As filed with the Securities and Exchange Commission on January 31, 1997.
Registration No. 333-01997
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1
ON
FORM S-8
TO
REGISTRATION STATEMENT ON FORM S-4
Under the Securities Act of 1933
F.N.B. CORPORATION
(Exact name of registrant as specified in its charter)
PENNSYLVANIA 25-1255406
(State of other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
HERMITAGE SQUARE
HERMITAGE, PA 16148
(Address of Principal (zip code)
Executive Offices)
SOUTHWEST BANKS, INC. 1988 INCENTIVE STOCK OPTION PLAN
(Full Title of Plan)
_____________________
PETER MORTENSEN
CHAIRMAN, PRESIDENT AND CHIEF EXECUTIVE OFFICER
F.N.B. CORPORATION
HERMITAGE SQUARE
HERMITAGE, PA 16148
(Name and address of agent for service)
(412) 981-6000
(Telephone number, including area code, of agent for service)
___________________
This Post-Effective Amendment No. 1 covers shares of the
Registrant's Common Stock originally registered on the Registration Statement
on Form S-4 to which this is an amendment. The registration fees in respect of
such shares of Common Stock were paid at the time of the original filing of the
Registration Statement of Form S-4 relating thereto.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
----------------------------------------------------
The documents constituting a Prospectus ("Prospectus") with
respect to this Post-Effective Amendment No.1 on Form S-8 to the Registration
Statement on Form S-4 of F.N.B. Corporation ("FNB" or the "Corporation") are
kept on file at the offices of the Corporation in accordance with Rule 428
promulgated pursuant to the Securities Act of 1933, as amended (the
"Securities Act"). The Corporation will provide without charge to
participants in the Southwest Banks, Inc. 1988 Incentive Stock Option Plan,
on the written or oral request of any such person, a copy of any or all of
the documents constituting a prospectus. Written requests for such copies
should be directed to John D. Waters, Principal Financial and Accounting
Officer, F.N.B. Corporation, Hermitage Square, Hermitage, Pennsylvania
16148. Telephone request may be directed to (412) 981-6000.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
--------------------------------------------------
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by the Corporation with the Securities and
Exchange Commission (the "Commission") are incorporated by reference into
this Registration Statement:
1. FNB's Annual Report on Form 10-K for the fiscal year ended
December 31, 1995;
2. The Corporation's Quarterly Reports on Form 10-Q for the
quarters ended March 31, 1996, June 30, 1996 and September 30, 1996 and
current reports on Form 8-K filed February 9, 1996, May 15, 1996, June 28,
1996, August 13, 1996, November 13, 1996, November 25, 1996 and January
24, 1997.
3. FNB's definitive Proxy Statement filed with the Commission
pursuant to Section 14 of the Securities Exchange Act of 1934, as amended,
(the "Exchange Act"), in connection with the Annual Meeting of
Shareholders of FNB held on April 24, 1996; and
4. The description of FNB's Common Stock, par value $2.00 per
share (the "Common Stock"), contained in FNB's Registration Statement
filed under Section 12 of the Exchange Act, including all amendments and
reports updating such description.
The consolidated financial statements of FNB at December 31, 1995
and 1994, and for each of the three years in the period ended, December 31,
1995, have been audited by Ernst & Young LLP, independent auditors, as set
forth in their report thereon, incorporated in FNB's Annual Report on Form
10-K for the year ended December 31, 1995 and incorporated herein by
reference. As to 1993, the report of Ernst & Young LLP is based in part on
the reports of S.R. Snodgrass, independent auditors. The financial
statements referred to above are included in reliance upon such reports given
on the authority of said firms as experts in accounting and auditing.
All documents subsequently filed by FNB with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act
subsequent to the effectiveness of this Registration Statement, and prior to
the filing of a post-effective amendment to this Registration Statement which
indicates that all securities offered by this Registration Statement have
been sold or register all securities then remaining unsold, shall be deemed
to be incorporated by reference into this Registration Statement. Each
document incorporated by reference into this Registration Statement shall be
deemed to be a part of this Registration Statement from the date of the
filing of such document with the Commission until the information contained
therein is superseded or updated by any subsequently filed document which is
incorporated by reference into this Registration Statement or by any document
which constitutes part of the prospectus relating to the F.N.B. Corporation
401(k) Plan meeting the requirements of Section 10(a) of the Securities Act
of 1933, as amended (the "Securities Act").
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The legality of the securities offered hereby will be passed upon by
Cohen & Grigsby, P.C., Pittsburgh, Pennsylvania, counsel to FNB.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The effect of charter, by-law, statutory and other provisions whereby
the directors and officers of FNB may be insured or indemnified against
liability as officers and directors are set out below:
Article IX of the Bylaws of the Corporation provides that the
Corporation shall indemnify each director and officer of the Corporation and
of its controlled subsidiaries made or threatened to be made a party to any
civil, criminal, administrative or investigative action, suit or proceeding
(whether brought by or in the name of the Corporation or otherwise) arising
out of such director's or officer's service to the Corporation or to another
organization at the Corporation's request against all expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually
and reasonably incurred by such director and officer in connection with such
action, suit or proceeding. Indemnification shall not be made with respect
to actions, suits or proceedings where the act or omission giving rise to the
claim for indemnification has been determined to have constituted willful
misconduct or recklessness or where prohibited by law. In addition, expenses
incurred by each director and officer in defending any such action, suit or
proceeding, shall be paid by the Corporation in advance of the final
disposition of such action, suit or proceeding if an undertaking (in form and
scope satisfactory to the Corporation) shall have been furnished to the
Corporation to repay amounts so advanced if and to the extent it shall
ultimately be determined that such officer or director is not entitled to
indemnification and certain other conditions shall have been satisfied. The
Corporation may purchase and maintain insurance, create a fund of any nature,
grant a security interest or otherwise secure or insure in any manner its
indemnification obligations.
Section 1741 of the Pennsylvania Business Corporation Law provides
that a corporation shall (subject to the provisions described in the second
succeeding paragraph) have the power to indemnify any person who was or is a
party, or is threatened to be made a party, to any threatened, pending or
completed action or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation),
by reason of the fact that such person is or was a representative of the
corporation, or is or was serving at the request of the corporation as a
representative of another domestic or foreign corporation for profit or not-
for-profit, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in connection with
the action or proceeding if such person acted in good faith and in a manner
he reasonably believed to be in, or not opposed to, the best interests of the
corporation and, with respect to any criminal proceeding, had no reasonable
cause to believe his conduct was unlawful. The termination of any action or
proceeding by judgment, order, settlement or conviction, or upon a plea of
nolo contendere or its equivalent shall not of itself create a presumption
that such person did not act in good faith and in a manner which he
reasonably believed to be in, or not opposed to, the best interests of the
corporation and, with respect to any criminal proceeding, had reasonable
cause to believe that his conduct was unlawful.
Section 1742 of the Pennsylvania Business Corporation Law provides
that a corporation shall (subject to the provisions described in the
succeeding paragraph) have the power to indemnify any person who was or is a
party, or is threatened to be made a party, to any threatened, pending or
completed action by or in the right of the corporation to procure a judgment
in its favor by reason of the fact that such person is or was a
representative of the corporation, or is or was serving at the request of the
corporation as a representative of another domestic or foreign corporation
for profit or not-for-profit, partnership, joint venture, trust or other
enterprise against expenses (including attorneys' fees) actually and
reasonably incurred by such person in connection with the defense or
settlement of the action if such person acted in good faith and in a manner
he reasonably believed to be in, or not opposed to, the best interests of the
corporation. Indemnification shall not be made in respect of any claim,
issue or matter as to which such person has been adjudged to be liable to the
corporation unless and only to the extent that the court of common pleas of
the county in which the registered office of the corporation is located or
the court in which the action was brought determines upon application that,
despite the adjudication of liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such
expenses that the court of common pleas or other court deems proper.
Under Section 1744 of the Pennsylvania Business Corporation Law,
any such indemnification (unless ordered by a court) shall be made by the
corporation only as authorized in the specific case upon a determination that
indemnification of the representative is proper in the circumstances because
such person has met the applicable standard of conduct. Such determination
shall be made:
(1) By the Board of Directors by a majority vote of a quorum
consisting of directors who were not parties to the action or proceeding; or
(2) If such quorum is not obtainable or, even if obtainable a
majority vote of a quorum of disinterested directors so directs, by
independent legal counsel in a written opinion; or
(3) By the shareholders.
Notwithstanding the above, Section 1743 provides that to the extent
that a representative of the corporation has been successful on the merits or
otherwise in defense of any action or proceeding referred to above, or in
defense of any claim, issue or matter therein, such person shall be
indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by such person in connection therewith.
Under Section 1745 of the Pennsylvania Business Corporation Law,
expenses (including attorneys' fees) incurred in defending any action or
proceeding may be paid by the corporation in advance of the final disposition
of the action or proceeding upon receipt of an undertaking by or on behalf of
the representative to repay such amount if it is ultimately determined that
such person is not entitled to be indemnified by the corporation.
Section 1746 of the Pennsylvania Business Corporation Law further
provides that the indemnification provided by Sections 1741, 1742 and 1743
and the advancement of expenses provided by Section 1745 shall not be deemed
exclusive of any other rights to which a person seeking indemnification or
advancement of expenses may be entitled under any bylaw, agreement, vote of
shareholders, disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding that
office. A corporation may create a fund of any nature, which may, but need
not be, under the control of a trustee, or otherwise secure or insure in any
manner its indemnification obligations, whether arising under or pursuant to
Section 1746 or otherwise. Indemnification pursuant to Section 1746 shall not
be made in any case where the act or failure to act giving rise to the claim
for indemnification is determined by a court to have constituted willful
misconduct or recklessness.
Indemnification pursuant to Section 1746 under any bylaw,
agreement, vote of shareholders, or directors or otherwise may be granted for
any action taken or any failure to take any action and may be made whether or
not the corporation would have the power to indemnify the person under any
other provision of law except as provided in such Section 1746 and whether or
not the indemnified liability arises or arose from any threatened, pending or
completed action by or in the right of the corporation. Section 1746
declares such indemnification to be consistent with the public policy of
Pennsylvania.
The foregoing is only a general summary of certain aspects of
Pennsylvania law dealing with the indemnification of directors and officers
and does not purport to be complete. It is qualified in its entirety by
reference to the relevant statutes which contain detailed specific provisions
regarding the circumstances under which and the person for whose benefit
indemnification shall or may be made and accordingly are incorporated herein
by reference.
ITEM 8. EXHIBITS.
5.1 Opinion of Cohen & Grigsby, P.C. regarding legality of
the securities *
23.1 Consent of Ernst & Young LLP
23.2 Consent of Cohen & Grigsby, P.C., (included in opinion
filed as Exhibit 5.1.) *
24.1 Power of Attorney *
99.1 Southwest Banks, Inc. 1988 Incentive Stock Option Plan
99.2 Amendment No.1 1988 Incentive Stock Option Plan Southwest
Banks, Inc.
99.3 Amendment No.2 1988 Incentive Stock Option Plan Southwest
Banks, Inc.
* Previously filed as an exhibit to the Corporation's Registration Statement
on Form S-4 to which this is a Post-Effective Amendment No.1.
ITEM 9. UNDERTAKINGS.
(a) Rule 415 Offering undertaking:
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,
represents 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)(l)(i) and (a)(l)(ii) do not apply if
the Registration Statement is on Form S-3 or Form S-8 and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the Corporation pursuant to Section 13
or Section 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 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) Filings Incorporating Subsequent Exchange Act Documents by
Reference undertaking:
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
the Corporation's annual report pursuant to Section 13(a) or Section 15(d) of
the Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Filing of Registration Statement on Form S-8 undertaking:
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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Corporation 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 Hermitage, Commonwealth of
Pennsylvania, on January 31, 1997.
F.N.B. CORPORATION
By /s/ Peter Mortensen
----------------------------
Peter Mortensen, Chairman, President
and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Peter Mortensen, John D. Waters and
William J. Rundorff, and each of them, his true and lawful attorneys-in-fact
and agents, with full power of substitution and resubstitution, 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 other
documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of
them, full power and authority to do and perform each and every act and thing
requisite and necessary to be done, as fully and to all intents and purposes
as he might do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or either of them, or their or his substitutes,
may lawfully do or cause to be done by virtue thereof.
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.
/s/ Peter Mortensen Chairman, President, January 31, 1997
- --------------------------
Peter Mortensen Chief Executive Officer and Director
(Principal Executive Officer)
/s/ Stephen J. Gurgovits Executive Vice President January 31, 1997
- --------------------------
Stephen J. Gurgovits and Director
/s/ Samuel K. Sollenberger Vice President and January 31, 1997
- --------------------------
Samuel K. Sollenberger Director
/s/ William J. Rundorff Executive Vice President January 31, 1997
- --------------------------
William J. Rundorff
/s/ John D. Waters Vice President and CFO January 31, 1997
- --------------------------
John D. Waters (Principal Financial and
Accounting Officer)
/s/ David B. Mogle Secretary and Treasurer January 31, 1997
- --------------------------
David B. Mogle
/s/ W. Richard Blackwood Director January 31, 1997
- --------------------------
Richard Blackwood
/s/ William B. Campbell Director January 31, 1997
- --------------------------
William B. Campbell
/s/ Charles T. Cricks Director January 31, 1997
- --------------------------
Charles T. Cricks
/s/ Henry M. Ekker Director January 31, 1997
- --------------------------
Henry M. Ekker
/s/ Thomas C. Elliot Director January 31, 1997
- --------------------------
Thomas C. Elliott
/s/ Thomas W. Hodge Director January 31, 1997
- --------------------------
Thomas W. Hodge
/s/ George E. Lowe Director January 31, 1997
- --------------------------
George E. Lowe
/s/ Paul P. Lynch Director January 31, 1997
- --------------------------
Paul P. Lynch
/s/ James B. Miller Director January 31, 1997
- --------------------------
James B. Miller
/s/ Robert S. Moss Director January 31, 1997
- --------------------------
Robert S. Moss
/s/ John R. Perkins Director January 31, 1997
- --------------------------
John R. Perkins
/s/ William A. Quinn Director January 31, 1997
- --------------------------
William A. Quinn
/s/ George A. Seeds, Jr. Director January 31, 1997
- --------------------------
George A. Seeds, Jr.
/s/ William J. Strimbu Director January 31, 1997
- --------------------------
William J. Strimbu
/s/ Archie O. Wallace Director January 31, 1997
- --------------------------
Archie O. Wallace
/s/ Joseph M. Walton Director January 31, 1997
- --------------------------
Joseph M. Walton
/s/ James T. Weller Director January 31, 1997
- ---------------------------
James T. Weller
/s/ Eric J. Werner Director January 31, 1997
- --------------------------
Eric J. Werner
/s/ Donna C. Winner Director January 31, 1997
- --------------------------
Donna C. Winner
EXHIBIT INDEX
5.1 Opinion of Cohen & Grigsby, P.C. regarding legality of the
securities *
23.1 Consent of Ernst & Young LLP
23.2 Consent of Cohen & Grigsby, P.C., included in
opinion filed as Exhibit 5.1 *
24.1 Power of Attorney *
99.1 Southwest Banks, Inc. 1988 Incentive Stock Option Plan
99.2 Amendment No.1 1988 Incentive Stock Option Plan
Southwest Banks, Inc.
99.3 Amendment No.2 1988 Incentive Stock Option Plan
Southwest Banks, Inc.
* Previously filed as an exhibit to the Corporation's Registration Statement
on Form S-4 to which this is Post-Effective Amendment No.1.
EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in this
Post Effective Amendment No.1 on Form S-8 to the Registration Statement on
Form S-4 No. 333-01997 pertaining to the Southwest Banks, Inc. 1988 Incentive
Stock Option Plan and to the incorporation by reference therein of our report
dated February 5, 1996, with respect to the consolidated financial statements
of F.N.B. Corporation and subsidiaries included in its Annual Report (Form
10-K) for the year ended December 31, 1995, filed with the Securities and
Exchange Commission.
ERNST & YOUNG LLP
Pittsburgh, Pennsylvania
January 30, 1997
EXHIBIT 99.1
SOUTHWEST BANKS, INC.
1988 INCENTIVE STOCK OPTION PLAN
--------------------------------
1. PURPOSE
The purpose of Southwest Banks, Inc.'s 1988 Incentive Stock Option Plan
(the "Plan") is to encourage and enable eligible directors, officers and key
employees ("Eligible Employees") of Southwest Banks, Inc. (the "Company") and
its subsidiaries to acquire proprietary interests in the Company through the
ownership of Common Stock of the Company. The Company believes that
directors, officers and key employees who participate in the Plan will have a
closer identification with the Company by virtue of their ability as
stockholders to participate in the Company's growth and earnings. The Plan
also is designed to provide motivation for participating directors, officers
and key employees to remain in the employ of and to give greater effort on
behalf of the Company. It is the intention of the Company to have the Plan
qualify as an "incentive stock option plan" under Section 422A of the
Internal Revenue Code of 1986 (the "Code") and the regulations promulgated
thereunder. Accordingly, the provisions of the Plan shall be construed so as
to extend and limit participation in a manner consistent with the
requirements of that section of the Code.
2. DEFINITIONS
-----------
The following words or terms shall have the following meanings:
(a) "Agreement" shall mean an incentive stock option agreement between
the Company and an Eligible Employee pursuant to the terms of this
Plan.
(b) "Average Market Price" shall mean the mean between the high "bid"
and low "ask" prices as of the close of business for the Company's
shares of Common Stock in the over-the counter market, as reported
by the National Association of Securities Dealers, Inc. Automated
Quotation System (or other national quotation service). If the
Company's Common Stock is not regularly traded in the over-the-
counter market but is registered on a national securities
exchange, "Average Market Price" shall mean the closing price of
the Company's Common Stock on such national securities exchange.
(c) "Board of Directors" shall mean the Board of Directors of the
Company or the Executive Committee of such Board.
(d) "Committee" shall mean the committee appointed by the Board of
Directors to administer the Plan.
(e) "Common Stock" shall mean the $.10 par value common stock of the
Company.
(f) "Company" shall mean Southwest Banks, Inc., a Florida corporation.
(g) "Eligible Employee(s)" shall mean a person or persons regularly
employed by the Company or a Subsidiary.
(h) "Optionee" shall mean an Eligible Employee having a right to
purchase Common Stock under an Agreement.
SOUTHWEST BANKS, INC.
1988 Incentive Stock Option Plan
Page 2
_____________________________
(i) "Option(s)" shall mean the right or rights granted to Eligible
Employees to purchase Common Stock under the Plan.
(j) "Plan" shall mean this Southwest Banks, Inc. 1988 Incentive Stock
Option Plan.
(k) "Shares", "Stock" or "Common Stock" shall mean shares of the $.10
par value common stock of the Company.
(l) "Subsidiary" shall mean any corporation, if the Company owns or
controls, directly or indirectly, more than a majority of the
voting stock of such corporation.
(m) "Ten Percent Owner" shall mean an individual who, at the time an
Option is granted, owns directly or indirectly more than ten
percent (10%) of the total combined voting power of all classes of
stock of the Company.
3. EFFECTIVE DATE
--------------
The effective date of the Plan (the "Effective Date") shall be the date
the Plan is adopted by the Board of Directors or the date the Plan is
approved by the stockholders of the Company, whichever is earlier. The Plan
must be approved by the affirmative vote of not less than a majority of the
votes entitled to be cast thereon, which shareholder vote must be taken
within twelve (12) months after the date the Plan is adopted by the Board of
Directors. Such shareholder vote shall not alter the Effective Date of the
Plan. In the event shareholder approval of the adoption of the Plan is not
obtained within the aforesaid twelve (12) month period, then any options
granted in the in the intervening period shall be void.
4. SHARES RESERVED FOR PLAN
------------------------
The shares of the Company's Common Stock to be sold to Eligible
Employees under the Plan may at the election of the Board of Directors be
either treasury shares or shares originally issued for such purpose. The
maximum number of shares which shall be reserved and made available for sale
under the Plan shall be 200,000. Any shares subject to an Option which for
any reason expires or is terminated unexercised may again be subject to an
Option under the Plan.
5. ADMINISTRATION OF THE PLAN
--------------------------
The plan shall be administered by the Committee. The Committee shall be
comprised of not less than three (3) members appointed by the Board of
Directors of the Company from among its members. No member of the Board of
Directors shall be appointed or serve as a member of the Committee, and any
such appointment or service immediately and automatically shall terminate, in
the event that (1) such person is, or becomes an Eligible Employee (as
described in Section 2 of this Plan), (2) such person is, or becomes eligible
for the allocation of stock or the grant of any option or stock appreciation
right under any other plan of the Company or any of its affiliates (as such
term is defined in the General Rules and Regulations under the Securities
Exchange Act of 1934, as amended), or (3) such person was described in clause
(1) or clause (2) of this Section 5 within the immediately preceding year.
SOUTHWEST BANKS, INC.
1988 Incentive Stock Option Plan
Page 3
_____________________________
Within the limitations described herein, the Committee shall administer
the Plan, select the Eligible Employees to whom Options will be granted,
determine the number of shares to be optioned to each Eligible Employee and
interpret, construe and implement the provisions of the Plan. Committee
members shall be reimbursed for out-of-pocket expenses reasonably incurred in
the administration of the Plan.
The Committee shall select one of its members as chairman and shall hold
its meetings at such times and places, and pursuant to such rules consistent
with the Plan, as it may determine. A majority of the members 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 members of the Committee, shall be the acts
of the Committee.
6. ELIGIBILITY
-----------
Options may be granted only to Eligible Employees.
7. DURATION OF THE PLAN
--------------------
The Plan shall remain in effect until all shares subject to or which may
become subject to the Plan shall have been purchased pursuant to Options
granted under the Plan; provided that Options under the Plan must be granted
within ten (10) years from the Effective Date.
8. QUALIFIED INCENTIVE OPTIONS
---------------------------
It is intended that Options granted under the Plan shall be qualified
incentive stock options under the provisions of subsequent revenue laws and
regulations thereunder or corresponding provisions of subsequent revenue laws
and regulations in effect at the time such Options are granted. Such Options
shall be evidenced by stock option agreements in such form and not
inconsistent with this Plan as the Committee shall approve from time to time,
which agreements shall contain in substance the following terms and
conditions:
(a) Price. The purchase price for shares purchased upon exercise will
-----
be the Average Market Price on the date the Option is granted, as
determined by the Committee, or, if the Stock is not traded in the
organized markets, then the price shall be the fair market value
of the Stock as determined in good faith by the Committee, but in
no case less than the par value of such stock; provided further
that the purchase price of stock deliverable upon the exercise of
a qualified incentive option granted to a Ten Percent Owner shall
be not less than one hundred ten percent (110%) of the Average
Market Price or fair market value on the day the Option is
granted, as determined by the Committee, but in no case less that
the par value of such stock.
(b) Number of Shares. The Agreement shall specify the number of
-----------------
shares which the Optionee may purchase under such Option.
SOUTHWEST BANKS, INC.
1988 Incentive Stock Option Plan
Page 4
_____________________________
(c) Exercise of Options. The shares subject to the Option may be
--------------------
purchased in whole or in part by the Optionee in accordance with
the terms of the Agreement, from time to time after shareholder
approval of the Plan. The shares subject to the Option shall
become exercisable in increments of 10% of the number of shares
subject to the Option on each anniversary of the date of grant
until all shares subject to the Option becoming exercisable until
the tenth anniversary of the date of the grant of the Option.
Notwithstanding the foregoing the shares subject to an Option
granted to a Ten Percent Owner shall become exercisable in
increments of 20% of the number of shares subject to the Option on
each anniversary of the date of grant until all shares subject to
the Option have become exercisable, with 20% of the number of
shares subject to the Option becoming exercisable on the date of
grant. Such shares shall be exercisable until the fifth
anniversary of the date of the grant of the Option.
(d) Medium and Time of Payment. Stock purchased pursuant to an
---------------------------
Agreement shall be paid for in full at the time of purchase.
Payment of the purchase price shall be in cash and shares of the
Common Stock of the Company, or a combination of cash and shares
of the Common Stock of the Company. Upon receipt of payment and
within a reasonable time, the Company shall, without transfer or
issue tax, deliver to the Optionee (or other person entitled to
exercise the Option) a certificate or certificates for such
shares.
(e) Rights as a Shareholder. An Optionee shall have no rights as a
------------------------
shareholder with respect to any shares covered by an Option until
the date of issuance of the stock certificate to the Optionee for
such shares. Except as otherwise expressly provided in the Plan,
no adjustments shall be made for dividends or other rights for
which the record date is prior to the date such stock certificate
is issued.
(f) Nonassignability of Option. No option shall be assignable or
---------------------------
transferrable by the Optionee except by will or by the laws of
descent and distribution. During the lifetime of the Optionee,
the Option shall be exercisable only by him or her.
(g) Effect of Termination of Employment or Death. In the event that
---------------------------------------------
an Optionee during his or her lifetime ceases to be an employee of
the Company or of any subsidiary of the Company for any reason
(including retirement) other than death or permanent and total
disability, any Option or unexercised portion thereof which was
otherwise exercisable on the date of termination of employment
shall expire unless exercised within a period of ninety (90) days
from the date on which the Optionee ceased to be an employe, but
in no event after the term provided in the Optionee's Agreement.
In the event that an Optionee ceases to be an employee of the
Company or of any subsidiary of the Company for any reason
(including retirement other than death or permanent and total
disability prior to the time that an Option is exercisable, his or
her Option shall terminate and be null and void.
In the event that an Optionee during his or her lifetime ceases to
be an employee of the Company or any subsidiary of the Company by reason of
death or permanent and total disability, any Option or unexercised portion
thereof which was otherwise exercisable on the date such Optionee ceased
employment shall expire unless exercised within a period of one (1) year from
the date on which the Optionee ceased to be an employee, but in no event
after the term provided in the Optionee's Agreement. In the event that an
Optionee during his or her lifetime ceases to be an employee of the Company
or any subsidiary of the Company by reason of death or permanent and total
disability, any Option or portion thereof which was not exercisable on the
date such Optionee ceased employment shall become immediately exercisable for
a period of one (1) year from
SOUTHWEST BANKS, INC.
1988 Incentive Stock Option Plan
Page 5
_____________________________
the date on which the Optionee ceased to me an employee, but in no event
after the term provided in the Optionee's Agreement. Permanent and total
disability as used herein is as defined in Section 22(e)(3) of the Code.
In the event of the death of an Optionee, the Option shall be
exercisable by his or her personal representatives, heirs or legatees, as
provided herein.
(h) Recapitalization. In the event that dividends are payable in
-----------------
Common Stock of the Company or in the event there are splits,
subdivisions or combinations of shares of Common Stock of the
Company, the number of Shares available under the Plan shall be
increased or decreased proportionately, as the case may be, and
the number of Shares deliverable upon the exercise thereafter of
any Option theretofore granted shall be increased or decreased
proportionately, as the case may be, without change in the
aggregate purchase price.
(i) Reorganization. In case the Company is merged or consolidated
---------------
with another corporation and the Company is not the surviving
corporation, or in case the property or stock of the Company is
acquired by another corporation, or in case of a separation,
reorganization, recapitalization or liquidation of the Company,
the Board of Directors of the Company, or the Board of Directors
of any corporation assuming the obligations of the Company
hereunder, shall either (i) make appropriate provision for the
protection of any outstanding Options by the substitution on an
equitable basis of appropriate stock of the Company, or of the
merged, consolidated or otherwise reorganized corporation which
will be issuable in respect tot he shares of Common Stock of the
Company, provided only that the excess of the aggregate fair
market value of the shares subject to option immediately after
such substitution over the purchase price thereof is not more than
the excess of the aggregate fair market value of the shares
subject to option immediately before such substitution over the
purchase price thereof, or (ii) upon written notice to the
Optionee, provide that the Option (including the shares not then
exercisable) must be exercised within sixty (60) days of the date
of such notice or it will be terminated.
(j) General Restriction. Each Option shall be subject to the
--------------------
requirement that if at any time the Board of Directors shall
determine, in its discretion, that the listing, registration or
qualification of the Shares subject to such Option upon any
Securities exchange or under any state or federal law, or the
consent or approval of any government regulatory body, is
necessary or desirable as a condition of, or in connection with,
the granting of such Option or the issue of purchase of Shares
thereunder, such Option may not be exercised in whole or in part
unless such listing, registration, qualification, consent or
approval shall have been effected or obtained free from any
conditions not acceptable tot he Board of Directors.
9. AMENDMENT OF THE PLAN
---------------------
The Plan may at any time or from time to time be terminated,
modified or amended by the affirmative vote of not less than majority of the
votes entitled to the cast thereon by the Company's shareholders. The Board
of Directors may at any time and from time to time modify or amend the Plan
in any respect, except that without shareholder approval the Board of
Directors may not
SOUTHWEST BANKS, INC.
1988 Incentive Stock Option Plan
Page 6
_____________________________
(a) increase the maximum number of shares for which Options may be
granted under the Plan either in the aggregate or to any Eligible
Employee (other than increases due to changes in capitalization as
referred to in Section 8(h) hereof), or
(b) reduce the option price or waiting period (except as otherwise
expressly provided in the Plan in the case of a reorganization of
the Company as referred to in Section 8(i) hereof), or
(c) extend the period during which Options may be granted or excised,
or
(d) change the class of employees eligible for incentive stock options
under Section 6 hereof, or
(e) otherwise materially modify (within the meaning of Rule 16b-3 of
the Securities Exchange Act of 1934, as amended) the requirements
as to eligibility for participation in the Plan, or
(f) otherwise materially increase (within the meaning of Rule 16b-3 of
the Securities Exchange Act of 1934, as amended) the benefits
accruing to participants under the Plan.
The termination or any modification or amendment of the Plan shall not,
without the written consent of an Optionee, affect his or her rights under
the Option or right previously granted to him or her. With the written
consent of the Optionee affected, the Committee may amend outstanding option
agreements in a manner not inconsistent with the Plan. Without employee
consent, the Board of Directors may at any time and from time to time modify
or amend outstanding option agreements in such respects as it shall deem
necessary in order that Options granted hereunder shall comply with the
appropriate provisions of the Code and regulations thereunder which are in
effect from time to time respecting "Qualified Incentive Options."
10. LIMITATION ON NUMBER OF SHARES THAT MAY BE PURCHASED
----------------------------------------------------
The aggregate fair market value (determined at the time the Option is
granted) of the shares with respect to which incentive stock options are
exercisable for the first time by an Optionee during any calendar year (under
all incentive stock option plans of the Company) shall not exceed $100,000.
11. BINDING EFFECT
--------------
All decisions of the Board of Directors or the Committee involving the
implementation, administration or operation of the Plan or any offering under
the Plan shall be binding on the Company, all Eligible Employees
participating in the Plan, and on all persons eligible or who become eligible
to participate in the Plan.
EXHIBIT 99.2
AMENDMENT NO. 1
1988 INCENTIVE STOCK OPTION PLAN
SOUTHWEST BANKS, INC.
(formerly Finacorp, Inc.)
WHEREAS, the Board of Directors of Southwest Banks, Inc. (the
"Company") has previously adopted, and the shareholders of the Company have
approved, the 1988 Incentive Stock Option Plan (the "Plan") pursuant to which
options to purchase stock of the Company may be issued to eligible directors,
officers and key employees of the Company; and
WHEREAS, the Board of Directors of the Company deems it desirable to
amend the Plan as provided herein;
NOW, THEREFORE, the Plan is amended upon the terms, and subject to
the conditions, set forth herein:
ARTICLE I
AMENDMENT TO PLAN
1.1 Section 4 of the Plan shall be amended by deleting the second
sentence thereof in its entirety and substituting the following new sentence
therefor:
"The maximum number of shares which shall be reserved and
made available for sale under the Plan shall be 500,000."
1.2 The Plan shall be amended by deleting all references to
"Finacorp, Inc." and substituting "Southwest Banks, Inc." therefor.
ARTICLE II
EFFECTIVE DATE OF AMENDMENT
2.1 The amendment effected hereby shall be effective on or after
the date this amendment is approved by the Board of Directors of the Company,
but subject to approval of a majority of the shares of Common Stock of the
Company entitled to vote thereon represented in person and by proxy at a meeting
of shareholders. In the event shareholder approval of adoption of this
amendment is not obtained within twelve months of the date this amendment is
approved by the Board of Directors of the Company, then any options granted in
the intervening period in excess of the number currently provided for in the
Plan shall be void.
EXHIBIT 99.3
AMENDMENT NO. 2
1988 INCENTIVE STOCK OPTION PLAN
SOUTHWEST BANKS, INC.
(formerly Finacorp, Inc.)
WHEREAS, the Board of Directors of Southwest Banks, Inc. (the
"Company") has previously adopted, and the shareholders of the Company have
approved, the 1988 Incentive Stock Option Plan (the "Plan") pursuant to which
options to purchase stock of the Company may be issued to eligible directors,
officers and key employees of the Company; and
WHEREAS, the Board of Directors of the Company deems it desirable to
further amend the Plan as provided herein;
NOW, THEREFORE, the Plan is amended upon the terms, and subject to
the conditions, set forth herein:
ARTICLE I
AMENDMENT TO PLAN
1.1 Section 5 of the Plan shall be amended by deleting the first
paragraph thereof in its entirety and substituting the following new paragraph
therefor:
The Plan shall be administered by the Committee, which shall
consist of not fewer than two (2) members of the Board of Directors of the
Company who shall be appointed by the Board of Directors. No director shall be
appointed or serve on the Committee and any such appointment or service
immediately and automatically shall terminate, in the event that such person,
during the one year period prior to service on the Committee, or during such
service, has been granted or awarded equity securities pursuant to the Plan or
any other plan of the Company or any of its affiliates (as such term is defined
in the General Rules and Regulations under the Securities Exchange Act of 1934,
as amended (the "Act")); provide, however that grants or awards of equity
securities permitted to plan administrators under Rule 16b-3(c)(2) under the Act
shall not disqualify a director from serving on the Committee."
ARTICLE II
EFFECTIVE DATE OF AMENDMENT
2.1 The amendment effected hereby shall be effective on the date
this amendment is approved by the Board of Directors of the Company.