Registration No. 333-_____ As filed with the Commission on February 1, 2000
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------------
Liberty Bancorp, Inc.
(Exact Name of Registrant as Specified in its Charter)
Federal 22-3593532
(State of Incorporation) (IRS Employer Identification No.)
1410 St. Georges Avenue
Avenel, New Jersey 07001
(Address of Principal Executive Offices and Zip Code)
---------------------------
Liberty Bancorp, Inc. 1999 Stock Option Plan
Liberty Bank 1999 Recognition and Retention Plan
(Full Title of the Plans)
Copies to:
John R. Bowen Kenneth R. Lehman, Esquire
Chairman, President and Luse Lehman Gorman Pomerenk & Schick
Chief Executive Officer A Professional Corporation
Liberty Bancorp, Inc. 5335 Wisconsin Ave., NW, #400
1410 St. Georges Ave Washington, D.C. 20015
Avenel, NJ 07001 (202) 274-2000
(732) 499-7200
(Name, Address and Telephone
Number of Agent for Service)
---------------------------
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933 check the following box. |X|
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
======================================================================================================================
Title of Securities to Amount to be Proposed Proposed Amount of
be Registered Registered (1) Maximum Maximum Registration Fee
Offering Price Per Aggregate Offering
Share Price
- ----------------------------------------------------------------------------------------------------------------------
Option to Purchase
Common Stock
Common Stock, par
<S> <C> <C> <C> <C>
value $1.00 per share 165,148 shares (2) $10.06(3) $1,661,389 $462
Common Stock, par
value $1.00 per share 18,216 shares (4) $6.50 (3) $118,404 $33
Common Stock, par
value $1.00 per share 70,203 shares (5) $10.06 (6) $706,242 $196
Common Stock, par
value $1.00 per share 3,142 shares (7) $6.50(6) $20,423 $6
Total 256,709 shares $2,506,458 $697
======================================================================================================================
</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 Liberty Bancorp, Inc. 1999 Stock Option Plan (the " Stock Option
Plan"), and the Liberty Bank 1999 Recognition and Retention Plan (the
"Recognition and Retention Plan") as the result of a stock split, stock
dividend or similar adjustment of the outstanding Common Stock of Liberty
Bancorp, Inc. pursuant to 17 C.F.R. ss. 230.416(a).
(2) Represents the number of shares currently reserved for issuance for options
granted pursuant to the Stock Option Plan.
(3) Determined by the exercise price of options pursuant to 17
C.F.R.ss.230.457(h)(1).
(4) Represents the number of shares reserved for issuance pursuant to the
exercise of options, which have not been granted pursuant to the Stock
Option Plan.
(5) Represents the number of shares awarded pursuant to the Recognition and
Retention Plan.
(6) Determined by the fair market value of the common stock pursuant to 17
C.F.R. ss.230.457(h)(1).
(7) Represents the number of shares reserved for issuance which have not been
granted pursuant to the Recognition and Retention Plan.
------------------------------------
This Registration Statement shall become effective upon filing in
accordance with Section 8(a) of the Securities Act of 1933 and 17 C.F.R. ss.
230.462.
2
<PAGE>
PART I.
Items 1 and 2. Plan Information and Registrant Information and Employee Plan
Annual Information
The documents containing the information specified in Part I of Form S-8
will be sent or given to participants in the Stock Option Plan and the
Recognition and Retention Plan (collectively the "Plans") as specified by Rule
428(b)(1) promulgated by the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Securities
Act").
Such documents are not being filed with the Commission, but constitute
(along with the documents incorporated by reference into the Registration
Statement pursuant to Item 3 of Part II hereof) a prospectus that meets the
requirements of Section 10(a) of the Securities Act.
PART II.
Item 3. Incorporation of Documents by Reference
The following documents previously or concurrently filed by Liberty
Bancorp, Inc. (the "Company") with the Commission are hereby incorporated by
reference in this Registration Statement:
(a) the Company's Annual Report on Form 10-KSB for the fiscal year ended
December 31, 1998 (File No. 0- 24519) filed pursuant to Rule 13a-1 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act");
(b) all other reports filed by the Company pursuant to Section 13(a) or 15(d)
of the Exchange Act since the end of the fiscal year covered by the Annual
Report referred to above;
(c) the Company's definitive Proxy Statement for its Annual Meeting of
Stockholders held on February 3, 1999;
(d) the description of the common stock, par value $1.00 per share, of the
Company contained in the Company's Registration Statement on Form SB-2
(File No. 333-48003) originally filed with the Commission on March 16, 1998
and all amendments or reports filed for the purpose of updating such
description.
All documents subsequently filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act, after the
date hereof, and prior to the filing of a post-effective amendment which
indicates that all securities offered hereby have been sold or which deregisters
all securities then remaining unsold, shall be deemed incorporated by reference
into this Registration Statement and to be a part thereof from the date of the
filing of such documents. Any statement contained in the documents incorporated,
or deemed to be incorporated, by reference herein or therein shall be deemed to
be modified or superseded for purposes of this Registration Statement and the
Prospectus to the extent that a statement contained herein or therein or in any
other subsequently filed document which also is, or is deemed to be,
incorporated by reference herein or therein 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 and the Prospectus.
The Company shall furnish without charge to each person to whom the
Prospectus is delivered, on the written or oral request of such person, a copy
of any or all of the documents incorporated by reference, other than exhibits to
such documents (unless such exhibits are specifically incorporated by reference
to the information that is incorporated). Requests should be directed to Michael
J. Widmer, Executive Vice President and Chief Financial Officer, Liberty
Bancorp, Inc., 1410 St. Georges Ave., Avenel, New Jersey, 07001, telephone
number (732) 499-7200.
All information appearing in this Registration Statement and the Prospectus
is qualified in its entirety by the detailed information, including financial
statements, appearing in the documents incorporated herein or therein by
reference.
3
<PAGE>
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
None.
Item 6. Indemnification of Directors and Officers
Federal regulations define areas for indemnity coverage for federal MHC
subsidiary holding companies, as follows:
(a) Any person against whom any action is brought by reason of
the fact that such person is or was a director or officer of the savings
association shall be indemnified by the savings association for:
(i) Reasonable costs and expenses, including
reasonable attorneys' fees, actually paid or incurred by such
person in connection with proceedings related to the defense
or settlement of such action;
(ii) Any amount for which such person becomes liable
by reason of any judgment in such action;
(iii) Reasonable costs and expenses, including
reasonable attorneys' fees, actually paid or incurred in any
action to enforce his rights under this section, if the person
attains a final judgment in favor of such person in such
enforcement action.
(b) Indemnification provided for in subparagraph (a) shall be
made to such officer or director only if the requirements of
this subsection are met:
(i) The savings association shall make the
indemnification provided by subparagraph (a) in connection
with any such action which results in a final judgment on the
merits in favor of such
officer or director.
(ii) The savings association shall make the
indemnification provided by subparagraph (a) in case of
settlement of such action, final judgment against such
director or officer or final judgment in favor of such
director or officer other than on the merits except in
relation to matters as to which he shall be adjudged to be
liable for negligence or misconduct in the performance of
duty, only if a majority of the directors of the savings
association determines that such a director or officer was
acting in good faith within what he was reasonably entitled to
believe under the circumstances was the scope of his
employment or authority and for a purpose which he was
reasonably entitled to believe under the circumstances was in
the best interest of the savings association or its members.
(c) As used in this paragraph:
(i) "Action" means any action, suit or other judicial
or administrative proceeding, or threatened proceeding,
whether civil, criminal, or otherwise, including any appeal or
other proceeding for review;
(ii) "Court" includes, without limitation, any court
to which or in which any appeal or any proceeding for review
is brought;
(iii) "Final Judgment" means a judgment, decree, or
order which is appealable and as to which the period for
appeal has expired and no appeal has been taken;
4
<PAGE>
(iv) "Settlement" includes the entry of a judgment
by consent or by confession or upon a plea of guilty or of
nolo contendere.
Item 7. Exemption From Registration Claimed
Not applicable.
Item 8. List of Exhibits
<TABLE>
<CAPTION>
Regulation S-K Reference to Prior Filing or
Exhibit Number Document Exhibit No. Attached Hereto
- -------------- -------- ---------------------------
<S> <C> <C>
4 Specimen form of common stock certificate
of Liberty Bancorp, Inc. *
5 Opinion of Luse Lehman Gorman Pomerenk Attached as Exhibit 5
& Schick, P.C.
10.1 Liberty Bancorp, Inc. 1999 Stock Option Plan **
10.2 Liberty Bank 1999 Recognition and Retention Plan Attached as Exhibit 10.2
23.1 Consent of Luse Lehman Gorman Pomerenk Contained in Exhibit 5
& Schick, P.C.
23.2 Consent of Radics & Co., LLC Attached as Exhibit 23.2
24 Power of Attorney Contained on Signature Page
</TABLE>
- ---------------
* Filed as exhibits to the Registrant's Registration Statement on Form SB-2
(File No. 333-48003) filed with the Commission on March 16, 1998 pursuant
to Section 5 of the Securities Act of 1933 and all amendments thereto or
reports filed for the purpose of updating such description. All of such
previously filed documents are hereby incorporated herein by reference in
accordance with Item 601 of Regulation S-K.
** Filed as exhibits to the Registrant's Proxy Statement relating to the
Registrant's February 3, 1999 annual meeting of stockholders, filed with
the Commission on December 29, 1998, which is incorporated herein by
reference.
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 to include any
material information with respect to the Registration Statement not previously
disclosed in this Registration Statement or any material change to such
information in this 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;
5
<PAGE>
3. To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the Stock Option Plan and the Recognition and Retention Plan; and
4. That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the Registrant's annual report pursuant
to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 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.
5. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
6
<PAGE>
EXHIBIT INDEX
Exhibit Number Description
- -------------- -----------
5 Opinion of Luse Lehman Gorman Pomerenk & Schick, A
Professional Corporation as to the legality of the
Common Stock registered hereby.
10.2 Liberty Bank 1999 Recognition and Retention Plan
23.1 Consent of Luse Lehman Gorman Pomerenk & Schick,
A Professional Corporation (contained in the opinion
included as Exhibit 5)
23.2 Consent of Radics & Co., LLC
7
<PAGE>
SIGNATURES
The Registrant. 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 Avenel, State of New Jersey, on this 31st day of
January, 2000.
Liberty Bancorp, Inc.
By: /s/ John R. Bowen
-----------------------------------------------
John R. Bowen
Chairman, President and Chief Executive Officer
(Duly Authorized Representative)
POWER OF ATTORNEY
We, the undersigned directors and officers of Liberty Bancorp, Inc. (the
"Company") hereby severally constitute and appoint John R. Bowen as our true and
lawful attorney and agent, to do any and all things in our names in the
capacities indicated below which said John R. Bowen may deem necessary or
advisable to enable the Company to comply with the Securities Act of 1933, and
any rules, regulations and requirements of the Securities and Exchange
Commission, in connection with the registration statement on Form S-8, including
specifically, but not limited to, power and authority to sign for us in our
names in the capacities indicated below the registration statement and any and
all amendments (including post-effective amendments) thereto; and we hereby
approve, ratify and confirm all that said John R. Bowen shall do or cause to be
done by virtue thereof.
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 date indicated.
By: /s/ John R. Bowen By: /s/ Michael J. Widmer
----------------------------- -------------------------------
John R. Bowen Michael J. Widmer
Chairman, President Executive Vice President, Chief
and Chief Executive Officer Financial Officer and Director
(Principal Executive Officer) (Principal Financial and
Accounting Officer)
Date: January 31, 2000 Date: January 31, 2000
By: /s/ Dr. Neil R. Bryson By: /s/ Anthony V. Caruso
----------------------------- -------------------------------
Dr. Neil R. Bryson Anthony V. Caruso
Director Director
Date: January 31, 2000 Date: January 31, 2000
By: /s/ John W. Fox By: /s/ John C. Marsh
----------------------------- -------------------------------
John W. Fox John C. Marsh
Director Director
Date: January 31, 2000 Date: January 31, 2000
By: /s/ Paul J. McGovern By: /s/ Nelson L. Taylor, Jr.
----------------------------- -------------------------------
Paul J. McGovern Nelson L. Taylor, Jr.
Director Director
Date: January 31, 2000 Date: January 31, 2000
<PAGE>
EXHIBIT 5
OPINION OF LUSE LEHMAN GORMAN POMERENK & SCHICK, P.C.
<PAGE>
[LETTERHEAD OF LUSE LEHMAN GORMAN POMERENK & SCHICK, P.C.]
January 31, 2000 (202) 274-2000
Board of Directors
Liberty Bancorp, Inc.
1410 St. Georges Avenue
Avenel, NJ 07001
Re: Liberty Bancorp, Inc.
Registration Statement on Form S-8
----------------------------------
Gentlemen:
You have requested the opinion of this firm as to certain matters in
connection with the offer and sale of Liberty Bancorp, Inc. (the "Company")
common stock, par value $1.00 per share (the "Common Stock"), pursuant to the
Liberty Bancorp, Inc. 1999 Stock Option Plan and the Liberty Bank 1999
Recognition and Retention Plan (the "Plans"). We have reviewed the Company's
Charter, Registration Statement on Form S-8 (the "Form S-8"), as well as
applicable statutes and regulations governing the Company and the offer and sale
of the Common Stock.
Based on the foregoing, we are of the following opinion:
Upon the effectiveness of the Form S-8, the Common Stock, when sold in
connection with the exercise of options granted pursuant to the Plans, will
be legally issued, fully paid and non-assessable.
This opinion has been prepared solely for the use of the Company in
connection with the preparation and filing of the Form S-8, and should not be
used for any other purpose or relied upon by any other person without the prior
written consent of this firm. We hereby consent to the use of this opinion in
the Form S-8.
Very truly yours,
/s/ LUSE LEHMAN GORMAN POMERENK & SCHICK
------------------------------------------
LUSE LEHMAN GORMAN POMERENK & SCHICK
A Professional Corporation
<PAGE>
EXHIBIT 10.2
LIBERTY BANK 1999 RECOGNITION AND RETENTION PLAN
<PAGE>
LIBERTY BANK
1999 RECOGNITION AND RETENTION PLAN
1. Establishment of the Plan; Creation of Separate Trust
(a) Liberty Bank (the "Bank") hereby adopts and amends the Liberty Bank
1999 Recognition and Retention Plan (the "Plan") upon the terms and conditions
hereinafter stated in the Plan. The Plan was formerly known as Liberty Bancorp,
Inc. 1999 Recognition and Retention Plan.
(b) A separate trust or trusts has been established to purchase shares of
the Common Stock that will be awarded hereunder (the "Trust"). If a Recipient
hereunder fails to satisfy the conditions of the Plan and forfeits all or any
portion of the Common Stock awarded to him or her, such forfeited shares will be
returned to said Trust.
2. Purpose of the Plan
The purpose of the Plan is to advance the interests of the Bank and Liberty
Bancorp, Inc. (the "Company") and the Company's stockholders by providing Key
Employees and Outside Directors of the Bank and its Affiliates, including the
Company, upon whose judgment, initiative and efforts the successful conduct of
the business of the Bank and its Affiliates largely depends, with compensation
for their contributions to the Bank and its Affiliates and an additional
incentive to perform in a superior manner, as well as to attract people of
experience and ability.
3. Definitions
The following words and phrases when used in this Plan with an initial
capital letter, unless the context clearly indicates otherwise, shall have the
meanings set forth below. Wherever appropriate, the masculine pronoun shall
include the feminine pronoun and the singular shall include the plural:
"Affiliate" means any "parent corporation" or "subsidiary corporation" of
the Bank, as such terms are defined in Section 424(e) and (f), respectively, of
the Code, or a successor to a parent corporation or subsidiary corporation.
"Award" means the grant by the Committee of Restricted Stock, as provided
in the Plan.
"Bank" means Liberty Bank, or a successor corporation.
"Beneficiary" means the person or persons designated by a Recipient to
receive any benefits payable under the Plan in the event of such Recipient's
death. Such person or persons shall be designated in writing on forms provided
for this purpose by the Committee and may be changed from time to time by
similar written notice to the Committee. In the absence of a written
designation, the Beneficiary shall be the Recipient's surviving spouse, if any,
or if none, his estate.
"Board" or "Board of Directors" means the Board of Directors of the Bank or
an Affiliate, as applicable.
"Cause" means personal dishonesty, willful misconduct, any breach of
fiduciary duty involving personal profit, intentional failure to perform stated
duties, or the willful violation of any law, rule or regulation (other than
traffic violations or similar offenses) or a final cease-and-desist order, any
of which results in a material loss to the Company or an Affiliate.
"Change in Control" of the Bank or the Company means a change in control of
a nature that: (i) would be required to be reported in response to Item 1(a) of
the current report on Form 8-K, as in effect on the date hereof, pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act");
or (ii) results in a Change in Control of the Bank or the Company within the
meaning of the Home Owners Loan Act, as amended ("HOLA"), and applicable rules
and regulations promulgated thereunder, as in effect at the time of the Change
in Control; or (iii) without limitation such a Change in Control shall be deemed
to have occurred at such time as (a) any "person" (as the term is used in
Sections 13(d) and 14(d) of the Exchange Act) is or becomes the "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Company representing 25% or more of the
combined voting power of the Company's outstanding securities except for any
securities purchased by the Bank's employee stock ownership plan or trust; or
(b) individuals who constitute the Board on the date hereof (the "Incumbent
Board") cease
<PAGE>
for any reason to constitute at least a majority thereof, provided that any
person becoming a director subsequent to the date hereof whose election was
approved by a vote of at least three-quarters of the directors comprising the
Incumbent Board, or whose nomination for election by the Company's stockholders
was approved by the same Nominating Committee serving under an Incumbent Board,
shall be, for purposes of this clause (b), considered as though he were a member
of the Incumbent Board; or (c) a plan of reorganization, merger, consolidation,
sale of all or substantially all the assets of the Company or similar
transaction in which the Company is not the surviving institution occurs; or (d)
a proxy statement soliciting proxies from stockholders of the Company, by
someone other than the current management of the Company, seeking stockholder
approval of a plan of reorganization, merger or consolidation of the Company or
similar transaction with one or more corporations as a result of which the
outstanding shares of the class of securities then subject to the Plan are to be
exchanged for or converted into cash or property or securities not issued by the
Company; or (e) a tender offer is made for 25% or more of the voting securities
of the Company and the shareholders owning beneficially or of record 25% or more
of the outstanding securities of the Company have tendered or offered to sell
their shares pursuant to such tender offer and such tendered shares have been
accepted by the tender offeror.
Notwithstanding, the foregoing, a "Change in Control" shall not be deemed to
have occurred in the event of a conversion of the Company's mutual holding
company to stock form or in connection with any reorganization or action used to
effect such conversion.
"Code" means the Internal Revenue Code of 1986, as amended.
"Committee" means a committee of the Board of the Company consisting of
either (i) at least two Non- Employee Directors of the Company, or (ii) the
entire Board of the Company.
"Common Stock" means shares of the common stock of the Company, par value
$1.00 per share.
"Company" means Liberty Bancorp, Inc., the stock holding company of the
Bank, or a successor corporation.
"Continuous Service" means employment as a Key Employee and/or service as
an Outside Director without any interruption or termination of such employment
and/or service. Continuous Service shall also mean a continuation as a member of
the Board of Directors following a cessation of employment as a Key Employee. In
the case of a Key Employee, employment shall not be considered interrupted in
the case of sick leave, military leave or any other leave of absence approved by
the Bank or in the case of transfers between payroll locations of the Bank or
between the Bank, its parent, its subsidiaries or its successor.
"Director" means a member of the Board.
"Disability" means the permanent and total inability by reason of mental or
physical infirmity, or both, of an employee to perform the work customarily
assigned to him, or of a Director to serve as such. Additionally, in the case of
an employee, a medical doctor selected or approved by the Board must advise the
Committee that it is either not possible to determine when such Disability will
terminate or that it appears probable that such Disability will be permanent
during the remainder of such employee's lifetime.
"Effective Date" means the date of, or a date determined by the Board
following, approval of the Plan by the Company's stockholders.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Key Employee" means any person who is currently employed by the Bank or an
Affiliate who is chosen by the Committee to participate in the Plan.
"Non-Employee Director" means, for purposes of the Plan, a Director who (a)
is not employed by the Company or an Affiliate; (b) does not receive
compensation directly or indirectly as a consultant (or in any other capacity
than as a Director) greater than $60,000; (c) does not have an interest in a
transaction requiring disclosure under Item 404(a) of Regulation S-K; or (d) is
not engaged in a business relationship for which disclosure would be required
pursuant to Item 404(b) of Regulation S-K.
2
<PAGE>
"Normal Retirement" means for a Key Employee, retirement at the normal or
early retirement date set forth in the Bank's Employee Stock Ownership Plan, or
any successor plan. Normal Retirement for an Outside Director means a cessation
of service on the Board of Directors for any reason other than removal for
Cause, after reaching 60 years of age and maintaining at least 10 years of
Continuous Service.
"OTS" means the Office of Thrift Supervision.
"Outside Director" means a Director of the Bank or an Affiliate who is not
an employee of the Company or an Affiliate.
"Recipient" means a Key Employee or Outside Director of the Bank or its
Affiliates who receives or has received an Award under the Plan.
"Restricted Period" means the period of time selected by the Committee for
the purpose of determining when restrictions are in effect under Section 6 with
respect to Restricted Stock awarded under the Plan.
"Restricted Stock" means shares of Common Stock that have been contingently
awarded to a Recipient by the Committee subject to the restrictions referred to
in Section 6, so long as such restrictions are in effect.
4. Administration of the Plan.
(a) Role of the Committee. The Plan shall be administered and interpreted
by the Committee, which shall have all of the powers allocated to it in the
Plan, subject to OTS regulations and policy. The interpretation and construction
by the Committee of any provisions of the Plan or of any Award granted hereunder
shall be final and binding. The Committee shall act by vote or written consent
of a majority of its members. Subject to the express provisions and limitations
of the Plan and subject to OTS regulations and policy, the Committee may adopt
such rules and procedures as it deems appropriate for the conduct of its
affairs. The Committee shall report its actions and decisions with respect to
the Plan to the Board at appropriate times, but in no event less than one time
per calendar year.
(b) Role of the Board. The members of the Committee shall be appointed or
approved by, and will serve at the pleasure of, the Board of the Bank. The Bank
Board may in its discretion from time to time remove members from, or add
members to, the Committee. The Board of the Company shall have all of the powers
allocated to it in the Plan, may take any action under or with respect to the
Plan that the Committee is authorized to take, and may reverse or override any
action taken or decision made by the Committee under or with respect to the
Plan, provided, however, that except as provided in Section 6(b), the Board may
not revoke any Award except in the event of revocation for Cause or with respect
to unearned Awards in the event the Recipient of an Award voluntarily terminates
employment with the Bank prior to Normal Retirement.
(c) Plan Administration Restrictions. All transactions involving a grant,
award or other acquisitions from the Company shall:
(i) be approved by the Company's full Board or by the Committee;
(ii) be approved, or ratified, in compliance with Section 14 of
the Exchange Act, by either: the affirmative vote of the
holders of a majority of the shares present, or represented
and entitled to vote at a meeting duly held in accordance
with the laws under which the Company is incorporated; or
the written consent of the holders of a majority of the
securities of the issuer entitled to vote provided that such
ratification occurs no later than the date of the next
annual meeting of shareholders; or
(iii)result in the acquisition of Common Stock that is held by
the Recipient for a period of six months following the date
of such acquisition.
(d) Limitation on Liability. No member of the Board or the Committee shall
be liable for any determination made in good faith with respect to the Plan or
any Awards granted under it. If a member of the Board or the Committee is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or
3
<PAGE>
proceeding, whether civil, criminal, administrative or investigative, by reason
of anything done or not done by him in such capacity under or with respect to
the Plan, the Bank or the Company shall indemnify such member against expense
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to
be in the best interests of the Bank and the Company and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful.
5. Eligibility; Awards
(a) Eligibility. Key Employees and Outside Directors are eligible to
receive Awards.
(b) Awards to Key Employees and Outside Directors. The Committee may
determine which of the Key Employees and Outside Directors referenced in Section
5(a) will be granted Awards and the number of shares covered by each Award;
provided, however, that in no event shall any Awards be made that will violate
the Company's or the Bank's Charter and Bylaws, or any applicable federal or
state law or regulation. Shares of Restricted Stock that are awarded by the
Committee shall, on the date of the Award, be registered in the name of the
Recipient and transferred to the Recipient, in accordance with the terms and
conditions established under the Plan. The aggregate number of shares that shall
be issued under the Plan is 73,345, subject to adjustment in accordance with
Section 7 of the Plan.
In the event Restricted Stock is forfeited for any reason, the Committee,
from time to time, may determine which of the Key Employees and Outside
Directors will be granted additional Awards to be awarded from forfeited
Restricted Stock.
In selecting those Key Employees and Outside Directors to whom Awards will
be granted and the amount of Restricted Stock covered by such Awards, the
Committee shall consider such factors as it deems relevant, which factors may
include, among others, the position and responsibilities of the Key Employees
and Outside Directors, the length and value of their services to the Bank and
its Affiliates, the compensation paid to the Key Employees or fees paid to the
Outside Directors, and the Committee may request the written recommendation of
the Chief Executive Officer and other senior executive officers of the Bank, the
Company and its Affiliates or the recommendation of the full Board. All
allocations by the Committee shall be subject to review, and approval or
rejection, by the Board.
No Restricted Stock shall be earned unless the Recipient maintains
Continuous Service with the Bank or an Affiliate until the restrictions lapse.
(c) Manner of Award. As promptly as practicable after a determination is
made pursuant to Section 5(b) to grant an Award, the Committee shall notify the
Recipient in writing of the grant of the Award, the number of shares of
Restricted Stock covered by the Award, and the terms upon which the Restricted
Stock subject to the Award may be earned. Upon notification of an Award of
Restricted Stock, the Recipient shall execute and return to the Company a
restricted stock agreement (the "Restricted Stock Agreement") setting forth the
terms and conditions under which the Recipient shall earn the Restricted Stock,
together with a stock power or stock powers endorsed in blank. Thereafter, the
Recipient's Restricted Stock and stock power shall be deposited with an escrow
agent specified by the Company ("Escrow Agent") who shall hold such Restricted
Stock under the terms and conditions set forth in the Restricted Stock
Agreement. Each certificate in respect of shares of Restricted Stock Awarded
under the Plan shall be registered in the name of the Recipient.
(d) Treatment of Forfeited Shares. In the event shares of Restricted Stock
are forfeited by a Recipient, such shares shall be returned to the Company and
shall be held and accounted for pursuant to the terms of the Plan until such
time as the Restricted Stock is re-awarded to another Recipient, in accordance
with the terms of the Plan and the applicable state and federal laws, rules and
regulations.
6. Terms and Conditions of Restricted Stock
The Committee shall have full and complete authority, subject to the
limitations of the Plan, to grant awards of Restricted Stock to Key Employees
and Outside Directors and, in addition to the terms and conditions contained in
Sections 6(a) through 6(h), to provide such other terms and conditions (which
need not be identical among Recipients) in respect of such Awards, and the
vesting thereof, as the Committee shall determine.
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(a) General Rules. Unless the Committee shall specifically state to the
contrary at the time an Award is granted, Restricted Stock shall be earned by a
Recipient at the rate of 20% of the initially awarded amount per year commencing
with the first installment being earned on the first anniversary of the Date of
Grant and succeeding installments being earned on the following anniversaries,
provided that such Recipient maintains Continuous Service. Subject to any such
other terms and conditions as the Committee shall provide with respect to
Awards, shares of Restricted Stock may not be sold, assigned, transferred
(within the meaning of Code Section 83), pledged or otherwise encumbered by the
Recipient, except as hereinafter provided, during the Restricted Period. The
Committee shall have the authority, in its discretion, to accelerate the time at
which any or all of the restrictions shall lapse with respect to a Restricted
Stock Award, or to remove any or all of such restrictions.
(b) Continuous Service; Forfeiture. Except as provided in Section 6(c), if
a Recipient ceases to maintain Continuous Service for any reason (other than
death or Disability), unless the Committee shall otherwise determine, all shares
of Restricted Stock theretofore awarded to such Recipient and which at the time
of such termination of Continuous Service are subject to the restrictions
imposed by Section 6(a) shall upon such termination of Continuous Service be
forfeited. Any stock dividends or declared but unpaid cash dividends
attributable to such shares of Restricted Stock shall also be forfeited.
(c) Exception for Termination Due to Death or Disability. Notwithstanding
the general rule contained in Section 6(a), Restricted Stock awarded to a
Recipient whose employment with the Bank or an Affiliate or service on the Board
terminates due to death or Disability shall be deemed earned as of the
Recipient's last day of employment with the Bank or an Affiliate, or last day of
service on the Board of the Company or an Affiliate; provided that Restricted
Stock awarded to a Key Employee who at any time also serves as a Director, shall
not be deemed earned until both employment and service as a Director have been
terminated.
(d) Revocation for Cause. Notwithstanding anything hereinafter to the
contrary, the Board may by resolution immediately revoke, rescind and terminate
any Award, or portion thereof, previously awarded under the Plan, to the extent
Restricted Stock has not been redelivered by the Escrow Agent to the Recipient,
whether or not yet earned, in the case of a Key Employee whose employment is
terminated by the Bank or an Affiliate or an Outside Director whose service is
terminated by the Bank or an Affiliate for Cause or who is discovered after
termination of employment or service on the Board to have engaged in conduct
that would have justified termination for Cause.
(e) Restricted Stock Legend. Each certificate in respect of shares of
Restricted Stock awarded under the Plan shall be registered in the name of the
Recipient and deposited by the Recipient, together with a stock power endorsed
in blank, with the Escrow Agent and shall bear the following (or a similar)
legend:
"The transferability of this certificate and the shares of stock
represented hereby are subject to the terms and conditions (including
forfeiture) contained in the Liberty Bank 1999 Recognition and
Retention Plan. Copies of such Plan are on file in the offices of the
Secretary of Liberty Bank, 1410 St. George Avenue, Avenel, New Jersey
07001."
(f) Payment of Dividends and Return of Capital. After an Award has been
granted but before such Award has been earned, the Recipient shall receive any
cash dividends paid with respect to such shares, or shall share in any pro-rata
return of capital to all shareholders with respect to the Common Stock. Stock
dividends declared by the Company and paid on Awards that have not yet been
earned shall be subject to the same restrictions as the Restricted Stock and the
certificate(s) or other instruments representing or evidencing such shares shall
be legended in the manner provided in Section 6(e) and shall be delivered to the
Escrow Agent for distribution to the Recipient when the Restricted Stock upon
which such dividends were paid are earned. Unless the Recipient has made an
election under Section 83(b) of the Code, cash dividends or other amounts so
paid on shares that have not yet been earned by the Recipient shall be treated
as compensation income to the Recipient when paid. If dividends are paid with
respect to shares of Restricted Stock under the Plan that have been forfeited
and returned to the Company or to a trust established to hold issued and
unawarded or forfeited shares, the Committee can determine to award such
dividends to any Recipient or Recipients under the Plan, to any other employee
or director of the Company or the Bank, or can return such dividends to the
Company.
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(g) Voting of Restricted Shares. After an Award has been granted, the
Recipient as conditional owner of the Restricted Stock shall have the right to
vote such shares.
(h) Delivery of Earned Shares. At the expiration of the restrictions
imposed by Section 6(a), the Escrow Agent shall redeliver to the Recipient (or
where the relevant provision of Section 6(b) applies in the case of a deceased
Recipient, to his Beneficiary) the certificate(s) and any remaining stock power
deposited with it pursuant to Section 5(c) and the shares represented by such
certificate(s) shall be free of the restrictions referred to Section 6(a).
7. Adjustments upon Changes in Capitalization
In the event of any change in the outstanding shares subsequent to the
Effective Date by reason of any reorganization, recapitalization, stock split,
stock dividend, combination or exchange of shares, or any merger, consolidation
or any change in the corporate structure or shares of the Company, without
receipt or payment of consideration by the Company, the maximum aggregate number
and class of shares as to which Awards may be granted under the Plan shall be
appropriately adjusted by the Committee, whose determination shall be
conclusive. Any shares of stock or other securities received, as a result of any
of the foregoing, by a Recipient with respect to Restricted Stock shall be
subject to the same restrictions and the certificate(s) or other instruments
representing or evidencing such shares or securities shall be legended and
deposited with the Escrow Agent in the manner provided in Section 6(e).
8. Assignments and Transfers
No Award nor any right or interest of a Recipient under the Plan in any
instrument evidencing any Award under the Plan may be assigned, encumbered or
transferred (within the meaning of Code Section 83) except, in the event of the
death of a Recipient, by will or the laws of descent and distribution until such
Award is earned.
9. Key Employee Rights under the Plan
No Key Employee shall have a right to be selected as a Recipient nor,
having been so selected, to be selected again as a Recipient and no Key Employee
or other person shall have any claim or right to be granted an Award under the
Plan or under any other incentive or similar plan of the Bank or any Affiliate.
Neither the Plan nor any action taken thereunder shall be construed as giving
any Key Employee any right to be retained in the employ of the Bank or any
Affiliate.
10. Outside Director Rights under the Plan
Neither the Plan nor any action taken thereunder shall be construed as
giving any Outside Director any right to be retained in the service of the Bank
or any Affiliate.
11. Withholding Tax
Upon the termination of the Restricted Period with respect to any shares of
Restricted Stock (or at any such earlier time that an election is made by the
Recipient under Section 83(b) of the Code, or any successor provision thereto,
to include the value of such shares in taxable income), the Bank or the Company
shall have the right to require the Recipient or other person receiving such
shares to pay the Bank or the Company the minimum amount of any federal or state
taxes, including payroll taxes, that are applicable to such supplemental income
and that the Bank or the Company is required to withhold with respect to such
shares, or, in lieu thereof, to retain or sell without notice, a sufficient
number of shares held by it to cover the amount required to be withheld. The
Bank or the Company shall have the right to deduct from all dividends paid with
respect to shares of Restricted Stock the amount of any taxes which the Bank or
the Company is required to withhold with respect to such dividend payments.
12. Amendment or Termination
The Board of the Bank may amend, suspend or terminate the Plan or any
portion thereof at any time subject to OTS regulations and policy, provided,
however, that no such amendment, suspension or termination shall impair the
rights of any Recipient, without his consent, in any Award theretofore made
pursuant to the Plan. Any amendment or modification of the Plan or an
outstanding Award under the Plan, including but not limited to the acceleration
of vesting
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of an outstanding Award for reasons other than death, Disability, Normal
Retirement or termination following a Change in Control, shall be approved by
the Committee, or the full Board of the Company.
13. Governing Law
The Plan shall be governed by the laws of the State of New Jersey.
14. Term of Plan
The Plan initially became effective on February 3, 1999, which was the date
of approval of the Plan by the Company's stockholders. This amendment to the
Plan shall be effective on the date set forth below. The Plan shall continue in
effect until the earlier of (i) ten years from the Effective Date unless sooner
terminated under Section 12 hereof, or (ii) the date on which all shares of
Common Stock available for award hereunder, have vested in the Recipients of
such Awards.
IN WITNESS WHEREOF, the Bank has caused the amended Plan to be executed
by its duly authorized officers and the corporate seal to be affixed and duly
attested, as of the ____ day of ______________, _________.
Date Approved by Shareholders: __________
Initial Effective Date: __________
Effective Date of Amendment __________
ATTEST: LIBERTY BANK
By: ___________________________
Secretary
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EXHIBIT 23.2
CONSENT OF RADICS & CO., LLC
<PAGE>
INDEPENDENT AUDITOR'S REPORT
----------------------------
The Board of Directors
Liberty Bancorp, Inc.
We consent to incorporation by reference in the registration statement on Form
S-8 of Liberty Bancorp, Inc. of our report dated February 12, 1999 relating to
the consolidated statements of financial condition of Liberty Bancorp, Inc. and
Subsidiaries as of December 31, 1998 and 1997, and the related consolidated
statements of income, comprehensive income, changes in stockholders' equity and
cash flows for each of the years in the two-year period ended December 31, 1998,
together will related notes.
/s/ Radics & Co., LLC
Radics & Co., LLC
Pine Brook, New Jersey
January 31, 2000
