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AS FILED WITH THE SECURITIES AND
EXCHANGE COMMISSION ON MAY 30, 1997
Registration No.
------------------
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
Access Anytime Bancorp, Inc.
--------------------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware
--------------------------------------------------------------
(State or other jurisdiction of incorporation or organization)
85-0444597
--------------------------------------------------------------
(I.R.S. Employer Identification Number)
801 Pile Street, Clovis, NM 88101
--------------------------------------------------------------
(Address of registrants Principal Executive Offices)
ACCESS ANYTIME BANCORP, INC. NON-EMPLOYEE DIRECTOR RETAINER PLAN
N. R. Corzine
Chairman and Chief Executive Officer
801 Pile Street
Clovis, NM 88101
--------------------------------------------------------------
(Name and address of agent for service)
(505) 762-4417
--------------------------------------------------------------
(Telephone number, including area code, of agent for service)
The Commission is requested to mail signed copies of all orders, notices and
communications to:
C.L. Moore
KELEHER & McLEOD, P.A.
414 Silver Avenue, S.W.
Albuquerque, New Mexico 87103
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<TABLE>
CALCULATION OF REGISTRATION FEE
- ------------------------------------------------------------------------------------------------------
Title of securities Amount to be Proposed Proposed Amount of
to be registered registered maximum maximum registration fee
offering price per aggregate
unit(1) offering price(1)
- ------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 50,000 shares $5.625 $281,250 $85.23
$.01 par value
- ------------------------------------------------------------------------------------------------------
(1) Estimated pursuant to Rule 457 solely for the purpose of calculating the registration fee, based
on the average of the bid and asked prices of the Companys Common Stock as quoted on the NASDAQ
Small Cap Market on May 23, 1997.
</TABLE>
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents previously filed with the Securities and Exchange
Commission by the Company (File No. 0-28894) are incorporated by reference in
the Registration Statement:
1. The Company's Annual Report on Form 10-KSB for the year ended December
31, 1996.
2. The Company's Quarterly Report on Form 10-QSB for the quarter ended
March 31, 1997 (the "March 10-QSB").
3. The Company's Current Reports on Form 8-K dated February 18, 1997,
March 31, 1997 and May 30, 1997.
4. The description of the Company's Common Stock contained in a
registration statement filed under the Securities Exchange Act of 1934, as
amended, including any amendment or report filed for the purpose of updating
such description.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Securities Exchange Act of 1934, as amended, after the filing
date of the March 10-QSB and prior to the filing of a post-effective amendment
which indicates that all securities have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the date
of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Delaware General Corporation Law ("DGCL") contains provisions that
allow indemnification of the directors, officers and employees of the Company
and any of its direct or indirect subsidiaries. To be entitled to
indemnification, it must be determined that, in general terms, the person
acted in good faith and in a manner believed to be in, or not opposed to, the
best interests of Company and, with respect to a criminal action, had no
reasonable cause to believe his or her conduct was unlawful. Further, the
DGCL provides that to the extent a
<PAGE>
director, officer or employee is successful on the merits or otherwise in
defense of an action, the Company shall indemnify such person against
expenses actually and reasonably incurred. Under the Federal Deposit
Insurance Act, as amended, both the Bank and the Company would be prohibited
from paying any indemnification with respect to any liability or legal
expense incurred by a director, officer or employee as result of an action or
proceeding by a federal banking agency resulting in a civil money penalty or
certain other remedies against such person.
Section 102(b)(7) of the DGCL enables corporations to adopt amendments
to their certificates of incorporation eliminating or limiting the liability
of directors to the corporation or its stockholders for monetary damages for
breach of fiduciary duties as a director, except for liability (i) for any
breach of the directors 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) for payment of a
dividend or approval of a stock repurchase in violation of Section 174 of the
DGCL, or (iv) for any transaction from which the director derived an improper
personal benefit. Section 102(b)(7) has no effect on the availability of
equitable remedies, such as an injunction or rescission, for breach of
fiduciary duties. At its meeting on March 28, 1997, the Companys Board of
Directors adopted a resolution proposing an amendment, subject to
stockholders approval, of the Companys Certificate of Incorporation to add a
new Article Thirteenth thereto which would eliminate directors liability to
the full extent permitted by Section 102(b)(7). The amendment, which was
approved by the stockholders on May 30, 1997, reads as follows:
"THIRTEENTH: A director shall not be personally liable for monetary
damages to the Corporation or its stockholders for breach of
fiduciary duty as a director except (a) for any breach of the
directors duty of loyalty to the Corporation or its stockholders,
(b) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (c) under
section 174 of the General Corporation Law of the State of Delaware
or any successor provision, or (d) for any transaction from which
the director derived an improper personal benefit."
Section 16 of Article III of the Company's Bylaws contains the following
provisions with respect to indemnification of directors and officers:
SECTION 16. INDEMNIFICATION. Each person who shall have
served as a director or an officer of the Corporation, or, at the
request of the Corporation, as a director or an officer of any
other corporation, partnership or joint venture, whether profit or
nonprofit, in which the Corporation (a) owns shares of capital
stock, (b) has an ownership interest, (c) is a member, or (d) is a
creditor, and regardless of whether or not such person is then in
office, and the heirs, executors, administrators and personal
representatives of any such person shall be indemnified by the
<PAGE>
Corporation to the full extent of the authority of the Corporation
to so indemnify as authorized by the law of Delaware.
The Board of Directors has approved certain agreements with the Company's
directors and officers relating to indemnification of directors and officers.
Such agreements have been entered into with each director and officer. The
agreements provide for indemnification of directors and officers to the
fullest extent permitted by law, including advancement of litigation expenses
where appropriate.
Insurance is maintained on a regular basis (and not specifically in
connection with this offering) against liabilities arising on the part of the
directors and officers out of their performance in such capacities or arising
on the part of the Company out of its foregoing indemnification provisions,
subject to certain exclusions and to the policy limits.
ITEM 7.EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
<PAGE>
ITEM 8. EXHIBITS.
Exhibit No. Description
- ---------- -----------
4.1 Certificate of Incorporation of the Company (incorporated by
reference from the Company's Registration Statement on Form 8-A, filed
October 11, 1996, SEC File No. 001-12309).
4.2 Bylaws of the Company (as amended through March 28, 1997).
4.3 Common Stock Specimen Certificate (incorporated by reference from the
Company's Registration Statement on Form 8-A, filed October 11, 1996,
SEC File No. 001-12309).
5 Opinion of Counsel.
23.1 Consent of Independent Accountants.
23.2 Consent of Counsel (included in Exhibit 5).
24 Power of attorney (See Signatures page in Part II).
99.1 Access Anytime Bancorp, Inc. Non-Employee Director Retainer Plan.
ITEM 9. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) that, for purposes of determining any liability under the
Securities Act of 1933, each filing of the registrants annual report pursuant
to section 13(a) or section 15(d) of the Securities Exchange Act of 1934
(and, where applicable, each filing of an employee benefit plans annual
report pursuant to section 15(d) of the Securities Exchange Act of 1934) that
is incorporated by reference in the registration statement shall be deemed to
be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof;
(2) to file, during any period in which it offers or sells
securities, a post-effective amendment to this registration statement to:
(i) Include any prospectus required by section 10(a)(3) of
the Securities Act;
(ii) Reflect in the prospectus any facts or events which,
individually or together, represent a fundamental change in the information
in the registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission pursuant
to Rule 424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate offering price
set forth in the "Calculation of Registration Fee" table in the effective
registration statement.
<PAGE>
(iii) Include any additional or changed material information on
the plan of distribution.
(3) that, for determining liability under the Securities Act, to
treat each post-effective amendment as a new registration statement of the
securities offered, and the offering of the securities at that time to be the
initial bona fide offering.
(4) to file a post-effective amendment to remove from registration
any of the securities that remain unsold at the end of the offering.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons
of the small business issuer pursuant to the foregoing provisions, or
otherwise, the small business issuer has been advised that in the opinion of
the Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than
the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the small business issuer 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 small business issuer will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such indemnification
by it is against public policy as expressed in the Act and will be governed
by the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Clovis, State of New Mexico, on May 30, 1997.
ACCESS ANYTIME BANCORP, INC.
By /s/ Norman R. Corzine
-------------------------------------------
Norman R. Corzine, Chairman of the Board
and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities and on the dates indicated. Each person whose signature appears
below hereby authorizes Norman R. Corzine, Ken Huey, Jr., and each of them,
as attorneys-in fact, to sign in his name and behalf, individually and in
each capacity designated below, and to file any amendments, including
post-effective amendments, to this registration statement.
SIGNATURE CAPACITY DATE
--------- -------- ----
/s/ Norman R. Corzine Principal Executive Officer and Director May 30, 1997
- -------------------------
Norman R. Corzine
/s/ Ken Huey, Jr. Principal Financial Officer, Principal May 30, 1997
- ------------------------- Accounting Officer and Director
Ken Huey, Jr.
/s/ James A. Clark Director May 30, 1997
- -------------------------
James A. Clark
/s/ Carl Deaton Director May 30, 1997
- -------------------------
Carl Deaton
/s/ Charles Guthals Director May 30, 1997
- -------------------------
Charles Guthals
Director
- -------------------------
Cornelius Higgins
/s/ Robert Chad Lydick Director May 30, 1997
- -------------------------
Robert Chad Lydick
/s/ Thomas W. Martin, III Director May 30, 1997
- -------------------------
Thomas W. Martin, III
/s/ Allan M. Moorhead Director May 30, 1997
- -------------------------
Allan M. Moorhead
Director May 30, 1997
- -------------------------
David Ottensmeyer
<PAGE>
INDEX OF EXHIBITS
Exhibit No. Description
----------- -----------
4.1 Certificate of Incorporation of the Company (incorporated by
reference from the Company's Registration Statement on Form 8-A,
filed October 11, 1996, SEC File No. 001-12309).
4.2 Bylaws of the Company (as amended through March 28, 1997).
4.3 Common Stock Specimen Certificate (incorporated by reference
from the Company's Registration Statement on Form 8-A, filed
October 11, 1996, SEC File No. 001-12309).
5 Opinion of Counsel.
23.1 Consent of Independent Accountants.
23.2 Consent of Counsel (included in Exhibit 5).
24 Power of attorney (See Signatures page in Part II).
99.1 Access Anytime Bancorp, Inc. Non-Employee Director Retainer Plan.
<PAGE>
EXHIBIT 4.2
AS APPROVED BY
THE BOARD OF DIRECTORS
WITH REVISIONS
THROUGH 3/28/97
BYLAWS
ACCESS ANYTIME BANCORP, INC.
ARTICLE I - HOME OFFICE
The home office of Access Anytime Bancorp, Inc. (the "Corporation"), a
Delaware corporation, shall be located at 801 Pile Street, in the City of
Clovis, in Curry County, in the State of New Mexico.
ARTICLE II - SHAREHOLDERS
SECTION 1. PLACE OF MEETINGS. All annual and special meetings of
shareholders shall be held at the home office of the Corporation or at such
other place either within or outside the State of New Mexico as the Board of
Directors may determine.
SECTION 2. ANNUAL MEETING. The annual meeting of the shareholders of
the Corporation for the election of directors and for the transaction of any
other business of the Corporation shall be held on such date and at such time
as may be fixed from time to time by the Board of Directors of the
Corporation pursuant to a resolution adopted by a majority of the members of
the Board then in office.
SECTION 3. SPECIAL MEETINGS. Special meetings of the shareholders for
any purposes or purposes may be called at any time by the chairman of the
board, the president, or a majority of the Board of Directors, and shall be
called by the chairman of the board, the president, or the secretary upon the
written request of the holders of not less than one-fifth of all of the
outstanding capital stock of the Corporation entitled to vote at the meeting.
Such written request shall state the purpose or purposes of the meeting and
shall be delivered to the home office of the Corporation addressed to the
chairman of the board, the president, or the secretary.
SECTION 4. CONDUCT OF MEETINGS. Annual and special meetings shall be
conducted in accordance with rules and procedure adopted by the Board of
Directors. The Board of Directors shall designate, when present, either the
chairman of the board or president to preside at such meetings.
SECTION 5. NOTICE OF MEETINGS. Written notice stating the place, day,
and hour of the meeting and the purpose(s) for which the meeting is called
shall be delivered not fewer than 10
<PAGE>
nor more than 50 days before the date of the meeting, either personally or by
mail, by or at the direction of the chairman of the board, the president, or
the secretary, or the directors calling the meeting, to each shareholder of
record entitled to vote at such meeting. If mailed, such notice shall be
deemed to be delivered when deposited in the mail, addressed to the
shareholder at the address as it appears on the stock transfer books or
records of the Corporation as of the record date prescribed in Section 6 of
this Article II with postage prepaid. When any shareholders' meeting, either
annual or special, is adjourned for 30 days or more, notice of the adjourned
meeting shall be given as in the case of an original meeting. It shall not
be necessary to give any notice of the time and place of any meeting
adjourned for less than 30 days or of the business to be transacted at the
meeting, other than an announcement at the meeting at which such adjournment
is taken.
SECTION 6. FIXING OF RECORD DATE. For the purpose of determining
shareholders entitled to notice of or to vote at any meeting of shareholders
or any adjournment, or shareholders entitled to receive payment of any
dividend, or in order to make a determination of shareholders for any other
proper purpose, the Board of Directors shall fix in advance a date as the
record date for any such determination of shareholders. Such date in any
case shall be not more than 60 days and, in case of a meeting of
shareholders, not fewer than 10 days prior to the date on which the
particular action, requiring such determination of shareholders, is to be
taken. When a determination of shareholders entitled to vote at any meeting
of shareholders has been made as provided in this section, such determination
shall apply to any adjournment.
SECTION 7. VOTING LISTS. The officer who has charge of the stock
ledger of the Corporation shall prepare and make, at least 10 days before
every meeting of stockholders, a complete list of the stockholders entitled
to vote at the meeting, arranged in alphabetical order, and showing the
address of each stockholder and the number of shares registered in the name
of each stockholder. Such list shall be open to the examination of any
stockholder, for any purpose germane to the meeting, during ordinary business
hours, for a period of at least 10 days prior to the meeting, either at a
place within the city where the meeting is to be held, which place shall be
specified in the notice of the meeting, or, if not so specified, at the place
where the meeting is to be held. The list shall also be produced and kept at
the time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder who is present.
SECTION 8. QUORUM. A majority of the outstanding shares of the
Corporation entitled to vote, represented in person or by proxy, shall
constitute a quorum at a meeting of shareholders. If less than a majority of
the outstanding shares is represented at a meeting, a majority of the shares
so represented may adjourn the meeting from time to time without further
notice. At such adjourned meeting at which a quorum shall be present or
represented, any business may be transacted which might have been transacted
at the meeting as originally notified. The shareholders present at a duly
organized meeting may continue to transact business until adjournment,
notwithstanding the withdrawal of enough shareholders to constitute less than
a quorum.
SECTION 9. PROXIES. At all meetings of shareholders, a shareholder may
vote by proxy executed in writing by the shareholder or by his or her duly
authorized attorney in fact. Proxies
2
<PAGE>
solicited on behalf of the management shall be voted as directed by the
shareholder or, in the absence of such direction, as determined by a majority
of the Board of Directors. No proxy shall be valid more than eleven months
from the date of its execution except for a proxy coupled with any interest.
SECTION 10. VOTING OF SHARES IN THE NAME OF TWO OR MORE PERSONS. If
shares or other securities having voting power stand of record in the names
of two or more persons, whether fiduciaries, members of a partnership, joint
tenants, tenants in common, tenants by the entirety or otherwise, or if two
or more persons have the same fiduciary relationship respecting the same
shares, unless the secretary of the Corporation is given written notice to
the contrary and is furnished with a copy of the instrument or order
appointing them or creating the relationship wherein it is so provided, their
acts with respect to voting shall have the following effect:
(1) If only one votes, his or her act binds all;
(2) If more than one vote, the act of the majority so voting binds all;
(3) If more than one vote, but the vote is evenly split on any particular
matter, each faction may vote the securities in question
proportionally, or any person voting the shares, or a beneficiary, if
any, may apply to the Delaware Court of Chancery or such other court
as may have jurisdiction to appoint any additional person to act with
the persons so voting the shares, which shall then be voted as
determined by a majority of such persons and the person appointed by
the Court. If the instrument so filed shows that any such tenancy is
held in unequal interests, a majority or even split for the purpose of
this provision shall be a majority or even split in interest.
SECTION 11. VOTING OF SHARES OF CERTAIN HOLDERS. Shares standing in
the name of another corporation may be voted by an officer, agent, or proxy
as the bylaws of such corporation may prescribe, or, in the absence of such
provision, as the Board of Directors of such corporation may determine.
Shares held by an administrator, executor, guardian, or conservator may be
voted by him or her, either in person or by proxy, without a transfer of such
shares into his or her name. Shares standing in the name of a trustee may be
voted by him or her, either in person or by proxy, but no trustee shall be
entitled to vote shares held by him or her without a transfer of such shares
into his or her name. Shares standing in the name of a receiver may be voted
by such receiver, and shares held by or under the control of a receiver may
be voted by such receiver without the transfer into his or her name if
authority to do so is contained in an appropriate order of the court or other
public authority by which such receiver was appointed.
A shareholder whose shares are pledged shall be entitled to vote such
shares until the shares have been transferred into the name of the pledgee,
and thereafter the pledgee shall be entitled to vote the shares so
transferred.
Neither treasury shares of its own stock held by the Corporation nor
shares held by another corporation, if a majority of the shares entitled to
vote for the election of directors of such
3
<PAGE>
other corporation are held by the Corporation, shall be voted at any meeting
or counted in determining the total number of outstanding shares at any given
time for purposes of any meeting.
SECTION 12. INSPECTORS OF ELECTION. In advance of any meeting of
shareholders, the Board of Directors may appoint any persons other than
nominees for office as inspectors of election to act at such meeting or any
adjournment. The number of inspectors shall be either one or three. Any such
appointment shall not be altered at the meeting. If inspectors of election
are not so appointed, the chairman of the board or the president may, or on
the request of not fewer than 10 percent of the votes represented at the
meeting shall, make such appointment at the meeting. If appointed at the
meeting, the majority of the votes present shall determine whether one or
three inspectors are to be appointed. In case any person appointed as
inspector fails to appear or fails or refuses to act, the vacancy may be
filled by appointment by the Board of Directors in advance of the meeting or
at the meeting by the chairman of the board or the president.
Unless otherwise prescribed by applicable law or by regulations of the
Board, the duties of such inspectors shall include: determining the number
of shares and the voting power of each share, the shares represented at the
meeting, the existence of a quorum, and the authenticity, validity and effect
of proxies; receiving votes, ballots, or consents; hearing and determining
all challenges and questions in any way arising in connection with the rights
to vote; counting and tabulating all votes or consents; determining the
result; and such acts as may be proper to conduct the election or vote with
fairness to all shareholders.
SECTION 13. NOMINATING COMMITTEE. The Board of Directors shall act as
a nominating committee for selecting the management nominees for election as
directors. Except in the case of a nominee substituted as a result of the
death or other incapacity of a management nominee, the nominating committee
shall deliver written nominations to the secretary at least 20 days prior to
the date of the annual meeting. Upon delivery, such nominations shall be
posted in a conspicuous place in each office of the Corporation. No
nominations for directors except those made by the nominating committee shall
be voted upon at the annual meeting unless other nominations by shareholders
are made in writing and delivered to the secretary of the Corporation at
least five days prior to the date of the annual meeting. Upon delivery, such
nominations shall be posted in a conspicuous place in each office of the
Corporation. Ballots bearing the names of all persons nominated by the
nominating committee and by shareholders shall be provided for use at the
annual meeting. However, if the nominating committee shall fail or refuse to
act at least 20 days prior to the annual meeting, nominations for directors
may be made at the annual meeting by any shareholder entitled to vote and
shall be voted upon.
SECTION 14. INFORMAL ACTION BY SHAREHOLDERS. Any action required to be
taken at a meeting of the shareholders, or any other action which may be
taken at a meeting of shareholders, may be taken without a meeting if consent
in writing, setting forth the action so taken, shall be given by all of the
shareholders entitled to vote with respect to the subject matter.
ARTICLE III - BOARD OF DIRECTORS
4
<PAGE>
SECTION 1. GENERAL POWERS. The business and affairs of the Corporation
shall be under the direction of its Board of Directors. The Board of
Directors shall annually elect a chairman of the board and a president from
among its members and shall designate, when present, either the chairman of
the board or the president to preside at its meetings.
SECTION 2. NUMBER AND TERM. The initial Board of Directors shall
consist of eight (8) members, which number may be increased or decreased by
the Board of Directors within the range permitted by the Corporation's
Certificate of Incorporation, but no decrease shall shorten an incumbent
director's term of office. The directors, other than those who may be
elected by the holders of any class or series of Preferred Stock, shall be
divided into three classes, as nearly equal in number as reasonably possible,
with the term of office of the first class to expire at the conclusion of the
first annual meeting of stockholders, the term of office of the second class
to expire at the conclusion of the annual meeting of stockholders one year
thereafter and the term of office of the third class to expire at the
conclusion of the annual meeting of stockholders two years thereafter, with
each director to hold office until his or her successor shall have been duly
elected and qualified. At each annual meeting of stockholders following such
initial classification and election, directors elected to succeed those
directors whose terms expire shall be elected for a term of office to expire
at the third succeeding annual meeting of stockholders after their election,
with each director to hold office until his or her successor shall have been
duly elected and qualified.
SECTION 3. REGULAR MEETINGS. A regular meeting of the Board of
Directors shall be held without other notice than this bylaw immediately
after, and at the same place as, the annual meeting of shareholders. The
Board of Directors may provide, by resolution, the time and place for the
holding of additional regular meetings without other notice than such
resolution.
SECTION 4. QUALIFICATION. Directors need not be the beneficial owners
of shares of capital stock of the Corporation.
SECTION 5. SPECIAL MEETINGS. Special meetings of the Board of
Directors may be called by or at the request of the chairman of the board,
the president, or one-third of the directors. The persons authorized to call
special meetings of the Board of Directors may fix any place as the place for
holding any special meeting of the Board of Directors called by such persons.
Members of the Board of Directors may participate in special meetings by
means of conference telephone or similar communications equipment by which
all persons participating in the meeting can hear each other. Such
participation shall constitute presence in person.
SECTION 6. NOTICE OF SPECIAL MEETING. Written notice of at least 24
hours regarding any special meeting of the Board of Directors or of any
committee designated thereby shall be given to each director in accordance
with the Bylaws, although such notice may be waived by the director. The
attendance of a director at a meeting shall constitute a waiver of notice of
such meeting, except where a director attends a meeting for the express
purpose of objecting to the transaction of any business because the meeting
is not lawfully called or convened. Neither the
5
<PAGE>
business to be transacted at, nor the purpose of, any meeting need be
specified in the notice of waiver of notice of such meeting.
SECTION 7. QUORUM. A majority of the number of directors fixed by Section
2 of this Article III shall constitute a quorum for the transaction of business
at any meeting of the Board of Directors; but if less than such majority is
present at a meeting, a majority of the directors present may adjourn the
meeting from time to time. Notice of any adjourned meeting shall be given in
the same manner as prescribed in Section 6 of this Article III.
SECTION 8. MANNER OF ACTING. The act of the majority of the directors
present at a meeting at which a quorum is present shall be the act of the Board
of Directors, unless a greater number is prescribed by these Bylaws.
SECTION 9. ACTION WITHOUT A MEETING. Any action required or permitted to
be taken by the Board of Directors at a meeting may be taken without a meeting
if a consent in writing, setting forth the action so taken, shall be signed by
all of the directors.
SECTION 10. RESIGNATION. Any director may resign at any time by sending a
written notice of such resignation to the home office of the Corporation
addressed to the chairman of the board or the president. Unless otherwise
specified, such resignation shall take effect upon receipt by the chairman of
the board or the president.
SECTION 11. VACANCIES. Subject to the rights of the holders of any series
of Preferred Stock then outstanding, newly created directorships resulting from
any increase in the authorized number of directors or any vacancies in the Board
of Directors resulting from death, resignation, retirement, disqualification,
removal from office or other cause may be filled only by a majority vote of the
directors then in office, though less than a quorum, and directors so chosen
shall hold office for a term expiring at the annual meeting of stockholders at
which the term of office of the class to which they have been elected expires,
and until such directors' successor shall have been duly elected and qualified.
SECTION 12. COMPENSATION. Directors, as such, may receive a stated salary
for their services. By resolution of the Board of Directors, a reasonable fixed
sum, and reasonable expenses of attendance, if any, may be allowed for actual
attendance at each regular or special meeting of the Board of Directors.
Members of either standing or special committees may be allowed such
compensation for actual attendance at committee meetings as the Board of
Directors may determine.
SECTION 13. PRESUMPTION OF ASSENT. A director of the Corporation who
is present at a meeting of the Board of Directors at which action on any
Corporation matter is taken shall be presumed to have assented to the action
taken unless his or her dissent or abstention shall be entered in the minutes
of the meeting or unless he or she shall file a written dissent to such
action with the person acting as the secretary of the meeting before the
adjournment thereof or shall forward such dissent by registered mail to the
secretary of the Corporation within five days after
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the date a copy of the minutes of the meeting is received. Such right to
dissent shall not apply to a director who voted in favor of such action.
SECTION 14. REMOVAL OF DIRECTORS. At a meeting of shareholders called
expressly for that purpose, any director may be removed for cause by a vote of
the holders of a majority of the shares then entitled to vote at an election of
directors. If less than the entire Board is to be removed, no one of the
directors may be removed if the votes cast against the removal would be
sufficient to elect a director if then cumulatively voted at an election of the
class of directors of which such director is a part. Whenever the holders of
the shares of any class are entitled to elect one or more directors by the
provisions of the Certificate of Incorporation or a Preferred Stock Designation,
the provisions of this section shall apply, in respect to the removal of a
director or directors so elected, to the vote of the holders of the outstanding
shares of that class and not to the vote of the outstanding shares as a whole.
SECTION 15. AGE LIMITATION OF DIRECTORS. No person of an age 70 years or
older will be eligible for election, reelection, appointment, or reappointment
to the Board of Directors of the Corporation. No director shall serve as such
beyond the annual meeting of the Corporation immediately following the
attainment of age 70. The Board of Directors may grant an exception to this
requirement for any initial director of the Corporation who has not attained the
age of 75.
SECTION 16. INDEMNIFICATION. Each person who shall have served as a
director or an officer of the Corporation, or, at the request of the
Corporation, as a director or an officer of any other corporation, partnership
or joint venture, whether profit or nonprofit, in which the Corporation (a) owns
shares of capital stock, (b) has an ownership interest, (c) is a member, or (d)
is a creditor, and regardless of whether or not such person is then in office,
and the heirs, executors, administrators and personal representatives of any
such person shall be indemnified by the Corporation to the full extent of the
authority of the Corporation to so indemnify as authorized by the law of
Delaware.
ARTICLE IV - EXECUTIVE AND OTHER COMMITTEES
SECTION 1. APPOINTMENT. The Board of Directors, by resolution adopted by
a majority of the full board, may designate three or more of the directors,
which shall include the chief executive officer if he is a director, to
constitute an executive committee. The designation of any committee pursuant to
this Article IV and the delegation of authority shall not operate to relieve the
Board of Directors, or any director, of any responsibility imposed by law or
regulation.
SECTION 2. AUTHORITY. The executive committee, when the Board of
Directors is not in session, shall have and may exercise all of the authority of
the Board of Directors except to the extent, if any, that such authority shall
be limited by the resolution appointing the executive committee; and except also
that the executive committee shall not have the authority of the Board of
Directors with reference to: the declaration of dividends; the amendment of the
charter or bylaws of the Corporation, or recommending to the stockholders a plan
of merger, consolidation, or conversion; the sale, lease, or other disposition
of all or substantially all of the property and assets of the Corporation
otherwise than in the usual and regular course of its business; a
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voluntary dissolution of the Corporation; a revocation of any of the
foregoing; or the approval of a transaction in which any member of the
executive committee, directly or indirectly, has any material beneficial
interest.
SECTION 3. TENURE. Subject to the provisions of Section 8 of this Article
IV, each member of the executive committee shall hold office until the next
regular annual meeting of the Board of Directors following his or her
designation and until a successor is designated as a member of the executive
committee.
SECTION 4. MEETING. Regular meetings of the executive committee may be
held without notice at such times and places as the executive committee may
fix from time to time by resolution. Special meetings of the executive
committee may be called by any member thereof upon not less than one day's
notice stating the place, date, and hour of the meeting, which notice may be
written or oral. Any member of the executive committee may waive notice of
any meeting and no notice of any meeting need be given to any member thereof
who attends in person. The notice of a meeting of the executive committee
need not state the business proposed to be transacted at the meeting.
SECTION 5. QUORUM. A majority of the members of the executive committee
shall constitute a quorum for the transaction of business at any meeting
thereof, and action of the executive committee must be authorized by the
affirmative vote of a majority of the members present at a meeting at which a
quorum is present.
SECTION 6. ACTION WITHOUT A MEETING. Any action required or permitted to
be taken by the executive committee at a meeting may be taken without a meeting
if a consent in writing, setting forth the action so taken, shall be signed by
all of the members of the executive committee.
SECTION 7. VACANCIES. Any vacancy in the executive committee may be
filled by a resolution adopted by a majority of the full Board of Directors.
SECTION 8. RESIGNATIONS AND REMOVAL. Any member of the executive
committee may be removed at any time with or without cause by resolution adopted
by a majority of the full Board of Directors. Any member of the executive
committee may resign from the executive committee at any time by giving written
notice to the president or secretary of the Corporation. Unless otherwise
specified, such resignation shall take effect upon its receipt; the acceptance
of such resignation shall not be necessary to make it effective.
SECTION 9. PROCEDURE. The executive committee shall elect a presiding
officer from its members and may fix its own rules of procedure which shall not
be inconsistent with these bylaws. It shall keep regular minutes of its
proceedings and report the same to the Board of Directors for its information at
the meeting held next after the proceedings shall have occurred.
SECTION 10. OTHER COMMITTEES. The Board of Directors may by resolution
establish an audit or other committees composed of directors as they may
determine to be necessary or
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appropriate for the conduct of the business of the Corporation and may
prescribe the duties, constitution, and procedures thereof.
ARTICLE V - OFFICERS
SECTION 1. POSITIONS. The officers of the Corporation shall be a
president, one or more vice presidents, a secretary, and a treasurer, each of
whom shall be elected by the Board of Directors. The Board of Directors may
also designate the chairman of the board and/or vice chairman of the board as
officers. The Board of Directors may designate one or more vice presidents as
executive vice president or senior vice president. The Board of Directors may
also elect or authorize the appointment of such other officers as the business
of the Corporation may require. The officers shall have such authority and
perform such duties as the Board of Directors may from time to time authorize or
determine. In the absence of action by the Board of Directors, the officers
shall have such powers and duties as generally pertain to their respective
offices.
SECTION 2. ELECTION AND TERM OF OFFICE. The officers of the Corporation
shall be elected annually at the first meeting of the Board of Directors held
after each annual meeting of the stockholders. If the election of officers is
not held at such meeting, such election shall be held as soon thereafter as
possible. Each officer shall hold office until a successor has been duly elected
and qualified or until the officer's death, resignation, or removal in the
manner hereinafter provided. Election or appointment of an officer, employee,
or agent shall not of itself create contractual rights. The Board of Directors
may authorize the Corporation to enter into an employment contract with any
officer in accordance with resolutions of the Board; but no such contract shall
impair the right of the Board of Directors to remove any officer at any time in
accordance with Section 3 of this Article V.
SECTION 3. REMOVAL. Any officer may be removed by the Board of Directors
whenever in its judgment the best interests of the Corporation will be served
thereby, but such removal, other than for cause, shall be without prejudice to
any contractual rights of the person so removed.
SECTION 4. VACANCIES. A vacancy in any office because of death,
resignation, removal, disqualification, or otherwise may be filled by the Board
of Directors for the unexpired portion of the term.
SECTION 5. REMUNERATION. The remuneration of the officers shall be fixed
from time to time by the Board of Directors by employment contracts or by
resolution.
ARTICLE VI - CONTRACTS, LOANS, CHECKS, AND DEPOSITS
SECTION 1. CONTRACTS. To the extent permitted by resolutions of the
Board, and except as otherwise prescribed by these Bylaws with respect to
certificates for shares, the Board of Directors may authorize any officer,
employee, or agent of the Corporation to enter into any contract or execute and
deliver any instrument in the name of and on behalf of the Corporation. Such
authority may be general or confined to specific instances.
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SECTION 2. LOANS. No loans shall be contracted on behalf of the
Corporation and no evidence of indebtedness shall be issued in its name unless
authorized by the Board of Directors. Such authority may be general or confined
to specific instances.
SECTION 3. CHECKS, DRAFTS, ETC. All checks, drafts, or other orders for
the payment of money, notes, or other evidences of indebtedness issued in the
name of the Corporation shall be signed by one or more officers, employees, or
agents of the Corporation in such manner as shall from time to time be
determined by the Board of Directors.
SECTION 4. DEPOSITS. All funds of the Corporation not otherwise employed
shall be deposited form time to time to the credit of the Corporation in any
duly authorized depositories as the Board of Directors may elect.
ARTICLE VII - CERTIFICATES FOR SHARES AND THEIR TRANSFER
SECTION 1. CERTIFICATES FOR SHARES. Certificates representing shares
of capital stock of the Corporation shall be in such form as shall be
determined by the Board of Directors and approved by the Board. Such
certificates shall be signed by the chief executive officer or by any other
officer of the Corporation authorized by the Board of Directors, attested by
the secretary or an assistant secretary, and sealed with the corporate seal
or a facsimile thereof. The signatures of such officers upon a certificate
may be facsimiles if the certificate is manually signed on behalf of a
transfer agent or a registrar other than the Corporation itself or one of its
employees. Each certificate for shares of capital stock shall be
consecutively numbered or otherwise identified. The name and address of the
person to whom the shares are issued, with the number of shares and date of
issue, shall be entered on the stock transfer books of the Corporation. All
certificates surrendered to the Corporation for transfer shall be canceled
and no new certificate shall be issued until the former certificate for a
like number of shares has been surrendered and canceled, except that in the
case of a lost or destroyed certificate, a new certificate may be issued upon
such terms and indemnity to the Corporation as the Board of Directors may
prescribe.
SECTION 2. TRANSFER OF SHARES. Transfer of shares of capital stock of the
Corporation shall be made only on its stock transfer books. Authority for such
transfer shall be given only by the holder of record or by or her legal
representative, who shall furnish proper evidence of such authority, or by his
or her attorney authorized by a duly executed power of attorney and filed with
the Corporation. Such transfer shall be made only on surrender for cancellation
of the certificate for such shares. The person in whose name shares of capital
stock stand on the books of the Corporation shall be deemed by the Corporation
to be the owner for all purposes.
ARTICLE VIII - FISCAL YEAR; ANNUAL AUDIT
The fiscal year of the Corporation shall end on the 31st day of December of
each year. The Corporation shall be subject to an annual audit as of the end of
its fiscal year by independent public accounts appointed by and responsible to
the Board of Directors. The appointment of such accountants shall be subject to
annual ratification by the shareholders.
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ARTICLE IX - DIVIDENDS
Subject only to applicable law and the terms of the Corporation's charter
and the resolutions of the board, the Board of Directors may, from time to time,
declare, and the Corporation may pay, dividends on its outstanding classes of
capital stock which are eligible for dividends.
ARTICLE X - CORPORATE SEAL
The Board of Directors shall provide a Corporation seal which shall be two
concentric circles between which shall be the name of the Corporation. The year
of incorporation or an emblem may appear in the center.
ARTICLE XI - AMENDMENTS
These Bylaws may be amended in a manner consistent with regulations of the
board at any time by a majority vote of the full Board of Directors or by a
majority vote of the votes cast by the stockholders of the Corporation at any
legal meeting.
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EXHIBIT 5
May 30, 1997
Access Anytime Bancorp, Inc.
PO Drawer 1569
801 Pile Street
Clovis, New Mexico
Re: Registration Statement on Form S-8 - Non-Employee Director
Retainer Plan
Ladies and Gentlemen:
We have acted as counsel for Access Anytime Bancorp, Inc., a Delaware
corporation (the "Company"), in connection with the registration by the
Company under the Securities Act of 1933, as amended, of 50,000 shares of
Common Stock, $.01 par value per share (the "Common Stock"), in connection
with the Company's Non-Employee Director Retainer Plan (the "Plan") pursuant
to a Registration Statement on Form S-8 (the "Registration Statement") to be
filed with the Securities and Exchange Commission (the "Commission").
We have examined originals, or copies certified to our satisfaction, of
such corporate records of the Company, certificates of public officials,
certificates of officers and representatives of the Company and other
documents as we have deemed necessary as a reasonable basis for the opinions
hereinafter expressed. In our examination we have assumed the genuineness of
all signatures and the authenticity of all documents submitted to us as
originals and the conformity with the originals of all documents submitted to
us as copies. As to various questions of fact material to such opinions we
have, when relevant facts were not independently established, relied upon
certifications by officers of the Company and other appropriate persons and
statements contained in the Registration Statement.
Based upon the foregoing and having regard to legal considerations which
we deem relevant, we are of the opinion that when (i) the Registration
Statement becomes effective, (ii) the consideration to be received for the
shares to be issued by the Company pursuant to the Plan (which consideration
shall be in excess of the par value of such shares) shall have been received
by the Company, and (iii) the shares of Common Stock have been issued
pursuant to the Plan, the Common Stock so issued will be duly authorized,
legally issued, fully paid and nonassessable.
We do not express any opinion as to matters governed by any laws other
than the laws of the State of New Mexico, the General Corporation Law of the
State of Delaware and the Federal laws of the United States of America. You
should be aware that we are not admitted to the practice of law in the State
of Delaware and the opinion herein is based solely upon unofficial
compilations thereof.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement.
<PAGE>
Very truly yours,
KELEHER & McLEOD, P.A.
By /s/ Charles L. Moore
---------------------------------
Charles L. Moore
CLM/sls
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement of
Access Anytime Bancorp, Inc. on Form S-8 of our report dated February 19,
1997, on our audits of the consolidated financial statements of Access
Anytime Bancorp, Inc. as of December 31, 1996 and 1995, and for the years
ended December 31, 1996, 1995 and 1994, which report is included in Access
Anytime Bancorp, Inc.'s 1996 Annual Report on Form 10-KSB.
Robinson Burdette Martin & Cowan, L.L.P.
Lubbock, Texas
May 30, 1997
<PAGE>
EXHIBIT 99.1
ACCESS ANYTIME BANCORP, INC.
NON-EMPLOYEE DIRECTOR RETAINER PLAN
SECTION I.
PURPOSES OF PLAN, EFFECTIVE DATE AND DEFINITIONS
1.1 PURPOSE. The purpose of the Access Anytime Bancorp, Inc. Non-
Employee Director Retainer Plan ("Plan") is to attract and retain the services
of experienced and knowledgeable non-employee directors and provide an
opportunity for ownership of the common stock, $0.01 par value ("Common
Stock"), of Access Anytime Bancorp, Inc., a Delaware corporation and unitary
thrift holding company ("Company"). The Plan shall be an unfunded deferred
compensation arrangement.
1.2 EFFECTIVE DATE. The Plan shall be effective as of May 30, 1997
("Effective Date") provided the Plan is approved by the stockholders of the
Company within twelve (12) months of the date the Plan is approved by the
Board. Notwithstanding any provision of the Plan, a Participant will not be
entitled to a distribution of Common Stock pursuant to Section V prior to the
approval of the Plan by the stockholders of the Company.
1.3 DEFINITIONS. For purposes of this Plan, the following phrases or
terms shall have the indicated meanings unless otherwise clearly apparent from
the context.
(a) "Beneficiary" means any person or persons so designated in
accordance with the provisions of Section 5.3.
(b) "Board" means the Board of Directors of the Company.
(c) "Compensation" means the sum of (i) the meeting fee a
Participant earns for services rendered as a Board member and (ii) the meeting
fee a Participant earns for services rendered on each committee of the Board on
which a Participant serves.
(d) "Fair Market Value" means the average (mean) of the reported
"high" and "low" sales prices for a share of Common Stock as reported on the
National Association of Securities Dealers Automated Quotations System, or, if
such prices shall not be reported thereon, the average between the closing bid
and asked prices so reported, or, if such prices shall not be reported, then
the average closing bid and asked prices reported by the national Quotation
Bureau Incorporated, or, in all other cases, the value established by the Board
in good faith.
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(e) "Last Trading Day" means the last day of each calendar month on
which shares of Common Stock are traded on the NASDAQ Small Cap Market. The
first Last Trading Day shall be May 30, 1997.
(f) "Participant" means each non-employee member of the Board.
(g) "Plan Year" means the twelve month period commencing on January
1st and ending December 31st.
(h) "Stock Unit" means a right to receive one share of Common Stock.
SECTION II.
ADMINISTRATION OF THE PLAN
The Plan shall be administered by the Board. Subject to the terms of the
Plan, the Board shall have the power to interpret the provisions and supervise
the administration of the Plan. All decisions made by the Board pursuant to
the provisions of the Plan shall be made by a majority of its members at a duly
held regular or special meeting or by written consent in lieu of any such
meeting. A majority of the directors in office shall constitute a quorum and
all decisions made by the Board pursuant to provisions of the Plan shall be
made by a majority of directors present at any duly held regular or special
meeting at which a quorum is present (unless the concurrence of a greater
proportion is required by law or by the articles or bylaws of the Company) or
by the written consent of a majority of the directors in lieu of any such
meeting.
SECTION III.
COMMON STOCK RESERVED FOR THE PLAN
3.1 RESERVED. The aggregate number of shares of Common Stock that
may be issued under the Plan shall not exceed 50,000. The Company shall at all
times reserve a sufficient number of shares of Common Stock to satisfy the
requirements of the Plan.
3.2 COMMON STOCK OFFERED. The Common Stock to be delivered pursuant
to the Plan may be authorized but unissued Common Stock or Common Stock
previously issued and outstanding and reacquired by the Company.
3.3 ADJUSTMENT IN CAPITALIZATION. In the event of any change in the
outstanding shares of Common Stock that occurs after the Effective Date by
reason of a Common Stock dividend or split, recapitalization, merger,
consolidation, combination, exchange of shares or other similar corporate
change, the aggregate number of shares of Common Stock subject to a Stock Unit
shall be adjusted appropriately by the Board whose determination shall be
conclusive.
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SECTION IV.
STOCK UNITS
4.1 AWARD OF STOCK UNITS. Effective as of each Last Trading Day, the
Participant will be awarded a number of Stock Units in accordance with the
following formula:
One-half of a Participant's Compensation
Stock Units Awarded = divided by the Fair Market Value of a share of
Common Stock on the Last Trading Day of the
month in which the Compensation is earned
Fractional amounts shall be rounded to the nearest ten thousandth share.
The Company shall maintain an account ("Account") for each Participant which
will reflect the current number of Stock Units maintained on behalf of a
Participant at any time. The Stock Units awarded a Participant pursuant to
this Section 4.1 are in lieu of and replace one-half of the amount of cash
Compensation a Participant would have received prior to the Effective Date.
4.2 DEFERRED COMPENSATION - STOCK UNITS.
(a) Any Participant may irrevocably elect, prior to the beginning of
each Plan Year, but no later than the November 30 preceding the beginning of a
Plan Year, to defer receipt of one-half of the amount of Compensation a
Participant is to earn during the Plan Year which would otherwise have been
payable in cash to the Participant. A new Participant may make an election
with respect to one-half of the amount of Compensation such Participant will
earn during such Participant's first Plan Year of eligibility within 30 days of
becoming a Participant.
(b) The election will be made on a written form called a "Notice of
Election", which shall be signed by the Participant and delivered to the Board.
This election will continue in effect for future years in which the Participant
is eligible to participate unless the Participant submits a written request
revoking or revising his or her election on a new Notice of Election form. Any
revocation or revised election will be applicable only to one-half the amount
of Compensation the Participant may earn in the future and will be effective as
of the first day of the Plan Year specified in such revocation or revised
election, provided that the new, signed Notice of Election form has been
received by the Board by November 30 immediately preceding such specified Plan
Year.
(c) If a Participant has elected to defer receipt of one-half of the
amount of Compensation as set forth in paragraph (a) above, then the one-half
of Compensation deferred will be converted into Stock Units and added to a
Participant's Account effective as of each Last Trading Day in accordance with
the following formula:
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One-half of a Participant's Compensation
Stock Units Awarded = divided by the Fair Market Value of a share of
Common Stock on the Last Trading Day of the
month in which the Compensation is earned
Fractional amounts shall be rounded to the nearest ten thousandth share.
4.3 DIVIDEND - STOCK UNITS.
Upon the payment of any cash dividend by the Company to holders of Common
Stock, a Participant will be awarded a number of Stock Units to be added to
such Participant's Account in an amount equal to the product of (i) the number
of Stock Units held in a Participant's Account on the date the cash dividend
was declared (rounded down to the nearest whole share), multiplied by (ii) a
fraction, where the numerator is the amount of cash dividend paid on one share
of Common Stock and the denominator is the Fair Market Value of a share of
Common Stock on the date the cash dividend was paid by the Company to the
holders of Common Stock.
SECTION V.
DISTRIBUTION OF BENEFITS
5.1 CESSATION FROM BOARD. Within ten (10) days from the date a
Participant ceases to serve on the Board for any reason, the Company shall
deliver a certificate or certificates to such Participant for a number of
shares of Common Stock equal to the total number of Stock Units (rounded up to
the nearest whole Stock Unit) in such Participant's Account as of the date the
Participant's service on the Board ceased.
5.2 TERMINATION OF THE PLAN. If the Plan is terminated pursuant to
Section 6.4, within ten (10) days from the date of such termination of the Plan
("Plan Termination Date"), the Company shall deliver a certificate or
certificates to each Participant for a number of shares of Common Stock equal
to the total number of Stock Units (rounded up to the nearest whole Stock Unit)
in a Participant's Account as of the Plan Termination Date.
5.3 BENEFICIARY. In the event of the death of a Participant before
delivery of a certificate or certificates of Common Stock pursuant to
Sections 5.1 or 5.2 above, the Company shall deliver the shares of Common Stock
to the individual designated as Primary Beneficiary on the latest executed
"Notice of Change of Beneficiary" form on file with the Company within a
reasonable time period, but no later than 180 days after the date of death of
the Participant. If the Primary Beneficiary designated on the latest executed
"Notice of Change of Beneficiary" form is no longer living, the Company shall
deliver the shares of Common Stock to the individual designated as Secondary
Beneficiary on the latest executed "Notice of Change of Beneficiary" form on
file with the Company. If the Second Beneficiary designated on the latest
executed "Notice of Change of Beneficiary" form is no longer living, the
Company shall deliver the shares of Common Stock to the Participant's estate.
If a Participant desires to change the Beneficiary he
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or she has previously designated, the Participant may do so at any time by
submitting a new "Notice of Change of Beneficiary" form to the Board of
Directors.
SECTION VI.
MISCELLANEOUS
6.1 BENEFITS PAYABLE FROM GENERAL ASSETS. Amounts payable hereunder
shall be paid exclusively from the general assets of the Company, and no person
entitled to payment hereunder shall have any claim, right, security interest,
or other interest in any fund, trust, account, insurance contract, or asset of
the Company which may be looked to for such payment. The Company's liability
for the payment of benefits hereunder shall be evidenced only by this Plan. A
Participant shall have only the right of a general unsecured creditor of the
Company with respect to any rights under the Plan. Nothing contained in the
Plan shall constitute a guaranty by the Company or any other entity or person
that the assets of the Company will be sufficient to pay any benefit hereunder.
6.2 NONALIENATION OF BENEFITS. No right or benefit under this Plan shall
be subject to anticipation, alienation, sale, assignment, pledge, encumbrance
or charge, and any attempt to anticipate, alienate, sell, assign, pledge,
encumber or charge the same will be void. No right or benefit hereunder shall
in any manner be liable for or subject to any debts, contracts, liabilities or
torts of the person entitled to such benefits. If any Participant or
Beneficiary hereunder shall become bankrupt or attempt to anticipate, alienate,
assign, sell, pledge, encumber or charge any right of benefit hereunder, or if
any creditor shall attempt to subject the same to a writ of garnishment,
attachment, execution, sequestration or any other form of process or
involuntary lien or seizure, then such right or benefit shall be held by the
Company for the sole benefit of the Participant or the Beneficiary, his or her
spouse, children or other dependents, or any of them in such manner and in such
proportion as the Board shall deem proper, free and clear of the claims of any
other party whatsoever.
6.3 PREREQUISITES TO BENEFITS. No Participant, or any person claiming
through a Participant, shall have any right or interest in the Plan or any
benefits hereunder unless and until all the terms, conditions and provisions of
the Plan that affect such Participant or such other person shall have been
complied with as specified herein. The Participant shall complete such forms
and furnish such information as the Board may require in the administration of
the Plan.
6.4 AMENDMENT OR TERMINATION OF THE PLAN. The Board may amend or
terminate this Plan at any time. Any amendment or termination of this Plan
shall not, however, affect the rights of any Participant to the benefits
provided under Stock Units then standing to the credit of any such Participant
in the Participant's Account at the time of such amendment or termination. The
Board may not, without approval of the stockholders of the Company, amend the
Plan to increase the aggregate number of shares of Common Stock reserved for
the Plan, except as provided in Section 3.3.
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6.5 GOVERNING LAW. The Plan is established under, and the execution,
validity, interpretation and performance of this Plan shall be determined and
governed exclusively by, the laws of the State of Delaware, without reference
to the principles of conflict of laws. Exclusive jurisdiction with respect to
any legal proceeding brought by a Participant, or any party representing
Participant or claiming to have an interest in Participant's benefits under the
Plan, shall be settled by arbitration in accordance with the Commercial
Arbitration Rules of the American Arbitration Association, and judgment upon
the award rendered by the arbitrator may be entered in any court having
jurisdiction. In reaching his or her decision, the arbitrator shall have no
authority to change or modify any provision of this Plan. In addition, any and
all charges which may be made for the cost of the arbitration and the fees and
expenses of the arbitrator shall be borne equally by the parties. Jurisdiction
with respect to any legal proceeding brought by Company, concerning any subject
matter contained in this Plan shall rest in state or federal courts sitting in
the State of New Mexico. Also, Company, at its election, may submit any
dispute it has with Participant or claiming party to arbitration in accordance
with the procedures set forth in this Section.
6.6 SEVERABILITY. All provisions herein are severable and in the event
any one of them shall be held invalid by any court of competent jurisdiction,
the Plan shall be interpreted as if such invalid provisions was not contained
herein.
6.7 HEADINGS. The headings of the sections of this Plan are inserted for
convenience only and shall not be deemed to constitute a part of this Plan.
6.8 NON-WAIVER. Failure on the part of any party in any one or more
instances to enforce any of its rights which arise in connection with this
Plan or to insist upon the strict performance of any of its terms, conditions,
or covenants of this Plan shall not be construed as a waiver or a
relinquishment for the future of any such rights, terms, conditions, or
covenants. No waiver of any condition of this Plan shall be valid unless it is
in writing.
6.9 PLAN ON FILE. The Company shall place this Plan on file in the
office of its principal place of business.
6.10 NOTICES. Any notices to be given hereunder by either party to
the other may be effected either by personal delivery in writing or by mail,
registered or certified, postage prepaid with return receipt requested.
Notices delivered personally shall be deemed communicated as of actual receipt;
mailed notices shall be deemed communicated as of three (3) days after mailing.
Approved: Date:
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