<PAGE> 1
As filed with the Securities and Exchange Commission on November 26, 1997
Registration Statement No. 33-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------
MEDFORD BANCORP, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<CAPTION>
<S> <C> <C>
MASSACHUSETTS 29 HIGH STREET 04-3384928
(State or Other Jurisdiction of MEDFORD, MASSACHUSETTS 02155 (I.R.S. Employer
Incorporation or Organization) (617) 395-7700 Identification No.)
(Address, including zip code, and telephone
number, including area code of Registrant's
principal executive offices)
</TABLE>
MEDFORD BANCORP, INC. STOCK OPTION PLAN
MEDFORD SAVINGS BANK 1986 STOCK OPTION PLAN
(Full titles of the Plans)
ARTHUR H. MEEHAN
Chairman, President and Chief Executive Officer
MEDFORD BANCORP, INC.
29 High Street
Medford, Massachusetts 02155
(617) 395-7700
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copy to:
PAUL W. LEE, P.C.
Goodwin, Procter & Hoar LLP
Exchange Place
Boston, MA 02109
(617) 570-1590
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CALCULATION OF REGISTRATION FEE
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===============================================================================================================================
TITLE OF SECURITIES TO BE AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
REGISTERED REGISTERED (1) OFFERING PRICE PER SHARE AGGREGATE OFFERING PRICE REGISTRATION FEE
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
MEDFORD BANCORP, INC. 20,000 shares $10.625 (2) $5,231,812.50 $1,585.40
STOCK OPTION PLAN 10,000 shares $14.375 (2)
14,000 shares $17.25 (2)
Common Stock, $0.50 30,000 shares $18.875 (2)
par value 3,000 shares $14.4375 (2)
3,000 shares $21.75 (2)
6,000 shares $20.75 (2)
3,000 shares $21.25 (2)
3,000 shares $25.75 (2)
6,000 shares $24.875 (2)
102,000 shares $34.75 (3)
- -------------------------------------------------------------------------------------------------------------------------------
MEDFORD SAVINGS BANK 136,880 shares $5.1875 (2) $2,120,061.375 $642.44
1986 STOCK OPTION PLAN 11,320 shares $6.125 (2)
36,886 shares $7.625 (2)
Common Stock, $0.50 34,000 shares $10.875 (2)
par value 3,000 shares $12.25 (2)
33,590 shares $19.4375 (2)
- -------------------------------------------------------------------------------------------------------------------------------
TOTAL 455,676 shares $7,351,873.875 $2,227.84
===============================================================================================================================
</TABLE>
(1) Pursuant to a Shareholder Rights Plan, each share of Common Stock also
has an associated preferred stock purchase right. In addition, pursuant
to Rule 416(c) under the Securities Act of 1933, this registration
statement also covers an indeterminate amount of interests (including any
associated preferred stock purchase rights) to be offered or sold
pursuant to the stock option plans described herein, including such
additional number of shares as may be required pursuant to the stock
option plans in the event of a stock dividend, reverse stock split,
split-up, recapitalization or other similar event.
(2) This estimate is made pursuant to Rule 457(h) under the Securities Act,
solely for the purposes of determining the registration fee and is based
upon the price at which outstanding options may be exercised.
(3) This estimate is made pursuant to Rule 457(c) and (h) under the
Securities Act solely for the purpose of determining the amount of the
registration fee on November 19, 1997, utilizing the average of the high
and low sale prices reported on the Nasdaq National Market System on that
date.
================================================================================
This Registration Statement, including exhibits (See Exhibit Index on
Page __), consists of __ pages.
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in the requirements of
Part I are not required to be filed with the Securities and Exchange Commission
as part of this Registration Statement on Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
Medford Bancorp, Inc. (the "Registrant") hereby incorporates by reference
into this Registration Statement the following documents:
(a) and (b) The Registrant's Current Report on Form 8-K as filed with the
Securities and Exchange Commission on November 26, 1997 (the "Form 8-K"), which
includes as exhibits thereto the following: (1) Annual Report of Medford
Savings Bank (the "Bank") on Form F-2 for the year ended December 31, 1996, as
filed with the Federal Deposit Insurance Corporation ("FDIC") (Exhibit 99.1);
Quarterly Report of the Bank on Form F-4 for the quarter ended March 31, 1997,
as filed with the FDIC (Exhibit 99.2); Current Report of the Bank on Form F-3,
as filed with the FDIC on May 7, 1997 (Exhibit 99.3); Quarterly Report of the
Bank on Form F-4 for the quarter ended June 30, 1997, as filed with the FDIC
(Exhibit 99.4); Proxy Statement, dated August 4, 1997, delivered to the Bank's
stockholders in connection with the Bank's September 16, 1997 Special Meeting
of Stockholders, as filed with the FDIC (Exhibit 99.5); Quarterly Report of the
Bank on Form F-4 for the quarter ended September 30, 1997, as filed with the
FDIC (Exhibit 99.6); Current Report of the Bank on Form F-3, as filed with the
FDIC on October 7, 1997 (Exhibit 99.7).
(c) The description of the Registrant's common stock, par value $0.50 per
share, contained in Exhibit 3.1 and 99.5 to Form 8-K.
All documents filed by the Registrant or the Plan pursuant to Sections
13(a), 13(c), 14 or 15(d) of 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 have been sold or which deregisters
all securities then remaining unsold, shall be deemed to be incorporated by
reference herein and to be a part hereof from the date of filing of documents.
Any statement contained in a document incorporated or deemed to be incorporated
by reference herein shall be deemed to be modified or superseded for purposes
hereof to the extent that a statement contained herein or in any other
subsequently filed document which also is incorporated or deemed to be
incorporated by reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
<PAGE> 3
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Indemnification. The Company is a Massachusetts corporation. Massachusetts
General Laws Chapter 156B, Section 67 provides that a corporation may, subject
to certain limitations, indemnify its directors, officers, employees and other
agents, and persons who serve at its request as directors, officers, employees
or other agents of another organization, or who serve at its request in any
capacity with respect to any employee benefit plan, to the extent specified or
authorized by the corporation's articles of organization, a by-law adopted by
the stockholders, or a vote adopted by the holders of a majority of the shares
of stock entitled to vote on the election of directors.
Section 67 also provides that a corporation may purchase and maintain
insurance against liability incurred by an officer or director in his capacity
as officer or director, or arising out of his or her status as such, whether or
not the corporation would have the power to indemnify him against such
liability.
The Company's By-laws provide that directors and officers of the Company
shall, and in the discretion of the Board of Directors, non-officer employees
may, be indemnified by the Company against liabilities and expenses arising out
of service for or on behalf of the Company. The By-laws provide that such
indemnification shall not be provided if it is determined that the action giving
rise to the liability was not taken in good faith in the reasonable belief that
the action was in the best interests of the Company. The By-laws provide that
the indemnification provision in the By-laws does not limit any other right to
indemnification existing independently of the By-laws.
More specifically, Article VI, Section 1, of the Company's By-laws provides
the following definitions relating to the indemnification of directors and
officers:
For purposes of this Article: (a) "Officer" means any person who
serves or has served as a Director of the Company or in any other office
filled by election or appointment by the stockholders or the Board of
Directors and any heirs or personal representatives of such person; (b)
"Non-Officer Employee" means any person who serves or has served as an
employee of the Company, but who is not or was not an Officer, and any
heirs or personal representatives of such person; (c) "Proceeding" means
any action, suit or proceeding, civil or criminal, brought or threatened in
or before any court, tribunal administrative or legislative body or agency
and any claim which could be the subject of a Proceeding; and (d)
"Expenses" means any liability fixed by a judgment, order, decree or award
in a Proceeding, any amount reasonably paid in settlement of a Proceeding
and any professional fees or other disbursements reasonably incurred in a
Proceeding.
Article VI, Section 2, of the Company's By-laws provides that the Company
shall indemnify Officers as follows:
Except as provided in Sections 4 and 5 of this Article VI, each
Officer of the Company shall be indemnified by the Company against all
Expenses incurred by such Officer in connection with any Proceedings in
which such Officer is involved as a result of serving or having served (a)
as an Officer or employee of the Company; (b) as a director, officer or
employee of any wholly owned subsidiary of the Company; or (c) in any
capacity with any other corporation, organization, partnership, joint
venture, trust or other entity at the request or direction of the Company.
2
<PAGE> 4
Article VI, Section 3, of the Company's By-laws provides that the Company
shall indemnify Non-Officer Employees as follows:
Except as provided in Sections 4 and 5 of this Article VI, each
Non-Officer Employee of the Company may, in the discretion of the Board of
Directors, be indemnified against any or all Expenses incurred by such
Non-Officer Employee in connection with any Proceeding in which such
Non-Officer Employee is involved as a result of serving or having served
(a) as a Non-Officer Employee of the Company; (b) as a director, officer or
employee of any wholly owned subsidiary of the Company; or (c) in any
capacity with any other corporation, organization, partnership, joint
venture, trust or other entity at the request or direction of the Company.
Article VI of the Company's By-laws also includes certain provisions
relating to the scope of the indemnification for officers and directors of the
Company and the procedures for determining entitlement to indemnification:
SECTION 4. SERVICE AT THE REQUEST OR DIRECTION OF THE COMPANY. No
indemnification shall be provided to an Officer or Non-Officer Employee
with respect to serving or having served in any of the capacities described
in Section 2(c) or 3(c) above unless the following two conditions are met:
(a) such service was requested or directed in each specific case by vote of
the Board of Directors prior to the occurrence of the event to which the
indemnification relates, and (b) the Company maintains insurance coverage
for the type of indemnification sought. In no event shall the Company be
liable for indemnification under Section 2(c) or 3(c) above for any amount
in excess of the proceeds of insurance received with respect to such
coverage as the Company in its discretion may elect to carry. The Company
may but shall not be required to maintain insurance coverage with respect
to indemnification under Section 2(c) or 3(c) above. Notwithstanding any
other provision of this Section 4, but subject to Section 5 of this Article
VI, the Board of Directors may provide an Officer or Non-Officer Employee
with indemnification under Section 2(c) or 3(c) above as to a specific
Proceeding even if one or both of the two conditions specified in this
Section 4 have not been met and even if the amount of the indemnification
exceeds the amount of the proceeds of any insurance which the Company may
have elected to carry, provided that the Board of Directors in its
discretion determines it to be in the best interests of the Company to do
so.
SECTION 5. GOOD FAITH. No indemnification shall be provided to an
Officer or to a Non-Officer Employee with respect to a matter as to which
such person shall have been adjudicated in any Proceeding not to have acted
in good faith in the reasonable belief that the action of such person was
in the best interests of the Company. In the event that a Proceeding is
compromised or settled so as to impose any liability or obligation upon an
Officer or Non-Officer Employee, no indemnification shall be provided to
said Officer or Non-Officer Employee with respect to a matter if there be a
determination that with respect to such matter such person did not act in
good faith in the reasonable belief that the action of such person was in
the best interests of the Company. The determination shall be made by a
majority vote of those Directors who are not involved in such Proceeding.
However, if more than half of the Directors are involved in such
Proceeding, the determination shall be made by a majority vote of a
committee of three disinterested Directors chosen by the disinterested
Directors at a regular or special meeting. If there are fewer than three
(3) disinterested Directors, the determination shall be based upon the
opinion of the Company's regular outside counsel.
SECTION 6. PRIOR TO FINAL DISPOSITION. Unless otherwise provided by
the Board of Directors or by the committee pursuant to the procedure
specified in Section 5 of this Article VI, any indemnification provided for
under this Article VI shall include payment by the Company of Expenses
incurred in defending a Proceeding in advance of the final disposition of
such Proceeding upon receipt
3
<PAGE> 5
of an undertaking by the Officer or Non-Officer Employee seeking
indemnification to repay such payment if such Officer or Non-Officer
Employee shall be adjudicated or determined to be not entitled to
indemnification under this Article VI.
SECTION 7. INSURANCE. The Company may purchase and maintain insurance
to protect itself and any Officer or Non-Officer Employee against any
liability of any character asserted against or incurred by the Company or
any such Officer or Non-Officer Employee, or arising out of any such
status, whether or not the Company would have the power to indemnify such
person against such liability by law or under the provisions of this
Article VI.
SECTION 8. OTHER INDEMNIFICATION RIGHTS. Nothing in this Article VI
shall limit any lawful rights to indemnification existing independently of
this Article VI.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following is a complete list of exhibits filed or incorporated by
reference as part of this Registration Statement.
*4.1 Specimen certificate for shares of Common Stock of Medford
Bancorp, Inc.
*4.2 Articles IV, VI(A), VI(C) and VI(I)-(J) of the Articles of
Organization of Medford Bancorp, Inc.
*4.3 Articles II and V of the By-laws of Medford Bancorp, Inc.
4.4 Medford Savings Bank 1986 Stock Option Plan
4.5 Medford Bancorp, Inc. Stock Option Plan
5.1 Opinion of Goodwin, Procter & Hoar LLP as to the legality of the
securities being registered
23.1 Consent of Goodwin, Procter & Hoar LLP (contained in Exhibit 5.1
hereto)
23.2 Consent of Wolf & Company, P.C., as independent public
accountants
24.1 Power of attorney (see page 7 of this Registration Statement)
- ---------------------------
* Filed as an exhibit to the Registrant's Current Report on Form
8-K filed with the Securities and Exchange Commission on November 26,
1997, and incorporated herein by reference thereto.
4
<PAGE> 6
ITEM 9. UNDERTAKINGS
This Registration Statement on Form S-8 covers securities underlying stock
option plans adopted by the Registrant as its plans in connection with the
reorganization of Medford Savings Bank (the "Bank") into holding company form
pursuant to a Plan of Reorganization and Acquisition dated as of July 29, 1997
between the Registrant and the Bank (the "Plan of Reorganization"). Pursuant to
the Plan of Reorganization, at the effective date of the Plan of Reorganization,
each issued and outstanding share of the Bank's common stock, par value $0.50
per share (together with associated preferred stock purchase rights) (except
shares held by stockholders exercising dissenters' rights), automatically and
without consideration was converted into and exchanged for one share of the
common stock, par value $0.50 per share of the Company (together with associated
preferred stock purchase rights). Notwithstanding the foregoing, as required by
Item 9 of Form S-8, the Registrant provides the following 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 acts 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 end of the estimated offering range may be
reflected in the form of prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and price represent
no more than a 20% change in the maximum aggregate offering price set forth
in "Calculation of Registration Fee" table in the effective Registration
Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) herein do not apply
if the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the undersigned
Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in the 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;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof; and
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(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
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<PAGE> 7
the Exchange Act (and, where applicable, each filing of an employee benefit
plan's annual report pursuant toSection 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.
(h) 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 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.
6
<PAGE> 8
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned thereunto duly
authorized, in the City of Medford, Commonwealth of Massachusetts, on
November 26, 1997.
MEDFORD BANCORP, INC.
By: /s/ Arthur H. Meehan
----------------------------
Arthur H. Meehan
Chairman, President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that we, the undersigned officers and
directors of Medford Bancorp, Inc. hereby severally constitute Arthur H. Meehan
and Phillip W. Wong and each of them singly, our true and lawful attorneys with
full power to them, and each of them singly, to sign for us and in our names in
the capacities indicated below, the Registration Statement filed herewith and
any and all amendments to said Registration Statement, and generally to do all
such things in our names and in our capacities as officers and directors to
enable Medford Bancorp, Inc. to comply with the provisions of the Securities Act
of 1933, and all requirements of the Securities and Exchange Commission, hereby
ratifying and confirming our signatures as they may be signed by our said
attorneys, or any of them, to said Registration Statement and any and all
amendments thereto.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
/s/ Arthur H. Meehan Chairman, President, Chief November 26, 1997
- -------------------------- Executive Officer and Director
Arthur H. Meehan (principal executive officer)
/s/ Phillip W. Wong Senior Vice President, November 26, 1997
- -------------------------- Treasurer
Phillip W. Wong and Chief Financial Officer
(principal financial and
accounting officer)
/s/ Edward D. Brickley Director November 26, 1997
- --------------------------
Edward D. Brickley
7
<PAGE> 9
SIGNATURE TITLE DATE
/s/ David L. Burke Director November 26, 1997
- -------------------------------
David L. Burke
/s/ Paul J. Crowley Director November 26, 1997
- -------------------------------
Paul J. Crowley
/s/ Mary L. Doherty Director November 26, 1997
- -------------------------------
Mary L. Doherty
/s/ Edward J. Gaffey Director November 26, 1997
- -------------------------------
Edward J. Gaffey
/s/ Andrew D. Guthrie Jr., M.D. Director November 26, 1997
- -------------------------------
Andrew D. Guthrie Jr., M.D.
/s/ Robert A. Havern III Director November 26, 1997
- -------------------------------
Robert A. Havern III
/s/ Arthur H. Meehan Director November 26, 1997
- -------------------------------
Arthur H. Meehan
/s/ Eugene R. Murray Director November 26, 1997
- -------------------------------
Eugene R. Murray
/s/ Francis D. Pizzella Director November 26, 1997
- ------------------------------
Francis D. Pizzella
8
<PAGE> 10
EXHIBIT INDEX
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER DESCRIPTION PAGES
*4.1 Specimen certificate for shares of Common Stock of
Medford Bancorp, Inc.
*4.2 Articles IV, VI(A), VI(C) and VI(I)-(J) of the
Articles of Organization of Medford Bancorp, Inc.
*4.3 Articles II and V of the By-laws of Medford
Bancorp, Inc.
4.4 Medford Savings Bank 1986 Stock Option Plan
4.5 Medford Bancorp, Inc. Stock Option Plan
5.1 Opinion of Goodwin, Procter & Hoar LLP as to the
legality of the securities being registered
23.1 Consent of Goodwin, Procter & Hoar LLP (contained
in Exhibit 5.1 hereto)
23.2 Consent of Wolf & Company, P.C., as independent
public accountants
24.1 Power of attorney (see page 7 of this Registration
Statement)
- ---------------------------
* Filed as an exhibit to the Registrant's Current Report on Form 8-K filed
with the Securities and Exchange Commission on November 26, 1997, and
incorporated herein by reference thereto.
9
<PAGE> 1
EXHIBIT 4.4
MEDFORD SAVINGS BANK
1986 Stock Option Plan
----------------------
Amended effective as of
March 19, 1986
1. PURPOSE
This Stock Option Plan (the "Plan") is intended as a performance incentive
for directors, officers and full-time employees of Medford Savings Bank (the
"Bank") or its Subsidiaries (as hereinafter defined) to enable the persons to
whom options are granted (the "Optionees") to acquire or increase a proprietary
interest in the success of the Bank. The Bank intends that this purpose will be
effected by the granting of "incentive stock options" ("Incentive Options") as
defined in Section 422A(b) of the Internal Revenue Code of 1954, as amended (the
"Code"), nonqualified stock options ("Nonqualified Options") and stock
appreciation rights under the Plan. The term "Subsidiaries" includes any
corporations in which stock possessing 50 percent or more of the total combined
voting power of all classes of stock is owned directly or indirectly by the
Bank.
2. OPTIONS TO BE GRANTED AND ADMINISTRATION
(a) Options granted under the Plan may be either Incentive Options or
Nonqualified Options.
(b) The Plan shall be administered by a committee (the "Option Committee")
of not less than three directors appointed by the Board of Directors of the
Bank. None of the members of the Option Committee shall be an officer or other
full-time employee of the Bank. It is the intention of the Bank that the Plan
shall be administered, in accordance with the provisions of Section 4 hereof, in
a manner consistent with the provisions of 12 C.F.R. Section 335.411(c)(2)
1
<PAGE> 2
(entitled "Disinterested Administrators") as promulgated by the Federal Deposit
Insurance Corporation under the Securities Exchange Act of 1934, as amended (the
"1934 Act"). Prior to the conversion of the Bank to stock form, the Option
Committee shall consist of three Trustees of the Bank who satisfy the
requirements of this paragraph (b) and who shall be selected from among those
Trustees who will serve as initial directors after conversion. The Committee so
selected shall exercise all powers under the Plan and shall continue in office
after conversion until other action is taken by the Board of Directors. Action
by the Option Committee shall require the affirmative vote of a majority of all
its members.
(c) Subject to the terms and conditions of the Plan, the Option Committee
shall have the power:
(i) To determine from time to time the options to be granted to
eligible persons under the Plan, to prescribe the terms and provisions
(which need not be identical) of each option granted under the Plan to such
persons, and to recommend to the Board of Directors for its approval the
grant of options;
(ii) To construe and interpret the Plan and options granted thereunder
and to establish, amend, and revoke rules and regulations for
administration of the Plan. In this connection, the Option Committee may
correct any defect or supply any omission, or reconcile any inconsistency
in the Plan, or in any option agreement, in the manner and to the extent it
shall deem necessary or expedient to make the Plan fully effective. All
decisions and determinations by the Option Committee in the exercise of
this power shall be final and binding upon the Bank and Optionees; and
2
<PAGE> 3
(iii) Generally, to exercise such powers and to perform such acts as
are deemed necessary or expedient to promote the best interests of the Bank
with respect to the Plan.
3. STOCK
(a) The stock subject to the options granted under the Plan shall be shares
of the Bank's authorized but unissued common stock, par value $.10 per share
(the "Common Stock"). The total number of shares that may be issued pursuant to
options or stock appreciation rights granted under the Plan shall not exceed an
aggregate of 368,000 shares of Common Stock. Such number shall be subject to
adjustment as provided in Section 8 hereof.
(b) Whenever any outstanding option under the Plan expires, is cancelled or
is otherwise terminated (other than by exercise), the shares of Common Stock
allocable to the unexercised portion of such option may again be the subject of
options under the Plan, except for options surrendered as provided in Section 7
hereof.
4. ELIGIBILITY
(a) Incentive Options may be granted only to officers and other full-time
employees of the Bank or its Subsidiaries, including members of the Board of
Directors who are also employees of the Bank or its Subsidiaries. Nonqualified
Options may be granted to officers or other full-time employees of the Bank or
its Subsidiaries and to members of the Board of Directors (regardless of whether
they are also employees).
(b) No person shall be eligible to receive any option under the Plan, if at
the date of grant such person beneficially owns in excess of ten percent of the
outstanding Common Stock of the Bank.
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<PAGE> 4
(c) No person shall be eligible to receive Incentive Options under the Plan
and incentive stock options under any other option plan of the Bank (or a parent
or subsidiary as defined in ss.425 of the Code) in any calendar year covering
stock having an aggregate fair market value (determined at the time the option
is granted) in excess of $100,000, plus any unused limit carryover to such year
as defined in ss.422A(c)(4) of the Code. Any option granted in excess of the
foregoing limitations shall be clearly and specifically designated as not being
an Incentive Option.
(d) The aggregate number of shares of Common Stock subject to Nonqualified
Options granted to non-employee directors shall at no time exceed 20% of the
aggregate number of shares of Common Stock subject to the Plan; provided that
the aggregate number of shares of Common Stock subject to all Nonqualified
Options granted to any such director shall at no time exceed 2% of the aggregate
number of shares of Common Stock subject to the Plan. The aggregate number of
shares of Common Stock subject to Nonqualified Options and Incentive Options
granted to directors who are employees shall at no time exceed [40%] of the
aggregate number of shares of Common Stock subject to the Plan; provided that
the aggregate number of shares of Common Stock subject to all Nonqualified
Options and Incentive Options granted to any such director shall at no time
exceed [15%] of the aggregate number of shares of Common Stock subject to the
Plan.
5. TERMS OF THE OPTION AGREEMENTS
Each option agreement shall contain such provisions as the Option Committee
shall from time to time deem appropriate. Option agreements need not be
identical, but each option agree ment by appropriate language shall include the
substance of all of the following provisions:
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(a) EXPIRATION. Notwithstanding any other provision of the Plan or of any
option agreement, each option shall expire on the date specified in the option
agreement, which date shall not be later than the tenth anniversary of the date
on which the option was granted.
(b) MINIMUM SHARES EXERCISABLE. The minimum number of shares with respect
to which an option may be exercised at any one time shall be 100 shares, or such
lesser number as is subject to exercise under the option at the time.
(c) EXERCISE.
(i) Each option shall be exercisable in such installments (which need
not be equal) and at such times as designated by the Option Committee. To
the extent not exercised, installments shall accumulate and be exercisable,
in whole or in part, at any time after becoming exercisable, but not later
than the date the option expires.
(ii) Notwithstanding any other provision of the Plan, no Incentive
Option (or related stock appreciation right) shall be exercisable by an
Optionee while there is out standing (within the meaning of ss.422A(c)(7)
of the Code) any other Incentive Option to purchase stock of (i) the Bank
or (ii) a parent, subsidiary or predecessor corporation, which was granted
to such Optionee under this Plan and any other plan prior to the granting
of the Incentive Option which such Optionee proposes to exercise.
(iii) In the event of a Change in Control of the Bank (as defined in
(f) below), all options outstanding as of the date of such Change in
Control shall become immediately exercisable.
(iv) Notwithstanding any other provision of the Plan, (A) no officer
or director of the Bank shall exercise any option granted hereunder within
three years from the date of
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completion of the conversion of the Bank to stock form, except with the
approval of the Commissioner of Banks of the Commonwealth of Massachusetts,
and (B) no director of the Bank shall exercise any option or any related
stock appreciation right granted hereunder after March 18, 1986 within one
year from the date of grant of the option (or stock appreciation right) or
thereafter other than during the period beginning on the third business day
following the date of release for publication of quarterly or annual
financial information and ending on the twelfth business day following such
release date.
(d) PURCHASE PRICE. The purchase price per share of Common Stock under each
option shall be not less than the fair market value of the Common Stock on the
date the option is granted. For the purposes of the Plan, the fair market value
of the Common Stock shall be determined in good faith by the Option Committee.
(e) RIGHTS OF OPTIONEES. No Optionee shall be deemed for any purpose to be
the owner of any shares of Common Stock subject to any option unless and until
(i) the option shall have been exercised pursuant to the terms thereof, (ii) the
Bank shall have issued and delivered the shares to the Optionee, and (iii) the
Optionee's name shall have been entered as a stockholder of record on the books
of the Bank. Thereupon, the Optionee shall have full voting, dividend and other
ownership rights with respect to such shares of Common Stock.
(f) CHANGE IN CONTROL. For purposes of the Plan, a "Change in Control"
shall be deemed to have occurred in either of the following events: (i) if there
has occurred a change in control which the Bank would be required to report in
response to Item 5(f) of the Form for Proxy Statement (Form F-5) prescribed by
12 CFR Section 335.212 promulgated under the Secu rities Exchange Act of 1934,
as amended (the "1934 Act"), or, if such regulation is no longer in
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effect, any regulations promulgated by the Federal Deposit Insurance Corporation
or the Securities and Exchange Commission pursuant to the 1934 Act which are
intended to serve similar purposes or (ii) when any "person" (as such term is
used in Sections 13(d) and 14(d)(2) of the 1934 Act) becomes a "beneficial
owner" (as such term is defined in Rule 13d-3 promulgated under the 1934 Act),
directly or indirectly, of securities of the Bank representing twenty-five
percent (25%) or more of the total number of votes that may be cast for the
election of directors of the Bank, and in the case of either (i) or (ii) above,
the Bank's Board of Directors has not consented to such event by a two-thirds
vote of all of the members of the Board of Directors adopted prior to such
event. In addition, a Change in Control shall be deemed to have occurred if, as
the result of, or in connection with, any tender or exchange offer, merger or
other business combination, sale of assets or contested election, or any
combination of the foregoing transactions, the persons who were directors of the
Bank before such transaction shall cease to constitute a majority of the Board
of Directors of the Bank or of any successor institution. Notwithstanding the
other provisions of this Section, the sale of the Bank's stock in connection
with its conversion from mutual to stock form shall not constitute a Change in
Control.
(g) No options or stock appreciation rights shall be transferable by the
Optionee other than by will or by the laws of descent and distribution, and may
be exercised during the Optionee's lifetime only by the Optionee, his or her
guardian or legal representative.
6. METHOD OF EXERCISE; PAYMENT OF PURCHASE PRICE
(a) Any option granted under the Plan may be exercised by the Optionee by
delivering to the Option Committee on any business day a written notice
specifying the number of shares of Common Stock the Optionee then desires to
purchase (the "Notice").
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(b) Payment for the shares of Common Stock purchased pursuant to the
exercise of an option shall be made either in (i) cash equal to the option price
for the number of shares specified in the Notice (the "Total Option Price"), or
(ii) if authorized by the applicable option agreement, shares of Common Stock of
the Bank having a fair market value, determined as provided in Section 5(d)
hereof, equal to or less than the Total Option Price, plus cash in an amount
equal to the excess, if any, of the Total Option Price over the fair market
value of such shares of Common Stock.
7. STOCK APPRECIATION RIGHTS
(a) The Option Committee may, but shall not be obligated to, include stock
appreciation rights in any option agreement, on such terms and conditions as it
deems appropriate in each case. Such stock appreciation rights shall permit the
Optionee, at his or her election, to surrender to the Bank the right to exercise
such option (or portion thereof) in consideration for the payment by the Bank of
an amount equal to the excess of the fair market value on the date of such
surrender of the shares of Common Stock subject to such option (or portion
thereof) surrendered over the exercise price of such shares. Such payment may be
made, at the discretion of the Option Committee upon the request of the
Optionee, in shares of Common Stock valued at the fair market value thereof on
the date of such surrender or in cash, or any combination thereof.
(b) Any election by an Optionee to exercise stock appreciation rights
included in any option agreement shall be made only during the period beginning
on the third business day following the date of release for publication of
quarterly or annual financial information and ending on the twelfth business day
following such date. This condition (and the similar condition set forth in
Section 5(c)(iv)(B) hereof) shall be deemed to be satisfied when the specified
financial
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data appears on or in a wire service, financial news service or newspaper of
general circulation or is otherwise first made publicly available. Subject to
the further limitations, if applicable, provided in Section 5(c)(iv), no stock
appreciation right may be exercised within six months from the date of grant
thereof, except that this limitation shall not apply in the event death or
disability of the grantee occurs prior to the expiration of such six month
period.
(c) Any option surrendered as provided in this Section 7 shall be cancelled
by the Bank and shall not be subject to further grant.
(d) The Option Committee shall be authorized hereunder to make payment to
the Optionee in shares of Common Stock only if Sections 61 and 83 of the Code
apply to the Common Stock transferred to the Optionee.
8. ADJUSTMENT UPON CHANGES IN CAPITALIZATION
(a) If the shares of the Bank's Common Stock as a whole are increased,
decreased, changed into or exchanged for a different number or kind of shares or
securities of the Bank, whether through merger, consolidation, reorganization,
recapitalization, reclassification, stock dividend, stock split, combination of
shares, exchange of shares, change in corporate structure or the like, an
appropriate and proportionate adjustment shall be made in the number and kind of
shares subject to the Plan, and in the number, kind, and per share exercise
price of shares subject to unexercised options or portions thereof granted prior
to any such change. In the event of any such adjustment in an outstanding
option, the Optionee thereafter shall have the right to purchase the number of
shares under such option at the per share price, as so adjusted, which the
Optionee could purchase at the total purchase price applicable to the option
immediately prior to such adjustment.
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(b) Adjustments under this Section 8 shall be determined by the Option
Committee and such determinations shall be conclusive. The Option Committee
shall have the discretion and power in any such event to determine and to make
effective provision for acceleration of the time or times at which any option or
portion thereof shall become exercisable. No fractional shares of Common Stock
shall be issued under the Plan on account of any adjustment specified above.
9. EFFECT OF CERTAIN TRANSACTIONS
In the case of (i) the dissolution or liquidation of the Bank, (ii) a
reorganization, merger or consolidation in which the Bank is acquired by another
entity (other than a holding company formed by the Bank) or in which the Bank is
not the surviving corporation, or (iii) the sale of all or substantially all of
the property of the Bank to another corporation, the Plan and the options issued
hereunder shall terminate, unless provision is made in connection with such
transaction for the assumption of options theretofore granted, or the
substitution for such options of new options of the successor corporation or
parent thereof, with appropriate adjustment as to the number and kind of shares
and the per share exercise prices, as provided in Section 8. In the event of
such termination, all outstanding options shall be exercisable in full for at
least 15 days prior to the date of such termination whether or not otherwise
exercisable during such period.
10. RELEASE OF FINANCIAL INFORMATION
A copy of the Bank's annual report to stockholders shall be delivered to
each Optionee at the time such report is distributed to the Bank's stockholders.
Upon request, the Bank shall furnish to each Optionee a copy of its most recent
annual report and each quarterly report and current report filed under the 1934
Act since the end of the Bank's prior fiscal year.
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11. AMENDMENT OF THE PLAN
The Board of Directors may amend the Plan at any time, and from time to
time, subject to any required regulatory approval and to the limitation that,
except as provided in Sections 8 and 9 hereof, no amendment shall be effective
unless approved by the stockholders of the Bank in accordance with applicable
law and regulations (including, without limitation, the provisions of 12 C.F.R.
Section 335.411(c)(1)) at an annual or special meeting held within twelve months
before or after the date of adoption of such amendment, where such amendment
will:
(a) increase the number of stock appreciation rights which may be granted
or of shares of Common Stock as to which options may be granted under the Plan;
(b) change in substance Section 4 hereof relating to eligibility to
participate in the Plan;
(c) change the minimum option price;
(d) increase the maximum term of options provided herein; or
(e) otherwise materially increase the benefits accruing to participants
under the Plan.
Except as provided in Sections 8 and 9 hereof, rights and obligations under
any option granted before any amendment of the Plan shall not be altered or
impaired by such amendment, except with the consent of the Optionee.
12. NONEXCLUSIVITY OF THE PLAN
Neither the adoption of the Plan by the Board of Directors nor the
submission of the Plan to the stockholders of the Bank for approval shall be
construed as creating any limitations on the power of the Board of Directors to
adopt such other incentive arrangements as it may deem
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desirable, including, without limitation, the granting of stock options
otherwise than under the Plan, and such arrangements may be either applicable
generally or only in specific cases.
13. GOVERNMENT AND OTHER REGULATIONS; GOVERNING LAW
(a) The obligation of the Bank to sell and deliver shares of Common Stock
with respect to options granted under the Plan shall be subject to all
applicable laws, rules and regulations, including all applicable federal and
state securities laws, and the obtaining of all such approvals by governmental
agencies as may be deemed necessary or appropriate by the Option Committee.
(b) The Plan shall be governed by Massachusetts law, except to the extent
that such law is preempted by federal law.
(c) The Plan is intended to comply with the provisions of 12 C.F.R. Section
335.411(c) promulgated by the Federal Deposit Insurance Corporation under the
1934 Act. Any provision inconsistent with such Rule shall be inoperative and
shall not affect the validity of the Plan.
14. EFFECTIVE DATE OF PLAN; STOCKHOLDER APPROVAL
The Plan shall become effective upon commencement of the public offering in
connection with the conversion of the Bank to a stock form bank, or, if no
public offering is held, imme diately prior to the consummation of the
conversion, provided, however, that the Plan shall be subject to (i) the
approval of the Bank's stockholders in accordance with applicable laws and
regulations (including, without limitations, the provisions of 12 C.F.R. Section
335.411(c)(1)) at an annual or special meeting held within twelve months of such
effective date and (ii) the approval of the Commissioner of Banks of the
Commonwealth of Massachusetts if required by applicable law or regulation. No
options granted under the Plan prior to such regulatory and stockholder
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approvals may be exercised until such approvals have been obtained. No option
may be granted under the Plan after the tenth anniversary of the effective date
of the Plan.
* * *
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EXHIBIT 4.5
MEDFORD BANCORP, INC.
STOCK OPTION PLAN
As Amended and Restated
as of July 29, 1997
-------------------
1. PURPOSE
This Stock Option Plan (the "Plan") is a continuation of the Medford
Savings Bank 1993 Stock Option Plan and is intended as a performance incentive
for directors, officers and full-time employees of Medford Bancorp, Inc. (the
"Company") or its Subsidiaries (as hereinafter defined) to enable the persons to
whom options are granted (the "Optionees") to acquire or increase a proprietary
interest in the success of the Company. The Company intends that this purpose
will be effected by the granting of "incentive stock options" ("Incentive
Options") as defined in Section 422 of the Internal Revenue Code of 1986, as
amended from time to time (the "Code") and nonqualified stock options
("Nonqualified Options") under the Plan. The term "Subsidiaries" includes any
corporations in which stock possessing 50 percent or more of the total combined
voting power of all classes of stock is owned directly or indirectly by the
Company.
2. OPTIONS TO BE GRANTED AND ADMINISTRATION
(a) Options granted under the Plan may be either Incentive Options or
Nonqualified Options.
(b) The Plan shall be administered by a committee (the "Option Committee")
of not less than three directors of the Company appointed by the Board of
Directors of the Company. None of the members of the Option Committee shall be
an officer or other full-time employee of the Company. It is the intention of
the Company that each member of the Option
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Committee shall be a "non-employee director," as that term is defined and
interpreted under Rule 16b-3(b)(3)(i) or any successor rule promulgated by the
Securities and Exchange Commission under the Securities Exchange Act of 1934, as
amended (the "1934 Act"). Action by the Option Committee shall require the
affirmative vote of a majority of all its members.
(c) Subject to the terms and conditions of the Plan, the Option Committee
shall have the power:
(i) To determine from time to time the options to be granted to
eligible persons under the Plan (except with respect to options granted to
non-employee directors pursuant to Section 4(d) hereof) and to prescribe
the terms and provisions (which need not be identical) of each option
granted under the Plan to such persons;
(ii) To construe and interpret the Plan and options granted thereunder
and to establish, amend, and revoke rules and regulations for
administration of the Plan. In this connection, the Option Committee may
correct any defect or supply any omission, or reconcile any inconsistency
in the Plan, or in any option agreement, in the manner and to the extent it
shall deem necessary or expedient to make the Plan fully effective. All
decisions and determinations by the Option Committee in the exercise of
this power shall be final and binding upon the Company and the Optionees;
and
(iii) Generally, to exercise such powers and to perform such acts as
are deemed necessary or expedient to promote the best interests of the
Company with respect to the Plan.
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3. STOCK
(a) The stock subject to the options granted under the Plan shall be shares
of the Company's authorized but unissued common stock, par value $0.50 per share
(the "Common Stock"). The total number of shares that may be issued pursuant to
options or stock appreciation rights granted under the Plan shall not exceed an
aggregate of 200,000 shares of Common Stock. Such number shall be subject to
adjustment as provided in Section 8 hereof.
(b) Whenever any outstanding option under the Plan expires, is canceled or
is otherwise terminated (other than by exercise), the shares of Common Stock
allocable to the unexercised portion of such option may again be the subject of
options under the Plan, except for options surrendered as provided in Section 7
hereof.
4. ELIGIBILITY
(a) Incentive Options may be granted only to officers and other full-time
employees of the Company or its Subsidiaries, including members of the Board of
Directors who are also employees of the Company or its Subsidiaries.
Nonqualified Options may be granted to officers or other full-time employees of
the Company or its Subsidiaries and to members of the Board of Directors of the
Company or Medford Savings Bank (the "Bank") (including non-employee directors,
on and subject to the terms and conditions set forth in Section 4(d)).
(b) No person shall be eligible to receive any option under the Plan, if at
the date of grant such person beneficially owns in excess of ten percent of the
outstanding Common Stock of the Company.
(c) The aggregate fair market value, determined at the time the option is
granted, of the stock with respect to which Incentive Options under the Plan and
incentive stock options
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under any other option plan of the Company (or a parent or subsidiary as defined
in ss.424 of the Code) granted after December 31, 1986 are exercisable for the
first time by any individual during any calendar year shall not exceed $100,000.
Any option granted in excess of the foregoing limitations shall be clearly and
specifically designated as not being an Incentive Option.
(d) Each non-employee director of the Company or the Bank who is elected or
reelected to the Board of Directors of the Company and the Bank shall
automatically be granted, upon each such election or reelection, a Nonqualified
Option to purchase 2,000 shares of Common Stock; provided, however, that no
non-employee director of both the Company and the Bank may be granted a
Nonqualified Option to purchase more than 2,000 shares of Common Stock at any
election or reelection. Such option shall vest as follows: 1,000 shares upon
election or reelection to the Board of Directors and 1,000 shares on the first
anniversary of such election or reelection. No options granted to non-employee
directors may be exercisable more than ten years from the date of grant. Except
as provided in this Section 4(d), the terms of such options, including without
limitation the purchase price per share of Common Stock thereunder, shall be
determined as set forth in Section 5 hereof. Notwithstanding any other
provisions of the Plan, the provisions of this Section 4(d) shall govern the
rights and obligations of the Company and non-employee directors in respect of
options granted or to be granted to non-employee directors.
5. TERMS OF THE OPTION AGREEMENTS
Each option agreement shall contain such provisions as the Option Committee
shall from time to time deem appropriate. Option agreements need not be
identical, but each option
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agreement by appropriate language shall include the substance of all of the
following provisions:
(a) EXPIRATION. Notwithstanding any other provision of the Plan or of any
option agreement, each option shall expire on the date specified in the option
agreement, which date shall not be later than the tenth anniversary of the date
on which the option was granted.
(b) MINIMUM SHARES EXERCISABLE. The minimum number of shares with respect
to which an option may be exercised at any one time shall be 100 shares, or such
lesser number as is subject to exercise under the option at the time.
(c) EXERCISE.
(i) Each option shall be exercisable in such installments (which need
not be equal) and at such times as designated by the Option Committee. To
the extent not exercised, installments shall accumulate and be exercisable,
in whole or in part, at any time after becoming exercisable, but not later
than the date the option expires.
(ii) In the event of a Change in Control of the Company (as defined in
(f) or (g) below), all options outstanding as of the date of such Change in
Control shall become immediately exercisable.
(iii) The exercise of options granted hereunder shall be subject to
the receipt of any prior regulatory approvals that may be required.
(d) PURCHASE PRICE. The purchase price per share of Common Stock under each
option shall be not less than the fair market value of the Common Stock on the
date the option is granted. For the purposes of the Plan, the fair market value
of the Common Stock shall be determined in good faith by the Option Committee;
provided, however, that (i) if the Common
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Stock is admitted to quotation on the National Association of Securities Dealers
Automated Quotation System ("NASDAQ") on the date the option is granted, fair
market value shall not be less than the average of the highest bid and lowest
asked prices of the Common Stock on such System on such date, or (ii) if the
Common Stock is admitted to trading on a national securities exchange or the
NASDAQ National Market System on the date the option is granted, fair market
value shall not be less than the last sale price reported for the Common Stock
on such exchange on such date or on the last date preceding such date on which a
sale was reported.
(e) RIGHTS OF OPTIONEES. No Optionee shall be deemed for any purpose to be
the owner of any shares of Common Stock subject to any option unless and until
(i) the option shall have been exercised pursuant to the terms thereof, (ii) the
Company shall have issued and delivered the shares to the Optionee, and (iii)
the Optionee's name shall have been entered as a stockholder of record on the
books of the Company. Thereupon, the Optionee shall have full voting, dividend
and other ownership rights with respect to such shares of Common Stock.
(f) CHANGE IN CONTROL. For purposes of the Plan, a "Change in Control"
shall be deemed to have occurred in either of the following events: (i) if there
has occurred a change in control which the Bank would be required to report in
response to Item 1 of Form F-3 promulgated under title 12 of the Code of Federal
Regulations ("12 CFR") ss.335.321, or, if such regulation is no longer in
effect, any regulations promulgated by the Federal Deposit Insurance Corporation
which are intended to serve similar purposes, or (ii) when any "person" (as such
term is used in Sections 13(d) and 14(d)(2) of the 1934 Act) becomes a
"beneficial owner" (as such term is defined in Rule 13d-3 promulgated under the
1934 Act), directly or
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indirectly, of securities of the Bank representing twenty-five percent (25%) or
more of the total number of votes that may be cast for the election of directors
of the Bank, and in the case of either (i) or (ii) above, the Bank's Board of
Directors has not consented to such event by a two-thirds vote of all of the
members of the Board of Directors adopted either prior to such event or within
ninety (90) days thereafter, except that if at the time such a consent vote is
adopted after such change in control, the persons who were directors of the Bank
immediately prior to the change in control do not constitute a majority of the
Board of Directors of the Bank or of any successor institution, such vote shall
not be deemed to constitute consent for purposes of the Plan. In addition, a
Change in Control shall be deemed to have occurred if, as the result of, or in
connection with, any cash tender or exchange offer, merger or other business
combination, sale of assets or contested election, or any combination of the
foregoing transactions, the persons who were directors of the Bank before such
transaction shall cease to constitute a majority of the Board of Directors of
the Bank or of any successor institution.
(g) CHANGE IN CONTROL. Effective upon the final approval of Medford
Bancorp, Inc. as the holding company of the Bank, Section 5(f) shall cease to
apply and a "Change in Control" shall be deemed to have occurred in any one of
the following events:
(i) if there has occurred a change in control which the Company would
be required to report in response to Item 1 of Form 8-K promulgated under
the 1934 Act, or, if such regulation is no longer in effect, any
regulations promulgated by the Securities and Exchange Commission pursuant
to the 1934 Act which are intended to serve similar purposes;
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<PAGE> 8
(ii) when any "person" (as such term is used in Sections 13(d) and
14(d)(2) of the 1934 Act) becomes a "beneficial owner" (as such term is
defined in Rule 13d-3 promulgated under the 1934 Act), directly or
indirectly, of securities of the Company or the Bank representing
twenty-five percent (25%) or more of the total number of votes that may be
cast for the election of directors of the Company or the Bank, as the case
may be;
(iii) during any period of two consecutive years (not including any
period prior to the execution of this Agreement), individuals who are
Continuing Directors (as hereinafter defined) cease for any reason to
constitute at least a majority of the Board of Directors of the Company.
For this purpose, a "Continuing Director" shall mean (a) an individual who
was a director of the Company at the beginning of such period or (b) any
new director (other than a director designated by a person who has entered
into an agreement with the Company to effect a transaction described in
clause (ii), (iv) or (v) of this Section 5(g)) whose election by the Board
or nomination for election by the Company's stockholders was approved by a
vote of at least two-thirds (2/3) of the directors then still in office who
either were directors at the beginning of such period or whose election or
nomination for election was previously so approved;
(iv) the stockholders of the Company approve a merger of consolidation
of the Company with any other corporation, other than (a) a merger or
consolidation which would result in the voting securities of the Company
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity) more than 80% of the combined
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voting power of the voting securities of the Company or such surviving
entity outstanding immediately after such merger or consolidation or (b) a
merger or consolidation effected to implement a recapitalization of the
Company (or similar transaction) in which no "person" (as hereinabove
defined) acquires more than 30% of the combined voting power of the
Company's then outstanding securities; or
(v) the stockholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale or disposition by
the Company of all or substantially all of the Company's assets.
(h) TRANSFER. No options or stock appreciation rights shall be transferable
by the Optionee other than by will or by the laws of descent and distribution,
and may be exercised during the Optionee's lifetime only by the Optionee, his or
her guardian or legal representative. Notwithstanding the foregoing, the Option
Committee may permit the Optionee to transfer, without consideration for the
transfer, his Nonqualified Option to members of his immediate family, to trusts
for the benefit of such family members, or to partnerships in which such family
members are the only parties, provided that the transferor agrees in writing
with the Company to be bound by all the terms and conditions of this Plan and
the applicable option agreement.
6. METHOD OF EXERCISE; PAYMENT OF PURCHASE PRICE
(a) Any option granted under the Plan may be exercised by the Optionee by
delivering to the Option Committee on any business day a written notice
specifying the number of shares of Common Stock the Optionee then desires to
purchase (the "Notice").
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(b) Payment for the shares of Common Stock purchased pursuant to the
exercise of an option shall be made either in (i) cash equal to the option price
for the number of shares specified in the Notice (the "Total Option Price"),
(ii) if authorized by the applicable option agreement, shares of Common Stock of
the Company having a fair market value, determined as provided in Section 5(d)
hereof, equal to or less than the Total Option Price, plus cash in an amount
equal to the excess, if any, of the Total Option Price over the fair market
value of such shares of Common Stock, or (iii) by the Optionee delivering the
Notice to the Company together with irrevocable instructions to a broker to
promptly deliver the Total Option Price to the Company in cash or by other
method of payment acceptable to the Company; provided, however, that the
Optionee and the broker shall comply with such procedures and enter into such
agreements of indemnity or other agreements as the Company shall prescribe as a
condition of payment under this clause (iii).
7. TAX WITHHOLDING
(a) PAYMENT BY OPTIONEE. Each Optionee shall, no later than the date as of
which the value of any option granted hereunder or of any Common Stock issued
upon the exercise of such option first becomes includable in the gross income of
the Optionee for federal income tax purposes (the "Tax Date"), pay to the
Company, or make arrangements satisfactory to the Company regarding payment of
any federal, state or local taxes of any kind required by law to be withheld
with respect to such income.
(b) PAYMENT IN SHARES. An Optionee may elect to have such tax withholding
obligation satisfied, in whole or in part, by (i) authorizing the Company to
withhold from shares of Common Stock to be issued pursuant to an option exercise
a number of shares with
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an aggregate fair market value (determined by the Option Committee in
accordance with Section 5(d) as of the date the withholding is effected)
that would satisfy the withholding amount due, or (ii) transferring to the
Company shares of Common Stock owned by the Optionee with an aggregate fair
market value (determined by the Option Committee in accordance with Section
5(d) as of the date the withholding is effected) that would satisfy the
8. STOCK APPRECIATION RIGHTS
(a) The Option Committee may, but shall not be obligated to, include stock
appreciation rights in any option agreement, on such terms and conditions as it
deems appropriate in each case. Such stock appreciation rights shall permit the
Optionee, at his or her election, to surrender to the Company the right to
exercise such option (or portion thereof) in consideration for the payment by
the Company of an amount equal to the excess of the fair market value on the
date of such surrender of the shares of Common Stock subject to such option (or
portion thereof) surrendered over the exercise price of such shares. Such
payment may be made, at the discretion of the Option Committee upon the request
of the Optionee, in shares of Common Stock valued at the fair market value
thereof on the date of such surrender or in cash, or any combination thereof.
(b) No stock appreciation right may be exercised within six months from the
date of grant thereof, except that this limitation shall not apply in the event
death or disability of the grantee occurs prior to the expiration of such six
month period.
(c) Any option surrendered as provided in this Section 8 shall be canceled
by the Company and shall not be subject to further grant.
11
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(d) The Option Committee shall be authorized hereunder to make payment to
the Optionee in shares of Common Stock only if Sections 61 and 83 of the Code
apply to the Common Stock transferred to the Optionee.
9. ADJUSTMENT UPON CHANGES IN CAPITALIZATION
(a) If the shares of the Company's Common Stock as a whole are increased,
decreased, changed into or exchanged for a different number or kind of shares or
securities of the Company, whether through merger, consolidation,
reorganization, recapitalization, reclassification, stock dividend, stock split,
combination of shares, exchange of shares, change in corporate structure or the
like, an appropriate and proportionate adjustment, in the discretion of the
Option Committee, shall be made in the number and kind of shares subject to the
Plan, and in the number, kind, and per share exercise price of shares subject to
unexercised options or portions thereof granted prior to any such change. In the
event of any such adjustment in an outstanding option, the Optionee thereafter
shall have the right to purchase the number of shares under such option at the
per share price, as so adjusted, which the Optionee could purchase at the total
purchase price applicable to the option immediately prior to such adjustment.
(b) Adjustments under this Section 9 shall be determined by the Option
Committee and such determinations shall be conclusive. The Option Committee
shall have the discretion and power in any such event to determine and to make
effective provision for acceleration of the time or times at which any option or
portion thereof shall become exercisable. No fractional shares of Common Stock
shall be issued under the Plan on account of any adjustment specified above.
12
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10. EFFECT OF CERTAIN TRANSACTIONS
In the case of (i) the dissolution or liquidation of the Company, (ii) a
reorganization, merger or consolidation in which the Company is acquired by
another entity or in which the Company is not the surviving corporation, or
(iii) the sale of all or substantially all of the property of the Company to
another corporation, the Plan and the options issued hereunder shall terminate,
unless provision is made in connection with such transaction for the assumption
of options theretofore granted, or the substitution for such options of new
options of the successor corporation or parent thereof, with appropriate
adjustment as to the number and kind of shares and the per share exercise
prices, as provided in Section 9. In the event of such termination, all
outstanding options shall be exercisable in full for at least 15 days prior to
the date of such termination whether or not otherwise exercisable during such
period.
11. RELEASE OF FINANCIAL INFORMATION
A copy of the Company's annual report to stockholders shall be delivered to
each Optionee at the time such report is distributed to the Company's
stockholders. Upon request, the Company shall furnish to each Optionee a copy of
its most recent annual report and each quarterly report and current report filed
under the 1934 Act since the end of the Company's prior fiscal year.
12. AMENDMENT OF THE PLAN
The Board of Directors of the Company may amend and make such changes in
and additions to the Plan as it may deem proper and in the best interest of the
Company, subject to stockholder approval, if required by law; provided, however,
that no such action shall affect or impair any options theretofore granted under
the Plan.
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13. NONEXCLUSIVITY OF THE PLAN
Neither the adoption of the Plan by the Board of Directors nor the
submission of the Plan to the stockholders of the Company for approval shall be
construed as creating any limitations on the power of the Board of Directors to
adopt such other incentive arrangements as it may deem desirable, including,
without limitation, the granting of stock options otherwise than under the Plan,
and such arrangements may be either applicable generally or only in specific
cases. The Plan shall not be deemed to confer upon any employee of the Company
or any Subsidiary any right to continued employment.
14. GOVERNMENT AND OTHER REGULATIONS; GOVERNING LAW
(a) The obligation of the Company to sell and deliver shares of Common
Stock with respect to options granted under the Plan shall be subject to all
applicable laws, rules and regulations, including all applicable federal and
state securities laws, and the obtaining of all such approvals by governmental
agencies as may be deemed necessary or appropriate by the Option Committee.
(b) The Plan shall be governed by Massachusetts law, except to the extent
that such law is preempted by federal law.
(c) Transactions under the Plan are intended to comply with Rule 16b-3
under the 1934 Act or any successor rule. Any provision of the Plan inconsistent
with such Rule shall be inoperative and shall not affect the validity of the
Plan or the exemption from Section 16(b) of the 1934 Act provided thereunder.
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15. EFFECTIVE DATE OF PLAN; STOCKHOLDER APPROVAL
The Plan became effective in 1993 upon the approval of the stockholders in
accordance with applicable laws and regulations. No option may be granted under
the Plan after the tenth anniversary of the effective date of the Plan.
The restatement of this Plan shall become effective as of July 29, 1997,
provided, however, that all references to Medford Bancorp, Inc., the Company,
shall become effective only upon the final approval of Medford Bancorp, Inc. as
the holding company of Medford Savings Bank.
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Exhibit 5.1
GOODWIN, PROCTER & HOAR LLP
COUNSELLORS AT LAW
EXCHANGE PLACE
BOSTON, MASSACHUSETTS 02109-2881
TELEPHONE (617) 570-1000
TELECOPIER (617) 523-1231
November 25, 1997
Medford Bancorp, Inc.
29 High Street
Medford, MA 02155
Re: Registration Statement on Form S-8
----------------------------------
Ladies and Gentlemen:
This opinion is rendered to you in connection with the preparation of the
Registration Statement on Form S-8 (the "Registration Statement") under the
Securities Act of 1933, as amended (the "Securities Act") and the prospectus
related thereto (the "Prospectus"), relating to an aggregate of 455,676 shares
(the "Shares") of the common stock, $.50 par value per share (the "Common
Stock") of Medford Bancorp, Inc. (the "Company") consisting of (i) 200,000
shares issuable upon exercise of options underlying the Company's Stock Option
Plan and (ii) 255,676 shares issuable upon exercise of options underlying the
Medford Savings Bank 1986 Stock Option Plan, which will be assumed and adopted
by the Company as the stock option plan of the Company.
We have acted as counsel to the Company in connection with the preparation
of the Registration Statement. For purposes of this opinion, we have examined
the Articles of Organization and By-laws of the Company; such records of the
corporate proceedings of the Company as we have deemed material; the
Registration Statement and all exhibits thereto; the Company's Stock Option
Plan; the Medford Savings Bank 1986 Stock Option Plan; and such other documents
as we have deemed necessary to enable us to render this opinion.
We are attorneys admitted to practice in The Commonwealth of Massachusetts.
We express no opinion concerning the laws of any jurisdiction other than the
laws of the United States of America and The Commonwealth of Massachusetts.
In rendering the opinions expressed herein, we assume that all steps
necessary to comply with the registration requirements of the Securities Act and
with applicable requirements of state law regulating the sale of securities will
be duly taken.
<PAGE> 2
GOODWIN, PROCTER & HOAR LLP
Medford Bancorp, Inc.
November 25, 1997
Page 2
Based upon and subject to the foregoing, and having regard for such legal
considerations as we have deemed relevant, it is our opinion that the Shares
have been authorized for issuance and, when issued and delivered against payment
of the consideration therefor as set forth in the Prospectus, will be validly
issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to our name in the Registration
Statement and the Prospectus contained therein.
Very truly yours,
/s/ Goodwin, Procter & Hoar LLP
GOODWIN, PROCTER & HOAR LLP
<PAGE> 1
Exhibit 23.2
[WOLF AND COMPANY, P.C. LOGO] One International Place
Boston, Massachusetts 02110-9801
617/439-9700 * fax 617/439-0476
Certified Public Accountants
and Business Consultants 1441 Main Street
Springfield, Massachusetts 01103
413/747-9042 * fax 413/733-1990
http://www.wolfandco.com
- --------------------------------------------------------------------------------
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement on
Form S-8 of Medford Bancorp, Inc. (Proposed Holding Company for Medford Savings
Bank) of our report dated January 24, 1997 appearing in the Annual Report on
Form F-2 for the year ended December 31, 1996 and to the use of our name and the
statements with respect to us, as appearing under the heading "Experts" in the
Prospectus.
/s/ Wolf & Company, P.C.
WOLF & COMPANY, P.C.
Boston, Massachusetts
November 25, 1997
Member of Associated Regional Accounting Firms and TGI International
