As filed with the Securities and Exchange Commission on July 6, 1998
Registration No. 333-49689
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 or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
ONE F.N.B. BOULEVARD
HERMITAGE, PA 16148
(Address of Principal (zip code)
Executive Offices)
SEMINOLE BANK, INC.
MANAGEMENT STOCK OPTION PLAN
(Full Title of Plans)
_____________________
PETER MORTENSEN
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
F.N.B. CORPORATION
ONE F.N.B. BOULEVARD
HERMITAGE, PA 16148
(Name and address of agent for service)
(724) 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 on 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 Seminole
Bank, Inc. Management 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,
One F.N.B. Boulevard, Hermitage, Pennsylvania 16148. Telephone requests
may be directed to (724) 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, 1997;
2. FNB's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1998;
3. The Corporation's Current Reports of Form 8-K filed February 13,
1998, April 3, 1998, and July 6, 1998, which included
consolidated financial statements and supplemental consolidated
financial statements for the years ended December 31, 1997,
1996, and 1995 with Reports of Independent Auditors and
Management's Discussion and Analysis.
4. 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 29, 1998;
and
5. 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.
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 which
de-registers all securities then remaining unsold, shall be deemed to be
incorporated by reference into this Registration and shall be deemed to be a
part of this Registration Statement from the date of the filing of such
document.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The consolidated financial statements of FNB at December 31, 1997
and 1996, and for each of the three years in the period ended December 31,
1997, have been audited by Ernst & Young LLP, independent auditors, as set
forth in their report thereon, included in FNB's current report on Form 8-K
dated April 3, 1998, and incorporated herein by reference, which is based in
part on the reports of Hill, Barth & King, Inc. independent auditors who
audited Southwest Banks, Inc., and PricewaterhouseCoopers LLP, independent
auditors who audited West Coast Bancorp, Inc.
The supplemental consolidated financial statements of FNB at
December 31, 1997 and 1996, and for each of the three years in the period ended
December 31, 1997, have been audited by Ernst & Young LLP, independent auditors,
as set forth in their report thereon, included in FNB's current report on Form
8-K dated July 6, 1998, and incorporated herein by reference, which is based
in part on the reports of Hill, Barth & King, Inc. , independent auditors who
audited Southwest Banks, Inc., PricewaterhouseCoopers LLP, independent auditors
who audited West Coast Bancorp, Inc., and Hacker, Johnson, Cohen & Grieb PA,
independent auditors who audited Seminole Bank.
The financial statements referred to above are included in reliance
upon such reports given on the authority of such firms as experts in accounting
and auditing.
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 Hill, Barth & King, Inc.
23.3 Consent of PricewaterhouseCoopers LLP
23.4 Consent of Hacker, Johnson, Cohen & Grieb PA
23.5 Consent of Cohen & Grigsby, P.C., (included in opinion
filed as Exhibit 5.1.) *
24.1 Power of Attorney *
99.1 Seminole Bank, Inc. Management Stock Option Plan
* 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 July 6, 1998.
F.N.B. CORPORATION
By /s/ Peter Mortensen
-----------------------------
Peter Mortensen, Chairman
and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENT, 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, Chief Executive July 6, 1998
- -------------------------
Peter Mortensen Officer and Director
(Principal Executive Officer)
/s/ Stephen J. Gurgovits Vice Chairman and Director July 6, 1998
- -------------------------
Stephen J. Gurgovits
/s/ Gary L. Tice President, Chief Operating July 6, 1998
- -------------------------- Officer and Director
Gary L. Tice
/s/ William J. Rundorff Executive Vice President July 6, 1998
- --------------------------
William J. Rundorff
/s/ John D. Waters Vice President and Chief Financial July 6, 1998
- -------------------------- Officer (Principal Financial
John D. Waters and Accounting Officer)
/s/ W. Richard Blackwood Director July 6, 1998
- --------------------------
W. Richard Blackwood
/s/ William B. Campbell Director July 6, 1998
- --------------------------
William B. Campbell
/s/ Charles T. Cricks Director July 6, 1998
- --------------------------
Charles T. Cricks
/s/ Henry M. Ekker Director July 6, 1998
- --------------------------
Henry M. Ekker, Esq.
/s/ Thomas C. Elliot Director July 6, 1998
- ---------------------------
Thomas C. Elliott
/s/ Thomas W. Hodge Director July 6, 1998
- ---------------------------
Thomas W. Hodge
/s/ James S. Lindsey Director July 6, 1998
- ---------------------------
James S. Lindsey
/s/ Paul P. Lynch Director July 6, 1998
- ---------------------------
Paul P. Lynch
/s/ Edward J. Mace Director July 6, 1998
- ---------------------------
Edward J. Mace
/s/ James B. Miller Director July 6, 1998
- ---------------------------
James B. Miller
/s/ Robert S. Moss Director July 6, 1998
- ---------------------------
Robert S. Moss
/s/ Richard C. Myers Director July 6, 1998
- ---------------------------
Richard C. Myers
/s/ William A. Quinn Director July 6, 1998
- ---------------------------
William A. Quinn
/s/ George A. Seeds, Jr. Director July 6, 1998
- ---------------------------
George A. Seeds, Jr.
/s/ William J. Strimbu Director July 6, 1998
- ----------------------------
William J. Strimbu
/s/ Archie O. Wallace Director July 6, 1998
- ----------------------------
Archie O. Wallace
/s/ Joseph M. Walton Director July 6, 1998
- ---------------------------
Joseph M. Walton
/s/ James T. Weller Director July 6, 1998
- ---------------------------
James T. Weller
/s/ Eric J. Werner Director July 6, 1998
- ---------------------------
Eric J. Werner
/s/ R. Benjamin Wiley Director July 6, 1998
- ---------------------------
R. Benjamin Wiley
/s/ Donna C. Winner Director July 6, 1998
- ---------------------------
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 Hill, Barth & King, Inc.
23.3 Consent of PricewaterhouseCoopers LLP
23.4 Consent of Hacker, Johnson, Cohen & Grieb PA
23.5 Consent of Cohen & Grigsby, P.C., included in
opinion filed as Exhibit 5.1 *
24.1 Power of Attorney *
99.1 Seminole Bank, Inc. Management Stock Option Plan
* 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 the
Post Effective Amendment No.1 on Form S-8 to the Registration Statement on
Form S-4 (No. 333-49689) pertaining to the Seminole Bank, Inc. Management
Stock Option Plan and to the incorporation by reference therein of our report
dated June 11, 1998, with respect to the supplemental consolidated financial
statements of F.N.B. Corporation and subsidiaries included in its current
report on Form 8-K dated July 6, 1998, and our report dated March 31, 1998,
with respect to the consolidated financial statements of F.N.B. Corporation
and Subsidiaries included in its current report on Form 8-K dated April 3,
1998, filed with the Securities and Exchange Commission.
/s/ERNST & YOUNG LLP
Pittsburgh, Pennsylvania
July 6, 1998
EXHIBIT 23.2
CONSENT OF HILL, BARTH & KING, INC., 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. 333-49689 pertaining to the Seminole Bank, Inc. Management
Stock Option Plan to the incorporation by reference therein of our report dated
January 22, 1997 relating to the consolidated financial statements of Southwest
Banks, Inc., which have been incorporated into the supplemental consolidated
financial statements of F.N.B. Corporation and Subsidiaries for the year ended
December 31, 1997, by reference in the Current Report on Form 8-K dated July
6, 1998, and with respect to the consolidated financial statements of F.N.B.
Corporation and Subsidiaries included in its Current Report on Form 8-K
dated April 3, 1998, filed with the Securities and Exchange Commission.
/s/HILL, BARTH & KING, INC.
CERTIFIED PUBLIC ACCOUNTANTS
Naples, Florida
July 6, 1998
EXHIBIT 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Post Effective Amendment
No. 1 on Form S-8 to the Registration Statement on Form S-4 No. 333-49689
pertaining to the Seminole Bank, Inc. Management Stock Option Plan of our
report dated January 24, 1997, included as Exhibit 99.3 to F.N.B.
Corporation's consolidated financial statements included in its current
report on Form 8-K filed April 3, 1998, and the supplemental consolidated
financial statements included in its current report on Form 8-K filed July 6,
1998, with respect to our audits of the consolidated financial statements of
West Coast Bancorp, Inc. for the years ended December 31, 1996 and 1995.
We also consent to the reference to our firm under the caption "Experts."
/s/PRICEWATERHOUSECOOPERS LLP
Tampa, Florida
July 6, 1998
EXHIBIT 23.4
CONSENT OF HACKER, JOHNSON, COHEN & GRIEB PA, 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. 333-49689 pertaining to the Seminole Bank, Inc. Management
Stock Option Plan to the incorporation by reference therein of our report dated
January 9, 1998, relating to the financial statements of Seminole Bank, which
have been incorporated into the supplemental consolidated financial
statements of F.N.B. Corporation and Subsidiaries for the year ended
December 31, 1997, by reference in the current report on Form 8-K dated
July 6, 1998.
/s/HACKER, JOHNSON, COHEN & GRIEB PA
HACKER, JOHNSON, COHEN & GRIEB PA
Tampa, Florida
July 6, 1998
EXHIBIT 99.1
SEMINOLE BANK, INC. MANAGEMENT STOCK OPTION PLAN
------------------------------------------------
SECTION I
PURPOSE
-------
The purpose of this Plan is to offer long-term incentives in addition to
current compensation to those executive employees of the Corporation and its
subsidiary corporations who are responsible for the successful operation,
administration and management of the Corporation and whose continued
contributions are important to the continued success of the Corporation.
SECTION II
DEFINITIONS
-----------
In this Plan, the following words and expressions shall have the meaning
hereinafter assigned to them:
(a) "Board of Directors" means the Board of Directors of the
Corporation.
(b) "Common Stock" means the authorized Common Stock of the Corporation
with par value of ten cents per share.
(c) "Corporation" means SEMINOLE BANK, INC., a Florida corporation.
(d) "Disability" shall mean such incapacitation by reasons of accident
or sickness that a Participant shall be unable to carry on substantially all
of the normal duties of his regular occupation for the Corporation or its
subsidiary corporations.
(e) "Nonqualified Stock Option" means the grant to a Participant
pursuant to this Plan of an option to purchase shares of the Common Stock of
this Corporation.
(f) "Participant" shall have the meaning assigned to that term in
Section IV.
(g) "Plan" means this Management Stock Option Plan.
SECTION III
BOARD OF DIRECTORS
------------------
3.1 GRANT AND EXERCISE LIMITATIONS. Subject to the provisions of
this Plan, the Board of Directors shall have exclusive power to select the
executive employees to be granted Management Stock Options, to determine the
number of Management Stock Options to be granted to each such executive
employee so selected, to determine the time or times when Management Stock
Options will be granted, to determine the time or times, and the conditions,
subject to which any Management Stock Options may be exercisable.
3.2 PLAN ADMINISTRATION. The Board of Directors shall have full
authority and power to interpret and administer this Plan. All decisions,
determinations and directions made or given by the Board of Directors under
this Plan shall be final and conclusive.
SECTION IV
PARTICIPANTS
------------
4.1 PARTICIPANT. A "Participant" shall mean an executive employee
of the Corporation or any of its subsidiaries who shall be selected by the Board
of Directors to participate in this Plan. No member of the Board of Directors
who is not an executive employee of the Corporation or its subsidiaries shall
be eligible to participate in this Plan. The Board of Directors shall be the
sole judge in determining who shall be a Participant. In making its
determination, the Board of Directors shall consider the relative
contribution of each executive employee to the profits of the Corporation or
its subsidiaries, his loyalty, general attitude, ingenuity, initiative, and
such other factors as the Board of Directors may deem material.
4.2 ELIGIBILITY RULES. The Board of Directors from time to time
may adopt, amend, or revoke such definitions, rules and procedures as it
may deem advisable for its own purpose to guide it in determining which of
the executive employees of the Corporation or its subsidiaries it shall deem
eligible to be Participants under this Plan.
SECTION V
NONQUALIFIED STOCK OPTIONS
--------------------------
5.1 OPTION CERTIFICATE. Any Nonqualified Stock Option granted
pursuant to this Plan shall be evidenced by a Nonqualified Stock Option
Certificate in such form as the Board of Directors shall from time to time
approve. The terms, conditions and limitations upon which such Nonqualified
Stock Option shall be granted need not appear on such Nonqualified Stock
Option Certificate but the grant of such Nonqualified Stock Option, as
evidenced by the Certificate issued therefor, shall be subject to such terms,
conditions and limitations as the Board of Directors shall determine and shall
be subject to each and every provision of this Plan.
5.2 OPTION PRICE. The option price per share for which any
Nonqualified Stock Option shall be exercisable shall be set out at the
discretion of the Board of Directors when the option is granted; however,
that the option price shall be no less than the greater of the fair market
value or the book value of the option shares at the time the option is awarded.
5.3 TERM OF OPTION. Every Nonqualified Stock Option granted
hereunder shall expire upon the expiration of the period as prescribed by the
Board of Directors, such date herein being referred to as the "expiration date".
5.4 EXERCISE OF OPTION. Unless otherwise specified by the Board of
Directors, a Nonqualified Stock Option granted hereunder may be exercised at
any time after it has vested and prior to the expiration date. Options
granted to a Participant shall vest at the rate of twenty percent (20%) each
anniversary of the option being granted, commencing with the fifth anniversary.
Alternatively, all options granted to a Participant shall immediately vest in
the event that substantially all of the stock or substantially all of the
assets of the Corporation are sold either simultaneously or as part of a
single transaction. A Participant's options shall vest only while the
Participant is an executive employee of the Corporation.
5.5 DELIVERY OF STOCK UPON EXERCISE. Shares of Common Stock
purchased upon the exercise of any Nonqualified Stock Option shall be paid in
full at the time of purchase. Nonqualified Stock Options which are
exercisable may be exercised from time to time by written notice to the
Corporation stating the number of shares with respect to which the option is
being exercised and the requested time of delivery thereof, which shall be
at least fifteen (15) days after the giving of such notice, unless an earlier
date shall have been mutually agreed upon. At such time, and subject to the
provisions of paragraph 7.6, the Corporation shall, without transfer or
issue tax to the Participant (or other person entitled to exercise such
option), deliver to the Participant (or other person entitled to exercise such
option) at the principal office of the Corporation, or at such other place
as shall be mutually acceptable, a certificate or certificates for such
shares upon payment of the option price in full by certified or cashier's
check or the equivalent thereof acceptable to the Corporation; provided,
however, that the time of such delivery may be postponed by the Corporation
for such period as may be required for it with reasonable diligence to comply
with any requirements of law. If the Participant (or other person entitled to
exercise the option) fails to accept delivery of and pay for all of the
shares specified in such notice upon tender of delivery thereof, such
person's right to exercise the Nonqualified Stock Option with respect to such
undelivered shares may be terminated by the Board of Directors in their sole
discretion.
5.6 CONDITIONS PRECEDENT. As a condition to the issuance of any
Common Stock to a Participant hereunder, the Participant shall be required to
comply with the requirements of paragraphs 7.6 and 7.8 thereof.
5.7 NO DIVIDEND OR VOTING RIGHTS. The award of a Nonqualified
Stock Option under this Plan shall not entitle the Participant to any dividend
or voting rights or any other rights of a shareholder with respect to the
shares covered by such Nonqualified Stock Option.
5.8 NUMBER OF SHARES. The maximum number of shares for which
Nonqualified Stock Options may be granted under the Plan shall not at any time
exceed in the aggregate twenty-five thousand (25,000) shares of the stock of
the Corporation.
5.9 NO ALIENATION. No employee of the Corporation or its
subsidiary corporations, or any other person shall have any claim or right to
be granted a Nonqualified Stock Option under this Plan. The Nonqualified
Stock Options registered in the name of any Participant shall not be subject
to voluntary or involuntary alienation and no Participant shall have any
right to assign, alienate, encumber, transfer, or otherwise dispose of or
alienate any present or future right or expectancy which such Participant
may have at any time with respect to such Nonqualified Stock Options; each
Participant's interest therein being hereby made nonassignable and
nontransferable, except in the event of the Participant's death as provided
in paragraph 6.2.
SECTION VI
CONDITION OF EMPLOYMENT
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6.1 TERMINATION OF EMPLOYMENT. In the event that a Participant's
employment with Corporation or its subsidiary is terminated for any reason
other than by reason of death, disability or normal retirement as provided
in paragraph 6.2, such Participant shall have ninety (90) days from the date
of such termination to exercise any option to purchase Common Stock
hereunder to the extent the Participant shall on the date of such termination
be then entitled to exercise any such option as determined under paragraph
5.4 above. If the Participant shall not exercise such option within said
ninety (90) day period, such option shall be deemed to have been forfeited
and canceled. Any option to purchase Common Stock held by the participant
on the date of termination of such employment which shall not then be
exercisable in accordance with the provisions of paragraph 5.4 above shall
be deemed forfeited and canceled. The Participant shall have no right to
receive any payment for or convert any part of such forfeited and canceled
Nonqualified Stock Option into Common Stock and neither Corporation nor
its subsidiary corporations shall be under any legal obligation whatsoever
to Participant on account of such forfeited and canceled Nonqualified Stock
Option.
6.2 DEATH OR DISABILITY. Subject to the conditions hereinafter
provided, if a Participant's employment with the Corporation or its subsidiary
shall terminate by reason of the death or disability (with disability being
determined by the Board of Directors pursuant to the Social Security guidelines
for disability) of the Participant, any Nonqualified Stock Option theretofore
granted to such Participant shall become immediately exercisable in whole or
in part by the Participant or his legal guardian or, in the event of the
Participant's death, such option shall be exercisable by the decedent's
personal representative or other person to whom such Nonqualified Stock
Option shall pass by reason of the death of the Participant, provided such
Nonqualified Stock Option shall be exercised on or before one hundred eighty
(180) days after termination of the Participant's employment as a result of
retirement, death or disability. Any option to purchase Common Stock not so
exercised shall be deemed forfeited and canceled and neither Corporation nor
its subsidiary corporations shall be under any legal obligation to Participant,
his heirs or personal representative, or any other person on account of any
such forfeited and canceled option.
6.3 TAX MATTERS. The grant of any Nonqualified Stock Option
hereunder and the exercise thereof shall be subject to withholding of income,
employment and other employee withholding taxes required to be withheld by
law.
SECTION VII
GENERAL PROVISIONS
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7.1 TERM OF PLAN. This Plan shall become effective upon its
adoption by the Board of Directors and shall remain in effect for a period of
ten (10) years after the date of adoption by the Board of Directors, unless
sooner terminated by the Board of Directors. The termination of this Plan
shall not affect any Nonqualified Stock Options theretofore granted under
this Plan which have not been exercised as of the date of termination, and
such Nonqualified Stock Options shall remain exercisable in accordance with
their terms notwithstanding the termination of this Plan.
7.2 NO GUARANTEE OF EMPLOYMENT. Neither the action of the
Corporation in establishing this Plan nor any action taken pursuant to the
provisions hereof, nor any provision of this Plan, shall be construed as
giving any Participant the right to be retained in the employ of the
Corporation or any of its subsidiary corporations for any period of time.
7.3 STRICT COMPLIANCE. No person shall have any claim to be
granted or receive any Nonqualified Stock Option except in strict conformity
with the provisions of this Plan and no member of the Board of Directors, or
officer or employee of the Corporation or any of its subsidiaries, or any other
person shall have authority to enter into any agreement with any person for
the award or grant of a Nonqualified Stock Option or to make any
representation or warranty with respect thereto, except in accordance with
this Plan.
7.4 NO LIABILITY. No member of the Board of Directors shall have
any liability for any decision or action taken pursuant to this Plan if made
in good faith and the Corporation shall save, protect, indemnify and hold
harmless each member of the Board of Directors acting in good faith pursuant
to this Plan against any loss or expense arising therefrom to include
reasonable attorneys' fees for all proceedings, trials and appeals.
7.5 ADMINISTRATIVE EXPENSE. The expense of administering this
Plan shall be paid by the Corporation.
7.6 SECURITIES LAW MATTERS. The Common Stock which is the subject
of this Plan has not been registered under either the Securities Act of 1933 or
the Florida Securities Act and the Corporation shall not be obligated to
register such Common Stock under such securities laws. All Common Stock
issued hereunder shall be endorsed to reflect that such Common Stock has not
been registered under such securities laws. No Common Stock acquired
hereunder may be sold or transferred without registration under such
securities laws, or unless sold or transferred in a transaction which is
exempt from such registration. As a condition precedent to the issuance of
any Common Stock to a Participant hereunder, the Participant shall be required
to issue an investment letter in form satisfactory to legal counsel for the
Corporation, representing among other things that the Participant is
acquiring such shares for investment purposes only and not with a view toward
resale or distribution. Notwithstanding anything contained in this Plan to
the contrary, the Corporation shall not be obligated to issue any Common
Stock to a Participant hereunder unless, at the time of such issuance, such
Common Stock has been registered under the aforesaid securities laws or may be
issued under applicable exemptions from such registration. Nothing herein
contained shall require the Corporation to register such Common Stock under
such securities laws.
7.7 MODIFICATION OF NUMBER OF SHARES. Subject to the limitations
contained in paragraph 5.8 of this Plan, in the event of a stock dividend, or
a stock split-up, or in the event of a "corporate transaction" as defined in
Treasury Regulation Section 1.425-1(b)(ii), any unexercised Nonqualified Stock
Option and the unexercised portion of any partially exercised Nonqualified
Stock Option, granted prior to the date of such stock dividend, stock
split-up, or corporate transaction, as the case may be, shall be deemed,
without any further corporate action, to be automatically modified as
required to equitably take into account any such stock dividend, stock
split-up, or corporate transaction, to the extent permitted under Treasury
Regulation Section 1.425-1 et al. The Board of Directors shall have the
right to interpret this provision, and shall have the right to determine the
number of shares for which any such Nonqualified Stock Option shall be
exercisable, and shall have the right to adjust the option price per share as
required to so equitably take into account such action to the extent
permitted by said Treasury Regulations. Any such determination or
adjustment made by the Board of Directors shall be binding and conclusive.
7.8 STOCK RESTRICTION AGREEMENT. As a condition precedent to the
issuance of any stock to a Participant pursuant to this Plan, the Corporation
may require the Participant to execute and deliver to the Corporation an
agreement restricting the transfer of such stock and granting the Corporation
the option to repurchase such stock at an agreed or formula price in the
event of either a proposed transfer of stock to a third party or the death,
disability or termination of employment of the Shareholder. Any such
agreement shall be in such form as may be determined in the sole discretion
of the Corporation and its shareholders.
The foregoing Management Stock Option Plan was adopted by resolution of
the Board of Directors on February 14, 1996 and by resolution of Shareholders
on February 2, 1996.