As filed with the Securities and Exchange Commission on March 3, 1998.
Registration No. 333-_______________
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------
Guaranty Federal Bancshares, Inc.
------------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 43-1792717
- ------------------------------- -------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1341 W. Battlefield
Springfield, Missouri 65807
(417) 889-2494
----------------------------------------
(Address of principal executive offices)
Guaranty Federal Bancshares, Inc. 1994 Stock Option Plan
--------------------
(Full Title of the Plan)
Richard Fisch, Esq.
Malizia, Spidi, Sloane & Fisch, P.C.
1301 K Street, N.W.
Suite 700 East
Washington, D.C. 20005
(202) 434-4660
---------------------------------------------------------
(Name, address and telephone number of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
================================================================================================================================
Title of Proposed Proposed Maximum Amount of
Securities to Amount to be Maximum Offering Aggregate Offering Registration
be Registered Registered (1) Price Per Share Price (2) Fee (2)
- ------------- -------------- --------------- ---------- --------
<S> <C> <C> <C> <C>
Common Stock
$0.10 par value
per share 184,690 shares (2) $1,361,031 $401.51
================================================================================================================================
</TABLE>
(1) The maximum number of shares of common stock issuable upon awards to be
granted under the Guaranty Federal Bancshares, Inc. 1994 Stock Option
Plan consists of 184,690 shares which are being registered under this
Registration Statement and for which a registration fee is being paid.
Plus an indeterminate number of additional shares which may be offered
and issued to prevent dilution resulting from stock splits, dividends
or similar transactions.
(2) Under Rule 457(h) of the Securities Act of 1933, as amended, the
registration fee may be calculated, inter alia, based upon the price at
which the stock options may be exercised. 184,690 shares are being
registered hereby, of which (i) 5,098 shares are under option at an
exercise price of $5.83 per share ($29,721 in the aggregate); (ii)
7,724 shares are under option at an exercise price of $6.08 per share
($46,962 in the aggregate); and (iii) 136,094 shares are under option
at an exercise price of $6.02 per share ($819,286 in the aggregate).
The remainder of such shares, which are not presently subject to
options (35,774 shares), are being registered based upon the mean
between the closing bid and ask price of the common stock of Guaranty
Federal Bancshares, Inc., as reported on the NASDAQ National Market on
February 12, 1998, of $13.00 per share ($465,062 in the aggregate) for
a total offering of $1,361,031.
This Registration Statement shall become effective automatically upon
the date of filing, in accordance with Section 8(a) of the Securities Act of
1933.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document(s) containing the information specified in Part I of Form
S-8 will be sent or given to participants in the Guaranty Federal Bancshares,
Inc. 1994 Stock Option Plan (the "Plan") as specified by Rule 428(b)(1)
promulgated by the Securities and Exchange Commission (the "Commission") under
the Securities Act of 1933, as amended ("Securities Act").
Such document(s) are not being filed with the Commission, but
constitute (along with the documents incorporated by reference into the
Registration Statement pursuant to Item 3 of Part II hereof) a prospectus that
meets the requirements of Section 10(a) of the Securities Act.
I-1
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
The following documents previously or concurrently filed by Guaranty
Federal Bancshares, Inc. (the "Company" or "Registrant") with the Commission are
hereby incorporated by reference in this Registration Statement:
(a) The Company's Quarterly Report on Form 10-Q for the quarters ended
September 30, 1997 and December 31, 1997, as filed with the Commission;
(b) The Company's Registration Statement on Form S-1 as filed with the
Commission on September 23, 1997 and all amendments thereto.
(c) the description of the Company's common stock, contained in the
Company's Registration Statement on Form 8-A as filed with the Commission on
November 6, 1997 and all amendments thereto or reports filed for the purpose of
updating such description.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14, and 15(d) of the Securities and Exchange Act of 1934, as
amended (the "Exchange Act") prior to the filing of a post-effective amendment
which indicates that all securities offered 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.
Section 145 of the Delaware General Corporation Act sets forth
circumstances under which directors, officers, employees and agents may be
insured or indemnified against liability which they may incur in their
capacities as such.
The Certificate of Incorporation of the registrant (the "Certificate")
requires indemnification of directors, officers and employees to the fullest
extent permitted by Delaware law and limits the liability of directors to the
fullest extent permitted by Delaware law.
The registrant may purchase and maintain insurance on behalf of any
person who is or was a director, officer, employee, or agent thereof or who is
or was serving at the request of the registrant as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise against any liability asserted against him and incurred by him in any
such capacity or arising
II-1
<PAGE>
out of his status as such, whether or not the registrant would have the power to
indemnify him against such liability under the provisions of the Certificate.
A result of such provisions could be to increase the expenses of the
registrant and effectively reduce the ability of stockholders to sue on behalf
of the registrant since certain suits could be barred or amounts that might
otherwise be obtained on behalf of the registrant could be required to be repaid
by the registrant to an indemnified party.
Item 7. Exemption from Registration Claimed.
Not Applicable
Item 8. Exhibits.
For a list of all exhibits filed or included as part of this
Registration Statement, see "Index to Exhibits" at the end of this Registration
Statement.
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 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.
(2) That, for the purpose of determining any liability under the
Securities Act each post-effective amendment shall be deemed
to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to section 13(a) or section 15(d)
of the Exchange Act (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to section 15(d) of the Exchange
Act) that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the
securities offered therein, and 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 may be permitted to directors, officers, and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer, or
controlling
II-2
<PAGE>
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 expressed in the Securities Act and will be governed by
the final adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
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 Springfield, State of Missouri, on this 27th day
of February, 1998.
GUARANTY FEDERAL BANCSHARES, INC.
By: /s James E. Haseltine
----------------------------------------
James E. Haseltine
President and Chief Executive Officer
(Duly Authorized Representative)
POWER OF ATTORNEY
We the undersigned directors and officers of Guaranty Federal
Bancshares, Inc. do hereby severally constitute and appoint James E. Haseltine
and Bruce Winston our true and lawful attorneys and agents, to do any and all
things and acts in our names in the capacities indicated below and to execute
all instruments for us and in our names in the capacities indicated below which
said James E. Haseltine and Bruce Winston may deem necessary or advisable to
enable Guaranty Federal Bancshares, Inc. to comply with the Securities Act of
1933, as amended, and any rules, regulations and requirements of the Securities
and Exchange Commission, in connection with the registration statement on Form
S-8 relating to the offering of Guaranty Federal Bancshares, Inc.'s common
stock, including specifically but not limited to, power and authority to sign
for us or any of us in our names in the capacities indicated below the
registration statement and any and all amendments (including post-effective
amendments) thereto; and we hereby ratify and confirm all that James E.
Haseltine and Bruce Winston shall do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed below by the following persons in
the capacities indicated as of February 27, 1998.
/s/ James E. Haseltine /s/ George L. Hall
- -------------------------------------------- -----------------------------
James E. Haseltine George L. Hall
President and Chief Executive Officer Director
(Principal Executive Officer)
/s/ Bruce Winston /s/ Ivy L. Rogers
- -------------------------------------------- -----------------------------
Bruce Winston Ivy L. Rogers
Vice President and Chief Financial Officer Director
(Principal Financial and Accounting Officer)
<PAGE>
/s/ Jack L. Barham /s/ Gary Lipscomb
- -------------------------------------------- -----------------------------
Jack L. Barham Gary Lipscomb
Chairman of the Board and Director Director
/s/ Wayne V. Barnes /s/ Gerald L. Boss
- -------------------------------------------- -----------------------------
Wayne V. Barnes Gerald L. Boss
Director Director
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Sequential
Exhibit Description Page Number
- ------- ----------- -----------
<S> <C> <C> <C>
4.1 Guaranty Federal Bancshares, Inc. 1994 Stock Option Plan 9
4.2 Form of Stock Option Agreement with respect to Incentive Stock 18
Options
4.3 Form of Stock Option Agreement with respect to Non-Incentive Stock 23
Options.
5.1 Opinion of Malizia, Spidi, Sloane & Fisch, P.C. as to the validity of 28
the Common Stock being registered
23.1 Consent of Malizia, Spidi, Sloane & Fisch, P.C. (appears in their --
opinion filed as Exhibit 5.1)
23.2 Consent of Independent Accountants 30
24 Reference is made to the Signatures section of this Registration --
Statement for the Power of Attorney contained therein
</TABLE>
EXHIBIT 4.1
Guaranty Federal Bancshares, Inc.
1994 Stock Option Plan
<PAGE>
GUARANTY FEDERAL BANCSHARES, INC.
1994 STOCK OPTION PLAN
1. Purpose of the Plan.
The purpose of this Guaranty Federal Bancshares, Inc. ("Company") 1994
Stock Option Plan ("Plan") is to advance the interests of the Company through
providing select key Employees and Directors of the Company and Guaranty Federal
Savings Bank ("Savings Bank") with the opportunity to purchase shares of common
stock of the Company. By encouraging such stock ownership, the Company seeks to
attract, retain and motivate the best available personnel for positions of
substantial responsibility and to provide additional incentive to key Employees
and Directors of the Company or any present or future Parent or Subsidiary of
the Company to promote the success of the business. It is intended that options
issued pursuant to this Plan may constitute either ISOs or Non-ISOs.
2. Definitions.
As used herein, the following definitions shall apply.
(a) "Board" shall mean the Board of Directors of the Company.
(b) "Code" shall mean the Internal Revenue Code of 1986, as amended.
(c) "Committee" shall mean the Stock Option Committee appointed by the
Board in accordance with paragraph 4(a) of the Plan hereof.
(d) "Common Stock" shall mean the common stock, par value $0.10 per
share, of the Company.
(e) "Company" shall mean Guaranty Federal Bancshares, Inc. The term
shall include any present or future Parent or Subsidiary of the Company.
(f) "Continuous Employment" or "Continuous Status as an Employee" shall
mean the absence of any interruption or termination of employment by the
Company. Employment shall not be considered interrupted in the case of sick
leave, military leave or any other leave of absence approved by the Company or
in the case of transfers between payroll locations of the Company, its Parent,
its Subsidiaries or a successor.
(g) "Director" shall mean any member of the Board of Directors.
(h) "Effective Date" shall mean the date specified in paragraph 12
hereof.
(i) "Employee" shall mean any person employed by the Company of the
Savings Bank.
<PAGE>
(j) "Option" shall mean an option to purchase Shares granted pursuant
to the Plan, whether the option is an incentive stock option within the meaning
of Section 422 of the Code ("ISO"), or an option that does not so qualify
("Non-ISO").
(k) "Option Price" shall mean the price per Option Share at which an
Option may be exercised.
(l) "Optioned Shares" shall mean Shares subject to an Option granted
pursuant to this Plan.
(m) "Optionee" shall mean any person who receives an Option pursuant to
the Plan.
(n) "Parent" shall mean any present or future corporation which would
be a "parent corporation" as defined in Subsections 424(e) and (g) of the Code.
(o) "Plan" shall mean the Guaranty Federal Bancshares, Inc. 1994 Stock
Option Plan.
(p) "Savings Bank" shall mean the Guaranty Federal Savings Bank. The
term shall include any present or future Parent or Subsidiary of the Savings
Bank.
(q) "Share" shall mean one share of Common Stock.
(r) "Subsidiary" shall mean any present or future corporation which
would be a "subsidiary corporation" as defined in Subsections 424(f) and (g) of
the Code.
3. Shares Subject to the Plan.
Except as otherwise required by the provisions of paragraph 11 hereof,
the aggregate number of Shares deliverable upon the exercise of Options pursuant
to the Plan shall not exceed 187,765 Shares. Such Shares may either be
authorized but unissued Shares or Shares held in treasury.
If Options should expire, become unexercisable or be forfeited for any
reason without having been exercised in full, the Option Shares shall, unless
the Plan shall have been terminated, be available for the grant of additional
Options under the Plan.
4. Administration of the Plan.
(a) Composition of Committee. The Plan shall be administered by the
Committee, which shall consist of not less than three (3) Directors appointed by
the Board. All persons designated as members of the Committee shall be
"disinterested persons" within the meaning of Rule 16b-3 of the General Rules
and Regulations under the Securities Exchange of 1934, as amended ("Rule
16b-3"). Members of the committee shall serve at the pleasure of the Board.
- 2 -
<PAGE>
In the absence at any time of a duly appointed Committee, the Plan shall be
administered by those Directors who are "disinterested persons" within the
meaning of Rule 16b-3.
(b) Powers of the Committee. The Committee shall have discretionary
authority (but only to the extent not contrary to the express provisions of the
Plan or to resolutions adopted by the Board) to interpret the Plan, to
prescribe, amend and rescind rules and regulations relating to the Plan, to
determine the form and content of Options to be issued under the Plan and to
make other determinations necessary or advisable for the administration of the
Plan, and may exercise such other power and authority as may be delegated to it
by the Board from time to time. A majority of the entire Committee shall
constitute a quorum and the action of a majority of the members present at any
meeting at which a quorum is present shall be deemed the action of the
Committee.
(c) Effect of Committee's Decision. All decisions, determinations and
interpretations of the Committee shall be final and conclusive on all persons
affected thereby.
5. Eligibility.
(a) General Rule. In its sole discretion, the Committee may grant
Options to Employees of the Savings Bank or the Company. Each nonemployee
director shall be granted Non-ISOs only in accordance with paragraph 11 hereof.
An Optionee who has been granted an Option may, if otherwise eligible, be
granted an additional Option or Options. However, no Employee or Director shall
have a right to be granted an Option or, having received an option, the right to
again be granted an Option.
(b) Special Rules. The aggregate fair market value (determined in
accordance with paragraph 7 hereof), as of the date the Option is granted, of
the Shares with respect to which incentive stock options are exercisable for the
first time by an Employee during any calendar year (under all incentive stock
option plans, as defined in Section 422 of the Code, of the Savings Bank or any
present or future Parent or Subsidiary of the Savings Bank) shall not exceed
$100,000. Notwithstanding the prior provisions of this paragraph, the Committee
may grant Options in excess of the foregoing limitations, in which case such
Options granted in excess of such limitation shall be Options which are
Non-ISOs. Furthermore, in no event shall Shares subject to Options granted to
non-employee Directors under this Plan exceed in the aggregate more than 20% of
the total number of Shares authorized for issuance pursuant to paragraph 3
hereof.
6. Term of Plan; Term of Options.
(a) The Plan shall continue in effect for a term of ten years from the
Effective Date, unless sooner terminated pursuant to paragraph 17 hereof. No
Option shall be granted under the Plan after ten years from the Effective Date.
- 3 -
<PAGE>
(b) The term of each Option granted under the Plan shall be established
by the Committee, but shall not exceed 10 years; provided, however, that in the
case of an Employee who owns Shares representing more than 10% of the
outstanding Common Stock at the time the Option is granted, the term of such
Option shall not exceed five (5) years.
(c) All options will be exercisable in five equal installments
commencing the first year following the effective date of the Option Plan;
provided that all options will be 100% exercisable in the event the Optionee
terminates his or her employment due to death, disability, or in the event of a
change in control of the Guaranty Federal Bancshares, M.H.C., the mutual holding
company of the Savings Bank ("MHC").
7. Option Price.
(a) The Option Price as to any particular Option granted under the Plan
shall not be less than the fair market value of the Optioned Shares on the date
of grant. In the case of an Employee who owns Shares representing more than 10%
of the Savings Bank's outstanding Shares of Common Stock at the time an ISO is
granted, the Option Price shall not be less than 110% of the fair market value
of the Optioned Shares at the time the ISO is granted.
(b) Determination of Option Price. If the Common Stock is traded
otherwise than on a national securities exchange at the time of the granting of
an Option, then the Option Price per Share shall not be less than the mean
between the bid and asked price on the date the Option is granted or, if there
is no bid and asked price on said date, then on the next prior business day on
which there was a bid and asked price. If no such bid and asked price is
available, then the Option Price per Share shall be determined by the Committee,
in its sole and absolute discretion. If the Common Stock is listed on a national
securities exchange (including the NASDAQ National Market System) at the time of
granting an Option, then the Option Price per share shall be not less than the
average of the highest and lowest selling price on such exchange on the date
such Option is granted or if there were no sales on said date, then the Option
Price shall be not less than the mean between the bid and asked price on such
date.
8. Exercise of Option.
(a) Procedure for Exercise. Any Option granted hereunder shall be
exercisable at such times and under such conditions as shall be permissible
under the terms of the Plan and of the Option granted to an Optionee. An Option
may not be exercised for a fractional Share.
An Optionee may exercise Options granted pursuant to the Plan, subject
to provisions relative to its termination and limitations on its exercise, only
by (1) written notice of intent to exercise the Option with respect to a
specified number of Shares, and (2) payment to the Savings Bank
(contemporaneously with delivery of such notice) in cash, in Common Stock, or a
combination of cash and Common Stock, of the amount of the Option price for the
number of Shares with respect to which the Option is then being exercised. Each
such notice and payment shall be delivered, or mailed by prepaid registered or
certified mail, addressed to the Treasurer
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<PAGE>
of the Savings Bank at the Savings Bank's executive offices. Common Stock
utilized in full or partial payment of the Option Price shall be valued at is
fair market value at the date of exercise.
(b) Exercise During Employment or Following Death or Disability. Except
as may be specifically provided for by the terms of an Option as may be
authorized by the Committee at the time of such grant, an Option may be
exercised by an Optionee only while he is an Employee and has maintained
Continuous Status as an Employee since the date of the grant of the Option or
within three months after termination of status as an Employee (but not later
than the date on which the Option would otherwise expire), except if the Savings
Bank terminates the Employee's Continuous Employment by reason of (1 "Just
Cause" (which for purposes hereof shall have the same meaning as defined in the
then existing employment agreement between the Optionee and the Savings Bank
and, in the absence of any such agreement, shall have the meaning defined in 12
C.F.R. ss.563.39(b)(1) as in effect on the Effective Date), then the Optionee's
rights to exercise such Option shall expire on the date of such termination; (2)
death, then to the extent that the Optionee would have been entitled to exercise
the Option immediately prior to his death, such Option of the deceased Optionee
may be exercised within two years from the date of his death (but not later than
the date on which the option would otherwise expire) by the personal
representatives of his estate or person or persons to whom his rights under such
Option shall have passed by will or by laws of descent and distribution; or (3)
Permanent and Total Disability (as such term is defined in Section 22(e)(3) of
the Code), then to the extent that Optionee would have been entitled to exercise
the Option immediately prior to his Permanent and Total Disability, such Option
may be exercised within one year from the date of such Permanent and Total
Disability, but not later than the date on which the Option would otherwise
expire. Notwithstanding the provisions of any Option which provides for its
exercise in installments as designated by the Committee, such Option shall
become immediately exercisable upon death or Permanent and Total Disability, as
defined herein, of the Optionee.
The Committee's determination whether an Optionee's Continuous
Employment has ceased, and the effective date thereof shall be final and
conclusive on all persons affected thereby.
(c) Notwithstanding anything herein to the contrary, in no event shall
any Option granted pursuant to the Plan be exercisable for one year from the
date of grant, except in the event of the death, retirement or Permanent and
Total Disability of the Optionee.
9. Non-Transferability of Options.
Options granted under the Plan may not be sold, pledged, assigned,
hypothecated, transferred or disposed of in any manner other than by will or by
the laws of descent and distribution. An Option may be exercised, during the
lifetime of the Optionee, only by the Optionee.
- 5 -
<PAGE>
10. Effect of Change in Common Shares Subject to the Plan.
In the event that each of the outstanding shares of Common Stock (other
than Shares held by dissenting shareholders) shall be changed into or exchanged
for a different number or kind of shares of capital stock of the Savings Bank or
of another corporation (whether by reason of merger, consolidation,
recapitalization, reclassification, stock dividend, split-up, combination of
shares, or otherwise), then there shall be substituted for each Share of Common
Stock then under Option or available for Option the number and kind of shares of
capital stock into which each outstanding Share of Common Stock (other than
Shares held by dissenting stockholders) shall be so changed or for which each
such Share shall be so exchanged, together with an appropriate adjustment of the
Option Price.
In the event there shall be any change in the number of, or kind of,
issued shares of Common Stock, or of any capital stock or other securities into
which such Common Stock shall have been changed, or for which it shall have been
exchanged, then if the Committee shall, in its discretion, determine that such
change equitably requires an adjustment in the number, or kind, or Option Price
of Shares then subject to an Option or available for Option, such adjustment
shall be made by the Board and shall be effective and binding for all purposes
of the Plan.
11. Time of Granting Options.
The date of grant of an Option under the Plan shall, for all purposes,
be the date following the effective date on which the Committee makes the
determination of granting such Option. Notice of the determination shall be
given to each Optionee to whom an Option is so granted within a reasonable time
after the date of such grant.
12. Effective Date.
The Plan shall become effective upon the effective date the Plan is
approved by the stockholders, other than the MHC, of the Savings Bank at a
properly called meeting of shareholders to be held no earlier than six months
following the effective date of the formation of the Savings Bank. The Plan
shall continue in effect for a term of ten years from the Effective Date, unless
sooner terminated under paragraph 15 hereof.
13. Modification of Options.
At any time, and from time to time, the Board may authorize the
Committee to direct execution of an instrument providing for the modification of
any outstanding Option, provided no such modification, extension or renewal
shall confer on the holder of said Option any right or benefit which could not
be conferred on him by the grant of a new Option at such time, or impair the
Option without the consent of the holder of the Option.
- 6 -
<PAGE>
14. Amendment and Termination of the Plan.
The Board may from time to time amend, modify or terminate the Plan,
except that no action of the Board may materially increase (other than as
provided in Paragraph 12) the maximum number of Shares permitted to be optioned
or become available for the granting of Options under the Plan, materially
increase the benefits accruing to Optionees, or materially modify the
requirements for eligibility for participation in the Plan, unless such action
of the Board shall be subject to approval or ratification by the stockholders of
the Savings Bank.
No amendment, suspension or termination of the Plan shall, without the
consent of any affected Optionee, alter or impair any rights or obligations
under any Option theretofore granted to such Optionee under the Plan.
15. Conditions Upon Insurance of Shares.
Shares of Common Stock shall not be issued with respect to any Option
granted under the Plan unless the issuance and delivery of such Shares shall
comply with all relevant provisions of law, including, without limitation, the
Securities Act of 1933, as amended, the rules and regulations promulgated
thereunder, any applicable state securities law, and the requirements of any
stock exchange upon which the Shares may then be listed.
The inability of the Savings Bank to obtain approval from any
regulatory body or authority deemed by the Savings Bank's counsel to be
necessary to the lawful issuance and sale of any Shares hereunder shall relieve
the Savings Bank of any liability in respect of the non- issuance or sale of
such Shares. As a condition to the exercise of an Option, the Savings Bank may
require the person exercising the Option to make such representations and
warranties as may be necessary to assure the availability of an exception from
the registration requirements of federal or state securities law.
16. Reservation of Shares.
The Savings Bank, during the term of the Plan, will reserve and keep
available a number of Shares sufficient to satisfy the requirements of the Plan.
17. Withholding Tax.
The Savings Bank's obligation to deliver shares of Common Stock upon
exercise of Options, in whole or in part, shall be subject to the Optionee's
satisfaction of all applicable federal, state and local income and employment
tax withholding obligations. The Committee, in its discretion, may permit the
Optionee to satisfy the obligation, in whole or in part, by irrevocably electing
to have the Savings Bank withhold shares of Common Stock, or to deliver to the
Savings Bank shares of Common Stock that he already owns, having a value equal
to the amount required to be withheld. The value of shares to be withheld, or
delivered to the Savings Bank, shall be based on the fair market value of the
shares, as determined in accordance with
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<PAGE>
procedures to be established by the Committee, on the date the amount of tax to
be withheld is to be determined (the "Tax Date"). The Optionee's election to
have shares withheld, or delivered to the Savings Bank, for this purpose will be
subject to the following restrictions:
(1) the election must be made prior to the Tax Date.
(2) the election must be irrevocable.
(3) the election will be subject to the disapproval of the Committee,
and
(4) if an optionee is a person whose transactions in stock of the
Savings Bank are subject to Section 16(b) of the Securities Exchange
Act of 1934 and the Plan is then intended to qualify under Rule 16b-3,
such election may not be made within six months of the date the Option
is granted and must be made during the period beginning on the third
business day and ending on the twelfth business day that follows the
release of the Savings Bank's quarterly or annual summary statement of
sales and earnings.
18. Governing Law.
The Plan shall be governed by and construed in accordance with the laws
of the State of Missouri, except to the extent preempted by federal law as now
or hereafter in effect.
- 8 -
Form of Stock Option Agreement with respect
to Incentive Stock Options
<PAGE>
STOCK OPTION AGREEMENT
----------------------
FOR INCENTIVE STOCK OPTIONS UNDER SECTION 422
OF THE INTERNAL REVENUE CODE
PURSUANT TO THE
GUARANTY FEDERAL BANCSHARES, INC.
1994 STOCK OPTION PLAN
----------------------
STOCK OPTIONS for a total of _________ shares of common stock ("Common
Stock"), par value $.10 per share, of Guaranty Federal Bancshares, Inc. (the
"Company"), which are intended to qualify as a incentive stock options under
Section 422 of the Internal Revenue Code of 1986, as amended, are hereby granted
to ________ (the "Optionee") at the price determined as provided in, and in all
respects subject to the terms, definitions and provisions of the Guaranty
Federal Bancshares, Inc. 1994 Stock Option Plan (the "Plan") adopted by the
Company and incorporated by reference herein, receipt of which is hereby
acknowledged.
1. Option Exercise Price. The Options' exercise price is $_________
for each share of Common Stock under option, this amount being 100% of the fair
market value of the Common Stock on the date of grant of these Options.
2. Exercise of Options. These Options shall be exercisable in
accordance with provisions of the Plan as follows:
(a) Schedule of Rights to Exercise.
Date Percentage of Total Stock
---- Options Awarded Which Are
Non-forfeitable
---------------
________________ ____, _______ 20%
________________ ____, _______ 40%
________________ ____, _______ 60%
________________ ____, _______ 80%
________________ ____, _______ 100%
Notwithstanding any provisions in this Section 2, in no event shall
this Option be exercisable prior to one year following the date of grant, except
in the event of death, retirement or Permanent and Total Disability of the
Optionee. These Options shall be 100% vested and exercisable upon the death or
disability of the Optionee, or upon a Change in Control of the Company.
<PAGE>
(b) Method of Exercise. These Options shall be exercisable by
a written notice which shall:
(i) State the election to exercise the Option, the
number of shares of Common Stock with respect to which it is being
exercised, the person in whose name the stock certificate or
certificates for such shares of Common Stock is to be registered, his
or her address and Social Security Number (or if more than one, the
names, addresses and Social Security Numbers of such persons);
(ii) Contain such representations and agreements as to
the holder's investment intent with respect to such shares of Common
Stock as may be satisfactory to the Company's counsel;
(iii) Be signed by the person or persons entitled to
exercise these Options and, if the Options are being exercised by any
person or persons other than the Optionee, be accompanied by proof,
satisfactory to counsel for the Company, of the right of such person or
persons to exercise these Options; and
(iv) Be in writing and delivered in person or by
certified mail to the Treasurer of the Company.
Payment of the exercise price of these Options shall be by certified or
bank cashier's or teller's check. The certificate or certificates for shares of
Common Stock as to which these Options shall be exercised shall be registered in
the name of the person or persons exercising these Options.
(c) Restrictions on Exercise. These Options may not be
exercised if the issuance of the shares of Common Stock upon such exercise would
constitute a violation of any applicable federal or state securities or other
law or valid regulation. As a condition to the Optionee's exercise of these
Options, the Company may require the person exercising these Options to make any
representation and warranty to the Company as may be required by any applicable
law or regulation.
3. Non-transferability of Option. These Options may not be transferred
in any manner otherwise than by will or the laws of descent or distribution and
may be exercised during the lifetime of the Optionee only by the Optionee. The
terms of this stock option agreement ("Stock Option Agreement") shall be binding
upon the executors, administrators, heirs, successors and assigns of the
Optionee.
2
<PAGE>
4. Term of Options. These Options may not be exercised more than ten
(10) years from the date of grant of these Options, as set forth below, and may
be exercised during such term only in accordance with the Plan and the terms of
this Stock Option Agreement.
5. Modification and Replacement of Prior Options. By signing this
Option Agreement the Optionee and the Company agree that these Options shall
modify and replace, in accordance with Section 13 of the Plan, all of the
Optionee's prior options to purchase the common stock of Guaranty Federal
Savings Bank, originally granted to the Optionee on ________________ ____,
199____.
6. Related Matters. Notwithstanding anything herein to the contrary,
additional conditions or restrictions related to these Options may be contained
in the Plan or the resolutions of the Plan's Committee authorizing the grant of
these Options.
Guaranty Federal Bancshares, Inc.
Date of Grant: By:
----------------------- ------------------------------
Attest:
- ------------------------------
[SEAL]
3
<PAGE>
INCENTIVE STOCK OPTION EXERCISE FORM
------------------------------------
PURSUANT TO THE
GUARANTY FEDERAL BANCSHARES, INC.
1994 STOCK OPTION PLAN
----------------
(Date)
Guaranty Federal Bancshares, Inc.
1341 West Battlefield
Springfield, Missouri 65807
Dear Sir or Madam:
The undersigned elects to exercise incentive stock options to purchase
_______ shares, par value $.10, of common stock of Guaranty Federal Bancshares,
Inc. ("Common Stock") under and pursuant to a Stock Option Agreement dated
_______________ .
Delivered herewith is a certified or bank cashier's or teller's check
and/or shares of Common Stock, valued at the fair market value of the Common
Stock on the date of exercise, as set forth below.
$__________ of cash or check
__________ of Common Stock
$ Total
==========
The name or names to be on the stock certificate or certificates and
the address and Social Security Number of such person(s) are as follows:
Name_____________________________________________________
Address__________________________________________________
Social Security Number___________________________________
Very truly yours,
_______________________
Form of Stock Option Agreement with respect to
Non-Incentive Stock Options
<PAGE>
STOCK OPTION AGREEMENT
FOR NON-INCENTIVE STOCK OPTIONS PURSUANT TO THE
GUARANTY FEDERAL BANCSHARES, INC.
1994 STOCK OPTION PLAN
----------------------
STOCK OPTIONS for a total of ______ shares of common stock ("Common
Stock"), par value $.10 per share, of Guaranty Federal Bancshares, Inc. (the
"Company"), which are not intended to qualify as incentive stock options under
Section 422 of the Internal Revenue Code of 1986, as amended, are hereby granted
to ____________ (the "Optionee") at the price determined as provided in, and in
all respects subject to the terms, definitions and provisions of the Guaranty
Federal Bancshares, Inc. 1994 Stock Option Plan (the "Plan") adopted by the
Company and incorporated by reference herein, receipt of which is hereby
acknowledged.
1. Option Exercise Price. The Options' exercise price is $_________
for each share of Common Stock under option, this amount being 100% of the fair
market value of the Common Stock on the date of grant of these Options.
2. Exercise of Options. These Options shall be exercisable in
accordance with provisions of the Plan as follows:
(a) Schedule of Rights to Exercise.
Date Percentage of Total Stock
---------------- Options Awarded Which Are
Non-forfeitable
---------------
________________ ____, _______ 20%
________________ ____, _______ 40%
________________ ____, _______ 60%
________________ ____, _______ 80%
________________ ____, _______ 100%
Notwithstanding any provisions in this Section 2, in no event shall
this Option be exercisable prior to one year following the date of grant, except
in the event of death, retirement or Permanent and Total Disability of the
Optionee. These Options shall be 100% vested and exercisable upon the death or
disability of the Optionee, or upon a Change in Control of the Company.
<PAGE>
(b) Method of Exercise. These Options shall be exercisable by
a written notice which shall:
(i) State the election to exercise the Option, the
number of shares of Common Stock with respect to which it is being
exercised, the person in whose name the stock certificate or
certificates for such shares of Common Stock is to be registered, his
or her address and Social Security Number (or if more than one, the
names, addresses and Social Security Numbers of such persons);
(ii) Contain such representations and agreements as to
the holder's investment intent with respect to such shares of Common
Stock as may be satisfactory to the Company's counsel;
(iii) Be signed by the person or persons entitled to
exercise these Options and, if the Options are being exercised by any
person or persons other than the Optionee, be accompanied by proof,
satisfactory to counsel for the Company, of the right of such person or
persons to exercise these Options; and
(iv) Be in writing and delivered in person or by
certified mail to the Treasurer of the Company.
Payment of the exercise price of these Options shall be by certified or
bank cashier's or teller's check. The certificate or certificates for shares of
Common Stock as to which these Options shall be exercised shall be registered in
the name of the person or persons exercising these Options.
(c) Restrictions on Exercise. These Options may not be
exercised if the issuance of the shares of Common Stock upon such exercise would
constitute a violation of any applicable federal or state securities or other
law or valid regulation. As a condition to the Optionee's exercise of these
Options, the Company may require the person exercising these Options to make any
representation and warranty to the Company as may be required by any applicable
law or regulation.
3. Non-transferability of Option. These Options may not be transferred
in any manner otherwise than by will or the laws of descent or distribution and
may be exercised during the lifetime of the Optionee only by the Optionee. The
terms of this stock option agreement ("Stock Option Agreement") shall be binding
upon the executors, administrators, heirs, successors and assigns of the
Optionee.
2
<PAGE>
4. Term of Options. These Options may not be exercised more than ten
(10) years from the date of grant of these Options, as set forth below, and may
be exercised during such term only in accordance with the Plan and the terms of
this Stock Option Agreement.
5. Related Matters. Notwithstanding anything herein to the contrary,
additional conditions or restrictions related to these Options may be contained
in the Plan or the resolutions of the Plan's Committee authorizing the grant of
these Options.
Guaranty Federal Bancshares, Inc.
Date of Grant: By:
--------------------- ----------------------------
Attest:
- ------------------------------
[SEAL]
3
<PAGE>
NON-INCENTIVE STOCK OPTION EXERCISE FORM
PURSUANT TO THE
GUARANTY FEDERAL BANCSHARES, INC.
1994 STOCK OPTION PLAN
----------------
(Date)
Guaranty Federal Bancshares, Inc.
1341 West Battlefield
Springfield, Missouri 65807
Dear Sir or Madam:
The undersigned elects to exercise non-incentive stock options to
purchase __________ shares, par value $.10, of common stock of Guaranty Federal
Bancshares, Inc. ("Common Stock") under and pursuant to a Stock Option Agreement
dated _________________.
Delivered herewith is a certified or bank cashier's or teller's check
and/or shares of Common Stock, valued at the fair market value of the Common
Stock on the date of exercise, as set forth below.
$_________ of cash or check
_________ of Common Stock
$ Total
=========
The name or names to be on the stock certificate or certificates and
the address and Social Security Number of such person(s) are as follows:
Name ___________________________________________________
Address_________________________________________________
Social Security Number__________________________________
Very truly yours,
___________________
EXHIBIT 5.1
Opinion of Malizia, Spidi, Sloane & Fisch, P.C. as to
the validity of the Common Stock being registered
<PAGE>
MALIZIA, SPIDI, SLOANE & FISCH, P.C.
ATTORNEYS AT LAW
1301 K STREET, N.W.
SUITE 700 EAST
WASHINGTON, D.C. 20005
(202) 434-4660
FACSIMILE: (202) 434-4661
March 3, 1998
Board of Directors
Guaranty Federal Bancshares, Inc.
P.O. Box 849
1341 W. Battlefield
Springfield, Missouri 65807
RE: Registration Statement on Form S-8:
-----------------------------------
Guaranty Federal Bancshares, Inc. 1994 Stock Option Plan
Gentlemen:
We have acted as special counsel to Guaranty Federal Bancshares, Inc.,
a State of Delaware corporation (the "Company"), in connection with the
preparation of the Registration Statement on Form S-8 filed with the Securities
and Exchange Commission (the "Registration Statement") under the Securities Act
of 1933, as amended, relating to 184,690 shares of common stock, par value $0.10
per share (the "Common Stock") of the Company which may be issued under the
Guaranty Federal Bancshares, Inc. 1994 Stock Option Plan (the "Plan"), as more
fully described in the Registration Statement. You have requested the opinion of
this firm with respect to certain legal aspects of the proposed offering.
We have examined such documents, records, and matters of law as we have
deemed necessary for purposes of this opinion and based thereon, we are of the
opinion that the Common Stock when issued pursuant to the stock awards granted
under and in accordance with the terms of the Plan will be duly and validly
issued, fully paid, and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement on Form S-8 and to references to our firm included under
the caption "Legal Opinion" in the Prospectus which is a part of the
Registration Statement.
Sincerely,
/s/ Malizia, Spidi, Sloane & Fisch, P.C.
Malizia, Spidi, Sloane & Fisch, P.C.
Washington, D.C.
EXHIBIT 23.1
Consent of Malizia, Spidi, Sloane & Fisch, P.C.
(appears in their opinion filed as Exhibit 5.1)
EXHIBIT 23.2
Consent of Independent Accountants
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C> <C>
[LOGO] Hammons Tower
Baird, 901 E. St. Louis Street, Suite 1000 1034 W. Main Street
KURTZ & P.O. Box 1190 P.O. Box 1277 http:/www.bkd.com
DOBSON Springfield, MO 65801-1190 Branson, MO 65615-1277 Member of
Certified Public Accountants 417 865-8701 Fax: 417 865-0682 417 334-5165 Fax: 417 334-4823 Moores Rowland International
</TABLE>
Board of Directors
Guaranty Federal Bancshares, Inc.
1341 W. Battlefield
Springfield, Missouri 65807
We consent to the incorporation by reference in the Registration
Statement on Form S-8 related to the GUARANTY FEDERAL BANCSHARES, INC. 1994
Stock Option Plan, of our report on the consolidated financial statements of
GUARANTY FEDERAL SAVINGS BANK as of and for each of the three years in the
period ended June 30, 1997, included in the Prospectus of GUARANTY FEDERAL
BANCSHARES, INC., dated November 12, 1997, as filed under the Registration
Statement on Form S-1 with the Securities and Exchange Commission on September
23, 1997, and amendments thereto.
/s/Baird, Kurtz & Dobson
February 27, 1998
Springfield, Missouri
BDK
75
We Deliver
Results
----------
1923-1998
