<PAGE> 1
As filed with the Securities and Exchange Commission on June 1, 1999
Registration No. _________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
SUCCESS BANCSHARES, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 36-3497644
(State or other jurisdiction (I.R.S. Employer
of Identification No.)
incorporation or organization)
ONE MARRIOTT DRIVE
LINCOLNSHIRE, ILLINOIS 60069
(Address of Principal (Zip Code)
Executive Offices)
SUCCESS BANCSHARES, INC.
1998 EMPLOYEE STOCK PURCHASE PLAN
1999 STOCK OPTION PLAN
(Full title of the plans)
WILBUR G. MEINEN
PRESIDENT AND CHIEF EXECUTIVE OFFICER
SUCCESS BANCSHARES, INC.
ONE MARRIOTT DRIVE
LINCOLNSHIRE, ILLINOIS 60069
(Name and address of agent for service)
(847) 279-9061
(Telephone number, including area code, of agent for service)
Please address a copy of all communications to:
JEFFREY C RUBENSTEIN
MUCH SHELIST FREED DENENBERG AMENT & RUBENSTEIN, P.C.
200 N. LASALLE STREET, SUITE 2100
CHICAGO, ILLINOIS 60601
TELEPHONE: (312) 346-3100
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
=========================================================================================================================
TITLE OF SECURITIES AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TO BE TO BE OFFERING PRICE AGGREGATE OFFERING REGISTRATION
REGISTERED REGISTERED(1) PER SHARE(2) PRICE (2) FEE
=========================================================================================================================
<S> <C> <C> <C> <C>
Common Stock (par value $0.001 per share)
to be issued and delivered pursuant to
the 1998 Employee Stock Purchase Plan.......... 200,000 $10.875 $2,175,000 $ 605
- -------------------------------------------------------------------------------------------------------------------------
Common Stock (par value $0.001 per share)
to be issued upon exercise of options
granted under the 1999 Stock Option Plan....... 200,000 $10.875 $2,175,000 $ 605
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
Total............................ 400,000 $4,350,000 $1,210
=========================================================================================================================
</TABLE>
(1) This registration statement also covers such additional number of shares,
presently undeterminable, as may become issuable under the Plans in the
event of stock dividends, stock splits, recapitalizations or other changes
in the Common Stock. The shares subject to this registration statement
reflect the shares issuable pursuant to the 1998 Employee Stock Purchase
Plan and the shares available for issuance upon exercise of options granted
under the 1999 Stock Option Plan all of which may be reoffered in accordance
with the provisions of Form S-8.
(2) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(h), based on the average of the high and low sale
prices as reported by The Nasdaq National Market on May 26, 1999.
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEMS 1 AND 2. The information specified in Item 1 and Item 2 of Part I of Form
S-8 is omitted from this filing in accordance with Rule 428 under the Securities
Act of 1933, as amended (the "Securities Act"), and the introductory note to
Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, heretofore filed by the Company with the
Securities and Exchange Commission (the "Commission") pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), are hereby incorporated
by reference, except as superseded or modified herein:
(a) The Company's Annual Report on Form 10-K for the fiscal
year ended December 31, 1998 filed with the Commission on March 30,
1999.
(b) The Company's Quarterly Report on Form 10-Q for the
quarterly period ended March 31, 1999 filed with the Commission on May
13, 1999.
(c) The description of the common stock set forth in the
Company's Registration Statement on Form S-1 (File No. 0-23235) filed
with the Commission on May 14, 1998, including any amendment or report
filed for the purpose of updating such description.
All documents subsequently filed with the Commission by the Company
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment which indicates that all securities
offered herein have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference in this Registration
Statement and to be a part hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Certain legal matters in connection with the validity of the shares of
Common Stock offered hereby will be passed upon for the Company by Much Shelist
Freed Denenberg Ament & Rubenstein, P.C., Chicago, Illinois, which serves as the
Company's general counsel. Jeffrey C. Rubenstein, a principal of Much Shelist
Freed Denenberg Ament & Rubenstein, P.C., as of May 26, 1999, is the beneficial
holder of 34,254 shares of the Company's Common Stock, the fair market value of
which exceeds $50,000.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company is a Delaware corporation. Reference is made to Section
102(b)(7) of the Delaware General Corporation Law (the "DGCL"), which enables a
corporation in its original certificate of incorporation or an amendment thereto
to eliminate or limit the personal liability of a director for violations of the
director's fiduciary duty, except (i) for any breach of the director's duty of
loyalty to the corporation or its stockholders, (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
law, (iii) pursuant to Section 174 of the DGCL (providing for liability of
directors for unlawful payments of dividends or unlawful stock purchases or
redemptions) or (iv) for any transaction from which a director derived an
improper personal benefit.
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Reference is also made to Section 145 of the DGCL, which provides that
a corporation may indemnify any person, including a director or officer, who was
or is a party or who is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, criminal, administrative
or investigative (other than an action by or in the right of such corporation),
by reason of the fact that such person is or was a director, officer, employee
or agent of such corporation, or is or was serving at the request of such
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise. The indemnity may include
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in connection with
such action, suit or proceeding, provided such director, officer, employee or
agent acted in good faith and in a manner he or she reasonably believed to be
in, or not opposed to, the corporation's best interest and, for criminal
proceedings, had no reasonable cause to believe that his or her conduct was
unlawful. A Delaware corporation may indemnify any officer or director in any
action by or in the right of the corporation under the same conditions, except
that no indemnification is permitted without judicial approval if the officer or
director is adjudged to be liable to the corporation. Where an officer or a
present or former director is successful on the merits or otherwise in the
defense of any action referred to above, the corporation must indemnify him or
her against the expenses that such person actually and reasonably incurred.
The Company's Certificate of Incorporation limits the personal
liability of directors to the fullest extent permitted by Delaware law. In
addition, the Company's Certificate of Incorporation and By-laws provide that
the Company shall, to the fullest extent permitted by Delaware law, indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative by reason of the fact that he or she
is or was a director, officer, employee or agent of the Company or is or was
serving at the request of the Company as a director, officer, employee or agent
of another corporation, partnership, joint venture, trust or other enterprise
against any and all expenses, liabilities or other matters referred to or
covered by Delaware law, which were reasonably incurred by such person. This
indemnification is in addition to any other rights of indemnification to which
such persons may be entitled under the Company's Certificate of Incorporation,
By-laws, any agreement or vote of shareholders or disinterested directors or
otherwise.
The Company's Certificate of Incorporation and By-laws also permit it
to secure insurance on behalf of any director, officer, employee or other agent
for any liability arising out of his or her actions in such capacity, regardless
of whether Delaware law, the Certificate of Incorporation or By-laws would
permit indemnification.
The description of Delaware law is not intended to be complete. The
description of the Company's Certificate of Incorporation and its By-laws is not
intended to be complete and is respectively qualified in its entirety by such
Certificate and By-laws, copies of which have been filed by the Company with the
Commission.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
Exhibit
Number Exhibit Title
- ------ -------------
4.1 Specimen Common Stock Certificate (incorporated herein by
reference to Exhibit 1 to Registration Statement on Form 8-A,
File No. 0-23235).
*4.2 Success Bancshares, Inc. 1998 Employee Stock Purchase Plan.
*4.3 Success Bancshares, Inc. 1999 Stock Option Plan.
*5.1 Opinion of Much Shelist Freed Denenberg Ament & Rubenstein, P.C.
regarding legality.
2
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*23.1 Consent of McGladrey & Pullen, LLP.
23.2 Consent of Much Shelist Freed Denenberg Ament & Rubenstein, P.C.
(included as part of Exhibit 5.1).
24.1 Power of Attorney (included on the signature page of this
Registration Statement).
- ------------------------------
*Filed herewith
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 At of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or in the most recent post-effective amendment thereof)
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 a 20% 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 the undertakings set forth in
paragraphs (a)(1)(i) and (a)(1)(ii) above do not apply if the
information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by registrant
pursuant to Section 13 of Section 15(d) of the Securities Exchange Act
of 1934 that are incorporated by reference in this 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.
(b) The undersigned registrant hereby undertakes that, for the purpose
of determining any liability under the Securities Act of 1933, each filing of
the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
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
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registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act 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 Securities Act of 1933 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
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Lincolnshire, State of Illinois, on May 28, 1999.
SUCCESS BANCSHARES, INC.
By: /s/ Wilbur S. Meinen
-----------------------------------------
Wilbur G. Meinen
President
and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the following
capacities on May 28, 1999.
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Wilbur G, Meinen and Kurt C. Felde and
each of them, his attorney-in-fact, each with the power of substitution, for him
and in his name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this registration statement,
and to sign any registration statement for the same offering covered by this
registration statement that is to be effective upon filing pursuant to Rule
462(b) promulgated under the Securities Act of 1933, and all post-effective
amendments thereto, and to file the same, with all exhibits thereto and all
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 in and about the premises, as fully to all intents and
purposes as he or she might or could do in person, hereby ratifying and
confirming all that such attorneys-in-fact and agents or any of them, or his,
her or their substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
SIGNATURES TITLE
---------- -----
/s/ Wilbur G. Meinen President, Chief Executive Officer
- ------------------------------------------- and Director
Wilbur G. Meinen (Principal Executive Officer)
/s/ Kurt C. Felde Senior Vice President and
- ------------------------------------------- Chief Financial Officer
Kurt C. Felde (Principal Financial and
Accounting Officer)
/s/ Charles G. Freund
- ------------------------------------------- Director
Charles G. Freund
/s/ Avrom H. Goldfeder
- ------------------------------------------- Director
Avrom H. Goldfeder
[signatures continued next page]
S-1
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/s/ Sherwin Koopmans Director
- ------------------------------------------
Sherwin Koopmans
/s/ George M. Ohlhausen Director
- ------------------------------------------
George M. Ohlhausen
/s/ Norman D. Rich Director
- ------------------------------------------
Norman D. Rich
/s/ Glen Wherfel Director
- ------------------------------------------
Glen Wherfel
S-2
<PAGE> 8
LIST OF EXHIBITS
Exhibit
Number Exhibit Title
- ------- -------------
4.1 Specimen Common Stock Certificate (incorporated herein by reference to
Exhibit 1 to Registration Statement on Form 8-A, File No. 0-23235).
*4.2 Success Bancshares, Inc. Employee 1998 Stock Purchase Plan.
*4.3 Success Bancshares, Inc. 1999 Stock Option Plan.
*5.1 Opinion of Much Shelist Freed Denenberg Ament & Rubenstein, P.C.
regarding legality.
*23.1 Consent of McGladrey & Pullen, LLP.
23.2 Consent of Much Shelist Freed Denenberg Ament & Rubenstein, P.C.
(included as part of Exhibit 5.1).
24.1 Power of Attorney (included on the signature page of this Registration
Statement).
- ------------------------------
*Filed herewith
E-1
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EXHIBIT 4.2
SUCCESS BANCSHARES, INC.
1998 EMPLOYEE STOCK PURCHASE PLAN
SECTION 1. ESTABLISHMENT; PURPOSE; SCOPE.
Success Bancshares, Inc. hereby establishes the Success Bancshares,
Inc. 1998 Employee Stock Purchase Plan to encourage and facilitate the purchase
of Common Shares of the Company by eligible employees. The Plan is intended to
provide a further incentive for eligible employees to promote the best interests
of the Company and an additional opportunity to participate in its economic
progress. It is the intention of the Company to have the Plan qualify as an
"employee stock purchase plan" within the meaning of Section 423 of the Code and
provisions of the Plan shall be construed in a manner consistent with the Code.
SECTION 2. DEFINITIONS; CONSTRUCTION.
As used in the Plan, as of any time of reference, and unless the
context otherwise required:
(a) "AFFILIATE" means any trade or business entity which is a member of
a controlled group with the Company (as described in Section 414(b) and (c) of
the Code) or is a member of an affiliated service group with the Company (as
described in Section 414(m) of the Code) and any other entity required to be
aggregated with the Company pursuant to final regulations under Section 414(o)
of the Code).
(b) "BOARD" means the Board of Directors of the Company as from time to
time constituted.
(c) "CODE" means the Internal Revenue Code of 1986, as amended.
(d) "COMMITTEE" has the meaning set forth in Section 3 hereof.
(e) "COMMON SHARES" means the common shares, par value $0.001 per
share, of the Company.
(f) "COMPANY" means Success Bancshares, Inc., a Delaware corporation,
and any successor thereto.
(g) "CONTROLLED GROUP" means the Company and its Subsidiaries.
(h) "EFFECTIVE DATE" means December 1, 1998.
<PAGE> 2
(i) "EMPLOYEE STOCK PURCHASE PLAN ACCOUNT" has the meaning set forth in
Section 8 hereof.
(j) "EMPLOYER" means the Company and any corporation that is a member
of the Controlled Group that adopts the Plan with the prior approval of the
Company, as evidenced by a resolution of the Board.
(k) "FAIR MARKET VALUE" means the average closing price of a Common
Share on the NASDAQ Stock Market on the twenty business days preceding the date
of reference.
(l) "OFFERING PRICE" means eighty-five percent (85%) of the Fair Market
Value of a Common Share on the first day of the Purchase Period.
(m) "PARTICIPANT" means any employee of an Employer who meets the
eligibility requirements of Section 4 hereof and who has accepted an offer made
by the Committee pursuant to Section 6(b) hereof.
(n) "PLAN" means the Success Bancshares, Inc. 1998 Employee Stock
Purchase Plan herein set forth and any amendment or supplement thereto.
(o) "PURCHASE DATE" means June 30 or December 31 of each year during
the term of the Plan.
(p) "SUBSIDIARY" means a corporation (other than the Company) in an
unbroken chain of corporations beginning with the Company if each of the
corporations other than the last corporation in the unbroken chain owns stock
possessing 50 percent or more of the total combined voting power of all classes
of stock in one of the other corporations in such chain.
(q) "TERMINATION DATE" means November 30, 2008, or earlier at the
discretion of the Board.
(r) "WITHHOLDING" has the meaning set forth in Section 6(b) hereof.
The masculine gender, when appearing in the Plan, shall be deemed to include the
feminine gender unless the context clearly indicates to the contrary. The words
"HEREOF," "HEREIN," and "HEREUNDER," and other similar compounds of the word
"HERE," shall mean and refer to the entire Plan and not to any particular
provision or section of this document.
SECTION 3. ADMINISTRATION.
The Plan shall be administered by the 1998 Employee Stock Purchase Plan
committee (hereinafter referred to as the "COMMITTEE"), the members of which
shall
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include two individuals selected by the Board who do not satisfy the eligibility
requirements of Section 4 hereunder. Subject to the express provisions hereof,
the Committee shall have complete authority to interpret the Plan, to prescribe,
amend and rescind rules and regulations relating to it and to make all other
determinations necessary or advisable for the administration of the Plan. The
Committee's determinations on the matters referred to in this paragraph shall be
conclusive. No member of the Committee shall be personally liable for any
decision or determination made in good faith under the Plan.
SECTION 4. ELIGIBILITY.
(a) Any employee of an Employer shall be eligible to participate in the
Plan, provided he (i) is employed by Employer on December 31, 1998 or (ii) has
at least six (6) months of continuous service with an Employer, except for those
employees (a) whose customary employment is less 20 hours or less per week, (b)
whose customary employment is not for more than 5 months in any calendar year or
(c) who are covered by a union collective bargaining agreement. For the sole
purpose of calculating length of service under the Plan, employees shall be
credited for service with an Employer immediately prior to the Company's
acquisition of such Employer or other member of the Controlled Group, or any
Affiliate thereof. No eligibility provision hereof shall permit or deny
participation in the Plan in a manner contrary to the applicable requirements of
the Code and the regulations promulgated thereunder.
(b) Notwithstanding anything herein to the contrary, no employee shall
be entitled to participate in the Plan if such employee, immediately after the
grant of an option, would own shares (including shares which may be purchased
under the Plan) possessing five percent or more of the total combined voting
power of value of all classes of stock of the Company or its Subsidiaries,
actually issued and outstanding immediately after such grant. For the foregoing
purposes, the rules of stock attribution set forth in Section 424(d) of the Code
shall apply in determining share ownership.
SECTION 5. PURCHASE PRICE.
The purchase price shall be the lesser of (i) the Offering Price or
(ii) 85 percent of the Fair Market Value of a Common Share on the last day of
such Purchase Period; in all instances adjusted to the nearest 1/8 point.
SECTION 6. NUMBER OF COMMON SHARES OFFERED.
(a) The maximum number of shares which shall be available for purchase
under the Plan shall be 200,000 Common Shares of the Company, subject to
adjustment as provided in Section 13. The Common Shares to be sold under the
Plan may at the election of the Company be either treasury shares or shares
originally issued for such purpose.
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(b) A Participant shall be entitled to elect to have withheld from his
payroll any amount from a minimum of 2 percent up to a maximum of 12 percent of
his compensation ("WITHHOLDING"). Subject to the reductions as provided in
Section 6(c) below, the total amount of Withholding shall be used to purchase
Common Shares. For purposes of this Section 6(b), "compensation" means: (i) for
any hourly employee, the hourly rate in effect as of January 1 of each year (or
such rate or salary in effect at the time the employee becomes eligible to
participate in the Plan, if later) multiplied by the number of regular hours in
a work year and (ii) for any salaried employee, the annual salary in effect at
January 1 of each year (or such rate or salary in effect at the time the
employee becomes eligible to participate in the Plan, if later). Amounts which
are not included in an employee's income for federal income tax purposes due to
Section 125 or 402(e)(3) of the Code shall be included in determining
compensation for purposes of items (i) and (ii) above. For purposes of this
Section 6, the number of shares to be purchased equal to 2 percent of the
Participant's compensation shall be called the "Base Shares," and any number of
additional shares to be purchased in excess of the Base Shares shall be called
the "Additional Shares."
(c) No Participant may elect to purchase shares under the Plan that
would result in the Participant's purchase of shares in any calendar year (under
the Plan and other employee stock purchase plans within the meaning of Section
423 of the Code) of the Company and its Subsidiaries with an aggregate fair
market value (determined at the time such election is exercisable) in excess of
$25,000.
(d) In the event that Participants elect to purchase more shares than
are available under the Section 6(a) above, the maximum amount of Common Shares
that any Participant shall be permitted to purchase shall be reduced until the
total number of shares that all Participants, in the aggregate, have elected to
purchase pursuant to Section 6(b) above equals the number of shares available
under Section 6(a) above, first reducing proportionately the number of
Additional Shares elected by each Participant; and second, reducing
proportionately the number of Base Shares elected by each Participant.
Notwithstanding the preceding sentences of this Section 6(d), no Participant may
purchase fewer than ten shares.
SECTION 7. ENROLLMENT PERIOD; EMPLOYEE'S ELECTION TO PARTICIPATE
(a) The Committee shall establish an enrollment period during which an
eligible employee may elect to purchase shares by executing and delivering to
the Company an enrollment and payroll deduction authorization form.
(b) An election to purchase shall not constitute a contract to
purchase. Such an election shall merely notify the Company of the amount of the
payroll deduction authorized by the Participant for the Purchase Period and each
succeeding Purchase Period until the next Purchase Date.
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SECTION 8. PURCHASE PERIOD; PAYMENT FOR SHARES.
(a) The "PURCHASE PERIOD" shall commence on December 31, 1998 and shall
end on the earliest of the following dates: (i) the Termination Date, (ii) the
Purchase Date effective with which the Participant elects to stop his payroll
deductions, and (iii) the date the Participant terminates service with the
Employer, subject to the provisions of Section 11 hereof.
(b) Concurrently with his election, the Participant shall authorize a
payroll deduction during each Purchase Period, which election shall continue
until the Participant changes his election in writing before the Purchase Date
of a future Purchase Period.
(c) All payroll deductions held by the Company under the Plan shall be
held without interest.
(d) The Company shall purchase Common Shares on behalf of each
Participant pursuant to Section 9 hereof as soon as administratively practicable
after each Purchase Date.
(e) All payroll deductions in the possession of the Company shall be
segregated from the general funds of the Company in an account established to
hold such payroll deductions (hereinafter referred to as the "EMPLOYEE STOCK
PURCHASE PLAN ACCOUNT"). The Employee Stock Purchase Plan Account shall be
restricted to the uses provided herein until such time as the Company issues
certificates to Participants purchasing Common Shares under the Plan.
The Committee shall have custody of such account.
SECTION 9. ISSUANCE AND DELIVERY OF STOCK CERTIFICATES; REGISTRATION.
(a) Certificates for Common Shares shall be issued and delivered to
each Participant for the number of Common Shares paid for in full as soon as
administratively practicable after each Purchase Date. No fractional shares will
be issued at any time.
(b) As and whenever the Common Shares are issued to Participants
pursuant to this Section 9, the Committee shall remit to the Company for its
general purposes, out of the Employee Stock Purchase Plan Account, cash in an
amount equal to the purchase price under the Plan of the Common Shares so
issued. When all Common Shares purchasable under the Plan have been issued, any
payroll deductions that have not been used to purchase Common Shares shall be
returned to each participant.
(c) Shares to be delivered to a Participant under the Plan shall be
registered in the name of the Participant or, if the Participant so directs by
written notice to the
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Company prior to the issuance thereof, in the names of the Participant and one
other person as the Participant may designate, as joint tenants with right of
survivorship.
SECTION 10. PARTICIPANT'S RIGHT TO STOP PAYROLL WITHHOLDING.
At any time during the term of the Plan a Participant may elect,
effective on the next succeeding Purchase Date, to stop the payroll withholding
upon prior written notice to the Company.
SECTION 11. TERMINATION OF EMPLOYMENT OR ELIGIBILITY.
(a) RETIREMENT OR DEATH. Upon termination of employment because of
retirement or death, the number of Common Shares paid for in full by the
Participant upon the application of all accumulated payroll deductions,
including from compensation due and owing, shall be purchased for the
Participant (or, in the case of the Participant's death, the beneficiary
designated by the Participant in accordance with procedures prescribed by the
Committee, or if no such beneficiary designation is in effect with respect to
such Participant, the Participant's estate), unless the Participant (or, in the
case of the Participant's death, his designated beneficiary or estate, as the
case may be) elects to abandon all or any such number of the Common Shares then
purchasable, pursuant to any rules or regulations the Committee shall make.
(b) OTHER TERMINATION OF EMPLOYMENT. Upon termination of employment
with an Employer for any reason other than as a result of retirement or death as
described in Section 11(a) above, the amount withheld from the Participant's pay
pursuant to Section 8 which has not already been used to purchase Common Shares
shall be returned to him as soon as administratively practicable.
SECTION 12. RIGHTS NOT TRANSFERABLE.
The right to purchase Common Shares under this Plan shall not be
transferable by any Participant or exercisable, during his lifetime, by any
person other than the Participant.
SECTION 13. CHANGES IN THE COMPANY'S CAPITAL STRUCTURE.
(a) The existence of the Plan shall not affect in any way the right or
power of the Company or its shareholders to make or authorize any adjustment,
recapitalization, reorganization or other change in the Company's capital
structure or its business, or any merger or consolidation of the Company, or any
issue of bonds, debentures, preferred or prior preference stock that affects the
Common Shares or the rights thereof, or the dissolution or liquidation of the
Company, or any sale or transfer of all or any part of its assets or business,
or any other corporate act or proceeding, whether of a similar character or
otherwise.
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<PAGE> 7
(b) If, during the term of the Plan, the Company shall effect (i) a
distribution or payment of a dividend on its Common Shares in shares of the
Company, (ii) a subdivision of its outstanding Common Shares by a stock split or
otherwise, (iii) a combination of the outstanding Common Shares into a smaller
number of shares by a reverse stock split or otherwise, or (iv) an issuance by
reclassification or other reorganization of its Common Shares (other than by
merger or consolidation) of any shares of the Company, then each Participant
shall be entitled to receive upon the purchase of shares pursuant to this Plan
such shares of the Company which the Participant would have owned or would have
been entitled to receive after the happening of such event had the Participant
purchased Common Shares pursuant to the Plan immediately prior to the happening
of such event. If any other event shall occur that, in the judgment of the
Board, necessitates adjusting the Offering Price, the number of Common Shares
offered or other terms of the Plan, the Board shall take any action that in its
judgment shall be necessary to preserve each Participant's rights substantially
proportionate to the rights existing prior to such event. To the extent that any
event or action pursuant to this Section 13(b) shall entitle Participants to
purchase additional Common Shares or other shares of the Company, the shares
available under Section 6 shall be deemed to include such additional Common
Shares or such other shares of the Company.
(c) In the event of a merger of one or more corporations into the
Company, or a consolidation of the Company and one or more corporations in which
the Company shall be the surviving corporation, each Participant in the Plan
shall, at no additional cost, be entitled, upon his payment for all or part of
the Common Shares purchasable by him under the Plan, to receive (subject to any
required action by shareholders) in lieu of the number of Common Shares which he
was entitled to purchase, the number and class of shares of stock or other
securities to which such holder would have been entitled pursuant to the terms
of the agreement of merger or consolidation if, immediately prior to such merger
or consolidation, such holder had been the holder of record of the number of
Common Shares equal to the number of shares paid for by the Participant.
(d) If the Company is merged into or consolidated with another
corporation under circumstances where the Company is not the surviving
corporation, or if the Company sells or otherwise disposes of substantially all
of its assets to another corporation during the term of the Plan: (i) subject to
the provisions of clause (ii) below, after the effective date of such merger,
consolidation or sale, as the case may be, each holder of a right to purchase
shall be entitled to receive, upon his payment for all or part of the Common
Shares purchasable by him under the Plan, in lieu of Common Shares, shares of
such stock or other securities as the holders of Common Shares received pursuant
to the terms of the merger, consolidation or sale; and (ii) all outstanding
rights to purchase may be canceled by the Board as of the effective date of any
such merger,
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<PAGE> 8
consolidation or sale, provided that (A) notice of such cancellation shall be
given to each Participant and (B) each such Participant shall have the right to
purchase, during a 30-day period preceding the effective date of such merger,
consolidation or sale, all or any part of the shares which would be allocated to
him under the terms of the Plan if the Purchase Date were set 30 days preceding
said effective date.
(e) Except as hereinbefore expressly provided, the issuance by the
Company of shares of stock of any class, or securities convertible into shares
of stock of any class, for cash or property, or for labor or services either
upon direct sale or upon the exercise of rights or warrants to subscribe
therefor, or upon conversion of shares or obligations of the Company convertible
into such shares or other securities, shall not affect, and no adjustment by
reason thereof shall be made with respect to, the number or price of Common
Shares then available for purchase under the Plan.
SECTION 14. SHAREHOLDER APPROVAL.
The Plan is subject to the approval of a majority of the votes cast on
the matter by the shareholders of the Company within 12 months before or after
its adoption by the Board.
SECTION 15. RIGHTS OF A SHAREHOLDER.
No Participant shall have rights or privileges of a shareholder of the
Company with respect to shares purchasable under the Plan unless and until the
Participant shall become the holder of record of one or more Common Shares.
SECTION 16. NO REPURCHASE OF COMMON SHARES BY COMPANY.
The Company is not obligated to repurchase from any Participant Common
Shares he has acquired under the Plan.
SECTION 17. AMENDMENT OF THE PLAN.
The Board may at any time, and from time to time, amend the Plan in any
respect, except that, without the approval of the shareholders of the Company,
no amendment may be made that changes the number of shares to be reserved under
the Plan (other than as provided in Section 13) or the designation of
Subsidiaries whose employees may be offered options under the Plan.
SECTION 18. TERMINATION OF THE PLAN.
While it is intended that the Plan remain in effect for the term of the
Plan, the Board may terminate the Plan at any time in its discretion. Upon
termination of the Plan, the Committee shall terminate payroll deductions and,
unless the Participant elects to abandon his shares, shall issue and deliver to
each Participant certificates for the number of Common Shares paid for in full.
A Participant may elect, upon termination of the Plan, to abandon all or any
number of the Common Shares then
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<PAGE> 9
purchasable by and not yet issued to him, provided that a Participant may not
retain the right to purchase fewer than 20 Common Shares. The Committee shall
refund to the Participant any amount in the Employee Stock Purchase Plan Account
contributed by the Participant that exceeds the amount necessary to purchase the
number of Common Shares the Participant elects to purchase and not abandon. If
the Participant retains no right to purchase Common Shares, the Committee shall
refund to the Participant any amount in the Employee Stock Purchase Plan Account
contributed by the Participant. Any contributions remaining in the Employee
Stock Purchase Plan Account shall be refunded to the Participants making such
contributions as soon as administratively practicable after termination of the
Plan.
SECTION 19. COMPLIANCE WITH STATUTES AND REGULATIONS.
The sale and delivery of Common Shares under the Plan shall be in
compliance with relevant statutes and regulations of governmental authorities,
including state securities laws and regulations, and with the regulations of
applicable stock exchanges.
SECTION 20. GOVERNING LAW.
This Plan and all determinations made hereunder and action taken
pursuant hereto shall be governed by the laws of the State of Delaware and
construed in accordance therewith.
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EXHIBIT 4.3
SUCCESS BANCSHARES, INC.
1999 STOCK OPTION PLAN
SECTION 1. PURPOSE
The purpose of the Success Bancshares, Inc. 1999 Stock Option Plan (the
"PLAN") is to enhance the long-term stockholder value of Success Bancshares,
Inc., a Delaware corporation (the "COMPANY"), by offering opportunities to
employees, directors, officers, consultants, agents, advisors and independent
contractors of the Company and its wholly owned subsidiary, Success National
Bank, N.A., an Illinois banking corporation ("SUBSIDIARY"), to participate in
the Company's growth and success, and to encourage them to remain in the service
of the Company and its Subsidiary and to acquire and maintain stock ownership in
the Company.
SECTION 2. DEFINITIONS
For purpose of the Plan, the following terms shall be defined as set
forth below:
2.1 BOARD
"BOARD" means the Board of Directors of the Company.
2.2 CAUSE
"CAUSE" means dishonesty, fraud, misconduct, unauthorized use or
disclosure of confidential information or trade secrets, or conviction or
confession of a crime punishable by law (except minor violations), in each case
as determined by the Plan Administrator, and its determination shall be
conclusive and binding.
2.3 CODE
"CODE" means the Internal Revenue Code of 1986, as amended from time to
time.
2.4 COMMON STOCK
"COMMON STOCK" means the common stock, no par value, of the Company.
2.5 CORPORATE TRANSACTION
"CORPORATE TRANSACTION" means any of the following events:
(a) Consummation of any merger or consolidation of the Company
in which the Company is not the continuing or surviving corporation, or
pursuant to which shares of the Common Stock are converted into cash,
securities or other property (other than a merger of the Company in
which the holders of Common Stock immediately prior to the merger have
the same proportionate ownership of capital stock of the surviving
corporation immediately after the merger);
(b) Consummation of any sale, lease, exchange or other
transfer in one transaction or a series of related transactions of all
or substantially all of the Company's assets other than a
<PAGE> 2
transfer of the Company's assets to a majority-owned subsidiary
corporation (as the term "subsidiary corporation" is defined in Section
8.3) of the Company; or
(c) Approval by the holders of the Common Stock of any plan or
proposal for the liquidation or dissolution of the Company.
Ownership of voting securities shall take into account and shall
include ownership as determined by applying Rule 13d-3(d) (1) (i) (as in effect
on the date of adoption of the Plan) under the Exchange Act.
2.6 DISABILITY
"DISABILITY" means "disability" as that term is defined for purposes of
Section 22(e)(3) of the Code.
2.7 EXCHANGE ACT
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
2.8 FAIR MARKET VALUE
The "FAIR MARKET VALUE" shall be as established in good faith by the
Plan Administrator or (a) if the Common Stock is listed on the Nasdaq National
Market, the average of the high and low per share sales prices for the Common
Stock as reported by the Nasdaq National Market for a single trading day or (b)
if the Common Stock is listed on the New York Stock Exchange or the American
Stock Exchange, the average of the high and low per share sales prices for the
Common Stock as such price is officially quoted in the composite tape of
transactions on such exchange for a single trading day. If there is no such
reported price for the Common Stock for the date in question, then such price on
the last preceding date for which such price exists shall be determinative of
the Fair Market Value.
2.9 GRANT DATE
"GRANT DATE" means the date the Plan Administrator adopted the granting
resolution. If, however, the Plan Administrator designates in a resolution a
later date as the date an Option is to be granted, then such later date shall be
the "Grant Date."
2.10 INCENTIVE STOCK OPTION
"INCENTIVE STOCK OPTION" means an Option to purchase Common Stock
granted under Section 7 with the intention that it qualify as an "incentive
stock option" as that term is defined in Section 422 of the Code.
2.11 NONQUALIFIED STOCK OPTION
"NONQUALIFIED STOCK OPTION" means an Option to purchase Common Stock
granted under Section 7 other than an Incentive Stock Option.
2.12 OPTION
"OPTION" means the right to purchase Common Stock granted under Section
7.
2.13 OPTIONEE
"OPTIONEE" means (i) the person to whom an Option is granted; (ii) for
an Optionee who has died, the personal representative of the Optionee's estate,
the person(s) to whom the Optionee's rights under the Option have passed by will
or by the applicable laws of descent and distribution, or the beneficiary
designated in accordance with Section 9; or (iii) person(s) to whom an Option
has been transferred in accordance with Section 9.
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2.14 PLAN ADMINISTRATOR
"PLAN ADMINISTRATOR" means the Board or any committee of the Board
designated to administer the Plan under Section 3.1.
2.15 SECURITIES ACT
"SECURITIES ACT" means the Securities Act of 1933, as amended.
SECTION 3. ADMINISTRATION
3.1 PLAN ADMINISTRATOR
The Plan shall be administered by the Board or a committee or
committees (which term includes subcommittees) appointed by, and consisting of
two or more members of, the Board. If and so long as the Common Stock is
registered under Section 12(b) or 12(g) of the Exchange Act, the Board shall
consider in selecting the Plan Administrator and the membership of any committee
acting as Plan Administrator, with respect to any persons subject or likely to
become subject to Section 16 of the Exchange Act, the provisions regarding (a)
"outside directors" as contemplated by Section 162(m) of the Code and (b)
"nonemployee directors" as contemplated by Rule 16b-3 under the Exchange Act.
The Board may delegate the responsibility for administering the Plan with
respect to designated classes of eligible persons to different committees
consisting of one or more members of the Board, subject to such limitations as
the Board deems appropriate. Committee members shall serve for such term as the
Board may determine, subject to removal by the Board at any time.
3.2 ADMINISTRATION AND INTERPRETATION BY THE PLAN ADMINISTRATOR
Except for the terms and conditions explicitly set forth in the Plan,
the Plan Administrator shall have exclusive authority, in its discretion, to
determine all matters relating to Options under the Plan, including the
selection of individuals to be granted Options, the type of Options, the number
of shares of Common Stock subject to an Option, all terms, conditions,
restrictions and limitations, if any, of an Option and the terms of any
instrument that evidences the Option. The Plan Administrator shall also have
exclusive authority to interpret the Plan and may from time to time adopt, and
change, rules and regulations of general application for the Plan's
administration. The Plan Administrator's interpretation of the Plan and its
rules and regulations, and all actions taken and determinations made by the Plan
Administrator pursuant to the Plan, shall be conclusive and binding on all
parties involved or affected. The Plan Administrator may delegate administrative
duties to such of the Company's officers as it so determines.
SECTION 4. STOCK SUBJECT TO THE PLAN
4.1 AUTHORIZED NUMBER OF SHARES
Subject to adjustment from time to time as provided in Section 10.1, a
maximum of 200,000 shares of Common Stock shall be available for issuance under
the Plan. Shares issued under the Plan shall be drawn from authorized and
unissued shares or shares now held or subsequently acquired by the Company as
treasury shares.
4.2 REUSE OF SHARES
Any shares of Common Stock that have been made subject to an Option
that cease to be subject to the Option (other than by reason of exercise of the
Option to the extent it is exercised for shares) shall again be available for
issuance in connection with future grants of Options under the Plan; provided,
however, that for purposes of Section 4.2, any such shares shall be counted in
accordance with the requirements of Section 162(m) of the Code.
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<PAGE> 4
SECTION 5. ELIGIBILITY
Options may be granted under the Plan to those officers, directors and
employees of the Company and its Subsidiary as the Plan Administrator from time
to time selects. Options may also be granted to consultants, agents, advisors
and independent contractors who provide services to the Company and its
Subsidiary.
SECTION 6. AWARDS
6.1 FORM AND GRANT OF OPTIONS
The Plan Administrator shall have the authority, in its sole
discretion, to determine the type or types of awards to be made under the Plan.
Such awards may consist of Incentive Stock Options and/or Nonqualified Stock
Options. Options may be granted singly or in combination.
6.2 ACQUIRED COMPANY OPTION AWARDS
Notwithstanding anything in the Plan to the contrary, the Plan
Administrator may grant Options under the Plan in substitution for awards issued
under other plans, or assume under the Plan awards issued under other plans, if
the other plans are or were plans of other acquired entities ("ACQUIRED
ENTITIES") (or the parent of an Acquired Entity) and the new Option is
substituted, or the old award is assumed, by reason of a merger, consolidation,
acquisition of property or of stock, reorganization or liquidation (the
"ACQUISITION TRANSACTION"). In the event that a written agreement pursuant to
which the Acquisition Transaction is completed is approved by the Board and said
agreement sets forth the terms and conditions of the substitution for or
assumption of outstanding awards of the Acquired Entity, said terms and
conditions shall be deemed to be the action of the Plan Administrator without
any further action by the Plan Administrator, except as may be required for
compliance with Rule 16b-3 under the Exchange Act, and the persons holding such
awards shall be deemed to be Optionees.
SECTION 7. TERMS AND CONDITIONS OF OPTIONS
7.1 GRANT OF OPTIONS
The Plan Administrator is authorized under the Plan, in its sole
discretion, to issue Options as Incentive Stock Options or as Nonqualified Stock
Options, which shall be appropriately designated.
7.2 OPTION EXERCISE PRICE
The exercise price for shares purchased under an Option shall be as
determined by the Plan Administrator, but shall not be less than 100% of the
Fair Market Value of the Common Stock on the Grant Date with respect to
Incentive Stock Options.
7.3 TERM OF OPTIONS
The term of each Option shall be as established by the Plan
Administrator or, if not so established, shall be 10 years from the Grant Date.
7.4 EXERCISE AND VESTING OF OPTIONS
The Plan Administrator shall establish and set forth in each instrument
that evidences an Option the time at which or the installments in which the
Option shall vest and become exercisable, which provisions may be waived or
modified by the Plan Administrator at any time (provided, however, that no
Option may become exercisable until at least six months from the Grant Date). If
not so established in the instrument evidencing the Option, the Option will
become exercisable and the shares subject to the Option will vest according to
the following schedule, which may be waived or modified by the Plan
Administrator at any time:
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<TABLE>
<CAPTION>
PERIOD OF OPTIONEE'S CONTINUOUS EMPLOYMENT
OR SERVICE WITH THE COMPANY OR ITS
SUBSIDIARY FROM THE GRANT DATE
PERCENT OF TOTAL OPTION THAT IS VESTED
<S> <C> <C>
After 2 years 25%
After 3 years 50%
After 4 years 75%
After 5 years 100%
</TABLE>
To the extent that the right to purchase shares has accrued thereunder,
an Option may be exercised from time to time by written notice to the Company,
in accordance with procedures established by the Plan Administrator, setting
forth the number of shares with respect to which the Option is being exercised
and accompanied by payment in full as described in Section 7.5.
7.5 PAYMENT OF EXERCISE PRICE
The exercise price for shares purchased under an Option shall be paid
in full to the Company by delivery of consideration equal to the product of the
Option exercise price and the number of shares purchased. Such consideration
must be paid in cash or by check or, unless the Plan Administrator in its sole
discretion determines otherwise, either at the time the Option is granted or at
any time before it is exercised, a combination of cash and/or check (if any) and
one or both of the following alternative forms: (a) tendering (either actually
or, if and so long as the Common Stock is registered under Section 12(b) or
12(g) of the Exchange Act, by attestation) Common Stock already owned by the
Optionee for at least six months (or any shorter period necessary to avoid a
charge to the Company's earnings for financial reporting purposes) having a Fair
Market Value on the day prior to the exercise date equal to the aggregate Option
exercise price or by transferring shares of Common Stock having a Fair Market
Value on the day prior to the exercise date equal to the aggregate Option
exercise price to the Company's transfer agent for delivery to the Company
provided that the written notice of exercise is accompanied by a written
acknowledgment by the Optionee that the Optionee has instructed his broker
dealer to transfer such shares and such transfer is confirmed by a letter from a
broker dealer acknowledging that the Optionee has directed such broker dealer to
transfer such shares; or (b) if and so long as the Common Stock is registered
under Section 12(b) or 12(g) of the Exchange Act, delivery of a properly
executed exercise notice, together with irrevocable instructions, to (i) a
brokerage firm designated by the Company to deliver promptly to the Company the
aggregate amount of sale or loan proceeds to pay the Option exercise price and
any withholding tax obligations that may arise in connection with the exercise
and (ii) the Company to deliver the certificates for such purchased shares
directly to such brokerage firm, all in accordance with the regulations of the
Federal Reserve Board. In addition, the exercise price for shares purchased
under an Option may be paid, either singly or in combination with one or more of
the alternative forms of payment authorized by this Section 7.5, by such other
consideration as the Plan Administrator may permit.
7.6 POST-TERMINATION EXERCISES
The Plan Administrator shall establish and set forth in each instrument
that evidences an Option whether the Option will continue to be exercisable, and
the terms and conditions of such exercise, if an Optionee ceases to be employed
by, or to provide services to, the Company or its Subsidiary, which provisions
may be waived or modified by the Plan Administrator at any time. If not so
established in the instrument evidencing the Option, the Option will be
exercisable according to the following terms and conditions, which may be waived
or modified by the Plan Administrator at any time.
In case of termination of the Optionee's employment or services other
than by reason of death or Cause, the Option shall be exercisable, to the extent
of the number of shares vested at the date of such termination, only (a) within
six months (twelve months for non-employee Directors) of such termination if the
termination of the Optionee's employment or services is coincident with
Disability or (b) within three months (twelve months for non-employee Directors)
after the date the Optionee ceases to be an employee,
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<PAGE> 6
director, officer, consultant, agent, advisor or independent contractor of the
Company or its Subsidiary, but in no event later than the remaining term of the
Option. Any Option exercisable at the time of the Optionee's death may be
exercised, to the extent of the number of shares vested at the date of the
Optionee's death, by the personal representative of the Optionee's estate, the
person(s) to whom the Optionee's rights under the Option have passed by will or
the applicable laws of descent and distribution or the beneficiary designated
pursuant to Section 9 at any time or from time to time within six months (twelve
months for non-employee Directors) after the date of death, but in no event
later than the remaining term of the Option. Any portion of an Option that is
not vested on the date of termination of the Optionee's employment or services
shall terminate on such date, unless the Plan Administrator determines
otherwise. In case of termination of the Optionee's employment or services for
Cause, the Option shall automatically terminate upon first notification to the
Optionee of such termination, unless the Plan Administrator determines
otherwise. If an Optionee's employment or services with the Company are
suspended pending an investigation of whether the Optionee shall be terminated
for Cause, all the Optionee's rights under any Option likewise shall be
suspended during the period of investigation.
With respect to employees, unless the Plan Administrator at any time
determines otherwise, "termination of the Optionee's employment or services" for
purposes of the Plan (including without limitation this Section 7), shall mean
any reduction in the Optionee's regular hours of employment to less than thirty
(30) hours per week. A transfer of employment or services between or among the
Company and its Subsidiary shall not be considered a termination of employment
or services. The effect of a Company-approved leave of absence on the terms and
conditions of an Option shall be determined by the Plan Administrator, in its
sole discretion.
SECTION 8. INCENTIVE STOCK OPTION LIMITATIONS
To the extent required by Section 422 of the Code, Incentive Stock
Options shall be subject to the following additional terms and conditions:
8.1 DOLLAR LIMITATION
To the extent the aggregate Fair Market Value (determined as of the
Grant Date) of Common Stock with respect to which Incentive Stock Options are
exercisable for the first time during any calendar year (under the Plan and all
other stock option plans of the Company) exceeds $100,000, such portion in
excess of $100,000 shall be subject to delayed exercisability or treated as a
Nonqualified Stock Option as set forth by the Plan Administrator in the
agreement(s) evidencing the Option. In the event the Optionee holds two or more
such Options that become exercisable for the first time in the same calendar
year, such limitation shall be applied on the basis of the order in which such
Options are granted.
8.2 10% STOCKHOLDERS
If an individual owns more than 10% of the total voting power of all
classes of the Company's stock, then the exercise price per share of an
Incentive Stock Option shall not be less than 110% of the Fair Market Value of
the Common Stock on the Grant Date and the Option term shall not exceed five
years. The determination of 10% ownership shall be made in accordance with
Section 422 of the Code.
8.3 ELIGIBLE EMPLOYEES
Individuals who are not employees of the Company or its subsidiary
corporation may not be granted Incentive Stock Options. For purposes of this
Section 8.3, "subsidiary corporation" shall have the meaning attributed to that
term in Section 422 of the Code.
8.4 TERM
The term of an Incentive Stock Option shall not exceed 10 years.
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<PAGE> 7
8.5 EXERCISABILITY
To qualify for Incentive Stock Option tax treatment, an Option
designated as an Incentive Stock Option must be exercised within three months
after termination of employment for reasons other than death, except that, in
the case of termination of employment due to total disability, such Option must
be exercised within one year after such termination. Employment shall not be
deemed to continue beyond the first 90 days of a leave of absence unless the
Optionee's reemployment rights are guaranteed by statute or contract. For
purposes of this Section 8.5, "total disability" shall mean a mental or physical
impairment of the Optionee that is expected to result in death or that has
lasted or is expected to last for a continuous period of 12 months or more and
that causes the Optionee to be unable, in the opinion of the Company, to perform
his or her duties for the Company or its Subsidiary and to be engaged in any
substantial gainful activity. Total disability shall be deemed to have occurred
on the first day after the Company or its Subsidiary has furnished its opinion
of total disability to the Plan Administrator.
8.6 TAXATION OF INCENTIVE STOCK OPTIONS
In order to obtain certain tax benefits afforded to Incentive Stock
Options under Section 422 of the Code, the Optionee must hold the shares issued
upon the exercise of an Incentive Stock Option for two years after the Grant
Date of the Incentive Stock Option and one year from the date of exercise. An
Optionee may be subject to the alternative minimum tax at the time of exercise
of an Incentive Stock Option. The Plan Administrator may require an Optionee to
give the Company prompt notice of any disposition of shares acquired by the
exercise of an Incentive Stock Option prior to the expiration of such holding
periods.
SECTION 9. ASSIGNABILITY
No Option granted under the Plan may be assigned, pledged or
transferred by the Optionee other than by will or by the applicable laws of
descent and distribution, and, during the Optionee's lifetime, such Option may
be exercised only by the Optionee or a permitted assignee or transferee of the
Optionee (as provided below). Notwithstanding the foregoing, and to the extent
permitted by Section 422 of the Code, the Plan Administrator, in its sole
discretion, may permit such assignment, transfer and exercisability and may
permit an Optionee to designate a beneficiary who may exercise the Option after
the Optionee's death; provided, however, that any Option so assigned or
transferred shall be subject to all the same terms and conditions contained in
the instrument evidencing the Option.
SECTION 10. ADJUSTMENTS
10.1 ADJUSTMENT OF SHARES
In the event that, at any time or from time to time, a stock dividend,
stock split, spin-off, combination or exchange of shares, recapitalization,
merger, consolidation, distribution to stockholders other than a normal cash
dividend, or other change in the Company's corporate or capital structure
results in (a) the outstanding shares, or any securities exchanged therefor or
received in their place, being exchanged for a different number or class of
securities of the Company or of any other corporation or (b) new, different or
additional securities of the Company or of any other corporation being received
by the holders of shares of Common Stock of the Company, then the Plan
Administrator shall make proportional adjustments in (i) the maximum number and
kind of securities subject to the Plan as set forth in Section 4.1, (ii) the
maximum number and kind of securities that may be made subject to options to any
individual as set forth in Section 4.2, and (iii) the number and kind of
securities that are subject to any outstanding Option and the per share price of
such securities, without any change in the aggregate price to be paid therefor.
The determination by the Plan Administrator as to the terms of any of the
foregoing adjustments shall be conclusive and binding.
10.2 CORPORATE TRANSACTION
Except as otherwise provided in the instrument that evidences the
Option, in the event of a Corporate Transaction, the Plan Administrator shall
determine whether provision will be made in
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<PAGE> 8
connection with the Corporate Transaction for an appropriate assumption of the
Options theretofore granted under the Plan (which assumption may be effected by
means of a payment to each Optionee (by the Company or any other person or
entity involved in the Corporate Transaction), in exchange for the cancellation
of the Options held by such Optionee, of the difference between the then Fair
Market Value of the aggregate number of shares of Common Stock then subject to
such Options and the aggregate exercise price that would have to be paid to
acquire such shares) or for substitution of appropriate new options covering
stock of a successor corporation to the Company or stock of an affiliate of such
successor corporation. If the Plan Administrator determines that such an
assumption or substitution will be made, the Plan Administrator shall give
notice of such determination to the Optionees, and the provisions of such
assumption or substitution, and any adjustments made (i) to the number and kind
of shares subject to the outstanding Options (or to the options in substitution
therefor), (ii) to the exercise prices, and/or (iii) to the terms and conditions
of the stock options, shall be binding on the Optionees. Any such determination
shall be made in the sole discretion of the Plan Administrator and shall be
final, conclusive and binding on all Optionees. If the Plan Administrator, in
its sole discretion, determines that no such assumption or substitution will be
made, each Option that is exercisable but not exercised and each Option that is
not exercisable prior to the specified effective date for the Corporate
Transaction, shall terminate and cease to remain outstanding immediately
following the consummation of the Corporate Transaction, except to the extent
assumed by the successor corporation or an affiliate thereof.
10.3 FURTHER ADJUSTMENT OF OPTIONS
Subject to Section 10.2, the Plan Administrator shall have the
discretion, exercisable at any time before a sale, merger, consolidation,
reorganization, liquidation or change in control of the Company, as defined by
the Plan Administrator, to take such further action as it determines to be
necessary or advisable, and fair and equitable to Optionees, with respect to
Options. Such authorized action may include (but shall not be limited to)
establishing, amending or waiving the type, terms, conditions or duration of, or
restrictions on, Options so as to provide for earlier, later, extended or
additional time for exercise and other modifications, and the Plan Administrator
may take such actions with respect to all Optionees, to certain categories of
Optionees or only to individual Optionees. The Plan Administrator may take such
action before or after granting Options to which the action relates and before
or after any public announcement with respect to such sale, merger,
consolidation, reorganization, liquidation or change in control that is the
reason for such action.
10.4 LIMITATIONS
The grant of Options will in no way affect the Company's right to
adjust, reclassify, reorganize or otherwise change its capital or business
structure or to merge, consolidate, dissolve, liquidate or sell or transfer all
or any part of its business or assets.
SECTION 11. WITHHOLDING
The Company may require the Optionee to pay to the Company the amount
of any withholding taxes that the Company is required to withhold with respect
to the grant or exercise of any Option. Subject to the Plan and applicable law,
the Plan Administrator may, in its sole discretion, permit the Optionee to
satisfy withholding obligations, in whole or in part, by paying cash, by
electing to have the Company withhold shares of Common Stock or by transferring
shares of Common Stock to the Company, in such amounts as are equivalent to the
Fair Market Value of the withholding obligation. The Company shall have the
right to withhold from any shares of Common Stock issuable pursuant to an Option
or from any cash amounts otherwise due or to become due from the Company to the
Optionee an amount equal to such taxes. The Company may also deduct from any
Option any other amounts due from the Optionee to the Company or its Subsidiary.
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SECTION 12. AMENDMENT AND TERMINATION OF PLAN
12.1 AMENDMENT OF PLAN
The Plan may be amended only by the Board in such respects as it shall
deem advisable; however, to the extent required for compliance with Section 422
of the Code or any applicable law or regulation, stockholder approval will be
required for any amendment that will (a) increase the total number of shares as
to which Options may be granted under the Plan, (b) modify the class of persons
eligible to receive Options, or (c) otherwise require stockholder approval under
any applicable law or regulation.
12.2 TERMINATION OF PLAN
The Board may suspend or terminate the Plan at any time. The Plan will
have no fixed expiration date; provided, however, that no Incentive Stock
Options may be granted more than 10 years after the earlier of the Plan's
adoption by the Board and approval by the stockholders.
12.3 CONSENT OF OPTIONEE
The amendment or termination of the Plan shall not, without the consent
of the Optionee, impair or diminish any rights or obligations under any Option
theretofore granted under the Plan.
Any change or adjustment to an outstanding Incentive Stock Option shall
not, without the consent of the Optionee, be made in a manner so as to
constitute a "modification" that would cause such Incentive Stock Option to fail
to continue to qualify as an Incentive Stock Option.
SECTION 13. GENERAL
13.1 OPTION AGREEMENTS
Options granted under the Plan shall be evidenced by a written
agreement that shall contain such terms, conditions, limitations and
restrictions as the Plan Administrator shall deem advisable and that are not
inconsistent with the Plan.
13.2 CONTINUED EMPLOYMENT OR SERVICES; RIGHTS IN OPTIONS
None of the Plan, participation in the Plan or any action of the Plan
Administrator taken under the Plan shall be construed as giving any person any
right to be retained in the employ of the Company or limit the Company's right
to terminate the employment or services of any person.
13.3 REGISTRATION
The Company shall be under no obligation to any Optionee to register
for offering or resale or to qualify for exemption under the Securities Act, or
to register or qualify under state securities laws, any shares of Common Stock,
security or interest in a security paid or issued under, or created by, the
Plan, or to continue in effect any such registrations or qualifications if made.
The Company may issue certificates for shares with such legends and subject to
such restrictions on transfer and stop-transfer instructions as counsel for the
Company deems necessary or desirable for compliance by the Company with federal
and state securities laws.
Inability of the Company to obtain, from any regulatory body having
jurisdiction, the authority deemed by the Company's counsel to be necessary for
the lawful issuance and sale of any shares hereunder or the unavailability of an
exemption from registration for the issuance and sale of any shares hereunder
shall relieve the Company of any liability in respect of the nonissuance or sale
of such shares as to which such requisite authority shall not have been
obtained.
As a condition to the exercise of an Option, the Company may require
the Optionee to represent and warrant at the time of any such exercise or
receipt that such shares are being purchased or received
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<PAGE> 10
only for the Optionee's own account and without any present intention to sell or
distribute such shares if, in the opinion of counsel for the Company, such a
representation is required by any relevant provision of the aforementioned laws.
At the option of the Company, a stop-transfer order against any such shares may
be placed on the official stock books and records of the Company, and a legend
indicating that such shares may not be pledged, sold or otherwise transferred,
unless an opinion of counsel is provided (concurred in by counsel for the
Company) stating that such transfer is not in violation of any applicable law or
regulation, may be stamped on stock certificates to ensure exemption from
registration. The Plan Administrator may also require such other action or
agreement by the Optionee as may from time to time be necessary to comply with
the federal and state securities laws.
13.4 NO RIGHTS AS A STOCKHOLDER
No Option shall entitle the Optionee to any dividend, voting or other
right of a stockholder unless and until the date of issuance under the Plan of
the shares that are the subject of such Option, free of all applicable
restrictions.
13.5 COMPLIANCE WITH LAWS AND REGULATIONS
Notwithstanding anything in the Plan to the contrary, the Board, in its
sole discretion, may bifurcate the Plan so as to restrict, limit or condition
the use of any provision of the Plan to Optionees who are officers or directors
subject to Section 16 of the Exchange Act without so restricting, limiting or
conditioning the Plan with respect to other Optionees. Additionally, in
interpreting and applying the provisions of the Plan, any Option granted as an
Incentive Stock Option pursuant to the Plan shall, to the extent permitted by
law, be construed as an "incentive stock option" within the meaning of Section
422 of the Code.
13.6 NO TRUST OR FUND
The Plan is intended to constitute an "unfunded" plan. Nothing
contained herein shall require the Company to segregate any monies or other
property, or shares of Common Stock, or to create any trusts, or to make any
special deposits for any immediate or deferred amounts payable to any Optionee,
and no Optionee shall have any rights that are greater than those of a general
unsecured creditor of the Company.
13.7 SEVERABILITY
If any provision of the Plan or any Option is determined to be invalid,
illegal or unenforceable in any jurisdiction, or as to any person, or would
disqualify the Plan or any Option under any law deemed applicable by the Plan
Administrator, such provision shall be construed or deemed amended to conform to
applicable laws, or, if it cannot be so construed or deemed amended without, in
the Plan Administrator's determination, materially altering the intent of the
Plan or the Option, such provision shall be stricken as to such jurisdiction,
person or Option, and the remainder of the Plan and any such Option shall remain
in full force and effect.
SECTION 14. EFFECTIVE DATE
The Plan's effective date is the date on which it is adopted by the
Board, so long as it is approved by the Company's stockholders at any time
within 12 months of such adoption. Adopted by the Board on June 24, 1998 and
approved by the Company's stockholders on ________ __, 1999.
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PLAN ADOPTION AND AMENDMENTS/ADJUSTMENTS
<TABLE>
<CAPTION>
Date of Adoption/Amendment Date of Stockholder
Adjustment Section Effect of Amendment Approval
- -------------------------- ------- ------------------- -------------------
<S> <C> <C> <C>
</TABLE>
<PAGE> 1
EXHIBIT 5.1
May 28, 1999
Success Bancshares, Inc.
One Marriott Drive
Lincolnshire, Illinois 60069
Re: Success Bancshares, Inc.
Form S-8 Registration Statement
Ladies and Gentlemen:
We have acted as counsel to Success Bancshares, Inc. , a Delaware
corporation (the "Company"), and have reviewed the Company's Registration
Statement on Form S-8 covering 200,000 shares of the Company's common stock,
$0.001 par value (the "Common Stock"), to be issued and delivered by the Company
pursuant to the Company's 1998 Employee Stock Purchase Plan (the "ESPP") (the
"ESPP Shares") and 200,000 shares of Common Stock issuable pursuant to stock
options granted pursuant to the Company's 1999 Stock Option Plan (the "Option
Plan") (the "Option Plan Shares").
With respect to the foregoing, we have examined such documents and
questions of law as we have deemed necessary to render the opinions expressed
herein. Based upon the foregoing, we are of the opinion that the ESPP Shares
issuable under the ESPP, when so issued in accordance with the terms of the
ESPP, will be duly authorized, validly issued, fully paid and nonassessable. It
is also our opinion that the Option Plan Shares issuable under the Option Plan,
when issued upon exercise of and in accordance with the terms of stock options
outstanding or to be granted under the Option Plan, will be validly issued,
fully paid and non-assessable.
We hereby consent to the use of this opinion in the above referenced
Registration Statement.
Respectfully submitted,
/s/ Much Shelist Freed Denenberg Ament & Rubenstein
------------------------------------------------------
Much Shelist Freed Denenberg Ament & Rubenstein, P.C.
------------------------------------------------------
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the Registration Statement on
Form S-8 pertaining to the Success Bancshares, Inc. 1998 Employee Stock
Purchase Plan and the 1999 Stock Option Plan, of our report dated February 12,
1999, relating to the consolidated financial statements of Success Bancshares,
Inc. and subsidiaries, included in the 1998 Annual Report of Shareholders and
incorporated by reference in the Annual Report on Form 10-K for the years ended
December 31, 1998, 1997 and 1996.
McGladrey & Pullen, LLP
Schaumburg, Illinois
May 28, 1999
