REGISTRATION STATEMENT NO. 333-_____
Filed November 3, 1997
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
FULTON BANCORP, INC.
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(Exact name of registrant as specified in its charter)
Delaware 43-1754577
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
410 Market Street
Fulton, Missouri 65251
(816) 259-2247
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(Address of principal executive offices)
1997 Stock Option Plan
1997 Management Recognition and Development Plan
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(Full title of the Plan)
Kermit D. Gohring Copies to:
President and Chief Executive Eric S. Kracov, Esquire
Officer Breyer & Aguggia
Fulton Bancorp, Inc. 1300 I Street, N.W.
410 Market Street Suite 470 East
Fulton, Missouri 65251 Washington, D.C. 20005
(816) 259-2247 (202) 737-7900
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Name, address and telephone
number of agent for service
Page 1 of 7 Pages
Index to Exhibits Appears on Page 4.
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Calculation of Registration Fee
Title of
Securities Amount Proposed Maximum Proposed Maximum Amount of
to be to be Offering Price Aggregate Registration
Registered Registered Per Share(1) Offering Price(1) Fee
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Common Stock,
$.01 par
value 240,695 $20.06(2) $4,828,342 $1,463
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(1) Estimated solely for the purpose of calculating the amount of the
registration fee. Pursuant to Rule 457(c) under the Securities Act of
1933, as amended (the "Securities Act"), the price per share is estimated
to be $20.06, based upon the average of the high and low trading prices of
the common stock, $.01 par value per share (the "Common Stock"), of Fulton
Bancorp, Inc. (the "Registrant"), as reported on the Nasdaq Stock Market
on October 31, 1997.
(2) Of this number, 171,925 shares are being registered for issuance under the
1997 Stock Option Plan and 68,770 shares are being registered for issuance
under the 1997 Management Recognition and Development Plan (the foregoing
plans are referred to collectively herein as the "Plans"); together with
an indeterminate number of shares reserved for issuance pursuant to the
Plans as a result of any future stock split, stock dividend or similar
adjustment of the outstanding Common Stock.
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This Registration Statement shall become effective automatically upon
the date of filing in accordance with Section 8(a) of the Securities Act of
1933, as amended, and 17 C.F.R. Section 230.462.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
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The following documents filed with the Commission are incorporated in
this Registration Statement by reference:
(1) the Company's Registration Statement on Form S-1 (File No.
333-8461), filed July 19, 1996;
(2) the description of the Common Stock set forth in the Company's
Registration Statement on Form 8-A registering the Company's Common Stock,
pursuant to Section 12(g) of the Securities Exchange Act of 1934, filed August
28, 1996; and
(3) the Company's Annual Report on Form 10-K for the year ended June
30, 1997.
All other reports filed by the Registrant pursuant to Section 13(a) or
15(d) of the Exchange Act, after the date hereof and prior to the filing of a
post-effective amendment which indicates that all securities offered hereby
have been sold or which deregisters all securities covered hereby then
remaining unsold, shall also be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof commencing on the respective
dates on which such documents are filed.
Any statement contained in this Registration Statement, or in a document
incorporated or deemed to be incorporated by reference herein, shall be deemed
to be modified or superseded for purposes of this Registration Statement to
the extent that a statement contained herein, or in any other subsequently
filed document which also is or is deemed to be incorporated by reference
herein, modifies or supersedes such statement. Any such statement so modified
or superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
Item 4. Description of Securities
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Not Applicable
Item 5. Interests of Named Experts and Counsel
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Not Applicable
Item 6. Indemnification of Directors and Officers
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Section 145 of the Delaware General Business Corporation Law sets forth
circumstances under which directors, officers, employees and agents may be
insured or indemnified against liability which they may incur in their
capacities.
Article XVI of the Registrant's Certificate of Incorporation provides
for indemnification of the directors, officers, employees and agents of the
Registrant for expenses (including attorney's fees but excluding amounts paid
in settlement for derivative suits) actually and reasonably incurred in
connection with the defense of any threatened, pending or completed action or
suit if such director, officer, employee or agent is successful on the merits
or otherwise, or acted in good faith and in a manner he reasonably believed to
be in, or not
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opposed to, the best interest of the Registrant and, with respect to any
criminal action or proceeding had no reasonable cause to believe his conduct
was unlawful.
Item 7. Exemption From Registration Claimed
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Not Applicable
Item 8. Exhibits
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The following exhibits are filed with or incorporated by reference into
this Registration Statement on Form S-8:
No. Exhibit
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5 Opinion of Breyer & Aguggia
23.1 Consent of Moore, Horton & Carlson, P.C.
23.2 Consent of Breyer & Aguggia (see Exhibit 5)
24 Power of attorney (see signature pages)
99.1 1997 Stock Option Plan
99.2 1997 Management Recognition and Development Plan
Item 9. Undertakings
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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, (ii) to reflect
in the prospectus any facts or events arising after the effective date of the
Registration Statement (or 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, and (iii) to include any
material information with respect to the plan of distribution not previously
disclosed in the Registration Statement or any material change in such
information in the Registration Statement; provided, however, that clauses (i)
and (ii) do not apply if the information required to be included in a post-
effective amendment by those clauses is contained in periodic reports filed by
the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act
that are incorporated by reference in the Registration Statement.
2. That, for the purposes of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed 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.
4. That, for the purposes of determining any liability under the
Securities Act, each filing of the Registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act that is incorporated by
reference in the Registration Statement shall be deemed to be a new
registration statement relating to the securities offered therein, and that
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
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5. 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 Commission such
indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for
indemnification against liabilities (other than the payment by 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 questions whether such indemnification by it is
against public policy expressed in the Securities Act will 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, Fulton
Bancorp, Inc. 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 Fulton, and State of Missouri the 3rd day of
November 1997.
FULTON BANCORP, INC.
By: /s/ Kermit D. Gohring
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Kermit D. Gohring
President and Chief Executive Officer
and Director
(Principal Executive Officer)
POWER OF ATTORNEY
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. Each person whose signature appears
below hereby makes, constitutes and appoints Kermit D. Gohring his true and
lawful attorney, with full power to sign for such person and in such person's
name and capacity indicated below, and with full power of substitution any and
all amendments to this Registration Statement, hereby ratifying and confirming
such person's signature as it may be signed by said attorney to any and all
amendments.
By: /s/ Kermit D. Gohring Date: November 3, 1997
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Kermit D. Gohring
President, Chief Executive Officer and
Director
(Principal Executive Officer)
By: /s/ Richard W. Gohring Date: November 3, 1997
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Richard W. Gohring
Vice President and Director
(Principal Financial Officer)
By: /s/ Bonnie K. Smith Date: November 3, 1997
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Bonnie K. Smith
Secretary-Treasurer and Director
By: /s/ Clifford E. Hamilton Date: November 3, 1997
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Clifford E. Hamilton
Director
By: /s/ Billy Conner Date: November 3, 1997
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Billy Conner
Director
By: /s/ David West Date: November 3, 1997
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David West
Director
By: /s/ Dennis Adrian Date: November 3, 1997
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Dennis Adrian
Director
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Exhibit 5
Opinion of Breyer & Aguggia
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1300 I Street, N.W.
Suite 470 East
Washington, D.C. 20005
Telephone (202) 737-7900
Breyer & Aguggia Facsimile (202) 737-7979
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November 3, 1997
Board of Directors
Fulton Bancorp, Inc.
410 Market Street
Fulton, Missouri 65251
Gentlemen:
We have acted as special counsel to Fulton Bancorp, Inc., a Delaware
corporation (the "Corporation"), in connection with the preparation and filing
with the Securities and Exchange Commission pursuant to the Securities Act of
1933, as amended, of a Registration Statement on Form S-8 (the "Registration
Statement"), relating to the registration of up to 240,695 shares of
Corporation common stock, $.01 par value per share ("Common Stock"), to be
issued pursuant to (i) the Corporation's 1997 Stock Option Plan (the "Option
Plan") upon the exercise of stock options ("Option Rights") and (ii) the
Corporation's 1997 Management Recognition and Development Plan (the "MRDP").
The Registration Statement also registers an indeterminate number of
additional shares which may be necessary under the Option Plan and the MRDP to
adjust the number of shares reserved for issuance as a result of a stock
split, stock dividend or similar adjustment of the outstanding Common Stock of
the Corporation. We have been requested by the Corporation to furnish an
opinion to be included as an exhibit to the Registration Statement.
We have reviewed the Registration Statement, the Articles of
Incorporation and Bylaws of the Corporation, the Plan, a specimen stock
certificate evidencing the Common Stock of the Corporation and such other
corporate records and documents as we have deemed appropriate for the purpose
of rendering this opinion. We are relying upon the originals, or copies
certified or otherwise identified to our satisfaction, of the corporate
records of the Corporation and such other instruments, certificates and
representations of public officials, officers and representatives of the
Corporation as we have deemed appropriate or relevant as a basis for the
opinion set forth below. In addition, we have assumed, without independent
verification, the genuineness of all signatures and the authenticity of all
documents furnished to us and the conformity in all respects of copies to
originals.
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Board of Directors
November 3, 1997
Page 2
For purposes of this opinion, we have also assumed that (i) the shares
of Common Stock issuable pursuant to Option Rights granted under the terms of
the Plan will continue to be validly authorized on the dates the Common Stock
is issued pursuant to the Option Rights; (ii) on the dates the Option Rights
are exercised, the Option Rights granted under the terms of the Plan will
constitute valid, legal and binding obligations of the Corporation and will
(subject to applicable bankruptcy, moratorium, insolvency, reorganization and
other laws and legal principles affecting the enforceability of creditors'
rights generally) be enforceable as to the Corporation in accordance with
their terms; (iii) no change occurs in applicable law or the pertinent facts;
and (iv) the provisions of "blue sky" and other securities laws as may be
applicable have been complied with to the extent required.
Based upon the foregoing, and subject to the qualifications and
assumptions set forth herein, we are of the opinion as of the date hereof that
the shares of Common Stock to be issued pursuant to the Option Plan and the
MRDP, when issued pursuant to and in accordance with the Registration
Statement, the Option Plan and the MRDP and, with respect to the Option Plan,
upon receipt of the consideration required thereby, will be legally issued,
fully paid and non-assessable shares of Common Stock of the Corporation.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Sincerely,
/s/ Breyer & Aguggia
BREYER & AGUGGIA
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Exhibit 23.1
Consent of Independent Auditors
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MH&C MOORE, HORTON & CARLSON, P.C.
CERTIFIED PUBLIC ACCOUNTANTS
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510 South Muldrow, P.O. Box 775 Mexico, Missouri 65265
Phone (573) 581-6773 FAX (573) 581-3209
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Fulton Bancorp, Inc.
Fulton, Missouri
We consent to the incorporation by reference in this Registration Statement of
Fulton Bancorp, Inc. on Form S-8, of our report dated September 3, 1997, for
Fulton Bancorp, Inc. and Subsidiary, appearing in the Annual Report on Form
10-K of Fulton Bancorp, Inc. for the year ended June 30, 1997.
/s/ Moore, Horton & Carlson, P.C.
Mexico, Missouri
November 3, 1997
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Exhibit 23.2
Consent of Breyer & Aguggia (see Exhibit 5)
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Exhibit 24
Power of Attorney (see signature page)
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Exhibit 99.1
1997 Stock Option Plan
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FULTON BANCORP, INC.
1997 STOCK OPTION PLAN
SECTION 1. PURPOSE
The Fulton Bancorp, Inc. 1997 Stock Option Plan (the "Plan") is hereby
established to foster and promote the long-term success of Fulton Bancorp,
Inc. and its shareholders by providing directors, officers and employees of
the Corporation with an equity interest in the Corporation. The Plan will
assist the Corporation in attracting and retaining the highest quality of
experienced persons as directors, officers and employees and in aligning the
interests of such persons more closely with the interests of the Corporation's
shareholders by encouraging such parties to maintain an equity interest in the
Corporation.
SECTION 2. DEFINITIONS
For purposes of this Plan, the capitalized terms set forth below shall
have the following meanings:
BANK means Fulton Savings Bank, FSB, Fulton, Missouri.
BOARD means the Board of Directors of the Corporation.
CHANGE IN CONTROL shall mean an event deemed to occur if and when (a) an
offeror other than the Corporation purchases shares of the stock of the
Corporation or the Bank pursuant to a tender or exchange offer for such
shares, (b) any person (as such term is used in Sections 13(d) and 14(d)(2) of
the Exchange Act) is or becomes the beneficial owner, directly or indirectly,
of securities of the Corporation or the Bank representing twenty-five percent
(25%) or more of the combined voting power of the Corporation's or the Bank's
then outstanding securities, (c) the membership of the board of directors of
the Corporation or the Bank changes as the result of a contested election,
such that individuals who were directors at the beginning of any twenty-four
(24) month period (whether commencing before or after the date of adoption of
this Plan) do not constitute a majority of the Board at the end of such
period, or (d) shareholders of the Corporation or the Bank approve a merger,
consolidation, sale or disposition of all or substantially all of the
Corporation's or the Bank's assets, or a plan of partial or complete
liquidation. If any of the events enumerated in clauses (a) - (d) occur, the
Board shall determine the effective date of the change in control resulting
therefrom, for purposes of the Plan.
CODE means the Internal Revenue Code of 1986, as amended from time to
time, and the regulations promulgated thereunder.
CORPORATION means Fulton Bancorp, Inc., a Missouri corporation.
DIRECTOR shall mean a director of the Corporation who is not also an
employee of the Corporation or its subsidiaries.
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DISABILITY means any physical or mental injury or disease of a permanent
nature which renders a Participant incapable of meeting the requirements of
the employment or service performed by such Participant immediately prior to
the commencement of such disability. The determination of whether a
Participant is disabled shall be made by the Board in its sole and absolute
discretion.
EXCHANGE ACT means the Securities Exchange Act of 1934, as amended from
time to time, and the rules and regulations promulgated thereunder.
FAIR MARKET VALUE shall be determined as follows:
(a) If the Stock is traded or quoted on the Nasdaq Stock Market or
other national securities exchange at the time of grant of an Option, then the
Fair Market Value shall be the average of the highest and lowest selling price
on such exchange on the date such Option is granted or, if there were no sales
on such date, then on the next prior business day on which there was a sale.
(b) If the Stock is not traded or quoted on the Nasdaq Stock Market or
other national securities exchange, then the Fair Market Value shall be a
value determined by the Board in good faith on such basis as it deems
appropriate.
INCENTIVE STOCK OPTION means an option to purchase shares of Stock
granted to a Participant under the Plan which is intended to meet the
requirements of Section 422 of the Code.
NON-QUALIFIED STOCK OPTION means an option to purchase shares of Stock
granted to a Participant under the Plan which is not intended to be an
Incentive Stock Option.
OPTION means an Incentive Stock Option or a Non-Qualified Stock Option.
PARTICIPANT means a Director or employee of the Corporation or its
subsidiaries selected by the Board to receive an Option under the Plan.
PLAN means this Fulton Bancorp, Inc. 1997 Stock Option Plan.
STOCK means the common stock, $0.01 par value, of the Corporation.
TERMINATION FOR CAUSE shall mean because of a Participant's personal
dishonesty, incompetence, willful misconduct, breach of fiduciary duty
involving personal profit, intentional failure to perform stated duties,
willful violation of any law, rule or regulation (other than traffic
violations or similar offenses) or material breach of any provision of any
employment agreement between the Corporation and/or, the Bank and a
Participant.
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SECTION 3. ADMINISTRATION
(a) The Plan shall be administered by the Board. Among other things,
the Board shall have authority, subject to the terms of the Plan, to grant
Options, to determine the individuals to whom and the time or times at which
Options may be granted, to determine whether such Options are to be Incentive
Options or Non-Qualified Stock Options (subject to the requirements of the
Code), to determine the terms and conditions of any Option granted hereunder,
and the exercise price thereof.
(b) Subject to the other provisions of the Plan, the Board shall have
authority to adopt, amend, alter and repeal such administrative rules,
guidelines and practices governing the operation of the Plan as it shall from
time to time consider advisable, to interpret the provisions of the Plan and
any Option and to decide all disputes arising in connection with the Plan. The
Board may correct any defect or supply any omission or reconcile any
inconsistency in the Plan or in any option agreement in the manner and to the
extent it shall deem appropriate to carry the Plan into effect, in its sole
and absolute discretion. The Board's decision and interpretations shall be
final and binding. Any action of the Board with respect to the administration
of the Plan shall be taken pursuant to a majority vote or by the unanimous
written consent of its members.
SECTION 4. ELIGIBILITY AND PARTICIPATION.
Officers and employees of the Corporation and its subsidiaries and
Directors shall be eligible to participate in the Plan. The Participants under
the Plan shall be selected from time to time by the Board, in its sole
discretion, from among those eligible, and the Board shall determine, in its
sole discretion, the numbers of shares to be covered by the Option or Options
granted to each Participant. Options intended to qualify as Incentive Stock
Options shall be granted only to persons who are eligible to receive such
options under Section 422 of the Code.
SECTION 5. SHARES OF STOCK AVAILABLE FOR OPTIONS
(a) The maximum number of shares of Stock which may be issued and
purchased pursuant to Options granted under the Plan is 171,925, subject to
the adjustments as provided in Section 5 and Section 9, to the extent
applicable. If an Option granted under this Plan expires or terminates before
exercise or is forfeited for any reason, the shares of Stock subject to such
Option, to the extent of such expiration, termination or forfeiture, shall
again be available for subsequent Option grant under Plan. Shares of Stock
issued under the Plan may consist in whole or in part of authorized but
unissued shares or treasury shares.
(b) In the event that the Board determines, in its sole discretion,
that any stock dividend, stock split, reverse stock split or combination,
extraordinary cash dividend, creation of a class of equity securities,
recapitalization, reclassification, reorganization, merger, consolidation,
split-up, spin-off, combination, exchange of shares, or other similar
transaction affects the Stock such that an adjustment is required in order to
preserve the benefits or potential benefits intended to be granted or made
available under the Plan to Participants, the Board shall have the right to
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proportionately and appropriately adjust equitably any or all of (i) the
maximum number and kind of shares of Stock in respect of which Options may be
granted under the Plan to Participants, (ii) the number and kind of shares of
Stock subject to outstanding Options held by Participants, and (iii) the
exercise price with respect to any Options held by Participants, without
changing the aggregate purchase price as to which such Options remain
exercisable, provided that no adjustment shall be made pursuant to this
Section if such adjustment would cause the Plan to fail to comply with Section
422 of the Code with regard to any Incentive Stock Options granted hereunder.
No fractional Shares shall be issued on account of any such adjustment.
(c) Any adjustments under this Section will be made by the Board, whose
determination as to what adjustments, if any, will be made and the extent
thereof will be final, binding and conclusive.
SECTION 6. NON-QUALIFIED STOCK OPTIONS
6.1 Grant of Non-Qualified Stock Options.
Subject to Sections 4(b) and (c) the Board may, from time to time, grant
Non-Qualified Stock Options to Participants upon such terms and conditions as
the Board may determine. Non-Qualified Stock Options granted under this Plan
are subject to the following terms and conditions:
(a) Price. The purchase price per share of Stock deliverable upon the
exercise of each Non-Qualified Stock Option shall be determined by the Board
on the date the option is granted. Such purchase price shall not be less than
one hundred percent (100%) of the Fair Market Value of the Stock on the date
of grant. Shares may be purchased only upon full payment of the purchase
price. Payment of the purchase price may be made, in whole or in part,
through the surrender of shares of the Stock at the Fair Market Value of such
shares on the date of surrender or through a "cashless exercise" involving a
stock brokerage firm.
(b) Terms of Options. The term during which each Non-Qualified Stock
Option may be exercised shall be determined by the Board, but in no event
shall a Non-Qualified Stock Option be exercisable in whole or in part more
than ten (10) years from the date of grant. Except as provided herein, no
Non-Qualified Stock Option granted under this Plan is transferable except by
will or the laws of descent and distribution. The Board shall have
discretionary authority to permit the transfer of any Non-Qualified Stock
Option to members of a Participant's immediate family, including trusts for
the benefit of such family members and partnerships in which such family
members are the only partners; provided, however, that a transferred
Non-Qualified Stock Option may be exercised by the transferee on any date only
to the extent that the Participant would have been entitled to exercise the
Non-Qualified Stock Option on such date had the Non-Qualified Stock Option not
been transferred. Any transferred Non-Qualified Stock Option shall remain
subject to the terms and conditions of the Participant's stock option
agreement.
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(c) Termination of Service. Unless otherwise determined by the Board,
upon the termination of a Participant's service as an employee or member of
the Board for any reason other than Disability, death or Termination for
Cause, the Participant's Non-Qualified Stock Options shall be exercisable only
as to those shares which were immediately exercisable by the Participant at
the date of termination and only for a period of one year following
termination. Notwithstanding any provision set forth herein nor contained in
any Agreement relating to the award of an Option, in the event of Termination
for Cause, all rights under the Participant's Non-Qualified Stock Options
shall expire upon termination. In the event of death or termination of
service as a result of Disability of any Participant, all Non-Qualified Stock
Options held by the Participant, whether or not exercisable at such time,
shall be exercisable by the Participant or his legal representatives or
beneficiaries of the Participant for two years or such longer period as
determined by the Board following the date of the Participant's death or
termination of service due to Disability, provided that in no event shall the
period extend beyond the expiration of the Non-Qualified Stock Option term.
SECTION 7. INCENTIVE STOCK OPTIONS
7.1 Grant of Incentive Stock Options.
The Board may, from time to time, grant Incentive Stock Options to
eligible employees. Incentive Stock Options granted pursuant to the Plan
shall be subject to the following terms and conditions:
(a) Price. The purchase price per share of Stock deliverable upon the
exercise of each Incentive Stock Option shall be not less than one hundred
percent (100%) of the Fair Market Value of the Stock on the date of grant.
However, if a Participant owns stock possessing more than ten percent (10%) of
the total combined voting power of all classes of Stock, the purchase price
per share of Stock deliverable upon the exercise of each Incentive Stock
Option shall not be less than one hundred ten percent (110%) of the Fair
Market Value of the Stock on the date of grant. Shares may be purchased only
upon payment of the full purchase price. Payment of the purchase price may be
made, in whole or in part, through the surrender of shares of the Stock at the
Fair Market Value of such shares on the date of surrender or through a
"cashless exercise" involving a stock brokerage firm.
(b) Amounts of Options. Subject to Sections 4(b) and (c), Incentive
Stock Options may be granted to any eligible employee in such amounts as
determined by the Board. In the case of an option intended to qualify as an
Incentive Stock Option, the aggregate Fair Market Value (determined as of the
time the option is granted) of the Stock with respect to which Incentive Stock
Options granted are exercisable for the first time by the Participant during
any calendar year shall not exceed $100,000. The provisions of this Section
7.1(b) shall be construed and applied in accordance with Section 422(d) of the
Code and the regulations, if any, promulgated thereunder. To the extent an
award is in excess of such limit, it shall be deemed a Non-Qualified Stock
Option. The Board shall have discretion to redesignate options granted as
Incentive Stock Options as Non-Qualified Stock Options.
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(c) Terms of Options. The term during which each Incentive Stock
Option may be exercised shall be determined by the Board, but in no event
shall an Incentive Stock Option be exercisable in whole or in part more than
ten (10) years from the date of grant. If at the time an Incentive Stock
Option is granted to an employee, the employee owns Stock representing more
than ten percent (10%) of the total combined voting power of the Corporation
(or, under Section 422(d) of the Code, is deemed to own Stock representing
more than ten percent (10%) of the total combined voting power of all such
classes of Stock, by reason of the ownership of such classes of Stock,
directly or indirectly, by or for any brother, sister, spouse, ancestor or
lineal descendent of such employee, or by or for any corporation, partnership,
estate or trust of which such employee is a shareholder, partner or
beneficiary), the Incentive Stock Option granted to such employee shall not be
exercisable after the expiration of five years from the date of grant. No
Incentive Stock Option granted under this Plan is transferable except by will
or the laws of descent and distribution.
(d) Termination of Employment. Upon the termination of a Participant's
service for any reason other than Disability, death or Termination for Cause,
the Participant's Incentive Stock Options which are then exercisable at the
date of termination may only be exercised by the Participant for a period of
three months following termination, after which time they shall be void.
Notwithstanding any provisions set forth herein nor contained in any Agreement
relating to an award of an Option, in the event of Termination for Cause, all
rights under the Participant's Incentive Stock Options shall expire
immediately upon termination.
Unless otherwise determined by the Board, in the event of death or
termination of service as a result of Disability of any Participant, all
Incentive Stock Options held by such Participant, whether or not exercisable
at such time, shall be exercisable by the Participant or the Participant's
legal representatives or the beneficiaries of the Participant for one year
following the date of the Participant's death or termination of employment as
a result of Disability. In no event shall the exercise period extend beyond
the expiration of the Incentive Stock Option term.
(f) Compliance with Code. The options granted under this Section 7 of
the Plan are intended to qualify as incentive stock options within the meaning
of Section 422 of the Code, but the Corporation makes no warranty as to the
qualification of any option as an incentive stock option within the meaning of
Section 422 of the Code. A Participant shall notify the Board in writing in
the event that he disposes of Stock acquired upon exercise of an Incentive
Stock Option within the two-year period following the date the Incentive Stock
Option was granted or within the one-year period following the date he
received Stock upon the exercise of an Incentive Stock Option and shall comply
with any other requirements imposed by the Corporation in order to enable the
Corporation to secure the related income tax deduction to which it will be
entitled in such event under the Code.
SECTION 8. EXTENSION
The Board may, in its sole discretion, extend the dates during which all
or any particular Option or Options granted under the Plan may be exercised;
provided, however, that no such
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extension shall be permitted if it would cause Incentive Stock Options issued
under the Plan to fail to comply with Section 422 of the Code.
SECTION 9. GENERAL PROVISIONS APPLICABLE TO OPTIONS
(a) Each Option under the Plan shall be evidenced by a writing
delivered to the Participant specifying the terms and conditions thereof and
containing such other terms and conditions not inconsistent with the
provisions of the Plan as the Board considers necessary or advisable to
achieve the purposes of the Plan or comply with applicable tax and regulatory
laws and accounting principles.
(b) Each Option may be granted alone, in addition to or in relation to
any other Option. The terms of each Option need not be identical, and the
Board need not treat Participants uniformly. Except as otherwise provided by
the Plan or a particular Option, any determination with respect to an Option
may be made by the Board at the time of grant or at any time thereafter.
(c) In the event of a Change in Control, all then outstanding Options
shall become one hundred percent vested and exercisable as of the effective
date of the Change in Control. If, in connection with or as a consequence of
a Change in Control, the Corporation or the Bank is merged into or
consolidated with another corporation, if the Corporation or the Bank becomes
a subsidiary of another corporation or if the Corporation or the Bank sells or
otherwise disposes of substantially all of its assets to another corporation,
then unless provisions are made in connection with such transactions for the
continuance of the Plan and/or the assumption or substitution of then
outstanding Options with new options covering the stock of the successor
corporation, or parent or subsidiary thereof, with appropriate adjustments as
to the number and kind of shares and prices, such Options shall be canceled as
of the effective date of the merger, consolidation, or sale and the
Participant shall be paid in cash an amount equal to the difference between
the Fair Market Value of the Stock subject to the Options on the effective
date of such corporate event and the exercise price of the Options.
(d) The Corporation shall be entitled to withhold (or secure payment
from the Participant in lieu of withholding) the amount of any withholding or
other tax required by law to be withheld or paid by the Corporation with
respect to any Options exercised under this Plan, and the Corporation may
defer issuance of Stock hereunder until and unless indemnified to its
satisfaction against any liability for any such tax. The amount of such
withholding or tax payment shall be determined by the Board or its delegate
and shall be payable by the Participant at such time as the Board determines.
Such withholding obligation may be satisfied by, without limitation, the
payment of cash by the Participant to the Corporation, the tendering of
previously acquired shares of Stock of the Participant or the withholding, at
the appropriate time, of shares of Stock otherwise issuable to the
Participant, in a number sufficient, based upon the Fair Market Value of such
Stock, to satisfy such tax withholding requirements. The Board shall be
authorized, in its sole discretion, to establish such rules and
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procedures relating to any such withholding methods as it deems necessary or
appropriate, including, without limitation, rules and procedures relating to
elections by Participants who are subject to the provisions of Section 16 of
the Exchange Act.
(e) Subject to the terms of the Plan, the Board may at any time, and
from time to time, amend, modify or terminate the Plan or any outstanding
Option held by a Participant, including substituting therefor another Option
of the same or a different type or changing the date of exercise or
realization, provided that the Participant's consent to each action shall be
required unless the Board determines that the action, taking into account any
related action, would not materially and adversely affect the Participant.
SECTION 10. MISCELLANEOUS
(a) No person shall have any claim or right to be granted an Option,
and the grant of an Option shall not be construed as giving a Participant the
right to continued employment or service on the Board. The Corporation
expressly reserves the right at any time to dismiss a Participant free from
any liability or claim under the Plan, except as expressly provided in the
Plan or the applicable Option.
(b) Nothing contained in the Plan shall prevent the Corporation from
adopting other or additional compensation arrangements.
(c) Subject to the provisions of the applicable Option, no Participant
shall have any rights as a shareholder (including, without limitation, any
rights to receive dividends, or non cash distributions with respect to such
shares) with respect to any shares of Stock to be distributed under the Plan
until he or she becomes the holder thereof.
(d) Notwithstanding anything to the contrary expressed in this Plan,
any provisions hereof that vary from or conflict with any applicable Federal
or State securities laws (including any regulations promulgated thereunder)
shall be deemed to be modified to conform to and comply with such laws.
(e) No member of the Board shall be liable for any action or
determination taken or granted in good faith with respect to this Plan nor
shall any member of the Board be liable for any agreement issued pursuant to
this Plan or any grants under it. Each member of the Board shall be
indemnified by the Corporation against any losses incurred in such
administration of the Plan, unless his action constitutes serious and willful
misconduct.
(f) The Plan shall be effective upon approval by the Corporation's
shareholders at the 1997 annual meeting of shareholders. The Plan will be so
approved if at such meeting a quorum is present and the votes of the holders
of a majority of the securities of the Corporation present or represented by
proxy at the meeting shall be cast in favor of its approval.
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(g) The Board may amend, suspend or terminate the Plan or any portion
thereof at any time, provided that no amendment shall be granted without
shareholder approval if such approval is necessary to comply with any
applicable tax laws or regulatory requirement.
(h) Options may not be granted under the Plan after the tenth
anniversary of the effective date of the Plan, but then outstanding Options
may extend beyond such date.
(i) To the extent that State laws shall not have been preempted by any
laws of the United States, the Plan shall be construed, regulated, interpreted
and administered according to the other laws of the State of Missouri.
* * * * *
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Exhibit 99.2
1997 Management Recognition and Development Plan
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FULTON BANCORP, INC.
1997 MANAGEMENT RECOGNITION AND DEVELOPMENT PLAN
SECTION 1. PURPOSE AND ADOPTION OF THE PLAN
1.01 PURPOSE. The purpose of the Fulton Bancorp, Inc. Management
Recognition and Development Plan is to assist the Corporation and its
subsidiaries in attracting, retaining and motivating key management employees
and non-employee directors who will contribute to the Corporation's success.
The Plan is intended to recognize the contributions of key management
personnel to the success of the Corporation and its subsidiaries, to link the
benefits paid to eligible employees and directors who have substantial
responsibility for the successful operation, administration and management of
the Corporation with the enhancement of shareholder value and to provide
eligible employees and directors with an opportunity to acquire a greater
proprietary interest in the Corporation through the grant of restricted shares
of Stock which, in accordance with the terms and conditions set forth below,
will vest only if the employees meet the vesting criteria established by the
Board and this Plan.
1.02 ADOPTION AND EFFECTIVE DATE. The Plan shall be effective upon
approval by the Corporation's shareholders at the 1997 annual meeting of
shareholders. The Plan will be so approved if at such meeting a quorum is
present and the votes of the holders of a majority of the securities of the
Corporation present or represented by proxy at the annual meeting shall be
cast in favor of its approval.
SECTION 2. DEFINITIONS
For purposes of this Plan, the capitalized terms set forth below shall
have the following meanings:
AWARD AGREEMENT means a written agreement between the Corporation and a
Participant specifically setting forth the terms and conditions of an award of
Restricted Stock granted to a Participant pursuant to Section 5 of the Plan.
BANK means Fulton Savings Bank, FSB, Fulton, Missouri.
BOARD means the Board of Directors of the Corporation.
CHANGE IN CONTROL shall mean an event deemed to occur if and when (a)
an offeror other than the Corporation purchases shares of the common stock of
the Corporation or the Bank pursuant to a tender or exchange offer for such
shares, (b) any person (as such term is used in Sections 13(d) and 14(d)(2) of
the Exchange Act) is or becomes the beneficial owner, directly or indirectly,
of securities of the Corporation or Bank representing twenty-five percent
(25%) or more of the combined voting power of the Corporation's or the Bank's
then outstanding securities, (c) the membership of the board of directors of
the Corporation or the Bank changes as the result of a contested election,
such that individuals who were directors at the beginning of any twenty-four
(24) month period (whether commencing before or after the date of adoption of
this Plan) do not constitute a majority of the Board at the end of such
period, or (d) shareholders
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of the Corporation or the Bank approve a merger, consolidation, sale or
disposition of all or substantially all of the Corporation's or the Bank's
assets or a plan of partial or complete liquidation. If any of the events
enumerated in clauses (a) - (d) occur, the Board shall determine the effective
date of the change in control resulting therefrom.
CORPORATION means Fulton Bancorp, Inc., a Missouri corporation, and its
successors.
DATE OF GRANT means the date as of which an award of Restricted Stock
is granted in accordance with Section 5.
DIRECTOR means a member of the Board of Directors of the Corporation
who is not also an employee of the Corporation or its subsidiaries.
DISABILITY means any physical or mental injury or disease of a
permanent nature which renders a Participant incapable of meeting the
requirements of the employment or service performed by such Participant
immediately prior to the commencement of such disability. The determination
of whether a Participant is disabled shall be made by the Board in its sole
and absolute discretion.
EFFECTIVE DATE means the date as of which the Plan shall become
effective, as determined in accordance with Section 1.02.
EXCHANGE ACT means the Securities Exchange Act of 1934, as amended.
FAIR MARKET VALUE shall be determined as follows:
(a) If the stock is traded or quoted on the Nasdaq Stock Market or
other national securities exchange at the time of grant of the award, then the
Fair Market Value shall be the average of the highest and lowest selling price
on such exchange on the date such award is granted or, if there were no sales
on such date, then on the next prior business day on which there was a sale.
(b) If the stock is not traded or quoted on the Nasdaq Stock Market
or other national securities exchange, then the Fair Market Value shall be a
value determined by the Board in good faith on such basis as it deems
appropriate.
PARTICIPANT means any person selected by the Board, pursuant to Section
3.02, to participate under the Plan.
PLAN means this Fulton Bancorp, Inc. 1997 Management Recognition and
Development Plan, as the same may be amended from time to time.
RESTRICTED STOCK means shares of Stock awarded to a Participant subject
to restrictions as described in Section 5.
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STOCK means the common stock, par value $0.01 per share, of the
Corporation.
SECTION 3. ADMINISTRATION AND PARTICIPATION
3.01 ADMINISTRATION. The Plan shall be administered by the Board
which shall have exclusive and final authority and discretion in each
determination, interpretation or other action affecting the Plan and its
Participants. The Board shall have the sole and absolute authority and
discretion to interpret the Plan, to establish and modify administrative rules
for the Plan, to select, in accordance with Section 3.02, the persons who will
be Participants hereunder, to impose, in accordance with Section 5.01, such
conditions and restrictions as it determines appropriate and to take such
other actions and make such other determinations in connection with the Plan
as it may deem necessary or advisable.
3.02 DESIGNATION OF PARTICIPANTS. Participants in the Plan shall be
such employees of the Corporation and its subsidiaries or Directors as the
Board, in its sole discretion, may designate. The Board shall consider such
factors as it deems pertinent in selecting Participants.
SECTION 4. STOCK ISSUABLE UNDER THE PLAN
4.01 NUMBER OF SHARES OF STOCK ISSUABLE. Subject to adjustments as
provided in Section 6.03, the maximum number of shares of Stock available for
issuance under the Plan shall be 68,770. The Stock to be offered under the
Plan shall be authorized and unissued Stock, Stock which shall have been
reacquired by the Corporation and held in its treasury, or Stock held in a
trust established by the Corporation for the purpose of funding awards under
the Plan with shares acquired on the open market with funds contributed by the
Corporation or the Bank.
4.02 SHARES SUBJECT TO TERMINATED AWARDS. Shares of Stock forfeited
as provided in Section 5.02 may again be issued under the Plan.
SECTION 5. RESTRICTED STOCK
5.01 RESTRICTED STOCK AWARDS. Subject to the terms of this Plan, the
Board may grant to any Participant an award of Restricted Stock in respect of
such number of shares of Stock, and subject to such terms and conditions
relating to forfeitability and restrictions on delivery and transfer (whether
based on performance standards, periods of service or otherwise), as the Board
shall determine in its sole discretion. The terms of all such Restricted
Stock awards shall be set forth in an Award Agreement between the Corporation
and the Participant which shall contain such provisions, not inconsistent with
this Plan, as shall be determined by the Board.
(a) ISSUANCE OF RESTRICTED STOCK. As soon as practicable after the
Date of Grant of Restricted Stock, the Corporation shall cause to be
transferred on the books of the Corporation shares of Stock, registered on
behalf of the Participant, evidencing such Restricted
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Stock, but subject to forfeiture to the Corporation retroactive to the Date of
Grant if an Award Agreement delivered to the Participant by the Corporation
with respect to the Restricted Stock is not duly executed by the Participant
and timely returned to the Corporation. Unless the Board determines
otherwise, until the lapse or release of all restrictions applicable to an
award of Restricted Stock, the stock certificates representing such Restricted
Stock shall be held in custody by the Corporation or its designee.
Notwithstanding the foregoing, the Corporation may, in its sole discretion,
establish a trust for the purpose of holding Restricted Stock awarded pursuant
to this Plan. In the event that a trust is established, the Corporation may
elect to hold any or all shares of Stock subject to awards in the name of the
trust for the benefit of the Participant and subject to the forfeiture
conditions applicable to the award.
(b) SHAREHOLDER RIGHTS. Beginning on the Date of Grant of the
Restricted Stock and subject to execution of the Award Agreement as provided
in Section 5.01(a), the Participant shall become a shareholder of the
Corporation with respect to all Stock subject to the Award Agreement and shall
have all of the rights of a shareholder, including, but not limited to, the
right to vote such Stock and the right to receive dividends and other
distributions paid with respect to such Stock; provided, however, that any
Stock distributed as a dividend or otherwise with respect to any Restricted
Stock as to which the restrictions have not yet lapsed shall be subject to the
same restrictions as such Restricted Stock and shall be held as prescribed in
Section 5.01(a). Cash dividends paid with respect to Restricted Stock shall
be held by the Corporation in escrow until such time as the Participant vests
in such shares. The Corporation may credit a reasonable rate of interest to
such cash dividends prior to distribution.
(c) RESTRICTION ON TRANSFERABILITY. None of the Restricted Stock
may be assigned, transferred (other than by will or the laws of descent and
distribution), pledged, sold or otherwise disposed of prior to lapse or
release of the restrictions applicable thereto.
(d) DELIVERY OF STOCK UPON RELEASE OF RESTRICTIONS. Upon expiration
or earlier termination of the forfeiture period without a forfeiture, and the
satisfaction of or release from any other conditions prescribed by the Board,
the restrictions applicable to the Restricted Stock shall lapse. As promptly
as administratively feasible thereafter, subject to the requirements of
Section 6.02, the Corporation shall deliver to the Participant or, in case of
the Participant's death, to the Participant's legal representatives, one or
more stock certificates for the appropriate number of shares of Stock, free of
all such restrictions, except for any restrictions that may be imposed by law.
5.02 TERMS OF RESTRICTED STOCK; FORFEITURE OF RESTRICTED STOCK. All
Restricted Stock shall be forfeited and returned to the Corporation and all
rights of the Participant with respect to such Restricted Stock shall cease
and terminate in their entirety if during the forfeiture period the employment
or service as a Director of the Participant with the Corporation and its
subsidiaries terminates for any reason. Subject to the terms of the Plan, the
Board, in its sole discretion, shall establish the forfeiture period for each
grant of Restricted Stock, and may provide for the forfeiture period to lapse
in installments. Notwithstanding the foregoing, upon the termination of a
Participant's employment by reason of death or Disability,
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all forfeiture restrictions imposed on Restricted Stock shall immediately and
fully lapse. In addition, upon the occurrence of a Change in Control, all
forfeiture restrictions imposed on Restricted Stock shall immediately and
fully lapse.
SECTION 6. MISCELLANEOUS
6.01 LIMITATIONS ON TRANSFER. The rights and interest of a
Participant under the Plan may not be assigned or transferred other than by
will or the laws of descent and distribution. During the lifetime of a
Participant, only the Participant personally may exercise rights under the
Plan.
6.02 TAXES. The Corporation shall be entitled to withhold (or secure
payment from the Participant in lieu of withholding) the amount of any
withholding or other tax required by law to be withheld or paid by the
Corporation with respect to any Stock issuable under this Plan, or with
respect to any income recognized upon the lapse of restrictions applicable to
Restricted Stock and the Corporation may defer issuance of Stock hereunder
until and unless indemnified to its satisfaction against any liability for any
such tax. The amount of such withholding or tax payment shall be determined
by the Board or its delegate and shall be payable by the Participant at such
time as the Board determines. Such withholding obligation may be satisfied
by, without limitation, the payment of cash by the Participant to the
Corporation, the tendering of previously acquired shares of Stock of the
Participant or the withholding, at the appropriate time, of shares of Stock
otherwise issuable to the Participant, in a number sufficient, based upon the
Fair Market Value of such Stock, to satisfy such tax withholding requirements.
The Board shall be authorized, in its sole discretion, to establish such rules
and procedures relating to any such withholding methods as it deems necessary
or appropriate, including, without limitation, rules and procedures relating
to elections by Participants who are subject to the provisions of Section 16
of the Exchange Act.
6.03 ADJUSTMENTS TO REFLECT CAPITAL CHANGES. The amount and kind of
Stock available for issuance under the Plan and the limit on the number of
shares of Stock in respect of which awards may be made to any Participant in
any calendar year shall be appropriately adjusted to reflect any stock
dividend, stock split, combination or exchange of shares, merger,
consolidation or other change in capitalization with a similar substantive
effect upon the Plan. The Board shall have the power and sole discretion to
determine the nature and amount of the adjustment, if any, to be made pursuant
to this Section 6.03.
6.04 NO RIGHT TO AWARD; NO RIGHT TO EMPLOYMENT. No employee or other
person shall have any claim of right to be permitted to participate or be
granted an award under this Plan. Neither the Plan nor any action taken
hereunder shall be construed as giving any employee any right to be retained
in the employ of the Corporation.
6.05 GOVERNING LAW. The Plan and all determinations made and actions
taken pursuant to the Plan shall be governed by the laws of the State of
Missouri other than the conflict of laws provisions of such laws, and shall be
construed in accordance therewith.
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6.06 CAPTIONS. The captions (i.e., all Section and subsection
headings) used in the Plan are for convenience only, do not constitute a part
of the Plan, and shall not be deemed to limit, characterize or affect in any
way any provisions of the Plan, and all provisions of the Plan shall be
construed as if no captions had been used in the Plan.
6.07 SEVERABILITY. Whenever possible, each provision in the Plan and
every Award Agreement shall be interpreted in such manner as to be effective
and valid under applicable law, but if any provision of the Plan or any Award
Agreement shall be held to be prohibited by or invalid under applicable law,
then (a) such provision shall be deemed amended to accomplish the objectives
of the provision as originally written to the fullest extent permitted by law
and (b) all other provisions of the Plan and every Award Agreement shall
remain in full force and effect.
6.08 LEGENDS. All certificates for Stock delivered under the Plan
shall be subject to such transfer restrictions set forth in the Plan and such
other restrictions as the Board may deem advisable under the rules,
regulations and other requirements of the Securities and Exchange Commission,
any stock exchange upon which the Stock is then listed and any applicable
federal or state securities law, and the Board may cause a legend or legends
to be endorsed on any such certificates making appropriate references to such
restrictions.
6.09 AMENDMENT AND TERMINATION.
(a) AMENDMENT. Subject to applicable law and regulations, the Board
shall have complete power and authority to amend the Plan at any time it is
deemed necessary or appropriate; provided, however, that no amendment shall be
made without shareholder approval if such approval is necessary for the
Corporation to comply with an applicable tax law or regulatory requirement.
No termination or amendment of the Plan may, without the consent of the
Participant to whom any award shall theretofore have been granted under the
Plan, adversely affect the right of such individual under such award.
(b) TERMINATION. The Board shall have the right and the power to
terminate the Plan at any time. Unless sooner terminated by action of the
Board, the Plan shall automatically terminate, without further action of the
Board or the Corporation's shareholders, on the tenth anniversary of the
Effective Date. No award shall be granted under the Plan after the
termination of the Plan, but the termination of the Plan shall not have any
other effect and any award outstanding at the time of the termination of the
Plan shall continue in effect in accordance with its terms as if the Plan has
not terminated.
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