-owned subsidiary of Commercial
Bancorp of Gwinnett, Inc. (the "Company"), and Susan S. Hite ("employee");
. . .
3.
COMPENSATION
. . .
(d) Stock Options. Employee will be awarded stock options not to
exceed 3,000 shares of Company's Common Stock during the term of this
agreement. The options will be awarded a follows: (i) an option to purchase
500 shares of Common Stock will be awarded on the date employee commences
employment under this agreement; (ii) an option to purchase 1,000 shares of
Common Stock will be awarded on the first anniversary of the date employee
commences employment under this agreement; and (iii) an option to purchase
1,500 shares of Common Stock will be awarded on the second anniversary of the
date employee commences employment under this agreement. Each option can be
exercised anytime within seven years from the date the option is granted. The
price per share to be paid by employee for shares of Common Stock upon exercise
of all or part of her options shall be equal to the greater of (x) the book
value per share of the Common Stock as reflected in the Company's quarterly
financial report for the quarter ended immediately prior to the effective date
of the grant of the option or options to be exercised or (y) $10.00 per share.
. . .
<PAGE> 36
COMMERCIAL BANCORP OF GWINNETT, INC.
STOCK OPTION AGREEMENT
THIS AGREEMENT is made and entered into as of this 21st day of May,
1991, by and between COMMERCIAL BANCORP OF GWINNETT, INC., a Georgia bank
holding company (the "Corporation"), and Robert Craig Jarvis (the "Option
Holder"), Executive Vice President of the Corporation and Commercial Bank of
Gwinnett, N.A. (the "Bank"), a wholly-owned subsidiary of the Corporation.
WITNESSETH:
WHEREAS, pursuant to the Employment Contract dated May 3, 1990 by and
between the Option Holder and the Corporation, as amended by the First
Amendment to Employment Contract dated May 21, 1991 (the "Employment Contract,
as amended, hereinafter is referred to as the "Employment Contract"), the
Option Holder has agreed to serve as Executive Vice President for the
Corporation and the Bank; and
WHEREAS, the Employment Contract provides that the Corporation will
award to the Option Holder during the term of the Employment Contract options
to purchase up to 10,000 shares of the Corporation's $1.00 par value Common
Stock (the "Common Stock");
NOW, THEREFORE, in consideration of the premises set forth herein and
other good and valuable consideration, the receipt and sufficiency of which
hereby are acknowledged, the parties hereto agree as follows:
1. Grant of Options. Subject to the terms, restrictions,
limitations and conditions stated herein and in the Employment Contract, (i)
effective as of May 3, 1991, the Corporation hereby grants to Option Holder the
right to purchase all or part of three thousand (3,000) shares of the Common
Stock (the "First Options"), (ii) effective as of May 3, 1992, the Corporation
hereby grants to Option Holder the right to purchase all or any part of an
additional three thousand (3,000) shares of the Common Stock (the "Second
Options"), and (iii) effective as of May 3, 1993, the Corporation hereby grants
to Option Holder the right to purchase an additional four thousand (4,000)
shares of the Common Stock (the "Third Options," and the First Options, the
Second Options and the Third Options hereinafter are referred to collectively
as the "Options"); provided, however, that the Second Options and the Third
Options will not be granted if, prior to the effective date of the grant of
such Options, the Employment Contract is terminated for any reason (including,
without limitation, the reasons set forth in Section 2 of the Employment
Contract).
2. Term. The First Options may be exercised in whole, or from
time to time in part, at any time before 5:00 p.m., Atlanta time, on May 3,
1998. The Second Options may be exercised in whole, or from time to time in
part, at any time before 5:00 p.m., Atlanta time, on May 3, 1999. The Third
Options may be exercised in whole, or from time to time
<PAGE> 37
in part, at any time before 5:00 p.m., Atlanta time, on May 3, 2000. Each such
date and time is referred to herein as the "Expiration Time." Notwithstanding
the foregoing provisions of this Section 2, no Option may be exercised prior to
the effective date of the grant of such Option as set forth in Section 1 of
this Agreement.
3. Purchase Price. The price per share to be paid by Option
Holder for the shares of Common Stock upon exercise of all or part of the
Options shall be equal to the greater of (i) the book value per share of the
Common Stock as reflected in the Corporation's quarterly financial report for
the quarter ended immediately prior to the effective date of the grant of the
Option or Options to be exercised or (ii) $10.00 per share, subject to
adjustment as set forth in Section 6 hereof (such price, as adjusted,
hereinafter is referred to as the "Purchase Price"). As soon as practicable
following the effective dates of the grant of Options, the Corporation shall
(a) calculate the Purchase Price for the Common Stock underlying the Options,
(b) state such Purchase Price on Exhibit A hereto and (c) give written notice
to the Option Holder, which notice shall state the Purchase Price.
4. Exercise of Options. The Options may be exercised by Option
Holder by delivery to the Corporation, at the address of the Corporation set
forth under Section 10(a) hereof or such other address as the Corporation
advises Option Holder pursuant to Section 10(a) hereof, of the following:
(a) Written notice of exercise specifying (i) the
effective date or dates of the grant of the Options to be exercised and (ii)
the number of shares of Common Stock with respect to which the Options are
being exercised; and
(b) Cash or a cashiers or certified check payable to the
Corporation for the full amount of the aggregate Purchase Price for the number
of shares of Common Stock as to which the Options are being exercised.
5. Issuance of Shares. Upon receipt of the items set forth in
Section 4, and subject to the terms hereof, the Corporation shall cause to be
delivered to Option Holder a stock certificate or stock certificates registered
in the name of the Option Holder for the number of shares of Common Stock
specified in the notice of exercise. Notwithstanding the foregoing, the
Corporation shall not be required to issue or deliver any certificate for
shares of the Common Stock purchased upon exercise of the Options or any
portion thereof prior to the fulfillment of the following conditions:
(a) The admission of such shares for listing on all stock
exchanges on which the Common Stock is then listed;
(b) The completion of any registration or other
qualification of such shares which the Corporation shall deem necessary or
advisable under any federal or state law or under the rulings or regulations of
the Securities and Exchange Commission or any other
<PAGE> 38
governmental regulatory body;
(c) The obtaining of any approval or other clearance from
any federal or state governmental agency or body, which the Corporation shall
determine to be necessary or advisable; and
(d) The lapse of such reasonable period of time following
the exercise of the Options as the Corporation from time to time may establish
for reasons of administrative convenience.
The Corporation shall have no obligation to obtain the fulfillment of
these conditions.
6. Antidilution, Etc.
(a) If prior to the Expiration Time of the Third Options,
the Corporation shall subdivide its outstanding shares of Common Stock into a
greater number of shares, or declare and pay a dividend on its Common Stock
payable in additional shares of its Common Stock, the Purchase Price with
respect to each Option shall be proportionately reduced to reflect the
subdivision or dividend, and the number of shares of Common Stock subject to
exercise under the Options (and not previously exercised or expired) shall be
proportionately increased to reflect the subdivision or dividend.
(b) If prior to the Expiration Time of the Third Options,
the Corporation shall combine its outstanding shares of the Common Stock into a
smaller number of shares, the Purchase Price with respect to each Option shall
be proportionately increased to reflect the combination, and the number of
shares of Common Stock subject to exercise under the Options (and not
previously exercised or expired) shall be proportionately reduced to reflect
the combination.
7. Reorganization, Reclassification, Consolidation or Merger. If
prior to the Expiration Time of the Third Options, there shall be any
reorganization or reclassification of the Common Stock (other than a
subdivision or combination of shares provided for in Section 6 hereof), or any
consolidation or merger of the Corporation with another entity, the Option
Holder shall thereafter be entitled to receive, during the term hereof and upon
payment of the Purchase Price, the number of shares of stock or other
securities or property of the Corporation or of the successor entity (or its
parent company) resulting from such consolidation or merger, as the case may
be, to which a holder of the number of shares of Common Stock deliverable upon
the exercise of the Options granted hereby would have been entitled upon such
reorganization, reclassification, consolidation or merger; and in any case,
appropriate adjustment (as determined by agreement of the Option Holder and the
Board of Directors of the Corporation) shall be made in the application of the
provisions herein set forth with respect to the rights and interest thereafter
of the Option Holder to the end that the provisions set forth herein (including
the adjustment of the Purchase Price
<PAGE> 39
and the number of shares issuable upon the exercise of the Options) shall
thereafter be applicable, as near as may reasonably be practicable, in relation
to any shares or other property thereafter deliverable upon the exercise
hereof.
8. Notice of Adjustments. Upon any adjustment of the Purchase
Price and any increase or decrease in the number of shares of Common Stock
purchasable upon the exercise of any of the Options, the Corporation, within
thirty (30) days thereafter, shall give written notice thereof to the Option
Holder at the address set forth under Section 10(a) hereof or such other
address as Option Holder may advise the Corporation pursuant to Section 10(a)
hereof, which notice shall state the Purchase Price as adjusted and the
increased or decreased number of shares purchasable upon the exercise of the
Options, setting forth in reasonable detail the method of calculation of each.
9. Transfer and Assignment.
(a) Neither the Options nor any rights hereunder are
assignable or transferable by Option Holder otherwise than by will or under the
laws of descent and distribution, and during the Option Holder's lifetime the
Options are exercisable only by Option Holder (or by Option Holder's guardian
or legal representative, should one be appointed). More particularly, but
without limiting the generality of the foregoing, except as may be approved
otherwise by the Corporation, the Options may not be assigned, transferred
(except as aforesaid), pledged or hypothecated in any way (whether by operation
of law or otherwise) and shall not be subject to execution, attachment or
similar process. Any attempted assignment, transfer, pledge, hypothecation or
other disposition of all or part of the Options contrary to the provisions
hereof shall be null and void and without legal effect.
(b) Shares of Common Stock acquired by exercise of any
Option granted hereby may not be transferred or sold unless such transfer or
sale is exempt from further regulatory approval or otherwise permissible under
applicable law, including state and federal securities laws.
10. Miscellaneous.
(a) All notices, requests, demands, and other
communications required or permitted hereunder shall be in writing and shall be
deemed to have been duly given when delivered by hand, telegram or facsimile
transmission, or, if mailed by postage prepaid first class mail, on the third
business day after mailing, to the following address (or at such other address
as a party may notify the other hereunder):
To the Corporation: To Option Holder:
Commercial Bancorp of Robert Craig Jarvis
Gwinnett, Inc. 1157 Hutch Lane
390 Crogan Street Snellville, Georgia 30278
Lawrenceville, Georgia 30246
Attention: Richard Sikes
President
<PAGE> 40
(b) The Corporation covenants that it has reserved and
will keep available, solely for the purpose of issue upon the exercise of the
Options granted hereby, a sufficient number of shares of Common Stock to permit
the exercise of such Options in full.
(c) No holder of the Options, as such, shall be entitled
to vote or receive dividends with respect to the shares of Common Stock subject
thereto or be deemed to be a shareholder of the Corporation for any purpose
until all or part of the Options have been exercised and such Common Stock has
been issued.
(d) This Agreement may be amended only by an instrument
in writing executed by the party against whom enforcement or amendment is
sought.
(e) This Agreement may be executed in counterparts, each
of which shall be deemed an original, but all of which shall constitute one and
the same instrument.
(f) This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Georgia.
IN WITNESS WHEREOF, the Corporation has caused this Agreement to be
signed by its duly authorized officers and its corporate seal to be affixed
hereto, and the Option Holder has executed this Agreement under seal, all as of
the day and year first above written.
COMMERCIAL BANCORP OF GWINNETT, INC.
[CORPORATE SEAL]
ATTEST: By:
-----------------------------------------
Richard Sikes,
Chairman of the Board, President
and Chief Executive Officer
- ----------------------------
OPTION HOLDER
------------------------------------- (Seal)
Robert Craig Jarvis
<PAGE> 1
Exhibit 4.2
Option Agreement for Certain
Directors, Officers, Organizers and Employees
<PAGE> 2
THE COLONIAL BANCGROUP, INC.
OPTION AGREEMENT
THIS OPTION AGREEMENT (the "Agreement") is made and entered into as of
this 3rd day of July, 1996, by and between THE COLONIAL BANCGROUP, INC., a
Delaware corporation ("BancGroup"), and _______________ ("Option Holder").
W I T N E S S E T H:
WHEREAS, Option Holder served as an organizer in the formation and
establishment of Commercial Bancorp of Georgia, Inc. (then known as Commercial
Bancorp of Gwinnett, Inc.) ("Commercial Bancorp") and its wholly-owned bank
subsidiary (Commercial Bancorp and its subsidiary are referred to herein
collectively as "CBG"); and
WHEREAS, in connection with, and as consideration for, his service as
an organizer of CBG and his purchase of shares of Common Stock, $1.00 par value
per share, of Commercial Bancorp ("CBG Stock") in Commercial Bancorp's initial
public offering, Commercial Bancorp granted to Option Holder options to
purchase up to _______ shares of CBG Stock (the "Original Options") pursuant to
the terms and conditions of the Warrant Agreement dated on or about July 27,
1990, by and between Commercial Bancorp and Option Holder (the "Original
Option Agreement"); and
WHEREAS, effective on July 3, 1996, Commercial Bancorp merged (the
"Merger") with and into BancGroup pursuant to the Agreement and Plan of Merger
dated December 21, 1996 (the "Merger Agreement"), by and between
BancGroup and Commercial Bancorp;
WHEREAS, as a result of the Merger and pursuant to the terms of the
Merger Agreement all of the issued and outstanding shares of CBG Stock were
converted into and exchanged for shares of the Common Stock, $2.50 par value
per share, of BancGroup (the "BancGroup Common Stock");
WHEREAS, pursuant to the terms of the Merger Agreement and the
Original Option Agreement, the Original Options were converted by operation of
law in the Merger into options to purchase shares of BancGroup Common Stock;
and
WHEREAS, BancGroup and the Option Holder desire to enter into this
Agreement to memorialize the terms of the Options (as hereinafter defined) as
converted in the Merger and, in connection therewith, to terminate and replace
the Original Option Agreement with this Agreement.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which hereby are
acknowledged, the parties hereto agree as follows:
<PAGE> 3
1. Grant of Option. Subject to the terms, restrictions, limitations
and conditions stated herein, the Original Options are converted into the right
to purchase shares of BancGroup Common Stock and, to memorialize such
conversion, BancGroup hereby grants to Option Holder the right (the "Option")
to purchase all or any part of an aggregate of _______ shares of BancGroup
Common Stock.
2. Term. The Option may be exercised in whole, or from time to time
in part, at any time before 5:00 p.m., Atlanta time, on July 27, 2000 (the
"Expiration Time").
3. Purchase Price. The price per share to be paid by Option Holder
for the shares of BancGroup Common Stock subject to this Option shall be
$_______ per share. Such exercise price was determined pursuant to the Merger
Agreement and the Original Option Agreement and is equal to the book value per
share of the CBG Stock as reflected in Commercial Bancorp's quarterly
financial report for the quarter [ENDED JUNE 30, 1996] (the quarter ended
immediately prior to the effective date of the Merger), divided by .6117 (the
exchange ratio in the Merger) (such price, as adjusted, hereinafter is referred
to as the "Purchase Price"). The Purchase Price shall be subject to adjustment
as set forth in Section 7 below.
4. Exercise of Option. The Option may be exercised by Option Holder
by delivery to BancGroup, at the address of BancGroup set forth under
Section 11(a) hereof or such other address as BancGroup advises Option Holder
pursuant to Section 11(a) hereof, of the following:
(a) Written notice of exercise specifying the number of shares
of BancGroup Common Stock with respect to which the Option is being exercised;
and
(b) Cash or a cashiers or certified check payable to
BancGroup for the full amount of the aggregate Purchase Price for the number
of shares as to which the Option is being exercised.
5. Limitation on Exercise of Option. Notwithstanding any other
provision of this Agreement, the Option may not be exercised by Option Holder
if such exercise would cause Option Holder's percentage of ownership of
BancGroup Common Stock to exceed ten percent of the number of shares of
BancGroup Common Stock outstanding upon the exercise of the Option.
6. Issuance of Shares. Upon receipt of the Items set forth in Section
4, and subject to the terms hereof, BancGroup shall cause to be delivered to
Option Holder a stock certificate or stock certificates registered in the
name of Option Holder for the number of shares of BancGroup Common Stock
specified in the notice to exercise. Notwithstanding the foregoing, the
BancGroup shall not be required to issue or deliver any certificate or
certificates for shares of the BancGroup Common Stock purchased upon exercise
of the Option or any portion thereof prior to the fulfillment of the following
conditions:
<PAGE> 4
(a) The admission of such shares for listing on all stock
exchanges on which the BancGroup Common Stock is then listed;
(b) The completion of any registration or other qualification
of such shares which BancGroup shall deem necessary or advisable under any
federal or state law or under the rulings or regulations of the Securities and
Exchange Commission or any other governmental regulatory body;
(c) The obtaining of any approval or other clearance from any
federal or state governmental agency or body, which BancGroup shall determine
to be necessary or advisable; and
(d) The lapse of such reasonable period of time following the
exercise of the Option as BancGroup from time to time may establish for
reasons of administrative convenience.
Except as set forth in the Merger Agreement, BancGroup shall have no
obligation to obtain the fulfillment of these conditions; provided, however,
Option Holder shall have one full calendar year after these conditions have
been fulfilled to exercise his or her warrants granted herein, notwithstanding
any other provision herein.
7. Antidilution, Etc.
(a) If prior to the Expiration Time, BancGroup shall
subdivide its outstanding shares of BancGroup Common Stock into a greater
number of shares, or declare and pay a dividend on its BancGroup Common Stock
payable in additional shares of its BancGroup Common Stock, the Purchase Price
as then in effect shall be proportionately reduced, and the number of shares of
BancGroup Common Stock then subject to exercise under the Option (and not
previously exercised), shall be proportionately increased.
(b) If prior to the Expiration Time, BancGroup shall combine
its outstanding shares of BancGroup Common Stock into a smaller number of
shares, the Purchase Price, as then in effect, shall be proportionately
increased, and the number of shares of BancGroup Common stock then subject to
exercise under the Option (and not previously exercised), shall be
proportionately reduced.
8. Reorganization, Reclassification, Consolidation or Merger. If
prior to the Expiration Time, there shall be any reorganization or
reclassification of the BancGroup Common Stock (other than subdivision or
combination of shares provided for in Section 7 hereof), or any consolidation
or merger of BancGroup with another entity, Option Holder shall thereafter be
entitled to receive, during the term hereof and upon payment of the Purchase
Price, the number of shares of stock or other securities or property of
BancGroup or of the successor entity (or its parent company) resulting from
such
<PAGE> 5
consolidation or merger, as the case may be, to which a holder of the number of
shares of BancGroup Common Stock, deliverable upon the exercise of this Option
would have been entitled upon such reorganization, reclassification,
consolidation or merger; and in any case, appropriate adjustment (as determined
by agreement of Option Holder and the Board of Directors of BancGroup) shall
be made in the application of the provisions herein set forth with respect to
the rights and interest thereafter of Option Holder to the end that the
provisions set forth herein (including the adjustment of the Purchase Price and
the number of shares issuable upon the exercise of the Option) shall
thereafter be applicable, as near as may reasonably be practicable, in relation
to any shares or other property thereafter deliverable upon the exercise
hereof.
9. Notice of Adjustments. Upon any adjustment of the Purchase Price
and any increase or decrease in the number of shares of BancGroup Common Stock
purchasable upon the exercise of the Option, BancGroup, within thirty (30) days
thereafter, shall give written notice thereof to Option Holder at the address
set forth under Section 11(a) hereof or such other address as Option Holder may
advise BancGroup pursuant to Section 11(a) hereof, which notice shall state the
Purchase Price as adjusted and the increased or decreased number of shares
purchasable upon the exercise of the Option, setting forth in reasonable detail
the method of calculation of each.
10. Transfer and Assignment.
(a) Neither the Option nor any rights hereunder are assignable
or transferable by Option Holder otherwise than by will or under the laws of
descent and distribution, and during Option Holder's lifetime the Option is
exercisable only by Option Holder (or by Option Holder's guardian or legal
representative, should one be appointed). More particularly, but without
limiting the generality of the foregoing, except as may be approved otherwise
by BancGroup, the Option may not be assigned, transferred (except as
aforesaid), pledged or hypothecated in any way (whether by operation of law or
otherwise) and shall no be subject to execution, attachment or similar process.
Any attempted assignment, transfer, pledge, hypothecation or other disposition
of the Option contrary to the provisions hereof shall be null and void and
without legal effect.
(b) Shares of BancGroup Common Stock acquired by exercise of
the Option may not be transferred or sold unless the transfer or sale is exempt
from further regulatory approval or otherwise permissible under applicable law,
including state and federal securities laws.
11. Termination of Original Option Agreement. The parties hereto
acknowledge and agree that this Agreement sets forth the terms and conditions
of the Options following the Merger and the Original Option Agreement hereby is
terminated.
12. Miscellaneous.
<PAGE> 6
(a) All notices, requests, demands, and other communications
required or permitted hereunder shall be in writing and shall be deemed to have
been duly given when delivered by hand, telegram or facsimile transmission, or
if mailed, by postage prepaid first class mail, on the third business day after
mailing, to the following address (or at such other address as a party may
notify the other hereunder):
To BancGroup: To Option Holder:
The Colonial BancGroup, Inc.
-------------------------------------------
One Commerce Street,
-------------------------------------------
Suite 800
-------------------------------------------
Montgomery, Alabama 36104
-------------------------------------------
Attention: W. Flake Oakley, IV
Chief Financial Officer
(b) BancGroup covenants that it has reserved and will keep
available, solely for the purpose of issue upon the exercise hereof, a
sufficient number of shares of BancGroup Common Stock to permit the exercise
hereof in full.
(c) No holder of the Option, as such, shall be entitled to
vote or receive dividends with respect to the shares of Common Stock subject
hereto or be deemed to be a shareholder of BancGroup for any purpose until the
Option has been exercised and such BancGroup Common Stock has been issued.
(d) The Option may be amended only by an instrument in writing
executed by the party against whom enforcement or amendment is sought.
(e) The Option may be executed in counterparts, each of which
shall be deemed an original, but all of which shall constitute one and the same
instrument.
(f) The Option shall be governed by and construed and enforced
in accordance with the laws of the State of Georgia.
<PAGE> 7
IN WITNESS WHEREOF, BancGroup has caused the Option to be signed by
its duly authorized officers and its corporate seal to be affixed hereto, and
Option Holder has executed this Agreement under seal, all as of the day and
year first above written.
THE COLONIAL BANCGROUP, INC.
[CORPORATE SEAL] By:
---------------------------------
W. Flake Oakley, IV
ATTEST: Chief Financial Officer
- -------------------------------
OPTION HOLDER
----------------------------------(Seal)
<PAGE> 1
Exhibit 5
Opinion of Counsel
<PAGE> 2
August 26, 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 agreements and option agreements
(the "Agreements") of Commercial Bancorp of Georgia, Inc.
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 177,038 shares of
its Common Stock, par value of $2.50 per share, in connection with the
Agreements, 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:
(i) The Company is a corporation duly organized and existing under
the laws of the State of Delaware;
<PAGE> 3
The Colonial BancGroup, Inc.
August 26, 1996
Page 2
(ii) The shares of Common Stock of the Company referred to above, to
the extent actually issued pursuant to the Agreements, 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
<PAGE> 1
Exhibit 23.1
Consent of Counsel
<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 our opinion as
in exhibit to the registration statement.
MILLER, HAMILTON, SNIDER & ODOM, L.L.C.
BY: /s/ Michael D. Waters
------------------------------------
Michael D. Waters
DATED: August 26, 1996
---------------------------------
<PAGE> 1
Exhibit 23.2
Consent of Independent Public Accountants
<PAGE> 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.
Coopers & Lybrand L.L.P.
Birmingham, Alabama
August 29, 1996
