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As filed with the Securities and Exchange Commission on July 2, 1998
Registration No. _______
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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FIRSTFED AMERICA BANCORP, INC.
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 6035 11-3333218
(State of Incorporation) (Primary Standard (IRS Employer
Classification Code Number) Identification No.)
ONE FIRSTFED PARK
SWANSEA MALL DRIVE
SWANSEA, MASSACHUSETTS 02777
(508) 235-1500
(Address, including zip code, and telephone number including area code, of
registrant's principal executive offices)
FIRSTFED AMERICA BANCORP, INC. 1997 STOCK-BASED INCENTIVE PLAN
(Full Title of the Plan)
COPIES TO:
ROBERT F. STOICO THOMAS P. HUTTON, ESQ.
PRESIDENT AND CHIEF EXECUTIVE OFFICER LAWRENCE M.F. SPACCASI, ESQ.
ONE FIRSTFED PARK MULDOON, MURPHY & FAUCETTE
SWANSEA MALL DRIVE 5101 WISCONSIN AVENUE, N.W.
SWANSEA, MASSACHUSETTS 02777 WASHINGTON, D.C. 20016
(508) 235-1500 (202) 362-0840
(Name, Address and Telephone Number of Agent for Service)
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, check the following box. |X|
<TABLE>
<CAPTION>
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Title of each Class of Amount to be Proposed Purchase Estimated Aggregate Registration
Securities to be Registered Registered(1) Price Per Share Offering Price(2) Fee
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<S> <C> <C> <C> <C>
Common Stock 870,715
$.01 par Value Shares (3) $ 18.569(4) $ 16,168,641 $ 4,770
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Common Stock 348,286
$.01 par Value Shares (5) $ 19.06 (6) $ 6,638,331 $ 1,958
========================================================================================================
(1)Together with an indeterminate number of additional shares which may be
necessary to adjust the number of shares reserved for issuance pursuant to
the FIRSTFED AMERICA BANCORP, INC. 1997 Stock-Based Incentive Plan (the "1997
Plan") as the result of a stock split, stock dividend or similar adjustment
of the outstanding Common Stock of FIRSTFED AMERICA BANCORP, INC. pursuant to
17 C.F.R. Section 230.416(a).
(2)Estimated solely for the purpose of calculating the registration fee pursuant
to 17 C.F.R. Section 230.457(h)(1).
(3)These shares are the total number of shares currently reserved for purchase
pursuant to the exercise of Options and Option-related Awards which may be
granted under the Incentive Plan.
(4)Pursuant to Rule 457(h)(1) and (c), the weighted average price determined by
the exercise price of $18.50 per share at which options for 781,707 shares
and $19.25 per share at which options for 55,630 shares under the Plan have
been granted to date and by $19.06, the market value of the Common Stock on
June 29, 1998, as determined by the average of the high and low prices listed
on the American Stock Exchange as reported in the Wall Street Journal, for
which 89,008 options have not yet been granted under the Plan.
(5)These shares are the total number of shares of Common Stock currently
reserved for Awards under the Incentive Plan prior to any adjustment as
permitted under such Plan.
(6)The price determined by the market value of the Common Stock on June 24,
1998, as determined by the average of the high and low prices listed on the
American Stock Exchange as reported in the Wall Street Journal, in accordance
with Rule 457(c) of the Securities Act.
</TABLE>
THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE IMMEDIATELY UPON FILING IN
ACCORDANCE WITH SECTION 8(A) OF THE SECURITIES ACT OF 1933, AS AMENDED, (THE
"SECURITIES ACT") AND 17 C.F.R. Section 230.462.
Number of Pages __
Exhibit Index begins on Page 10
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PART I INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEMS 1 & 2. The documents containing the information for the FIRSTFED AMERICA
BANCORP, INC. 1997 Stock-Based Incentive Plan ("1997 Plan") as required by Part
I of the Registration Statement will be sent or given to the participants in the
Plan as specified by Rule 428(b)(1). Such documents are not filed with the
Securities and Exchange Commission (the "SEC"), either as a part of this
Registration Statement or as prospectuses or prospectus supplements, pursuant to
Rule 424 in reliance on Rule 428.
PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed or to be filed with the SEC are
incorporated by reference in this Registration Statement:
(a) FIRSTFED AMERICA BANCORP, INC.'s (the "Holding Company" or the
"Registrant") Annual Report on Form 10-K for the fiscal year ended March 31,
1998, which includes consolidated balance sheets of the Holding Company and
subsidiaries as of March 31, 1998 and 1997 and the related consolidated
statements of operations, changes in stockholders' equity and cash flows for
each year in the three-year period that ended March 31, 1998, together with the
related notes and the report of KPMG Peat Marwick LLP, independent auditors
dated April 30, 1998 filed on June 26, 1998.
(b) The description of Registrant's Common Stock contained in
Registrant's Form 8-A (File No. 1-12305), as filed with the SEC pursuant to
Section 12(b) of the Securities Exchange Act of 1934 (the "Exchange Act") and
Rule 12b-15 promulgated thereunder on October 10, 1996 and declared effective on
November 12, 1996, as incorporated by reference from the Registrant's
Registration Statement on Form S-1 (SEC No. 333-12855) declared effective on
November 12, 1996.
(c) All documents filed by the Registrant pursuant to Section 13(a) and
(c), 14 or 15(d) of the Exchange Act after the date hereof and prior to the
filing of a post-effective amendment which deregisters all securities then
remaining unsold.
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 INCORPORATED OR 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.
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ITEM 4. DESCRIPTION OF SECURITIES
The common stock to be offered pursuant to the Plan has been registered
pursuant to Section 12 of the Exchange Act. Accordingly, a description of the
common stock is not required herein.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of the Common Stock offered hereby has been passed upon by
the firm of Muldoon, Murphy & Faucette, Washington, D.C. for the Registrant.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Directors and officers of the Registrant are indemnified and held
harmless against liability to the fullest extent permissible by the General
Corporation Law of Delaware as it currently exists or as it may be amended
provided any such amendment provides broader indemnification provisions than
currently exists.
In accordance with the General Corporation Law of the State of Delaware
(being Chapter 1 of Title 8 of the Delaware Code), Articles 10 and 11 of the
Registrant's Certificate of Incorporation provide as follows:
TENTH:
- -----
A. Each person who was or is made a party or is threatened to be made a party to
or is otherwise involved in any action, suit or proceeding, whether civil,
criminal, administrative or investigative (hereinafter a "proceeding"), by
reason of the fact that he or she is or was a Director or an Officer of the
Corporation or is or was serving at the request of the Corporation as a
Director, Officer, employee or agent of another corporation or of a partnership,
joint venture, trust or other enterprise, including service with respect to an
employee benefit plan (hereinafter an "indemnitee"), whether the basis of such
proceeding is alleged action in an official capacity as a Director, Officer,
employee or agent, or in any other capacity while serving as a Director,
Officer, employee or agent, shall be indemnified and held harmless by the
Corporation to the fullest extent authorized by the Delaware General Corporation
Law, as the same exists or may hereafter be amended (but, in the case of any
such amendment, only to the extent that such amendment permits the Corporation
to provide broader indemnification rights than such law permitted the
Corporation to provide prior to such amendment), against all expense, liability
and loss (including attorneys' fees, judgments, fines, ERISA excise taxes or
penalties and amounts paid in settlement) reasonably incurred or suffered by
such indemnitee in connection therewith; provided, however, that, except as
provided in Section C hereof with respect to proceedings to enforce rights to
indemnification, the Corporation shall indemnify any such indemnitee in
connection with a proceeding (or part thereof) initiated by such indemnitee only
if such proceeding (or part thereof) was authorized by the Board of Directors of
the Corporation.
B. The right to indemnification conferred in Section A of this Article TENTH
shall include the right to be paid by the Corporation the expenses incurred in
defending any such proceeding in
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advance of its final disposition (hereinafter an "advancement of expenses");
provided, however, that, if the Delaware General Corporation Law requires, an
advancement of expenses incurred by an indemnitee in his or her capacity as a
Director or Officer (and not in any other capacity in which service was or is
rendered by such indemnitee, including, without limitation, services to an
employee benefit plan) shall be made only upon delivery to the Corporation of an
undertaking (hereinafter an "undertaking"), by or on behalf of such indemnitee,
to repay all amounts so advanced if it shall ultimately be determined by final
judicial decision from which there is no further right to appeal (hereinafter a
"final adjudication") that such indemnitee is not entitled to be indemnified for
such expenses under this Section or otherwise. The rights to indemnification and
to the advancement of expenses conferred in Sections A and B of this Article
TENTH shall be contract rights and such rights shall continue as to an
indemnitee who has ceased to be a Director, Officer, employee or agent and shall
inure to the benefit of the indemnitee's heirs, executors and administrators.
C. If a claim under Section A or B of this Article TENTH is not paid in full by
the Corporation within sixty days after a written claim has been received by the
Corporation, except in the case of a claim for an advancement of expenses, in
which case the applicable period shall be twenty days, the indemnitee may at any
time thereafter bring suit against the Corporation to recover the unpaid amount
of the claim. If successful in whole or in part in any such suit, or in a suit
brought by the Corporation to recover an advancement of expenses pursuant to the
terms of an undertaking, the indemnitee shall be entitled to be paid also the
expenses of prosecuting or defending such suit. In (i) any suit brought by the
indemnitee to enforce a right to indemnification hereunder (but not in a suit
brought by the indemnitee to enforce a right to an advancement of expenses) it
shall be a defense that, and (ii) in any suit by the Corporation to recover an
advancement of expenses pursuant to the terms of an undertaking the Corporation
shall be entitled to recover such expenses upon a final adjudication that, the
indemnitee has not met any applicable standard for indemnification set forth in
the Delaware General Corporation Law. Neither the failure of the Corporation
(including its Board of Directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of such
suit that indemnification of the indemnitee is proper in the circumstances
because the indemnitee has met the applicable standard of conduct set forth in
the Delaware General Corporation Law, nor an actual determination by the
Corporation (including its Board of Directors, independent legal counsel, or its
stockholders) that the indemnitee has not met such applicable standard of
conduct, shall create a presumption that the indemnitee has not met the
applicable standard of conduct or, in the case of such a suit brought by the
indemnitee, be a defense to such suit. In any suit brought by the indemnitee to
enforce a right to indemnification or to an advancement of expenses hereunder,
or by the Corporation to recover an advancement of expenses pursuant to the
terms of an undertaking, the burden of proving that the indemnitee is not
entitled to be indemnified, or to such advancement of expenses, under this
Article TENTH or otherwise shall be on the Corporation.
D. The rights to indemnification and to the advancement of expenses conferred in
this Article TENTH shall not be exclusive of any other right which any person
may have or hereafter acquire under any statute, the Corporation's Certificate
of Incorporation, Bylaws, agreement, vote of stockholders or Disinterested
Directors or otherwise.
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E. The Corporation may maintain insurance, at its expense, to protect itself and
any Director, Officer, employee or agent of the Corporation or subsidiary or
Affiliate or another corporation, partnership, joint venture, trust or other
enterprise against any expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against such expense,
liability or loss under the Delaware General Corporation Law.
F. The Corporation may, to the extent authorized from time to time by the Board
of Directors, grant rights to indemnification and to the advancement of expenses
to any employee or agent of the Corporation to the fullest extent of the
provisions of this Article TENTH with respect to the indemnification and
advancement of expenses of Directors and Officers of the Corporation.
ELEVENTH:
- --------
A Director of this Corporation shall not be personally liable to the Corporation
or its stockholders for monetary damages for breach of fiduciary duty as a
Director, except for liability (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) under Section 174 of the Delaware General Corporation Law, or (iv)
for any transaction from which the Director derived an improper personal
benefit. If the Delaware General Corporation Law is amended to authorize
corporate action further eliminating or limiting the personal liability of
Directors, then the liability of a Director of the Corporation shall be
eliminated or limited to the fullest extent permitted by the Delaware General
Corporation Law, as so amended.
Any repeal or modification of the foregoing paragraph by the stockholders of the
Corporation shall not adversely affect any right or protection of a Director of
the Corporation existing at the time of such repeal or modification.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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ITEM 8. EXHIBITS.
The following exhibits are filed with or incorporated by reference into
this Registration Statement on Form S-8 (numbering corresponds generally to the
Exhibit Table in Item 601 of Regulation S-K).
(a) List of Exhibits (filed herewith unless otherwise noted)
3.1 Certificate of Incorporation of the Registrant.(1)
3.2 Bylaws of the Registrant.(1)
4 FIRSTFED AMERICA BANCORP, INC. 1997 Stock-Based Incentive Plan
5 Opinion of Muldoon, Murphy & Faucette as to the legality of the Common
Stock registered hereby.
23.1 Consent of Muldoon, Murphy & Faucette (contained in the opinion
included as Exhibit 5).
23.2 Consent of KPMG Peat Marwick LLP.
24 Powers of Attorney (contained on the signature pages).
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1 Incorporated herein by reference from Exhibits 3.1 and 3.2,
respectively, contained in the Registration Statement on Form S-1 (SEC
No. 333-12855), as amended and declared effective by the Securities and
Exchange Commission on November 12, 1996.
ITEM 9. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any Prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the Prospectus any facts or events arising after
the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the
information set forth in the registration statement; 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 to such information in the
registration statement unless the information required by (i) and
(ii) is contained in periodic reports filed by the Registrant
pursuant to Section 13 or 15(d) of the Exchange Act that are
incorporated by reference into this registration statement;
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(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; and
(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.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's or the Plan's annual report pursuant to Section 13(a) or 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 the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to trustees, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a trustee, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
trustee, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act will be governed by the final adjudication of
such issue.
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SIGNATURES
THE REGISTRANT.
Pursuant to the requirements of the Securities Act of 1933, as amended,
FIRSTFED AMERICA 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 Town of Swansea, Commonwealth of
Massachusetts, on July 2, 1998.
FIRSTFED AMERICA BANCORP, INC.
By:/s/ Robert F. Stoico
----------------------------------------
Robert F. Stoico
President and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENT, that each person whose signature appears
below (other than Mr. Stoico) constitutes and appoints Robert F. Stoico and Mr.
Stoico hereby constitutes and appoints Edward A. Hjerpe, III, as the true and
lawful attorney-in-fact and agent with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities to sign any or all amendments to the Form S-8 registration statement,
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the U.S. Securities and Exchange Commission,
respectively, granting unto said attorney-in-fact and agent full power and
authority to do and perform each and every act and things requisite and
necessary to be done as fully to all intents and purposes as he might or could
do in person, hereby ratifying and confirming all that said attorney-in-fact and
agent or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
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.
Name Title Date
---- ----- ----
/s/ Robert F. Stoico President and Chief July 2, 1998
- ----------------------- Executive Officer
Robert F. Stoico (principal executive officer)
/s/ Edward A. Hjerpe, III Senior Vice President and July 2, 1998
- ------------------------- Chief Financial Officer
Edward A. Hjerpe, III (principal financial and
accounting officer)
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/s/ Gilbert C. Oliveira Director July 2, 1998
- ------------------------
Gilbert C. Oliveira
/s/ Thomas A. Rodgers, Jr. Director July 2, 1998
- --------------------------
Thomas A. Rodgers, Jr.
/s/ Richard W. Cederberg Director July 2, 1998
- -------------------------
Richard W. Cederberg
/s/ John S. Holden, Jr. Director July 2, 1998
- -----------------------
John S. Holden, Jr.
/s/ Paul A. Raymond, D.D.S. Director July 2, 1998
- ---------------------------
Paul A. Raymond, D.D.S.
/s/ Anthony L. Sylvia Director July 2, 1998
- ----------------------
Anthony L. Sylvia
9
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<TABLE>
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EXHIBIT INDEX
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Sequentially
Numbered
Page
Exhibit No. Description Method of Filing Location
- ----------------- -------------------------- -------------------------------------------------- ---------------
<S> <C> <C> <C>
3.1 Certificate of Incorporated herein by reference from Exhibit 3.1 --
Incorporation of contained in the Registration Statement on Form
FIRSTFED S-1 filed with the SEC and declared effective on
AMERICA November 12, 1998.
BANCORP, INC.
3.2 Bylaws of FIRSTFED Incorporated herein by reference from Exhibit 3.2 --
AMERICA contained in the Registration Statement on Form
BANCORP, INC. S-1 filed with the SEC and declared effective on
November 12, 1998.
4 FIRSTFED Filed herewith.
AMERICA
BANCORP, INC.
1997 Stock-Based
Incentive Plan
5 Opinion of Muldoon, Filed herewith.
Murphy & Faucette
as to the legality of
the Common Stock
registered hereby
23.1 Consent of Contained in the opinion included as Exhibit 5.
Muldoon, Murphy
& Faucette
23.2 Consent of KPMG Filed herewith.
Peat Marwick, LLP
24 Powers of Attorney Located on the signature page. --
</TABLE>
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EXHIBIT 4
FIRSTFED AMERICA BANCORP, INC.
1997 STOCK-BASED INCENTIVE PLAN
<PAGE> 2
APPENDIX A
FIRSTFED AMERICA BANCORP, INC.
1997 STOCK-BASED INCENTIVE PLAN
1. DEFINITIONS.
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(a) "Affiliate" means any "subsidiary corporation" of the Holding Company,
as such term is defined in Section 424(f) of the Code.
(b) "Award" means, individually or collectively, a grant under the Plan of
Non-statutory Stock Options, Incentive Stock Options, Stock Appreciation Rights,
Limited Rights and Stock Awards.
(c) "Award Agreement" means an agreement evidencing and setting forth the
terms of an Award granted under the Plan, in such form as the Committee may,
from time to time, approve.
(d) "Bank" means First Federal Savings Bank of America, Fall River,
Massachusetts.
(e) "Board of Directors" means the board of directors of the Holding
Company.
(f) "Change in Control" means a change in control of the Bank or Holding
Company of a nature that (i) would be required to be reported in response to
Item 1 of the current report on Form 8-K, as in effect on the date hereof,
pursuant to Sections 13 or 15(d) of the Exchange Act; (ii) results in a "change
of control" or "acquisition of control" within the meaning of the regulations
promulgated by the Office of Thrift Supervision ("OTS") (or its predecessor
agency) found at 12 C.F.R. Part 574, as in effect on the date hereof; PROVIDED,
HOWEVER, that in applying the definition of change in control as set forth under
such regulations the Board of Directors shall substitute its judgment for that
of the OTS; or (iii) without limitation Change in Control shall be deemed to
have occurred at such time as (A) any "person" (as the term is used in Sections
13(d) and 14(d) of the Exchange Act) is or becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of the Bank or the Holding Company representing 20% or more of the
Bank's or the Holding Company's outstanding securities except for any securities
of the Bank purchased by the Holding Company and any securities purchased by any
tax-qualified employee benefit plan of the Bank; or (B) individuals who
constitute the Board of Directors on the date hereof (the "Incumbent Board")
cease for any reason to constitute at least a majority thereof, provided that
any person becoming a director subsequent to the date hereof whose election was
approved by a vote of at least three-quarters of the directors comprising the
Incumbent Board, or whose nomination for election by the Holding Company's
stockholders was approved by a nominating committee serving under the Incumbent
Board, shall be, for purposes of this clause (B), considered as though he were a
member of the Incumbent Board; or (C) a plan of reorganization, merger,
consolidation, sale of all or substantially all the assets of the Bank or the
Holding Company or similar transaction occurs in which the Bank or Holding
Company is not the resulting entity; or (D) a solicitation of
<PAGE> 3
shareholders of the Holding Company, by someone other than the current
management of the Holding Company, seeking stockholder approval of a plan of
reorganization, merger or consolidation of the Holding Company or Bank or
similar transaction with one or more corporations, as a result of which the
outstanding shares of the class of securities then subject to the plan are
exchanged for or converted into cash or property or securities not issued by the
Bank or the Holding Company; or (E) a tender offer is made for 20% or more of
the voting securities of the Bank or the Holding Company.
(g) "Code" means the Internal Revenue Code of 1986, as amended.
(h) "Committee" means the committee designated by the Board of Directors
to administer the Plan pursuant to Section 2 of the Plan.
(i) "Common Stock" means the Common Stock of the Holding Company, par
value, $.01 per share.
(j) "Date of Grant" means the effective date of an Award.
(k) "Disability" means any mental or physical condition with respect to
which the Participant qualifies for and receives benefits for under a long-term
disability plan of the Holding Company or an Affiliate, or in the absence of
such a long-term disability plan or coverage under such a plan, "disability"
shall mean a physical or mental condition which, in the sole discretion of the
Committee, is reasonably expected to be of indefinite duration and to
substantially prevent the Participant from fulfilling his duties or
responsibilities to the Holding Company or an Affiliate.
(l) "Effective Date" means the date the Plan is approved by stockholders,
as defined by applicable OTS regulation, or January 16, 1998, whichever is
earlier.
(m) "Employee" means any person employed by the Holding Company or an
Affiliate. Directors who are employed by the Holding Company or an Affiliate
shall be considered Employees under the Plan.
(n) "Exchange Act" means the Securities Exchange Act of 1934, as amended.
(o) "Exercise Price" means the price at which a share of Common Stock may
be purchased by a Participant pursuant to an Option.
(p) "Extraordinary Dividend" means a distribution to stockholders by the
Holding Company of earnings or stockholders' equity which: (i) exceeds net
earnings for the period for which the distribution is paid or (ii) such
distribution or any portion thereof will be treated by the stockholders
receiving such distribution as a return of capital for federal income tax
purposes
A-2
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(q) "Fair Market Value" means the market price of Common Stock, determined
by the Committee as follows:
(i) If the Common Stock was traded on the date in question on The
Nasdaq Stock Market then the Fair Market Value shall be equal
to the last transaction price quoted for such date by The
Nasdaq Stock Market;
(ii) If the Common Stock was traded on a stock exchange on the date
in question, then the Fair Market Value shall be equal to the
closing price reported by the applicable composite
transactions report for such date; and
(iii) If neither of the foregoing provisions is applicable, then the
Fair Market Value shall be determined by the Committee in good
faith on such basis as it deems appropriate.
Whenever possible, the determination of Fair Market Value by the Committee
shall be based on the prices reported in The Wall Street Journal. Such
-----------------------
determination shall be conclusive and binding on all persons.
(r) "Holding Company" means FIRSTFED AMERICA BANCORP, INC.
(s) "Incentive Stock Option" means an Option granted to a Participant
pursuant to Section 7 of the Plan that is intended to meet the requirements of
Section 422 of the Code.
(t) "Limited Right" means an Award granted to a Participant pursuant to
Section 8 of the Plan.
(u) "Non-statutory Stock Option" means a stock option granted to a
Participant pursuant to the terms of the Plan but which is not intended to be
and is not identified as an Incentive Stock Option or a stock option granted
under the Plan which is intended to be and is identified as an Incentive Stock
Option but which does not meet the requirements of Section 422 of the Code.
(v) "Option" means an Incentive Stock Option or Non-statutory Stock
Option.
(w) "Outside Director" means a member of the Board of Directors of the
Holding Company or an Affiliate, who is not also an Employee of the Holding
Company or an Affiliate.
(x) "Participant" means any person who holds an outstanding Award pursuant
to the Plan.
(y) "Performance Award" means an Award granted to a Participant pursuant
to Section 11 of the Plan.
A-3
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(z) "Performance Goal" means an objective for the Holding Company or any
Affiliate or any unit thereof or any individual that may be established by the
Committee for a Performance Award to become vested, earned or exercisable.
Performance Goals applicable to Performance Awards are intended to constitute
"performance-based" compensation within the meaning of Section 162(m) of the
Code and shall be based on one or more of the following criteria:
(i) net income, as adjusted for non-recurring items
(ii) cash earnings
(iii) earnings per share
(iv) cash earnings per share
(v) return on equity
(vi) return on assets
(vii) assets
(viii) stock price
(ix) total shareholder return
(x) capital
(xi) net interest income
(xii) market share
(xiii) cost control or efficiency ratio
(xiv) asset growth
(aa) "Plan" means the FIRSTFED AMERICA BANCORP, INC. 1997 Stock-Based
Incentive Plan.
(bb) "Retirement" means a termination of employment (i) from the Holding
Company or an Affiliate at an age and with employment service that would entitle
the individual to a pension under the Financial Institutions Retirement Fund as
adopted by First Federal Savings Bank of America ("Pension Plan") if the
individual were a participant in such Pension Plan or (ii) under circumstances
designated as a Retirement by the Committee. "Retirement" with respect to an
Outside Director means the termination of service from the Board of Directors of
the Holding Company and any Affiliate following written notice to the Board of
Directors of such Outside Director's intention to retire.
(cc) "Stock Appreciation Right" means an Award granted to a Participant,
alone or in connection with a related Option, pursuant to Section 10 of the
Plan.
(dd) "Stock Award" means an Award granted to a Participant pursuant to
Section 9 of the Plan.
(ee) "Termination for Cause" shall mean, in the case of an Outside
Director, removal from the Board of Directors or, in the case of an Employee,
termination of employment, because of a material loss to the Holding Company or
an Affiliate caused by the Participant's intentional failure to perform stated
duties, personal dishonesty, willful violation of any law, rule, regulation
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(other than traffic violations or similar offenses) or final cease and desist
order, as determined by the Board of Directors. No act, or failure to act, on a
Participant's part shall be "willful" unless done, or omitted to be done, not in
good faith and without reasonable belief that the action or omission was in the
best interest of the Holding Company or an Affiliate.
(ff) "Trust" means a trust established by the Board of Directors in
connection with this Plan to hold Plan assets for the purposes set forth herein.
(gg) "Trustee" means any person or entity approved by the Board of
Directors to hold legal title to any of the Trust assets for the purposes set
forth under the Plan.
2. ADMINISTRATION.
--------------
(a) The Plan shall be administered by the Committee. The Committee shall
consist of two or more disinterested directors of the Holding Company, who shall
be appointed by the Board of Directors. A member of the Board of Directors shall
be deemed to be "disinterested" only if he satisfies (i) such requirements as
the Securities and Exchange Commission may establish for non-employee directors
administering plans intended to qualify for exemption under Rule 16b-3 (or its
successor) under the Exchange Act and (ii) such requirements as the Internal
Revenue Service may establish for outside directors acting under plans intended
to qualify for exemption under Section 162(m)(4)(C) of the Code. The Board of
Directors may also appoint one or more separate committees of the Board of
Directors, each composed of one or more directors of the Holding Company or an
Affiliate who need not be disinterested and who may grant Awards and administer
the Plan with respect to Employees and Outside Directors who are not considered
officers or directors of the Holding Company under Section 16 of the Exchange
Act.
(b) The Committee shall (i) select the Employees and Outside Directors who
are to receive Awards under the Plan, (ii) determine the type, number, vesting
requirements and other features and conditions of such Awards, (iii) interpret
the Plan and (iv) make all other decisions relating to the operation of the
Plan. The Committee may adopt such rules or guidelines as it deems appropriate
to implement the Plan. The Committee's determinations under the Plan shall be
final and binding on all persons.
(c) Each Award shall be evidenced by a written agreement ("Award
Agreement") containing such provisions as may be approved by the Committee. Each
Award Agreement shall constitute a binding contract between the Holding Company
or an Affiliate and the Participant, and every Participant, upon acceptance of
the Award Agreement, shall be bound by the terms and restrictions of the Plan
and the Award Agreement. The terms of each Award Agreement shall be in
accordance with the Plan, but each Award Agreement may include such additional
provisions and restrictions determined by the Committee, in its discretion,
provided that such additional provisions and restrictions are not inconsistent
with the terms of the Plan. In particular, the Committee shall set forth in each
Award Agreement (i) the type of Award granted (ii) the
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Exercise Price of an Option or Stock Appreciation Right, (iii) the number of
shares subject to the Award; (iv) the expiration date of the Award, (v) the
manner, time, and rate (cumulative or otherwise) of exercise or vesting of such
Award, and (vi) the restrictions, if any, placed upon such Award, or upon shares
which may be issued upon exercise of such Award. The Chairman of the Committee
and such other directors and officers as shall be designated by the Committee
are hereby authorized to execute Award Agreements on behalf of the Company or an
Affiliate and to cause them to be delivered to the recipients of Awards.
(d) The Committee may delegate all authority for: (i) the determination of
forms of payment to be made by or received by the Plan and (ii) the execution of
any Award Agreement. The Committee may rely on the descriptions,
representations, reports and estimates provided to it by the management of the
Holding Company or an Affiliate for determinations to be made pursuant to the
Plan, including the attainment of Performance Goals. However, only the Committee
or a portion of the Committee may certify the attainment of a Performance Goal.
3. TYPES OF AWARDS AND RELATED RIGHTS.
----------------------------------
The following Awards may be granted under the Plan:
(a) Non-statutory Stock Options
(b) Incentive Stock Options
(c) Limited Rights
(d) Stock Awards
(e) Stock Appreciation Rights
4. STOCK SUBJECT TO THE PLAN.
-------------------------
Subject to adjustment as provided in Section 17 hereof, the maximum number
of shares reserved for Awards under the Plan is 1,218,983, which number shall
not exceed 14% of the outstanding shares of the Common Stock determined
immediately as of the Effective Date. Subject to adjustment as provided in
Section 17 hereof, the maximum number of shares reserved hereby for purchase
pursuant to the exercise of Options and Option-related Awards granted under the
Plan is 870,715, which number shall not exceed 10% of the outstanding shares of
Common Stock as of the Effective Date. The maximum number of the shares reserved
for Stock Awards is 348,268, which number shall not exceed 4% of the outstanding
shares of Common Stock as of the Effective Date. The shares of Common Stock
issued under the Plan may be either authorized but unissued shares or authorized
shares previously issued and acquired or reacquired by the Trust or the Holding
Company, respectively. To the extent that Options and Stock Awards are granted
under the Plan, the shares underlying such Awards will be unavailable for any
other use including future grants under the Plan except that, to the extent that
Stock Awards or Options terminate, expire, or are forfeited without having
vested or without having been exercised (in the
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case of Limited Rights, exercised for cash), new Awards may be made with respect
to these shares.
5. ELIGIBILITY.
-----------
Subject to the terms of the Plan, all Employees and Outside Directors
shall be eligible to receive Awards under the Plan. In addition, the Committee
may grant eligibility to consultants and advisors of the Holding Company or an
Affiliate.
6. NON-STATUTORY STOCK OPTIONS.
---------------------------
The Committee may, subject to the limitations of this Plan and the
availability of shares of Common Stock reserved but unawarded under this Plan,
grant Non-statutory Stock Options upon such terms and conditions as it may
determine. Non-statutory Stock Options granted under this Plan are subject to
the following terms and conditions:
(a) Exercise Price. The Exercise Price of each Non-statutory Stock Option
--------------
shall be determined by the Committee on the Date of Grant. Such Exercise Price
shall not be less than 100% of the Fair Market Value of the Common Stock on the
Date of Grant. Shares of Common Stock underlying a Non-statutory Stock Option
may be purchased only upon full payment of the Exercise Price in a manner
provided for in Section 14 of the Plan.
(b) Terms of Non-statutory Stock Options. The term during which each
------------------------------------
Non-statutory Stock Option may be exercised shall be determined by the
Committee, but in no event shall a Non-statutory Stock Option be exercisable in
whole or in part more than ten (10) years from the Date of Grant. Subject to
Section 23 of the Plan, the Committee shall determine the date on which each
Non-statutory Stock Option shall become exercisable and any terms or conditions
which must be satisfied prior to each Non-statutory Stock Option becoming
exercisable. Any such terms or conditions shall be determined by the Committee
as of the Date of Grant. The shares of Common Stock underlying each
Non-statutory Stock Option installment may be purchased in whole or in part by
the Participant at any time during the term of such Non-statutory Stock Option
after such installment becomes exercisable.
(c) Non-Transferability. Unless otherwise determined by the Committee in
-------------------
accordance with this Section 6(c), Non-statutory Stock Options shall not be
transferred, assigned, hypothecated, or disposed of in any manner by a
Participant other than by will or the laws of intestate succession. The
Committee may, however, in its sole discretion, permit transferability or
assignment of a Non-statutory Stock Option if such transfer or assignment is, in
its sole determination, for valid estate planning purposes and such transfer or
assignment is permitted under the Code and Rule 16b-3 under the Exchange Act.
For purposes of this Section 6(c), a transfer for valid estate planning purposes
includes, but is not limited to: (a) a transfer to a revocable intervivos trust
as to which the Participant is both the settlor and trustee, (b) a transfer for
no consideration to: (i) any member of the Participant's Immediate Family, (ii)
any trust
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solely for the benefit of members of the Participant's Immediate Family, (iii)
any partnership whose only partners are members of the Participant's Immediate
Family, and (iv) any limited liability corporation or corporate entity whose
only members or equity owners are members of the Participant's Immediate Family,
or (c) The FIRSTFED Charitable Foundation. For purposes of this Section 6(c),
"Immediate Family" includes, but is not necessarily limited to, a Participant's
parents, spouse, children, grandchildren and great-grandchildren. Nothing
contained in this Section 6(c) shall be construed to require the Committee to
give its approval to any transfer or assignment of any Non-statutory Stock
Option or portion thereof, and approval to transfer or assign any Non-statutory
Stock Option or portion thereof does not mean that such approval will be given
with respect to any other Non-statutory Stock Option or portion thereof. The
transferee or assignee of any Non-statutory Stock Option shall be subject to all
of the terms and conditions applicable to such Non-statutory Stock Option
immediately prior to the transfer or assignment and shall be subject to any
conditions proscribed by the Committee with respect to such Non-statutory Stock
Option.
(d) Termination of Employment or Service. Unless otherwise determined by
------------------------------------
the Committee, upon the termination of a Participant's employment or service for
any reason other than Disability, death, Retirement or Termination for Cause,
the Participant's Non-statutory Stock Options shall be exercisable only as to
those shares that were immediately exercisable by the Participant at the date of
termination and only for a period of three (3) months following termination. In
the event of a Participant's Retirement, the Participant's Non-statutory Stock
Options shall be exercisable only as to those shares that were immediately
exercisable by the Participant at the date of Retirement and remain exercisable
for a period of three (3) years; provided however, that upon the Participant's
Retirement, the Committee, in its discretion, may determine that all
unexercisable Non-statutory Stock Options shall continue to become exercisable
in accordance with the Award Agreement if the Participant is immediately engaged
by the Holding Company or an Affiliate as a consultant or advisor or continues
to serve the Holding Company or an Affiliate as a director or advisory director.
Unless otherwise determined by the Committee, in the event of the termination of
a Participant's employment or service due to Disability or death, all
Non-statutory Stock Options held by such Participant shall immediately become
exercisable and remain exercisable for a period of three (3) years. Unless
otherwise determined by the Committee, in the event of a Participant's
Termination for Cause, all rights under the Participant's Non-statutory Stock
Options shall expire immediately upon the effective date of such Termination for
Cause.
(e) Maximum Individual Award. No individual Employee shall be granted an
------------------------
amount of Non-statutory Stock Options which exceeds 25% of all Options eligible
to be granted under the Plan within any 60 month period and no individual
Outside Director shall be granted an amount of Non-statutory Stock Options which
exceeds 5% of all Options eligible to be granted under the Plan within any 60
month period.
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7. INCENTIVE STOCK OPTIONS.
-----------------------
The Committee may, subject to the limitations of the Plan and the
availability of shares of Common Stock reserved but unawarded under this Plan,
grant Incentive Stock Options to an Employee. Incentive Stock Options granted
pursuant to the Plan shall be subject to the following terms and conditions:
(a) Exercise Price. The Exercise Price of each Incentive Stock Option
--------------
shall be not less than 100% of the Fair Market Value of the Common Stock on the
Date of Grant. However, if at the time an Incentive Stock Option is granted, the
Employee owns or is treated as owning, for purposes of Section 422 of the Code,
Common Stock representing more than 10% of the total combined voting securities
of the Holding Company ("10% owner"), the Exercise Price shall not be less than
110% of the Fair Market Value of the Common Stock on the Date of Grant. Shares
of Common Stock may be purchased only upon payment of the full Exercise Price in
a manner provided for in Section 14 of the Plan.
(b) Amounts of Incentive Stock Options. To the extent the aggregate Fair
----------------------------------
Market Value of shares of Common Stock with respect to which Incentive Stock
Options that are exercisable for the first time by an Employee during any
calendar year under the Plan and any other stock option plan of the Holding
Company or an Affiliate exceeds $100,000, or such higher value as may be
permitted under Section 422 of the Code, such Options in excess of such limit
shall be treated as Non-statutory Stock Options. Fair Market Value shall be
determined as of the Date of Grant with respect to each such Incentive Stock
Option.
(c) Terms of Incentive Stock Options. The term during which each Incentive
--------------------------------
Stock Option may be exercised shall be determined by the Committee, 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 who is a 10% Owner, the Incentive Stock Option
granted to such Employee shall not be exercisable after the expiration of five
(5) years from the Date of Grant. Subject to Section 23 of the Plan, the
Committee shall determine the date on which each Incentive Stock Option shall
become exercisable and any terms or conditions which must be satisfied prior to
the Incentive Stock Option becoming exercisable. Any such terms or conditions
shall be determined by the Committee as of the Date of Grant. The shares of
Common Stock underlying each Incentive Stock Option installment may be purchased
in whole or in part at any time during the term of such Incentive Stock Option
after such installment becomes exercisable.
(d) Transferability. No Incentive Stock Option shall be transferable
---------------
except by will or the laws of descent and distribution and is exercisable,
during his lifetime, only by the Employee to whom it is granted. The designation
of a beneficiary does not constitute a transfer.
(e) Termination of Employment. Unless otherwise determined by the
-------------------------
Committee, upon the termination of an Employee's employment for any reason other
than Disability, death,
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Retirement or Termination for Cause, the Employee's Incentive Stock Options
shall be exercisable only as to those Incentive Stock Options that were
immediately exercisable by the Employee at the date of termination and only for
a period of three (3) months following such termination. In the event of an
Employee's Retirement, the Employee's Incentive Stock Options shall be
exercisable only as to those shares that were immediately exercisable by the
Employee at the date of Retirement and remain exercisable for a period of three
(3) years; provided however, that upon the Employee's Retirement, the Committee,
in its discretion, may determine that all unexercisable Incentive Stock Options
shall continue to become exercisable in accordance with the Award Agreement if
the Employee is immediately engaged by the Holding Company or an Affiliate as a
consultant or advisor or continues to serve the Holding Company or an Affiliate
as a director or advisory director. Unless otherwise determined by the
Committee, in the event of the termination of an Employee's service for
Disability or death, all unvested Incentive Stock Options held by such Employee
shall immediately become exercisable and shall remain exercisable for three (3)
years after such termination. Unless otherwise determined by the Committee, in
the event of an Employee's Termination for Cause, all rights under such
Employee's Incentive Stock Options shall expire immediately upon the effective
date of such Termination for Cause. Any Option which, by operation of this
provision, does not meet the requirements of Section 422 of the Code, shall be
considered a Non-statutory Stock Option.
(f) Maximum Individual Award. No individual Employee shall be granted an
------------------------
amount of Incentive Stock Options which exceeds 25% of all Options eligible to
be granted under the Plan within any 60 month period.
8. LIMITED RIGHTS.
--------------
Simultaneously with the grant of any Option, the Committee may grant a
Limited Right with respect to all or some of the shares of Common Stock covered
by such Option. Limited Rights granted under this Plan are subject to the
following terms and conditions:
(a) Terms of Rights. In no event shall a Limited Right be exercisable in
---------------
whole or in part before the expiration of six (6) months from the Date of Grant
of the Limited Right. A Limited Right may be exercised only in the event of a
Change in Control. The Limited Right may be exercised only when the underlying
Option is eligible to be exercised, and only when the Fair Market Value of the
underlying shares on the day of exercise is greater than the Exercise Price of
the underlying Option. Upon exercise of a Limited Right, the underlying Option
shall cease to be exercisable and shall be terminated. Upon exercise or
termination of an Option, any related Limited Rights shall terminate. The
Limited Right is transferable only when the underlying Option is transferable
and under the same conditions.
(b) Payment. Upon exercise of a Limited Right, the holder shall promptly
-------
receive from the Holding Company or an Affiliate an amount of cash equal to the
difference between the Exercise Price of the underlying Option and the Fair
Market Value of the Common Stock subject
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to such Option on the date the Limited Right is exercised, multiplied by the
number of shares with respect to which such Limited Right is being exercised.
9. STOCK AWARDS.
------------
The Committee may, subject to the limitations of the Plan, make Stock
Awards which shall consist of the grant of some number of shares of Common Stock
to a Participant. Stock Awards shall be made subject to the following terms and
conditions:
(a) Payment of the Stock Award. Stock Awards may only be made in whole
--------------------------
shares of Common Stock. Stock Awards may only be granted from shares reserved
under the Plan and available for award at the time the Stock Award is made to
the Participant.
(b) Terms of the Stock Awards. Subject to Section 23 of the Plan, the
-------------------------
Committee shall determine the dates on which Stock Awards granted to a
Participant shall vest and any terms or conditions which must be satisfied prior
to the vesting of any installment or portion of the Stock Award. Any such terms,
or conditions shall be determined by the Committee as of the Date of Grant.
(c) Termination of Employment or Service. Unless otherwise determined by
------------------------------------
the Committee, upon the termination of a Participant's employment or service for
any reason other than Disability, death, Retirement or Termination for Cause,
the Participant's unvested Stock Awards as of the date of termination shall be
forfeited and any rights the Participant had to such unvested Stock Awards shall
become null and void. In the event of a Participant's Retirement, the
Participant's unvested Stock Awards as of the date of Retirement shall be
forfeited and any rights the Participant had to such unvested Stock Awards shall
become null and void; provided however, that upon the Participant's Retirement,
the Committee, in its discretion, may determine that all unvested Stock Awards
shall continue to vest in accordance with the Award Agreement if the Participant
is immediately engaged by the Holding Company or an Affiliate as a consultant or
advisor or continues to serve the Holding Company or an Affiliate as a director
or advisory director. Unless otherwise determined by the Committee, in the event
of a termination of the Participant's service due to Disability, death all
unvested Stock Awards held by such Participant shall immediately vest. Unless
otherwise determined by the Committee, or in the event of the Participant's
Termination for Cause, all unvested Stock Awards held by such Participant as of
the effective date of such Termination for Cause shall be forfeited and any
rights such Participant had to such unvested Stock Awards shall become null and
void.
(d) Non-Transferability. Except to the extent permitted by the Code, the
-------------------
rules promulgated under Section 16(b) of the Exchange Act or any successor
statutes or rules:
(i) The recipient of a Stock Award shall not sell, transfer,
assign, pledge, or otherwise encumber shares subject to the
Stock Award until full vesting of such shares has occurred.
For purposes of this section, the separation of
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beneficial ownership and legal title through the use of
any "swap" transaction is deemed to be a prohibited
encumbrance.
(ii) Unless determined otherwise by the Committee and except in
the event of the Participant's death or pursuant to a
domestic relations order, a Stock Award is not transferable
and may be earned in his lifetime only by the Participant to
whom it is granted. Upon the death of a Participant, a Stock
Award is transferable by will or the laws of descent and
distribution. The designation of a beneficiary shall not
constitute a transfer.
(iii) If a recipient of a Stock Award is subject to the provisions
of Section 16 of the Exchange Act, shares of Common Stock
subject to such Stock Award may not, without the written
consent of the Committee (which consent may be given in the
Award Agreement), be sold or otherwise disposed of within six
(6) months following the date of grant of the Stock Award.
(e) Accrual of Dividends. Whenever shares of Common Stock underlying a
--------------------
Stock Award are distributed to a Participant or beneficiary thereof under the
Plan, such Participant or beneficiary shall also be entitled to receive, with
respect to each such share distributed, a payment equal to any cash dividends
and the number of shares of Common Stock equal to any stock dividends, declared
and paid with respect to a share of the Common Stock if the record date for
determining shareholders entitled to receive such dividends falls between the
date the relevant Stock Award was granted and the date the relevant Stock Award
or installment thereof is issued. There shall also be distributed an appropriate
amount of net earnings, if any, of the Trust with respect to any dividends paid
out on the shares related to the Stock Award.
(f) Voting of Stock Awards. After a Stock Award has been granted but for
----------------------
which the shares covered by such Stock Award have not yet been vested, earned
and distributed to the Participant pursuant to the Plan, the Participant shall
be entitled to vote or to direct the Trustee to vote, as the case may be, such
shares of Common Stock which the Stock Award covers subject to the rules and
procedures adopted by the Committee for this purpose and in a manner consistent
with the Trust agreement.
(g) Maximum Individual Award. No individual Employee shall be granted an
------------------------
amount of Stock Awards which exceeds 25% of all Stock Awards eligible to be
granted under the Plan within any 60 month period and no individual Outside
Director shall be granted an amount of Stock Awards which exceeds 5% of all
Stock Awards eligible to be granted under the Plan within any 60 month period.
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10. STOCK APPRECIATION RIGHTS
-------------------------
The Committee may, subject to the limitation of the Plan, grant a Stock
Appreciation Right ("SAR") to any Participant. A Stock Appreciation Right shall
entitle the Participantto the right to receive a payment, equal in value to the
excess of the Fair Market Value of a specified number of shares of Common Stock
on the date the SAR is exercised over the grant price of such SAR, which shall
not be less than 100% of the Fair Market Value on the date of grant of such SAR,
as determined by the Committee, provided that, in the case of a SAR granted
retroactively in tandem with or as substitution for another award granted under
any plan of the Company or an Affiliate, the grant price may be the same as the
exercise or designated price of such other award.
(a) Maximum Individual Award. No individual Employee or Outside Director
shall be granted a number of Stock Appreciation Rights which exceeds the maximum
number of Options such individual may be granted under the Plan, pursuant to
Section 6(e) hereof, within any 60 month period.
11. PERFORMANCE AWARDS
------------------
(a) The Committee may determine to make any Award under the Plan
contingent upon the achievement of a Performance Goal or any combination of
Performance Goals. Each Performance Award shall be evidenced in the Award
Agreement, which shall set forth the Performance Goals applicable to the Award,
the maximum amounts payable and such other terms and conditions as are
applicable to the Performance Award. Each Performance Award shall be granted and
administered to comply with the requirements of Section 162(m) of the Code and
in a manner consistent with the provisions of Section 23 of the Plan.
(b) Any Performance Award shall be made not later than 90 days after the
start of the period for which the Performance Award relates and shall be made
prior to the completion of 25% of such period. All determinations regarding the
achievement of any Performance Goals will be made by the Committee. The
Committee may not increase during a year the amount of a Performance Award that
would otherwise be payable upon achievement of the Performance Goals but may
reduce or eliminate the payments as provided for in the Award Agreement.
(c) Nothing contained in the Plan will be deemed in any way to limit or
restrict the Committee from making any Award or payment to any person under any
other plan, arrangement or understanding, whether now existing or hereafter in
effect.
(d) A Participant who receives a Performance Award payable in Common Stock
shall have no rights as a shareholder until the Company Stock is issued pursuant
to the terms of the Award Agreement. The Common Stock may be issued without cash
consideration.
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(e) A Participant's interest in a Performance Award may not be sold,
assigned, transferred, pledged, hypothecated, or otherwise encumbered.
(f) No Award or portion thereof that is subject to the attainment or
satisfaction of a condition or Performance Goal shall be distributed or
considered to be earned or vested until the Committee certifies in writing that
the conditions or Performance Goal to which the distribution, earning or vesting
of such Award is subject has been achieved.
12. DEFERRED PAYMENTS
-----------------
Notwithstanding any other provision of this Plan, any Participant may
elect, with the concurrence of the Committee and consistent with any rules and
regulations established by the Committee, to defer the delivery of the proceeds
of the exercise of any Non-statutory Stock Option not transferred under the
provisions of Section 6(c), Stock Appreciation Rights, and Stock Awards.
(a) Election Timing. The election to defer the delivery of the proceeds
---------------
from any eligible Non-statutory Stock Option or Stock Appreciation Right must be
made at least six (6) months prior to the date such Award is exercised or at
such other time as the Committee may specify. The election to defer the delivery
of any Stock Award must be made no later than the last day of the calendar year
preceding the calendar year in which the Participant would otherwise have an
unrestricted right to receive such Award. Deferrals of eligible Awards shall
only be allowed for exercises of Options and lapses of restrictions on Stock
Awards that occur while the Participant is in active service with the Holding
Company or an Affiliate. Any election to defer the proceeds from an eligible
Award shall be irrevocable as long as the Participant remains an Employee or
Outside Director of the Holding Company or an Affiliate.
(b) Stock Option Deferral. The deferral of the proceeds of Non-statutory
---------------------
Stock Options may be elected by a Participant subject to the rules and
regulations established by the Committee. The proceeds from such an exercise
shall be credited to a deferred stock option account established for the
Participant. The proceeds shall be credited to the deferred stock option account
as a number of deferred shares or share units equivalent in value to those
proceeds. Deferred share units shall be valued at the Fair Market Value on the
date of exercise. Subsequent to exercise, the deferred shares or share units
shall be valued at the Fair Market Value of Common Stock; provided, however,
that at the discretion of the Committee, the Participant may elect to have the
value of his deferred stock option account valued on some other basis of
measurement approved by the Committee. Unless the Participant's deferred stock
option account is valued using a basis of measurement other than Common Stock,
deferred share units shall accrue dividends at the rate paid upon the Common
Stock credited in the form of additional deferred share units. Deferred shares
or share units shall be distributed in shares of Common Stock or cash, at the
discretion of the Committee, upon the termination of service of the Participant
or at such other date, as may be approved by the Committee, over a period of no
more than ten (10) years.
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(c) Stock Appreciation Right Deferral. The deferral of the proceeds of
---------------------------------
Stock Appreciation Rights may be made by a Participant subject to the rules and
regulations established by the Committee. Upon exercise, the Committee will
credit the Participant's deferred stock option account with a number of deferred
shares or share units equivalent in value to the difference between the Fair
Market Value of a share of Common Stock on the exercise date and the Exercise
Price of the Stock Appreciation Right multiplied by the number of shares
exercised. Deferred shares or share units shall be valued at the Fair Market
Value on the date of exercise. Subsequent to exercise, the deferred shares or
share units shall be valued at the Fair Market Value of Common Stock; provided,
however, that at the discretion of the Committee, the Participant may elect to
have the value of his deferred stock option account valued on some other basis
of measurement approved by the Committee. Unless the Participant's deferred
stock option account is valued using a basis of measurement other than Common
Stock, deferred shares or share units shall accrue dividends at the rate paid
upon the Common Stock credited in the form of additional deferred shares or
share units. Deferred shares or share units shall be distributed in shares of
Common Stock or cash, at the discretion of the Committee, upon the Participant's
termination of service or at such other date, as may be approved by the
Committee, over a period of no more than ten (10) years.
(d) Stock Award Deferrals. The deferral of Stock Awards may be elected by
---------------------
a Participant subject to the rules and regulations established by the Committee.
Upon the lapsing of restrictions on such an Award, the Committee shall credit to
a deferred stock award account established for the Participant a number of
deferred shares or share units equivalent in value to the number of deferred
Stock Awards multiplied by the Fair Market Value of Common Stock. Deferred
shares or share units shall be valued at the Fair Market Value on the date all
restriction on the Stock Award lapse or are waived. Subsequent to the lapsing of
all restrictions, the deferred shares or share units shall be valued at the Fair
Market Value of Common Stock; provided, however, that at the discretion of the
Committee, the Participant may elect to have the value of his deferred stock
award account valued on some other basis of measurement approved by the
Committee. Unless the Participant's deferred stock award account is valued using
a basis of measurement other than Common Stock, deferred shares or share units
shall accrue dividends at the rate paid upon the Common Stock credited in the
form of additional deferred share units. Deferred share units shall be
distributed in shares of Common Stock or cash, at the discretion of the
Committee, upon the termination of service of the Participant or at such other
date, as may be approved by the Committee, over a period of no more than ten
(10) years.
(e) Accelerated Distributions. The Committee may, at its sole discretion,
-------------------------
allow for the early payment of a Participant's deferred stock option account
and/or deferred stock award account in the event of an "unforeseeable emergency"
or in the event of the death or Disability of the Participant. An "unforeseeable
emergency" means an unanticipated emergency caused by an event beyond the
control of the Participant that would result in severe financial hardship if the
distribution were not permitted. Such distributions shall be limited to the
amount necessary to sufficiently address the financial hardship. Any
distributions under this provision, shall be consistent with the Code and the
regulations promulgated thereunder. Additionally, the
A-15
<PAGE> 17
Committee may use its discretion to cause stock option deferral accounts and/or
deferred stock award accounts to be distributed when continuing the program is
no longer in the best interest of the Holding Company or any Affiliate.
(f) Assignability. No rights to deferred stock option accounts or deferred
-------------
stock award accounts may be assigned or subject to any encumbrance, pledge or
charge of any nature except that a Participant may designate a beneficiary
pursuant to any rules established by the Committee.
(g) Unfunded Status. No Participant or other person shall have any
---------------
interest in any fund or in any specific asset of the Holding Company or an
Affiliate by reason of any amount credited hereunder. Any amounts payable
hereunder shall be paid from the general assets of the Holding Company or its
Affiliates and no Participant or other person shall have any rights to such
assets beyond the rights afforded general creditors of the Holding Company and
its Affiliates. However, the Holding Company or any Affiliate shall have the
right to establish a reserve, trust or make any investment for the purpose of
satisfying the obligations created under this Section 12 of the Plan; provided,
however, that no Participant or other person shall have any interest in such
reserve, trust or investment.
13. PAYOUT ALTERNATIVES
-------------------
(a) Payments due to a Participant upon the exercise or redemption of an
Option or Stock Award shall be made in the form of shares of Common Stock.
Payments due to a Participant upon the exercise or redemption of a Stock
Appreciation Right or Limited Right shall be made in the form of cash.
(b) Any shares of Common Stock tendered in satisfaction of an obligation
arising under this Plan shall be valued at the Fair Market Value of the Common
Stock on the day preceding the date of the issuance of such stock to the
Participant.
14. METHOD OF EXERCISE
------------------
Subject to any applicable Award Agreement, any Option may be exercised by
the Participant in whole or in part at such time or times, and the Participant
may make payment of the Exercise Price in such form or forms, including, without
limitation, payment by delivery of cash, Common Stock or other consideration
(including, where permitted by law and the Committee, Awards) having a Fair
Market Value on the exercise date equal to the total Exercise Price, or by any
combination of cash, shares of Common Stock and other consideration, including
exercise by means of a cashless exercise arrangement with a qualifying
broker-dealer, as the Committee may specify in the applicable Award Agreement.
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<PAGE> 18
15. RIGHTS OF PARTICIPANTS.
----------------------
No Participant shall have any rights as a shareholder with respect to any
shares of Common Stock covered by an Option until the date of issuance of a
stock certificate for such Common Stock. Nothing contained herein or in any
Award Agreement confers on any person any right to continue in the employ or
service of the Holding Company or an Affiliate or interferes in any way with the
right of the Holding Company or an Affiliate to terminate a Participant's
services.
16. DESIGNATION OF BENEFICIARY.
--------------------------
A Participant may, with the consent of the Committee, designate a person
or persons to receive, in the event of death, any Award to which the Participant
would then be entitled. Such designation will be made upon forms supplied by and
delivered to the Holding Company and may be revoked in writing. If a Participant
fails effectively to designate a beneficiary, then the Participant's estate will
be deemed to be the beneficiary.
17. DILUTION AND OTHER ADJUSTMENTS.
------------------------------
In the event of any change in the outstanding shares of Common Stock by
reason of any stock dividend or split, recapitalization, merger, consolidation,
spin-off, reorganization, combination or exchange of shares, or other similar
corporate change, or other increase or decrease in such shares without receipt
or payment of consideration by the Holding Company, or in the event an
extraordinary capital distribution (including an Extraordinary Dividend) is made
and any necessary OTS approval is obtained, the Committee may make such
adjustments to previously granted Awards, to prevent dilution, diminution, or
enlargement of the rights of the Participant, including any or all of the
following:
(a) adjustments in the aggregate number or kind of shares of Common Stock
or other securities that may underlie future Awards under the Plan;
(b) adjustments in the aggregate number or kind of shares of Common Stock
or other securities underlying Awards already made under the Plan;
(c) adjustments in the Exercise Price of outstanding Incentive and/or
Non-statutory Stock Options, or any Limited Rights attached to such
Options.
No such adjustments may, however, materially change the value of benefits
available to a Participant under a previously granted Award. All Awards under
this Plan shall be binding upon any successors or assigns of the Holding
Company.
Notwithstanding the above, in the event of an extraordinary capital
distribution, any adjustment under this Section 17 shall be subject to required
OTS approval.
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<PAGE> 19
18. TAX WITHHOLDING.
---------------
Notwithstanding any other provision of the Plan, Awards under this Plan
shall be subject to tax withholding to the extent required by any governmental
authority. Any withholding shall comply with Rule 16b-3 or any amendment or
successive rule. Shares of Common Stock withheld to pay for tax withholding
amounts shall be valued at their Fair Market Value on the date the Award is
deemed taxable to the Participant. Participants granted Non-statutory Stock
Options shall be responsible for any required withholding applicable to any
Non-statutory Stock Option which has been transferred pursuant to Section 6(c)
hereof, unless otherwise inconsistent with current tax law.
19. AMENDMENT OF THE PLAN AND AWARDS.
--------------------------------
(a) The Board of Directors may at any time, and from time to time, modify
or amend the Plan in any respect, prospectively or retroactively; provided
however, that provisions governing grants of Incentive Stock Options, unless
permitted by the rules and regulations or staff pronouncements promulgated under
the Code shall be submitted for shareholder approval to the extent required by
such law, regulation or interpretation.
Failure to ratify or approve amendments or modifications by shareholders
shall be effective only as to the specific amendment or modification requiring
such ratification. Other provisions of this Plan will remain in full force and
effect.
No such termination, modification or amendment may adversely affect the
rights of a Participant under an outstanding Award without the written
permission of such Participant.
(b) The Committee may amend any Award Agreement, prospectively or
retroactively; provided, however, that no such amendment shall adversely affect
the rights of any Participant under an outstanding Award without the written
consent of such Participant.
20. EFFECTIVE DATE OF PLAN.
----------------------
The Plan shall become effective upon approval by the Holding Company's
shareholders in accordance with OTS and Internal Revenue Service ("IRS")
regulations or January 16, 1998, whichever is earlier. The failure to obtain
shareholder approval for such purposes will not effect the validity of the Plan
and any Awards made under the Plan; provided, however, that if the Plan is not
approved by stockholders in accordance with IRS regulations, the Plan shall
remain in full force and effect, and any Incentive Stock Options granted under
the Plan shall be deemed to be Non-statutory Stock Options and any Award
intended to comply with Section 162(m) of the Code shall not comply with Section
162(m) of the Code.
A-18
<PAGE> 20
21. TERMINATION OF THE PLAN.
-----------------------
The right to grant Awards under the Plan will terminate upon the earlier
of: (i) ten (10) years after the Effective Date; (ii) the issuance of a number
of shares of Common Stock pursuant to the exercise of Options or the
distribution of Stock Awards which together with the exercise of Limited Rights
is equivalent to the maximum number of shares reserved under the Plan as set
forth in Section 4 hereof. The Board of Directors has the right to suspend or
terminate the Plan at any time, provided that no such action will, without the
consent of a Participant, adversely affect a Participant's vested rights under a
previously granted Award.
22. APPLICABLE LAW.
--------------
The Plan will be administered in accordance with the laws of the state of
Delaware and applicable federal law.
23. COMPLIANCE WITH OTS CONVERSION REGULATIONS
------------------------------------------
Notwithstanding any other provision contained in this Plan:
(a) no Award under the Plan shall be made which would be prohibited by 12
CFR ss.563b.3(g)(4);
(b) unless the Plan is approved by a majority vote of the outstanding
shares of the total votes eligible to be cast at a duty called
meeting of stockholders to consider the Plan, as required by 12 CFR
ss.563b.3(g)(4)(vii), the Plan shall not become effective or
implemented prior to one (1) year from the date of the Bank's mutual
to stock conversion;
(c) no Award granted prior to one (1) year from the date of the Bank's
mutual to stock conversion shall become vested or exercisable at a
rate in excess of 20% per year of the total number of Stock Awards or
Options (whichever may be the case) granted to such Participant,
provided, that Awards shall become fully vested or immediately
exercisable in the event of a Participant's termination of service
due to death or Disability;
(d) no Award granted to any individual Employee prior to one (1) year
from the date of the Bank's mutual to stock conversion may exceed 25%
of the total amount of Awards which may be granted under the Plan;
(e) no Award granted to any individual Outside Director prior to one (1)
year from the date of the Bank's mutual to stock conversion may
exceed 5% of the total amount of Awards which may be granted under
the Plan; and
A-19
<PAGE> 21
(f) the aggregate amount of Awards granted to all Outside Directors prior
to one (1) year from the date of the Bank's mutual to stock
conversion may not exceed 30% of the total amount of Awards which may
be granted under the Plan.
24. DELEGATION OF AUTHORITY
-----------------------
The Committee may delegate all authority for: (i) the determination of
forms of payment to be made by or received by the Plan and (ii) the execution of
any Award Agreement. The Committee may rely on the descriptions,
representations, reports and estimates provided to it by the management of the
Holding Company or an Affiliate for determinations to be made pursuant to the
Plan, including the attainment of Performance Goals. However, only the Committee
or a portion of the Committee may certify the attainment of a Performance Goal.
A-20
<PAGE> 22
IN WITNESS WHEREOF, the Holding Company has established this Plan, as
adopted by the Board of Directors of FIRSTFED AMERICA BANCORP, INC. on May 29,
1997.
ADOPTED BY FIRSTFED AMERICA BANCORP, INC.
THE BOARD OF DIRECTORS:
May 29, 1997 By: /s/ Robert F. Stoico
- -------------------------- ----------------------------------
Date Robert F. Stoico for the
Entire Board of Directors
APPROVED BY SHAREHOLDERS:
August 5, 1997 By: /s/ Cecilia R. Viveiros
- --------------------------- ---------------------------------
Date Cecilia R. Viveiros
Corporate Secretary
A-21
<PAGE> 1
EXHIBIT 5
OPINION OF MULDOON, MURPHY & FAUCETTE
AS TO THE LEGALITY OF THE COMMON STOCK REGISTERED HEREBY
<PAGE> 2
[MULDOON, MURPHY & FAUCETTE LETTERHEAD]
July 2, 1998
Board of Directors
FIRSTFED AMERICA BANCORP, INC.
ONE FIRSTFED PARK
Swansea, MA 02777
Re: FIRSTFED AMERICA BANCORP, INC. 1997 Stock-Based Incentive Plan
Registration Statement on Form S-8 for Offer and Sale of
1,219,001 Additional Shares of Common Stock
Gentlemen:
We have been requested by FIRSTFED AMERICA BANCORP, INC. (the "Company")
to issue a legal opinion in connection with the registration under the
Securities Act of 1933 on Form S-8 of 1,219,001 shares of the Company's Common
Stock, par value $.01 per share (the "Shares"), that may be issued under the
FIRSTFED AMERICA BANCORP, INC. 1997 Stock-Based Incentive Plan.
We have made such legal and factual examinations and inquiries as we
deemed advisable for the purpose of rendering this opinion. In our examination,
we have assumed and have not verified (i) the genuineness of all signatures,
(ii) the authenticity of all documents submitted to us as originals, (iii) the
conformity of the originals of all documents supplied to us as copies, and (iv)
the accuracy and completeness of all corporate records and documents and of all
certificates and statements of fact, in each case given or made available to us
by the Company or its subsidiary, First Federal Savings Bank of America.
Based on the foregoing and limited in all respects to Delaware law, it is
our opinion that the Shares reserved under the Plan have been duly authorized
and upon payment for and issuance of the Shares in the manner described in the
Plan, will be legally issued, fully paid and nonassessable.
<PAGE> 3
Board of Directors
FIRSTFED AMERICA BANCORP, INC.
July 2, 1998
Page 2 of 2
The following provisions of the Certificate of Incorporation may not be
given effect by a court applying Delaware law, but in our opinion the failure to
give effect to such provisions will not affect the duly authorized, validly
issued, fully paid and nonassessable status of the Common Stock:
(a) Subsections C.3 and C.6 of Article FOURTH and Section D of Article
EIGHTH which grant the Board the authority to construe and apply the
provisions of those Articles, subsection C.4 of Article FOURTH, to
the extent that subsection obligates any person to provide the Board
the information such subsection authorizes the Board to demand, and
the provision of Subsection C.7 of Article EIGHTH empowering the
Board to determine the Fair Market Value of property offered or paid
for the Company's stock by an Interested Stockholder, in each case
to the extent, if any, that a court applying Delaware law were to
impose equitable limitations upon such authority; and
(b) Article NINTH which authorizes the Board to consider the effect of
any offer to acquire the Company on constituencies other than
stockholders in evaluating any such offer.
This opinion is rendered to you solely for your benefit in connection with
the issuance of the Shares as described above. This opinion may not be relied
upon by any other person or for any other purpose, and it should not be quoted
in whole or in part or otherwise referred to or be furnished to any governmental
agency (other than the Securities and Exchange Commission in connection with the
aforementioned registration statement on Form S-8 in which this opinion is
contained) or any other person or entity without the prior written consent of
this firm.
We hereby consent to the filing of this opinion as an exhibit to, and the
reference to this firm in, the Company's registration statement on Form S-8.
Very truly yours,
/s/ Muldoon, Murphy & Faucette
-------------------------------
MULDOON, MURPHY & FAUCETTE
<PAGE> 1
EXHIBIT 23.2
CONSENT OF KPMG PEAT MARWICK LLP
<PAGE> 2
Exhibit 23.2
INDEPENDENT ACCOUNTANTS' CONSENT
Board of Directors
FIRSTFED AMERICA BANCORP, INC.
We consent to incorporation by reference in the registration statement on Form
S-8 of FIRSTFED AMERICA BANCORP, INC. relating to FIRSTFED AMERICA BANCORP, INC.
1997 Stock-Based Incentive Plan of our report dated April 30, 1998, relating to
the consolidated balance sheets of FIRSTFED AMERICA BANCORP, INC. and
subsidiaries as of March 31, 1998 and 1997, and the related consolidated
statements of operations, changes in stockholders' equity and cash flows for
each of the years in the three-year period ended March 31, 1998, which report is
included in the March 31, 1998 annual report on Form 10-K of FIRSTFED AMERICA
BANCORP, INC.
/s/ KPMG Peat Marwick LLP
------------------------------
KPMG Peat Marwick LLP
Boston, Massachusetts
June 29, 1998
