SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
HARBOR FLORIDA BANCSHARES, INC.
(Exact name of Registrant as Specified in its Charter)
DELAWARE
(State of Other Jurisdiction of Incorporation or Organization)
65-0813766
I.R.S. Employer Identification Number
100 S. Second Street
Fort Pierce, FL 34954
(561) 461-2414
(Address of Principal Executive Offices)
HARBOR FLORIDA BANCSHARES, INC.
1998 STOCK INCENTIVE PLAN FOR DIRECTORS,
OFFICERS AND KEY EMPLOYEES
(Full Title of Plan)
Don W. Bebber
Senior Vice President
Harbor Florida Bancshares, Inc.
100 S. Second Street
Fort Pierce, FL 34954
(561) 461-2414
(Name, Address and Telephone Number of Agent for Service)
with a copy to:
Raymond J. Gustini, Esq.
Peabody & Brown
1255 23rd St., N.W.
Washington, D.C. 20037
(202) 973-7700
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
To Be Registered To Be Registered Price per Share(1) Offering Price Registration Fee
<S> <C> <C> <C> <C>
Common stock, 2,322,145 $10.625 $24,672,791 $7,476.60
par value $.10
per share
</TABLE>
(1) Estimated pursuant to Rules 457(c) and (h) based on the closing price of the
common stock on October 23, 1998 as reported on the Nasdaq National Market.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by the Registrant with the Securities and
Exchange Commission (the "Commission") are incorporated in this Registration
Statement by reference:
A. Annual Report on Form 10-K of Harbor Florida Bancorp, Inc.
("Bancorp"), the predecessor to the Registrant, for the fiscal year ended
September 30, 1997, previously filed on December 29, 1997.
B. Quarterly reports on Form 10-Q for the fiscal quarters ended
December 31, 1997, March 31, 1998, and June 30, 1998, filed on February 12,
1998, May 13, 1998 and August 11, 1998, respectively.
C. The description of the Registrant's common stock, par value $.10,
which is contained on pages 127 - 129 in the Registration Statement on Form
S-1 filed pursuant to Rule 424(b) of the Securities Act of 1933 on February
3, 1998.
Such incorporation by reference shall not be deemed to specifically
incorporate by reference the information referred to in Item 402(a)(8) of
Regulation S-K.
All documents filed by the Registrant with the Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), subsequent to the date of this Registration
Statement and prior to the filing of a post-effective amendment which indicates
that all securities offered hereby have been sold or which deregisters all
securities then remaining unsold are incorporated herein by reference and such
documents shall be deemed to be a part hereof from the date of filing of such
documents. Any statement contained in this Registration Statement or in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein or in any other subsequently
filed document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part
of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
<PAGE>
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the securities registered hereby is being passed upon
for the Registrant by Peabody & Brown, Washington, D.C.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant's Certificate of Incorporation or bylaws provide that it
will indemnify its directors and officers and may indemnify its employees and
agents to the full extent authorized by Delaware law in connection with certain
matters in which they may be involved because of their positions with the
Registrant, including criminal, civil, administrative or investigative
proceedings. Delaware law permits indemnification for expenses (including
attorney's fees), judgments, fines, penalties and amounts paid in settlement in
third-party actions involving such persons, provided there is a determination by
a majority vote of the disinterested directors, by independent legal counsel, by
the shareholders or by a court that the person seeking indemnification acted in
good faith and in a manner reasonably believed to be in or not opposed to the
best interests of the Registrant and, in the case of any criminal action, had no
reason to believe his conduct was unlawful.
In the case of derivative actions on behalf of the Registrant, Delaware
law generally permits indemnification for expenses (including attorneys' fees)
in defending oneself, assuming a determination as to the conduct of the person
seeking to be indemnified similar to that required for third-party actions.
Delaware law provides for advances of legal expenses as they are
incurred to persons seeking to be indemnified, provided that the person
receiving the advances undertakes to repay such amounts if it is subsequently
determined that he or she is not entitled to indemnification.
The obligation of the Registrant to provide indemnification as
described above will continue, even if the Certificate of Incorporation or
bylaws are subsequently amended to restrict or eliminate the right to
indemnification, with respect to any state of facts existing at or before the
time of such amendment and any proceeding, whenever brought, based in whole or
in part upon any such state of facts. The Registrant is presently unaware of any
actual or threatened actions or proceedings that might result in a claim for
indemnification under the Registrant's bylaws.
The Registrant has included in its Certificate of Incorporation a
provision which eliminates the personal liability of Directors and officers
acting in the capacity of Directors or performing duties as a Director, for
monetary damages to the Registrant and its shareholders for breach of their
fiduciary duty except for liability for: (i) willful or negligent violations of
certain provisions of the Delaware General Corporation Law with respect to the
unlawful payment of dividends or unlawful stock purchases or redemptions; (ii) a
breach of a Director's duty of loyalty to the Registrant or its shareholders;
(iii) acts or omissions not in good faith or which involve intentional
misconduct or a
<PAGE>
knowing violation of the law; or (iv) a transaction from which the Director
derived improper personal benefit. This provision relieves the Registrant's
directors of liability to the Registrant and to shareholders for negligence in
the performance of their duties, including gross negligence, subject to the
limitations specified below. It thus could eliminate liability of Directors, and
officers acting as Directors, even for grossly negligent business decisions in
certain circumstances. It does not eliminate or limit liability of Directors
arising in connection with causes of action brought under the federal securities
laws or to parties other than the Registrant or its shareholders. The provision
has no effect on the availability of equitable remedies, such an injunction or
rescission, based upon a Director's breach of his fiduciary duty to the
Registrant and to shareholders. At present, there are no pending or contemplated
actions or proceedings against any Directors of the Registrant, and the
Registrant knows of no threatened litigation against its Directors that would be
affected by the foregoing provisions of law.
The effect of these provisions would be to permit indemnification by
the Registrant for liabilities arising out of the Securities Act of 1933, as
amended.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
EXHIBIT NUMBER DESCRIPTION
4.1 Certificate of Incorporation of the Harbor Florida Bancshares, Inc.
(incorporated herein by reference to Exhibit 3.3 to Pre-Effective Amendment
No. 1 to the Registration Statement on Form S-1, No. 333-37275)
4.2 Bylaws of Harbor Florida Bancshares, Inc. (incorporated herein by reference
to Exhibit 3.4 to Pre- Effective Amendment No. 1 to the Registration
Statement on Form S-1, No. 333-37275)
4.3 Harbor Florida Bancshares, Inc. 1998 Stock Incentive Plan for Directors,
Officers and Employees
5 Opinion of Peabody & Brown as to the legality of securities registered
hereby including consent of such counsel
<PAGE>
23.1 Consent of KPMG Peat Marwick LLP
23.2 Consent of Peabody & Brown (See Exhibit 5)
24 Power of Attorney (reference made to signature Page)
ITEM 9. UNDERTAKINGS.
A. The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities 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.
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 and 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 20 percent
change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement.
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such information
in the registration statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by the
Registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each 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.
<PAGE>
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
B. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial BONA FIDE offering thereof.
C. Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer, or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
<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 Fort Pierce, Florida on this 14 day of October, 1998.
HARBOR FLORIDA BANCSHARES, INC.
By: _______________/s/_____________
Michael J. Brown, Sr.
President and Chief Executive
Officer
POWER OF ATTORNEY
KNOW BY ALL THESE PRESENTS that each individual whose signature appears
below hereby constitutes and appoints Michael J. Brown, Sr. and Don W. Bebber,
and each of them, his true and lawful attorneys-in-fact and agents with full
power of substitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this Registration Statement, and to file the same, with all exhibits thereto,
and all documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing which
they, or either of them, may deem necessary or advisable to be done in
connection with this Registration Statement, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents or any of them, or any substitute or
substitutes for either or both of them, 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.
<PAGE>
Signature Title Date
/s/ Michael J. Brown, Sr. President, Chief Executive October 14, 1998
Michael J. Brown, Sr. Officer and Director
(Principal Executive Officer)
/s/ Don W. Bebber Senior Vice President October 14, 1998
Don W. Bebber (Principal Accounting and
Financial Officer)
/s/ Bruce R. Abernethy, Sr. Director October 14, 1998
Bruce R. Abernethy, Sr.
/s/ Richard N. Bird Director October 14, 1998
Richard N. Bird
/s/ Richard K. Davis Director October 14, 1998
Richard K. Davis
/s/ Edward G. Enns Director October 14, 1998
Edward G. Enns
/s/ Frank H. Fee, III Director October 14, 1998
Frank H. Fee, III
/s/ Richard B. Hellstrom Director October 14, 1998
Richard B. Hellstrom
HARBOR FLORIDA BANCSHARES, INC.
1998 STOCK INCENTIVE PLAN FOR DIRECTORS, OFFICERS AND EMPLOYEES
This 1998 Stock Incentive Plan (the "Plan") governs: (i) grants of
options to purchase shares of the common stock, $0.10 par value (the "Common
Stock") of Harbor Florida Bancshares, Inc. (the "Company" or "Bancshares")
("Options"), (ii) awards of restricted Common Stock ("Recognition and Retention
Plan Stock" or "RRP Stock"), and (iii) awards of stock appreciation rights
("SARs") by the Company to directors, officers and employees of the Company or
Harbor Federal Savings Bank (the "Bank"). The Plan is intended to provide
additional incentives to promote the future success and growth of the Company by
providing participants with a direct stake in the Company and, in the case of
officers and employees, to encourage qualified persons to seek and accept
employment with the Company. The Plan will be effective on the earlier of March
18, 1999, or the date that the Plan is approved by stockholders of Bancshares
(the "Effective Date").
1. Administration of the Plan.
(a) The Personnel Committee of Bancshares (the "Committee") shall
administer the Plan. The Committee shall at all times consist of two or more
disinterested directors of the 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
Securities Exchange Act of 1934, as amended (the "Exchange Act") and (ii) such
requirement 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 Internal Revenue Code of 1986, as amended (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 Company who need not be
disinterested and who may grant awards and administer the Plan with respect to
employees and directors who are not considered officers or directors of the
Company under Section 16 of the Exchange Act or for whom awards are not intended
to satisfy the provisions of Section 162(m) of the Code.
(b) Within the limits of the Plan, the Committee shall determine the
individuals to whom, and the times at which, Options shall be granted and awards
made, the type of Option to be granted and the number of shares subject to each
Option or award. The Committee may establish such rules as it deems necessary
for the proper administration of the Plan, make such determinations and
interpretations with respect to the Plan and Options granted hereunder as may be
necessary or desirable and include such further provisions or conditions in such
Options as it deems advisable. Any determination or interpretation made by the
Committee hereunder shall be conclusive and binding upon both the Company and
the participant.
2. Shares Subject to the Plan.
(a) Subject to adjustment as provided in Section (b), below, the
maximum number of shares reserved for RRP Stock under the Plan is 663,470, which
number shall not exceed 2.16% of the outstanding shares of the Common Stock
determined immediately as of the Effective Date. Subject to adjustment as
provided in section (b), below, the maximum number of shares reserved hereby for
purchase pursuant to the exercise of Options and option-related Awards granted
under the Plan is 1,658,675, which number shall not exceed 5.40% 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 reacquired by the Company. To the
extent that Options and RRP Stock 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 RRP Stock or Options
terminate, expire, or are forfeited without having vested or without having been
exercised, new awards may be made with respect to these shares.
(b) In the event of a stock dividend, split, combination or
reclassification of shares, recapitalization or other similar capital change
relating to the Common Stock, the aggregate number and kind of shares or
securities of the Company that may be issued under the Plan and the price of
such shares, shall be appropriately adjusted by the Committee (whose
determination shall be conclusive and binding upon both the Company and the
participant) so that the proportionate number of shares or securities shall be
maintained as before the occurrence of such event.
<PAGE>
(c) Whenever Options or RRP Stock under the Plan lapse or terminate or
otherwise become unexercisable, the shares of Common Stock that were subject to
such Options may again be made subject to Options under the Plan. The Company
shall at all times while the Plan is in force reserve such number of shares of
Common Stock as will be sufficient to satisfy the requirements of the Plan.
3. Participants.
(a) Options, stock appreciation rights and RRP Stock may be granted to
directors, officers and other employees provided that the Committee may exclude
any individual from eligibility under the Plan. The foregoing notwithstanding,
Incentive Stock Options may be awarded only to persons eligible under the Code.
4. Options.
(a) Options may be granted under the Plan either as Incentive Stock
Options under Section 422 of the Code (or any successor section), or as
non-statutory stock options. Options may be granted from time to time by the
Committee, provided that no Incentive Stock Option shall be granted hereunder
after 10 years from the Effective Date hereof, or if the limitation of $100,000
set forth in the Code on the aggregate fair market value of Common Stock
underlying Incentive Stock Options exercisable for the first time by a
participant in any calendar year (or such other limitation as the Code may
prescribe) would be exceeded. The granting date for each Option shall be the
date on which it is approved by the Committee, or such later date as the
Committee may specify. Options granted hereunder shall be evidenced by stock
option certificates in such form not inconsistent with the Plan (which in the
case of Incentive Stock Options shall conform to the requirements for an
Incentive Stock Option contained in the Code) as the Committee may from time to
time determine. The form of such Options may vary among optionees.
(b) (i) In the case of Incentive Stock Options, the price per share at
which Common Stock may from time to time be optioned shall be
determined by the Committee at the time of grant, provided that such
price shall not be less than 100 percent of the fair market value (110
percent in the case of employees who own or are deemed to own more than
10 percent of the total combined voting power of all classes of stock
of the Company or any subsidiary of the Company) of a share of Common
Stock on the granting date as reasonably determined by the Committee in
good faith (or such other minimum price as the Committee may
prescribe).
(i) In the case of non-statutory stock options the price per
share at which Common Stock may from time to time be optioned shall be
determined by the Committee at the time of grant provided that such
price shall not be less than 100 percent of the fair market value of a
share of Common Stock on the granting date as reasonably determined by
the Committee in good faith (or such other minimum price as the
Committee may prescribe).
(ii) Common Stock purchased pursuant to an option agreement
shall be paid for in full at time of purchase. The purchase price upon
exercise of an Option may be paid in whole or in part in (a) cash or (b)
whole shares of Common Stock which the optionee has held for at least
six months, evidenced by negotiable certificates valued at their fair
market value on the date of exercise. Upon receipt of payment Bancshares
shall deliver to the optionee (or other person entitled to exercise the
Option) a certificate or certificates for such shares. If certificates
representing shares of Common Stock are used to pay all or part of the
purchase price of an Option, the Committee shall determine acceptable
methods for tendering Common Stock and may impose such limitations and
prohibitions on the use of Common Stock to pay all or part of the
purchase price of an option as it deems appropriate. It shall be a
condition to the performance of Bancshares' obligation to issue or
transfer Common Stock upon the exercise of an Option that the optionee
pay, or may provision satisfactory to Bancshares for the payment of, any
taxes (other than stock transfer taxes) which Bancshares is obligated to
collect with respect to the issue or transfer of Common Stock upon such
exercise.
(c) The Committee shall determine the term of all Options (provided in
the case of an Incentive Stock Option that the term shall not be greater than
the term prescribed by the Code, which is currently by 5 years in the case of
employees who own or are deemed to own more than 10 percent of the total
combined voting power of all classes of stock of the Company or any subsidiary
of the Company and 10 years in the case of other employees), the time or times
that Options are exercisable and whether they are exercisable in installments.
Such determination shall be made in compliance with Section 10 hereof.
<PAGE>
5. Other Provisions Relating to Options.
(a) Options granted under the Plan shall not be transferable by the
holder thereof otherwise than by will or the laws of descent and distribution.
Each Option shall be exercisable, during a participant's lifetime, only by him
or her. After a participant's death, an Option shall be exercisable only by the
executor, administrator or other legal representative of the estate of the
participant (the "Representative").
(b) In the event of a consolidation or merger of the Company or the
Bank with another corporation, the sale or exchange of all or substantially all
the assets of the Company or the Bank or a reorganization or liquidation of the
Company or the Bank, each holder of any outstanding and vested Option shall be
entitled to receive upon exercise and payment in accordance with the terms of
the Option the same shares, securities or property that such holder would have
been entitled to receive upon the occurrence of such event if such holder had
been, immediately prior to such event, the holder of the number of shares of
Common Stock purchasable under his or her Option or, if another corporation
shall be the survivor, such corporation shall substitute therefor substantially
equivalent shares, securities or property of such other corporation.
(c) In the event that the Committee shall at any time prior to the
exercise in full by a participant of Options held by him or her (and regardless
of whether such participant is then in the employ of or is a director of the
Company or the Bank) determine that such participant either before or after the
termination of his or her employment or directorship with the Company or the
Bank has committed an act of misconduct for which such participant (if the
participant had been an employee) could have been discharged for cause by the
Company or the Bank or has participated or engaged in any business activity
determined by the Committee to be in any way harmful or prejudicial to the
interests of the Company or the Bank, such Options shall forthwith terminate,
and notwithstanding any other provisions hereof, such participant shall not
thereafter be entitled to exercise such Options in whole or in part. Any
determination made by the Committee hereunder shall be conclusive and binding
upon both the Company and the participant.
(d) In the case of a participant who is a director and who terminates
service as a director for any reason before having exercised all granted
Options, such Options may be exercised in whole or in part within one year of
the date of termination to the extent exercisable on the date of termination. If
a participant's employment with the Company or the Bank or any subsidiary
corporation, or a corporation (or parent or subsidiary corporation of such
corporation) issuing or assuming a stock option in a transaction to which
Section 424(a) of the Code (or any successor section) applies, is terminated for
any reason otherwise than by his or her death or disability (within the meaning
of Section 22(e)(3) of the Code (or any successor section)), he or she may
exercise the Options that he or she had been granted hereunder to the extent
exercisable at the time of such termination only within 90 days from the date of
termination. If a participant's employment is terminated by reason of
disability, such Options may be exercised within one year from the date of
termination to the extent exercisable on the date of termination. Upon the death
of a participant, the participant's Representative shall have the right, at any
time within two years after the date of death, to exercise in whole or in part
any Options that were available to the participant at the time of his or her
death. Notwithstanding the foregoing, no Option shall be exercisable after the
expiration of the applicable exercise period.
(e) The Committee may modify or extend, subject to the terms and
conditions and within the limitations of the Plan, and subject to the Code in
the case of Incentive Stock Options, outstanding Options (to the extent
unexercised) and authorize the granting of new Options in substitution therefor.
Without limiting the generality of the foregoing, the Committee may grant to a
participant, if he or she is otherwise eligible and consents thereto, a new or
modified Option in lieu of an outstanding Option for a number of shares at an
exercise price and for a term that are greater or less than under the earlier
Option and may do so by cancellation and re-grant, amendment, substitution or
otherwise, subject only to the general limitations and conditions of the Plan.
No modification of an Option shall, without the consent of the participant,
adversely affect his or her rights under any Option theretofore granted under
the Plan.
(f) Options may be granted under the Plan in substitution for Options
held by employees of a corporation who become employees of the Company or the
Bank or any subsidiary corporation of the Company or the Bank eligible to
receive options under the Plan as a result of an acquisition transaction. The
terms and conditions of the substitute Options granted may vary from those set
forth in the Plan to the extent deemed appropriate by the Committee to conform
to the provisions of the Options for which they are substituted.
<PAGE>
6. Recognition and Retention Plan Stock.
(a) Notice. The Committee shall promptly provide each director, officer
or other employee designated by the Committee to receive RRP Stock ("Recipient")
with written notice setting forth the amount of the award, the vesting schedule
of the award, and such other terms and conditions of the award as may be
considered appropriate by the Committee.
(b) Restrictions. The shares of Common Stock transferred pursuant to an
award of RRP Stock shall be subject to the following restrictions:
(i) No shares of Common Stock subject to awards granted under
the Plan may be sold, transferred, assigned, pledged, encumbered or
otherwise alienated or hypothecated unless, until and then only to the
extent that the restrictions set forth in this paragraph 6(b)(i) shall
have lapsed in accordance with paragraph 6(c).
(ii) The Committee may provide either that
(a) (A) Stock certificates evidencing shares of Common Stock
transferred pursuant to an award of RRP Stock shall be issued in the
sole name of the Recipient (but shall be held by the Company until the
restrictions shall have lapsed in accordance with the terms of the
award and the Plan) and shall bear a legend which, in part, shall
provide that:
"The shares of Common Stock of Harbor Florida
Bancshares, Inc., evidenced by this certificate are subject to
the terms and restrictions of the Harbor Florida Bancshares,
Inc. 1998 Stock Incentive Plan. Such shares are subject to
forfeiture or cancellation under the terms of said Plan, and
such shares shall not be sold, transferred, assigned, pledged,
encumbered or otherwise alienated or hypothecated except
pursuant to the provisions of said Plan, a copy of which is
available from Harbor Florida Bancshares, Inc. upon request."
or
(B) Stock certificates evidencing shares of Common
Stock that are the subject of an award of RRP Stock shall be
issued in the name of the Company. The Company shall hold such
Common Stock for the benefit of the Recipient until the
restrictions have lapsed in accordance with the terms of the
award and the Plan. In such instance, whenever shares of
Common Stock underlying an award of RRP Stock are distributed
to a Recipient or beneficiary thereof under the Plan, such
Recipient or beneficiary shall also be entitled to receive
with respect to each such share distributed, a payment equal
to any cash dividends or distributions (other than
distributions in shares of Common Stock) and the number of
shares of Common Stock equal to any stock dividends, declared
and paid with respect to a share of Common Stock if the record
date for determining shareholders entitled to receives such
dividends falls between the date of the relevant award was
granted and the date the relevant award or installment thereof
is distributed. If the Committee determines to establish a
trust in connection with this Plan to hold Plan assets for the
purposes set forth herein, there shall also be distributed an
appropriate amount of net earnings, if any, of the trust with
respect to any dividends paid out.
(c) Lapse of Restrictions. The restrictions set forth in paragraph
6(b) shall lapse as follows:
(i) Such restrictions shall lapse with respect to the shares
of Common Stock awarded pursuant to a specific award of RRP Stock at
the times determined by the Committee and on the terms stated in the
notice of the award. Such restrictions shall lapse only if on the date
restrictions are to lapse, the Recipient has been an officer, director
or employee continuously from the time of the award to such date of
lapse. The purpose of the restrictions is to provide an incentive to
each Recipient to remain with the Company or the Bank and to perform
assigned tasks and responsibilities in a manner consistent with the
best interests of the Company or the Bank and its stockholders.
<PAGE>
(ii) In the event of the termination of employment of a
Recipient, except as specified in paragraph 6(c)(iii) below, all shares
of Common Stock still subject to restrictions shall be returned to or
canceled by the Company and shall be deemed to have been forfeited by
the Recipient.
(iii) In the event of the termination of employment of a
Recipient by reason of death or permanent and total disability within
the meaning of Section 22(e)(3) of the Code, any outstanding
restrictions in respect to any RRP Stock awarded to such Recipient will
automatically lapse, and the shares of Common Stock subject to the
award shall be distributed to the Recipient or, in the case of death,
to his or her estate.
(d) Rights as a Shareholder. Upon issuance of the stock certificates
evidencing an award of RRP Stock and subject to the restrictions set out in
paragraph 6(b), the Recipient of an award shall have all of the rights of a
shareholder of the Company with respect to the shares of Common Stock
represented by such award, including the right to vote the shares and receive
all dividends and other distributions paid or made with respect to such
shares, provided that any stock dividends received on shares of restricted
stock shall be subject to the same restrictions as such underlying shares
until the restrictions on such underlying shares lapse.
7. Stock Appreciation Rights
(a) Stock appreciation rights ("SARs") may be granted by the
Committee independent of or in tandem with any Option at the time of
grant of such Option.
(b) SARs granted in tandem with Options shall be subject to
the following terms and conditions, plus any other conditions not
inconsistent with the Plan.
(i) Stock appreciation rights shall be exercisable,
in whole or in part, at such time or times and to the extent
that the Option to which they relate shall be exercisable, and
shall expire simultaneously with the Option to which they
relate.
(ii) Upon exercise of a SAR, the related Option or
portion thereof shall be surrendered to the Company in
exchange for payment by the Company of shares of Common Stock
(at the fair market value thereof) or cash or a combination
thereof, as the Committee may determine in its own discretion,
in an amount equal to the excess of the aggregate fair market
value of the shares subject to the Option or portion thereof
being surrendered over the aggregate option price thereof;
provided, however, that fractional shares shall not be issued.
Any Option, to the extent surrendered, shall thereupon cease
to be exercisable.
(iii) An officer who holds exercisable stock
appreciation rights and who desires to receive cash or a
combination of cash and shares of Common Stock must exercise
such stock appreciation rights during a restricted period
beginning on the third business day following the date of the
public announcement of the quarterly or annual earnings of the
Company and ending on the twelfth business day following such
date. Upon exercise of a stock appreciation right pursuant to
this paragraph, the officer shall be entitled to receive the
exercise value of the number of stock appreciation rights
being exercised in cash, shares of Common Stock valued at
their fair market, or a combination of cash and shares of
Common Stock, as the Committee may determine in its sole
discretion.
(iv) Stock appreciation rights shall be transferable
only when the Options to which they relate are transferable,
and under the same conditions.
(v) A stock appreciation right may be exercised only
when the market price of Common Stock exceeds the option price
of the Option to which the stock appreciation right relates.
(c) SARs granted independently of Options shall be exercisable
at such time or times, and on such conditions, as the Committee may
specify and as required by Section 10, hereof.
<PAGE>
8. Withholding Taxes.
(a) Upon the exercise of non-statutory stock options, the
participant shall be required to pay to the Company or authorize the
Company to deduct from other amounts payable to the participant the
amount of any taxes that the Company is required to withhold with
respect to such exercise. The participant may elect to satisfy such
withholding obligation by (a) delivering to the Company Common Stock
owned by such individual having a fair market value equal to such
withholding obligation or (b) requesting that the Company withhold from
the shares of Common Stock to be delivered a number of shares of Common
Stock having a fair market value equal to such withholding obligation.
(b) In the case of an Incentive Stock Option, the participant
shall be required (i) to inform the Company promptly of any disposition
(within the meaning of Section 424(c) of the Code (or any successor
section) and the rules thereunder) of Common Stock received upon
exercise, and (ii) to pay to the Company or authorize the Company to
deduct from other amounts payable to the participant the amount of any
taxes that the Company is required to withhold with respect to such
disposition.
(c) In the case of RRP Stock or SARs, the Company shall have
the right to withhold the amount of taxes the Company is required to
withhold from the amount awarded, or from the amount paid, or from
other amounts payable to the participant.
9. Amendment or Termination.
The Committee may amend or terminate the Plan at any time, provided that any
such amendment shall be subject to the approval of the stockholders of the
Company in accordance with applicable law and regulations if such approval is
necessary to satisfy the requirements of Rule 16b-3 (or any successor rule)
under the Exchange Act or other regulatory requirements. Unless hereafter
amended to provide for a different termination date, the Plan shall terminate
ten years after the Effective Date.
10. Compliance With OTS Conversion Regulations.
Notwithstanding any other provision contained in this Plan:
(a) No award or Option under the Plan shall be made which
would be prohibited by 12 C.F.R. 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 duly
called meeting of stockholders to consider the Plan, as required
by 12 C.F.R. ss. 563b.3(g)(4)(vii), the Plan shall not become
effective or implemented prior to one year from the date of the
Company's reorganization, or March 18, 1999;
(c) No award or Option granted prior to one year from the
date of the Company's reorganization, or March 18, 1999, shall
become vested or exercisable at a rate in excess of 20% per year
of the total number of Restricted Stock Awards or Options
(whichever may be the case) granted to such Participant,
provided, that awards or Options 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 or Options granted to any individual Employee
prior to one year from the date of the Company's reorganization,
or March 18, 1999, may exceed 25% of the total amount of awards
or Options, respectively, which may be granted under the Plan;
(e) No award or Options granted to any individual
non-employee director prior to one year from the date of the
Company's reorganization, or March 18, 1999, may exceed 5% of the
total amount of awards or Options, respectively, which may be
granted under the Plan; and
<PAGE>
(f) The aggregate amount of awards or Options granted to all
non-employee directors prior to one year from the date of the
Company's reorganization, or March 18, 1999, may not exceed 30%
of the total amount of awards or Options, respectively, which may
be granted under the Plan.
(g) Any change or amendment to the Plan which eliminates the
restrictions required by 12 C.F.R. ss. 563b.3(g)(4) shall require
prior approval of the Company's stockholders.
PEABODY AND BROWN
A Law Partnership including Professional Corporations 1255
23rd Street, NW Washington, DC 20037
(202) 973-7700
October 20, 1998
Board of Directors
Harbor Florida Bancshares, Inc.
P.O. Box 249
Fort Pierce, FL 34954-0249
Gentlemen:
We have acted as counsel for Harbor Florida Bancshares, Inc., a Delaware
corporation (the "Company"), in connection with the preparation and filing with
the Securities and Exchange Commission under the Securities Act of 1933, as
amended, of a Registration Statement on Form S-8 (the "Registration Statement")
relating to the offering of up to 2,322,145 shares (the "Shares") of the
Company's common stock, $0.10 par value, pursuant to the Harbor Florida
Bancshares, Inc. 1998 Stock Incentive Plan (the "Plan").
In arriving at the opinions expressed below, we have examined and relied on
the following documents:
i) the Registration Statement;
ii) the Plan;
iii) the Certificate of Incorporation of the Company;
iv) the By-Laws of the Company, and
v) the certificate of tabulation of the Inspector of
Elections, dated September 18, 1998.
In addition, we have examined and relied on the originals or copies
certified or otherwise identified to our satisfaction of all such other records,
documents and instruments of the Company and such other persons, and we have
made such investigations of law, as we have deemed appropriate as a basis for
the opinions expressed below. We have assumed the genuineness of all signatures
and the authenticity of all documents submitted to us as originals and the
conformity to the original documents of all documents submitted to us as
certified or photostatic copies.
<PAGE>
Based upon the foregoing, we are of the opinion that:
1. The Company, under the General Corporation Law of Delaware, has the
power necessary for the issuance of the Shares in the manner set forth in the
Registration Statement.
2. The Company, under the General Corporation Law of Delaware, has taken
all necessary action required to authorize the issuance and sale of the Shares.
3. When the aforesaid offering is completed and the Shares are issued in
the manner contemplated by the Registration Statement, the Shares will be
validly issued, fully paid and non-assessable.
The opinions set forth above represents our conclusion as to the
application of the General Corporation Law of Delaware and federal laws to the
instant matter, and we can give no assurance that changes in such laws, or in
the interpretation thereof, will not affect the opinion expressed by us.
Moreover, there can be no assurance that a court considering the issues would
not hold contrary to such opinion. Further, the opinion set forth represents our
conclusions based upon the documents reviewed by us and the facts presented to
us. Any material amendments to such documents or changes in any significant fact
could affect the opinion expressed herein.
Our opinion is further qualified to the extent that the validity of any
provision of the Plan or the rights of any grantee under the Plan may be subject
to or affected by applicable bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting the rights of creditors generally.
We consent to the filing of this opinion as Exhibit 5 to the Registration
Statement and to the reference to the Firm in the Registration Statement under
the caption, "Experts."
Very truly yours,
/s/
Peabody & Brown
Accountants' Consent
The Board of Directors
Harbor Florida Bancshares, Inc.:
We consent to the use of our report, incorporated herein by reference, dated
November 14, 1997 on the consolidated financial statements of Harbor Florida
Bancorp, Inc. (predecessor to Harbor Florida Bancshares, Inc.) as of September
30, 1997 and 1996 and for each of the years in the three-year period ended
September 30, 1997, which is included in the Company's annual report on Form
10-K for the year ended September 30, 1997.
/s/
KPMG Peat Marwick LLP
West Palm Beach, Florida
October 20, 1998
