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As filed with the Securities and Exchange Commission on April 29, 1998
Registration No. 333-41857
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
--------------------------
HERITAGE BANCORP, INC.
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 6035 58-2356162
(State of Incorporation) (Primary Standard Classification (IRS Employer
Code Number) Identification No.)
201 W. MAIN STREET
LAURENS, SOUTH CAROLINA 29360
(864) 984-4581
(Address, including zip code, and telephone number including area code, of
registrant's principal executive offices)
HERITAGE BANCORP, INC. 1998 STOCK OPTION PLAN
HERITAGE BANCORP, INC. MANAGEMENT RECOGNITION AND
DEVELOPMENT PLAN
(FULL TITLE OF THE PLANS)
COPIES TO:
J. EDWARD WELLS ERIC S. KRACOV, ESQ.
PRESIDENT AND CHIEF EXECUTIVE OFFICER MULDOON, MURPHY & FAUCETTE LLP
HERITAGE BANCORP, INC. 5101 WISCONSIN AVENUE, N.W.
201 W. MAIN STREET WASHINGTON, D.C. 20016
LAURENS, SOUTH CAROLINA 29360 (202) 362-0840
(864) 984-4581
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE,
INCLUDING AREA CODE)
<TABLE>
<CAPTION>
==========================================================================================================
CALCULATION OF REGISTRATION FEE
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TITLE OF CLASS OF ESTIMATED
SECURITIES TO BE PROPOSED AMOUNT PROPOSED PURCHASE AGGREGATE AMOUNT OF
REGISTERED TO BE REGISTERED 1 AMOUNT PER SHARE OFFERING PRICE 2 REGISTRATION FEE
- ----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
COMMON STOCK, $.01 PAR VALUE 648,025 SHARES 3 $19.31 4 $12,513,363 $3,479
==========================================================================================================
</TABLE>
1 TOGETHER WITH AN INDETERMINATE NUMBER OF ADDITIONAL SHARES WHICH MAY BE
NECESSARY TO ADJUST THE NUMBER OF SHARES RESERVED FOR ISSUANCE PURSUANT TO
THE HERITAGE BANCORP, INC. 1998 OPTION PLAN AND MANAGEMENT RECOGNITION AND
DEVELOPMENT PLAN (THE "1998 PLANS") AS THE RESULT OF A STOCK SPLIT, STOCK
DIVIDEND OR SIMILAR ADJUSTMENT OF THE OUTSTANDING COMMON STOCK OF HERITAGE
BANCORP, INC. PURSUANT TO 17 C.F.R. SECTION 230.416(A).
2 ESTIMATED SOLELY FOR PURPOSES OF CALCULATING THE REGISTRATION FEE.
3 PURSUANT TO 17 C.F.R. SECTION 230.4457(H)(1), REPRESENTS THE TOTAL NUMBER OF
SHARES SUBJECT TO OPTIONS OR RESTRICTED STOCK AWARDS UNDER THE 1998 PLANS
PRIOR TO ANY ADJUSTMENT AS PERMITTED UNDER THE 1998 PLANS.
4 CALCULATED USING THE MARKET VALUE OF THE COMMON STOCK ON APRIL 26, 1999 AS
DETERMINED BY THE MEAN BETWEEN THE CLOSING HIGH BID AND LOW ASKED QUOTATION
ON THE NASDAQ NATIONAL MARKET (AS REPORTED IN THE WALL STREET JOURNAL) FOR
648,025 SHARES FOR WHICH OPTIONS AND STOCK AWARDS HAVE NOT YET BEEN GRANTED
UNDER THE 1998 PLANS.
THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE IMMEDIATELY UPON FILING IN
ACCORDANCE WITH SECTION 8(A) OF THE SECURITIES ACT OF 1933, AS AMENDED, (THE
"SECURITIES ACT") AND 17 C.F.R. SECTION 230.462.
NUMBER OF PAGES 14
EXHIBIT INDEX BEGINS ON PAGE 6
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PART I INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEMS 1 & 2. The documents containing the information for the 1998 Plans
required by Part I of the registration statement will be sent or given to the
participants in the 1998 Plan as specified by Rule 428(b)(1). Such documents are
not filed with the Securities and Exchange Commission (the "SEC") either as a
part of this registration statement or as prospectuses or prospectus supplements
pursuant to Rule 424 in reliance on Rule 428.
PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. Incorporation of Certain Documents by Reference
The following documents filed or to be filed with the SEC are
incorporated by reference in this registration statement:
(a) Heritage Bancorp, Inc.'s (the "Company" or the "Registrant") Annual
Report on Form 10-K for the fiscal year ended September 30, 1998, which includes
the consolidated statements of financial condition of the Company and
subsidiaries as of September 30, 1998 and 1997, and the related consolidated
statements of operations, changes in stockholders' equity and cash flows for
each of the years in the three-year period ended September 30, 1998, together
with the related notes and the report of Deloitte & Touche LLP, independent
auditors dated November 6, 1998 filed with the SEC on December 29, 1998 (File
No. 1-13823).
(b) The Form 10-Q report filed by the Registrant for the fiscal quarter
ended December 31, 1998 (File No. 1-13823), filed with the SEC on February 11,
1999.
(c) The description of Registrant's common stock contained in
Registrant's Form 8-A (File No. 1-13823), as filed with the SEC, pursuant to
Section 12(b) of the Securities Exchange Act of 1934 (the "Exchange Act") and
Rule 12b-15 promulgated thereunder, on January 23, 1998 and declared effective
on January 23, 1998, as incorporated by reference from the Registrant's
Registration Statement on Form S-1 (SEC No. 333-41857) as amended and declared
effective on [January 23, 1998].
(d) All documents filed by the Registrant pursuant to Section 13(a) and
(c), 14 or 15(d) of the Exchange Act after the date hereof and prior to the
filing of a post-effective amendment which deregisters all securities then
remaining unsold.
ANY STATEMENT CONTAINED IN THIS REGISTRATION STATEMENT, OR IN A DOCUMENT
INCORPORATED OR DEEMED TO BE INCORPORATED BY REFERENCE HEREIN, SHALL BE DEEMED
TO BE MODIFIED OR SUPERSEDED FOR PURPOSES OF THIS REGISTRATION STATEMENT TO THE
EXTENT THAT A STATEMENT CONTAINED HEREIN, OR IN ANY OTHER SUBSEQUENTLY FILED
DOCUMENT WHICH ALSO IS INCORPORATED OR DEEMED TO BE INCORPORATED BY REFERENCE
HEREIN, MODIFIES OR SUPERSEDES SUCH STATEMENT. ANY SUCH STATEMENT SO MODIFIED OR
SUPERSEDED SHALL NOT BE DEEMED, EXCEPT AS SO MODIFIED OR SUPERSEDED, TO
CONSTITUTE A PART OF THIS REGISTRATION STATEMENT.
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ITEM 4. DESCRIPTION OF SECURITIES
The common stock to be offered pursuant to the Plan has been registered
pursuant to Section 12 of the Exchange Act. Accordingly, a description of the
common stock is not required herein.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of the common stock offered hereby has been passed upon by
the firm of Muldoon, Murphy & Faucette LLP, Washington, D.C. for the Registrant.
The financial statements incorporated in this Registration Statement by
reference from the Company's Annual Report on Form 10-K for the year ended
September 30, 1998 have been audited by Deloitte & Touche, independent auditors,
as stated in their reports, which is incorporated herein by reference, and have
been so incorporated in reliance upon the report of such firm given upon their
authority as experts in accounting and auditing.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Directors and officers of the Registrant are indemnified and held harmless
against liability to the fullest extent permissible by the General Corporation
Law of Delaware as it currently exists or as it may be amended provided any such
amendment provides broader indemnification provisions than currently exists.
In accordance with the General Corporation Law of the State of Delaware
(being Chapter 1 of Title 8 of the Delaware Code), Articles 16 and 17 of the
Registrant's Certificate of Incorporation provide as follows:
ARTICLE XVI
INDEMNIFICATION
A. Persons. The Corporation shall indemnify, to the extent provided in
paragraphs B, D or F:
1. any person who is or was a director or officer of the Corporation;
and
2. any person who serves or served at the Corporation's request as a
director, officer, employee, agent, partner or trustee of another corporation,
partnership, joint venture, trust or other enterprise.
B. Extent -- Derivative Suits. In case of a threatened, pending or
-----------------------------
completed action or suit by or in the right of the Corporation against a person
named in paragraph A by reason of his holding
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a position named in paragraph A, the Corporation shall indemnify such person if
such person satisfies the standard in paragraph C, for expenses (including
attorneys' fees but excluding amounts paid in settlement) actually and
reasonably incurred by such person in connection with the defense or settlement
of the action or suit.
C. Standard -- Derivative Suits. In case of a threatened, pending or
------------------------------
completed action or suit by or in the right of the Corporation, a person named
in paragraph A shall be indemnified only if:
1. such person is successful on the merits or otherwise; or
2. such person acted in good faith in the transaction which is the
subject of the suit or action, and in a manner such person reasonably believed
to be in, or not opposed to, the best interest of the Corporation, including,
but not limited to, the taking of any and all actions in connection with the
Corporation's response to any tender offer or any offer or proposal of another
party to engage in a Business Combination (as defined in Article XIV) not
approved by the board of directors. However, such person shall not be
indemnified in respect of any claim, issue or matter as to which such person has
been adjudged liable to the Corporation unless (and only to the extent that) the
court in which the suit was brought shall determine, upon application, that
despite the adjudication but in view of all the circumstances, such person is
fairly and reasonably entitled to indemnity for such expenses as the court shall
deem proper.
D. Extent -- Nonderivative Suits. In case of a threatened, pending or
-------------------------------
completed suit, action or proceeding (whether civil, criminal, administrative or
investigative), other than a suit by or in the right of the Corporation,
together hereafter referred to as a nonderivative suit, against a person named
in paragraph A by reason of his holding a position named in paragraph A, the
Corporation shall indemnify such person if such person satisfies the standard in
paragraph E, for amounts actually and reasonably incurred by such person in
connection with the defense or settlement of the nonderivative suit, including,
but not limited to (i) expenses (including attorneys' fees), (ii) amounts paid
in settlement, (iii) judgments, and (iv) fines.
E. Standard -- Nonderivative Suits. In case of a nonderivative suit, a
---------------------------------
person named in paragraph A shall be indemnified only if:
1. such person is successful on the merits or otherwise; or
2. such person acted in good faith in the transaction which is the
subject of the nonderivative suit and in a manner such person reasonably
believed to be in, or not opposed to, the best interests of the Corporation,
including, but not limited to, the taking of any and all actions in connection
with the Corporation's response to any tender offer or any offer or proposal of
another party to engage in a Business Combination (as defined in Article XIV of
this Certificate) not approved by the board of directors and, with respect to
any criminal action or proceeding, such person had no reasonable cause to
believe his conduct was unlawful. The termination of a nonderivative suit by
judgment, order, settlement, conviction, or upon a plea of nolo contendere or
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4
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its equivalent shall not, in itself, create a presumption that the person failed
to satisfy the standard of this paragraph E.2.
F. Determination That Standard Has Been Met. A determination that the
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standard of paragraph C or E has been satisfied may be made by a court or,
except as stated in paragraph C.2 (second sentence), the determination may be
made by:
1. a majority vote of the directors of the Corporation who are not
parties to the action, suit or proceeding, even though less than a quorum; or
2. independent legal counsel (appointed by a majority of the
disinterested directors of the Corporation, whether or not a quorum) in a
written opinion; or
3. the stockholders of the Corporation.
G. Proration. Anyone making a determination under paragraph F may
---------
determine that a person has met the standard as to some matters but not as to
others, and may reasonably prorate amounts to be indemnified.
H. Advance Payment. The Corporation may pay in advance any expenses
----------------
(including attorneys' fees) which may become subject to indemnification under
paragraphs A through G if (i) the board of directors authorizes the specific
payment and (ii) the person receiving the payment undertakes in writing to repay
the same if it is ultimately determined that such person is not entitled to
indemnification by the Corporation under paragraphs A through G.
I. Nonexclusive. The indemnification and advance of expenses provided by
------------
paragraphs A through H shall not be exclusive of any other rights to which a
person may be entitled by law, bylaw, agreement, vote of stockholders or
disinterested directors, or otherwise.
J. Continuation. The indemnification provided by this Article XVI shall be
------------
deemed to be a contract between the Corporation and the persons entitled to
indemnification thereunder, and any repeal or modification of this Article XVI
shall not affect any rights or obligations then existing with respect to any
state of facts then or theretofore existing or any action, suit or proceeding
theretofore or thereafter brought based in whole or in part upon any such state
of facts. The indemnification and advance payment provided by paragraphs A
through H shall continue as to a person who has ceased to hold a position named
in paragraph A and shall inure to such person's heirs, executors and
administrators.
K. Insurance. The Corporation may purchase and maintain insurance on
---------
behalf of any director, officer, employee or agent of the Corporation or
subsidiary or affiliate or another corporation, partnership, joint venture,
trust or other enterprise, against any liability incurred by such person in any
such position, or arising out of such person's status as such, whether or not
the
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Corporation would have power to indemnify such person against such liability
under paragraphs A through H.
L. Savings Clause. If this Article XVI or any portion hereof shall be
---------------
invalidated on any ground by any court of competent jurisdiction, then the
Corporation shall nevertheless indemnify each director, officer, employee, and
agent of the Corporation as to costs, charges, and expenses (including
attorneys' fees), judgments, fines, and amounts paid in settlement with respect
to any action, suit, or proceeding, whether civil, criminal, administrative, or
investigative, including an action by or in the right of the Corporation to the
full extent permitted by any applicable portion of this Article XVI that shall
not have been invalidated and to the full extent permitted by applicable law.
ARTICLE XVII
ELIMINATION OF DIRECTORS' LIABILITY
A director of the Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except: (i) for any breach of the director's duty of loyalty
to the Corporation or its stockholders, (ii) for acts or omissions not made in
good faith or which involve intentional misconduct or a knowing violation of
law, (iii) under Section 174 of the General Corporation Law of the State of
Delaware, or (iv) for any transaction from which a director derived an improper
personal benefit. If the General Corporation Law of the State of Delaware is
amended after the date of filing of this Certificate to further eliminate or
limit the personal liability of directors, then the liability of a director of
the Corporation shall be eliminated or limited to the fullest extent permitted
by the General Corporation Law of the State of Delaware, as so amended.
Any repeal or modification of the foregoing paragraph by the stockholders
of the Corporation shall not adversely affect any right or protection of a
director of the Corporation existing at the time of such repeal or modification.
6
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ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following exhibits are filed with or incorporated by reference into
this registration statement on Form S-8 (numbering corresponds generally to the
Exhibit Table in Item 601 of Regulation S-K).
3.1 Certificate of Incorporation of Heritage Bancorp, Inc.1
3.2 Bylaws of Heritage Bancorp, Inc.1
4.1 Heritage Bancorp, Inc. 1998 Stock Option Plan
4.2 Heritage Bancorp, Inc. Management Recognition and Development
Plan
5.0 Opinion of Muldoon, Murphy & Faucette LLP as to the legality of
the Common Stock registered hereby.
23.1 Consent of Muldoon, Murphy & Faucette LLP (contained in the
opinion included as Exhibit 5)
23.2 Consent of Deloitte & Touche LLP
24 Powers of Attorney (contained on the signature pages).
- -----------------------
1 Incorporated herein by reference from Exhibits 3.1 and 3.2,
respectively, contained in the Registration Statement on Form S-1 (SEC
No. 333-41857), filed with the SEC on January 23, 1998.
ITEM 9. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(1)To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement unless the
information required by (i) and (ii) is contained in periodic reports
filed by the Registrant pursuant to Section 13 or 15(d) of the Exchange
Act that are incorporated by reference into this registration
statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the
information set forth in the registration statement; and
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(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.
(4)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 15(d) of the Exchange Act that is incorporated by reference in
the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to trustees, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the SEC such indemnification
is against public policy as expressed in such Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a trustee, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
trustee, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in such Act will be governed by the final adjudication of
such issue.
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SIGNATURES
The Registrant.
Pursuant to the requirements of the Securities Act of 1933, as amended,
Heritage Bancorp, Inc. certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Laurens, State of South Carolina, on April
28, 1999.
Heritage Bancorp, Inc.
By:/s/ J. Edward Wells
---------------------------------------
J. Edward Wells
President and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENT, that each person whose signature appears
below (other than Mr. Wells) constitutes and appoints J. Edward Wells and Mr.
Wells hereby constitutes and appoints Edwin I. Shealy, as the true and lawful
attorney-in-fact and agent with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities to sign any
or all amendments to the Form S-8 registration statement, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
U.S. Securities and Exchange Commission, respectively, granting unto said
attorney-in-fact and agent full power and authority to do and perform each and
every act and things requisite and necessary to be done as fully to all intents
and purposes as he might or could do in person, hereby ratifying and confirming
all that said attorney-in-fact and agent or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
Name Title Date
---- ----- ----
/s/ J. Edward Wells President and April 28, 1999
- -------------------------- Chief Executive Officer
J. Edward Wells
/s/ Edwin I. Shealy Chief Financial Officer April 28, 1999
- -------------------------- (Principal Financial and
Edwin I. Shealy Accounting Officer)
/s/ Aaron H. King Director April 28, 1999
- --------------------------
Aaron H. King
<PAGE> 10
/s/ J. Riley Bailer Director April 28, 1999
- --------------------------
J. Riley Bailer
/s/ John H. Lake Director April 28, 1999
- --------------------------
John H. Lake
/s/ John C. Owings, II Director April 28, 1999
- --------------------------
John C. Owings, II
<PAGE> 1
EXHIBIT 4.1
HERITAGE BANCORP, INC.
1998 STOCK OPTION PLAN
<PAGE> 2
HERITAGE BANCORP, INC.
1998 STOCK OPTION PLAN
SECTION 1. PURPOSE
The Heritage Bancorp, Inc. 1998 Stock Option Plan (the "Plan") is hereby
established to foster and promote the long-term success of Heritage Bancorp,
Inc. and its shareholders by providing directors, officers and employees of the
Corporation and its subsidiaries with an equity interest in the Corporation. The
Plan will assist the Corporation in attracting and retaining the highest quality
of experienced persons as directors, officers and employees and in aligning the
interests of such persons more closely with the interests of the Corporation's
shareholders by encouraging such parties to maintain an equity interest in the
Corporation.
SECTION 2. DEFINITIONS
For purposes of this Plan, the capitalized terms set forth below shall
have the following meanings:
BOARD means the Board of Directors of the Corporation.
CHANGE IN CONTROL shall mean an event deemed to occur if and when (a) an
offeror other than the Corporation purchases shares of the stock of the
Corporation pursuant to a tender or exchange offer for such shares, (b) any
person (as such term is used in Sections 13(d) and 14(d)(2) of the Exchange Act)
is or becomes the beneficial owner, directly or indirectly, of securities of the
Corporation representing twenty-five percent (25%) or more of the combined
voting power of the Corporation's then outstanding securities, (c) the
membership of the board of directors of the Corporation changes as the result of
a contested election, such that individuals who were directors at the beginning
of any twenty-four (24) month period (whether commencing before or after the
date of adoption of this Plan) do not constitute a majority of the Board at the
end of such period, or (d) shareholders of the Corporation approve a merger,
consolidation, sale or disposition of all or substantially all of the
Corporation's assets, or a plan of partial or complete liquidation. If any of
the events enumerated in clauses (a) - (d) occur, the Board shall determine the
effective date of the change in control resulting therefrom, for purposes of the
Plan.
CODE means the Internal Revenue Code of 1986, as amended from time to
time, and the regulations promulgated thereunder.
CORPORATION means Heritage Bancorp, Inc., a Delaware corporation.
DIRECTOR shall mean a director of the Corporation who is not also an
employee of the Corporation or its subsidiaries.
DISABILITY means any physical or mental injury or disease of a permanent
nature which renders a Participant incapable of meeting the requirements of the
employment or service performed by such Participant immediately prior to the
commencement of such disability. The determination of whether a Participant is
disabled shall be made by the Board in its sole and absolute discretion.
EXCHANGE ACT means the Securities Exchange Act of 1934, as amended from
time to time, and the rules and regulations promulgated thereunder.
FAIR MARKET VALUE shall be determined as follows:
(a) If the Stock is traded or quoted on the Nasdaq Stock Market or other
national securities exchange on any date, then the Fair Market Value shall be
the average of the highest and lowest selling price on such exchange on such
date or, if there were no sales on such date, then on the next prior business
day on which there was a sale.
<PAGE> 3
(b) If the Stock is not traded or quoted on the Nasdaq Stock Market or
other national securities exchange, then the Fair Market Value shall be a value
determined by the Board in good faith on such basis as it deems appropriate.
INCENTIVE STOCK OPTION means an option to purchase shares of Stock granted
to a Participant under the Plan which is intended to meet the requirements of
Section 422 of the Code.
NON-QUALIFIED STOCK OPTION means an option to purchase shares of Stock
granted to a Participant under the Plan which is not intended to be an Incentive
Stock Option.
OPTION means an Incentive Stock Option or a Non-Qualified Stock Option.
PARTICIPANT means a Director or employee of the Corporation or its
subsidiaries selected by the Board to receive an Option under the Plan.
PLAN means this Heritage Bancorp, Inc. 1998 Stock Option Plan.
STOCK means the common stock, $0.01 par value, of the Corporation.
TERMINATION FOR CAUSE shall mean termination because of a Participant's
personal dishonesty, incompetence, willful misconduct, breach of fiduciary duty
involving personal profit, intentional failure to perform stated duties, willful
violation of any law, rule or regulation (other than traffic violations or
similar offenses) or material breach of any provision of any employment
agreement between the Corporation and/or any subsidiary of the Corporation and a
Participant.
SECTION 3. ADMINISTRATION
(a) The Plan shall be administered by the Board. Among other things, the
Board shall have authority, subject to the terms of the Plan, to grant Options,
to determine the individuals to whom and the time or times at which Options may
be granted, to determine whether such Options are to be Incentive Stock Options
or Non-Qualified Stock Options (subject to the requirements of the Code), to
determine the terms and conditions of any Option granted hereunder, and the
exercise price thereof.
(b) Subject to the other provisions of the Plan, the Board shall have
authority to adopt, amend, alter and repeal such administrative rules,
guidelines and practices governing the operation of the Plan as it shall from
time to time consider advisable, to interpret the provisions of the Plan and any
Option and to decide all disputes arising in connection with the Plan. The Board
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 appropriate to carry the Plan into effect, in its sole and absolute
discretion. The Board's decision and interpretations shall be final and binding.
Any action of the Board with respect to the administration of the Plan shall be
taken pursuant to a majority vote or by the unanimous written consent of its
members.
SECTION 4. ELIGIBILITY AND PARTICIPATION.
Officers and employees of the Corporation and its subsidiaries and
Directors shall be eligible to participate in the Plan. The Participants under
the Plan shall be selected from time to time by the Board, in its sole
discretion, from among those eligible, and the Board shall determine, in its
sole discretion, the numbers of shares to be covered by the Option or Options
granted to each Participant. Options intended to qualify as Incentive Stock
Options shall be granted only to persons who are eligible to receive such
options under Section 422 of the Code.
SECTION 5. SHARES OF STOCK AVAILABLE FOR OPTIONS
<PAGE> 4
(a) The maximum number of shares of Stock which may be issued and
purchased pursuant to Options granted under the Plan is 462,875, subject to the
adjustments as provided in Section 5 and Section 9, to the extent applicable. If
an Option granted under this Plan expires or terminates before exercise or is
forfeited for any reason, the shares of Stock subject to such Option, to the
extent of such expiration, termination or forfeiture, shall again be available
for subsequent Option grants under Plan. Shares of Stock issued under the Plan
may consist in whole or in part of authorized but unissued shares or treasury
shares.
(b) In the event that the Board determines, in its sole discretion, that
any stock dividend, stock split, reverse stock split or combination,
extraordinary cash dividend, creation of a class of equity securities,
recapitalization, reclassification, reorganization, merger, consolidation,
split-up, spin-off, combination, exchange of shares, or other similar
transaction affects the Stock such that an adjustment is required in order to
preserve the benefits or potential benefits intended to be granted or made
available under the Plan to Participants, the Board shall have the right to
proportionately and appropriately adjust equitably any or all of (i) the maximum
number and kind of shares of Stock in respect of which Options may be granted
under the Plan to Participants, (ii) the number and kind of shares of Stock
subject to outstanding Options held by Participants, and (iii) the exercise
price with respect to any Options held by Participants, without changing the
aggregate purchase price as to which such Options remain exercisable, provided
that no adjustment shall be made pursuant to this Section if such adjustment
would cause the Plan to fail to comply with Section 422 of the Code with regard
to any Incentive Stock Options granted hereunder. No fractional Shares shall be
issued on account of any such adjustment.
(c) Any adjustments under this Section will be made by the Board, whose
determination as to what adjustments, if any, will be made and the extent
thereof will be final, binding and conclusive.
SECTION 6. NON-QUALIFIED STOCK OPTIONS
The Board may, from time to time, grant Non-Qualified Stock Options to
Participants upon such terms and conditions as the Board may determine.
Non-Qualified Stock Options granted under this Plan are subject to the following
terms and conditions:
(a) PRICE. The purchase price per share of Stock deliverable upon the
exercise of each Non-Qualified Stock Option shall be determined by the Board on
the date the option is granted. Such purchase price shall not be less than one
hundred percent (100%) of the Fair Market Value of the Stock on the date of
grant. Shares may be purchased only upon full payment of the purchase price.
Payment of the purchase price may be made, in whole or in part, through the
surrender of shares of the Stock at the Fair Market Value of such shares on the
date of surrender or through a "cashless exercise" involving a stock brokerage
firm.
(b) TERMS OF OPTIONS. The term during which each Non-Qualified Stock
Option may be exercised shall be determined by the Board, but in no event shall
a Non-Qualified Stock Option be exercisable in whole or in part more than ten
(10) years from the date of grant. Except as provided herein, no Non-Qualified
Stock Option granted under this Plan is transferable except by will or the laws
of descent and distribution. The Board shall have discretionary authority to
permit the transfer of any Non-Qualified Stock Option to members of a
Participant's immediate family, including trusts for the benefit of such family
members and partnerships in which such family members are the only partners;
provided, however, that a transferred Non-Qualified Stock Option may be
exercised by the transferee on any date only to the extent that the Participant
would have been entitled to exercise the Non-Qualified Stock Option on such date
had the Non-Qualified Stock Option not been transferred. Any transferred
Non-Qualified Stock Option shall remain subject to the terms and conditions of
the Participant's stock option agreement.
(c) TERMINATION OF SERVICE. Unless otherwise determined by the Board, upon
the termination of a Participant's employment (or, in the case of a Director,
service as a member of the Board) for any reason other than Disability, death or
Termination for Cause, the Participant's Non-Qualified Stock Options shall be
exercisable only as to those shares which were immediately exercisable by the
Participant at the date of termination and only for a period of one (1) year
following termination. Notwithstanding any provision set forth herein nor
contained in any Agreement
<PAGE> 5
relating to the award of an Option, in the event of Termination for Cause, all
rights under the Participant's Non-Qualified Stock Options shall expire upon
termination. In the event of death or termination as a result of Disability of
any Participant, all Non-Qualified Stock Options held by the Participant,
whether or not exercisable at such time, shall be exercisable by the Participant
or his legal representatives or beneficiaries of the Participant for two (2)
years or such longer period as determined by the Board following the date of the
Participant's death or termination of service due to Disability, provided that
in no event shall the period extend beyond the expiration of the Non-Qualified
Stock Option term.
SECTION 7. INCENTIVE STOCK OPTIONS
The Board may, from time to time, grant Incentive Stock Options to
eligible employees. Incentive Stock Options granted pursuant to the Plan shall
be subject to the following terms and conditions:
(a) PRICE. The purchase price per share of Stock deliverable upon the
exercise of each Incentive Stock Option shall be not less than one hundred
percent (100%) of the Fair Market Value of the Stock on the date of grant.
However, if a Participant owns (or, under Section 422(d) of the Code, is deemed
to own) stock possessing more than ten percent (10%) of the total combined
voting power of all classes of Stock, the purchase price per share of Stock
deliverable upon the exercise of each Incentive Stock Option shall not be less
than one hundred ten percent (110%) of the Fair Market Value of the Stock on the
date of grant. Shares may be purchased only upon payment of the full purchase
price. Payment of the purchase price may be made, in whole or in part, through
the surrender of shares of the Stock at the Fair Market Value of such shares on
the date of surrender or through a "cashless exercise" involving a stock
brokerage firm.
(b) AMOUNTS OF OPTIONS. Subject to Sections 4(b) and (c), Incentive Stock
Options may be granted to any eligible employee in such amounts as determined by
the Board. In the case of an option intended to qualify as an Incentive Stock
Option, the aggregate Fair Market Value (determined as of the time the option is
granted) of the Stock with respect to which Incentive Stock Options granted are
exercisable for the first time by the Participant during any calendar year shall
not exceed $100,000. The provisions of this Section 7(b) shall be construed and
applied in accordance with Section 422(d) of the Code and the regulations, if
any, promulgated thereunder. To the extent an award is in excess of such limit,
it shall be deemed a Non-Qualified Stock Option. The Board shall have discretion
to redesignate options granted as Incentive Stock Options as Non-Qualified Stock
Options.
(c) TERMS OF OPTIONS. The term during which each Incentive Stock Option
may be exercised shall be determined by the Board, but in no event shall an
Incentive Stock Option be exercisable in whole or in part more than ten (10)
years from the date of grant. If at the time an Incentive Stock Option is
granted to an employee, the employee owns Stock representing more than ten
percent (10%) of the total combined voting power of the Corporation (or, under
Section 422(d) of the Code, is deemed to own Stock representing more than ten
percent (10%) of the total combined voting power of all such classes of Stock,
by reason of the ownership of such classes of Stock, directly or indirectly, by
or for any brother, sister, spouse, ancestor or lineal descendent of such
employee, or by or for any corporation, partnership, estate or trust of which
such employee is a shareholder, partner or beneficiary), the Incentive Stock
Option granted to such employee shall not be exercisable after the expiration of
five (5) years from the date of grant. No Incentive Stock Option granted under
this Plan is transferable except by will or the laws of descent and
distribution.
(d) TERMINATION OF EMPLOYMENT. Upon the termination of a Participant's
service for any reason other than Disability, death or Termination for Cause,
the Participant's Incentive Stock Options which are then exercisable at the date
of termination may only be exercised by the Participant for a period of three
(3) months following termination, after which time they shall be void.
Notwithstanding any provisions set forth herein nor contained in any Agreement
relating to an award of an Option, in the event of Termination for Cause, all
rights under the Participant's Incentive Stock Options shall expire immediately
upon termination.
Unless otherwise determined by the Board, in the event of death or
termination of service as a result of Disability of any Participant, all
Incentive Stock Options held by such Participant, whether or not exercisable at
such
<PAGE> 6
time, shall be exercisable by the Participant or the Participant's legal
representatives or the beneficiaries of the Participant for one (1) year
following the date of the Participant's death or termination of employment as a
result of Disability. In no event shall the exercise period extend beyond the
expiration of the Incentive Stock Option term.
(f) COMPLIANCE WITH CODE. The options granted under this Section 7 of the
Plan are intended to qualify as incentive stock options within the meaning of
Section 422 of the Code, but the Corporation makes no warranty as to the
qualification of any option as an incentive stock option within the meaning of
Section 422 of the Code. A Participant shall notify the Board in writing in the
event that he disposes of Stock acquired upon exercise of an Incentive Stock
Option within the two-year period following the date the Incentive Stock Option
was granted or within the one-year period following the date he received Stock
upon the exercise of an Incentive Stock Option and shall comply with any other
requirements imposed by the Corporation in order to enable the Corporation to
secure the related income tax deduction to which it will be entitled in such
event under the Code.
SECTION 8. EXTENSION
The Board may, in its sole discretion, extend the dates during which all
or any particular Option or Options granted under the Plan may be exercised;
provided, however, that no such extension shall be permitted without the
Participant's consent if it would cause Incentive Stock Options issued under the
Plan to fail to comply with Section 422 of the Code.
SECTION 9. GENERAL PROVISIONS APPLICABLE TO OPTIONS
(a) Each Option under the Plan shall be evidenced by a writing delivered
to the Participant specifying the terms and conditions thereof and containing
such other terms and conditions not inconsistent with the provisions of the Plan
as the Board considers necessary or advisable to achieve the purposes of the
Plan or comply with applicable tax and regulatory laws and accounting
principles.
(b) Each Option may be granted alone, in addition to or in relation to any
other Option. The terms of each Option need not be identical, and the Board need
not treat Participants uniformly. Except as otherwise provided by the Plan or a
particular Option, any determination with respect to an Option may be made by
the Board at the time of grant or at any time thereafter.
(c) Notwithstanding anything in this Plan to the contrary, in the event of
a Change in Control, all then outstanding Options shall become one hundred
percent vested and exercisable as of the effective date of the Change in
Control. If, in connection with or as a consequence of a Change in Control, the
Corporation is merged into or consolidated with another corporation, if the
Corporation becomes a subsidiary of another corporation or if the Corporation
sells or otherwise disposes of substantially all of its assets to another
corporation, then unless provisions are made in connection with such
transactions for the continuance of the Plan and/or the assumption or
substitution of then outstanding Options with new options covering the stock of
the successor corporation, or parent or subsidiary thereof, with appropriate
adjustments as to the number and kind of shares and prices, such Options shall
be canceled as of the effective date of the merger, consolidation, or sale and
the Participant shall be paid in cash an amount equal to the difference between
the Fair Market Value of the Stock subject to the Options on the effective date
of such corporate event and the exercise price of the Options. Notwithstanding
anything in this Section 9(c) or any Option agreement to the contrary, in the
event that the consummation of a Change in Control is contingent on using
pooling of interests accounting methodology, the Board may, in its discretion,
take any action necessary to preserve the use of pooling of interests
accounting.
(d) The Corporation shall be entitled to withhold (or secure payment from
the Participant in lieu of withholding) the amount of any withholding or other
tax required by law to be withheld or paid by the Corporation with respect to
any Options exercised under this Plan, and the Corporation may defer issuance of
Stock hereunder until and unless indemnified to its satisfaction against any
liability for any such tax. The amount of such withholding or tax payment shall
be determined by the Board or its delegate and shall be payable by the
Participant at such time as the
<PAGE> 7
Board determines. To the extent authorized by the Board, such withholding
obligation may also be satisfied by the payment of cash by the Participant to
the Corporation, the tendering of previously acquired shares of Stock of the
Participant or the withholding, at the appropriate time, of shares of Stock
otherwise issuable to the Participant, in a number sufficient, based upon the
Fair Market Value of such Stock, to satisfy such tax withholding requirements.
The Board shall be authorized, in its sole discretion, to establish such rules
and procedures relating to any such withholding methods as it deems necessary or
appropriate, including, without limitation, rules and procedures relating to
elections by Participants who are subject to the provisions of Section 16 of the
Exchange Act.
(e) Subject to the terms of the Plan, the Board may at any time, and from
time to time, amend, modify or terminate the Plan or any outstanding Option held
by a Participant, including substituting therefor another Option of the same or
a different type or changing the date of exercise or realization, provided that
the Participant's consent to each action shall be required unless the Board
determines that the action, taking into account any related action, would not
materially and adversely affect the Participant.
SECTION 10. MISCELLANEOUS
(a) No person shall have any claim or right to be granted an Option, and
the grant of an Option shall not be construed as giving a Participant the right
to continued employment or service on the Board. The Corporation expressly
reserves the right at any time to dismiss a Participant free from any liability
or claim under the Plan, except as expressly provided in the Plan or the
applicable Option.
(b) Nothing contained in the Plan shall prevent the Corporation from
adopting other or additional compensation arrangements.
(c) Subject to the provisions of the applicable Option, no Participant
shall have any rights as a shareholder (including, without limitation, any
rights to receive dividends, or non cash distributions with respect to such
shares) with respect to any shares of Stock to be distributed under the Plan
until he or she becomes the holder thereof.
(d) Notwithstanding anything to the contrary expressed in this Plan, any
provisions hereof that vary from or conflict with any applicable Federal or
State securities laws (including any regulations promulgated thereunder) shall
be deemed to be modified to conform to and comply with such laws.
(e) No member of the Board shall be liable for any action or determination
taken or granted in good faith with respect to this Plan nor shall any member of
the Board be liable for any agreement issued pursuant to this Plan or any grants
under it. Each member of the Board shall be indemnified by the Corporation
against any losses incurred in such administration of the Plan, unless his
action constitutes serious and willful misconduct.
(f) The Plan shall be effective on April 7, 1999 but only if, prior to
such date, the Plan is approved by the Corporation's shareholders. The Plan will
be so approved if at an annual or special meeting of shareholders held prior to
such date a quorum is present and the votes of the holders of a majority of the
securities of the Corporation present or represented by proxy and entitled to
vote on such matter shall be cast in favor of its approval.
(g) The Board may amend, suspend or terminate the Plan or any portion
thereof at any time, provided that no amendment shall be made without
shareholder approval if such approval is necessary to comply with any applicable
tax laws or regulatory requirement.
(h) Options may not be granted under the Plan after the tenth anniversary
of the effective date of the Plan, but then outstanding Options may extend
beyond such date.
(i) To the extent that State laws shall not have been preempted by any
laws of the United States, the Plan shall be construed, regulated, interpreted
and administered according to the other laws of the State of Delaware.
<PAGE> 1
EXHIBIT 4.2
HERITAGE BANCORP, INC.
MANAGEMENT RECOGNITION AND DEVELOPMENT PLAN
<PAGE> 2
HERITAGE BANCORP, INC.
MANAGEMENT RECOGNITION AND DEVELOPMENT PLAN
SECTION 1. PURPOSE AND ADOPTION OF THE PLAN
(a) PURPOSE. The purpose of the Heritage Bancorp, Inc. Management
Recognition and Development Plan is to assist the Corporation and its
subsidiaries in attracting, retaining and motivating key management employees
and non-employee directors who will contribute to the Corporation's success. The
Plan is intended to recognize the contributions of key management personnel to
the success of the Corporation and its subsidiaries, to link the benefits paid
to eligible employees and directors who have substantial responsibility for the
successful operation, administration and management of the Corporation with the
enhancement of shareholder value and to provide eligible employees and directors
with an opportunity to acquire a greater proprietary interest in the Corporation
through the grant of restricted shares of Stock which, in accordance with the
terms and conditions set forth below, will vest only if the employees meet the
vesting criteria established by the Board and this Plan.
(b) ADOPTION AND EFFECTIVE DATE. The Plan shall be effective on April 7,
1999 but only if, prior to such date, the Plan is approved by the Corporation's
shareholders. The Plan will be so approved if at an annual or special meeting of
shareholders held prior to such date a quorum is present and the votes of the
holders of a majority of the securities of the Corporation present or
represented by proxy and entitled to vote on such a matter shall be cast in
favor of its approval.
SECTION 2. DEFINITIONS
For purposes of this Plan, the capitalized terms set forth below shall
have the following meanings:
AWARD AGREEMENT means a written agreement between the Corporation and a
Participant specifically setting forth the terms and conditions of an award of
Restricted Stock granted to a Participant pursuant to Section 5 of the Plan.
BOARD means the Board of Directors of the Corporation.
CHANGE IN CONTROL shall mean an event deemed to occur if and when (a) an
offeror other than the Corporation purchases shares of the common stock of the
Corporation pursuant to a tender or exchange offer for such shares, (b) any
person (as such term is used in Sections 13(d) and 14(d)(2) of the Exchange Act)
is or becomes the beneficial owner, directly or indirectly, of securities of the
Corporation representing twenty-five percent (25%) or more of the combined
voting power of the Corporation's then outstanding securities, (c) the
membership of the board of directors of the Corporation changes as the result of
a contested election, such that individuals who were directors at the beginning
of any twenty-four (24) month period (whether commencing before or after the
date of adoption of this Plan) do not constitute a majority of the Board at the
end of such period, or (d) shareholders of the Corporation approve a merger,
consolidation, sale or disposition of all or substantially all of the
Corporation's assets or a plan of partial or complete liquidation. If any of the
events enumerated in clauses (a) - (d) occur, the Board shall determine the
effective date of the change in control resulting therefrom.
CORPORATION means Heritage Bancorp, Inc., a Delaware corporation, and its
successors.
DATE OF GRANT means the date as of which an award of Restricted Stock is
granted in accordance with Section 5.
DIRECTOR means a member of the Board of Directors of the Corporation who
is not also an employee of the Corporation or its subsidiaries.
<PAGE> 3
DISABILITY means any physical or mental injury or disease of a permanent
nature which renders a Participant incapable of meeting the requirements of the
employment or service performed by such Participant immediately prior to the
commencement of such disability. The determination of whether a Participant is
disabled shall be made by the Board in its sole and absolute discretion.
EFFECTIVE DATE means the date as of which the Plan shall become effective,
as determined in accordance with Section 1(b).
EXCHANGE ACT means the Securities Exchange Act of 1934, as amended.
FAIR MARKET VALUE shall be determined as follows:
(a) If the stock is traded or quoted on the Nasdaq Stock Market or other
national securities exchange on any date, then the Fair Market Value shall be
the average of the highest and lowest selling price on such exchange on such
date or, if there were no sales on such date, then on the next prior business
day on which there was a sale.
(b) If the stock is not traded or quoted on the Nasdaq Stock Market or
other national securities exchange, then the Fair Market Value shall be a value
determined by the Board in good faith on such basis as it deems appropriate.
PARTICIPANT means any person selected by the Board, pursuant to Section
3(b), to participate under the Plan.
PLAN means this Heritage Bancorp, Inc. Management Recognition and
Development Plan, as the same may be amended from time to time.
RESTRICTED STOCK means shares of Stock awarded to a Participant subject to
restrictions as described in Section 5.
STOCK means the common stock, par value $0.01 per share, of the
Corporation.
SECTION 3. ADMINISTRATION AND PARTICIPATION
(a) ADMINISTRATION. The Plan shall be administered by the Board which
shall have exclusive and final authority and discretion in each determination,
interpretation or other action affecting the Plan and its Participants. The
Board shall have the sole and absolute authority and discretion to interpret the
Plan, to establish and modify administrative rules for the Plan, to select, in
accordance with Section 3(b), the persons who will be Participants hereunder, to
impose, in accordance with Section 5(a), such conditions and restrictions as it
determines appropriate and to take such other actions and make such other
determinations in connection with the Plan as it may deem necessary or
advisable.
(b) DESIGNATION OF PARTICIPANTS. Participants in the Plan shall be such
employees of the Corporation and its subsidiaries or Directors as the Board, in
its sole discretion, may designate. The Board shall consider such factors as it
deems pertinent in selecting Participants.
SECTION 4. STOCK ISSUABLE UNDER THE PLAN
(a) NUMBER OF SHARES OF STOCK ISSUABLE. Subject to adjustments as provided
in Section 6(c), the maximum number of shares of Stock available for issuance
under the Plan shall be 185,150. The Stock to be offered under the Plan shall be
authorized and unissued Stock, Stock which shall have been reacquired by the
Corporation and held in its treasury, or Stock held in a trust established by
the Corporation for the purpose of funding awards under the Plan with shares
acquired on the open market with funds contributed by the Corporation or any
subsidiary.
<PAGE> 4
(b) SHARES SUBJECT TO TERMINATED AWARDS. Shares of Stock forfeited as
provided in Section 5(b) may again be issued under the Plan.
SECTION 5. RESTRICTED STOCK
Subject to the terms of this Plan, the Board may grant to any Participant
an award of Restricted Stock in respect of such number of shares of Stock, and
subject to such terms and conditions relating to forfeitability and restrictions
on delivery and transfer (whether based on performance standards, periods of
service or otherwise), as the Board shall determine in its sole discretion. The
terms of all such Restricted Stock awards shall be set forth in an Award
Agreement between the Corporation and the Participant which shall contain such
provisions, not inconsistent with this Plan, as shall be determined by the
Board.
(a) ISSUANCE OF RESTRICTED STOCK. As soon as practicable after the Date of
Grant of Restricted Stock, the Corporation shall cause to be transferred on the
books of the Corporation shares of Stock, registered on behalf of the
Participant, evidencing such Restricted Stock, but subject to forfeiture to the
Corporation retroactive to the Date of Grant if an Award Agreement delivered to
the Participant by the Corporation with respect to the Restricted Stock is not
duly executed by the Participant and timely returned to the Corporation. Unless
the Board determines otherwise, until the lapse or release of all restrictions
applicable to an award of Restricted Stock, the stock certificates representing
such Restricted Stock shall be held in custody by the Corporation or its
designee. Notwithstanding the foregoing, the Corporation may, in its sole
discretion, establish a trust for the purpose of holding Restricted Stock
awarded pursuant to this Plan. In the event that a trust is established, the
Corporation may elect to hold any or all shares of Stock subject to awards in
the name of the trust for the benefit of the Participant and subject to the
forfeiture conditions applicable to the award.
(b) SHAREHOLDER RIGHTS. Beginning on the Date of Grant of the Restricted
Stock and subject to execution of the Award Agreement as provided in Section
5(a), the Participant shall become a shareholder of the Corporation with respect
to all Stock subject to the Award Agreement and shall have all of the rights of
a shareholder, including, but not limited to, the right to vote such Stock and
the right to receive dividends and other distributions paid with respect to such
Stock; provided, however, that any Stock distributed as a dividend or otherwise
with respect to any Restricted Stock as to which the restrictions have not yet
lapsed shall be subject to the same restrictions as such Restricted Stock and
shall be held as prescribed in Section 5(a). Cash dividends paid with respect to
Restricted Stock may, at the Board's discretion, be held by the Corporation in
escrow until such time as the Participant vests in such shares or distributed to
the Participant during the forfeiture period. The Corporation may credit a
reasonable rate of interest to such cash dividends prior to distribution.
(c) RESTRICTION ON TRANSFERABILITY. None of the Restricted Stock may be
assigned, transferred (other than by will or the laws of descent and
distribution), pledged, sold or otherwise disposed of prior to lapse or release
of the restrictions applicable thereto.
(d) DELIVERY OF STOCK UPON RELEASE OF RESTRICTIONS. Upon expiration or
earlier termination of the forfeiture period without a forfeiture, and the
satisfaction of or release from any other conditions prescribed by the Board,
the restrictions applicable to the Restricted Stock shall lapse. As promptly as
administratively feasible thereafter, subject to the requirements of Section
6(b), the Corporation shall deliver to the Participant or, in case of the
Participant's death, to the Participant's legal representatives, one or more
stock certificates for the appropriate number of shares of Stock, free of all
such restrictions, except for any restrictions that may be imposed by law.
(e) TERMS OF RESTRICTED STOCK; FORFEITURE OF RESTRICTED STOCK. All
Restricted Stock shall be forfeited and returned to the Corporation and all
rights of the Participant with respect to such Restricted Stock shall cease and
terminate in their entirety if during the forfeiture period the employment (or,
in the case of a Director, service) of the Participant with the Corporation
and/or its subsidiaries terminates for any reason. Subject to the terms of the
Plan, the Board, in its sole discretion, shall establish the forfeiture period
for each grant of Restricted Stock, and
<PAGE> 5
may provide for the forfeiture period to lapse in installments. Notwithstanding
the foregoing, upon the termination of a Participant's employment (or, in the
case of a Director, service) by reason of death or Disability, all forfeiture
restrictions imposed on Restricted Stock shall immediately and fully lapse. In
addition, upon the effective date of a Change in Control, all forfeiture
restrictions imposed on outstanding Restricted Stock awards shall immediately
and fully lapse.
SECTION 6. MISCELLANEOUS
(a) LIMITATIONS ON TRANSFER. The rights and interest of a Participant
under the Plan may not be assigned or transferred other than by will or the laws
of descent and distribution. During the lifetime of a Participant, only the
Participant personally may exercise rights under the Plan.
(b) TAXES. The Corporation shall be entitled to withhold (or secure
payment from the Participant in lieu of withholding) the amount of any
withholding or other tax required by law to be withheld or paid by the
Corporation with respect to any Stock issuable under this Plan, or with respect
to any income recognized upon the lapse of restrictions applicable to Restricted
Stock and the Corporation may defer issuance of Stock hereunder until and unless
indemnified to its satisfaction against any liability for any such tax. The
amount of such withholding or tax payment shall be determined by the Board or
its delegate and shall be payable by the Participant at such time as the Board
determines. To the extent authorized by the Board, such withholding obligation
may be satisfied by the payment of cash by the Participant to the Corporation,
the tendering of previously acquired shares of Stock of the Participant or the
withholding, at the appropriate time, of shares of Stock otherwise issuable to
the Participant, in a number sufficient, based upon the Fair Market Value of
such Stock, to satisfy such tax withholding requirements. The Board shall be
authorized, in its sole discretion, to establish such rules and procedures
relating to any such withholding methods as it deems necessary or appropriate,
including, without limitation, rules and procedures relating to elections by
Participants who are subject to the provisions of Section 16 of the Exchange
Act.
(c) ADJUSTMENTS TO REFLECT CAPITAL CHANGES. The amount and kind of Stock
available for issuance under the Plan and the limit on the number of shares of
Stock in respect of which awards may be made to any Participant in any calendar
year shall be appropriately adjusted to reflect any stock dividend, stock split,
combination or exchange of shares, merger, consolidation or other change in
capitalization with a similar substantive effect upon the Plan. The Board shall
have the power and sole discretion to determine the nature and amount of the
adjustment, if any, to be made pursuant to this Section 6(c).
(d) NO RIGHT TO AWARD; NO RIGHT TO EMPLOYMENT. No employee or other person
shall have any claim of right to be permitted to participate or be granted an
award under this Plan. Neither the Plan nor any action taken hereunder shall be
construed as giving any employee any right to be retained in the employ of the
Corporation.
(e) GOVERNING LAW. The Plan and all determinations made and actions taken
pursuant to the Plan shall be governed by the laws of the State of Delaware
other than the conflict of laws provisions of such laws, and shall be construed
in accordance therewith.
(f) CAPTIONS. The captions (i.e., all Section and subsection headings)
used in the Plan are for convenience only, do not constitute a part of the Plan,
and shall not be deemed to limit, characterize or affect in any way any
provisions of the Plan, and all provisions of the Plan shall be construed as if
no captions had been used in the Plan.
(g) SEVERABILITY. Whenever possible, each provision in the Plan and every
Award Agreement shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of the Plan or any Award Agreement
shall be held to be prohibited by or invalid under applicable law, then (x) such
provision shall be deemed amended to accomplish the objectives of the provision
as originally written to the fullest extent permitted by law and (y) all other
provisions of the Plan and every Award Agreement shall remain in full force and
effect.
<PAGE> 6
(h) LEGENDS. All certificates for Stock delivered under the Plan shall be
subject to such transfer restrictions set forth in the Plan and such other
restrictions as the Board may deem advisable under the rules, regulations and
other requirements of the Securities and Exchange Commission, any stock exchange
upon which the Stock is then listed and any applicable federal or state
securities law, and the Board may cause a legend or legends to be endorsed on
any such certificates making appropriate references to such restrictions.
(i) AMENDMENT AND TERMINATION.
(A) AMENDMENT. Subject to applicable law and regulations, the Board shall
have complete power and authority to amend the Plan at any time it is deemed
necessary or appropriate; provided, however, that no amendment shall be made
without shareholder approval if such approval is necessary for the Corporation
to comply with an applicable tax law or regulatory requirement. No termination
or amendment of the Plan may, without the consent of the Participant to whom any
award shall theretofore have been granted under the Plan, adversely affect the
right of such individual under such award.
(B) TERMINATION. The Board shall have the right and the power to terminate
the Plan at any time. Unless sooner terminated by action of the Board, the Plan
shall automatically terminate, without further action of the Board or the
Corporation's shareholders, on the tenth anniversary of the Effective Date. No
award shall be granted under the Plan after the termination of the Plan, but the
termination of the Plan shall not have any other effect and any award
outstanding at the time of the termination of the Plan shall continue in effect
in accordance with its terms as if the Plan has not terminated.
* * *
Adopted by the Board of Directors on November 17, 1998.
<PAGE> 1
EXHIBIT 5.0
OPINION OF MULDOON, MURPHY & FAUCETTE LLP
AS TO THE LEGALITY OF THE COMMON STOCK REGISTERED HEREBY
<PAGE> 2
April 28, 1999
Board of Directors
Heritage Bancorp, Inc.
201 W. Main Street
Laurens, South Carolina 29360
Re: Heritage Bancorp, Inc. 1998 Option Plan for Offer and Sale of
462,875 Shares of Common Stock and Heritage Bancorp, Inc. 1998
Management and Recognition Plan, Registration Statement on Form S-8
for Offer and Sale of 185,150 Shares of Common Stock
Ladies and Gentlemen:
We have been requested by Heritage Bancorp, Inc., a Delaware corporation,
(the "Company") to issue a legal opinion in connection with the registration
under the Securities Act of 1933 on Form S-8 of 648,025 shares of the Company's
Common Stock, par value $.01 per share (the "Shares"), that may be issued under
the Heritage Bancorp, Inc. 1998 Option Plan and the Heritage Bancorp, Inc. 1998
Management and Recognition Plan (hereinafter, collectively referred to as the
"Plan").
We have made such legal and factual examinations and inquiries as we
deemed advisable for the purpose of rendering this opinion. In our examination,
we have assumed and have not verified (i) the genuineness of all signatures,
(ii) the authenticity of all documents submitted to us as originals, (iii) the
conformity to the originals of all documents supplied to us as copies, and (iv)
the accuracy and completeness of all corporate records and documents and of all
certificates and statements of fact, in each case given or made available to us
by the Company or its subsidiary Heritage Federal Bank.
Based on the foregoing and limited in all respects to Delaware law, it is
our opinion that the Shares reserved under the Plan have been duly authorized
and upon payment for and issuance of the Shares in the manner described in the
Plan, will be legally issued, fully paid and nonassessable.
The following provisions of the Certificate of Incorporation may not be
given effect by a court applying Delaware law, but in our opinion the failure to
give effect to such provisions will not affect the duly authorized, validly
issued, fully paid and nonassessable status of the Common Stock:
<PAGE> 3
(a) Subsections C.3 and C.6 of Article VII which grant the Board the
authority to construe and apply the provisions of that Article and
subsection C.4 of Article VII, to the extent that subsection
obligates any person to provide the Board the information such
subsection authorizes the Board to demand, in each case to the
extent, if any, that a court applying Delaware law were to impose
equitable limitations upon such authority; and
(b) Article XV which authorizes the Board to consider the effect of any
offer to acquire the Company on constituencies other than
stockholders in evaluating any such offer.
This opinion is rendered to you solely for your benefit in connection with
the issuance of the Shares as described above. This opinion may not be relied
upon by any other person or for any other purpose, and it should not be quoted
in whole or in part or otherwise referred to or be furnished to any governmental
agency (other than the Securities and Exchange Commission in connection with the
aforementioned registration statement on Form S-8 in which this opinion is
contained) or any other person or entity without the prior written consent of
this firm.
We note that, although certain portions of the registration statement on
Form S-8 (the financial statements and schedules) have been included therein
(through incorporation by reference) on the authority of "experts" within the
meaning of the Securities Act, we are not such experts with respect to any
portion of the Registration Statement, including without limitations the
financial statements or schedules or the other financial information or data
included therein.
We hereby consent to the filing of this opinion as an exhibit to, and the
reference to this firm in, the Company's registration statement on Form S-8.
Very truly yours,
/s/ MULDOON, MURPHY & FAUCETTE LLP
<PAGE> 1
EXHIBIT 23.2
CONSENT OF DELOITTE & TOUCHE LLP
INDEPENDENT AUDITORS
<PAGE> 2
EXHIBIT 23.2
CONSENT OF DELOITTE & TOUCHE LLP
INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration Statement of
Heritage Bancorp, Inc. on Form S-8 of our report dated November 6, 1998,
appearing in and incorporated by reference in the Annual Report on Form 10-K of
Heritage Bancorp, Inc. for the year ended September 30, 1998 and to the
reference to us under the heading "Interest of Named Experts and Counsel" in
this Registration Statement.
/s/ Deloitte & Touche LLP
Greenville, South Carolina
April 26, 1999
