As filed with the Securities and Exchange Commission on March 4, 1999
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
REGISTRATION STATEMENT
ON FORM S-8
UNDER THE SECURITIES ACT OF 1933
GILMER FINANCIAL SERVICES, INC.
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of incorporation
or organization)
218 West Cass Street, Gilmer, Texas
(Address of principal executive offices)
75-2561513
(I.R.S. Employer Identification No.)
75644
(Zip Code)
GILMER FINANCIAL SERVICES, INC.
1995 RECOGNITION AND RETENTION PLAN
(Full title of the plan)
Martin L. Meyrowitz, P.C.
Beth A. Freedman, Esq.
Silver, Freedman & Taff, L.L.P.
(a limited liability partnership including professional corporations)
Suite 700 East
1100 New York Avenue, N.W.
Washington, D.C. 20005-3934
(Name and address of agent for service)
(202) 414-6100
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
Proposed Proposed
Title of maximum maximum
securities Amount to be offering price aggregate Amount of
to be registered registered(1) per share offering price registration fee
- --------------------------------------------------------------------------------
Common Stock, par 5,503 shares $14.625 (2) $80,481(2) $100.00(2)
value $.01
per share
(1) Pursuant to Rule 416 under the Securities Act of 1933, as amended, this
Registration Statement covers, in addition to the number of shares set
forth above, an indeterminate number of shares which, by reason of certain
events specified in the Plan, may become subject to the Plan.
(2) Estimated, pursuant to Rule 457(h), solely for the purpose of calculating
the registration fee, at $14.625 per share, which was the average of the
closing bid and asked prices of the common stock of Gilmer Financial
Services Corporation on February 9, 1999 as reported on the OTC Electronic
Bulletin Board System.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The document(s) containing the information specified in Part I of Form S-8
will be sent or given to participants in the Gilmer Financial Services, Inc.
1995 Recognition and Retention Plan (the "Plan") as specified by Rule 428(b)(1)
promulgated by the Securities and Exchange Commission (the "Commission") under
the Securities Act of 1933, as amended (the "Securities Act").
Such document(s) are not being filed with the Commission, but constitute
(along with the documents incorporated by reference into the Registration
Statement pursuant to Item 3 of Part II hereof) a prospectus that meets the
requirements of Section 10(a) of the Securities Act.
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<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 3. Incorporation of Certain Documents by Reference.
The following documents previously or concurrently filed by Gilmer
Financial Services, Inc. (the "Company") with the Commission are hereby
incorporated by reference in this Registration Statement:
(a) the Company's Annual Report on Form 10-KSB for the fiscal year ended
June 30, 1998, as amended (File No. 0-25076), filed pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act");
(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 audited
financial statements contained in the prospectus referred to in Item
3(a);
(c) the description of the common stock, par value $.01 per share, or
the Registrant contained in the Registrant's Registration Statement
on Form S-1 (Registration No. 33-84334) filed with the Commission on
September 23, 1994, and all amendments thereto or reports filed for
the purpose of updating such description.
All documents subsequently filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment which indicates that all securities
offered hereby have been sold or which deregisters all securities then remaining
unsold, shall be deemed incorporated by reference into this Registration
Statement and to be a part thereof from the date of the filing of such
documents. Any statement contained in the documents incorporated, or deemed to
be incorporated, by reference herein or therein shall be deemed to be modified
or superseded for purposes of this Registration Statement and the Prospectus to
the extent that a statement contained herein or therein or in any other
subsequently filed document which also is, or is deemed to be, incorporated by
reference herein or therein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration Statement and the
Prospectus.
The Company shall furnish without charge to each person to whom the
Prospectus is delivered, on the written or oral request of such person, a copy
of any or all of the documents incorporated by reference, other than exhibits to
such documents (unless such exhibits are specifically incorporated by reference
to the information that is incorporated). Requests should be directed to the
Secretary, Gilmer Financial Services, Inc., 218 West Cass, Gilmer, Texas 75644,
telephone number (903) 843-5525.
All information appearing in this Registration Statement and the
Prospectus is qualified in its entirety by the detailed information, including
financial statements, appearing in the documents incorporated herein or therein
by reference.
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<PAGE>
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Directors and Officers.
The Certificate of Incorporation of the Holding Company provides that a
director or officer of the Holding Company shall be indemnified by the Holding
Company to the fullest extent authorized by the Delaware General Corporation Law
against all expenses, liability and loss reasonably incurred or suffered by such
person in connection with his activities as a director or officer or as a
director or officer of another company, if the director or officer held such
position at the request of the Holding Company. Delaware law requires that such
director, officer, employee or agent, in order to be indemnified, must have
acted in good faith and in a manner reasonably believed to be not opposed to the
best interests of the Holding Company and, with respect to any criminal action
or proceeding, either had reasonable cause to believe such conduct was lawful or
did not have reasonable cause to believe his conduct was unlawful.
The Certificate of Incorporation and Delaware law also provide that the
indemnification provisions of such Certificate and the statute are not exclusive
of any other right which a person seeking indemnification may have or later
acquire under any statute, provision of the Certificate of Incorporation, Bylaws
of the Holding Company, agreement, vote of stockholders or disinterested
directors or otherwise.
These provisions may have the effect of deterring shareholder derivative
actions, since the Holding Company may ultimately be responsible for expenses
for both parties to the action. A similar effect would not be expected for
third-party claims.
In addition, the Certificate of Incorporation and Delaware law also
provide that the Holding Company may maintain insurance, at its expense, to
protect itself and any director, officer, employee or agent of the Holding
Company or another corporation, partnership, joint venture, trust or other
enterprise against any expense, liability or loss, whether or not the Holding
Company has the power to indemnify such person against such expense, liability
or loss under the Delaware General Corporation Law. The Holding Company intends
to obtain such insurance.
Item 7. Exemption from Registration Claimed.
Not applicable.
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<PAGE>
Item 8. Exhibits.
Reference to Prior
Filing or
Regulation S-K Exhibit Number
Exhibit Attached
Number Document Hereto
- --------------------------------------------------------------------------------
4 Instruments Defining the Rights of Security
Holders, Including Indentures:
Certificate of Incorporation of Gilmer Financial
Services, Inc. ................................ *
Bylaws of Gilmer Financial Services, Inc....... *
Form of Stock Certificate of Gilmer Financial
Services, Inc. ................................ *
Gilmer Financial Services, Inc.
1995 Recognition and Retention Plan............Attached as Exhibit
4.1
Gilmer Financial Services, Inc.
1995 Recognition and Retention Plan Attached as Exhibit
Restricted Stock Agreement..................... 4.2
5 Opinion of Silver, Freedman & Taff, L.L.P............Attached as Exhibit
5
15 Letter on unaudited interim financial
information.......................................... Not Applicable
23 Consents of Experts and Counsel:
Consent of Henry & Peters, P.C. ...............Attached as Exhibit
23.1
Consent of Silver, Freedman & Taff, L.L.P......Attached as Exhibit
23.2
24 Power of Attorney.................................... Contained on
Signature Page
26 Invitations for Competitive Bids..................... Not Applicable
99 Additional Exhibits.................................. Not Applicable
- ----------------------
* Filed as an exhibit to the Registrant's Registration Statement on Form S-1
(File No. 33-84334) filed on September 23, 1994 and all amendments thereto or
reports filed for the purpose of updating such description. All such previously
filed documents are hereby incorporated herein by reference in accordance with
Item 601 of Regulation S-B.
II-3
<PAGE>
The Company hereby undertakes that it will submit or has submitted the
Plan and any amendment thereto to the Internal Revenue Service (the "IRS") in a
timely manner and has made or will make all changes required by the IRS in order
to qualify the Plan under Section 401 of the Internal Revenue Code of 1986, as
amended.
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement
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.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at 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 hereby undertakes that, for purposes of
determining any liability under the Securities each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d)
of the Exchange Act filing of the 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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act 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
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 of expenses incurred or paid
by a director, officer or controlling person 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>
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 a Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned in the City of Gilmer,
State of Texas on March 2, 1999.
GILMER FINANCIAL SERVICES, INC.
By: /s/ Gary P. Cooper
-------------------------------
Gary P. Cooper, President and
Chief Executive Officer
(Duly Authorized Representative)
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Gary P. Cooper and M. Vance Gorman or either of
them, his true and lawful attorneys-in-fact and agents, with full power of
substitution and re-substitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same, with all
exhibits thereto, and all other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents full power and authority to do and perform each and every act and thing
requisite and necessary to be done, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all said
attorneys-in-fact and agents or their substitutes or substitute may lawfully do
or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
/s/ Gary P. Cooper /s/ M. Vance Gorman
- ------------------------------- -------------------------------
Gary P. Cooper M. Vance Gorman
President and Chief Executive Chairman of the Board
Officer
Date: March 2, 1999 Date: March 2, 1999
II-5
<PAGE>
/s/ Royce L. Hudgins /s/ Paul D. Williams
- ------------------------------- -------------------------------
Royce L. Hudgins Paul D. Williams
Director Director
Date: March 2, 1999 Date: March 2, 1999
/s/ Tedd R. Austin /s/ Donald G. Bethard
- ------------------------------- -------------------------------
Tedd R. Austin Donald G. Bethard
Director Director
Date: March 2, 1999 Date: March 2, 1999
/s/ Steven W. Sansom
- -------------------------------
Steven W. Sansom
Director
Date: March 2, 1999
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<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
EXHIBITS
TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
GILMER FINANCIAL SERVICES, INC.
<PAGE>
EXHIBIT INDEX
Reference to Prior Filing
or Page Number in
Sequentially
Exhibit Numbered Registration
Number Statement
- --------------------------------------------------------------------------------
4 Instruments Defining the Rights of Security Holders,
Including Indentures:
Certificate of Incorporation of Gilmer Financial *
Services, Inc.
Bylaws of Gilmer Financial Services, Inc. *
Form of Stock Certificate of Gilmer Financial *
Services, Inc.
Gilmer Financial Services, Inc. Exhibit 4.1
1995 Recognition and Retention Plan
Gilmer Financial Services, Inc. Exhibit 4.2
1995 Recognition and Retention Plan
Restricted Stock Agreement
5 Opinion of Silver, Freedman & Taff, L.L.P. Exhibit 5
23.1 Consent of Henry & Peters, P.C. Exhibit 23.1
23.2 Consent of Silver, Freedman & Taff, L.L.P. Exhibit 23.2
24 Power of Attorney Contained on signature
page.
- ----------------------
* Filed as an exhibit to the Registrant's Registration Statement on Form S-1
(File No. 33-84334) filed on September 23, 1994 and all amendments thereto or
reports filed for the purpose of updating such description. All such previously
filed documents are hereby incorporated herein by reference in accordance with
Item 601 of Regulation S-B.
EXHIBIT 4.1
GILMER FINANCIAL SERVICES, INC.
RECOGNITION AND RETENTION PLAN
1. Plan Purpose. The purpose of the Plan is to promote the long-term
interests of the Corporation and its stockholders by providing a means for
attracting and retaining executive officers and directors of the Corporation and
its Affiliates.
2. Definitions. The following definitions are applicable to the Plan:
"Award" - means the grant of Restricted Stock by the Committee, as provided
in the Plan.
"Affiliate" - means any "parent corporation" or "subsidiary corporation" of
the Corporation, as such terms are defined in Section 424(e) and (f),
respectively, of the Code.
"Bank" - means Gilmer Savings Bank FSB, a savings institution and its
predecessors and successors.
"Code" - means the Internal Revenue Code of 1986, as amended.
"Committee" - means the Committee referred to in Section 7 hereof.
"Continuous Service" - means the absence of any interruption or termination
of service as a director, advisory director, executive officer or employee of
the Corporation or any Affiliate. Service shall not be considered interrupted in
the case of sick leave, military leave or any other leave of absence approved by
the Corporation or any Affiliate or in the case of transfers between payroll
locations of the Corporation or between the Corporation, its subsidiaries or its
successor.
"Corporation" - means Gilmer Financial Services, Inc., a Delaware
corporation.
"ERISA" - means the Employee Retirement Income Security Act of 1974, as
amended.
"Non-Employee Director" - means a director who (i) is not currently an
Employee; (ii) does not receive compensation from the Corporation or any
Affiliate in any capacity other than as a director (except for an amount that
does not exceed the dollar amount for which disclosure would be required
pursuant to Item 404(a) of Regulation S-K; and (iii) does not possess an
interest in any other transactions and is not engaged in a business relationship
for which disclosure would be required pursuant to Items 404(a) or (b) of
Regulation S-K.
"Participant" - means any director, advisory director, executive officer or
employee of the Corporation or any Affiliate who is selected by the Committee to
receive an Award.
"Plan" - means the Recognition and Retention Plan of the Corporation.
1
<PAGE>
"Restricted Period" - means the period of time selected by the Committee
for the purpose of determining when restrictions are in effect under Section 3
hereof with respect to Restricted Stock awarded under the Plan.
"Restricted Stock" - means Shares which have been contingently awarded to a
Participant by the Committee subject to the restrictions referred to in Section
3 hereof, so long as such restrictions are in effect.
"Shares" - means the common stock, par value $0.01 per share, of the
Corporation.
3. Terms and Conditions of Restricted Stock. The Committee shall have full
and complete authority, subject to the limitations of the Plan and OTS
regulations, to grant awards of Restricted Stock and, in addition to the terms
and conditions contained in paragraphs (a) through (f) of this Section 3, to
provide such other terms and conditions (which need not be identical among
Participants) in respect of such Awards, and the vesting thereof, as the
Committee shall determine.
(a) At the time of an award of Restricted Stock, the Committee shall
establish for each Participant a Restricted Period, during which or at the
expiration of which, as the Committee shall determine and provide in the
agreement referred to in paragraph (d) of this Section 3, the Shares awarded as
Restricted Stock shall vest, and subject to any such other terms and conditions
as the Committee shall provide, shares of Restricted Stock may not be sold,
voted, assigned, transferred, pledged or otherwise encumbered by the
Participant, except as hereinafter provided, during the Restricted Period.
Except for such restrictions, and subject to paragraphs (c) and (e) of this
Section 3 and Section 4 hereof, the Participant as owner of such shares shall
have all the rights of a stockholder.
No director who is not an employee of the Corporation shall be
granted Awards with respect to more than 5% of the total shares subject to the
Plan. All non-employee directors of the Corporation, in the aggregate, may not
be granted Awards with respect to more than 30% of the total shares subject to
the Plan and no individual shall be granted Awards with respect to more than 25%
of the total shares subject to the Plan. No Awards shall begin vesting earlier
than one year from the date the Plan is ratified by stockholders of the
Corporation and no Awards shall vest at a rate in excess of 20% per year
beginning from the date of grant. In the event Office of Thrift Supervision
Regulations are amended (the "Amended Regulations") to permit shorter vesting
periods, any Award made pursuant to this Plan, which Award is subject to the
requirements of such Amended Regulations, may vest, at the sole discretion of
the Committee, in accordance with such Amended Regulations.
Subject to compliance with Office of Thrift Supervision Regulations,
the Committee shall have the authority, in its discretion, to accelerate the
time at which any or all of the restrictions shall lapse with respect thereto,
or to remove any or all of such restrictions, whenever it may determine that
such action is appropriate by reason of changes in applicable tax or other laws
or other changes in circumstances occurring after the commencement of such
Restricted Period.
2
<PAGE>
(b) If a Participant ceases to maintain Continuous Service for any
reason (other than death or total or partial disability), unless the Committee
shall otherwise determine, all Shares of Restricted Stock theretofore awarded to
such Participant and which at the time of such termination of Continuous Service
are subject to the restrictions imposed by paragraph (a) of this Section 3 shall
upon such termination of Continuous Service be forfeited and returned to the
Corporation. If a Participant ceases to maintain Continuous Service by reason of
death or total or partial disability, Restricted Stock then still subject to
restrictions imposed by paragraph (a) of this Section 3 will be free of those
restrictions.
(c) Each certificate in respect of Shares of Restricted Stock
awarded under the Plan shall be registered in the name of the Participant and
deposited by the Participant, together with a stock power endorsed in blank,
with the Corporation and shall bear the following (or a similar) legend:
"The transferability of this certificate and the shares of stock
represented hereby are subject to the terms and conditions (including
forfeiture) contained in the Recognition and Retention Plan of Gilmer
Financial Services, Inc. Copies of such Plan are on file in the offices of
the Secretary of Gilmer Financial Services, Inc., 218 West Cass Street,
Gilmer, Texas, 75644."
(d) At the time of any Award, the Participant shall enter into an
Agreement with the Corporation in a form specified by the Committee, agreeing to
the terms and conditions of the Award and such other matters as the Committee,
in its sole discretion, shall determine (the "Restricted Stock Agreement").
(e) At the time of an award of shares of Restricted Stock, the
Committee shall determine that the payment to the Participant of dividends
declared or paid on such shares by the Corporation shall be deferred until the
lapsing of the restrictions imposed under paragraph (a) of this Section 3, and
shall be held by the Corporation for the account of the Participant until such
time. There shall be credited at the end of each year (or portion thereof)
interest on the amount of the account at the beginning of the year at a market
rate per annum as the Committee, in its discretion, may determine. Payment of
deferred dividends, together with interest accrued thereon, shall be made upon
the earlier to occur of the lapsing of the restrictions imposed under paragraph
(a) of this Section 3 or upon death or disability of the Participant.
(f) At the expiration of the restrictions imposed by paragraph (a)
of this Section 3, the Corporation shall redeliver to the Participant (or where
the relevant provision of paragraph (b) of this Section 3 applies in the case of
a deceased Participant, to his legal representative, beneficiary or heir) the
certificate(s) and stock power deposited with it pursuant to paragraph (c) of
this Section 3 and the Shares represented by such certificate(s) shall be free
of the restrictions referred to in paragraph (a) of this Section 3.
4. Adjustments Upon Changes in Capitalization. In the event of any change
in the outstanding Shares subsequent to the effective date of the Plan by reason
of any reorganization, recapitalization, stock split, stock dividend,
combination or exchange of shares, merger,
3
<PAGE>
consolidation or any change in the corporate structure or Shares of the
Corporation, the maximum aggregate number and class of shares as to which Awards
may be granted under the Plan and the number and class of shares with respect to
which Awards have been granted under the Plan shall be appropriately adjusted by
the Committee, whose determination shall be conclusive. Any shares of stock or
other securities received, as a result of any of the foregoing, by a Participant
with respect to Restricted Stock shall be subject to the same restrictions and
the certificate(s) or other instruments representing or evidencing such shares
or securities shall be legended and deposited with the Corporation in the manner
provided in Section 3 hereof.
5. Assignments and Transfers. No Award nor any right or interest of a
Participant under the Plan in any instrument evidencing any Award under the Plan
may be assigned, encumbered or transferred except, in the event of the death of
a Participant, by will or the laws of descent and distribution or pursuant to a
qualified domestic relations order as defined in the Code or Title I of ERISA or
the rules thereunder.
6. Administration. The Plan shall be administered by a Committee
consisting of two or more members, each of whom shall be (i) a Non-Employee
Director and (ii) an "outside director" as set forth in Section 162(m) of the
Code and defined in the regulations promulgated thereunder. The members of the
Committee shall be appointed by the Board of Directors of the Corporation.
Except as limited by the express provisions of the Plan, the Committee shall
have sole and complete authority and discretion to (i) select Participants and
grant Awards; (ii) determine the number of shares to be subject to types of
Awards generally, as well as to individual Awards granted under the Plan; (iii)
determine the terms and conditions upon which Awards shall be granted under the
Plan; (iv) prescribe the form and terms of instruments evidencing such grants;
and (v) establish from time to time regulations for the administration of the
Plan, interpret the Plan, and make all determinations deemed necessary or
advisable for the administration of the Plan.
A majority of the Committee shall constitute a quorum, and the acts of a
majority of the members present at any meeting at which a quorum is present, or
acts approved in writing by a majority of the Committee without a meeting, shall
be acts of the Committee.
7. Shares Subject to Plan. Subject to adjustment by the operation of
Section 4 hereof, the maximum number of Shares with respect to which Awards may
be made under the Plan is 4% of the total Shares issued in the Bank's conversion
to stock form. The shares with respect to which Awards may be made under the
Plan may be either authorized and unissued shares or issued shares reacquired
and held as treasury shares. An Award shall not be considered to have been made
under the Plan with respect to Restricted Stock which is forfeited and new
Awards may be granted under the Plan with respect to the number of Shares as to
which such forfeiture has occurred.
8. Employee Rights Under the Plan. No director, officer or employee shall
have a right to be selected as a Participant nor, having been so selected, to be
selected again as a Partici pant and no director, officer, employee or other
person shall have any claim or right to be granted an Award under the Plan or
under any other incentive or similar plan of the Corporation or any
4
<PAGE>
Affiliate. Neither the Plan nor any action taken thereunder shall be construed
as giving any employee any right to be retained in the employ of the
Corporation, the Bank or any Affiliate.
9. Withholding Tax. Upon the termination of the Restricted Period with
respect to any shares of Restricted Stock (or at any such earlier time, if any,
that an election is made by the Participant under Section 83(b) of the Code, or
any successor provision thereto, to include the value of such shares in taxable
income), the Corporation shall have the right to withhold from any payment or
distribution made under this Plan sufficient Shares or withhold sufficient cash
to cover any applicable withholding and employment taxes. The Corporation shall
have the right to deduct from all dividends paid with respect to shares of
Restricted Stock the amount of any taxes which the Corporation is required to
withhold with respect to such dividend payments. No discretion or choice shall
be conferred upon any Participant with respect to the form, timing or method of
any such tax withholding.
10. Amendment or Termination. The Board of Directors of the Corporation
may amend, suspend or terminate the Plan or any portion thereof at any time;
provided, however, that no such amendment, suspension or termination shall
impair the rights of any Participant, without his consent, in any Award
previously made pursuant to the Plan.
11. Term of Plan. The Plan shall become effective upon its approval by the
stockholders of the Corporation. It shall continue in effect for a term of ten
years unless sooner terminated under Section 10 hereof.
12. Initial Grants. By, and simultaneously with, the approval of this Plan
by the stockholders of the Corporation, each member of the Board of Directors of
the Corporation at the time of the Bank's conversion to stock form who is not a
full-time Employee, is hereby granted an Award equal to 0.2% of the shares
issued in the mutual to stock conversion of the Bank. Each such Award shall be
evidenced by a Restricted Stock Agreement in a form approved by the Board of
Directors and shall be subject in all respects to the terms and conditions of
this Plan, which are controlling. All Awards of Restricted Stock granted
pursuant to this Section 12 shall be rounded down to the nearest whole share to
the extent necessary to ensure that no shares of Restricted Stock representing
fractional shares are issued. Except as provided in this paragraph 12, each of
the Awards granted hereunder shall vest in five equal installments, with the
first installment vesting on the one-year anniversary of the date of stockholder
approval of the Plan and each additional installment vesting ratably over the
next four twelve-month periods. Awards which are not vested shall be subject to
such Director maintaining Continuous Service with the Bank; provided, however,
no Plan Shares shall be earned in any fiscal year in which the Bank fails to
meet all of its fully phased-in capital requirements.
5
<PAGE>
EXHIBIT 4.2
GILMER FINANCIAL SERVICES, INC.
RECOGNITION AND RETENTION PLAN
RESTRICTED STOCK AGREEMENT
RS No. ________
Shares of Restricted Stock are hereby awarded on October 12, 1995 by
Gilmer Financial Services, Inc. (the "Corporation"), to _____________________
(the "Grantee"), in accordance with the following terms and conditions, and the
conditions contained in the Gilmer Financial Services, Inc. Recognition and
Retention Plan (the "Plan"):
1. Share Award. The Corporation hereby awards the Grantee ________ shares
(the "Shares") of Common Stock, par value $.01 per share ("Common Stock"), of
the Corporation pursuant to the Plan, as the same may from time to time be
amended, and upon the terms and conditions and subject to the restrictions
therein and hereinafter set forth. A copy of the Plan as currently in effect is
incorporated herein by reference and is attached hereto.
2. Restrictions on Transfer and Restricted Period. During the period (the
"Restricted Period") commencing on October 12, 1995 (the "Commencement Date")
and terminating on October 12, 2000, the Shares may not be sold, assigned,
transferred, pledged, or otherwise encumbered by the Grantee, except as
hereinafter provided.
The Shares will vest at a rate of 20% of the initial award per year of
Continuous Service (as defined in the Plan) commencing on October 12, 1996
pursuant to the following schedule:
Amount
of Initial
Date of Vesting Award Vested
October 12, 1996 20%
October 12, 1997 20%
October 12, 1998 20%
October 12, 1999 20%
October 12, 2000 20%
Subject to compliance with the Office of Thrift Supervision Regulations,
the Committee referred to in Section 6 of the Plan or its successor (the
"Committee") shall have the authority, in its discretion, to accelerate the time
at which any or all of the restrictions shall lapse with respect to any Shares
thereto, or to remove any or all of such restrictions, whenever the Committee
may determine that such action is appropriate by reason of changes in applicable
tax or other laws, or other changes in circumstances occurring after the
commencement of the Restricted Period.
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3. Termination of Service. Except as provided in Section 8 below, if the
Grantee ceases to maintain "Continuous Service" (as defined in the Plan as in
effect on the date of the award of the Shares) for any reason (other than death,
or total or partial disability), all shares which at the time of such
termination of Continuous Service are subject to the restrictions imposed by
Section 2 above shall upon such termination of Continuous Service be forfeited
to the Corporation. If the Grantee ceases to maintain "Continuous Service" (as
defined in the Plan as in effect on the date of the award of shares) by reason
of death, or total or partial disability, the Shares then still subject to
restrictions imposed by Section 2 will be free of those restrictions.
4. Certificates for the Shares. The Corporation shall issue five
certificates in the name of the Grantee, each in respect of 20% of the Shares,
and shall hold such certificates on deposit for the account of the Grantee until
the expiration of the Restricted Period with respect to the Shares represented
thereby. Such certificates shall bear the following legend:
"The transferability of this certificate and the shares of stock
represented hereby are subject to the terms and conditions (including
forfeiture) contained in the Recognition and Retention Plan of Gilmer
Financial Services, Inc. Copies of such Plan are on file in the offices of
the Secretary of Gilmer Financial Services, Inc., 218 West Cass Street,
Gilmer, Texas 75644.
The Grantee further agrees that simultaneously with the execution of this
Agreement, the Grantee shall execute five stock powers in favor of the
Corporation with respect to the Shares and that the Grantee shall promptly
deliver such stock powers to the Corporation.
5. Grantee's Rights. Except as otherwise provided herein, the Grantee, as
owner of the Shares, shall have all rights of a stockholder. During the
Restricted Period, the Grantee shall not himself vote such Shares as to which
the Restricted Period has not yet lapsed or expired (the "Restricted Shares").
The Grantee hereby appoints a trust officer of First Bankers Trust Company,
N.A., Quincy, Illinois to vote all Restricted Shares, in his or her sole
discretion, at any annual and special meetings of the stockholders of the
Corporation and at any continuations and adjournments of such meetings, upon any
matters coming before such meetings or adjournments. The Grantee agrees that he
shall from time to time appoint such other person or persons to vote the
Restricted Shares as the Committee in its sole discretion may designate. The
Grantee further agrees that with respect to Restricted Shares, he shall grant no
proxy to vote such shares except pursuant to this Section 5 of this Agreement,
nor shall he revoke any proxy granted pursuant to this Section 5 except with the
consent of the Committee.
Dividends, if any, paid on the Restricted Shares shall be held by the
Corporation for the account of the Grantee. All such withheld dividends shall
earn interest at an annual rate determined by the Committee.
6. Expiration of Restricted Period. Upon the lapse or expiration of the
Restricted Period with respect to a portion of the Shares, the Corporation shall
deliver to the Grantee (or in the case of a deceased Grantee, to his legal
representative) the certificate in respect of such shares and the related stock
power held by the Corporation pursuant to Section 4 above. The Shares as to
which
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<PAGE>
the Restricted Period shall have lapsed or expired shall be free of the
restrictions referred to in Section 2 above and such certificate shall not bear
the legend provided for in Section 4 above.
7. Adjustments for Changes in Capitalization of the Corporation. In the
event of any change in the outstanding shares of Common Stock by reason of any
reorganization, recapitalization, stock split, stock dividend, combination or
exchange of shares, merger, consolidation, or any change in the corporate
structure of the Corporation or in the shares of Common Stock, the number and
class of shares covered by this Agreement shall be appropriately adjusted by the
Committee, whose determination shall be conclusive. Any shares of Common Stock
or other securities received, as a result of the foregoing, by the Grantee with
respect to Shares subject to the restrictions contained in Section 2 above also
shall be subject to such restrictions and the certificate or other instruments
representing or evidencing such shares or securities shall be legended and
deposited with the Corporation in the manner provided in Section 4 above.
8. Delivery and Registration of Shares of Common Stock. The Corporation's
obligation to deliver shares of Common Stock hereunder shall, if the Committee
so requests, be conditioned upon the receipt of a representation as to the
investment intention of the Grantee or any other person to whom such shares are
to be delivered, in such form as the Committee shall determine to be necessary
or advisable to comply with the provisions of the Securities Act of 1933, as
amended, or any other Federal, state or local securities legislation or
regulation. It may be provided that any representation requirement shall become
inoperative upon a registration of such shares or other action eliminating the
necessity of such representation under such Securities Act or other securities
regulation. The Corporation shall not be required to deliver any shares under
the Plan prior to (i) the admission of such shares to listing on any stock
exchange on which the shares of Common Stock may then be listed, and (ii) the
completion of such registration or other qualification of such shares under any
state or federal law, rule or regulation, as the Committee shall determine to be
necessary or advisable.
9. Plan and Plan Interpretations as Controlling. The Shares hereby awarded
and the terms and conditions herein set forth are subject in all respects to the
terms and conditions of the Plan, which are controlling. All determinations and
interpretations of the Committee shall be binding and conclusive upon the
Grantee or his legal representatives with regard to any question arising
hereunder or under the Plan.
10. Grantee Service. Nothing in this Agreement shall limit the right of
the Corporation or any of its Affiliates to terminate the Grantee's service as a
director, officer or employee, or otherwise impose upon the Corporation or any
of its Affiliates any obligation to employ or accept the services of the
Grantee.
11. Withholding and Social Security Taxes. Upon the termination of the
Restricted Period with respect to any Shares (or any such earlier time, if any,
that an election is made under Section 83(b) of the Code, or any successor
provision thereto, to include the value of such Shares in taxable income), the
Corporation shall have the right to withhold from the Grantee's compensation an
amount sufficient to fulfill its or its Affiliate's obligations for any
applicable withholding and employment taxes. Alternatively, the Corporation may
require the Grantee to pay the Corporation
3
<PAGE>
the amount of any taxes which the Corporation is required to withhold with
respect to the Shares, or, in lieu thereof, to retain or sell without notice a
sufficient number of Shares to cover the amount required to be withheld. The
Corporation shall withhold from any cash dividends paid on the Restricted Stock
an amount sufficient to cover taxes owed as a result of the dividend payment.
The Corporation's method of satisfying its withholding obligations shall be
solely in the discretion of the Corporation, subject to applicable federal,
state and local laws.
12. Grantee Acceptance. The Grantee shall signify his acceptance of the
terms and conditions of this Agreement by signing in the space provided below
and signing the attached stock powers and returning a signed copy thereof and of
the attached stock powers to the Corporation. IF A FULLY EXECUTED COPY HEREOF
AND THE ATTACHED STOCK POWERS HAVE NOT BEEN RECEIVED BY THE CORPORATION BY
DECEMBER 31, 1996, THE CORPORATION MAY REVOKE THIS AWARD, AND AVOID ALL
OBLIGATIONS UNDER THIS AGREEMENT.
IN WITNESS WHEREOF, the parties hereto have caused this RESTRICTED STOCK
AGREEMENT to be executed as of the date first above written.
GILMER FINANCIAL SERVICES, INC.
By: ___________________________________
ACCEPTED:
-----------------------------------
---------------------
-----------------------------------
(Street Address)
-----------------------------------
(City, State & Zip Code)
4
<PAGE>
STOCK POWER
For value received, I hereby sell, assign, and transfer to Gilmer
Financial Services, Inc. (the "Corporation") ____ shares of the capital stock of
the Corporation, standing in my name on the books and records of the aforesaid
Corporation, represented by Certificate No. _________, and do hereby irrevocably
constitute and appoint the Secretary of the Corporation attorney, with full
power of substitution, to transfer this stock on the books and records of the
aforesaid Corporation.
-------------------------------
---------------------
Dated:
- ------------------------------
In the presence of:
- ------------------------------
SP-1
<PAGE>
STOCK POWER
For value received, I hereby sell, assign, and transfer to Gilmer
Financial Services, Inc. (the "Corporation") _____ shares of the capital stock
of the Corporation, standing in my name on the books and records of the
aforesaid Corporation, represented by Certificate No. _________, and do hereby
irrevocably constitute and appoint the Secretary of the Corporation attorney,
with full power of substitution, to transfer this stock on the books and records
of the aforesaid Corporation.
-------------------------------
---------------------
Dated:
- ------------------------------
In the presence of:
- ------------------------------
SP-2
<PAGE>
STOCK POWER
For value received, I hereby sell, assign, and transfer to Gilmer
Financial Services, Inc. (the "Corporation") _____ shares of the capital stock
of the Corporation, standing in my name on the books and records of the
aforesaid Corporation, represented by Certificate No. _________, and do hereby
irrevocably constitute and appoint the Secretary of the Corporation attorney,
with full power of substitution, to transfer this stock on the books and records
of the aforesaid Corporation.
-------------------------------
---------------------
Dated:
- ------------------------------
In the presence of:
- ------------------------------
SP-3
<PAGE>
STOCK POWER
For value received, I hereby sell, assign, and transfer to Gilmer
Financial Services, Inc. (the "Corporation") _____ shares of the capital stock
of the Corporation, standing in my name on the books and records of the
aforesaid Corporation, represented by Certificate No. _________, and do hereby
irrevocably constitute and appoint the Secretary of the Corporation attorney,
with full power of substitution, to transfer this stock on the books and records
of the aforesaid Corporation.
-------------------------------
---------------------
Dated:
- ------------------------------
In the presence of:
- ------------------------------
SP-4
<PAGE>
STOCK POWER
For value received, I hereby sell, assign, and transfer to Gilmer
Financial Services, Inc. (the "Corporation") _____ shares of the capital stock
of the Corporation, standing in my name on the books and records of the
aforesaid Corporation, represented by Certificate No. _________, and do hereby
irrevocably constitute and appoint the Secretary of the Corporation attorney,
with full power of substitution, to transfer this stock on the books and records
of the aforesaid Corporation.
-------------------------------
---------------------
Dated:
- ------------------------------
In the presence of:
- ------------------------------
SP-5
EXHIBIT 5
[LETTERHEAD OF SILVER, FREEDMAN & TAFF, L.L.P.]
March 2, 1999
Board of Directors
Gilmer Financial Services, Inc.
18 West Cass Street
Gilmer, Texas 75644
Members of the Board:
We have acted as counsel to Gilmer Financial Services, Inc. (the
"Corporation") in connection with the preparation and filing with the Securities
and Exchange Commission of a registration statement on Form S-8 under the
Securities Act of 1933 (the "Registration Statement") relating to 5,503 shares
of the Corporation's Common Stock, par value $0.01 per share (the "Common
Stock"), to be offered pursuant to Gilmer Financial Services, Inc. 1995
Recognition and Retention Plan (the "Plan")
In this connection, we have reviewed originals or copies, certified or
otherwise identified to our satisfaction, of the Corporation's Certificate of
Incorporation, Bylaws, resolutions of its Board of Directors and such other
documents and corporate records as we deem appropriate for the purpose of
rendering this opinion.
Based upon the foregoing, it is our opinion that the Common Stock and
interests in the Plan covered by the Registration Statement will, when issued by
the Plan, be legally issued, fully paid and non-assessable.
Very truly yours,
/s/ Silver, Freedman & Taff, L.L.P.
------------------------------------
SILVER, FREEDMAN & TAFF, L.L.P.
EXHIBIT 23.1
[LETTERHEAD OF HENRY & PETERS, P.C.]
Board of Directors
Gilmer Financial Services, Inc.
18 West Cass Street
Gilmer, Texas 75644
Members of the Board:
We consent to the incorporation by reference in this Registration
Statement on Form S-8, pertaining to Gilmer Financial Services, Inc.'s 1995
Recognition and Retention Plan, of our report dated September 18, 1998, on our
audits of the consolidated financial statements of Gilmer Financial Services,
Inc. for the year ended June 30, 1998 which report is incorporated by reference
in the Annual Report on Form 10-KSB.
/s/ Henry & Peters, P.C.
---------------------------
HENRY & PETERS, P.C.
Tyler, Texas
March 2, 1999
<PAGE>
EXHIBIT 23.2
[LETTERHEAD OF SILVER, FREEDMAN & TAFF, L.L.P.]
March 2, 1999
Board of Directors
Gilmer Financial Services, Inc.
18 West Cass Street
Gilmer, Texas 75644
Gentlemen:
We hereby consent to the inclusion of our opinion as Exhibit 5 of this
Registration Statement on Form S-8. In giving this consent, we do not admit that
we are within the category of persons whose consent is required under Section 7
of the Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission thereunder.
Very truly yours,
/s/ Silver, Freedman & Taff, L.L.P.
------------------------------------
SILVER, FREEDMAN & TAFF, L.L.P.
