AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 20 , 1999
REGISTRATION NO. 33-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
GULF WEST BANKS, INC.
------------------------------------------------------
(Exact Name of Registrant as Specified in Its Charter)
FLORIDA 59-3276590
- -------------------------------- ----------------------
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification Number)
425 22ND AVE. N.
ST. PETERSBURG, FL 33704-4345
(727) 894-5696
(Address, including zip code, and telephone number,
including area code, of Registrant's Principal Executive Offices)
EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
BARRY K. MILLER
SECRETARY
425 22ND AVE. N
ST. PETERSBURG, FL 33704-4345
(727) 894-5696
(Name, address, including zip code, and telephone number,
including area code, of Agent for Service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED
PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO BE MAXIMUM OFFERING AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED(1) PRICE PER SHARE PRICE REGISTRATION FEE
---------------- ------------- --------------- ----- ----------------
<S> <C> <C> <C> <C>
Common Stock
($1.00 par value) 100,000 shares (2) $ 893,750 $248.46
======================= ======================= ====================== ======================= ===================
</TABLE>
(1) Pursuant to Rule 416(a), this registration statement also registers
such indeterminate number of additional shares as may become issuable under the
Plan in connection with share splits, share dividends, and similar transactions.
(2) In accordance with Rule 457(h), and solely for the purpose of
calculating the registration fee, computed with respect to 100,000 shares at an
aggregate offering price of $ 893,750 ($8.9375 per share, which is the average
of the high and low prices of such shares on July 14, 1999 as quoted on the
Nasdaq National Market System).
Page 1 of 17
Exhibit Index on Page 8
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents, which are on file with the Securities and
Exchange Commission, are incorporated in the Section 10(a) prospectus under the
Securities Act by reference as of their respective dates:
a. The Company's Annual Report on Form 10-K for the year ended
December 31, 1998 which contains the Company's audited financial
statements for the Company's latest fiscal year for which such
statements have been filed.
b. The Company's Quarterly Report on Form 10-Q for the period ended
March 31, 1999.
c. The description of the Company's Common Stock contained under the
caption "DESCRIPTION OF CAPITAL STOCK OF GULFWEST -- COMMON
STOCK" in the Company's Registration Statement on Form S-4 under
the Securities Act of 1933 (Reg. No. 333-37307), as amended.
d. All other reports filed by the Company pursuant to Section 13(a)
or 15(d) of the Exchange Act since the end of the period covered
by the Annual Report on Form 10-K of the Company referred to in
(a) above.
In addition, all documents filed by the Company pursuant to Sections
13(a), 13(c), 14, or 15(d) of the Exchange Act subsequent to the date hereof and
prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference in the registration
statement and to be a part thereof from the date of filing such documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL
Not applicable.
Page 2 of 17
<PAGE>
ITEM 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS
Under Section 607.0850 of the Florida Business Corporation Act and
Article XII of Gulf West's Articles of Incorporation, Gulf West's directors,
officers, employees and agents may be indemnified against certain liabilities
which they may incur in their capacity as such, including indemnification for
liabilities arising under the Securities Act. Such indemnification is generally
available if the person acted in good faith and in a manner he or she reasonably
believed to be in, or not opposed to, the best interests of Gulf West, and with
respect to any criminal proceeding, had no reasonable cause to believe his or
her conduct was unlawful. Indemnification may also be available unless a court
of competent jurisdiction establishes by judgement or other final adjudication
that the actions or omissions of the executive were material to the cause of
action so adjudicated and constituted: (a) a violation of the criminal law
unless the executive had reasonable cause to believe his or her conduct was
lawful or had no reasonable cause to believe his or her conduct was unlawful;
(b) a transaction from which the executive derived an improper personal benefit;
or (c) willful misconduct or conscious disregard for the best interest of Gulf
West in a proceeding by or in the right of Gulf West to procure a judgment in
its favor or in a proceeding by or in the rights of a stockholder. In addition,
Gulf West has entered into a Registration Rights Agreement with Gordon W.
Campbell and John Wm. Galbraith (the "Registration Rights Agreement") pursuant
to which Gulf West will at its expense register or qualify all, or at the option
of Messrs. Campbell or Galbraith, any portion of the Gulf West stock owned by
them concurrently with the registration of Gulf West securities on a
registration statement filed by Gulf West with the Securities and Exchange
Commission, (the "Commission") as to any of its securities. The Registration
Rights Agreement includes provisions under which the individual parties thereto
could be indemnified against violations of the Securities Act.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and persons controlling Gulf West
pursuant to the foregoing provisions, or otherwise, Gulf West has been advised
that in the opinion of the Commission such indemnification is against public
policy, as expressed in the Securities Act, and is therefore unenforceable. In
the event that a claim for indemnification against such liabilities (other than
the payment by registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
The Exhibit Index immediately preceding the exhibits is incorporated
herein by reference.
Page 3 of 17
<PAGE>
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:
(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 the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in the registration statement.
Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the
total dollar value of securities offered would not
exceed that which was registered) and any deviation
from the low or high end of the estimated maximum
offering range may be reflected in the form of
prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than 20 percent
change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table
in the effective 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 subparagraphs (a)(1)(I) and (a)(1)(ii) do not
apply if the registration statement is on Form S-3, Form S-8 or Form
F-3, and the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed
with or furnished to the Commission by the registrant pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at 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.
Page 4 of 17
<PAGE>
(4) If the registrant is a foreign private issuer, to file a
post-effective amendment to the registration statement to include any
financial statements required by Rule 3-19 of this chapter at the start
of any delayed offering or throughout a continuous offering. Financial
statements and information otherwise required by Section 10(a)(3) of
the Act need not be furnished, PROVIDED, that the registrant includes
in the prospectus, by means of a post-effective amendment, financial
statements required pursuant to this paragraph (a)(4) and other
information necessary to ensure that all other information in the
prospectus is at least as current as the date of those financial
statements. Notwithstanding the foregoing, with respect to registration
statements on Form F-3, a post-effective amendment need not be filed to
include financial statements and information required by Section
10(a)(3) of the Act or Rule 3-19 of this chapter if such financial
statements and information are contained in periodic reports filed with
or furnished to the Commission by the registrant pursuant to section 13
or section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the Form F-3.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing
of the registrant's annual report pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934 (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to Section 15(d)
of the Securities Exchange Act of 1934) that is incorporated by
reference in the registration statement shall be deemed to be a new
registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial BONA FIDE offering thereof.
(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.
Page 5 of 17
<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
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 St. Petersburg, State of Florida this 15th day of
July, 1999.
Gulf West Banks, Inc.
By: /s/ GORDON W. CAMPBELL
--------------------------------------
Gordon W. Campbell, President,
Chairman of the Board
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ GORDON W. CAMPBELL President, Chairman of the
- ---------------------------- Board (Principal Executive July 15, 1999
Gordon W. Campbell Officer)
Secretary, Treasurer
/s/ BARRY K. MILLER (Principal Financial Officer July 15, 1999
- ---------------------------- and Principal Accounting
Barry K. Miller Officer)
/s/ HENRY W. HANFF, M.D.
- ---------------------------- Director July 15, 1999
Henry W. Hanff, M.D.
/s/ THOMAS M. HARRIS
- ---------------------------- Director July 15, 1999
Thomas M. Harris
Page 6 of 17
<PAGE>
- ---------------------------- Director July __, 1999
Algis Koncius
/s/ LOUIS P. ORTIZ
- ---------------------------- Director July 15, 1999
Louis P. Ortiz
/s/ PANDURANG V. KAMAT, M.D.
- ---------------------------- Director July 15, 1999
Pandurang V. Kamat, M.D.
/s/ JOHN C. PETAGNA, JR.
- ---------------------------- Director July 15, 1999
John C. Petagna, Jr.
- ---------------------------- Director July __, 1999
P.N. Risser, III
s/ ROSS E. ROEDER
- ---------------------------- Director July 15, 1999
Ross E. Roeder
Page 7 of 17
<PAGE>
EXHIBIT INDEX
EXHIBIT SEQUENTIAL PAGE
NUMBER DESCRIPTION NUMBER
- -------- ----------- ----------------
4.1 Employee Stock Purchase Plan of Gulf West 9
Banks, Inc., effective January 1, 1999.
5.1 Opinion of Fowler, White, Gillen, Boggs, 16
Villareal and Boggs, P.A., as to the legality
of the shares being registered.
23.1 Consent of Hacker, Johnson, Cohen & Grieb, P.A. 17
23.2 Consent of Fowler, White, Gillen, Boggs, Villareal
and Boggs, P.A., is contained in its Opinion
filed as Exhibit 5.1 N/A
Page 8 of 17
Exhibit 4.1
GULF WEST BANKS, INC.
EMPLOYEE STOCK PURCHASE PLAN
1. PURPOSE
The Gulf West Banks, Inc. Employee Stock Purchase Plan is intended to
provide a method whereby employees of Gulf West Banks, Inc. and its Subsidiary
Corporations (hereinafter referred to, unless the context otherwise requires, as
the "Company") will have an opportunity to acquire a proprietary interest in the
Company through the purchase of shares of the Common Stock of the Company.
"Subsidiary Corporation" shall mean any present or future corporation which (a)
would be a "subsidiary corporation" of Gulf West Banks, Inc. as that term is
defined in Section 424 of the Code and (b) is designated as a participant in the
Plan by the Committee. "Committee" shall mean the individuals described in
Section 9. It is the intention of the Company to have the Plan qualify as an
"employee stock purchase plan" under Section 423 of the Internal Revenue Code of
1986, as amended (the "Code").
2. ELIGIBILITY AND PARTICIPATION
2.01. Initial Eligibility. Any employee who is customarily employed on
a fulltime or parttime basis by the Company and is regularly scheduled to work
more than 20 hours per week, and who shall have completed six months of
employment, shall be eligible to participate in offerings under the Plan which
commence on or after such six month period has concluded.
2.02. Leave of Absence. For purposes of participation in the Plan, a
person on leave of absence shall be deemed to be an employee for the first 90
days of such leave of absence and such employee's employment shall be deemed to
have terminated at the close of business on the 90th day of such leave of
absence unless such employee shall have returned to regular fulltime or parttime
employment (as the case may be) prior to the close of business on such 90th day.
Termination by the Company of any employee's leave of absence, other than
termination of such leave of absence on return to full-time or part-time
employment, shall terminate an employee's employment for all purposes of the
Plan and shall terminate such employee's participation in the Plan and right to
exercise any option.
2.03. Restrictions on Participation. Notwithstanding any provisions of
the Plan to the contrary, no employee shall be granted an option to participate
in the Plan:
(a) if, immediately after the grant, such employee would own stock,
and/or hold outstanding options to purchase stock, possessing 5% or
more of the total combined voting power or value of all classes of
stock of the Company (for purposes of this paragraph, the rules of
Section 424(d) of the Code shall apply in determining stock ownership
of any employee); or
(b) which permits the employee rights to purchase stock under all
employee stock purchase plans of the Company to accrue at a rate which
exceeds $25,000 in fair market value of the stock (determined at the
time such option is granted) for each calendar year in which such
option is outstanding.
Page 9 of 17
<PAGE>
If an option is granted to an individual whose stock ownership exceeds
the limitation of the above Section 2.03(a), no portion of such option will be
treated as having been granted under a Code Section 423 employee stock purchase
plan.
2.04. Commencement of Participation. An eligible employee may become a
participant by completing an authorization for a payroll deduction on the form
provided by the Company and filing it with the Payroll Department of the Company
on or before the date set therefore by the Committee, which date shall be prior
to the Offering Commencement Date for the Offering (as such terms are defined
below). Payroll deductions shall commence on the applicable Offering
Commencement Date when the participant's authorization for a payroll deduction
becomes effective and shall end on the Offering Termination Date to which such
authorization is applicable unless sooner terminated as provided in Section 7.
3. OFFERING DATES
3.01. Annual Offerings. The Plan will be implemented by annual
offerings of the Company's Common Stock (the "Offerings") beginning on the 1st
day of January in each year (the "Offering Commencement Date"), and terminating
on the following December 31 (the "Offering Termination Date"). The Committee
shall determine the number of shares available for purchase during each
Offering, taking into account the aggregate number of shares available for
purchase under this Plan as set forth in Section 8.01, and the number of shares
previously sold and remaining to be sold under this Plan.
4. PAYROLL DEDUCTIONS
4.01. Amount of Deduction. At the time a participant files an
authorization for payroll deduction, the participant shall elect to have
deductions made from his or her pay on each payday during the time he or she is
a participant in an Offering at the rate of 1% to 15%, in whole percentages, of
the participant's Base Pay in effect at the Offering Commencement Date. "Base
Pay" shall mean regular straighttime earnings excluding payments for overtime,
shift premium, bonuses and other special payments and other marketing incentive
payments. In the case of a parttime hourly employee, such employee's Base Pay
during an Offering shall be determined by multiplying such employee's hourly
rate of pay in effect on the Offering Commencement Date by the number of
regularly scheduled hours of work for such employee during such Offering.
4.02. Participant's Account. All payroll deductions made for a
participant shall be credited to the participant's account under the Plan. A
participant may not make any separate cash payment into such account except as
provided in Sections 4.03 and 4.05.
4.03. Cash Payment. A participant may elect to make a single cash
payment to his or her account in lieu of payroll deductions by completing a
payment election form provided by the Company, and submitting the form along
with the participant's payment to the Payroll Department on or before the date
set therefore by the Committee, which date shall be prior to the Offering
Commencement Date. The payment shall be an amount, as elected by the
participant, equal to a whole percentage, from 1% to 15%, of the participant's
Base Pay in effect at the date of the participant's election. A participant who
elects to make a single payment for an Offering pursuant to this Section may not
also elect payroll deductions during such Offering.
4.04. Changes in Payroll Deductions. A participant may discontinue
participation in the Plan as provided in Section 7, but no other change can be
made during an Offering and, specifically, a participant
Page 10 of 17
<PAGE>
may not alter the amount of his or her payroll deductions for that Offering.
4.05. Leave of Absence. If a participant goes on a leave of absence,
such participant shall have the right to elect: (a) to withdraw the balance in
his or her account pursuant to Section 6.02, (b) to discontinue contributions to
the Plan but remain a participant in the Plan, or (c) to remain a participant in
the Plan during such leave of absence, authorizing deductions to be made from
payments by the Company to the participant during such leave of absence and
undertaking to make cash payments to the Plan at the end of each payroll period
to the extent that amounts payable by the Company to such participant are
insufficient to meet such participant's authorized Plan deductions.
5. GRANTING OF OPTION
5.01. Number of Option Shares. On the Commencement Date of each
Offering, a participating employee shall be deemed to have been granted an
option to purchase as many shares of stock as the participant will be able to
purchase with the payroll deductions credited to the participant's account
during participation in the Offering; provided, however, that such number of
shares shall not exceed 1,000 shares in any single Offering.
5.02. Option Price. The option price of stock purchased with payroll
deductions made during such annual offering for a participant therein shall be
the lower of:
(a) 85% of the closing price of the stock on the Offering Commencement
Date or the nearest prior business day on which trading occurred on the
NASDAQ National Market System; or
(b) 85% of the closing price of the stock on the Offering Termination
Date or the nearest prior business day on which trading occurred on the
NASDAQ National Market System.
If the Common Stock of the Company is not admitted to trading on any of
the aforesaid dates for which closing prices of the stock are to be determined,
then reference shall be made to the fair market value of the stock on that date,
as determined on such basis as shall be established or specified for this
purpose by the Committee.
6. EXERCISE OF OPTION
6.01. Automatic Exercise. Unless a participant gives written notice to
the Company as hereinafter provided, the participant's option for the purpose of
stock with payroll deductions made during any Offering will be deemed to have
been exercised automatically on the Offering Termination Date. Except as
provided in Section 8.02, the participant's option will be exercised for the
purchase of the number of full shares of stock which the accumulated payroll
deductions in his or her account at that time will purchase at the applicable
option price, and any excess in his or her account at that time will be returned
to the participant, without interest.
6.02. Withdrawal of Account. By written notice to the Company, at any
time prior to the Offering Termination Date applicable to any Offering, a
participant may elect to withdraw all the accumulated payroll deductions in his
or her account at such time, without interest.
6.03. Fractional Shares. Fractional shares will not be issued under the
Plan and any accumulated payroll deductions which would have been used to
purchase fractional shares will be returned to any employee promptly following
the termination of an Offering, without interest.
Page 11 of 17
<PAGE>
6.04. Transferability of Option. During a participant's lifetime,
options held by such participant shall be exercisable only by that participant.
6.05 Delivery of Stock. As promptly as practicable after the Offering
Termination Date of each Offering, the Company will deliver to each participant,
as appropriate, the stock purchased upon exercise of the participant's option.
7. WITHDRAWAL
7.01. In General. As indicated in Section 6.02, a participant may
withdraw payroll deductions credited to his or her account under the Plan at any
time by giving written notice to the Company. All of the participant's payroll
deductions credited to his or her account will be paid to the participant
promptly after receipt of notice of withdrawal, without interest, and no further
payroll deductions will be made from his or her pay during such Offering. The
Company may, at its option, treat any attempt to borrow by a participant on the
security of his or her accumulated payroll deductions as an election, under
Section 6.02, to withdraw such deductions.
7.02. Effect on Subsequent Participation. A participant's withdrawal
from any Offering will not have any effect upon the participant's eligibility to
participate in any succeeding Offering or in any similar plan which may
hereafter be adopted by the Company.
7.03. Termination of Employment. Upon termination of the participant's
employment for any reason, including retirement (but excluding death while in
the employ of the Company or continuation of a leave of absence for a period
beyond 90 days), the payroll deductions credited to his or her account will be
returned to the participant, without interest, or, in the case of death
subsequent to the termination of employment, to the person or persons entitled
thereto under Section 10.01.
7.04. Termination of Employment Due to Death. Upon termination of the
participant's employment because of death while in the employ of the Company,
the participant's beneficiary (as defined in Section 10.01) shall have the right
to elect, by written notice given to the Company prior to the earlier of the
Offering Termination Date or the expiration of a period of sixty (60) days
commencing with the date of the death of the participant, either:
(a) to withdraw all of the payroll deductions credited to the
participant's account under the Plan, without interest, or
(b) to exercise the participant's option for the purchase of stock on
the Offering Termination Date next following the date of the
participant's death for the purchase of the number of full shares of
stock which the accumulated payroll deductions in the participant's
account at the date of the participant's death will purchase at the
applicable option price, and any excess in such account will be
returned to said beneficiary, without interest.
In the event that no such written notice of election shall be duly
received by the Company, the beneficiary shall automatically be deemed to have
elected, pursuant to paragraph (b), to exercise the participant's option.
7.05. Leave of Absence. A participant on leave of absence shall,
subject to the election made by such participant pursuant to Section 4.05,
continue to be a participant in the Plan so long as such participant is on
continuous leave of absence. A participant who has been on leave of absence for
more
Page 12 of 17
<PAGE>
than 90 days and who therefore is not an employee for the purpose of the
Plan shall not be entitled to participate in any offering commencing after the
90th day of such leave of absence. Notwithstanding any other provisions of the
Plan, unless a participant on leave of absence returns to regular full-time or
part-time employment with the Company at the earlier of: (a) the termination of
such leave of absence or (b) three months from the 90th day of such leave of
absence, such participant's participation in the Plan shall terminate on
whichever of such dates first occurs.
8. STOCK
8.01. Maximum Shares. The maximum number of shares which shall be
issued under the Plan, subject to adjustment upon changes in capitalization of
the Company as provided in Section 10.04, shall be 100,000 shares. The shares of
stock sold pursuant to this Plan may be authorized but unissued shares or
treasury shares.
8.02. Shares Subject to Each Offering. The maximum number of shares of
stock which shall be made available for sale under this Plan during any Offering
shall be determined by the Committee. If the total number of shares for which
options are exercised on any Offering Termination Date exceeds the maximum
number of shares for the applicable offering, the Company shall make a pro rata
allocation of the shares available for delivery and distribution in as nearly a
uniform manner as shall be practicable and as it shall determine to be
equitable, and the balance of payroll deductions credited to the account of each
participant under the Plan shall be returned, without interest, as promptly as
possible. The maximum number of shares of stock which shall be made available
for sale under this Plan during any Offering to any individual participant shall
not exceed 1,000 shares.
8.03. Participant's Interest in Option Stock. The participant will have
no interest in stock covered by his or her option until such option has been
exercised.
9. ADMINISTRATION
9.01. Appointment of Committee. The Board of Directors shall appoint a
committee (the "Committee") to administer the Plan, which shall consist of no
fewer than three members of the Board of Directors. No member of the Committee
shall be eligible to purchase stock under the Plan.
9.02. Authority of Committee. Subject to the express provisions of the
Plan, the Committee shall have plenary authority in its discretion to interpret
and construe any and all provisions of the Plan, to adopt rules and regulations
for administering the Plan, and to make all other determinations deemed
necessary or advisable for administering the Plan. The Committee's determination
on the foregoing matters shall be conclusive.
9.03. Rules Governing the Administration of the Committee. The Board of
Directors may from time to time appoint members of the Committee in substitution
for or in addition to members previously appointed and may fill vacancies,
however caused, in the Committee. The Committee may select one of its members as
its Chairman and shall hold its meetings at such times and places as it shall
deem advisable and may hold telephone meetings. A majority of its members shall
constitute a quorum. All determinations of the Committee shall be made by a
majority of its members. The Committee may correct any defect or omission or
reconcile any inconsistency in the Plan, in the manner and to the extent it
shall deem desirable. Any decision or determination reduced to writing and
signed by a majority of the members of the Committee shall be as fully effective
as if it had been made by a majority vote at a meeting
Page 13 of 17
<PAGE>
duly called and held. The Committee may appoint a secretary and shall make such
rules and regulations for the conduct of its business as it shall deem
advisable.
10. MISCELLANEOUS
10.01. Designation of Beneficiary. A participant may file a written
designation of a beneficiary who is to receive any stock and/or cash. Such
designation of beneficiary may be changed by the participant at any time by
written notice to the Company. Upon the death of a participant and upon receipt
by the Company of proof of identity and existence at the participant's death of
a beneficiary validly designated by him under the Plan, the Company shall
deliver such stock and/or cash to such beneficiary. In the event of the death of
a participant and in the absence of a beneficiary validly designated under the
Plan who is living at the time of such participant's death, the Company shall
deliver such stock and/or cash to the executor or administrator of the estate of
the participant, or if no such executor or administrator has been appointed (to
the knowledge of the Company), the Company, in its discretion, may deliver such
stock and/or cash to the spouse or to any one or more dependents of the
participant as the Company may designate. No beneficiary shall, prior to the
death of the participant by whom designated, acquire any interest in the stock
or cash credited to the participant under the Plan.
10.02. Transferability. Neither payroll deductions credited to a
participant's account nor any rights with regard to the exercise of an option or
to receive stock under the Plan may be assigned, transferred, pledged, or
otherwise disposed of in any way by the participant other than by will or the
laws of descent and distribution. Any such attempted assignment, transfer,
pledge or other disposition shall be without effect, except that the Company may
treat such act as an election to withdraw funds in accordance with Section 6.02.
10.03. Use of Funds. All payroll deductions received or held by the
Company under this Plan may be used by the Company for any corporate purpose and
the Company shall not be obligated to segregate such payroll deductions.
10.04. Adjustment Upon Changes in Capitalization. If, while any options
are outstanding, the outstanding shares of Common Stock of the Company have
increased, decreased, changed into, or been exchanged for a different number or
kind of shares or securities of the Company through reorganization, merger,
recapitalization, reclassification, stock split, reverse stock split, stock
dividend, or similar transaction, appropriate and proportionate adjustments may
be made by the Committee in the number and/or kind of shares which are subject
to purchase under outstanding options and on the option exercise price or prices
applicable to such outstanding options. In addition, in any such event, the
number and/or kind of shares which may be offered in the Offerings described in
Section 3 hereof shall also be proportionately adjusted.
Upon the dissolution or liquidation of the Company, or upon a
reorganization, merger or consolidation of the Company with one or more
corporations as a result of which the Company is not the surviving corporation,
or upon a sale of substantially all of the property or stock of the Company to
another corporation, the holder of each option then outstanding under the Plan
will thereafter be entitled to receive at the next Offering Termination Date
upon the exercise of such option for each share as to which such option shall be
exercised, as nearly as reasonably may be determined, the cash, securities
and/or property which a holder of one share of the Common Stock was entitled to
receive upon and at the time of such transaction. The Board of Directors shall
take such steps in connection with such transactions as the Board shall deem
necessary to assure that the provisions of this Section 10.04 shall thereafter
be
Page 14 of 17
<PAGE>
applicable, as nearly as reasonably may be determined, in relation to the
said cash, securities and/or property as to which such holder of such option
might thereafter be entitled to receive.
10.05. Amendment and Termination. The Board of Directors shall have
complete power and authority to terminate or amend the Plan; provided, however,
that the Board of Directors shall not, without the approval of the stockholders
of the Corporation (a) increase the maximum number of shares which may be issued
under any Offering (except pursuant to Section 12.04); (b) amend the
requirements as to the class of employees eligible to purchase stock under the
Plan or (c) permit the members of the Committee to purchase stock under the
Plan. No termination, modification, or amendment of the Plan may, without the
consent of an employee then having an option under the Plan to purchase stock,
adversely affect the rights of such employee under such option.
10.06. Effective Date. The Plan shall become effective as of January 1,
1999, subject to approval by the holders of the majority of the Common Stock
present and represented at a special or annual meeting of the shareholders held
on or before December 31, 1999. If the Plan is not so approved, the Plan shall
not become effective.
10.07. No Employment Rights. The Plan does not, directly or indirectly,
create any right for the benefit of any employee or class of employees to
purchase any shares under the Plan, or create in any employee or class of
employees any right with respect to continuation of employment by the Company,
and it shall not be deemed to interfere in any way with the Company's right to
terminate, or otherwise modify, an employee's employment at any time.
10.08. Effect of Plan. The provisions of the Plan shall, in accordance
with its terms, be binding upon, and inure to the benefit of, all successors of
each employee participating in the Plan, including, without limitation, such
employee's estate and the executors, administrators or trustees thereof, heirs
and legatees, and any receiver, trustee in bankruptcy or representative of
creditors of such employee.
10.09. Compliance with Other Laws and Procedures. This Plan, the grant
and exercise of options hereunder, and the obligations of the Company to sell
and deliver shares under such options shall be subject to all applicable federal
and state laws, rules and regulations and of such approvals by the government or
any regulatory agency as may be required. The Company shall not be required to
issue or deliver any certificates for shares of Stock prior to the completion of
any registration or qualification of such shares under any federal or state law,
or any ruling or regulation of any government body which the Company shall, in
its discretion, determine to be necessary or advisable. The law of the State of
Florida will govern all matters relating to this Plan except to the extent it is
superseded by the laws of the United States.
10.10. Interpretation of this Plan. The terms of this Plan are subject
to all present and future rules and regulations of the Secretary of the Treasury
or its delegate regarding the qualifications of employee stock purchase plans
under, and this Plan is intended to comply with the provisions of Section 423 of
the Code, and it shall be interpreted and construed accordingly. If any
provision of this Plan conflicts with any such rule or regulation, then such
provision of this Plan shall be void and of no force and effect.
Page 15 of 17
Exhibit 5.1
[FOWLER, WHITE LETTERHEAD]
July 20, 1999
Gulf West Banks, Inc.
425 22nd Avenue North
St. Petersburg, FL 33742
Re: Registration Statement on Form S-8
Gentlemen:
This opinion is given to you in connection with the filing by Gulf West
Banks, Inc., a Florida corporation (the "Corporation"), with the Securities and
Exchange Commission under the Securities Act of 1933, as amended, of the
Registration Statement on Form S-8 (the "Registration Statement") with respect
to 100,000 shares of the common stock, $1.00 par value per share, of the
Corporation (the "Shares") to be issued to the employees of the Corporation
pursuant to its Employee Stock Purchase Plan. As counsel for the Corporation, we
have examined the relevant corporate documents incident to the giving of this
opinion.
Based on the foregoing, we are of the opinion that the Corporation has
taken all necessary and required corporate action in connection with the
proposed issuance of the Shares and that when issued and delivered in accordance
with the terms of the Employee Stock Purchase Plan, the Shares will be legally
issued, fully paid and non-assessable.
We hereby consent to be named in the Registration Statement and the
prospectus part thereof as attorneys who will pass upon legal matters in
connection with the Shares and to the filing of this opinion as an exhibit to
the Registration Statement.
Very truly yours,
/s/ FOWLER, WHITE, GILLEN, BOGGS,
VILLAREAL AND BANKER, P.A.
Page 16 of 17
Exhibit 23.1
INDEPENDENT AUDITOR'S CONSENT
The Board of Directors
Gulf West Banks, Inc.
We consent to the use of our report dated January 15, 1999, with respect to the
consolidated balance sheets of Gulf West Banks, Inc. and subsidiaries as of
December 31, 1998 and 1997 and the related consolidated statements of earnings,
stockholders' equity and cash flows for each of the years in the three-year
period ended December 31, 1998, which report appears in your Annual Report on
Form 10-K for the year ended December 31, 1998 which is incorporated by
reference in your Form S-8 dated July 20, 1999.
/s/HACKER, JOHNSON, COHEN & GRIEB P A
- -------------------------------------------
HACKER, JOHNSON, COHEN & GRIEB PA
Tampa, Florida
July 20, 1999
Page 17 of 17
