<PAGE>
As filed with the Securities and Exchange Commission on ____________ ___, 1995
Registration No. _____________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
__________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
__________________
DAUPHIN DEPOSIT CORPORATION
(Exact Name of Registrant as Specified in its Charter)
Pennsylvania 23-1938831
(State of Incorporation) (I.R.S.Employer
Identification Number)
213 Market Street
Harrisburg, PA 17101
(717) 255-2121
(Address, including Zip Code, and Telephone Number, including Area Code, of
Principal Executive Offices)
__________________
DAUPHIN DEPOSIT CORPORATION 1995 STOCK INCENTIVE PLAN
(Full Title of the Plan)
--------------------------
Christopher R. Jennings
Chairman of the Board and Chief Executive Officer
Dauphin Deposit Corporation
213 Market Street
Harrisburg, Pennsylvania 17101
(717) 255-2121
(Name, Address and Telephone Number of Agent for Service)
__________________
Copy to:
Charles J. Ferry, Esquire
Rhoads & Sinon
One South Market Square, 12th Floor
P.O. Box 1146
Harrisburg, PA 17108-1146
(717) 233-5731
__________________
CALCULATION OF REGISTRATION FEE
================================================================================
<TABLE>
<CAPTION>
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED PER SHARE(1) OFFERING PRICE(1) FEE
- -------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
COMMON STOCK, PAR VALUE $5
PER SHARE (2)............. 2,000,000 SHARES $24.625 $49,250,000 $16,983
=======================================================================================================
</TABLE>
(1) Estimated solely for the purposes of calculating the amount of the
registration fee, pursuant to Rule 457(c), on the basis of the average of the
high and low sales prices presented in the consolidated reporting system on May
31, 1995.
(2) This Registration Statement also applies to Common Stock Purchase Rights
under the Registrant's Shareholder Rights Plan, one of which is attached to and
trades with each share of Common Stock.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
---------------------------------------
The following documents have been filed by Dauphin Deposit Corporation
("Dauphin") with the Securities and Exchange Commission ("SEC") and are
incorporated herein by reference:
(a) Dauphin's Annual Report on Form 10-K for the fiscal year ended December
31, 1994;
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (the "Exchange Act") since the end of
Dauphin's fiscal year ended December 31, 1994.
(c) The description of the Dauphin Common Stock Purchase Rights contained
in a registration statement filed under the Exchange Act on Form 8-A,
including any amendment or report filed for the purpose of updating
such description.
All documents subsequently filed by Dauphin pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective
amendment which indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to be a part hereof
from the date of filing such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes hereof to the extent that a statement contained herein or in any
other subsequently filed incorporated document 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 hereof.
ITEM 4. DESCRIPTION OF SECURITIES.
-------------------------
Each share of Dauphin common stock, par value $5.00 per share ("Dauphin
Common Stock"), is entitled to one vote on all matters. The Dauphin Common
Stock is not redeemable and has no preemptive, exchange or conversion rights.
Holders of Dauphin common Stock are entitled to dividends when and if declared
by the Dauphin Board of Directors out of funds legally available therefore.
Shares of Dauphin Common Stock issued under this Registration Statement will be,
when issued, fully paid and non-assessable shares. In the event of dissolution
<PAGE>
and winding up of the affairs of Dauphin, holders of Dauphin Common Stock would
be entitled to receive pro rata any assets of Dauphin remaining after all
requisite payments have been made to holders of any preferred stock of Dauphin
then outstanding and to creditors.
Subject to Dauphin's Articles of Incorporation and applicable law,
Dauphin's By-Laws provide that a majority of votes cast shall decide every
question or matter submitted to the shareholders unless otherwise required by
law. Pursuant to the Dauphin Articles of Incorporation, certain mergers and
other business combinations with shareholders beneficially owning 10% or more of
Dauphin Common Stock or their affiliates require, in addition to any affirmative
vote required by law, the affirmative vote of 66 2/3% of the shares of capital
stock of Dauphin entitled to vote thereon, unless the business combination is
approved by a majority of continuing directors and otherwise satisfies the
requirements for approval set forth in Dauphin's Articles of Incorporation.
Dauphin's Articles of Incorporation provide that amendment by shareholders of
Dauphin's By-Laws requires the affirmative vote of holders of 66 2/3% of the
shares of Dauphin's capital stock issued, outstanding and entitled to vote.
Dauphin's Articles of Incorporation provide that a director may be removed from
office as a director without cause by the vote of shareholders only upon a vote
of shareholders entitled to case at least 66 2/3% of the vote which all
shareholders would be entitled to cast at an annual election of directors.
Dauphin is authorized to issue shares of preferred stock, $25.00 par value
per share, of which no shares are issued and outstanding as of the date hereof.
The Board of Directors has the power, without further shareholder approval, to
issue the authorized preferred stock in series and to determine the voting
powers, if any, dividend rates, conversion or redemption prices, designations,
rights preferences and limitations of the shares in each series. The Board of
Directors will determine these matters with respect to the preferred shares only
when they are issued.
Dauphin adopted a Shareholder Rights Plan on January 22, 1990 (the "Dauphin
Rights Plan") and declared a dividend of one common share purchase right (the
"Right") on each outstanding share of Dauphin Common Stock for shareholders of
record on February 8, 1990. The Rights will expire on the earlier of January
22, 2000 or the date the Rights are redeemed. A Right will be issued with all
shares of Dauphin Common Stock issued after February 8, 1990 but prior to the
earlier of the Distribution Date or the Expiration Date (as such terms are
defined in the Dauphin Rights Plan). As of the date hereof, neither a
Distribution Date nor an Expiration Date has occurred. The Rights are not
exercisable until a Distribution Date occurs, which is defined in the Dauphin
Rights Plan to occur upon the earlier of (i) fifteen (15) business days
following public announcement that a person or group has acquired beneficial
ownership of 18% or more of Dauphin Common Stock or (ii) fifteen (15) business
days following the commencement of a tender offer or exchange offer that would
result in a person's or group's beneficially owning 18% or more of Dauphin
Common Stock. Upon a person becoming the beneficial owner of 18% or more of the
Dauphin Common Stock and the Rights becoming
- 2 -
<PAGE>
exercisable, the Dauphin Rights Plan provides, among other things, that each
holder of a Right will thereafter have the right to receive, upon exercise,
Dauphin Common Stock having a value equal to two (2) times the exercise price of
the Right. Until a Distribution Date occurs, all Rights will be evidenced by the
certificates for Dauphin Common Stock and will be transferred only with such
certificates. In general, Dauphin may redeem the Rights in whole, but not in
part, at a price of $.001 per Right, at any time until 15 business days
following the date a person or group acquires beneficial ownership of 18% or
more of the outstanding Dauphin Common Stock. The Dauphin Rights Plan may be
amended from time to time by Dauphin's Board of Directors without approval of
Dauphin shareholders. This description of the Rights is not intended to be
complete and is qualified in its entirety by the description of the Rights
contained in Dauphin's Registration Statement on Form 8-A with respect to the
Rights. See "INCORPORATION OF DOCUMENTS BY REFERENCE."
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
--------------------------------------
The validity of the Dauphin Common Stock to be issued under the Plan is
being passed upon for Dauphin by Rhoads & Sinon, Harrisburg, Pennsylvania, as
counsel for Dauphin. Henry W. Rhoads, Esquire, a partner of Rhoads & Sinon, is
a Director of Dauphin. Mr. Rhoads may be deemed the beneficial owner of 48,246
shares of Dauphin Common Stock as of March 3, 1995.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
-----------------------------------------
Sections 1741-1743 of the Pennsylvania Business Corporation Law of 1988, as
amended (the "BCL"), provides that a business corporation may indemnify
directors and officers against liabilities they may incur in such capacities
provided certain standards are met, including good faith and the belief that the
particular action is in the best interests of the corporation. In general, this
power to indemnify does not exist in the case of actions against a director or
officer by or in the right of the corporation if the person entitled to
indemnification shall have been adjudged to be liable to the Corporation unless
and only to the extent a court determines that the person is fairly and
reasonably entitled to indemnification. A corporation is required to indemnify
directors and officers against expenses they may incur in defending actions
against them in such capacities if they are successful on the merits or
otherwise in the defense of such actions. Section 1746 of the BCL provides that
the foregoing provisions shall not be deemed exclusive of any other rights to
which a person seeking indemnification may be entitled under, among other
things, any by-law provision, provided that no indemnification may be made in
any case where the act or failure to act giving rise to the claim for
indemnification is determined by a court to have constituted willful misconduct
or recklessness. Section 1747 of the BCL authorizes a corporation to purchase
insurance for directors and other representatives. The foregoing statement is
subject to the detailed provisions of Section 1741-1850 of the BCL.
- 3 -
<PAGE>
The By-Laws of Dauphin provide for the mandatory indemnification of
directors and officers in accordance with and to the full extent permitted by
law and authorize the purchase of insurance for directors and officers against
liability incurred in such capacities. Dauphin has purchased directors' and
officers' liability insurance covering certain liabilities which may be incurred
by the officers and directors of Dauphin in connection with the performance of
their duties.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
-----------------------------------
Not Applicable.
ITEM 8. EXHIBITS.
--------
4.1 Dauphin Deposit Corporation 1995 Stock Incentive Plan.
5 Opinion of Rhoads & Sinon
15 Letter of KPMG Peat Marwick LLP regarding unaudited interim financial
information
23.1 Consent of Rhoads & Sinon (included as part of Exhibit 5)
23.2 Consent of KPMG Peat Marwick LLP
24 Powers of Attorney (included as part of signature page)
ITEM 9. UNDERTAKINGS.
------------
A. The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933 (the "Securities Act");
(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;
- 4 -
<PAGE>
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
provided, however, that paragraph (A)(1)(i) and (A)(1)(ii) do not apply if
the information required to be included in a post-effective amendment by
the foregoing paragraph is contained in periodic reports filed by the
registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that
are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, 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.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination
of the offering.
B. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
C. Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling 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 of whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by the
final adjudication of such issue.
- 5 -
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Harrisburg, Commonwealth of Pennsylvania, on May 31,
1995.
DAUPHIN DEPOSIT CORPORATION
(Registrant)
By: /s/ Christopher R. Jennings
---------------------------
Christopher R. Jennings, Chairman
of the Board and Chief
Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Christopher R. Jennings, Robert L. Fryer, Jr.,
Dennis L. Dinger and Henry W. Rhoads, and each of them, his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for such person and in such person's name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to the Registration Statement to which this power of attorney is attached, and
to file all those amendments and all exhibits to them and other documents to be
filed in connection with them, with the Securities and Exchange Commission,
granting unto such attorneys-in-fact and agents full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as they might
or could do in person, hereby ratifying and confirming all that said attorneys-
in-fact and agents, or their 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 below by the following persons in the
capacities and on the date indicated below.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Christopher R. Jennings Chairman of the Board, 5/31/95
- --------------------------------
Christopher R. Jennings Chief Executive Officer and
Director
</TABLE>
- 6 -
<PAGE>
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Dennis L. Dinger Senior Executive Vice President 5/31/95
- -----------------------------
Dennis L. Dinger and Chief Fiscal and Adminis-
trative Officer (and principal
accounting officer)
/s/ Robert L. Fryer, Jr. President and Chief Operating 5/31/95
- -----------------------------
Robert L. Fryer, Jr. Officer and Director
/s/ James O. Green Director 5/31/95
- -----------------------------
James O. Green
/s/ Derek C. Hathaway Director 5/31/95
- -----------------------------
Derek C. Hathaway
/s/ Alfred G. Hemmerich Director 5/31/95
- -----------------------------
Alfred G. Hemmerich
/s/ Lee H. Javitch Director 5/31/95
- -----------------------------
Lee H. Javitch
/s/ William J. King Director 5/31/95
- -----------------------------
William J. King
/s/ William T. Kirchhoff Director 5/31/95
- -----------------------------
William T. Kirchhoff
/s/ Lawrence J. LaMaina, Jr. Director 5/31/95
- -----------------------------
Lawrence J. LaMaina, Jr.
/s/ Andrew Maier, II Director 5/31/95
- -----------------------------
Andrew Maier, II
</TABLE>
- 7 -
<PAGE>
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ James E. Marley Director 5/31/95
- --------------------------------
James E. Marley
/s/ Robert F. Nation Director 5/31/95
- --------------------------------
Robert F. Nation
/s/ Elmer E. Naugle Director 5/31/95
- --------------------------------
Elmer E. Naugle
/s/ Walter F. Raab Director 5/31/95
- --------------------------------
Walter F. Raab
/s/ Paul C. Raub Director 5/31/95
- --------------------------------
Paul C. Raub
/s/ Henry W. Rhoads Director 5/31/95
- --------------------------------
Henry W. Rhoads
/s/ Jean D. Seibert Director 5/31/95
- --------------------------------
Jean D. Seibert
/s/ R. Champlin Sheridan, Jr. Director 5/31/95
- --------------------------------
R. Champlin Sheridan, Jr.
</TABLE>
- 8 -
<PAGE>
<TABLE>
<CAPTION>
INDEX TO EXHIBITS
-----------------
SEQUENTIAL
EXHIBIT NO. EXHIBIT PAGE NUMBER
- ----------- ------- -----------
<S> <C> <C>
4.1 Dauphin Deposit Corporation 1995 Stock
Incentive Plan
5 Opinion of Rhoads & Sinon
15 Letter of KPMG Peat Marwick LLP
regarding unaudited interim financial
information
23.1 Consent of Rhoads & Sinon (included
as part of Exhibit 5)
23.2 Consent of KPMG Peat Marwick LLP
24 Powers of Attorney (included as part
of Signature Page)
</TABLE>
<PAGE>
EXHIBIT 4.1
DAUPHIN DEPOSIT CORPORATION
1995 STOCK INCENTIVE PLAN
1. PURPOSES. The purposes of this Plan are (a) to provide competitive
incentives that will enable the Company to attract, retain, motivate and reward
employees, and (b) to give the Company's employees an interest parallel to the
interests of the Company's shareholders generally.
2. DEFINITIONS. Unless otherwise required by the context, the following
terms, when used in this Plan, shall have the meanings set forth in this Section
2.
(a) "Beneficiary" means a person or entity (including a trust or estate),
designated in writing by a participant on such forms and in accordance with such
terms and conditions as the Committee may prescribe, to whom the participant's
rights under the Plan shall pass in the event of the death of the participant.
(b) "Board" or "Board of Directors" means the Board of Directors of the
Company, as constituted from time to time.
(c) "Change in Control" means any of the following:
(i) any person (as such term is used in Sections 13(d) and 14(d)(2)
of the Exchange Act), other than the Company, a Subsidiary, an employee
benefit plan (or related trust) of the Company or a Subsidiary, or
affiliates (as defined in Rule 12b-2 under the Exchange Act), becomes the
beneficial owner (as determined pursuant to Rule 13d-3 under the Exchange
Act), directly or indirectly, of securities of the Company representing
more than 20% of the combined voting power of the Company's then
outstanding securities;
(ii) shareholders approve (A) an agreement for the sale or
disposition of all or substantially all of the Company's assets to an
entity which is not a Subsidiary, (B) a plan of complete liquidation, or
(C) a reorganization, consolidation or merger of the Company in which the
Company is not the continuing or surviving corporation or pursuant to which
shares of Common Stock would be converted into cash, securities or other
property other than a reorganization, consolidation or merger in which the
holders of Common Stock immediately prior to the reorganization,
consolidation or merger will, following such reorganization, consolidation
or merger, beneficially own, directly or indirectly, more than 50% of the
combined voting power of the then outstanding voting securities entitled to
vote generally in the election of directors, as the case may be, of the
corporation resulting from such reorganization, consolidation or merger; or
-1-
<PAGE>
(iii) the persons who were members of the Board of Directors
immediately before a tender or exchange offer by any person other than the
Company or a Subsidiary, or before a reorganization, merger, consolidation,
or contested election, or before any series of such transactions, cease to
constitute a majority of the Board of Directors as a result of such
transaction or transactions.
(d) "Code" means the Internal Revenue Code of 1986, as amended and in
effect from time to time. References to a particular section of the Code shall
include references to any related Treasury Regulations and to successor
provisions.
(e) "Committee" means the Committee appointed by the Board of Directors to
administer the Plan pursuant to the provisions of Section 11(a) below.
(f) "Common Stock" means common stock of the Company, par value $5.00 per
share.
(g) "Company" means Dauphin Deposit Corporation, a Pennsylvania business
corporation and registered bank holding company under the Bank Holding Company
Act of 1956, as amended, its successors and assigns.
(h) "Employee" means an employee of the Company or a Subsidiary, regularly
employed on a full-time basis, including an officer or director if he is such an
employee.
(i) "Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time.
(j) "Fair Market Value" on a particular date means as follows:
(i) if the Common Stock is listed or admitted to trading on such
date on a national exchange, the mean between the high and low sales price
of a share of Common Stock on such date as reported in the principal
consolidated transaction reporting system with respect to securities listed
or admitted to trading on such national exchange or, if no sales were
reported on such date, the mean between the high and low sales price on the
next preceding day on which there was a reported sale; or
(ii) if the Common Stock is not listed or admitted to trading on any
national exchange, the mean between the high and low sales price of a share
of Common Stock on such date in the over-the-counter market, as reported by
the National Association of Securities Dealers, Inc. Automated Quotation
System, the National Quotation Bureau or such other system then in use with
regard to the Common Stock or, if no sales were reported on such date, the
mean between the high and low sales price on the next preceding day on
which there was a reported sale; or
(iii) if the Common Stock is publicly traded but not quoted by any
such system, the mean of the closing bid and asked prices of a share of
Common Stock on
-2-
<PAGE>
such date as furnished by a professional market maker selected by the
Committee making a market in the Common Stock or, if bid and asked prices
are not available on such date, the mean between the closing bid and asked
prices furnished by such market maker on the next preceding day for which
such prices are available.
In the case of an Incentive Stock Option, if the foregoing method of determining
fair market value should be inconsistent with Section 422 of the Code, "Fair
Market Value" shall be determined by the Committee in a manner consistent with
such section of the Code and shall mean the value as so determined.
(k) "Incentive Stock Option" means an option, including an Option as the
context may require, intended to meet the requirements of Section 422 of the
Code.
(l) "Non-Qualified Stock Option" means an option, including an Option as
the context may require, which is not intended to be an Incentive Stock Option.
(m) "Option" means an option granted under this Plan to purchase shares of
Common Stock. Options may be Incentive Stock Options or Non-Qualified Stock
Options.
(n) "Performance Unit Award" means an amount of cash or shares of Common
Stock or a combination of each, that will be distributed in the future if
continued employment or other performance objectives or contingencies specified
by the Committee are attained. Such other performance objectives may include,
without limitation, corporate, divisional or business unit financial or
operating performance measures and such other contingencies may include the
participant's depositing with the Company, acquiring or retaining for stipulated
time periods specified amounts of Common Stock. The amount of the award may but
need not be determined by reference to the market value of Common Stock.
(o) "Plan" means the Dauphin Deposit Corporation 1995 Stock Incentive Plan
set forth in these pages, as amended from time to time.
(p) "Restricted Stock Award" means shares of Common Stock which are issued
or transferred to an Employee under Section 5 below and which will become free
of restrictions specified by the Committee if continued employment and/or other
performance objectives or contingencies specified by the Committee are attained.
Such other performance objectives may include, without limitation, corporate,
divisional or business unit financial or operating performance measures and such
other contingencies may include the participant's depositing with the Company,
acquiring or retaining for stipulated time periods specified amounts of Common
Stock.
(q) "SEC Rule 16b-3" means Rule 16b-3 of the Securities and Exchange
Commission promulgated under the Exchange Act, as such rule or any successor
rule may be in effect from time to time.
(r) "Section 16 Person" means a person subject to potential liability
under Section 16(b) of the Exchange Act with respect to transactions involving
equity securities of the Company.
-3-
<PAGE>
(s) "Stock Appreciation Right" means a right granted under Section 7
below.
(t) "Stock Bonus Award" means an amount of cash or shares of Common Stock
which is distributed to an Employee or which the Committee agrees to distribute
in the future in lieu of, or as a supplement to, any other compensation that may
have been earned by services rendered prior to the date the award is made. The
amount of the award may but need not be determined by reference to the market
value of Common Stock. Performance Unit Awards and Restricted Stock Awards are
specific types of Stock Bonus Awards.
(u) "Stock Incentive" means an award granted under this Plan in one of the
forms provided for in Section 3.
(v) "Subsidiary" means a corporation or other form of business association
of which shares (or other ownership interests) having more than 50% of the
voting power are owned or controlled, directly or indirectly, by the Company;
provided, however, that in the case of an Incentive Stock Option, the term
"Subsidiary" shall mean a Subsidiary (as defined by the preceding clause) which
is also a "subsidiary corporation" as defined in Section 424(f) of the Code.
3. GRANTS OF STOCK INCENTIVES.
(a) Subject to the provisions of the Plan, the Committee may at any time,
or from time to time, grant the following types of awards to any Employee:
(i) Stock Bonus Awards, which may but need not be Performance Unit
Awards or Restricted Stock Awards,
(ii) Options,
(iii) Stock Appreciation Rights, and
(iv) any awards not embraced within (i), (ii) or (iii) above that
provide the participant with the right to purchase or otherwise acquire
Common Stock or that are valued by reference to the market value of Common
Stock (including, but not limited to, phantom securities and dividend
equivalents).
Any such awards shall be in a form determined by the Committee and shall have
such terms and conditions as are determined by the Committee (which may include
terms contingent upon a Change of Control), provided that such awards shall not
be inconsistent with the terms and purposes of the Plan.
(b) After a Stock Incentive has been granted,
(i) the Committee may waive any term or condition thereof that
could have been excluded from such Stock Incentive when it was granted, and
-4-
<PAGE>
(ii) with the written consent of the affected participant, may amend
any Stock Incentive after it has been granted to include (or exclude) any
provision which could have been included in (or excluded from) such Stock
Incentive when it was granted,
and no additional consideration need be received by the Company in exchange for
such waiver or amendment.
(c) The Committee may (but need not) grant any Stock Incentive linked to
another Stock Incentive. Linked Stock Incentives may be granted as either
alternatives or supplements to one another. The terms and conditions of any
such linked Stock Incentives shall be determined by the Committee, subject to
the provisions of the Plan.
4. STOCK SUBJECT TO THIS PLAN.
(a) Subject to the provisions below of Paragraph 4(c) and of Section 9,
the maximum number of shares of Common Stock which may be issued or transferred
pursuant to Stock Incentives is 2,000,000 shares of Common Stock.
(b) Such shares may be authorized but unissued shares of Common Stock,
shares of Common Stock held in the treasury, whether acquired by the Company
specifically for use under this Plan or otherwise, or shares issued or
transferred to, or otherwise acquired by, a grantor trust pursuant to Paragraph
12(d) below, as the Committee may from time to time determine, provided,
however, that any shares acquired or held by the Company for the purposes of
this Plan shall, unless and until issued or transferred to a grantor trust
pursuant to Paragraph 12(d) below or to an Employee in accordance with the terms
and conditions of a Stock Incentive, be and at all times remain treasury shares
of the Company, irrespective of whether such shares are entered in a special
account for purposes of this Plan, and shall be available for any corporate
purpose.
(c) Subject to the provisions of Section 5(c) and Section 7(f), if any
shares of Common Stock subject to a Stock Incentive shall not be issued or
transferred to an Employee and shall cease to be issuable or transferable to an
Employee because of the termination, expiration or cancellation, in whole or in
part, of such Stock Incentive or for any other reason, or if any such shares
shall, after issuance or transfer, be reacquired by the Company because of an
Employee's failure to comply with the terms and conditions of a Stock Incentive,
the shares not so issued or transferred, or the shares so reacquired by the
Company, as the case may be, shall no longer be charged against the limitation
provided for in Paragraph (a) above of this Section 4 and may again be made
subject to Stock Incentives; provided that the number of shares not so issued or
transferred and any such reacquired shares may again be made subject to Stock
Incentives for Section 16 Persons only if the forfeiting Employee received no
benefits of ownership such as dividends (but excluding voting rights) from the
shares or if SEC Rule 16b-3 would otherwise be satisfied.
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5. STOCK BONUS AWARDS, PERFORMANCE UNIT AWARDS AND RESTRICTED STOCK AWARDS.
Stock Bonus Awards, Performance Unit Awards and Restricted Stock Awards shall be
subject to the following provisions:
(a) An Employee may be granted a Stock Bonus Award, Performance Unit Award
or Restricted Stock Award whether or not he is eligible to receive similar or
dissimilar incentive compensation under any other plan or arrangement of the
Company.
(b) Shares of Common Stock subject to a Stock Bonus Award may be issued or
transferred to an Employee at the time such Award is granted, or at any time
subsequent thereto, or in installments from time to time, as the Committee shall
determine. In the event that any such issuance or transfer shall not be made to
the Employee at the time such Award is granted, the Committee may but need not
provide for payment to such Employee, either in cash or shares of Common Stock,
from time to time or at the time or times such shares shall be issued or
transferred to such Employee, of amounts not exceeding the dividends which would
have been payable to such Employee in respect of such shares (as adjusted under
Section 9) if such shares had been issued or transferred to such Employee at the
time such Award was granted.
(c) Any Stock Bonus Award, Performance Unit Award or Restricted Stock
Award may, in the discretion of the Committee, be settled in cash, on each date
on which shares would otherwise have been delivered or become unrestricted, in
an amount equal to the Fair Market Value on such date of the shares which would
otherwise have been delivered or become unrestricted; and the number of shares
for which such cash payment is made shall be added back to the maximum number of
shares available for use under the Plan, provided that the number of shares for
which such cash payment is made may be made subject to Stock Incentives for
Section 16 Persons only if such add-back would satisfy SEC Rule 16b-3.
(d) Stock Bonus Awards, Performance Unit Awards and Restricted Stock
Awards shall be subject to such terms and conditions, including, without
limitation, restrictions on the sale or other disposition of the shares issued
or transferred pursuant to such Award, and conditions calling for forfeiture of
the Award or the shares issued or transferred pursuant thereto in designated
circumstances, as the Committee shall determined; provided, however, that upon
the issuance or transfer of shares to an Employee pursuant to any such Award,
the recipient shall, with respect to such shares, be and become a shareholder of
the Company fully entitled to receive dividends, to vote and to exercise all
other rights of a shareholder except to the extent otherwise provided in the
Award. All or any portion of a Stock Bonus Award may but need not be made in the
form of a Performance Unit Award or a Restricted Stock Award. In the case of a
Restricted Stock Award, the Committee may but need not (unless required by
applicable law) require the recipient to pay the par value of the shares to be
issued or transferred pursuant thereto.
(e) Each Stock Bonus Award, Performance Unit Award and Restricted Stock
Award shall be evidenced by a written instrument in such form as the Committee
shall determine, signed by an officer of the Company duly authorized to do so,
provided that such instrument is consistent with this Plan and incorporates it
by reference.
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6. OPTIONS. Options shall be subject to the following provisions:
(a) Subject to the provisions of Section 9, the purchase price per share
shall be, in the case of an Incentive Stock Option, not less than 100% of the
Fair Market Value of a share of Common Stock on the date the Incentive Stock
Option is granted (or in the case of any optionee who, at the time such
Incentive Stock Option is granted, owns stock possessing more than 10 percent of
the total combined voting power of all classes of stock of his employer
corporation or of its parent or subsidiary corporation, not less than 110% of
the Fair Market Value of a share of Common Stock on the date the Incentive Stock
Option is granted) and, in the case of a Non-Qualified Stock Option, not less
than 85% of the Fair Market Value of a share of Common Stock on the date the
Non-Qualified Stock Option is granted. Subject to the foregoing limitations,
the purchase price per share may, if the Committee so provides at the time of
grant of an Option, be indexed to the increase or decrease in an index specified
by the Committee.
(b) The purchase price of shares subject to an Option may be paid in whole
or in part (i) in cash, (ii) by bank certified, cashier's or personal check
subject to collection, (iii) if so provided in the Option and subject to such
terms and conditions as the Committee may impose, by delivering to the Company a
properly executed exercise notice together with a copy of irrevocable
instructions to a stockbroker to sell immediately some or all of the shares
acquired by exercise of the option and to deliver promptly to the Company an
amount of sale proceeds (or, in lieu of or pending a sale, loan proceeds)
sufficient to pay the purchase price, or (iv) if so provided in the Option and
subject to such terms and conditions as are specified in the Option, in shares
of Common Stock surrendered to the Company. Shares of Common Stock thus
surrendered shall be valued at their Fair Market Value on the date of exercise.
If so provided in the Option and subject to such terms and conditions as are
specified in the Option, in lieu of the foregoing methods of payment, any
portion of the purchase price of the shares to be issued or transferred may be
paid by a promissory note secured by a pledge of the purchased shares in such
form and containing such provisions (which may but need not provide for interest
and for payment of the note at the election of the Employee in cash or in shares
of Common Stock surrendered to the Company) as the Committee may approve;
provided that (A) if the Committee permits any such note to be paid by surrender
of shares of Common Stock, such shares shall be valued at their Fair Market
Value on the date of such surrender, and (B) in the case of an Incentive Stock
Option, any such note shall bear interest at the minimum rate required to avoid
imputation of interest under federal income tax laws applicable at the time of
exercise, and (C) any such note shall mature in ten years or such lesser period
as may be specified by the Committee.
(c) Options may be granted for such lawful consideration, including money
or other property, tangible or intangible, or labor or services received or to
be received by the Company, as the Committee may determine when the Option is
granted. Property for purposes of the preceding sentence shall include an
obligation of the Company unless prohibited by applicable law. Subject to the
foregoing and the other provisions of this Section 6, each Option may be
exercisable in full at the time of grant or may become exercisable in one or
more installments and at such time or times, as the Committee may determine.
The Committee may at any time accelerate the date on which an Option becomes
exercisable, and no additional consideration need be received by the Company in
exchange for such acceleration. Unless otherwise provided in the Option, an
Option, to the extent
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it becomes exercisable, may be exercised at any time in whole or in part until
the expiration or termination of the Option.
(d) Each Option shall be exercisable during the life of the optionee only
by him or his guardian or legal representative, and after death only by his
Beneficiary or, absent a Beneficiary, by his estate or by a person who acquired
the right to exercise the Option by will or the laws of descent and
distribution; provided that an Option of a Section 16 Person and any Incentive
Stock Option may be exercisable after death by a Beneficiary only if such
exercise would be permissible under and consistent with SEC Rule 16b-3 or
Section 422 of the Code, as the case may be. Notwithstanding any other
provision of this Plan, (i) no Option shall be exercisable after the tenth
anniversary of the date the Option was granted, and (ii) no Incentive Stock
Option which is granted to any optionee who, at the time such Option is granted,
owns stock possessing more than 10 percent of the total combined voting power of
all classes of stock of his employer corporation or of its parent or subsidiary
corporation, shall be exercisable after the expiration of five (5) years from
the date such Option is granted. If an Option is granted for a term of less
than ten years, the Committee may, at any time prior to the expiration of the
Option, extend its term for a period ending not later than on the tenth
anniversary of the date the Option was granted, and no additional consideration
need be received by the Company in exchange for such extension. The Committee
may but need not provide for an Option to be exercisable after termination of
employment until its fixed expiration date (or until an earlier date or
specified event occurs).
(e) An Option may, but need not, be an Incentive Stock Option. All shares
of Common Stock which may be made subject to Stock Incentives under this Plan
may be made subject to Incentive Stock Options; provided that the aggregate Fair
Market Value (determined as of the time the option is granted) of the stock with
respect to which Incentive Stock Options may be exercisable for the first time
by any Employee during any calendar year (under all plans, including this Plan,
of his employer corporation and its parent and subsidiary corporations) shall
not exceed $100,000.
(f) Each Option shall be evidenced by a written instrument, signed by an
officer of the Company duly authorized to do so, which shall contain such terms
and conditions, and shall be in such form, as the Committee shall determine,
provided the instrument is consistent with this Plan and incorporates it by
reference. An Option, if so approved by the Committee, may include terms,
conditions, restrictions and limitations in addition to those provided for in
this Plan including, without limitation, terms and conditions providing for the
transfer or issuance of shares, on exercise of an Option, which may be non-
transferable and forfeitable to the Company in designated circumstances.
(g) The Committee may specify, at the time of grant of an Incentive Stock
Option or, with respect to a Non-Qualified Stock Option, at or after the time of
grant, that an Employee shall be granted a Non-Qualified Stock Option (a
"Restored Option") if and when (i) such Employee exercises all or part of an
Option, including a previously granted Restored Option (an "Original Option") by
surrendering shares of Common Stock already owned by him in full or partial
payment of the option price under such Original Option and/or (ii) shares of
Common Stock are surrendered or withheld to satisfy tax obligations incident to
the exercise of such Original Option. All Restored Options are subject to the
availability of shares of Common Stock under the Plan at the time of such
exercise. A Restored Option shall cover a number of shares of Common Stock not
greater than the number
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of shares of Common Stock surrendered in payment of the option price under such
Original Option and/or used to satisfy any tax obligation incident to the
exercise of such Original Option. Each Restored Option shall have an option
price equal to the Fair Market Value of the Common Stock on the date of grant of
the Restored Option and shall expire on the stated expiration date of the
Original Option. The date of grant of a Restored Option shall be the date on
which the exercise of the Original Option or a previously granted Restored
Option resulted in the grant of such Restored Option. A Restored Option shall be
exercisable at any time and from time to time from or after the date of grant of
the Restored Option (or as the Committee in its sole discretion shall otherwise
specify in the written instrument evidencing the Restored Option). The written
instrument evidencing a Restored Option shall contain such other terms and
conditions, which may include a restriction on the transferability of the Common
Stock received upon the exercise of the Original Option or Restored Option, as
the Committee in its sole discretion may deem desirable.
(h) The Committee may cancel any outstanding Option with the consent of
the holder thereof and re-grant the Option at a lower price, provided that such
price satisfies the requirements of Section 6(a) above on the date of regrant,
and no additional consideration need be received by the Company in exchange for
such cancellation and regrant.
(i) No option shall be exercisable unless and until the Company (i)
obtains the approval of all regulatory bodies whose approval counsel to the
Company may deem necessary or desirable, and (ii) complies with all legal
requirements deemed applicable by counsel to the Company.
(j) An Option shall be considered exercised if and when written notice,
signed by the person exercising the Option and stating the number of shares with
respect to which the Option is being exercised, is received by the Secretary on
a properly completed form approved for this purpose by the Committee,
accompanied by full payment of the Option exercise price in one or more of the
forms authorized by the Committee and described in Section 6(b) above for the
number of shares to be purchased. No Option may at any time be exercised with
respect to a fractional share.
7. STOCK APPRECIATION RIGHTS. Stock Appreciation Rights shall be subject to
such terms and conditions, not inconsistent with the Plan, as shall from time to
time be determined by the Committee and to the following terms and conditions:
(a) Stock Appreciation Rights may be granted in connection with all or any
part of an Option, either at the time of the grant of such Option or at any time
thereafter during the term of the Option (in either case, "Linked Stock
Appreciation Rights"), or may be granted without reference to an Option ("Free-
Standing Stock Appreciation Rights").
(b) Linked Stock Appreciation Rights may be granted either as an
alternative or a supplement to a specified Option (the "related" Option). Each
Linked Stock Appreciation Right that is granted as an alternative to an Option
shall entitle the holder to receive the amount determined pursuant to Section
7(e) below if and when he surrenders a related Option to purchase one share of
Common Stock that is then exercisable. Each Linked Stock Appreciation Right
that is granted
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as a supplement to an Option shall entitle the holder to receive the amount
determined pursuant to Section 7(e) below if and when the holder purchases a
share under the related Option.
(c) Stock Appreciation Rights may be granted for such lawful
consideration, including money or other property, tangible or intangible, or
labor or services received or to be received by the Company, as the Committee
may determine when the Rights are granted. Property for purposes of the
preceding sentence shall include an obligation of the Company unless prohibited
by applicable law. Subject to the foregoing and the other provisions of this
Section 7, Stock Appreciation Rights may be exercisable in full at the time of
grant or may become exercisable in one or more installments and at such time or
times, as the Committee may determine. The Committee may at any time accelerate
the date on which Stock Appreciation Rights become exercisable, and no
additional consideration need be received by the Company in exchange for such
acceleration. Unless otherwise provided in the Rights, Stock Appreciation
Rights, to the extent they become exercisable, may be exercised at any time in
whole or in part until they expire or terminate.
(d) No Free-Standing Stock Appreciation Right shall be exercisable after
the tenth anniversary of the date it was granted, and no Linked Stock
Appreciation Right shall be exercisable after the related Option ceases to be
exercisable. If the Committee grants a Stock Appreciation Right for a lesser
term than that permitted by the preceding sentence, the Committee may, at any
time prior to its expiration, extend its term to the maximum term permitted by
the preceding sentence, and no additional consideration need be received by the
Company in exchange for such extension. The Committee may but need not provide
for Stock Appreciation Rights to be exercisable after termination of employment
until they expire pursuant to the first sentence of this paragraph 7(d) (or
until an earlier date or specified event occurs).
(e) Upon exercise of Stock Appreciation Rights, the holder thereof shall
be entitled to receive cash or shares of Common Stock or a combination of each,
as the Committee in its sole discretion may determine, equal to the amount by
which the Fair Market Value of a share of Common Stock on the date of such
exercise exceeds the Base Price of the Stock Appreciation Rights, multiplied by
the number of Stock Appreciation Rights exercised; provided that in no event
shall a fractional share be issued. In the case of Linked Stock Appreciation
Rights, the Base Price shall be the price at which shares may be purchased under
the related Option, unless the Committee specified a different price when the
Rights were granted (which shall not be less than the lowest price at which the
related Option could have been granted under Section 6 above). In the case of
Free-Standing Stock Appreciation Rights, the Base Price shall be the Fair Market
Value of a share of Common Stock on the date the Rights were granted, unless the
Committee specified a different price when the Rights were granted (which shall
not be less than 85% of the Fair Market Value of a share of Common Stock on the
date the Rights were granted).
(f) The maximum number of shares available for use under the Plan shall be
charged only for the number of shares which are actually issued or transferred
in settlement of Stock Appreciation Rights, except if and to the extent that
Company counsel determines that, with respect to Section 16 Persons, SEC Rule
16b-3 requires that a different number of shares be so charged. In the case of
an exercise of a Linked Stock Appreciation Right that is alternative to an
Option, if the number of shares of Common Stock previously charged against the
maximum number of shares available for use
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under the Plan on account of the surrendered portion of the Option exceeds the
number of shares (if any) actually issued or transferred pursuant to such
surrender, the excess may be added back to the number of shares available for
use under the Plan, provided that the number of shares added back may be made
subject to Stock Incentives for Section 16 Persons only if such add-back would
satisfy SEC Rule 16b-3.
(g) Stock Appreciation Rights shall be exercisable during the life of the
Employee only by him or his guardian or legal representative, and after death
only by his Beneficiary or, absent a Beneficiary, by his estate or by a person
who acquired the Stock Appreciation Rights by will or the laws of descent and
distribution; provided that Stock Appreciation Rights of a Section 16 Person and
Stock Appreciation Rights linked to an Incentive Stock Option may be exercisable
after death by a Beneficiary only if such exercise would be permissible under
and consistent with SEC Rule 16b-3 or Section 422 of the Code, as the case may
be.
(h) Each Stock Appreciation Right shall be evidenced by a written
instrument, which shall contain such terms and conditions, and shall be in such
form, as the Committee shall determine, provided the instrument is consistent
with the Plan and incorporates it by reference.
8. CERTAIN CHANGE IN CONTROL, TERMINATION OF EMPLOYMENT AND DISABILITY
PROVISIONS. Notwith-standing any provision of the Plan to the contrary, any
Stock Incentive which is outstanding but not yet exercisable, vested or payable
at the time of a Change in Control shall become exercisable, vested and payable
at that time. Any Option affected by the preceding sentence shall remain
exercisable until it expires or terminates pursuant to its terms and conditions.
Subject to the foregoing provisions of this Section 8, the Committee may at any
time, and subject to such terms and conditions as it may impose:
(a) authorize the holder of an Option or Stock Appreciation Right to
exercise the Option or Stock Appreciation Right following the termination of the
participant's employment with the Company and its Subsidiaries, or following the
participant's disability, whether or not the Option or Stock Appreciation Right
would otherwise be exercisable following such event, provided that in no event
may an Option or Right be exercised after the expiration of its term;
(b) grant Options and Stock Appreciation Rights which become exercisable
only in the event of a Change in Control;
(c) provide for Stock Appreciation Rights to be exercised automatically
and only for cash in the event of a Change in Control;
(d) authorize a Stock Bonus Award, Performance Unit Award or Restricted
Stock Award to become non-forfeitable, fully earned and payable following (i) a
Change in Control, (ii) the termination of the participant's employment with the
Company and its Subsidiaries, or (iii) the participant's disability, whether or
not the Award would otherwise become non-forfeitable, fully earned and payable
following such event;
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(e) grant Stock Bonus Awards, Performance Unit Awards and Restricted Stock
Awards which become non-forfeitable, fully earned and payable only in the event
of a Change in Control;
(f) provide in advance or at the time of a Change in Control for cash to
be paid in settlement of any Option, Stock Appreciation Right, Stock Bonus
Award, Performance Unit Award or Restricted Stock Award in the event of a Change
in Control, either at the election of the participant or at the election of the
Committee; and
(g) cause any Stock Incentive then outstanding to be assumed or new rights
of equivalent value substituted therefor by the successor corporation in any
Change in Control.
9. ADJUSTMENT PROVISIONS. In the event that any recapitalization, or
reclassification, split-up or consolidation of shares of Common Stock shall be
effected, or the outstanding shares of Common Stock shall be, in connection with
a merger or consolidation of the Company or a sale by the Company of all or a
part of its assets, exchanged for a different number or class of shares of stock
or other securities or property of the Company or any other entity or person, or
a record date for determination of holders of Common Stock entitled to receive a
dividend or other distribution payable in Common Stock or other property (other
than normal cash dividends) shall occur, (a) the number and class of shares or
other securities or property that may be issued or transferred pursuant to Stock
Incentives thereafter granted or that may be optioned or awarded under the Plan
to any employee, (b) the number and class of shares or other securities or
property that may be issued or transferred under outstanding Stock Incentives,
(c) the purchase price to be paid per share under outstanding and future Stock
Incentives, and (d) the price to be paid per share by the Company or a
Subsidiary for shares or other securities or property issued or transferred
pursuant to Stock Incentives which are subject to a right of the Company or a
Subsidiary to reacquire such shares or other securities or property, shall in
each case be equitably adjusted as determined by the Committee; provided that
with respect to Incentive Stock Options any such adjustments shall comply with
Sections 422 and 424 of the Code.
10. EFFECTIVE DATE AND DURATION OF PLAN. The Plan shall become effective when
adopted by the Board, provided that the shareholders of the Company thereafter
approve it at a duly held stockholders' meeting. If the Plan is not so approved
by shareholders, the Plan (and any Stock Incentive granted thereunder) shall be
null, void and of no force or effect. If so approved, the Plan shall remain in
effect until all shares authorized to be issued or transferred hereunder have
been exhausted or until the Plan is sooner terminated by the Board of Directors,
and shall continue in effect thereafter with respect to any Stock Incentives
outstanding at the time of such termination. In no event shall an Incentive
Stock Option be granted under the Plan more than ten (10) years from the date
the Plan is adopted by the Board, or the date the Plan is approved by the
shareholders of the Company, whichever is earlier.
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11. ADMINISTRATION.
(a) The Plan shall be administered by a committee of the Board consisting
of three or more directors appointed from time to time by the Board. No person
shall be appointed to or shall serve as a member of such committee unless at the
time of such appointment and service he shall be a "disinterested person," as
defined in SEC Rule 16b-3. Notwithstanding the foregoing, the Board may, in its
discretion, delegate to another committee of the Board any or all of the
authority and responsibility of the Committee with respect to awards to
employees who are not subject to Section 16 of the Exchange Act at the time any
such delegated authority or responsibility is exercised. Such other committee
may consist of three or more directors who may, but need not, be officers or
employees of the Company or of any of its Subsidiaries. To the extent that the
Board has delegated to such other committee the authority and responsibility of
the Committee pursuant to the foregoing, all references to the Committee in the
Plan shall be to such other committee. Unless the Board determines otherwise,
the Committee shall be comprised solely of "outside directors" within the
meaning of Section 162(m)(4)(C)(i) of the Internal Revenue Code of 1986 as
amended by the Omnibus Budget Reconciliation Act of 1993.
(b) The Committee may establish such rules and regulations, not
inconsistent with the provisions of the Plan, as it may deem necessary for the
proper administration of the Plan, and may amend or revoke any rule or
regulation so established. The Committee shall, subject to the provisions of
the Plan, have full power to interpret, administer and construe the Plan and
full authority to make all determinations and decisions thereunder including
without limitation the authority to (i) select the participants in the Plan,
(ii) determine when Stock Incentives shall be granted, (iii) determine the
number of shares to be made subject to each Stock Incentive, (iv) determine the
type of Stock Incentive to grant, and (v) determine the terms and conditions of
each Stock Incentive, including the exercise price, in the case of an Option or
Stock Appreciation Right, and whether specific awards shall be linked to one
another and if so whether they shall be alternative to or supplement one
another. The interpretation by the Committee of the terms and provisions of the
Plan and its administration thereof, and all action taken by the Committee,
shall be final, binding and conclusive on the Company, its stockholders,
Subsidiaries, all participants and employees, and upon their respective
Beneficiaries, successors and assigns, and upon all other persons claiming under
or through any of them.
(c) Members of the Board of Directors and members of the Committee acting
under this Plan shall be indemnified by the Company in respect of all their
activities under the Plan to be maximum extent permitted by law and shall incur
no liability except for gross or willful misconduct in the performance of their
duties.
12. GENERAL PROVISIONS.
(a) Any provision of the Plan to the contrary notwithstanding, any
derivative security issued under the Plan (within the meaning of Paragraph
(a)(2) of SEC Rule 16b-3 as amended in SEC Release No. 34-28869), including
without limitation any Option or Stock Appreciation Right, shall not be
transferable by the participant other than by will or the laws of descent and
distribution
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or to a Beneficiary designated by the participant or pursuant to a qualified
domestic relations order as defined by the Code or Title I of the Employee
Retirement Income Security Act, as amended, or the rules thereunder. Any
purported transfer of a derivative security to a Beneficiary by a Section 16
Person, and any purported transfer of an Incentive Stock Option to a
Beneficiary, shall be effective only if such transfer is permissible under and
consistent with SEC Rule 16b-3 or Section 422 of the Code, as the case may be.
(b) Nothing in this Plan or in any instrument executed pursuant hereto
shall confer upon any person any right to continue in the employment or other
service of the Company or a Subsidiary, or shall affect the right of the Company
or a Subsidiary to terminate the employment or other service of any person at
any time with or without cause.
(c) No shares of Common Stock shall be issued or transferred pursuant to a
Stock Incentive unless and until all legal requirements applicable to the
issuance or transfer of such shares have been satisfied. Any such issuance or
transfer shall be contingent upon the person acquiring the shares giving the
Company any assurances that counsel to the Company may deem necessary or
desirable to assure compliance with all applicable legal requirements.
(d) No person (individually or as a member of a group) and no Beneficiary
or other person claiming under or through him, shall have any right, title or
interest in or to any shares of Common Stock (i) issued or transferred to, or
acquired by, a grantor trust (ii) allocated, or (iii) reserved for the purposes
of this Plan, or subject to any Stock Incentive, except as to such shares of
Common Stock, if any, as shall have been issued or transferred to him. The
Committee may (but need not) provide at any time or from time to time (including
without limitation upon or in contemplation of a Change in Control) for a number
of shares of Common Stock, equal to the number of such shares subject to Stock
Incentives then outstanding, to be issued or transferred to, or acquired by, a
grantor trust for the purpose of satisfying the Company's obligations under such
Stock Incentives, and, unless prohibited by applicable law, such shares held in
trust shall be considered authorized and issued shares with full dividend and
voting rights, notwithstanding that the Stock Incentives to which such shares
relate shall not have been exercised or may not be exercisable or vested at that
time.
(e) The Company and its Subsidiaries may make such provisions as they may
deem appropriate for the withholding of any taxes which they determine they are
required to withhold in connection with any Stock Incentive. Without limiting
the foregoing, the Committee may, subject to such terms and conditions as it may
impose, permit or require any withholding tax obligation arising in connection
with the grant, exercise, vesting, distribution or payment of any Stock
Incentive to be satisfied in whole or in part, with or without the consent of
the participant, by having the Company withhold all or any part of the shares of
Common Stock that vest or would otherwise be distributed at such time. Any
shares so withheld shall be valued at their Fair Market Value on the date of
such withholding.
(f) Nothing in this Plan is intended to be a substitute for, or shall
preclude or limit the establishment or continuation of, any other plan, practice
or arrangement for the payment of compensation or fringe benefits to directors,
officers, employees or consultants generally, or to any
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class or group of such persons, which the Company or any Subsidiary now has or
may hereafter lawfully put into effect, including, without limitation, any
incentive compensation, retirement, pension, group insurance, stock purchase,
stock bonus or stock option plan.
(g) The Committee may establish such additional terms and conditions as it
determines to be necessary or advisable with respect to transactions by and with
respect to Section 16 Persons under the Plan to comply with any applicable
conditions of SEC Rule 16b-3. Further, it is intended that this Plan and any
Stock Incentive granted to any Section 16 Person with respect to the Plan be
eligible for exemption under SEC Rule 16b-3. Accordingly, unless the Committee
determines otherwise, if any provision of the Plan or any such Stock Incentive
does not comply with the requirements of SEC Rule 16b-3 then applicable to the
Plan or such Stock Incentive, such provision shall be deemed amended to the
extent necessary to conform to such requirements.
(h) The Company's obligation to issue or transfer shares of Common Stock
or to pay money in respect of any Stock Incentive shall be subject to the
condition that such issuance, transfer or payment would not, in the opinion of
counsel to the Company, cause any impairment of the Company's capital or
constitute a breach of or cause the Company to be in violation of any covenant,
warranty or representation made by the Company in any credit agreement to which
the Company is a party.
(i) By accepting any benefits under the Plan, each participant, and each
person claiming under or through him, shall be conclusively deemed to have
indicated his acceptance and ratification of, and consent to, all provisions of
the Plan and any action or decision under the Plan by the Company, its agents
and employees, and the Board of Directors and the Committee.
(j) The validity, construction, interpretation and administration of the
Plan and of any determinations or decisions made thereunder, and the rights of
all persons having or claiming to have any interest therein or thereunder, shall
be governed by, and determined exclusively in accordance with, the laws of the
Commonwealth of Pennsylvania, but without giving effect to the principles of
conflicts of laws thereof.
(k) The use of the masculine gender shall also include within its meaning
the feminine. The use of the singular shall include within its meaning the
plural and vice versa.
13. AMENDMENT AND TERMINATION. The Plan may be amended by the Board of
Directors at any time and in any respect, including without limitation to permit
or facilitate qualification of Options theretofore or thereafter granted as
Incentive Stock Options under the Code, provided that, without stockholder
approval, no amendment shall (a) materially increase the benefits accruing to
Section 16 Persons who are participants under the Plan within the meaning of SEC
Rule 16b-3, (b) increase the aggregate number of shares which may be issued
under Incentive Stock Options under the Plan within the meaning of Proposed
Treasury Regulation Section 1.422A(b)(iv) or its successor, (c) materially
increase the number of securities which may be issued to Section 16 Persons
under the Plan within the meaning of SEC Rule 16b-3, or (d) materially modify
the requirements as to eligibility for participation in the Plan by Section 16
Persons within the meaning of SEC Rule 16b-3. The Plan
-15-
<PAGE>
may also be terminated at any time by the Board of Directors. No amendment or
termination of this Plan shall adversely affect any Stock Incentive granted
prior to the date of such amendment or termination without the written consent
of the participant.
-16-
<PAGE>
[Logo of RHOADS & SINON appears here]
EXHIBIT 5
---------
May 31, 1995
OPINION AND CONSENT OF MESSRS. RHOADS & SINON
---------------------------------------------
RE: DAUPHIN DEPOSIT CORPORATION -
REGISTRATION STATEMENT ON FORM S-8
FOR DAUPHIN DEPOSIT CORPORATION
1995 STOCK INCENTIVE PLAN
---------------------------------------
Dauphin Deposit Corporation
213 Market Street
Harrisburg, PA 17101
Gentlemen:
Reference is made to your Registration Statement on Form S-8 to be
filed with the Securities and Exchange Commission regarding the registration of
2,000,000 shares of common stock, par value $5.00 per share, of Dauphin Deposit
Corporation (the "Corporation") for issuance upon exercise of awards granted
pursuant to the above referenced benefit plan.
We have examined the records related to the organization of the
Corporation, its Articles of Incorporation, By-Laws and all amendments thereto,
and the records of proceedings of its stockholders and directors.
Based upon the foregoing, and upon the examination of such other
documents as we have deemed necessary to express the opinions hereinafter set
forth, we are of the opinion that:
(1) The Corporation is a corporation duly organized and in good
standing under the laws of the Commonwealth of Pennsylvania; and
<PAGE>
[Logo of RHOADS & SINON appears here]
May 31, 1995
Page Two
(2) The securities to be registered will, when issued, be legally
issued and outstanding stock of the Corporation, fully paid and non-accessible.
We hereby consent to the filing of this opinion as an Exhibit to the
said Registration Statement and to all references to us therein.
In giving such consent, we do not thereby admit that we are experts
within the meaning of Section 7 of the Securities Act of 1933.
Very truly yours,
RHOADS & SINON
By: /s/ Charles J. Ferry
Charles J. Ferry
<PAGE>
[Logo of KPMG appears here]
The Board of Directors
Dauphin Deposit Corporation
Re: Registration Statement Form S-8 (Dauphin Deposit Corporation 1995 Stock
Incentive Plan)
With respect to the subject registration statement, we acknowledge our awareness
of the use therein of our report dated April 14, 1995 related to our review of
interim financial information.
Pursuant to Rule 436(c) under the Securities Act of 1933, such report is not
considered a part of a registration statement prepared or certified by an
accountant or a report prepared or certified by an accountant within the meaning
of sections 7 and 11 of the Act.
/s/ KPMG Peat Marwick LLP
KPMG Peat Marwick LLP
Harrisburg, Pennsylvania
May 31, 1995
Exhibit 15
<PAGE>
[Logo of KPMG appears here]
Consent of Independent Certified Public Accountants
---------------------------------------------------
The Board of Directors
Dauphin Deposit Corporation
We consent to the use of our report dated January 27, 1995 relating to the
consolidated balance sheets of Dauphin Deposit Corporation as of December 31,
1994 and 1993, and the related consolidated statements of income, stockholders'
equity and cash flows for each of the years in the three-year period ended
December 31, 1994, incorporated by reference in the registration statement on
Form S-8 of Dauphin Deposit Corporation, which report appears in the annual
report on Form 10-K for the year ended December 31, 1994.
Our report refers to a change in the Corporation's method of accounting for
investment securities by adopting the provisions of Statement of Financial
Accounting Standards No. 115, Accounting for Certain Investments in Debt and
Equity Securities.
/s/ KPMG Peat Marwick LLP
KPMG Peat Marwick LLP
Harrisburg, Pennsylvania
May 31, 1995
Exhibit 23
